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Mehaffy, J.
The appellant, Sidney Woodson, was indicted by the Lee County grand jury on April 7, 1926, charged with making and fermenting mash fit for the manufacture of distilled spirits, etc.
Z. O. Smith, the sheriff of the county, testified that, acting on information that the defendant was ■ making whiskey, he went to his residence to arrest him, and approached by way of the kitchen, the door of which was opear. That there were two fifty-gallon barrels of mash and possibly two or three smaller barrels against the wall of the kitchen.
Appellant objected to this testimony, the objection was overruled, and exception saved.
' Witness said the fifty-gallon barrels were full of mash, the kind used for making whiskey; that appellant at that time was fifty or a hundred yards away, cutting corn or cotton stalks. Witness was accompanied by his deputy, Mr. Clay, who started to arrest the defendant. The defendant escaped arrest. Witness had a warrant for defendant’s arrest from the time the indictment was returned until the arrest was actually made. Defendant was first arrested “just a short time ago; around four or five weeks ago.” Witness did not have a search warrant to search the premises, and did not have a warrant for the arrest of the defendant. The stuff was in the kitchen, and he could not tell what was in the barrels until he went into the house. When the witness saw the mash, defendant was cutting stalks. When they saw what they thought' was mash, Clay went out to arrest defendant, and then they.went into the house and poured the stuff out and found that it was mash.
On cross-examination witness said he could not tell what was in the barrels until he went into the house. Did not find any whiskey.
The evidence offered by the defendant tended to show that what they found was not masli, and the defendant himself testified that he was out cutting cornstalks, and the first knowledge he had of the presence of the officers was when Mr. Clay came out and asked him if he lived up there. When-defendant answered “Yes,” Mr. Clay said, “Come on up here.” Witness told him all right, and went down to the lower end, and intended to go hack to the house, and looked hack, and the deputy had run about 30 or 40 yards with a pistol in his hand. Witness said he did not know who it was, and, for that reason, he ran. He was gone about an hour before he came back. He stayed there, and helped make and plant a crop, and helped pick it. He left home the 7th day of August and came back the 23d of September. He testified that the containers in the house were used for holding slop. That he had purchased some bran and chops from Mr. McClintock; that he had four hogs; that there was no sugar in the mixture, nor syrup.
Appellant contends that the evidence obtained by an unlawful search of his house should have been excluded, and this was the only evidence tending to show that there was mash in the barrels. If this evidence was properly admitted, it was sufficient to justify a verdict of conviction.
A majority of the court is of the opinion that, although defendant’s constitutional rights were violated, this court would not take notice of the manner in .which witness obtained the evidence; that it was competent and relevant, although obtained in violation of the Constitution of the State of Arkansas and the Constitution of the United States.
Mr. Justice Smith, Mr. Justice McHaney and the writer do not agree to this, but they believe, as held by the United States Supreme Court in Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. ed., that the effect of the Constitution is to put the courts in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted with the enforcement of the laws.
But, as we have said, the majority of the judges are of opinion that this case is controlled, so far as the admissibility of this evidence is concerned, by the case of Benson v. State, 149 Ark. 633, 233 S. W. 758, in which the court said
“Tisdell made the search without a warrant or other process from any court especially authorizing him so to • do. It is insisted therefore that, as the search was illegally made, any evidence of guilt thus discovered was inadmissible in evidence. The authorities are against appellant on this proposition. Without inquiring or ■deciding what right Tisdell had to search appellant’s premises, it suffices to say that the evidence of appellant’s guilt thus discovered is not rendered inadmissible because Tisdell may have been a trespasser. * * * For these reasons it has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence. The illegality is by no means condoned, it is merely ignored.”
The court then cites numerous authorities, including Starchman v. State, 62 Ark. 238, 36 S. W. 940, 8 R. C. L. 96, 24 R. C. L., § 22, 10 R. C. L., § 97.
It is useless to review the authorities further, the only que'stion being whether evidence obtained by an unlawful search is admissible, and, as a majority of the judges hold that it is, the evidence is sufficient tcJ sustain the verdict, and the judgment is therefore affirmed. | [
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Smith, J.
At the trial in the court below from which this appeal comes a voluminous record was made. Numerous pleadings were filed, and a large amount of evidence was taken, but, stripped of all superfluities, the question involved is the correct location of the boundary line between tracts of land owned by appellant and appellee, respectively.
J. H. Skaggs owned a tract of land in Randolph County, adjacent to Black River, incident to which was a ferry across that stream. Skaggs died, childless and intestate, in 1895, and was survived by his widow and six brothers and sisters. The land was an original acquisition, and a partition was made between the widow and these heirs, and the heirs received the part of the land to which the ferry was attached.
In 1897 a suit was brought by certain of these collateral heirs against the others, in which a partition was prayed among them of the portion of the J. H. Skaggs estate which they had received upon the partition of that estate with the widow of J. H. Skaggs. A judgment ordering the partition of the lands among the collateral heirs was rendered in the Randolph Circuit Court, and B. B. Raglin was appointed commissioner to make the partition. Pursuant to this judgment, Raglin, as commissioner, executed deeds to the collateral heirs in severalty to the lands assigned them, respectively, one of these deeds being to the plaintiff, W. L. Skaggs, and another to J. M. Skaggs. The lands assigned and deeded to these brothers of the intestate J. II. Skaggs were coterminous, and were divided by a road known as the Skaggs Perry Road, so that this road formed the east boundary line of the W. L. Skaggs land and the west boundary line of the J. M. Skaggs land, and was referred to in the commissioner’s deeds, to them as constituting their east and west boundary line's, respectively.
•T. M. Skaggs died intestate, and was survived by two children, Mrs. Lavada Holman and Mrs. Rosa Webb. Mrs. Holman conveyed her interest in the land to her sister, Mrs. We'bb, who later conveyed the interest which she had purchased, as well as that which she had inherited, to Oscar Prince, who thus became the owner of the interest which J. M. Skaggs had taken upon the partition by the collateral heirs.
W. L. Skaggs brought this suit against Prince, alleging the facts above stated, and made all persons whose interests have been herein referred to parties. In this suit he prayed the reformation of the deeds of the commissioner, Raglin, both to himself and to his intestate brother, J. M. Skaggs, alleging that both deeds were indefinite, in that the east boundary of one tract and the west boundary of the other was a road, the location of which was not only indefinite, but the said road had been moved to the west, thereby encroaching upon lands assigned to plaintiff, W. L. Skaggs, upon the partition. It was alleged that defendant Prince had thus acquired possession of a strip of land belonging to the plaintiff, and the purpose of the suit was to recover possession of this strip.
Plaintiff himself criticises the partition proceeding under which he acquired his own deed, and the reformation of this deed is one of the grounds assigned for equitable relief.
We do not consider the objections, made to the partition proceeding, for, whatever irregularities there may have been in that proceeding, it is enforceable as a family settlement, for all of the heirs have taken in severalty the portions assigned them, and if the exact and definite location of the Skaggs Ferry Road was known and established as it existed at the time of the partition, that fact would settle this litigation, as both parties claim that line as their true boundary.
There was ho motion to transfer this causé to the law docket, and of all the persons made parties to this suit appellee Prince was the only one to file an answer or other pleading, as the other parties were correctly of the opinion that their own rights would not be affected by any relief granted or denied to the appellant-plaintiff, W. L. Skaggs.
As the commissioner’s deed made the Skaggs Ferry Road the boundary between the W. L. Skaggs tract and the J. M. Skaggs tract, the controlling question of fact in this case is the location of this road at the time these deeds were executed.
The court below found that the plaintiff, W. L. Skag’g's, was not entitled to the possession of the strip of land sued for, and dismissed his complaint as being without equity, and this appeal is from that decree.
This finding of fact by the court was necessarily predicated upon the coincident finding 'that there had been no material change in the location of the Skaggs Perry Road since the date of the execution of the partition deeds. It was essential to a recovery on the part of the plaintiff that the testimony show that this road had been moved to the west of its. original location, otherwise the defendant could not have acquired any portion of the plaintiff’s land. This road was never at uny time straight, nor does its width appear to have been always unvarying; in fact, the traffic did not always travel a beaten, defined path: Consequently the testimony is in irreconcilable conflict as to the exact location of the road in 1917, when the commissioner’s deeds of partition were executed.
The testimony on the part of the plaintiff- is to the effect that the defendant, by clearing his land and building his fence to include the clearing, has moved the road westward so that a portion of plaintiff’s land was thereby taken; but a number of witnesses, who appear to be and to have been equally familiar with this road during the time in which it was alleged to have been, moved, testified that the road had not been moved to the west, and that its present location is substantially identical with its location in 1917.
We think no useful purpose would be served in reviewing this testimony, and, after carefully considering it, we are left in doubt as to the fact in issue, and, as we are unable to say that the finding of the chancellor on this question of fact is clearly against the preponderance of the evidence, it becomes our duty to affirm the decree appealed from. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.
The decree is therefore affirmed. | [
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McHaney, J.
Appellant was charged by information with the crime of carnal abuse. Trial resulted in a verdict of guilty, on which a judgment was entered, sentencing him to the penitentiary for a term of two years, and from which he has appealed. líe has not favored us with a brief in his behalf.
Five assignments of error were set up in the motion for a new trial, but they raise only two questions: (1) the sufficiency of the evidence to sustain the verdict and judgment, and (2) the jurisdiction of the court, it being alleged that the offense, if any, was committed in the Western District of Carroll county and not in the Eastern District, in which the court was sitting. Neither assignment can be sustained.
As to the alleged insufficiency of the evidence, it was established by the testimony of the father and mother of the prosecutrix that she was under the age of 16 years, and there was no dispute of their testimony. The prosecutrix herself testified positively that she did have sexual intercourse with appellant in March of this year, detailing the time, the place and the circumstances of the occurrence. She was corroborated to some extent by the testimony of a girl companion who, with another man, drove to Eureka Springs and back from Berryville that night, and also by a physician who made a physical examination of her the next day. Appellant denied that he had such relationship with her and was corroborated by the other man. She was not an accomplice within the meaning of § 4017 of Pope’s Digest, and corroboration was not necessary. Waterman v. State, 202 Ark. 934, 154 S. W. 2d 813. So the testimony was in dispute, and, as to who was telling the truth, was for the jury to decide. It did so, found appellant guilty and its verdict must stand since it was supported by substantial testimony, in fact by a preponderance thereof.
As to the jurisdiction of the court, we think the vejiue was sufficiently proven. Under § 36 of Initiated Act No. 3 of 1936, Acts of 1937, p. 1384, et seq., it is provided that upon trial the offense shall be presumed to have been committed within the jurisdiction of the court, “unless the evidence affirmatively shows otherwise.” There is no evidence showing that the offense, if committed at all, was at another place in another jurisdiction.
Affirmed. | [
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Smith, J.
Harmony Grove Consolidated School District No. 19 of Saline County was organized by the board of education of that county by an order made September 18,1925, and by a subsequent order made March 12, 1927, which dissolved Haskell School District No. 66 and added the territory of that district to the consolidated district. The directors of the consolidated district caused notice to be published, prior to the annual school meeting held in May, 1927, calling upon the electors of the district to vote for or against a building fund, and, at the election held pursuant to this notice, a majority of the electors voted for a six-mill building fund. After this election the school directors advertised for bids for the sale of $20,000 of the bonds of the district, and let a contract for the erection of a school building to be paid for out of this bond issue.
B. F. Allen, who is a resident and taxpayer in the consolidated district, brought this suit to enjoin the issuance of these bonds upon the ground that the consolidated district had not been properly organized.
An answer was filed by the directors on behalf of the district, in which the proceedings whereby the consolidated district had been organized were set out, and to this answer a demurrer was filed. The demurrer was overruled, and the taxpayer elected to stand thereon, and the case was submitted, as the decree recites, upon the complaint and the answer and exhibits to the answer, and the relief prayed by the taxpayer was denied and his complaint dismissed, and this appeal is from that decree.
The answer alleged that on July 31,1926, an election was held under an order of the county board of education, made pursuant to a proper petition therefor upon the question of "the proposed consolidation of Districts Nos. 11, 21 and 41, and at this election a majority of the qualified electors of Districts Nos. 11 and 41 voted for consolidation, but in District No. 21 a majority voted against consolidation. Whereupon the directors of Districts Nos. 11 and 41 presented a petition to the board of educa-' tion for the consolidation of those districts, it being therein stated that a majority of the electors of these districts had voted for the consolidation, and on September 18,1926, the board of education made an order consolidating these districts into one district, to be known as Harmony Grove Consolidated District No. 19 of Saline County.
On March 12,1927, the board of education heard and considered a petition signed by persons who denominated themselves as patrons. of Haskell School District No. 66, praying that the district be dissolved and its territory added to and made a part of Consolidated District No. 19. The board found that this petition contained the signatures of a majority of the electors of District No. 66, and made the order as prayed.
The complaint of the taxpayer alleged that the notice of the election called upon the electors to vote upon, the question of creating a building fund, but did not specifically state that the voters would also be asked to authorize a bond issue as a means of providing funds to erect the school building*, and the taxpayer insists that the authority to issue bonds does not exist because of that omission and the failure of the electors to specifically vote for a bond issue.
We think the board of education was in error in making the order consolidating* Districts Nos. 11 and 41. It is true a majority of the electors of those districts voted for the consolidation, but the question submitted was not whether those two districts should be consolidated, but was whether districts Nos. 13, 21 and 41 should be consolidated, and the statute requires that “a majority of the qualified voters of each school district proposing to enter into the consolidation” shall be obtained, and the consent of all three districts was essential to the making of a valid order of consolidation. Section 8846, C. & M. Digest.
' Appellant also contends that the action of the county board of education in dissolving District No. 66 land in attaching its territory to the consolidated district was void because the petitioners praying that order designated themselves as patrons whereas the statute (§ 8869, C. & M. Digest) provides that this may be done upon the petition of a “majority of the electors residing in such district.” The board of education, in making the order dissolving District No. 66, found that a majority of the electors had petitioned that the order of dissolution be made.
However, upon both these questions, that is, the creation of the original consolidated district and the sub sequent annexation of District No. 66, it may be said that these orders of the board of education were validated by act 156 of the Acts of 1927. (Acts 1927, page 549). This act amends § 8823, C. & M. Digest, and gives the board of education enlarged powers in the matter of the creation and consolidation of school districts and in changing the boundaries thereof, and further provides that “in all cases the proceedings heretofore done by county boards of education are hereby ratified and declared valid.”
This curative act was obviously passed for the purpose of curing any defective proceedings in the consolidation, etc., of school districts, such as are found to exist in the proceedings here under review.
We are of the opinion that the act does cure the irregularities set out above, as many acts of this kind have been approved by this court. In Green v. Abraham, 43 Ark. 420, the court quoted and 'approved the following statement of the law from Cooley’s Constitutional Limitations, § 483:
“The rule applicable to cases of this description is substantially the following: If the thing wanting, or failed to be done, and which constitutes the defect in the proceeding’s, is something the necessity for which the Legislature might have dispensed with by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some 'act which the Legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.”
This language was again quoted and approved in the case of Faver v. Wayne, 134 Ark. 30, 203 S. W. 22, after which it was said that “this rule has repeatedly been followed since,” and the following cases were there cited as instances in which that had been done: Bell v. Phillips, 116 Ark. 177, 172 S. W. 864; Pelt v. Payne, 90 Ark. 603, 20 S. W. 426, 134 Am. St. Rep. 45; Stuttgart v. John, 85 Ark. 525; 109 S. W. 541; Lanzer v. Butt, 84 Ark. 339, 105 S. W. 595; and Sudberry v. Graves, 83 Ark. 384, 103 S. W. 728.
In the early case of Allen v. Archer, 49 Maine 346, the Supreme Court of that State said it was competent for the Legislature to make valid the action of a town in changing the limits of a school district which would otherwise be void on account of some informality or technical defect.
We have many times recognized the plenary power of the General Assembly in organizing and dissolving school districts, and, in the case of Jones v. Floyd, 129 Ark. 185, 195 S. W. 360, we held, quoting a syllabus: ‘ ‘ The control of the Legislature over the organization of school districts and of changes in their boundaries is plenary, and the Legislature may itself exercise this power, or it may confer it upon other agencies of government.”
As the General Assembly might itself have consolidated these districts, and might have dissolved District No. 66 by its own action, or might have conferred the power so to do upon an agency of its own creation, and could have prescribed the procedure for so doing, it follows that the General Assembly had the right to cure and confirm the action of the board of education, and we therefore hold that the irregular orders of the board of education have been cured, confirmed and made valid.
Upon the question of the authority of the board of directors of the consolidated district to issue bonds, it may be said that the electors of the consolidated district voted a building fund of six mills, and by § 8976, C. & M. Digest, it is provided that, “If a majority of the votes cast are ‘For Building Fund,’ it shall be equivalent to voting a building tax of the amount or rate as determined by this section for each succeeding year until the money borrowed by the board of directors, pursuant to such vote, together with fall interest thereon, shall have been fully paid. When a building fund has been specially voted for, as provided in this section, the board of directors may borrow money and mortgage the real property of the district as security therefor, under such conditions and regulations as to amount, time and manner of payment as the hoard of directors shall determine, land may, from time to time, renew or extend any evidence of indebtedness or mortgage issued or executed hereunder.” Connelly v. Earl Frazier Special School District, 170 Ark. 135, 279 S. W. 13; Davis v. White, 171 Ark. 385, 284 S. W. 764.
The court below was correct in refusing to enjoin the bond issue as prayed by the appellant, and the decree will therefore be affirmed. | [
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Smith, J.
Appellant, Kenneth Bridges, was tried under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by shooting and killing one Hiram Kirby. He was found guilty of murder in the second degree, and given a sentence of twenty-one years in the penitentiary.
L. R. Bridges, appellant’s father, had been engaged in the mercantile business, and deceased owed him a small account. In an effort to collect this account L. R. Bridges went to the home of Kirby, who became incensed at Bridges, who is an old man and a cripple, and struck Bridges a blow with a rock, which rendered Bridges insensible. Robert Yogel accompanied Bridges to the Kirby home, to which place they drove in an automobile. After striking Bridges, Kirby went hurriedly on towards his home, and Yogel, thinking Kirby had gone after a gun, drove rapidly away without waiting to turn his car in the direction they wished to go.
Appellant was advised, about eleven o’clock that night, of what had happened, by Paul Hastings. Prentice Smith spent the night with appellant, and the next morning appellant, after furnishing Smith a shotgun, went to his father’s home, where he procured a rifle. According to the testimony in appellant’s behalf, he and Smith, who is a young man about nineteen years old, planned to go hunting, and they had their guns for this purpose, but appellant decided he would 'first go to Kirby’s home and find out Kirby’s version of the trouble with appellant’s father. The two walked to the Kirby home, and were there told that Kirby had gone to the home of a Mr. Pate, who lived a mile and a half away. They started to Pate’s home, and had gone about half a mile, when they met Kirby. No one saw the shooting or heard what immediately preceded the killing, except appellant and 'Smith, and, according to their version, appellant asked Kirby why he had struck appellant’s father. Kirby became angered, and dropped a sack of potatoes which he had in his hand, and ran his hand into the side of his overalls as if he intended to draw a weapon, and started towards appellant. Smith immediately fired both barrels of his shotgun, but, as Kirby did not fall, and kept advancing, appellant fired three shots with his rifle. Several persons heard the shooting, and one witness placed the number of shots as high as ten. When Kirby was found he had no weapons of .any kind on his person. .
The testimony is therefore amply sufficient to sustain the verdict returned by the jury.
In the opening statement the prosecuting attorney stated that “old man Bridges (appellant’s.father) told Hiram Kirby that his son Kenneth would kill him.” An objection to this statement was overruled, and that action is assigned as error. The testimony ’did not show that this statement was made, but the attention of the court was not called to that fact, and no additional ruling was made or called for concerning the statement of the prosecuting attorney. Evidently the purpose of this statement was to show that there had been deliberation and premeditation, and that the homicide had thereby been raised to the grade of murder in the first degree. The statement is not one which would have been incompetent under any and all circumstances, and appellant was not convicted of murder in the first degree. It may be said here, as was said in the case of Ragsdale v. State, 132 Ark. 210, 200 S. W. 802, that: “It is true the statement contained matter not subsequently proved, but there is nothing to show that it was made in 'bad faith. The matters set forth in the statement were not foreign to the issue, and might have been offered in proof. There was no manifest abuse-in the exercise of the court’s discretion in permitting the statement.”
Appellant offered testimony to the effect that deceased was a turbulent and dangerous man, and on the cross-examination of the witnesses who gave this testimony the prosecuting attorney asked if these witnesses had ever known deceased to shoot or kill any one, and they answered that they had not. Appellant then offered to prove that deceased had been charged and convicted on April 6,1927, in the municipal court of Texarkana, of an assault by shooting at a woman, and a certified copy of the record of that court was offered in evidence. The court excluded this testimony, and that ruling is assigned as error.
There was no error in this ruling, as the reputation of the deceased was a collateral matter, which could be shown only as a circumstance bearing on the question as to who was the probable aggressor in the fatal encounter, for it is as much a violation of the law to kill a bad man as it is to kill a good one. But, where the testimony leaves in doubt the question as to who was the aggressor, defendant may show the reputation of the deceased for peace and quietude as a circumstance having some probative value as to who was probably the aggressor when the killing involved at the trial occurred; but this proof must be made by showing the general reputation of the deceased in this respect, and not by proof of specific acts of bad conduct. Underhill on Criminal Evidence (3 ed.), 504; Jett v. State, 151 Ark. 439, 236 S. W. 621; Pope v. State, 172 Ark. 61, 287 S. W. 747.
It is argued that the cross-examination by the prosecuting attorney of the witnesses made the rejected testimony both admissible and necessary, as the character witnesses knew only the deceased’s general reputation without knowing anything about specific acts of violence. We do not think so. The witness who offered in evidence the record of conviction of deceased in the municipal court did not testify as to the general reputation of the deceased, but was called to prove only a specific act of violence, and such testimony is not competent.
In the case of Woodard v. State, 143 Ark. 404, 226 S. W. 124, it was said:
‘ ‘ The rule applicable to the cross-examination of witnesses who testify as to reputation is stated in 3 Enc. of Ev., p. 49, as follows: ‘It is generally held that such a witness may be asked on cross-examination as to an existence of particular facts, vices, or associations of the other persons inconsistent with the reputation attributed to him by the witness, not for the purpose of establishing the truth of such acts, but to test the witness ’ -credibility, and to enable, the jury to ascertain the weight to be given to his testimony.’ ” _
But, as we have said, this witness who w¡as asked about the conviction in the municipal court did not offer to testify as to deceased’s general reputation, and there was therefore no occasion to cross-examine him as to specific acts for the purpose of testing his -credibility, and the offered testimony was therefore incompetent, and no error was committed in excluding it.
The court gave what might be called the usual charge in homicide -cases, consisting of eighteen separate instructions, to -all of which appellant objected,- except instructions numbered 7 and 14. Instruction numbered 7 told the jury that -appellant, to be .justified, must have fired the fatal shot through fear of impending danger, and not in a spirit of revenge, and instruction numbered 14 defined a reasonable doubt as that term had been employed in other instructions.
Appellant requested twenty-six instructions, of which ten were given as requested and four were given as modified. To discuss the instructions given to which objection was made, and those refused would require a restatement of the law of homicide in this State, which we think would serve no useful purpose, as all the questions discussed in the briefs have long been settled by numerous decisions of this court.
It must suffice to say that we have carefully reviewed these instructions, both those given and those refused, and we find that the court submitted appellant’s theory of self-defense under instructions which would have resulted in his acquittal had his version of the killing been accepted by the jury as true.
Upon a consideration of the whole case we find no error in the record, and the judgment will therefore be affirmed. | [
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Mehaffy, J.
This action was begun by appellees on July 28,1926, in which action they sought to foreclose a second deed of trust executed to them by the defendant, George W. Transue, upon lands in the Western District of Clay Gounty, Arkansas. The appellant, First National Bank, intervened, and was made a party to the suit in October, 1926.
One of the defendants, S. P. Lindsey, filed answer, in which he alleged he had bought the lands embraced in the deed of trust at a trustee’s sale in bankruptcy, and that he was the owner of said land by virtue of a deed executed to him by the trustee in bankruptcy proceedings of George W. Transue; that said lands were sold under said bankruptcy proceedings, and defendant, Lindsey, became the purchaser, and received a deed, which was exhibited with the answer.
The only question involved in this appeal is whether or not the lien of appellant for. drainage assessments paid by it is prior and paramount to the lien of appellee’s deed of trust.
The deposition of S. P. Lindsey is substantially as follows: He was the active vice president of the First National Bank of Corning, .Arkansas. Had known George W. Transue about five years'. During the years of 1924 and 1925 witness was cashier of said bank, and, as such cashier, and on behalf of said bank, had some business with the defendant, Transue,- with reference to the lands described in plaintiff’s complaint. He testified that Transue asked them to look after the renting of said land, collecting of rents, pay the taxes, and look after it for him in general. Transite was absent from the lands and out of the county most of the time. Witness looked after the renting of the land, paid the taxes for him, and any work that needed to be looked after on the place, such as repairing the buildings and looking after the cutting of timber, was done by witness. The rents were applied -on Transue’s account and indebtedness that he owed the bank and to pay interest to the New England Securities Company. There was an agreement that these rents were to be applied on the account and previous debts. This agreement was part of the agreement, made at defendant’s request, that the bank should pay what is commonly called the drainage taxes, and all taxes which included the drainage taxes, and what was generally called State and county taxes. The receipts for the drainage taxes for the years 1924 and 1925 are correct, which the bank paid at the request of defendant, and each are made exhibits to deposition, and marked A and B. The bank paid the State and county taxes for the year 1924 in the sum of $21.38, and receipt is attached as exhibit to witness’ deposition. The bank has an assignment- of the lien of the Western Clay Drainage District. It is a lien made by the drainage board, and signed by D. Hopson, as president, for the drainage taxes for the years 1924 and 1925. The same are correct and are made exhibits D -and E to deposition. The amount for each was $215.
Witness purchased the land described in appellee’s complaint at a sale by the bankrupt court; received deed, copy of which is marked Exhibit F to deposition. -Wit ness took charge of said land under his deed January 1, 1926, and executed a mortgage on the rents of said land to Florence Jones,' and attached to witness’ deposition a copy of the mortgage made to Florence Jones.
Witness has $133.44, 1926 rents, to apply on the chattel crop mortgage, if he is permitted, to retain that, as he has not used any of it. It is witness’ intention to deduct the amount expended on the buildings on the farm, about $45, and apply the balance on the Florence Jones note. Mrs. Jones lives in Fayetteville, Arkansas. Since prior to. April 28, 1926, and up to the present time, witness has been solvent financially. Witness wrote a letter on the 10th of April, 1924, to George Transue, at Hoxie, Arkansas, with reference to paying the general taxes, in which letter he acknowledged having received letter from Transue, and he inclosed three checks, amounting to $21.62, for which he was given credit, and the letter stated that they would be glad to look after his taxes and use what scrip they could on them. But witness did not have the letter. Transue also requested verbally that witness look after the payment of his taxes, as Transue would be gone most of the year, and wanted the bank to look after the farm in general the same as if it was its own. Copies of two letters are attached to the deposition. Witness could hot state whether the State and county taxes for the year were paid on April 10, 1925, or at a subsequent date. Defendant gave instructions each year to pay the taxes, and was especially desirous that the ditch taxes be paid each year on account of avoiding a 25 per cent, penalty thereon. The assignment by D. Hopson, president of the Western Clay Drainage District, of a lien of said drainage district in favor of the First National Bank, was delivered to the bank a- week or ten days ago.
J. F. Arnold testified, in substance, as follows: He is 52 years old; a resident of Corning, Arkansas; is field-man for the First National Bank of Corning, Arkansas, and was acting as such during the years 1924 and 1925, and looked after the rental and collecting of rents on the land of defendant, George W. Transne. After making first rental contracts there was a tenant quit, and he had to get other men to take his place. On behalf of the bank, witness looked after collecting rents and the payment to the bank by renters, and getting the crops gathered. Defendant asked witness to see that the tenants were getting along properly, and that they turned in their rent to the bank, and to see that Lindsey did not let his taxes go delinquent, as there was a heavy penalty if the taxes were not paid when due, and witness did that, in accordance with his request and that of the bank. Witness does not know what the rents amounted to, as his business was to see that the tenants left it at the bank, and he kept no record of the amount of either year.
Exhibits mentioned by witness were then introduced, and witness continued. Another exhibit is a letter of Lindsey, cashier, to George W. Transue, dated Corning, April 24, 1924, which is substantially as follows:
“Your letter received regarding the Boulton order for clearing, of which Mr. 'Boulton was not claiming that you gave him an order for the clearing to the amount of $20, which he claims that you had arranged with him to have the clearing done, and you having arranged with us to look after your farm as to renting- it as well as all other matters pertaining to the farm, we of course did not want to pay him anything for something that we knew nothing about, nor had hired him to do any clearing. Mr. Smith was telling me that the officers had posted some kind of a notice on the door of the dwelling on the farm that was in reference to some kind of suit as to the sale of your property. Not knowing anything about the nature of the notice, we notified you, so that you could see about the matter in the event that we could not look after it for you.”
Another letter from defendant, Transue, was in substance as follows:
“Don’t you think you should send Fred Arnold to see Smith, Sprouse and Story and hurry them up on the cotton job? Don’t forget to pay John Smith for oats and John Sprouse $15 for the corn. I am afraid my lawyer is assisting S. A. Foster at Walnut Ridge to beat me out of the cow you have a mortgage on. Will you write him and tell him not to sell the cow and calf, as you have a mortgage on her and the calf ? ’ ’
Another letter, dated November '20, 1925, to the defendant, Transue, was in substance as follows:
“We have your letter of the 18th, stating that we should send Fred to look after Smith and Sprouse in reference to getting out their crops. Wish to advise that Mr. Arnold has been looking after the matter, as you asked us early in the spring to look after your farm as to renting it and such other matters in reference to the welfare of the farm, hence we have been giving it our attention as your agent, collecting the rents and placing such credit on your account — paid your ditch taxes and general taxes for the year 1924 — and still carrying the receipts as having been paid for you as your agent, and trust that you can arrange for them the close of the year, as you will have the ditch taxes for 1925 due this coming December, and we will also look after them for you the same as we have other taxes paid on your farm in general. It is slow getting out cotton on account of continued rains, and the tenants advise us that most they have got out they have had to mud-boat it out. I am writing Mr. Forest at Walnut Ridge in reference to the cow. We have rented all of the farm for the coming year to W. M. Smith, as we think we can handle the entire place better than having several parties on it, which has caused more or lefw» contention this year among the tenants.”
The record of Western Clay Drainage District, subdivision 5, was introduced, showing the assessment on the lands.
The chancellor entered a decree to the effect that the plaintiffs, New England Securities Company, have a judgment in rem against the defendants for the sum of $357, with interest at the rate of 8 per cent, from February 8, 1923, which judgment is secondary only to that of First National Bank in the sum of $21.38, together with the interest at 10 per cent. The intervener, First National Bank, excepted to the finding of the decree of the court, and prayed an appeal to the Supreme Court, which was granted. The appellee has been granted a cross-appeal, and asks a reversal of that part of the decree declaring a lien for taxes of $21.38 prior to its mortgage lien.
The appellant in its intervention .states that the defendant, George W. Traiisue, transferred to it the possession, care and control of the lands described in appellee’s deed of trust, and authorized and requested appellees to pay the taxes and drainage assessments upon said lands, and to rent and collect the rents and account to him for same. The bank was therefore in possession of the land, receiving the rents and profits under an agreement with the owner to pay the taxes. It was the owner’s duty to pay the taxes. And the bank, being in possession under a contract with the owner, as alleged by it, to pay the taxes and to collect the rents, was bound under the law and its contract with the owner to pay the taxes, and its payment was a payment for the owner.
It is the contention of the appellant that “one who pays the debt of another 'by request of the other, which debt is a lien on property, real or personal, has a lien on the property for the amount paid.”
It is unnecessary to determine here whether, as between the owner of the land and the appellant, it did, under the contract between the parties, have a lien on the property. The controversy here is between the appellant and the mortgagee. The appellant was under no obligation whatever to pay the taxes.
“When taxes are paid on another’s land under such circumstances as to give a right of recovery for the taxes paid, as set forth in the preceding section, the person making the payment will have an equitable lien on the premises for the amount so paid, or, according to the doctrine prevailing in some jurisdictions, will be subrogated to the lien of the State or municipality. But no such lien exists where the payment was voluntary, in the legal sense, or was made at the request of the owner and for his mere accommodation. Nor can this lien be made effective against a subsequent purchaser from the real owner, who had no notice of the circumstances under which the taxes were paid.” 37 Cyc. 1154.
' According to appellant’s own statement, the taxes were paid by it at the request of the owner and for his mere accommodation. And therefore no such lien exists, especially as against the mortgagee.
This court said in a recent case: “Where one is in possession, receiving rents and profits from mortgaged property, he has money received from the property itself with which to pay the taxes, and it has been held that, under such circumstances, he owes the duty to pay the taxes.” Security Mortgage Co. v. Harrison, 176 Ark. 423, 3 S. W. (2d.) 59; Cotton v. White, 131 Ark. 273, 199 S. W. 116.
“It is not disclosed by the record that the claim probated by appellant for taxes was for taxes paid by him during the time he occupied the premises. His occupancy was reimbursement for the payment of the taxes.” Beverly v. Nance, 145 Ark. 589, 224 S. W. 956.
The appellant was not only in possession, receiving the rents and profits, but the proof in this case shows that it actually received as rent for the year 1924 $231.16, and for the year 1925 $199.52, making a total of $430.68, a few cents more than the improvement taxes amounted to. In all these transactions the bank was represented by Mr. S. P. Lindsey, the active vice president of .the First National Bank. And he finally became the pur chaser of the property. If the taxes were a lien, they were a lien on the land, and appellant’s first vice president purchased the land. The appellant, receiving the rents and profits under the contract alleged in this case, was bound to pay the taxes. Instead of doing that, it used the money received for rent to pay a private debt due itself, and then seeks to enforce a lien for the taxes that it paid. As it was in possession of the property, under contract to receive the rents and profits and pay the taxes, it could not use the rents and profits to pay a private debt to itself and then claim a lien on the land as against the mortgagee for the taxes paid.
We do not think the sections of the Digest referred to and discussed have any application.
It follows from what we have said that the case must be affirmed on appeal and reversed on cross-appeal. The case will therefore be affirmed on appeal and reversed ana remanded on cross-appeal, with directions to enter a decree making the judgment of the New England Securities Company a lien on the land prior and superior to the lien of the First National Bank. | [
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Kirby, J.
Appellant insists that the court erred in refusing to direct a verdict in its favor.
This appeal involves the construction of § 7960, C. & M. Digest, which provides:
“Section 7960. No note hereafter given for premiums on insurance in this State shall ¡be negotiable until the policy for which said note was given as payment for premium thereon shall have been issued and delivered to the maker of said note, and all note's so given shall state for what purpose the noté was given; provided that, if a policy shall be issued in the form applied for, and the maker of any such note shall refuse to take same, when same shall be presented to him for acceptance, then and in that case such note shall be negotiable. Nothing in this act shall be construed to in any way invalidate such notes as between the payee and payor, and such notes, when they become negotiable, shall be in all respects as other negotiable papers. Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than $50 and not more than $200. ’ ’ Act March 29, 1913, p. 1070.
Appellant insists that, since the statute does not declare void a note given for the premium on an insurance policy, that art action thereupon by a bona fide holder of such note, acquired in due course of business, would not be subject to any defenses by the maker under the terms of the statute.
It is true this court has uniformly held that usurious notes are void in the hands of an innocent purchaser in due course of business, and also that there can be no innocent purchaser of negotiable paper in due course of business given in payment for any patented machine, in violation of the statute, because such notes are declared void, the ones for usury under article 19, § 13, of the Constitution, repeated as § 7362 of C. & M. Digest, and the other under § 7956, C. & M. Digest. German Bank v. DeShon, 41 Ark. 341. See also Woods v. Carl, 75 Ark. 328, 87 S. W. 621, 5 Ann. Cas. 423; Tilson v. Gatling, 60 Ark. 114, 29 S. W. 35; Ozan Lbr. Co. v. Union County Bank, 207 U. S. 254, 28 S. Ct. 89, 52 L. ed. 195; Jonesboro Trust Co. v. Nutt, 118 Ark. 368, 176 S. W. 322.
The said statute does not declare notes given for premiums for insurance void, but that “no note hereafter given for premiums # * * shall be negotiable until the policy for which said note was given as payment for premium thereon shall have been issued and delivered to the maker of said note, and all notes so given shall state for what purpose the note was given.”
If the note is not negotiable unless made in the form prescribed and under the conditions designated in the statute, then there could be, of course, no bona fide holder of such note in due course, within the meaning of our statutes and decisions on commercial paper — the Uniform Negotiable Instruments Law; ¡but this statute provides that such note shall be negotiable after the policy shall have been issued and delivered to the maker of the note, and “that, if a policy shall be issued in the form applied for,” and refused when presented to the insured for acceptance, “such note shall be negotiable”; and further, “such notes, when they become negotiable, shall be in all respects as other negotiable papers.” Nothing in the act is to be construed to in any way invalidate such notes as between the payee and payor; the purpose of the statute evidently ’being to prevent irresponsible insurance companies and their agents from realizing on the obligation given by applicants for insurance before delivery of the policies and -without giving them the protection contracted for.
It is also true that the statute does not denounce a penalty against the purchaser of any such note, and, since it does not declare such notes void and does declare that they shall be negotiable under the circumstances designated, they could, of course, fbe acquired by innocent holders in due course after they became negotiable.
' The undisputed testimony shows that this policy for the premium upon which the note sued on was given was issued and delivered by the insurance company to the maker of the note; that he kept it in his possession, without refusing to accept it, for nearly three months after it was delivered, and then turned it over to the agent who had solicited his insurance upon his statement that he had quit the company and wanted to make a settlement with it. Such being- the case, he cannot claim that the policy was not issued and delivered to him.
It was the duty of the insured to examine the policy in a reasonable time after its delivery to him — that is, in such a time as he could have done so — and to reject it, if it was not what he contracted for, and, if he failed to do this, he will be deemed to have accepted it, and cannot avoid liability for payment of the premium note. Remmel v. Griffin, 81 Ark. 269, 99 S. W. 70; Smith v. Smith, 86 Ark. 284, 110 S. W. 1038; Gray v. Stone, 102 Ark. 146, 143 S. W. 114; Carrigan v. Nichols, 148 Ark. 336, 230 S. W. 9.
Here the insured admitted having kept the policy after its delivery to him, about the first of February, until some time in April, when he turned it over, upon his request, to him who had been the agent of the insurance company when it was issued and delivered, upon his statement that he had quit the insurance company and wanted to make a settlement with it, and his agreement that the premium note would be returned within a few days. This constituted an unreasonable delay in the attempted rejection of the policy (Carrigan v. Nichols, supra), and the insured must be held to have accepted it, and that the policy for which the premium, note was given was issued and delivered within the meaning of the statute, removing all restrictions as to the negotiability of the note.
The bank, having become the innocent purchaser for value of the note, which was negotiable after the policy was delivered to the maker, in due course and before its maturity, took it free from any defects therein or any defenses thereto that had heretofore existed in favor of the maker.
These facts having been shown by the undisputed testimony, the court erred in not directing a verdict in appellant’s favor, and the judgment is accordingly reversed, and judgment will be entered here for the amount of the note. It is so ordered. | [
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Kirby, J.
This appeal is prosecuted from a judgment of conviction for assault with intent to kill, fixing the punishment therefor at two years in the penitentiary. It is only urged here that the evidence is insufficient to sustain the verdict.
It appears from the State’s testimony that the parties were all attending a dance in the community; that Jep Turner went into the room, taking the little girl of Walter Tomlinson to her mother, who asked what he was doing with the baby, and where Walter was; he replied “Out yonder,” and she said, “Carry the baby back to him.” But took the baby, and said, “I guess you have made Walter drunk,” and he said, “You are a G-d— liar, and if you don’t shut up I will slap yoúr jaws.” He then turned and walked out of the room down to the yard. A few minutes afterward he intercepted and stopped Walter Tomlinson, who was coming from the gate to the .steps of the house to enter.
One witness said: “Jep called him back, and told him he wanted to see him. Walter went to where he was. I heard Jep say, ‘And I don’t like it a G-d-bit.’ I heard Walter say, ‘Jep, let us drop this and be friends,’ and Jep said, ‘Well, if she is that big, ignorant Gd-fool, we will drop it.’ Walter said, ‘Don’t Call my wife that.’ Jep then pulled his gun and stuck it in Walter’s stomach, and said, ‘That is what she is.’ I ran between them, told Bruce to take Jep off and I would take Walter. .1 went toward the house with Walter and Jep, and Brnce went out of the gate. I heard Jep say, ‘Bruce, I will kill that son of a hitch.’ Walter and I talked in the yard about three minutes, and went toward the steps, and as we went on to the steps I heard some one run behind me. I turned, and Jep hit me on the side of the head and hit Walter on the back of the head. I fell to my knees, Walter staggered to one side, and Jep hit him again. Hit him four licks. After Jep hit him the second lick Bruce came in and told him to .stop. Bruce had a gun under his coat, aimed at me. They went down the road. I picked Walter up, thought he was dead, he did not breathe for about a half a minute. I found this stick (a piece of 2x4 scantling) about 75 yards from where he hit us. It was covered with some leaves. It is a two-by-four.”
Walter Tomlinson stated that he and his family had gone to the dance at Porter’s, and that Turner had been there for some time; that they had never had any trouble before; that defendant called his wife a G-d-ignorant fool to his face, out near the gate; that he had started back into the house, and got about half way between the gate and the steps; met Jep, who said to him, “Tour wife gave me a damn good cursing a while ago, and I don’t like it a Gr — — ¿.— bit,” to which he replied, “We have been good friends, and let.us 'don’t have any fiiss. He said, ‘She is a G- d — '— ignorant fool,’ and stuck a gun in my stomach. Chesley, my brother, was standing there, and walked betweén ’ us and told Bruce to .take Jep off, and we would go - home; They went out of the gate, and we started back" in' the house. As we started up the steps some one struck me in the back of the head. It is 15 or 20 feet from the gate to the door steps. I did not see who struck me. It- knocked me' crazy, and I knew nothing for five days.” He was in bed a month, and had not yet recovered; there were several fractures of the' skull. Witness and defendant were friends, and had never had anj^ trouble before. Other witnesses standing 75 yards away heard the licks,, and one saw defendant witli the stick hiding it in the leaves, when he passed after the difficulty.
The jury evidently believed the testimony of the State’s witnesses in arriving at its verdict, and this court, in testing the legal sufficiency of the evidence to support the verdict, must consider it in the light most favorable to the State, giving it its strongest probative force. White v. State, 164 Ark. 517, 262 S. W. 338; Knight v. State, 165 Ark. 226, 263 S. W. 782.
Although defendant denied that he had struck Tomlinson from behind, and stated and attempted to prove by others that he had only struck him when he was advancing on him with a drawn knife, and in self-defense, the .jury were warranted in believing that defendant had stopped Tomlinson in the yard with a view to provoking him to a difficulty by abusing his wife and presenting a pistol against him, and after Tomlinson had insisted that they should continue to be friends and not have any fuss; and then, after Tomlinson’s brother had got between them and told Bruce to take Jep Turner away and that he and his brother would leave the dance, the defendant then went outside the yard, saying he would kill the son of a bitch, and got the 2x4, came back in the dark, and struck Walter Tomlinson from behind, without warning, knocking him down, and then striking him two or three times after he wias down, and until his brother made him stop.
■ There were no circumstances of mitigation, justification, or excuse shown, and the law implies malice, and, if death had resulted from the assault, it would have constituted murder in the second degree. Allen v. State, 117 Ark. 441, 174 S. W. 1179; Clardy v. State, 96 Ark. 52, 131 S. W. 46; Davis v. State, 115 Ark. 566, 173 S. W. 829; and Slaytor v. State, 141 Ark. 11, 215 S. W. 886.
The evidence is sufficient to support the verdict,- and the judgment is affirmed. | [
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Mehaeey, J.
This is the second appeal in this case. The case on former appeal is reported in 170 Ark. 928, 282 S. W. 3. On the former appeal the court stated that:
“It appears that Henry had cultivated the same land for the years 1919, 1920 and 1921, and that Mrs, Burel had carried over a balance accumulated during this pxbor tenaxxcy'into her 1922 aecouxxt. The testimony also shows that Henry agreed to give Mrs. Burel a chattel mortgage on his stock and his interest ixx the crop to secure this balance, but did xiot do so.”
The court also held that all the money in Bloom’s haxxds was derived from the sale of the 1922 crop, and that Mi’s. Burel had no liexx on this crop for any balance due prior to that year. That is, she had xxo liexx oxx the 1922 crop for the balaxxces carried over for the years 1919,1920 and 1921. Axxd it was therefore held, when the case was here oxx former appeal, that the court should not have directed the appropriation of the proceeds of the 1922 crop to the prior debt, as there was xxo lien thereon to secure the ixxdebtedness incurred thereon prior to 1922. This was the only questioxx decided by the court, except the decisioix with reference to the $1.25 note, axxd there is now no controversy about that.
It is true that the court reversed and remanded the case, with directions to the court below to enter a. decree in accordance with the opinion. It was not the intention, however, of the court to prevent either party from stating an account or pleading and litigatixxg axxy claixns that either might have. What the court evidently meant, and the only thing it could have meant, was that the court below was directed to enter a decree in accordance with this opinion with reference to the indebtedness accruing prior to the 1922 crop and giving a lien on the proceeds of the 1922 crop for the indebtedness incurred in 1922, and that there should be no lien for the prior indebtedness.
The facts are sufficiently stated in the case of Henry v. Irby, 170 Ark. 928, 282 S. W. 3.
The lower court complied with the mandate of this court if it followed the directions of this court with reference to the indebtedness and that part of it with reference to the indebtedness accruing that year, and followed the directions as to the $125 note. The appellant filed a statement of account, after the case was remanded; and the statute provides, paragraph 4 of § 1194, C. & M. Digest
“The defendant may set forth in his answer as many grounds of defense,' counterclaim and set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defenses must refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished. ’ ’
And § 1195 of C. & M. Digest provides:
“The counterclaim mentioned in this chapter may be any cause of action in favor of the defendants or some of them against the plaintiffs or some of them.”
And § 1197 defines set-off to be: “A set-off may be pleaded in any action for the recovery of money, and may be a cause of action arising either upon contract or tort. ’ ’
Appellant contends that the directions on the former appeal constituted the law of the case, and that the former decision is conclusive. This is correct, but the former decision in this case did not direct the court to enter any specific decree. It directed the court below to enter a decree in accordance with this opinion.
We think the decree is in accordance with the opinion on the former appeal.
In the case of Walker v. Goodlett, 109 Ark. 525, 160 S. W. 399, relied on by appellant, the conrt said: “This conrt having directed a decree to be entered in favor of the plaintiff, no issne of fact could be tendered thereon in the lower court.”
In the above case the court also said the only issue which the chancellor was called on by the pleadings to decide was whether or not the appellant here was under twenty-one years of age when he executed the deed. As that was the only issue, this court gave specific directions to enter a decree in favor of plaintiff, and, of course, the court below could not enter any other decree.
In the next case relied on by appellant, the court said:
“We gave special directions to enter a decree quieting the title of the petitioners to all except the one-acre tract, permitting further proof to be taken as to the description of that tract.” Gaither v. Campbell, 94 Ark. 329, 126 S. W. 1061.
The court in the above case called attention to the case of Chicago Mill & Lbr. Co. v. Osceola Land Co., 94 Ark. 183, 126 S. W. 380, where the court said: “So much of plaintiff’s cause was unadjudicated, and they were entitled to damages sustained by them from waste.”
In this case so much of plaintiff’s cause as was adjudicated on the former appeal cannot be litigated again.
As to the question settled in the former appeal, this court’s opinion is conclusive. The decision on those questions is the law of the case.
The next case relied on by appellant announced the rule as follows: “It is the duty of the chancellor to enter a decree in accordance with the directions of the Supreme Court.” Hopson v. Frierson, 106 Ark. 296, 152 S. W. 1008, 1009.
Appellant calls attention to a number of other cases. All of them announce the same rule.
The directions of this court must be followed by the lower court, but we do not think that the lower court in this case disobeyed the directions given by this court.
In appeals from the chancery court trials are cle novo, but the findings of fact made by the chancellor are allowed to stand, unless they are clearly against the prejjonderance of the evidence. Doane v. Rising Sun Mining Co., 139 Ark. 605, 213 S. W. 399; Hyner v. Bordean, 129 Ark. 120, 195 S. W. 3; Midyett v. Kirby, 129 Ark. 301, 195 S. W. 604; Houser v. Burchart & Levy, 130 Ark. 178, 197 S. W. 28; Ferguson v. Guydon, 148 Ark. 295, 230 S. W. 260.
The finding of the chancellor is not ag'ainst the preponderance of the evidence, and the case is therefore affirmed. | [
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Smith, J.
The appellant, the Linograph Company, a foreign corporation, hereinafter referred to as the “company,” brought this suit in the Johnson Chancery Court to recover $2,149.50, the balance of the purchase money due on a type-setting machine, and to foreclose the chattel mortgage given to secure the debt. The complaint alleged that the purchase money was evidenced by one note for $30 and the balance in notes for $40 each, all dated December 3, 1923.
Appellees, who were defendants below, defended upon the ground that appellant ivas a foreign corporation, and had not complied with the laws of this State permitting it to transact business in this State, which contention was sustained by the court below, and the complaint was dismissed for that reason, and this appeal is from that decree.
The negotiations which led to the sale of the machine were conducted by letters and telegrams. The first of these was a letter dated Clarksville, Arkansas, December 1, 1923, written by S. H. Logan to the company at its office in Davenport, Iowa, in which he advised the company that he was in the market for a type-setting machine. On December 4 the company replied to this letter, advising that it had a second-hand machine at Cambridge Springs, Pa., which it would like to sell at what it said was a bargain price. Logan made several offers, all evidenced by letters, which were offered in evidence. After these letters were written several telegrams were exchanged, and on December 13, 1923, the company wired Logan las follows:
“Price Pennsylvania machine three magazines and eight-point, ten-point and twelve-point matrices and motor, twenty-five hundred dollars P. O. B. Cambridge Springs, Pa., complete as quoted our letter December 4, terms one hundred fifty cash balance forty monthly as stated our wire December 12th. Installation charges thirty-five dollars for railroad fare plus hotel and living expenses. Man will stay five days. Request remittance of cash payment as evidence of good faith. Otherwise if you should change your mind after shipment we would have to return and pay charges. Machines will be overhauled and guaranteed in good condition. Our guaranty is good. Have delayed removal one day. Wire cash Friday or we must ship elsewhere. Same equipment new would cost over thirty-seven hundred fifty. ”
On December 14 Logan wired the company as follows:
“Am wiring you one hundred fifty dollars with the understanding that the machine is to be shipped immediately and that I am to get a man with Linograph experience to install it. He can install it I am sure and save me the expense of a man from your factory.' Machine must be shipped at once.”
In reply to this telegram Logan wired the company, on the date of its receipt, to the effect that he was ready to pay the $150 if the company would make a concession in. regard to the number -and time of payments of the notes which would evidence the unpaid balance.
On the same date the company wired Logan the following reply to the last mentioned telegram: “Price and terms previously stated twenty-five hundred dollars, terms $150 cash, forty morithly installation by our man to insure you get proper start. Wire cash or refusal today.”
Logan wired the $150 to the company on the following day (December Í5, 1923), to which the company replied, as follows: “Cash received. Expert now overhauling machine. Shipment next week. Forwarding contract for your signature.”
In other correspondence Logan advised he wished the contract closed through the Farmers’ National Bank of Clarksville, Arkansas, and in response to this request the company wrote the following letter:
“Davenport, Iowa, January 4, 1924.
“Farmers’. National Bank,
Clarksville, Arkansas.
“G-entlemen: We inclose herewith the following papers in connection with the sale of a linograph to Mr. S. H. Logan of your city :
“Chattel mortgage in duplicate, fifty-nine' promissory notes, bill of lading, bill of sale, copy of invoice, landlord’s waiver of lien, loss payable insurance clause.
“Please notify Mr. Logan when these papers arrive and request that he call and execute them.
“Do not hand over the bill of lading before the following instructions have been carried out:
“(1). Have both copies of mortgage signed and acknowledged before a notary public, and two witnesses. (2). Have all blanks for dates and other blanks in mortgage filled in. (3). Have all the notes signed. (4). Have a two-cent revenue stamp placed upon each note, canceling same, the cost of which is to be paid by our customer. (5). Have the machine insured for $2,400. Have the loss payable clause in our favor attached to the policy. Send the policy to us with the other papers. The premium is to be paid by Mr. Logan. (6). Have the landlord’s waiver of lien signed by the owner of the building, if our customer is not the owner. (7). When all papers have been properly executed, turn the bill of lading and bill of sale over to our customer. (8). Have the mortgage recorded at the office of the county recorder. Request that evidence of recording be placed on both copies. (9). When the mortgage is returned from the county recorder’s office, with evidence of recording on copies, return all papers to us. (10). Bill us for your services.
“Thanking you for giving this matter your prompt attention, we are,
“Yours very truly,
“The Linograph Company
“E.' S. Larson, Accounting Dept.”
It will be observed that the date of this letter is January 4, 1924, but, before it was written, Logan had signed an order dated 12-19-23 for the machine, which was submitted to and accepted by the company at its office in Davenport, Iowa, under date 12-24-1923, in which he agreed to do, as part of the contract of sale, all the things set out above. All the requirements of this letter were met, and the bank delivered to Logan the bill of lading for the machine, which had been shipped by the company to its own order, and, upon surrender of the bill of lading by Logan to the carrier having custody of the machine, it was delivered to him. The bank returned the papers to the company, as directed in the letter set out above, and advised that its charges for this service was $1.50, and check to cover was sent by the company to the bank.
Logan testified he put the machine up and used it from the “jump go,” and that it later proved defective, and the company sent a mechanic to make adjustments. The testimony in regard to the defects which developed need not be considered here, as the decision of the court below was based solely upon the theory that the appellant had made the sale in violation of the laws of this State by doing business in this State without having-complied with the laws of the State permitting it to do business here, and was not entitled to recover on that account.
Logan assigned the contract to Hunter and Bost, who assumed payment of the unpaid notes, with the consent of the company, but they defaulted in the payments, and this suit was brought against them and Logan for the balance due on the notes and to foreclose the mortgage securing their payment.
This court has had occasion frequently and recently to determine when and under what circumstances a foreign corporation would be held to be engaged in business in this State, but we think it unnecessary to review these cases. Among others are the following: Scruggs v. Scottish Mortgage Co., 54 Ark. 566, 16 S. W. 563; Gunn v. White Sewing Machine Co., 57 Ark. 24, 20 S. W. 591, 18 L. R. A. 206, 38 Am. St. Rep. 223; Florsheim Bros. D. G. Co. v. Lester, 60 Ark. 120, 29 S. W. 34, 27 L. R. A. 505, 46 Am. St. Rep. 162; Sunny South Lumber Co. v. Neimeyer Lbr. Co., 63 Ark. 268, 38 S. W. 902; Simmons-Burk Clothing Co. v. Linton, 90 Ark. 73, 117 S. W. 775; Clark v. J. R. Watkins Medical Co., 115 Ark. 166, 171 S. W. 136; Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58; Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151, 229 S. W. 25; Rose City Bottling Co. v. Godchaux, 151 Ark. 269, 236 S. W. 825; L. D. Powell Co. v. Roundtree, 157 Ark. 121, 247 S. W. 389, 30 A. L. R. 414; Kansas City Steel Co. v. State, 161 Ark. 487, 256 S. W. 845.
In support of the decree of the court below, appellee cites and relies upon the cases of Kansas City Structural Steel Co. v. State, use of Ashley County, 161 Ark. 487, 256 S. W. 845, and the case of Hogan v. Intertype Co., 136 Ark. 52, 206 S. W. 58, and it is argued that the latter ease is practically identical with the instant case.
We think, however, that the cases relied upon are clearly distinguishable on the facts from the instant case. In the Hogan case the facts were that the type-setting machine was shipped into this State by the foreign corporation to itself, and that it remained the corporation’s property after its arrival in this State until, by demonstration, it was found to be suitable to the purpose of the purchaser and was accepted, after which, and not until then, was the sale completed and the machine delivered. This important fact was emphasized by the statement in the opinion of the court that “one test laid down by the Arkansas cases differentiating an interstate transaction from an intrastate transaction is the ownership of the property after it arrives within the State” (citing cases), * * * and that “an interstate transaction contemplates a consignor without and a consignee within a State, or vice versa.”
Under both these tests the transaction here under review was. an act of interstate commerce.
It is true the consignor made certain requirements set out in the letter from the company to the bank, copied above, before the delivery of the bill of lading, but those were mere incidents to the transaction which had been previously agreed upon, and evidenced by the written order for the machine, which had been accepted by the company at its office in Davenport, Iowa.
The other case relied upon by appellee to support the decree of the court below is that of Kansas City Structural Steel Co. v. State, supra. In that case, however, a foreign corporation had entered into a contract to construct a ¡bridge in this State and had later sublet a portion of the contract, and, to enable its subcontractor to comply with the subcontract, had accumulated and stored in this State the material which would be required for that purpose and which it proposed to sell to its subcontractor as the materials were needed, and, under those circumstances, we held that the foreign corporation was doing business in this State, but, in so holding, the writer of that opinion took occasion to say, “but this is not the case on the facts of a resident of this State ordering goods of a foreign corporation and the shipment of these goods by the foreign corporation to its own order in this State for delivery to the purchaser.”
• The instant case, however, is one of a resident oi this State ordering goods of a foreign corporation and the shipment of those goods by the foreign corporation to its own order in this State for delivery to the purchaser.
Th~e ease from which we have just quoted cited and approved the prior decision of this court in the case of Rose City Bottling Works v. Godchaux Sugars, 151 Ark. 269, 236 S. W. 825, and L. D. Powell Co. v. Roundtree, 157 Ark. 121, 247 S. W. 389, 30 A. L. R. 414, and we think the instant case is governed by them.
In the first of those cases the facts were as follows: A broker residing in Little Rock had taken the order of a resident of that city for a car of sugar, which was submitted to and accepted by a foreign corporation at its office in New Orleans. The sugar was shipped to shipper’s order, but the purchaser was unable to make the payment required to take up the bill of lading, and it thereupon became necessary for the parties to enter into a new- contract which was made in this State for the delivery of the sugar to the purchaser. By this contract it was agreed that the broker, as the shipper’s agent, should retain possession of the sugar, and he unloaded it and stored it in his warehouse in Little Rock. It was further agreed that the purchaser should have sixty days in which to complete the purchase, during which .time partial deliveries of the sugar were to be made him in this city and payment therefor being made at the price stipulated in the original contract, the purchaser in the meantime paying all freight, demurrage and storage charges and interest at six per cent., and, in addition, the purchaser agreed to and did execute a bond, which the broker approved in this State, conditioned upon the faithful performance of the new contract executed after the purchaser had made default.
It was there very earnestly insisted that the transaction constituted doing business in this State, but, in holding against that contention, we said:
“The sugar was, as before stated, consigned to shipper’s order at Little Bock. This constituted a reservation of the title as security for the purchase price. It will scarcely be contended that the delivery of the bills of lading upon the payment of the draft would change the nature of the transaction so as to transform it into an intrastate rather than an interstate incident. If such were the law, it would circumscribe business carried on between citizens of different States within such narrow limits that it could scarcely be transacted without changing the whole nature of the transaction. The contrary is well established as the law on the subject. Norfolk & Western Ry. Co. v. Sims, 191 U. S. 441, 24 S. Ct. 151, 48 L. ed. 254. If therefore the goods came into the State under shipper’s order consignment, retaining its character as interstate, it follows that there was no change in the character of the transaction in the further arrangement between the parties stipulating the method of payment of the price. The transaction from inception to the end was continuous and interstate in its character, for the contract now under consideration related to the method of the payment of the price, and did not constitute a new contract for the sale of the goods. The following authorities fully sustain the view that the whole transaction was interstate and that its legality was not affected by the fact that the vendor had not complied with the laws of this State” (Citing cases).
The facts in the other case relied upon by appellees, that of L. D. Powell Co. v. Roundtree, supra, were that a foreign corporation, which had not complied with the laws of this State authorizing it to do business in this State, had sold certain books to a resident of this State, title to the books being’ reserved in the seller until the purchase money was paid. Default was made in the payment of the purchase money, and a representative of the corporation came into the State and took possession of the books, and, after doing so, sold them to Roundtree, again reserving the title until the books were paid for. This second sale was made in this State, all the terms thereof being agreed to at the time and place of sale, and delivery was made in the State. This second purchaser defaulted in his payments, and the corporation brought suit in replevin to recover possession of the books. The defense was made that the second sale constituted doing business in this State, and that the action could not be maintained for that reason. In holding against that contention it was there said:
“The larger part of the books in the instant case were not sold on order to Judge Roundtree for future delivery, but were in the State when sold, and were immediately delivered to him. Appellee contends that the presence of the goods in the State at the time of the sale, and the immediate delivery thereof to the purchaser, made it an intrastate transaction. The case of Hogan v. Intertype Corporation, 136 Ark. 52, 206 S. W. 58, is cited in support of the contention. In the Hogan case the machinery had been shipped into the State to shipper’s own order for the purpose of selling same to Hogan after demonstration, and was retained as the sole and independent property of the Intertypo Corporation until after such demonstration and sale to him. In the instant case the books were not shipped into the State as the sole and independent property of the appellant for the purpose of selling them to appellee or any other person. On the contrary, they were shipped into the State by appellant to McNeill on an order for future delivery, obtained by appellant’s traveling agent. The McNeill contract clearly covered an interstate transaction. Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151, 229 S. W. 25. The recovery of the books under the McNeill contract amounted to a collection growing out of an inter state transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of the interstate transaction. It was the only practical method by which a collection could be completed against one who had defaulted on an interstate contract. Otherwise it would have been necessary to incur the expense of shipping the books out of the State in order to convert them, into money. The statutes of this State requiring foreign corporations to comply with certain conditions before doing intrastate business were not intended to place such a burden upon the enforcement of good faith interstate transactions. We think the doctrine announced in the case of Rose City Bottling Works v. Godchaux Sugars, Inc., 151 Ark. 269, 236 S. W. 825, is applicable and controlling in this case.”
So here, the preparation and delivery of the papers, as required in the letter from the company to the bank, pursuant, to a previous agreement submitted to and accepted by the company at its office in Iowa, was a mere incident to the contract which involved an interstate transaction.
In the case of Norfolk & Western Ry. Co. v. Sims, 191 U. S. 441, 24 S. Ct. 151, 48 L. ed. 254, Mr. Justice Brown, speaking for the Supreme Court of the United States, said:
“A sale really consists of two separate and distinct elements: first, a contract of sale, which is completed when the offer is made and accepted; and, second, a delivery of the property, which may precede, be accompanied by, or follow the payment of the price, as may have been agreed upon between the parties. The substance of the sale is the agreement to sell and its acceptance. That -possession shall be retained until payment of the priee may or may not have been a part of the original bargain, but, in substance, it is a mere method of collection, and we have never understood that a license could be imposed upon this transaction, except in connection with the prior agreement to sell, although, in certain cases arising under the police power, it has been held that the sale is not complete until delivery, and sometimes not until'payment.”
This language was employed in a case which involved the validity of a statute of North Carolina, which required every manufacturer of sewing machines and every person engaged in the business of selling them to obtain a -State license authorizing that action. The Supreme Court of North Carolina had held (Sims v. Norfolk & Western Ry. Co., 130 N. C. 556, 41 S. E. 673), that, as the machine there in question had been shipped into that State -c. o. d., to be delivered to the consignee upon the payment of the purchase price in that State, the sale was made in that State, for the reason that the title to the machine did not pass until the payment of the purchase price had been made to the delivering carrier as agent of the shipper, But, as appears from the above quotation, the Supreme Court of the United States, in reversing the decision of the Supreme Court of North Carolina, held that the contract of sale and shipment of the article sold pursuant to that contract from one State to another was an act of interstate commerce, regardless of the circumstances attending the delivery which occurred in that State.
We conclude therefore that the transaction here under review was an act of interstate commerce, and the judgment of the court below holding to the contrary will therefore be reversed, and the cause remanded.
Hab,t, C. J., and Humphreys and Mehaeey, JJ., dissent. | [
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Smith, J.
Appellee recovered judgment in the court below for damages to compensate an injury which he sus tained while employed by the appellant lumber and manufacturing company, a corporation, hereinafter referred to as the company.
At the time of appellee’s injury he was working at a veneering machine, and his injury, according to the testimony offered in his behalf, was occasioned in the following manner. Bolts, which had been previously “steamed,” were placed upon a revolving lathe, and, as the lathe turned, the bolts were cut into strips 3/16 of an inch thick, and it was the duty of appellee anda fellow-servant named McCullough to carry these strips from the lathe down a table adjacent to the lathe, and, when the strips had been cut to the desired length, another employee broke the strip by striking it with a stick, and the strip was then spread out its full length on the table. In spreading the strip of veneering on the table it was necessary for the employee carrying it to walk backward from the lathe towards the end of the table, the speed ■at which he walked being measured by the rapidity with which the lathe revolved. When one strip of veneering was placed in position the next strip cut was placed on top of it, and a pile of veneering was thus accumulated, and as the employee carried each strip he walked on top of this pile. As the employee was compelled to walk backward in carrying the strip, it was not possible or practicable for him to look back as he walked, and he would not therefore know whether any knots or slivers from the veneering had fallen in his path from the preceding piece of veneering placed in position by his fellow-servant. He could observe the strip he was carrying, and. if hcsaw a knot or sliv.er on that piece it was his duty to remove it, so that the path of the employee carrying the next strip would be clear. It was necessary to do this to prevent the thin strips from buckling, and for the protection of the men 'carrying the strips, as the testimony showed that these strips were very slick, and it was dangerous to step on a S'liveir or knot as the employee walked .backward. •
Appellee testified that McCullough had carried and placed one of these strips in position, but, in doing so, had failed to remove a sliver from the veneering on that strip, as his duty required him to do, and that when he (appellee) started from the lathe with the next strip, he stepped on this sliver, which slipped from under him, and he was thrown on the table with such force that his hip was broken in the fall.
It was the theory of the company that it was the duty of both, appellee and McCullough to watch for any particle from the blocks of wood which might be thrown on the strips of veneering as they were cut and to remove these particles, and, as these particles were likely to be thrown out at any time, the danger arising from their presence was one of the assumed risks of the employment, and also that it was appellee’s duty to watch for these particles, whether they were on the strip carried by him or by his fellow-servant, and, if he failed to do so and to remove the particle upon which he slipped, he was guilty of contributory negligence.
It appears therefore that the issues in the case are very simple. The court defined negligence, contributory negligence and assumption of risk, in instructions to which no objection was made. The court gave an instruction which stated the issues, iii which the jury was told that appellee contended that his injury was due to the failure of McCullough to remove the broken piece of veneering upon which appellee slipped, whereas the company contended that appellee’s injury was caused by his own negligence in failing to properly clear the table himself, and that appellee’s injury was the result of a risk and danger ordinarily incident to the employment which did not result from any negligence of the company.
Another instruction required the jury to find that it was the duty of McCullough to remove the broken piece of veneering before convicting the company of negligence, but that the company would be negligent if McCfillough was under this duty, and failed to perform it, and this failure resulted in appellee’s injury.
It is o.f course not contended that appellee assumed the risk of injury from McCullough’s negligence, so that the real question in the case is, who was responsible for the presence of the broken piece of veneering and the failure to remove it which caused appellee to fall!
The jury has found, under instructions submitting that question, that this duty rested upon McCullough, and not upon appellee. Therefore this was a risk which appellee did not assume, arid, as the testimony supports the finding that appellee was injured as a result of the company’s negligence, the judgment must be affirmed, and it is so ordered. No complaint is made that the judgment is excessive.
Judgment affirmed. | [
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Carleton Harris, Chief Justice.
This is a boundary line case involving Lots 29 and 30 of Block “H-G” of Castleberry’s Addition to Paragould, Arkansas. Appellants, Fred Bryson and wife, are the owners of Lot 30, and appellees, Delmar Dillon and wife, are the owners of Lot 29. The dispute which has arisen relates to the boundary line running east and west between the two lots. Both appellants and appellees derived their title either directly, or indirectly through mesne conveyances, from a common grantor, Kermit Mellberg. On April 7, 1949, Mellberg conveyed Lot 29 to W. W. Duncan and wife. On January 14, 1956, Duncan and wife conveyed to Marion H. Wineland and wife. The Winelands conveyed the property to John D. Osburn on September 17, 1959, and the Osburns conveyed to appellees Dillon on September 27, 1965. The original deed from Mellberg to Duncan described the land conveyed as follows:
“The South Half of Lot 28 and all of Lot 29 in Block ‘H-G’ of Castleberry’s Addition to Paragould, Arkansas, being a resurvey of Block ‘H and G’ of Castle-berry’s Addition to Paragould, Arkansas, as recorded in Plat Book 1, at page 45, said re-survey being of record in Plat Book 1, page 94.”
In all of the other conveyances this same identical description was used. Appellant purchased Lots 30 and 31 in Block H-G from Mellberg and wife by warranty deed on December 3, 1962.
On May 31, 1967, appellees instituted suit against the Brysons alleging that in 1956 Wineland and Mell-berg orally agreed that the boundary line between Lot 29 and Lot 30 “should be a line running East and West arid located at a point five (5) feet South of the Southern most part of the house located on Lot 29, then owned by Marion H. Wineland, et ux, and now owned by the plaintiffs.” It was then asserted that the subsequent grantees of Wineland had made improvements treating the aforesaid line as the true boundary and had exercised acts of ownership up to said line. It was then alleged that the Brysons were encroaching over the agreed line, and it .was prayed that appellants be enjoined from interfering with the use of the property, and that appellants be required to remove rose bushes and other obstructions from the land allegedly belonging to appellees. The Brysons answered, denying that any oral agreement had ever been entered into concerning the boundary, asserting the title to the property in question, and asking that the complaint be dismissed. On trial, the court held that Wineland and Mellberg “had made a tacit agreement during 1956 as to the location of the boundary line” between the two lots, and that the Bry-sons and their predecessor in title had “acquiesced in the location of the boundary and are now estopped from asserting any other line as the boundary line” between Lots 29 and 30. Thereupon, the court declared the following line to be the boundary:
“The place of beginning shall be a point four feet South of the Southeast corner of the Southernmost wall of the plaintiffs’ house. From the place of beginning run thence in an Easterly direction to the center of a drain pipe exit place (said drain pipe being the one running in a Southerly direction from the Southeast corner of the plaintiffs’ house, approximately five feet; thence in an Easterly direction to its exit place); thence from said center of the exit place of the aforedescribed drain pipe and continuing in the same direction on the same course, to the East boundary line of Block ‘H-G-’ of Cas-tleberry’s Addition to the City of Paragould, Arkansas.
“Then, again beginning at the place of beginning and running in a Westerly direction to a point twelve inches South of the South edge of the plaintiffs’ water meter; thence continuing in the same direction and on the same course to the East line of Hilltop Street in Castleberry’s Addition to the City of Paragonld, Arkansas.”
From the decree so entered, the Brysons bring this appeal.
First, let it be said that the evidence is undisputed that the record title to the property in question is in appellants.
Mr. Mellberg did not testify, and the court’s finding was apparently largely based upon the testimony of Wineland. This witness testified that he and Mellberg lived next to each other, and that he (Wineland) performed drain work on the property while he lived at that location. He said that he hooked up a sewer line from his kitchen sink and from the automatic washer. “It run outside the kitchen window and then down to an open ditch at the back. It went out to the south and then east. About 4 or 5 feet outside the house.” This “4 or 5 feet” was on the property presently owned by tke Brysons, and Wineland said that he built a fencé on the south side of the drain. The witness said that Mellberg did not object to either of these acts, though, he lived on Lot 30 at the time, and knew about them, and Wineland stated that he never had any dispute relative to the property line with Mellberg. He said that he mowed his lawn over to this fence.
“Q. And from the fence and gate to the front, to Hilltop Street, where did you mow?
A. Well, I mowed out in line with it.”
Wineland testified that the fence had been taken down when he left the property, but part of the posts were still there. He said that he did not obtain permission from Mellberg to run the drain down to the east side of his house, nor did he obtain permission from Mell-berg to build the fence — he simply performed these acts, and Mellberg never did say anything about it. He stated he never had any survey made in an effort to locate the true line between the two lots as reflected by the recorded plats. On re-direct examination the following testimony was given:
“Q, .You said there wasn’t any verbal agreement, Mr. Wineland. Do you actually remember whether you had any verbal agreement or do you just not know whether you made one or not?
A. Well, I don’t know of any. I don’t recall any agreement that we made.
Q. But you don’t definitely say that there wasn’t one, do you?
A. Well, I don’t recall any agreement that we made. ’ ’
Osburn, who purchased from Wineland, testified that he. did not know where the property lines were located. “Well, there never was anything said about no line no more than they just said approximately out there somewhere. ’’-The witness stated that there was no fence of any kind on the south side of the house, and on being asked if, when he moved into the property, he could see where a fence had been, answered, “I don’t believe you could no more than it was in a low place. A slope from each house sloped toward it and you could still tell where there was a low place and see where it joined on.” Osburn said that he mowed out four or five feet from his house, and that Mellberg never made any objection; nothing was ever said about where the line was located, “I don’t know where it was but that was just the understanding between me and him.” He also used the drain that Wineland had constructed, but he could not state exactly where the drain was located. The witness testified that Mellberg moved while he (Osburn) was still living on the premises; that Bryson moved into the Mellberg house, but did hot object to his manner of mowing. Osburn testified that Bryson had the line surveyed, that the surveyer “put it over there somewhere in my way and I picked it up and throwed it out of the way.” He said he told one of the Bryson “kids” that there was no need of “stakes between me and him.” Osburn lived on the premises approximately six years before conveying to Dillon. The latter testified that he was claiming over to the drain, approximately five feet. This was admittedly a guess, and at other times, the witness would state, “4 or 5 feet.” He said that Bryson started to build a fence about six inches from his house, but never did construct it; however, appellant put out rose bushes on the strip Dillon was claiming. Dillon admitted that at the time he purchased the property, and was looking it over, Bryson asked him if he “found out where the property line was,” and he further said that appellant told him that the line was about two and one-half inches from his house.
Bryson testified that when he first moved to the premises he did not know just where the line was located, and he subsequently obtained a surveyor to ascertain that fact. He stated that both he and Osburn mowed the same strip, but they, never discussed the matter. Appellant said that he met Dillon when the latter came to look over the Osburn property, and he told this appellee that, according to the survey, the house extended on his (Bryson’s) property, but “I’ll not cause you any trouble over it.” Dillon made no response. Appellant said that he set rose bushes out on the disputed strip, and Dillon complained, stating that he intended to have it surveyed. However, from the record, this was not done. Two surveys were made at the instance of Bryson, one by George Wadley, and the other by Olay Kenward, registered engineer. The Wadley survey caught the southeast corner of the Dillon house, and the Kenward survey came out about one foot to the south, leaving the line about eight inches from the corner of the house. Bryson stated his willingness to accept the second line.
It will be seen from this review of the evidence that there was never any agreed boundary line, i. e., none of the prior owners had ever agreed, or for that matter, even discussed, where the property line was located. In fact, it doesn’t even appear that anyone gave thought to the true location of the line until Bryson had the first survey made. The trial court recognized this fact, and held only that a “tacit” agreement had been reached. This holding was based on acquiescence. The complaint does not allege, nor did the court find, that title had been established by adverse possession. In a long line of cases, we have held that, to establish an agreed boundary line, there must be an uncertainty or dispute as to the boundary line, there must be an uncertainty or dispute as to the boundary; that the agreement must be made by adjoining landowners; the boundary line fixed by the agreement must be definite and certain, and finally, the agreement must be followed by possession. Payne v. McBride, 96 Ark. 168, 131 S. W. 463; Taylor v. Rudy, 99 Ark. 128, 137 S. W. 574; Malone v. Mobbs, 102 Ark. 542. 145 S. W. 193, (on rehearing) 102 Ark. 545, 146 S. W. 143; Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348; Moeller v. Graves, 236 Ark. 583, 367 S. W. 2d 426. As occasionally happens, cases are found, which, without careful scrutiny, may indicate a departure from this rule. Appellant mainly relies on our case of Deidrech v. Simmons, 75 Ark. 400, 87 S. W. 649, where these requirements are not specifically mentioned, and it is said that an agreement may he inferred from long continued acquiescence and occupation, thus binding the parties. However, the facts there are not at all in accord with the present facts. In Deidrech, Melinda E. Kilpatrick was deeded Lot 4 in Block 74 of Tennehill and Owen’s Addition in Pine Bluff by James M. Hudson, who also conveyed Lot 1 to Silas Beynolds. These two parties later conveyed to others, and eventually Deidrech became the owner of Lot 1 and Simmons became the'owner of Lot 4. Simmons caused Lot 4 to be surveyed, and his survey reflected that this lot included some of the Deid-rech property (which had earlier been owned by Reynolds). Mrs. Kilpatrick, who had originally purchased Lot 4 from Hudson, testified that she built a fence marking the boundary line between the two lots, and never at any time claimed any land north of the fence. Reynolds subsequently built a fence adjoining her fence, and she stated that she never, either before, or after, claimed any part of the land on the Reynolds side of the fence. This line was also observed by the subsequent owners of Lot 4 until the property was conveyed to Simmons. This court held that Mrs. Kilpatrick and Reynolds and subsequent purchasers had tacitly agreed unon the division line.
The opinion reflects, however, that there was uncertainty as to the line, caused by differences in two maps, both being generally accepted as correct, though they differed as to a 12-foot strip between the properties, so it is very evident that there was uncertainty as to the true line. In the next place, the original fence was constructed by the owner of Lot 4, the result being that she gave up a strip of her property, but she emphatically stated that she never claimed beyond the fence she had herself built.
Here, there is really no uncertainty as to the boundary line (except for the difference of less than a foot in the two Bryson surveys); rather, the owners- of the properties apparently never bothered to find out where the line was located. Also, to conform to Deidrech, the fence constructed in the present litigation would have had to have been built by Mellberg, who would have been giving up some of his property, rather than by Wine-land, who was taking additional footage. Not only that, but in Deidrech the fence stood for many years, and the Wineland fence only stood during the period of his particular ownership, which could not have been more than three years.
Appellee also relies on Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S. W. 2d 836. The opinion points out that there was uncertainty in the location of the true line, and it was also shown that for more than thirty years, a fence had been recognized as a division fence. The court held that:
“Acquiescence, by owners of adjoining lands, in a boundary line, as shown by a division fence, for more than seven years will ordinarily confirm the boundary line as thus located, even though the fence may not be placed on the true line between the tracts.”
It is apparent that adverse possession was one of the factors in this case, and the same is also true of the third case relied upon by appellee, Vaugn v. Chandler, 237 Ark. 214, 372 S. W. 2d 213. There, too, the case was determined on the basis of adverse possession, the court stating:
“After a careful review of the evidence in this case we have determined that the 1,295.7 foot strip of land was occupied adversely by the appellee for more than seven (7) years in the belief that the existing fence represented the true boundary.”
In Sherrin v. Coffman, supra, we said:
“In the present case there is no testimony to show that the parties made any agreement about the boundary line, or that such agreement if made was executed. Mrs. Coffman’s testimony only goes to the extent of showing that she had a survey made and that the adjoining proprietor afterwards recognized its correctness and asked permission to move a house situated on the disputed strip. This testimony falls short of showing that the parties made an oral agreement establishing a boundary line which had been in dispute and that the possession of the disputed tract was taken by Mrs. Coffman by virtue of such agreement.”
Summarizing, the evidence in this case reflects that the same description was used in each conveyance all the way from Mellberg to Dillon, and, under this description, the disputed tract belonged to appellants. There was no agreement by any of the owners, nor was any definite line considered as the boundary. In fact, the strongest evidence offered by appellee was that the line was approximately “4 or 5 feet” from the southeast corner of the house. While there was testimony by Wine-land that he built a fence (and it is not clear to where this fence extended), this mark of a purported boundary was only in existence for less than three years, and was no longer standing- when the property was conveyed from Wineland to Osburn. Finally, it does not appear that there was any dispute about the location of the proper boundary until the appellant had the property surveyed.
It follows, from what has been said, that the complaint should have been dismissed, and the court erred in establishing the line heretofore referred tó; the decree is reversed, and the cause remanded to the Greene County Chancery Court, with directions to enter a decree in accordance with this opinion.
Actually, this conveyance was from Hilltop Lumber Company, Mellberg being a partner.
From the testimony:
“Q. This fence that you said you installed on the south line, where did it run from?
A. From the 'back corner of the house, from the southeast corner of the house out to the line and then back to the east side.
Q. Was it right next to the house or was it offset some way?
A. I had a gate where I could go through beside the house and • then it went to the south and then back.
Q. Approximately how far was this from the edge of the house to the gate? How wide was your gate?
A. Oh, it was I would say four or five feet. I just made a gate all the way out.
Q. So from the comer of your house the gate came out ap proximately four or five feet south and then the fence ran 6ut to the south side of the drain, is that correct?
A. Yes, sir.” | [
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McHaney, J.
Appellant was indicted, charged with murder in the first degrefe for the killing of one Harold Robin, by stabbing and cutting him, from which he died a few hours later. On a trial he was convicted of murder in the second degree, and his punishment fixed by the jury at eighteen years in the penitentiary. The facts are substantially as follows:
A party of young people who were boarding with Mrs. Green, in Monticello, went out to the Nelson home, about six miles west of Monticello, on the Wilmar road, to attend a dance, at invitation of Miss Ouida Nelson. A number of them went on a truck. The deceased, with Gertrude and Willie Lassiter, went in a Ford sedan. Appellant, Ed Lane and Basil Boone-also attended this dance, without invitation from Miss Nelson, in a Ford roadster. After the dance was over, J. A. Stith, one of the parties on the truck, heard appellant cursing, thought he was referring to him, and they had a difficulty, in which Stith knocked appellant down, and about that time Boone stuck Stith with a knife. The parties on the truck started for home, and, when they had got a short distance down the road, appellant, Lane and Boone passed them in the roadster, and said something about getting them before they got to town. Up until that time the .deceased had had no difficulty with appellant or any of the others. As they drove on toward town the truck overtook the sedan in which Robin was riding with the two young ladies, who had stopped to repair a tire, or to change tires. The boys on the truck assisted Robin in repairing his tire, and, when he had started up, switched on his lights, they saw the Ford roadster stopped in the middle of the road, something like 40 or 50 feet ahead, on a culvert or narrow wooden bridge. According to the State’s testimony, when Robin drove up to the roadster, Lane was out of the car, and drew a shotgun' on Robin, and Stith says he jumped off the truck and asked Lane not to have any trouble, and that Lane drew the gun on him, which he grabbed, and a scuffle ensued over the gun. While they were tussling over the gun, Stith says Sanderlin ran around the car and stuck a knife in his arm, and that he turned the gun loose and ran something like 25 or 30 yards, crawled through the fence, and got behind a log, where he remained six or seven hours, until after daylight the next morning. He did not see appellant stab Robin.
J ack Fultz testified that, after Stith ran off, deceased was standing to his left, and that Lane and Boone were in front of him, and that it looked to him like appellant ran against Robin, who stepped back two or three steps, dropped to his knees, and that he asked Robin what was the matter with him, and he said “He cut me.” Fultz then put Robin in his car, and Handley brought him to town.
Witnesses were permitted to testify, over appellant’s objection, to statements made by deceased, in the nature of dying declarations, that Sanderlin had cut him, and it is urged that these statements were not made under a sense of impending death, and therefore inadmissible. We have examined the evidence very carefully on this assignment of error, and find that there was sufficient evidence to sustain the court in overruling appellant’s objection on the ground that the declarations were not made at a time when the deceased thought death was impending. Taking into consideration his expression, “If you don’t hurry up and get a doctor here, I am dying,” “You had better hurry up and get a doctor, I am dying,” and other testimony to the effect that he said he was dying, and was cnt all to pieces, together with the nature of the wound, which was a cut in the abdomen, from which his intestines protruded, and the fact that he died some seven or eight hours after the wound was inflicted, we think the court did not err in permitting the witnesses to say that deceased told them that Sanderlin had out him.
The most serious assignment of error, however, and the one we think calls for a reversal of this case, is the refusal of the court to instruct the jury, on appellant’s request, that, although the statements of the deceased, that appellant had cut him, had been admitted in evidence, still it was a question for the jury to determine what weight they should give such testimony, and, in determining this question, they should take into consideration whether the statements were made at a time when deceased had lost all hope of recovery. In Alford v. State, 161 Ark. 256, 255 S. W. 884, this court said:
“Dying declarations are admitted in evidence by the court upon a prima facie showing that they were made in extremis, but, notwithstanding their admission in evidence, it is still within the province of the jury trying the case to decide, from the whole evidence and all reasonable inferences therefrom, whether utterances were made under consciousness of impending death. It is error to take this question from the jury. ’ ’
And in the more recent case of Sullivan v. State, 163 Ark. 11, 258 S. W. 643, this court said:
.“Under this testimony and the instructions relating to it the jury might have found that Hay had not ■despaired of hope of recovery; but we do not think this finding was the only one warranted by the testimony. There was a question for the jury, and the testimony was submitted to the jury under proper instructions.”
The instructions referred to in this, case were not set out by the court, but, on an. examination of the instructions given, we find that the exact question now under consideration was submitted by the trial court to the jury, and they were told therein that, before they could give any consideration to the statement of the deceased as his dying- declaration, “it must be shown by the evidence that he was at the time fatally wounded, and made the declaration under apprehension of impending death without expectation or hope of recovery.” And they were further told that they must first decide whether the statements made as dying declarations were made under an apprehension of impending death. The instructions given in the Sullivan case are too lengthy to set out in full, but they received the approbation of this court in that case.
The rule therefore with reference to the admissibility of dying declarations is that, in the first instance, it is the duty of the court, on the showing made, to determine whether the declaration was made under such circumstances as to justify the court in letting them go to the jury under proper instructions as to the weight to be given them, and in this respect the court seems to have adopted the same rule applicable to the admissibility of confessions. That is, that the court, in determining the admissibility of a, confession, first determines the preliminary question as to whether it was freely and voluntarily made, and, having- admitted it, the jury should be instructed that, in determining’ what weight they should give to the confession, they should first determine whether the confession was made freely and voluntarily. As was said in the case of Spurgeon v. State, 160 Ark. 112, 254 S. W. 376:
“Now, the court refused to exclude this confession from the jury, but submitted it to the jury upon instructions as favorable as the defendant could ask for, and left it to the jury to determine whether or not the confession was free and voluntary.”
We are therefore of the opinion that the court erred in refusing- to submit this question to the jury, as requested in instructions G and IT, or some similar instructions which have heretofore met with the approval of this court.
Other questions are raised in brief of counsel for appellant, including the refusal of the court to instruct the jury on voluntary manslaughter. We will not enter upon an extended discussion of this assignment, or any others, as they may not arise on another trial. Suffice it to say that we do not think there was sufficient testimony in this record on which to base instruction on voluntary manslaughter. For the error indicated the judgment will be reversed, and the cause remanded for a new trial. | [
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Conley Byrd, Justice.
The issues on this workmen’s compensation appeal are the finality of the Commission’s order finding that appellant’s disability from his heart attack arose out of and in the course of his employment, and the constitutionality of Act 501 of 1967, which provides that if the circuit court has not acted on a workmen’s compensation review within sixty days, the court shall enter an order affirming the same.
The record shows that on May 26, 1967, the Commission found (1) that the heart attack suffered by appellant Luker arose out of and in the course of his employment by appellee Reynolds Metals Company; and (2) that as a result of the heart attack claimant sustained total disability for a period yet to be determined. The order provided, ‘ ‘ . . . the commission expressly retains jurisdiction of this claim for the further purpose of determining the end of claimant’s healing period and the extent of his permanent disability, if any.” No appeal was taken within the thirty days allowed by Ark. iStat. Ann. § 81-1325(b) (Supp. 1967), but on July 28, 1967, appellees filed with the Commission a motion requesting it to enter an order finding that no “final ap-pealable order” had been entered, or in the alternative that the May 26, 1967, order be rescinded and a new order issued clarifying said opinion. The motion was overruled by the Commission on August 24, 1967, and appellees filed their appeal with the circuit court on September 8, 1967. No action was taken by the circuit court within the sixty days allowed by Act 501 of 1967. On November 27, 1967, counsel for appellant mailed a precedent <fo the circuit court for affirmance of the Com mission under Act 501. The court refused to enter the order, and on November 29 entered its order finding that the Commission’s May 26 order was so vague and indefinite as not to constitute an appealable final order. It then remanded the matter to the Commission with directions to determine the questions of partial total disability and the end of the healing period.
We do not reach the issue of the constitutionality of the statute (Act 501) or the duty of the circuit court thereunder, for in our opinion the May 26 Commission order was final for purposes of review, and the thirty-day limitation for review had expired, thus depriving the circuit court of jurisdiction in the matter.
The appealability of the Commission’s order in a workmen’s compensation claim is not limited to the final disposition of the matter before the Commission. See McNeely v. Clem Mill & Gin, 241 Ark. 498, 409 S. W. 2d 502 (1966). The benevolent purposes of the act requiring the employer to make payments of compensation and medical expenses during the healing period would be defeated if all contested claims were permitted to lie dormant until the Commission could determine the end of the healing period and the permanent partial disability. Many cases have been before this court in which the healing period lasted for more than a year, particularly those involving heart and back injuries.
The May 26 order determined the employer’s responsibility for the injuries and specifically retained jurisdiction for the “purpose of determining the end of claimant’s healing period and the extent of his permanent disability, if any.” These determinations were sufficiently final for the employer to contest on review (1) its liability to the claimant, (2) whether the evidence established the termination of the healing period, and (3) whether the evidence establishd any permanent partial disability. To this extent we hold it was final for purposes of review.
Reversed and remanded. | [
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Smith, J.
Appellant was tried upon an indictment containing two counts. The first count alleged that he had embezzled certain public funds which had come into his hands as treasurer of Ashley county. The second count charged that he had failed to pay over these funds to his successor in office. He was found guilty under the first count and given a sentence of five years in the penitentiary, from which judgment is this appeal.
Appellant has not favored us with a brief in the case, and we have before us a bill of exceptions which does not contain any of the testimony heard at the trial. The presumption that the testimony was sufficient to support the verdict is, therefore, conclusive.
The bill of exceptions does contain the instructions, and there were fifteen of them, and it appears that a general objection was interposed to each of them. The thirteenth assignment of error in the motion for a new trial is that the court erred in giving each of these instructions over the general objections and exceptions of •appellant. The instructions were not objected to en masse, but separately, and we have, therefore, so considered them, but we do not feel called upon to set them out in this opinion and to approve them separately. Most of the instructions are what might be called “the usual instructions in criminal eases,” and this assignment of error will be disposed of by saying that we find no error in any of the instructions.
The bill of exceptions recites that appellant objected to the competency of Luther Franklin to serve upon the grand jury which returnéd the indictment. The basis of the objection was that Franklin had unsuccessfully opposed appellant as a candidate for the office of clerk of the circuit court, to which office appellant was elected while serving as county treasurer. Franklin was asked, “Would that fact in any manner bias or prejudice you in your part of the investigation to be had of his (appellant’s) affairs and as a member of this body?” and he answered that “It would not.”
The statute provides 3827, Pope’s Digest) that “Every person held to answer a criminal charge may object to the competency of anyone summoned to serve as a grand juror, before he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution, and has been summoned or bound in a recognizance as such; and, if such objection be established, the person so challenged shall be set aside.”
There was no testimony that Franklin was the prosecutor or complainant or that he had been summoned or bound in a recognizance as such, and the challenge of Franklin as a grand juror was, therefore, properly over-. ruled.
It appears also that appellant excepted to the action of the court in excusing for cause one C. L. Miller, a member of the petit -jury panel, who, upon his voir dire examination, expressed his distrust of circumstantial evidence, and stated that “I believe lots of fellows have been convicted on circumstantial evidence that was not guilty.”
This assignment of error may be disposed of by saying that it has been many times held that no one is entitled to the services of any particular juror.
The only other assignment of error appearing in the bill of exceptions relates to the following statement made by the prosecuting attorney in his closing argument that “lie (appellant) is holding an office he cannot be put out of unless and until you go down the line and convict him.” We cannot hold this statement erroneous, as it is a correct statement of the law.
It was held in the case of Jacobs v. Parham, 175 Ark. 86, 298 S. W. 483, to quote a headnote, that “Under Crawford & Moses’ Dig., §§ 10335, 10336, a public officer is not subject to removal from office because of acts done prior to his present term of office in view of Const., art. 7, § 27, containing no provision against re-election of officer removed for any of the reasons named therein.”
In the later case of Montgomery v. Nowell, 183 Ark. 1116, 40 S. W. 2d 418, the headnote reads as follows: ‘ ‘ Crawford & Moses ’ Dig., § 10335, providing for suspension of an officer on presentment or indictment for certain causes including malfeasance in office does not provide for suspension of an officer on being indicted for official misconduct during a prior term of office.”
As no error appears, the judgment must be affirmed, and it is so ordered. | [
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■Griffin Smith, C. J.
Appellee asked $5,000 to compensate damages and $150 as reimbursement for medical expenses because, as she says, illness resulted from eating a contaminated food made by appellant. Tbe original complaint alleged that a mouse was baked in a cake, and that parts of the rodent, including skin, tail, and a jawbone segment with what appeared to be intact teeth, were found after a portion of the cake had been served and while the process of mastication was under way. A sister and niece were also affected, according to their testimony and the testimony of appellee. The complaint was amended by substitution of the word “hairy animal” for mouse. Judgment was for $400.
On the factual issue — that is, whether the cake, when sold by appellant, was tainted because of the foreign visitation — a jury question was made. Also, in view of the evidence, it was appropriate for the finders of facts to appraise the extent of injury and adjudge remuneration.
Objections, general and specific, were made to Instruction No. 3, requested by appellee, which declared the law to be “. . . that a manufacturer of cakes, such as the one in evidence, ... is required to use such care in the manufacture and preparation ... as will render them safe for human consumption.”
Instruction No. 3, given at appellant’s request, is copied in the margin. It is a correct statement. Each instruction is numbered three.
Frequently, in the briefs, there is reference to “plaintiff’s instructions,” and “defendant’s instructions.” These terms are used for identification. All instructions are the court’s. Litigants do not give instructions ; but, as counsel for appellant and counsel for appellee so appropriately recognize in the argument, instructions, considered as a whole, constitute the court’s declaration of law applicable to the issues involved.'
In a recent case considered on appeal, the trial court had given more than fifty instructions requested by counsel for one of the litigants, in addition to a large number offered by the opposing side. A multiplicity of instructions inevitably proves confusing to the jury, even if the court, after having heard argument by those learned in law, and after citation to authorities, is able to harmonize them by a refusal, a deletion, or an interlineation. A so-called Chinese puzzle has no mysteries that conflicting and confounding instructions do not challenge.
Eeid’s “Branson Instructions to Juries,” Yol. 1, Third Edition, says “An instruction is an exposition of the principles of the law applicable to the case in its entirety, or to some branch or phase of the case, which it is the duty of the jury to apply in order to render a verdict establishing the rights of the parties in accordance with the facts proved.”
The vice argued against the instruction which told the jury that a manufacturer of cake was required to use such care as would render the commodity safe for human consumption is that it converts the baker into an insurer, irrespective of other considerations. While impliedly conceding that the instruction, standing alone, is open to the objection urged, appellee insists if error occurred it was cured when Instruction No. 3 (printed as the second footnote) told the jury that in order for Mrs. Aaron to receive compensation it was necessary that she show there was negligence in the manufacturing process.
In St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61, 102 S. W. 700, 119 Am. St. Rep. 112, there is a declaration that “It is generally impossible to state all the law of a case in one instruction. If the various instructions given in a case separately present every phase of the law, as a harmonious whole, there is no error in a particular instruction failing to carry qualifications which are explained in others.” But in Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048, it was said: “. . . Instructions, when taken together, should not be so conflicting as to confuse or mislead the jury, not giving them a certain guide to follow in making tlieir verdict. ’ ’
The defending baking company objected to Instruction No. 3 (requested by plaintiff) “. . . for the reason that it is not a proper declaration of the degree of care which is required of one manufacturing cakes.” It was then said that in support of the instruction counsel for plaintiff relied upon Anheuser-Busch, Inc., v. Southard, 191 Ark. 107, 84 S. W. 2d 89. In that case appellee’s requested instruction No. 1 was given, but in addition Instruction No. 6 was that manufacturers were only required to use ordinary care.
The Southard opinion holds that Instruction No. € cured the error urged against Instruction No. 1, which would have made the manufacturer an insurer. It will be observed, however, that Instruction No. 1, in the sentence which told the jury that the manufacturer’s duty was to produce a beverage safe for human consumption, stated that if the manufacturer negligently permitted deleterious foreign substances to contaminate the product to the injury of a consumer, liability would attach. In fact, “negligently” was followed in the same sentence with the statement that the manufacturer would be liable to the purchaser “for such negligence.”
The instant case is distinguishable from AnheuserBusch v. Southard in that Instruction No. 3 offered by Mrs. Aaron makes no mention of negligence. It asserts in a completed sentence without modification of any kind that appellant was required to use such care as would render the cake safe for human consumption. Under the express language the bakery was required to actually produce a wholesome commodity, whereas the law merely adjudges liability if the manufacturer failed to use ordinary care to prevent the consequences appellee complains of.
Of course all instructions are to be read together where that is possible. As we said in effect in Russ v. Strickland, 144 Ark. 642, 220 S. W. 451, verbal defects and inaccuracies will be disregarded where the instructions as a whole clearly present the issues; and while it is true that the two instructions numbered three, if read as a single direction, would correctly declare the law, yet they were given as separate pronouncements, each available to jurors who would not necessarily read into Instruction No. 3 given at plaintiff’s request the language embraced in Instruction No. 3 given at the defendant’s insistence. Bead separately they are inconsistent and contradictory.
The rule stated in Darling v. Dent, 82 Ark. 76, 100 S. W. 747, is that prejudice results where the court gives conflicting instructions, and this is particularly true if the conflict is of a nature which may have misled the jury, although, as was said in Bain v. Ft. Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, L. R. A. 1915D, 1021, instructions should not be considered as in conflict where they can be harmonized; nor can there be conflict between an instruction giving a general rule and an instruction giving an exception thereto. Bush v. Brewer, 136 Ark. 246, 206 S. W. 322.
The true rule seems to be that instructions, when taken together, should not be so conflicting as to confuse or mislead, not giving the jury a certain guide to follow in reaching a verdict. Garrison Co. v. Lawson, 171 Ark. 1122, 287 S. W. 396.
It is impossible to know, in a given case, what consideration jurors gave to one instruction as distinguished from another. We only consider whether (in the light of experience and the psychology and conduct of mankind in the average) separate instructions, one being erroneous and the other correct, probably resulted in a verdict against the party who complains of the mistake.
In the case at bar we cannot say the jury did not believe the law to be that the baking company was a guarantor of the wholesomeness of its product. Hence, the judgment must be reversed and the cause remanded for a new trial.
In Mrs. Aaron’s brief it is said: “Naturally appellee’s attorney did have an instruction prepared correctly defining the degree of care required by appellant, to accompany his Instruction No. 3, but without any explanation from the record except merely the statement that appellant’s instruction fully covered the question of the degree of care required [of] appellant, counsel for appellee did not submit his instruction. Had he done so, and had it been a duplicate of appellant’s instruction upon the same subject, the court would then have refused appellant’s instruction upon the grounds that the jury had already been fully instructed regarding the degree of care which appellant was required to use.”
“. . . one who eats cake is not entitled to recover damages simply because illness results therefrom. In order to recover damages the injured party must show that there was negligence on the part of the defendant in manufacturing the cake. Negligence is the failure to exercise that degree of care which a reasonably prudent person would exercise under similar conditions. If you find from the evidence that the defendant was not guilty of • negligence as herein defined, then your verdict should be for the defendant.”
Chief Justice Pansier of the Supreme Court of Indiana said: “Courts are not required to follow the language of approved instructions, and may use any language that will correctly express the principles involved, but the numerous decisions of this court, dealing with erroneous instructions, furnishes ample evidence of the difficulties which may be involved in experimenting with new and untried phrases, and indicates the wisdom of adhering to approved instructions.” Beneks v. State, 208 Ind. 317, 196 N. E. 73.
The instruction was: “. . . it is the duty of the manufacturer of beverages to be offered for sale to the public to use such care in the manufacture, preparation, and bottling of such beverages as will render them safe for human consumption. ... If such manufacturers negligently permit foreign substances to be bottled in such beverages, and a purchaser is injured by drinking a bottle of such beverage containing such foreign substance, and on account of such foreign substance, the manufactux-er would be liable to such purchaser for such negligence.” | [
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Kirby, J.
This appeal involves the construction of the will of Patrick J. 0 ’Brien, who died in the latter part of 1919 or early in 19'20. The will provides for the payment of all debts, and clauses 2, 3 and 4 make several small bequests, aggregating $350; by clause 5 the testator devises and bequeaths to his wife, Annie M. O’Brien, and the Union' Trust & Mercantile Company (now the Union Trust Company) all the residue of his property, giving them the right to sell, mortgage, convey and invest and reinvest and be held in trust for the following purposes:
“(1). Said trustees shall appropriate and apply the net income from the property in their hands for the support and maintenance of my wife, Annie M. 0 ’Brien, for and during her natural life. (2). Upon the death of my wife, Annie M. 0 ’Brien, the property in the hands of my said trustees shall be divided by my surviving trustee into two equal parts, and I hereby give, devise and bequeath to my said wife, Annie M. O’Brien, the rights and power to dispose of one of these parts by last will and testament, and in the event that she die without disposing of this part of my estate by last will 'and testament, said property shall thereupon vest absolutely, in Miss Elizabeth Cavanaugh, of Little Rock, Arkansas. (3). The remaining one-half of the property in the hands of said trustees shall be divided by my remaining trustee into eight equal parts, which shall be distributed to his nieces, in the amounts named in the will, with the proviso that, in the event of the death of any of the said nieces, the share of the one so dying shall go to his or her surviving issue, if any, and if not, then to the survivor or survivors of said beneficiaries.”
By the 7th clause of the will it was provided that the. provisions for the benefit of his wife should be in lieu of all her dower rights under the law. The widow, Mrs. O’Brien, subsequently renounced the Avill and took one-half of the estate as dower, the testator leaving no descendants. The widow died, and by her will devised and bequeathed all her estate to Miss Elizabeth Cavanaugh. She made no attempt to dispose of any of the estate of her husband in her will. The court decreed a partition of the estate among the devisees entitled thereto, and that Elizabeth Cavanaugh was not entitled to distribution of any part thereof under the will, and from this decree the appeal is prosecuted.
Appellant contends that the election of the wife to take dower had no effect, except to diminish the amount of the estate to be distributed under the will, and that she is entitled thereunder to one-half the estate devised by the will, and that the chancellor erred in holding-otherwise.
The will of the testator is clear and unambiguous, and his intention must be gathered from the language employed by him in making the will, and that intention, as expressed in the will, must prevail where ascertained. LeFlore v. Handlin, 153 Ark. 421, 240 S. W. 712; Cook v. Worthington, 116 Ark. 328, 173 S. W. 395; Duensing v. Duensing, 112 Ark. 362, 165 S. W. 956.
In State v. Gaughan, 124 Ark. 548, 187 S. W. 918, the court said:
“The purpose of all rules for the construction of wills is to ascertain and effectuate the intention of the testator; but these rules are ordinarily resorted to only where there are ambiguous, inconsistent or repugnant clauses.”
The testator knew what portion of his estate could be set aside under the law to his widow for dower, one-half, there being no children or descendants, and made the provisions of the will for his wife’s benefit in lieu of such dower. She renounced'the will, however, as she had the right to do, and took that part of the estate which she was entitled to under the law as dower, and at her death devised all her estate to her niece, Elizabeth Cavanaugh.
It is true that wills speak only from the death of the testator, and are not to be varied by subsequent events, as said in Blakeney v. DuBose, 167 Ala. 627, 50 So. 746, by the Supreme Court of Alabama: “Wills speak only from the death of the testator, and must be construed as they would have been construed at the moment of death, and without regard to the consequences resulting from subsequent events, which were probably not foreseen or anticipated at the making of the will.” See also McFarland v. McFarland, 177 Ill. 208, 52 N. E. 281; Wales v. Templeton, 83 Mich. 177, 47 N. W. 238; Crocker v. Crocker, 230 Mass. 478, 120 N. E. 110, 5 A. L. R. 1617.
It is clear from the will that the testator intended his widow to have all the income from his estate during her life and that the residue should be divided at her death into two equal parts, to one of which he gave the right of disposition by will to his wife, and provided that, if such disposition was not made by her, such property should vest absolutely in Miss Elizabeth Cavanaugh. His intention was equally clear that the remaining one-half of the property in the hands of the trustees should be divided by them into eight equal parts and distributed to his nieces in the amounts named in the will,- with the provision that, in the event of the death of any of the said nieces, her share should go to the surviving issue, if any, and if not, then to the survivor or survivors of said beneficiaries.
It was only the intention finally to distribute one-half the property of the testator, in the hands of the trustees, to whom it had been devised for the life of his wife, with the right of disposition by will, and to Elizabeth Cavanaugh by the testator’s will, in case it should not be disposed of by the will of his wife. In other words, there was no intention to grant the right to his wife of disposition by will of one-half of the residue of the property in the hands of the trustees, unless she accepted the provisions of the will in lieu of her dower, nor to vest in said Elizabeth Cavanaugh by his will any part of his estate of which his wife was not given the right of disposition thereunder.
It was the certain, unmistakable intention of the testator, as shown by the will, to give one-half the residue of the property, in the hands of the trustees at the death of his wife, to his nieces, as provided‘in clause 3 thereof, in any event. This intention could not be defeated by any action taken by the widow, since she could only dispose of one-half of the residue of the estate, if she accepted the provisions made in the will in lieu of her dower under the terms of the will, and rights of Elizabeth Cavanaugh In the estate depended necessarily upon the action of the wife in taking under the will, and ended when she renounced its provisions and took her dower under the law.
' It "follows that the chancellor did not err in his construction of the will, and the decree is accordingly affirmed. | [
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Kirby, J.
Appellant’s first assignment, that the court erred in holding her cause of action on the note barred under the 5-year statute of limitations, is well taken. The statute, § 6955, C. & M. Digest, provides: “Action on promissory notes, and other instruments in writing, not under seal, shall be commenced within 5 years after the cause of action shall accrue, and not-afterwards.” It has long been the settled rule that the maker has the whole of the day upon which the note becomes due in which to pay it, and that he cannot be sued until the next day, the day upon which the cause of action accrues. Zackery v. Brown, 17 Ark. 442; Holland v. Clark, 32 Ark. 697; Moore v. Horsley, 42 Ark. 163.
In Peay v. Pulaski Co., 103 Ark. 601, 148 S. W. 491, the court said: “The rule for computing time in statute of limitations in this State is to exclude the first day and include the last day,” and, although the statute of limitations relative to promissory notes was not under consideration in that case, the rule as announced is not in conflict with the holding here, since the makers had the whole of the day upon which the note became due, one year after date, May 26,1921, in which to pay it, the holder’s cause of action did not accrue until the next day, the first day upon which suit could be brought.
The statute of limitations pleaded requires that an action on promissory notes shall be commenced within 5 years after the cause of action shall accrue, and not afterward. Since the cause of action did not accrue until the next day after May 26, 1921, upon which the note was due, and the suit was brought on May 26, 1926, the action was commenced within 5 years-after the cause of action accrued, and was not barred by the statute, as. the court erroneously held. -
The note given and sued on, disregarding the printed matter above it, “Guaranty Loan Fund for the Mutual Fire Insurance Association of Arkansas,” appears to be an ordinary promissory note signed by the individuals, as makers, with designation of agency affixed to their signatures respectively, as president, secretary, and. treasurer, the appellees against whom judgment was rendered, and the other makers, upon Avhom no service was had, as trustees.
The association Avas still in the promotion stage, the corporation not having been organized, when the note was executed, and the appellees did not sign its name by them as officers of the association, but signed it as such officers without stating for Avhom or what company they were acting, and became personally liable to the payment of the note according to its terms. Lawrence County Bank v. Arendt, 69 Ark. 406, 65 S. W. 1052.
The parol testimony was inadmissible to show that the note, which, considered by itself, appeared to be given for money owing to or borrowed from the payee, was not to be paid at all, except out of a surplus to be accumulated by a corporation thereafter to be organized, and was but evidence of a'purchase of stock or membership in such corporation.
The court found, however, notwithstanding the admission of this testimony, that the signers of the note were personally bound to the payment, and such finding was supported by the testimony.
For the error designated in holding the cause of action barred by the statute of limitations, the judgment must be reversed, and, since the case appears to have been fully developed, judgment will be rendered here for. the appellant in the amount of the note sued on, with interest. It is so ordered. | [
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Wood, J.
Two suits were filed in the circuit court of Poinsett County, one by Ollie Bellars and.J. J. Bellars, husband of Ollie Bellars, the other by Jennie Tankersley and her husband, Thomas Tankersley. The two cases were consolidated and tried as one case. There was a verdict for each of the women plaintiffs for $5,500 and a verdict against the husbands. Motion for new trial was filed by defendants, overruled, and appeals taken.
The Tankersley case has been settled, and there is now only the case of Mrs. Bellars to be decided.
The plaintiff alleged, in substance, that she was in • good health and perfect physical condition; that defendant, Arkansas Short Line, is a railway corporation; that on August 1, 1926, without fault or negligence on her part, she was struck and run over by a motor-car operated by defendant, Rufus Walters, an employee of the Arkansas Short Line, while he was in the line of his duty; that she was upon and about to cross the railway track within the city limits of Truman, Poinsett County, Arkansas, and at a point where the track had for a long time been used by pedestrians for the purpose of passing along or across the track; that such use of the track had been of long duration, open, notorious, and well known to defendants; that, while she ivas upon the tracks, defendant Walters wrongfully, carelessly and negligently ran a motor car against her, breaking and fracturing- her leg, etc.;.that the injuries so received were permanent, etc.; that Walters was operating the motor-car in a careless and negligent manner, in that he was running it at a dangerous and reckless speed, and did not keep a lookout, and did not make any effort to avoid striking plaintiff after discovering- her peril; that he gave no alarm or warning’; that it was at a point where he knew the track was frequently used hy pedestrians.
Defendants answered* denying all the material allegations of plaintiff’s complaint; alleged that plaintiff was a trespasser without knowledge or consent of defendants; that plaintiff was guilty of contributory negligence.
The appellee testified that she lived at Truman, and, on August 1, last year, she and Mrs. Jennie Tankersley were going to her daughter’s. It was a little after eight o ’clock p.m. They went on the railroad track, and turned up the track toward town. They were walking between the rails when a motor-car hit her. Somebody hollered: “It was a motor car,” and appellee started to get off. She testified that it hit her on the leg and head and rendered her unconscious. When the man hollered, she tried to jump off. Before she was hit she was in good health, but now her leg hurts her all the time. She is 48 years old. Before she went on the track she looked down the track and did not hear or see any trains. There is a path that goes up onto the railroad track. She went up there. Children went that way to school. Appellee had often walked-on the track before, and others did too. People walked that way to town every day. Witness does not remember the path just south of the gravel road and right by the side of it. She just knows that they always went the other way because everybody else did. At the sides of the railroad and at the end of the ties there are two level, well-beaten paths, one on one side of the track and one on the other side. Witness testified that she got between the rails, as she met a man who went past her, and that he hollered, “Look out, here comes a motor-car.” She had not heard the motor-car. The path along the gravel road was not a well-beaten, smooth one. There were weeds on either side, and they couldn’t get along that path for that. They did not hear any motor-car that night. It was dark.
Mrs. Jennie Tankersley testified that she was on the track with Mrs. Beliars, and they started out about seven-thirty; walked up the track for a bit; could not walk down on the side of the road because it had been raining. That everybody walks on the track that wants to. That they passed a man, and he told them that they had better get off the railroad, that a motor-car was coming, and, just as they went to step off, the car struck them. It threw witness one way and appellee another. Witness did not knoifr that they ran any trains on that road on Sunday. This was Sunday night. There was a little path on each side. They had walked that way before, and everybody that wanted to walked it. It was the ordinary way for them to go. Children, men and' women went that way. Witness had seen others on the track when she was on it. They had not heard a motorcar until the man hollered. Witness looked both ways. Mr. Walters, who operated the motor-car, came to witness, asked her if she was hurt, and told her he was trying- to get home in time to put into headquarters the story about the wreck they had on the road the day before. He said he was going pretty fact. Witness did not know how far he went after he hit her before he stopped. Everybody walked on the railroad. Does not remember a little path along- the road. Can’t say that the path along the south side of the gravel road isn’t a smooth and well beaten path used by pedestrians. All the path witness ever saw along the railroad was in the middle of the track. Mrs. Bellars said witness stepped up on the railroad track about the same time. They had walked on the railroad about the distance of the court room before being struck.
W. F. Webb, a farmer, testified that he had been to Memphis, and was returning home along’ the railroad track; saw ho was going to meet a couple of ladies, and heard a noise coming. It was very dark, and there was quite a little driving on the hard road. It had been raining that day. It made it pretty dark, but you could tell how'to walk. When witness got close to the ladies they saw him, and stepped up on the center of the track. Witness kept listening, and finally decided what he heard was a motor-car. It must have been seventy-five or eighty feet from him, and he iconld see the bulk of something, but knew from the noise it was a motor-car. Witness saw that the ladies had not discovered the noise, and he called to them and told them they were going to get hit. One of them started to the right and one to the. left. Another step would have put them off the track. Witness stopped and looked, and it looked like they went up five feet high. .The car ran on up to a little crossing, and the man operating it came back as quickly as he could. Witness did not know how fast the motor-car was coming, but at a pretty, good gait. It looked to witness like it was going around twenty-five miles an hour. Did not see that any apparent effort was made to stop it before it hit the ladies. Witness thinks that most of the-people from Mr. Stacy’s to Mr. Moose’s walk the railroad more than they do the dirt road. You will see school-children and Singer men walking the track, either on the side of the track or between the track. Witness had not passed the women when he hollered at them. In going from Stacy’s crossing to Lovell’s store you will ¡see them walking all the places. Witness did not hear any conversation between Mr. Walters and Mrs. Tankersley. Motor-cars don’t have any signal that witness knows of. Witness used the railroad track all of the time.
A number of other witnesses testified substantially the same as the witness whose testimony is set out above, with reference to people walking on the track at this particular place.
The motor car had no light, and the accident occurred close to Truman, a town of three or four thousand people.
One witness testified that where the accident occurred was ninety feet from one of the streets.
E. S. Walters, one of the defendants, testified, in substance, that he was operating the motor-car and coming into town after he had finished his work. A cloud was coming up, and it began to look like rain, and wit ness started into town. He was one-quarter of a mile from Truman and within thirty or forty feet of some object, and he heard a man holler, and as he did, he could see the bulk of something, so he threw his car out of gear and threw on the brakes, and by that time hit the women. He went over to Mrs. Tankersley and asked her how bad she was hurt, and helped her up, and they got a doctor. To stop the car witness threw it out of gear and applied the brakes. It was dark, and he was looking ahead, because he did not want to hit anybody, and sometimes there were objects on track, and they have to go through that part of town very carefully. If a motorcar strikes something it will juimp the track. The car was a small one. There was nothing else witness could have done .after he discovered the people. The wheels slid on the rails. They were wet. A car cannot be stopped on a wet rail as quickly as on a dry one. Witness said he was coming between twelve and fifteen miles, an hour. He had been driving faster, but it was dark, and he could not see the rail or anything else. Had seen a few pedestrians every day up and down the road. The majority .of them walk on the side, each side of the track.
Witness had been with the company nineteen months. It was about eight o’clock or a little bit after when the car struck the women. He was not aware that there might be anybody on the track at night, but cannot say that he had ever been along- there at that time of night before. He was looking for any obstacle. Was running the car with caution, so he could stop it. Saw these people possibly 30 or 10 feet. That was as far as he could-see. He could stop'the car in 100 or 125 feet. Witness could not see the rails. Had no light, but did not expect people out at that time of the night.
There are several witnesses that testified for the defendant and corroborated Walter’s testimony as to the people using the track.
The defendants, in their prayer for instruction No. 1, asked the court to instruct the jury to return a verdict for the defendants. Among other prayers, they also as'ked instruction No. 8, as follows:
“If you find from a preponderance of the evidence that the plaintiffs came from their home on Smith Street, on the north side of the railway track, out to the track and between the rails, and were walking 'between the rails along the track when struck by the motor-car; that neár or adjacent to the railway and parallel with it was a gravel road; that upon the side of the road nearest the railway track was a pathway used by pedestrians; that on each side of the railway and at the end of the ties, but on the dump or grade, were well-beaten paths used' by pedestrians; and that, instead of using or walking upon the road or any of these paths, the plaintiffs, Jennie Tankersley and Ollie Bellars, without any necessity therefor, elected to walk between the rails, then, in so doing, they were guilty of contributory negligence, and cannot recover in this suit.”
The court refused above prayer for instruction,, to which the defendants duly excepted.
From a judgment in favor of the plaintiffs is this appeal. The cause as to Mrs. Tankersley has been settled pending this appeal, and therefore only the appeal of the defendant as to Mrs. Bellars remains.
Giving the evidence its strongest probative force in favor of the appellee, Mrs. Bellars, she was a bare licensee. She was not on the tracks under circumstances which constituted an implied invitation on the part of the railway company to use its tracks as a footpath.- The appellee herself and her companion, Mrs. Tankersley, both testified that there was a path on each side of the railroad tracks and a path leading up on the tracks “where everybody who wanted to walked — it was the ordinary way for them to go; children, men and women, went that way.” Nevertheless the railway company did not extend to them any invitation, either express or implied, to use its tracks for- a footpath. Travelers went that way purely from their own volition, because they thought it smoother or more convenient, and the railway company merely passively acquiesced in such use of it. While the railway company did not forbid foot travelers to use its tracks, it certainly did not invite them to do so by any conditions which it created causing the foot travelers to use its tracks.
In Mo. & North Ark. Ry. Co. v. Bratton, 85 Ark. 326, 108 S. W. 518, passengers going to and from the station were accustomed to use the roadbed for a short distance. The passengers, when they arrived at the depot, usually went along the tracks of appellant in going to the town of Leslie, which was some distance from the railway station. In that case we held that the jury were warranted in finding that Bratton was on the tracks by the implied invitation of the railway company.
In Moody v. St. L. I. M. & S. R. Co., 89 Ark. 103, 115 S. W. 400, 131 Am. St. Rep. 75, the railway company permitted its roadbed to obstruct-the natural drainage of water from an adjacent street so that it washed away the sidewalk, in consequence of which pedestrians used the railroad track as a footpath. Under these circumstances we held that foot travelers were using the railroad track as a highway by at least the implied invitation of the railway company.
In Arkansas-Louisiana Ry. Co. v. Graves, 98 Ark. 638, 132 S. W. 992, Graves, the plaintiff, was on a footpath crossing the railroad track that had been openly and notoriously used by the public as a crossing and as one of the approaches to the depot platform. -Those who used the .crossing did so, not only by permission, but upon the implied invitation of the company.
In all the above cases the parties injured had a right to be on the railway tracks because they were invitees or licensees. But no such circumstances exist in the case at bar. Appellee, as we have stated, was not on the railway tracks by invitation of the railway company. Appellee was on the railway tracks under practically the same circumstances as shown in the case of St. L. I. M. & S. R. Co. v. T'ucka, 95 Ark. 190-194, 129 S. W. 541, 542, wliere Judge Battle, speaking for the court, said:
“It was proved that the deceased and many others had for many years used a part of the railroad track upon which he was killed as a pathway, and had thereby acquired the right of licensees thereon. But this did not exonerate him from the perils of his situation while upon the track. * * * He was there without invitation and at Ills own peril, and was guilty of contributory negligence. There was no evidence that the appellant discovered him in time to protect him against injury, and his administratrix had no right to recover damages.”
Another case almost parallel on the facts, and precisely so in doctrine, is that of the C., R. I. & P. Ry. Co.v. Payne, 103 Ark. 226, 146 S. W. 487, 39 L. R. A. (N. S.) 217, where we said :
“The undisputed evidence shows that appellee was a mere or bare licensee. She was using the footpath upon appellant’s right-of-way for her own convenience, and not for any purpose connected with the business of appellant or for the common interest or mutual benefit of appellant and appellee. Appellant did no affirmative act to compel or induce appellee to use the footpath upon its right-of-way. It merely acquiesced in such use by appellee and the public. Under such circumstances it cannot be said that there was any implied invitation upon the part of appellant for the use of its right-of-way by appellee. Appellant therefore did not have to exercise ordinary care to make the pathway safe for appellee.”
Appellee was likewise on the track under the same circumstances as in the case of Todd v. Ry. Co., 106 Ark. 390-392, 153 S. W. 602. Todd was on the crossing, which was the usual route of pedestrians crossing the railroad track. It was the usual custom of people going in that direction to use that path over the railroad track. The court, in that case, at page 397 (153 S. W. 604), used the following language:
“This ease is unlike the cases where parties injured are upon the railway -company’s track or right-of-way not only by permission but upon the implied invitation of the .company. In such cases the railway company owes the duty of exercising ordinary care to avoid injury. Nor is it like the cases of travelers at a public crossing, where the right to use the public highway is not by permission of the company, but by virtue of the law. In all such cases the railway company owes to the traveler the duty of exercising care to avoid injuring him. But the present case is differentiated from the above by reason of the fact that the appellant here was not upon the track of the railway company at the time of the injury by reason of any invitation of the company, either expressed or implied. He was not about any business pertaining to the company, and, as already stated, he was a bare licensee.”
In many cases before the lookout statute, which does not apply here, this court has held that a railroad company owes trespassers and bare licensees no affirmative duty of care, and only the duty not to' willfully or wantonly injure them, or the duty to exercise ordinary care not to injure them, after discovering their peril and inability to escape. To bare licensees railroad companies owe no affirmative duty of care, for such licensees take their license with the concomitant perils. Ark. & La. Ry. Co. v. Sain, 90 Ark. 278-284-285,119 S. W. 659, 22 L. R. A. (N. S.) 910; See also St. L. I. M. & S. R. Co. v. Pyles, 114 Ark. 218, 169 S. W. 580; St. L. I. M. & S. Ry. Co. v. Duckworth, 119 Ark. 246, 117 S. W. 1148; Mitchell v. Ozan-Graysonia Lumber Co., 151 Ark. 6, 235 S. W. 44; Knight v. Farmers’ & Merchants’ Gin Co., 159 Ark. 423, 252 S. W. 30.
In Knight v. Farmers’ & Merchants’ Gin Co., supra, we said:
“In all 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 his 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 doctrine is firmly embedded-in the jurisprudence of our State, and thus far no case has arisen of peculiar or unusual circumstances calling for an exception or modification' of the doctrine, which in some jurisdictions is the case. See 3 Elliott on Railroads, § 1795 (1257) and cases there cited; 33 Cyc. 779-80, 22 R. C. L. 970; Mason v. Southern Ry. Co., 58 S. C., 36 S. E. 440; Southern, Ry. Co. v. Chapman, 124 Ga. 1026, 53 S. E. 693, 6 L. R. A. (N. S.) 283, 4 Ann. Cas. 675, where the Supreme Court of Georgia, through Judge Lumpkin, discusses the subject in a learned opinion. The case of Davis v. Scott, 151 Ark. 34-44, 235 S. W. 407, is not in conflict with the doctrine above announced in all our cases. Neither does that case state an exception or modification to the above doctrine of our cases. The case differs from the case at bar on the facts. Likewise the cases of St. L. S. W. Ry. Co. v. Mitchell, 115 Ark. 339, 171 S. W. 895, Ann. Cas. 1916E, 317; Cook v. Mo. Pac. Rd. Co., 160 Ark. 523, 254 S. W. 680; and Jonesboro, L. C. & E. R. Co. v. Wright, 170 Ark. 815, 281 S. W. 374, are not applicable here. The Mitchell case, supra, although a motor-car case, was nevertheless a public crossing case, and the Cook case and the Wright case were public crossing cases. These cases all arose since the passage of the lookout statute, § 8568, C. & M. Digest, and none of them are applicable here.
We do not mean to decide, and do not decide, that there may not be peculiar circumstances calling for modification or exception to the rule. It will be time enough to recognize a modification or exception to the rule when a case is presented that calls for a modification or exception. Here the appellee was an adult, in the full possession of all her faculties. She deliberately chose to walk: upon the railroad tracks to subserve her own convenience, when there were other ways she might have gone and been wholly free from danger of passing trains or motor-oars. The undisputed evidence shows that she chose this way because it was a way frequently traveled by pedestrians, and she deemed the same a more convenient or pleasant way to go rather than to pursue the paths along* the sides of the track that involved no danger whatever. Under such circumstances appellee is nothing more nor less than a bare licensee, and is not in an attitude to claim that, the appellant is liable to her under a modification or exception that might perhaps be made under other peculiar and extraordinary circumstances.
The record presents a typical case of a bare licensee, and, since the cause .must be reversed on this ground, we find it unnecessary to consider any other. It follows from what we have said that the court erred in refusing appellant’s prayers for instructions Nos. 1 and 8, set out above. For the error indicated the judgment is reversed, and the cause is remanded for a new trial.
Humphreys and Mehafpy, JJ., dissent'. | [
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G-reenhaw, J.
On October 24, 1929, J. J. McCord and Helen McCord, his wife, executed and delivered to W. F. Linke their promissory note for $300, payable in six annual installments of $50 each, the first installment becoming’ due October 24,1930, and the remaining installments becoming due on October 24 of each year thereafter, the last installment being* due October 24,. 1935. The note bore interest at the rate of ten per cent, per annum, payable annually after maturity until paid. It provided that if any annual installment was not paid when due all installments' might become due and payable immediately, at the option of the holder. This option was never exercised.
To secure the payment of the note, Mr. and Mrs. McCord duly executed and delivered to W. F. Linke their real estate mortgage on a 40-acre tract in Clay county, Arkansas. Thereafter the mortgagors conveyed the mortgaged property to Pearl Spradling. She later conveyed to James M. Holden. Holden conveyed to Noel and Lillian Large, who in turn conveyed the property, on October 29, 1937, to J. F. Kirk, appellee herein.
The mortgage was duly filed for record in November, 1929. No payments were made on this note, and on October 22, 1940, suit to foreclose the mortgage was filed in the Clay chancery court, eastern district. The mortgagors and all subsequent owners of the mortgaged property except appellee were made parties defendant. Summonses were issued for part of the defendants, and a warning order for the nonresident defendants. For some reason appellee, who at that time owned the property and was in possession thereof, was not made a party defendant.
In April, 1941, judgment was entered for the entire amount of principal and interest due on said note, and a decree of foreclosure and order of sale entered. The sale was advertised to take place on July 11,1941, and on July 7 appellee filed his intervention in this proceeding’, in which he contended that the entire indebtedness was barred by the statute of limitation, asked that the decree theretofore entered be set aside and that title to the property involved -be quieted and confirmed in bim. Thereafter the court set aside the former decree, and held that the cause of action was barred, dismissed the complaint for want of equity and quieted and confirmed title in appellee, from which is this appeal.
In an action upon a note and to foreclose a mortgage, the five-year statute of limitation is applicable. In the instant case the first five annual installments were clearly barred by the statute of limitation, they having become due on the 24th day of October in 1930, 1931, 1932, 1933 and 1934.
In 34 American Jurisprudence, p. 114, § 142, we find the following statement which supports our holding in this case: ‘£ The rule is firmly established that when recovery is sought on an obligation payable by installments, the statute of limitation runs against each installment from the time it becomes due; that is, from the time when an action might be brought to recover it.” See, also, Bush v. Stowell, et al., 71 Pa. 208, 10 Am. Rep. 694; 17 R. C. L., p. 769, par. 135.
In Wood on Limitations, 4th Ed., vol. 1, p. 731, it is stated: “Where a note or bill is made payable by installments, the statute attaches to and begins to run upon each installment as it becomes due.”
The suit to foreclose was filed two days before the last installment would have been barred by the statute of limitation. The fact that appellee, the present owner, was not included as a defendant in the foreclosure suit at the time it was filed, and thereafter intervened in the case a few months more than five years from the due date of the last installment, did not enable him to invoke the statute of limitation as to the last installment.
In Rowland v. Griffin, 179 Ark. 421, 16 S. W. 2d 457, it was held that a decree foreclosing a mortgage is not void for failure to make a subsequent purchaser from the mortgagor a party, since his only right in the property is an equity of redemption, which is not cut off. To the same effect is Livingston v. New England Mortgage Security Co., 77 Ark. 379, 91 S. W. 752.
Having concluded that the lower court erred in failing to render judgment for the sixth installment, includ ing interest, and in failing' to enter a decree of foreclosure and order of sale, the decree is reversed and the cause remanded with directions to enter a decree in conformity with this opinion. | [
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Humphreys, J.
Appellant was indicted for selling whiskey in the circuit court of Greenwood District of Sebastian County, and subsequently on? the 10th day of January, 1928, was convicted and adjudged to serve a term of one year in the State Penitentiary as a punishment for the crime, from which judgment this appeal has been duly prosecuted.
On the day of her conviction she filed a motion for a new trial, which was overruled on the following day. She then prayed an appeal to the Supreme Court, which was granted. On the first day of February following, during the same term of court, she filed a motion to set the verdict aside and to grant her a new trial on account of the misconduct of Carter and Hannah, two of the jurors who tried her case, upon the additional ground that they obtained information about her case and talked to each other concerning the same while separated during the noon hour, contrary to the admonition of the court. ’The allegation of misconduct in the amended motion for a new trial was. supported by three affiants, one of them being appellant’s husband, to the effect that, on the day of the trial, while said jurors were eating dinner, during their separation .by permission of the court, they talked about appellant’s case, saying that, from all outside reports about people being drunk and fighting at appellant’s house, she was bound to be guilty, whether what the officers found in her house was liquor or not. It was alleged in the motion that appellant received no information of the conversation or that the two jurors had talked to parties during the noon recess, until after her conviction. The jury were unable to agree upon a verdict before dinner, but did agree and return a verdict of guilty a short time after the noon recess.
Appellant assigns as reversible error the refusal of the court to grant a new trial on account of the alleged misconduct of said jurors.
The uncontroverted affidavits filed by appellant in support of her motion for a new trial made a prima facie case of misconduct on the part of the two jurors. Shropshire v. State, 86 Ark. 481, 111 S. W. 470; Brackenridge v. State, 27 Tex. App. 513, 11 S. W. 630, 4 L. R. A. 360.
Receiving information .by jurors relative to the merits of a case they are trying, except in open court and in the manner provided by law, is improper. Capps v. State, 109 Ark. 193, 159 S. W. 193, 46 L. R. A. (N. S.) 741, Ann. Cas. 1915C, 957.
The State did not contradict the statement contained in the affidavits, hence they must be accepted as true. The integrity of the trial was impeached by allowing the jurors to receive information of appellant’s guilt or circumstances tending to show her guilt from other sources than through the sworn testimony of witnesses in the case, introduced and examined in the regular way. According to the trend of conversation between the two jurors, the outside reports which they received influenced them in arriving at the guilt of appellant.
It cannot be successfully contended that appellant was negligent in filing her amended motion for a new trial. The knowledge of her husband was not attributable to her on account of the marital relationship. Under our statutory system of criminal procedure a defendant is allowed to move at any time during the term of court at which convicted to set the verdict aside on account of the misconduct of any of the jurors trying the case. Section 3218 of Crawford & Moses’ Digest provides that the application for a new trial must be made at the same term at which the verdict is rendered, unless the judgment is postponed to another term, in which case it may be made at any time before judgment. It was said in the case of Corning v. Thompson, 113 Ark. 237, 168 S. W. 128, that a motion for a new trial should be made at the same term at which the judgment is rendered.
The judgment is reversed, and the cause is remanded for a new trial. | [
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Hart, C. J.
L. A. Conley prosecutes this appeal to reverse a judgment of conviction against him for the statutory crime of possessing a still.
The first assignment of error is that the evidence is not legally sufficient to support the verdict. Accord ing to the evidence for the State, two Federal prohibition agents met L. A. Conley and his wife on the main road, just before they got to Boyd, in Miller County, Arkansas. It was late in the evening, and the Conleys were going towards home. There had been no other cars along the road, and the prohibition agents backtracked the car of the Conleys, or followed its tracks .back to where it had come from. Where the car had stopped there was a turn-around which had been used in turning the car around on other occasions. Near where the car had been stopped and turned around the officers found a complete two-hundred-gallon copper still with a 3-ply 16-foot copper worm. The worm was lying in a branch near by, and the branch had been dammed up. The still was complete except for the cap. The officers returned to the place on the next morning and discovered L. A. Conley and his wife within 15 or 20 feet of the still. They approached them and arrested them when they had got about 50 yards or more away from the still. The officers found that the still had just been wiped out with some rags. Among the rags they found a piece of cloth that matched the dress of Mrs. Conley. They followed a woman’s tracks leading from the. still, and found a cap which just fitted the still. They went back to the Conleys ’ house, and found some sheet copper under it. They also found a workbench in some open woods about 50 yards from his house, and on it were some pieces of sheet copper. About 16 barrels of mash were found by the officers at the still, and the still had been wiped out, evidently for the purpose of making a run. This evidence was legally sufficient to support a verdict of guilty.
It is true that, according to the evidence for the defendant, he and his wife were hunting work, and did not own the still or have it in their possession. The jury, however, were the judges of the credibility of the witnesses, and might have believed, under the attendant circumstances, that the defendant was in possession of the still. He was seen by the officers going from the direction where the still was found, late one evening, and his car tracks led to a place near the still, and the ground indicated that the car had been turned around there several times. Early the next morning the defendant and his wife were found within 15 or 20 feet of the still, and a piece of goods which matched his wife’s dress was found among some rags which appeared to have been used in wiping out the still.
■Counsel for the defendants claim that it was prejudicial error to admit as evidence testimony to the effect that the piece of goods found near the still appeared to have been a piece of his wife’s dress. We do not think so. This was evidence of a substantive fact, and the jury might have inferred, from the fact that the piece of dress goods was found among other rags which had been used by some one in wiping out the still, that it was so used by the defendant, for the reason that it was a piece of the dress goods of his wife.
It is next contended that it was error for the court to refuse to permit the defendant’s wife to testify that the piece of cloth did not come off her dress, and that the tracks leading from the still to the place where the cap was found were not her tracks. The wife was not a competent witness for or against her husband, and there was no error in excluding her evidence from the jury. Woodard v. State, 84 Ark. 119, 104 S. W. 1109; Padgett v. State, 125 Ark. 471, 188 S. W. 1158; and Gin Fuey Moy v. United States, 254 U. S. 189, 41 S. Ct. 98, 65 L. ed. 214.
But it is claimed that the general rule has been ■changed by % 6178 of Crawford & Moses’Digest, which provides:
“No'person shall be excused from testifving before the grand jury or on the trial in any prosecution for any violation of this act; but no disclosure or discovery made by such person is to be used against him in any criminal or penal prosecution for or on behalf of the matters disclosed.”
This act was passed by the Legislature of 1917, and Was part of an act prohibiting the shipment of intoxicating liquors into the State and the transporting of the- same within the State, and for other purposes regulating and prohibiting the sale and storage of intoxicating liquors. It was not intended to repeal, change or alter the rule with regard to the admission or exclusion of the testimony of husband and wife for or against each other. The purpose of the statute was simply to prevent the testimony given on any prosecution for a violation of the act from being used against the person giving it in any criminal trial which involved the matters disclosed. Hence we hold this assignment of error is not well taken.
It is next contended that the court erred in refusing to give instructions Nos. 5 and 9 asked by the defendant. Instruction No. 5 in effect told the jury that, before it could convict the defendant, it must find from the evidence, beyond a reasonable doubt, that the defendant was present when the crime was committed, and had the still in his possession. In other instructions given by the court the jury was told that, if it should find from the evidence, beyond a reasonable doubt, that the defendant, in Miller County, Arkansas, at any time within three years before the indictment was returned, had in his possession a still, it would be its duty to convict the defendant. Thus it will be seen that the matters embraced in instruction No. 5 were contained in the instructions given by the court.
In instruction No. 9, requested by the defendant, the jury was asked to be instructed that, before it could convict the defendant, all the facts and circumstances considered together must be inconsistent with anv reasonable hypothesis except that be is guilty. The court instructed the jury fully and fairly on the question of reasonable doubt and the presumption of innocence which accompanies the defendant throughout the trial, and expressly told the jury that it must 'find, beyond a reasonable doubt, that the defendant was the owner of the still, or exercised control over it, before he could be convicted. This was sufficient. Bost v. State, 140 Ark. 254, 215 S. W. 615.
We find no prejudicial error in the record, and the judgment will therefore be affirmed. | [
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Paul Ward, Justice.
Eugene Myrick (appellant) was charged with the crime of “assault with intent to kill” his wife, Louise Myrick. He was likewise charged with the same crime against his mother-in-law, Mrs. Strope. Both assaults were alleged to have occurred at the same time and place — on November 4, 1967 at the home of Mrs. Strope.
Upon trial, appellant was found guilty, as charged, of the assault on his wife and his punishment was fixed at imprisonment in the penitentiary for three years. He was found guilty of an aggravated assault upon Mrs. Strope, was fined $50 and imprisoned in the county jail for thirty days.
Appellant now seeks only to reverse the conviction for assault with intent to kill his wife. Set out below is a brief statement of the background facts.
Appellant and his wife have been married for sixteen or seventeen years, and they have five children who range in age from eight to fifteen years. To put it mild ly, their marriage has been turbulent, having separated some fifty times. About two weeks before the occurrence here in question (On November 4, 1967) Mrs. Myrick left home and moved into the home of her mother — Mrs. Strope. On the date last mentioned appellant went over to Mrs. Strope’s house to give his wife $60 out of his weekly paycheck. While there the assaults took place. Mrs. Myrick was stabbed by appellant with a pocket knife twelve times about the arms, neck and torso. The picture introduced in evidence showed considerable blood on the floor and furniture. When Mrs. Strope attempted to protect her daughter she was stabbed five times. Appellant does not deny that the assaults took place, nor does he deny the extent of the injuries inflicted.
We have concluded that the case must be reversed because of the trial court’s refusal to give appellant’s requested instruction which reads:
“The charge of assault with intent to kill requires that the defendant have a specific intent to take the life of the person assaulted. And in this connection if you find from a preponderance of the evidence that at the time of the doing of the thing charged the accused was so drunk that he could not have entertained the intent necessary to constitute the crime, then you wdll acquit the defendant of the crime of assault with intent to kill.”
Appellant saved his exceptions to the court’s refusal to give the requested instruction,
In the case of Chowning v. State, 91 Ark. 503, 121 S. W. 735, this precise question was under consideration. Appellant was convicted “of the crime of an assault with intent to kill one Lewellen”, and the trial court refused to give appellant’s requested instruction which, in material part, reads:
“If you find and believe from the evidence that the defendant was intoxicated to that extent that he was not conscions of what he was doing, being drunk to the extent that he could have no specific intent to kill, under the láw he would not be guilty ... of an assault to kill.”
In reversing the trial court, this Court said:
“To constitute the crime of an assault with intent to murder or kill ... a specific intent to take the life of the person assaulted must be shown.”
# # *
“Where the offense can be committed only by doing ‘ a particular thing with a specific intent, it may be shown that at the time of doing the thing charged the accused was so drunk that he could not have entertained the intent necessary to constitute the crime.’ ”
It can hardly be contended here that there was no testimony to justify giving the instruction requested by appellant. Appellant testified, without contradiction, in substance: Every time my wife would leave me I would start drinking; This time I had been drinking fifteen days with nothing to eat and no sleep; On November 3rd when I got off from work I started drinking and drank until I could drink no more; I got off at 3:30 p.m. (on the day of the assault). I went to the tavern and drank six or seven beers before going to see my wife; on the way over I stopped and got another beer; and then I bought a half pint of whiskey and drank half of it; and when I got to the house my wife sent up and got six beers and they brought that down there — and I don’t know — I drank one or two of the beers; by then I was so drunk I didn’t hardly know what was happening. I don’t remember every thing that happened.
In view of what we have said above, we conclude that the judgment must be reversed and the cause remanded for a new trial, and it is so ordered.
We have examined the other alleged errors hut find no merit in them.
Reversed.
Fogleman, J., disqualified.
Harris, C. J., and Jones, J., dissent. | [
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George Rose Smith, Justice.
Fourteen separate in- formations were filed against the appellant, J. Ernie Gaskin, charging* that he had violated § 7 of the Arkansas Securities Act, Ark. Stat. Ann. § 67-1241 (Repl. 1966), by selling Americana Motor Inns corporate stock to certain residents of Lee county with knowledge that the securities had not been registered as required by the Act. Upon trial the jury found Gaskin guilty of every offense charged and fixed his punishment for each offénse at a fine of $1,000. and imprisonment for one year. This appeal is from a judgment entered on the verdict.
We need not detail the State’s proof. Gaskin was the president of a company that was a registered dealer in securities. He did not deny that his salesmen had made the asserted sales of Americana stock to the purchasers who testified for the State. His defense was that the stock did not have to be registered, because he had obtained an exemption under § 14 (b) (9) of the Act, which exempts (upon certain conditions) “any transaction pursuant to an offer directed by the offeror to not more than twenty-five (25) persons.” Ark. Stat. Ann. § 67-1248 (b) (9). That subsection goes on to provide that the Securities Commissioner may by rule or order further condition the exemption.
The State, in presenting its case in chief, attempted to anticipate and rebut Gaskin’s expected defense by proving that he had not complied with the Commissioner’s rules governing what we may call the 25-offerees exemption. The Commissioner, called as a witness for the State, testified that his department had adopted a rule requiring an applicant for that particular exemption to file a list of the names of the 25 proposed of-ferees “so we will know who they are.” It was then shown that the names of the fourteen purchasers referred to in the informations against Gaskin were not included in the list of 25 names that Gaskin had filed in obtaining the exemption for Americana corporate stock. Upon that proof the State contended below, and contends here, that Gaskin was guilty as charged.
We cannot sustain that argument. Section 21 (a) of the Act (§ 67-1255 [a]) provides that a violation of the statute is a felony punishable by a fine of not more than $5,000 or by imprisonment for not more than three years, or by both. By contrast, § 21 (b) (§ 67-1255 [b]) provides that a violation of any authorized rule or. order of the Commissioner is a misdemeanor punishable by a fine of not more than $500 or by imprisonment for not more than six months, or by both.
Gaskin was charged and convicted under the felony provisions of the Act, but the proof does not support the conviction. The statute, being penal, must be construed strictly. It simply provides an exemption with respect to an offer of securities directed to not more than 25 persons (with other conditions not now relevant). It is plain enough that the statute, when read without reference to the Commissioner’s implementing rule, was not violated by the sale of Americana stock to only fourteen persons.
Under our practice, when the evidence does not support the jury’s verdict of guilty with respect to the offense charged, but does support a finding of guilty with respect to a lesser included offense, we may reduce the judgment accordingly unless the Attorney General elects to take a new trial. Green v. State, 91 Ark. 562, 121 S. W. 949 (1909). Here, however, even if it can be said that the proof establishes Gaskin’s commission of a misdemeanor (or fourteen misdemeanors), that offense is not included within the felony with which he was charged. “To be an included offense, all the elements of the lesser offense must be contained in the greater offense — the greater containing certain elements not contained in the lesser.” Beck v. State, Ind., 149 N. E. 2d 695 (1958). See also Wharton’s Criminal Law, § 33 (12th Ed. 1932); Moreland v. State, 125 Ark. 24, 188 S. W. 1, L.R.A. 1917A, 140 (1916); State v. Nichols, 38 Ark. 550 (1882).
The statutory definition of the 25-offerees exemption contains no requirement whatever that a list of names be filed with the Commissioner. That substantive step may well have been a proper implementation of the statute under the Commissioner’s rule-making power, but the evidence to establish a violation of the Commissioner’s rule must unquestionably encompass an element (the offer of the securities to a person not named on the list) not included within the felony denounced by the statute. Hence we cannot properly reduce the felony convictions to misdemeanors.
The judgment is reversed, and, since the State may be able to prove that the securities were actually offered to more than 25 persons, the cause is remanded for a new trial.
BbowN, J., not participating. | [
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Mehafey, J.
The appellee, Mrs. G. W. Adkisson, agent, brought suit in the chancery court of Faulkner county against Joe MeCuin and Wayne Tilmon, county administrative assistant. She alleged that Joe MeCuin was indebted to her and, for a valuable consideration, agreed to indorse and deliver to her a certain rental check drawn by the United States Government in favor of the defendant; that said rental check had been duly issued by the United States Government and was now in the hands of the defendant, Wayne Tilmon, county administrative assistant, who is threatening to deliver said check to the defendant, Joe MeCuin; that MeCuin was threatening to cash the same and not deliver same to plaintiff. She alleged that MeCuin was indebted to her in the sum of $258.91 upon a certain promissory note. A copy of the note was attached and made part of the complaint; that MeCuin is insolvent and has no property out of which she can collect said indebtedness and if the check is turned over to the defendant, he will cash same and fail and refuse to pay the plaintiff, and the plaintiff will thereby suffer irreparable injury and damage, and she has no adequate remedy at law. The amount of said check payable to MeCuin is in the hands of Wayne Tilmon and is in the amount of $72.80.
A temporary restraining order was issued and served, and the appellee then filed an amendment to her complaint and alleged that the check was issued by Secretary of Agriculture or some other agent of the Federal Government and is a negotiable bill drawn on the United States Treasury payable to the .order of Joe MeCuin and was in payment of the amount due to said defendant from the federal government in compliance with the conservation program of the federal government by said defendant while a tenant on plaintiff’s farm in Faulkner county during 1940. All the work to be done by defendant MeCuin for which said check represents payment has been performed in full and accepted by the government officials who have determined that said amount is due to Joe MeCuin. The defendant, Wayne Tilmon, as administrative agent, has no interest or control over the proceeds of said check and does not have any discretion or power witli reference to said check or the proceeds thereof. Said check has been sent to the defendant, Tilmon, and is in his hands solely for the purpose of delivering same to Joe McCuin.
Joe McCuin did not appear or answer and there is no dispute about the indebtedness and no dispute about the fact that the work was done and accepted by the government, for which the check was issued.
Defendant, Wayne Tilmon, county administrative agent, filed a motion to dismiss, alleging first that the Secretary of Agriculture of the United States is a necessary and indispensable party and has not been made a party thereto; second, that this action contravenes the statutes of the United States, to-wit: 16 U.S.C.A. 590h; third, the complaint does not state facts sufficient to constitute a cause of action against this defendant; fourth, the court is without jurisdiction over the subject-matter of this'action; and fifth, that'the court does not have jurisdiction over this defendant in his official capacity as county administrative assistant.
The court entered the following decree: “Now on this day comes the plaintiff, Mrs. G-. W. Adkisson, agent, by her solicitor, R. W. Robins, and comes the defendant, Wayne Tilmon, county administrative assistant, by J. E. Lightle, Jr., assistant United States attorney for the Eastern District of Arkansas, and the defendant, Joe McCuin, comes' not, though duly served with process herein for the time and in the manner prescribed by law', and this cause coming on to be heard upon the motion to dismiss filed herein by the defendant, Wayne Tilmon, county administrative assistant, and being well and sufficiently advised, it is by the court considered, ordered, adjudged and decreed that the said motion to dismiss be and the same is hereby overruled, and the said defendant, Wayne Tilmon, county administrative assistant, electing to stand upon said motion and declining to plead further herein, it is by the court considered, ordered, adjudged and decreed that the plaintiff do have and recover of and from the defendant, Joe McCuin, the sum of $258.91 and all costs of this suit, and that the defendant, Wayne Tilmon, county administrative assistant, be and he is hereby ordered, enjoined and required to deliver to the clerk of this court, for the plaintiff, the check for $72.80 heretofore issued by the Secretary of Agriculture of the United States, or his agents, payable to the defendant, Joe McCuin, and the defendant, Joe McCuin, is hereby ordered, enjoined, and required to indorse said check, and the clerk of the court will thereupon deliver same to the plaintiff, and the proceeds of said check, when collected by the plaintiff, shall be credited upon the judgment against the defendant, Joe McCuin, herein; and the plaintiff may have execution or other process upon this judgment as upon a judgment at law.
“The defendant, Wayne Tilmon, county administrative assistant, excepted and objected to the above ruling of the court, and to the foregoing decree, and prayed an appeal therefrom to the Supreme Court of Arkansas, which was granted. Entered this 6th day of September, 1941.”
The case is here on appeal.
The defendant, McCuin, did not answer and did not claim that he did not owe the indebtedness mentioned in plaintiff’s complaint. In fact, it is conceded that he owes the debt and that he was given the check in payment of work which he had completed and which had been accepted by the government. There is no claim by the government or any of its agents that it or any of its agents have any interest in the check or in this controversy. The appellant, Tilmon, does not claim any interest and does not claim that he has any duty to perform with reference to the check, except to deliver it to McCuin.
It is first contended by the appellant'that the remedy sought expressly contravenes the federal statutes. We do not think it contravenes any federal statute or any decision of the United States court.
Appellant not only claims this contravention of the statutes, but he calls attention to the case of Graves Bros., Inc., v. Lasley, 190 Ark. 251, 78 S. W. 2d 810, contending that that case prevents the maintenance of this suit. The facts in that case are so unlike those in the case at bar that it really is no authority for this case. HoAvever, the court there said: ‘ ‘ The courts commonly concur in holding that public policy forbids any interference between the court and its contractor under such circumstances if the work is still in progress, for the interferences would tend to retard the occupancy of the building. But here the complaint alleges that the work has been completed. There is no longer any public interest to be subserved by withholding payment from the contractor, and no reason for withholding the debt from the reach of the remedy in this sort of proceeding.”
Appellant also.calls attention to the case of Federal Land Bank of St. Paul v. Bismarck Lbr. Co., 314 U. S. 94, 62 S. Ct. 1, 86 L. Ed. . That case involved the validity of a sales tax on the Federal Bank by the State of North Dakota, and the court said: “Through the land banks the federal government makes possible the extension of credit on liberal terms to farm borrowers. As part of their general lend-functions, the land banks are authorized to foreclose their mortgages and to purchase the real estate at the resulting,sale. They are ‘instrumentalities of the federal government, engaged in the performance of an important governmental function.’ Federal Land Bank v. Priddy, 295 U. S. 229, 55 S. Ct. 705, 79 L. Ed. 1408; Federal Land Bank v. Gaines, 290 U. S. 247, 54 S. Ct. 168, 78 L. Ed., 298. The national farm loan associations, the local co-operative organizations of borrowers through which the land banks make loans to individuals, are also federal instrumentalities.”
It is unnecessary to review all the authorities cited. We know, however, of no statute or decision of the court that prohibits a suit of this character. Numbers of the authorities are reviewed in the oases above cited. In the case of Federal Land Bank v. Priddy, supra, this court said: “The second contention of petitioner in support of its request for writ of prohibition is that the Federal Land Bank of St. Louis, Missouri, is an instrumentality of the government of the United States, and that-on that account its property is not subject to attachment. In the act authorizing the creation of said banking corporation, there is no limitation or restriction against reaching its property by attachment. We know of no law prevent ing levy by attachment against the property of corporations created by act of Congress except preventing attachment against the property of national banks before judgment is obtained against them.”.
It is next contended that the Secretary of Agriculture of the United States was a necessary and indispensable party. There seems to be no reason why the Secretary of Agriculture should be made a party. He does not claim any interest, has not asked to be made a party, and it is conceded that neither the United States nor any of its agencies had or claimed to have any interest.
"We find no error, and the decree is affirmed.
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Smith, J.
This is a suit by Clara E. Hartsell, as the beneficiary named in a policy of insurance issued by the appellant insurance company on December 29, 1925, on the life of her husband, John T. Hartsell, in the sum of one thousand dollars. The complaint alleged the issuance of the policy, the payment of the premiums, the death of the insured, and the proof of loss, and prayed judgment for the amount of the policy, with the statutory penalty and attorney’s fee, as the company had denied liability.
An answer was filed, in which the company admitted the execution of the policy, the payment of the premiums thereon, and that proof of death had been made, bnt denied liability upon the ground that the issuance of the policy had been procured through the false representations of the insured that he was in good health at the time of the issuance and delivery of the policy to him, whereas he was an invalid, and was aware of that fact.
The policy sued on was issued without a medical examination being previously required, but the insured was required, as a condition precedent to the issuance of the policy, to warrant that his health was good at the time of the delivery of the policy. This he did in the application, which contained the following recitals:
“Knowing that my age and insurability will be determined by the company by the answers and statements above made by me, as no medical examination is required of me by the company for determining such facts, I hereby state that I have, before signing this application, read or had read to me each of the foregoing answers and statements, and I state that each of such is unqualifiedly true. I therefore warrant that each answer and statement reflects an existing fact and that the company may rely upon them to such extent. I agree that, in the event any such answer be discovered to be erroneous or false, or, in the event any such statement be discovered to be erroneous or false, even though such be deemed immaterial by me or the beneficiary, then, in either event, this policy shall stand canceled as of the date of its issuance, and this regardless of the date of the discovery of such breach. I further warrant that the statements and answers above set forth are complete, and that I have made no statement or answer touching upon any of the above questions or statements to any agent of the company except as above set forth, and I hereby bind myself and beneficiary to the truthfulness of this warranty; and further, I agree that the policy to be issued on this application shall not be in force or effect until and unless it be delivered to me while I am in good health and alive. In the event I should become ill or die between the date of this application and before such delivery of the policy to rue, then it is agreed that any premium paid with the application shall be returned to me or my legal representatives, the application to be treated as withdrawn.”
The answer alleged that the insured was not in good health when he made his application, nor when the policy was delivered, which facts were well known'to the insured, and that the policy was therefore fraudulently obtained.
The insured was lan active soliciting agent of the appellant company, and sent in his own application, and received his policy directly from the company.
Under the admissions of the answer the plaintiff introduced the policy and rested, whereupon the defendant called appellee as a witness. She admitted signing the following statement, which was offered in evidence:
“April 14-26, as to John T. Hartsell. Moved to Brinkley in Jan. 1926. Was sick 2 weeks. Died 16 Feb. Week with flu and week with pneumonia. Rented from Mr. Cooper house No. 4 in Brinkley and lived there all time we- paid rent. Bad cold about Dec. 1 developed in flu and pneumonia. (Signed) Clara E. Hartsell, wife of John T. Hartsell. ”
She explained this writing by stating that it was prepared by 'an agent of the company after the proof of death had been made, and that it was not read to or read by her, and she was unaware, when she signed the statement, that it recited that the insured had a bád cold about December 1 which developed “in flu and pneumonia,” and that the fact was that the insured was sick for only two weeks immediately preceding his death; that he had the influenza, which developed into pneumonia, and this caused his death, and that his illness extended over a period of only two weeks.
The defendant company offered in evidence the certificate of the physician who attended the insured in his last illness. In the blank furnished the physician for the purpose of making this part of the proof of death, the following question, among others, was asked:
“No. 12. • From your knowledge of the deceased, would you have considered him a good insurable risk on the 29th day of December, 1925?”
The blank space following this question contained no ¡answer. It is alleged that the failure to answer this question is, in effect, equivalent to the statement that the physician did not think the insured was in good health on December 29, 1925. We do not think so. The physician was not called as a witness, and, in answer to another question, in the proof of death blank, the physician stated that he saw the deceased for the first time on February 9, 1926; that the duration of the illness was two weeks, ¡and that deceased died February 16, so that the insured had been ill a week when the physician first saw him.
There was no other testimony tending to show that the insured was not in good health when the policy was delivered to him, except that of a clerk in the home office of the company, who testified that the insured had sent in no application for insurance after the middle of December, except his own.
Upon this record the court charged the jury, in view of the admissions contained in the answer, that the burden was on the defendant to show that the insured was not in good health ¡at the time the policy was delivered.
We think this instruction was correct, as a prima facie case was made when it was admitted that the premiums on the policy had been paid, that the policy had been delivered, and that proper proof of death had been made. Knights & Ladies of Security v. Lewellen, 159 Ark. 400, 252 S. W. 585; Grand Lodge of Knights of Pythias v. Whitehead,. 87 Ark. 115, 112 S. W. 199; Eminent Household of Columbian Woodmen v. Howle, 131 Ark. 299, 198 S. W. 286.
The jury found for the plaintiff for the face of the policy, and we are unable to say that the testimony does not support this finding, as it does not appear that such a showing was made that the insured was not in good health when the policy was delivered that it was arbitrary to find otherwise.
The statutory penalty provided by § 6155, C. & M. Digest, was imposed, and an attorney’s fee was. assessed, pursuant to the authority of that section, and this action is assigned as error, for the reason, as appellant insists, that it is exempt from the provisions of that section under act 137 of the Acts of 1925 (Acts 1925, page 390).
Act 137 is entitled: “An act providing for stipulated premium insurance companies operating on the stipulated premium plan, and regulating same.” Section 16 of this act provides that “all acts or parts of acts repugnant to or in conflict herewith are hereby repealed; and provided, further, that the general insurance laws of this State or any laws governing the organization and control of mutual assessment companies shall not apply to or govern companies organized under this áct.”
Act 137 applies to appellant company, and the act, which yas approved March 7, 19'25, was in effect when the policy here sued on was issued, and it is insisted therefore that the provisions of § 6155, C. & M: Digest, do not apply.
We think, however, that counsel misinterprets the purpose and effect of § 16, above quoted, as the purpose of that section was to make the organization and control of companies “operating on the stipulated premium plan” subject to the provisions of that act. Section 6155, C. & M. Digest, does not relate to the organization or control of insurance companies, as that section was passed to require prompt settlement of any liability “in all cases where loss -occurs, and the fire, life, health, or accident insurance company liable therefor shall fail ’to pay the same within the time specified in the policy, after demand made therefor,” and the provisions of that section apply to the companies named, regardless of the manner in which they may be organized or controlled.
It is finally insisted that the court erred in overruling appellant’s motion for a continuance on account of the absence of James A. Cooper, a witness subpoenaed by it. The motion for continuance recites that “defendant says that he had a subpoena- issued for the above witness about ten days ago, to appear on the 12th day of July, 1927, and that the officer has been unable to serve the same or find the witness.” There was no showing, however, as to the location of the witness, or as to when or where he might be found. It was therefore no abuse of discretion on the part of the court to overrule the motion for a continuance.
As no error appears, the judgment will be affirmed. | [
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Mehafey, J.
The appellant, on May 8, 1940, filed in the chancery court of Jackson county her complaint in 'which she claimed title to the following property: northeast quarter west of White River, section 9, township 11 north, range 3 west, containing 91.70 acres, more or less, and lots 8, 9 and 10 of Hock “Gr” of Chastain’s Addition to the city of Newport and lots 7 and 9 of block “H” in Chastain’s Addition to the city of Newport.
She alleged that said lands had forfeited for the nonpayment of taxes for the year 1934, but that said sale was void because the quorum court of Jackson county levied a tax of one-tenth of a mill for crippled children’s commission, one-tenth of a mill for crippled children’s home and five-tenths of a mill for the extension service of Jackson county, in addition to the levy of five mills for county general purposes, thereby exceeding the- constitutional limit imposed on the county by the constitution of the state of Arkansas. The appellant further alleged that the appellee, W. M. Duncan, had obtained two' deeds, dated April 19, 1940, from the State Land Commissioner of the state of Arkansas, and that said deeds constituted a cloud upon her title, and asked that they be canceled.
The appellee filed answer June 3, 1940, in which he admitted that the lands and lots described were sold for the nonpayment of taxes for the year 1934, but denied that said sale as made by the collector of Jackson county was illegal and void. He admitted that he purchased the land from the State Land Commissioner on the 19th day of April, 1938, and attached copies of his deeds. He further alleged that since he purchased said property it has been assessed on the tax books in his name, and that he had paid the taxes. He pleaded the statute of limitations as a bar to appellant’s cause of action. He denied every material allegation of appellant’s complaint.
Appellant then filed an affidavit of. tender and certified check.
On April 10, 1941, appellee filed an amendment to his answer as follows: "Defendant, for further answer to the complaint of the plaintiff, states that just prior to the time of purchasing .the lands and lots from the State Land Commissioner the plaintiff and her husband, not being’ able to redeem said lands and being- indebted to the defendant in the sum of $445.62 for groceries and supplies, sold to and delivered to the plaintiffs by defendant, agreed that if the defendant would purchase said lands in his own name from the State Land Commissioner then they would in turn execute to him a quitclaim deed for their interest in said lands and lots in full satisfaction of their indebtedness to defendant as above mentioned.
"Pursuant to said agreement, J. W. Henneberger, the husband of plaintiff, Julia J. Henneberger, went with the defendant to the state land office, Little Rock, Arkansas, on the 19th day of April, 1938, for the purpose of defendant’s purchasing the said lands and lots, at which time defendant did purchase the said lands and lots.
"That defendant prepared a quitclaim deed to be executed to him by the said J. W. Henneberger and Julia J. Henneberger and that they agreed to come to his store and execute the same and acknowledge the same before Garfield Rutledge, justice of the peace; that they promised to come on two or three different occasions, but failed to do so and never gave the defendant any .reason for such failure until this suit was brought by the plaintiff to cancel defendant’s deeds.”
■Said cause of action was submitted to the court on July 10, 1941, after the following stipulation had been introduced: "It is hereby stipulated and agreed by and between the.plaintiff and defendant and by their respective attorneys that the following facts are hereby agreed':
“That Julia Henneberger was the owner of the lands in question prior to its forfeiture to the state of Arkansas in the year 1985 for the taxes of 1934; that said lands were assessed for the year 1934, and that the real estate tax book of Jacksqn county, Arkansas, so reflect that assessment and further reflect that it was assessed in the name of Julia Henneberger and that the following taxes were levied against said lands for the year 1934:
“State ......................................................... 8.7 mills
County ...................................................... 5
Bond ............................................................ 2
School Districts .....................'........ different amounts for different districts
Road ............................................................ ! 3 mills
Cities ......................................................... 5
Crippled Children’s Comm. 1-10 “
Crippled Children’s Home-1-10 “
Extension service ......................... 5-10 “
“That said above listed millages were extended on the tax books and that said lands were sold to the state of Arkansas for said above listed millage of taxes.
“It is further agreed that the title to said lands was confirmed in the state of Arkansas on May 24, 1938.
“It is further agreed that a copy of the deed from the state of Arkansas to W. M. Duncan may be attached to this transcript.”
The appellee then introduced the following testimony: “J. W. Henneberger testified as follows: I live in Newport and am the husband of the appellant, Julia J. Henneberger, and know W. M. Duncan, the appellee, and that the land involved belonged to Julia J. Henneberger, my wife. I conveyed part of it to her several years ago. There were no judgments against me when I conveyed same. I was not with appellee the day he bought this land from the state, was not with him on April 19,1938. ’ ’
W. M. Duncan, appellee, testified: “I am the defendant in this suit and live in Newport and am in the grocery business and have been for ten years. I know Julia J. Henneberger and J. W. Henneberger. They had been trading- at my store prior to April 19, 1938, and owed me at that time $445.62. I bought the lands in question from the state of Arkansas. J. W. Henneberger owed me and claimed lie couldn’t pay me. He said lie was about to lose some of the land on account of judgments against him, and that he rather let me have it than anyone else and that we could go to Little Rock and buy it in and that if he couldn’t settle within thirty days what he owed me he would quitclaim it to me, and furthermore that his wife would be up and give me a warranty deed to the land. . . . He acted as her agent. We went to Little Rock in his car and he was with me. I prepared a quitclaim deed for them to sign, dated April, 1938, which I attached as exhibit ‘A’ to my testimony. I satisfied his account and have paid the taxes on the lands ever since, have made demand on Mr. and Mrs. Henneberger to execute deed and they have not done so.”
It is stipulated that the taxes paid by the appellee were as follows: Receipt No. 4428, $54.60; receipt No. 2323, $14.94; receipt No. 4153, $65.99; receipt No. 826, $120.51; receipt No. 310, $129.84.
This was all the evidence introduced in the case, and the court took same under advisement. On August 5, 1941, the court handed down a decree in which it held that the plaintiff, Julia J. Henneberger, prior to November, 1935, was the owner of the above described land; that she failed to pay taxes assessed and due on said lots for the year 1934 and that thereafter the lots were sold to the state of Arkansas for said taxes in November, 1937, and were duly certified to the state of Arkansas by the clerk of Jackson county; that on May 24, 1938, the title to said lands and lots was confirmed in the state of Arkansas by the Jackson chancery court in an action brought for that purpose under the provisions of Act 119 of the Acts of 1935; that on April 19,1939, by proper deed of conveyance, the State Land Commissioner sold and conveyed said lots and lands to W. M. Duncan, who has continuously paid the taxes assessed against said lots and lands from year to year since he purchased same; that this suit was brought by the plaintiff on May 8,1940, to cancel the deeds executed to the defendant by the state of Arkansas and to set aside the tax sale and the decree of that court confirming the title to said lots and land on May 24, 1938. The court held that'Act 119 above referred to was amended by Act 423 of 1941, and the court found that Act 428 was an act to provide for procedure and is therefore retroactive and that plaintiff cannot maintain her suit to cancel the deed on the ground set forth in her complaint. The court dismissed the complaint of the plaintiff as without equity.
Appellant prayed and was granted an appeal to the Supreme Court, and the case is now here on appeal.
The appellee, in the amendment to his answer, alleged that just prior to the time of purchasing the land and lots from the State Land Commissioner, the appellant and her husband, not being able to redeem said lands and being indebted to appellee in the sum of $445.62 for groceries and supplies sold and delivered to plaintiff and her husband by defendant, agreed that if defendant would purchase said lands in his own name from the state, they would in turn execute to him a quitclaim deed for their interest, in full satisfaction of their indebtedness to him. The amendment alleged that pursuant to this agreement J. W. Henneberger went with defendant to the state land office and on April 19, 19.38, for the purpose of purchasing the said lands and lots, at which time defendant did purchase same.
There was no response to this amendment filed by appellant, and she did not plead the statute of frauds. She did object to the testimony of appellee when he testified to the conveyance of the land, because she stated it was an oral agreement to convey land, and evidently meant by that that it was within the statute of frauds.
However, the undisputed evidence shows that this was an oral agreement; that the appellee paid the taxes and obtained deeds from the State Land Commissioner; paid the judgments against said land and satisfied the indebtedness of appellant and her husband of $445.62.
There is some suggestion that this was a debt of the husband and that appellant was the owner of the land. The undisputed evidence says that “they,” meaning Henneberger and his wife, owed a bill at appellee’s store. The appellant certainly owed the taxes which appellee paid, and she did not deny that appellee had performed the contract fully, satisfying* their indebtedness and thereafter continuing to pay the taxes, which she never offered to pay.
This court has many times held that part performance under an oral contract for the sale of land takes it out of the statute of frauds. In this instance, however, there is not only part performance, but there was a full and complete performance by the appellee.
In the case of Phillips v. Jones, 79 Ark. 100, 95 S. W. 164, 9 Ann. Cas. 131, this court quoted with approval from Pomeroy: “It is, therefore, now settled, after some expressions of doubt, and with a few conflicting decisions, that possession by a tenant after the expiration of his former term, and payment by him of an increased rate of rent, are together a part performance of a verbal contract for a renewal of the lease. ’ ’
Again, this court said in the case of Robinson v. Wynne, 97 Ark. 366, 134 S. W. 319: “We must assume, in the .absence of a showing in the abstract, that the writing* was sufficient to satisfy the statute of frauds. But, if that be not so, the statute is satisfied by the delivery of the timber to Coates and the agreement of Bell to pay the price, which was charged on the mortgage debt. ’ ’
In the case of Sullivan v. Winters, 91 Ark. 149, 120 S. W. 843, we said: “If that part of the contract relating to the sale of the land be held to be within the statute of frauds, it has been fully performed, and the only unperformed portion is that relating to the division of the proceeds.”
In the case of Coffin v. McIntosh, 9 Utah 315, 34 Pac. 247, the court stated: “At the trial counsel for the defendant moved to strike out the testimony of the plaintiff on the ground that it was shown thereby that the transaction was in relation to a piece of real estate, and, not being in writing, was within the statute of frauds. . . . This court, in Knauss v. Cahoon, 7 Utah 182, 26 P. 295, held, under the circumstances similar to those in this case, that thé statute of frauds had no application. Especially is this so where, as in this case, the statute is not pleaded.”
The fact that appellee, pursuant to this contract, satisfied the debt they owed him and continued to pay the taxes on the property, takes the case out of the statute of frauds. And these facts are not denied by the appellant. The undisputed evidence shows them to be true.
We are therefore of opinion that the contract having been fully performed by the appellee, with the knowledge and consent of appellant, is binding on the parties and for this reason the case must be affirmed.
Both parties, however, argue at length the question whether the confirmation suit in the chancery court was binding on appellant and that Act 423 of the Acts of 1941 was retroactive, but since we have reached the conclusion we have on the other proposition, it becomes unnecessary to discuss or decide this question.
It follows from what we have said that the decree of the chancery court must be affirmed. | [
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Greenhaw, J.
This is a petition for a writ of prohibition to restrain respondent, judge of the Sebastian chancery conrt on exchange of circuits, from proceeding further in a suit by several insurance companies against petitioners, and to dissolve an order of that court restraining L. G. Everist, Inc., one of the petitioners, from removing its property from the jurisdiction of the court.
Petitioners are nonresident corporations duly authorized to do business in this state, and since September or October, 1941, it is alleged they have been operating a quarry in Fort Smith and engaging in blasting operations there. The home office of L. G. Everist, Inc., is Sioux Falls, South Dakota, and the home office of Western Contracting Corporation is Sioux City, Iowa, Hubert Everist being president of both companies.
The complaint, filed March 13, 1942, by Employers’ Fire Insurance Company and 37 other insurance companies, alleges that plaintiffs have issued' insurance policies on numerous pieces of property in Fort Smith, insuring against loss by fire and other perils, including explosion. Negligent explosion of dynamite by petitioners has injured many of these properties, the owners of which have notified plaintiffs of their damages and their intention to file claims under their policies when the work has been completed and after all of their damages, present and future, have been ascertained. Plaintiffs allege that -they ydll be liable for these damages under the terms of their policies, and they are entitled to be subrogated to the rights of their assureds against petitioners in whatever sums they may be compelled to pay by reason of damages caused by petitioners. Sixty-eight policyholders were made defendants, along with petitioners, and it was prayed that the policyholders be required to assert whatever claims they might have against plaintiff insurance companies.
The complaint further alleg-es that petitioners have large amounts of property within this state which they are about to remove, leaving no assets in this state out of which plaintiffs or their assureds may make collection of their claims. Plaintiffs pray that petitioners be restrained from removing their property from the jurisdiction of the court, and that plaintiffs have judgment against petitioners for all amounts which they are compelled to pay the policyholders under the terms of their policies.
Petitioners’ motion to dismiss was overruled, and on March 18, 1942, the court entered an order restraining L. Gr. Everist, Inc., from removing its property from the jurisdiction of the court, upon plaintiffs’ executing bond for $25,000, which bond was executed, filed and approved. The restraining order further provided that L. Gr. Evei’ist, Inc., might remove its property upon 'its executing and filing a bond for $25,000, conditioned upon payment of all sums which might be adjudged against it.
The complaint alleges that suit is brought in equity (1) because there is involved a complicated accounting, (2) to avoid multiplicity of suits, and (3) because plaintiffs have no adequate remedy at law. It is further contended that the chancery court of Sebastian county had jurisdiction in order to prevent a circuity of action, and to afford relief to plaintiffs under the law of subrogation, it being insisted that plaintiffs are entitled under the policies to be subrogated to the rights of the policyholders for the damages which have been sustained by them, after they have been paid by plaintiffs.
Petitioners contend that no accounting is involved, and that equity jurisdiction to avoid a multiplicity of suits is not applicable for the reason that all suits, if filed at law, could be consolidated and tried together. It is further contended by petitioners that the court is without jurisdiction to restrain L. G. Everist, Inc., from removing its property out of this state for the reason that the company is authorized to do business in this state and has an agent upon whom service may be had.
We are unable to agree with the contention of petitioners that the equitable jurisdiction to prevent a multiplicity of suits would not apply. It is asserted that some of the claims or suits might be so small as to be cognizable only in a justice of peace court, while others would have to be filed in the circuit court.
In the case of Fidelity & Deposit Company v. Cowan, 184 Ark. 75, 41 S. W. 2d 748, the lower court assumed jurisdiction and proceeded to adjudicate all issues, both legal and equitable. In that ease this court said: “It is insisted also that the court erred in consolidating the cases, and that the state of the pleadings did not warrant the decree entered of record by the chancery court. We do not agree with counsel in this contention. Equity abhors a multiplicity of suits and adjusts the rights of parties without circuity of action, whenever it is feasible to do so. This principle of equity jurisprudence is so well settled that we need cite only the following cases: State v. Atkins, 53 Ark. 303, 13 S. W. 1097; Bledsoe v. Carpenter, 160 Ark. 349, 254 S. W. 677; Martin v. State, 171 Ark. 576, 286 S. W. 873; and K. C. S. Ry. Co. v. Fort Smith Suburban Ry. Co., 180 Ark. 492, 22 S. W. 2d 21.”
In the case at bar the injury to the various properties was alleged to be a continuing- one, in that work was still in progress and damages still occurring to properties, and that until the blasting had been completed and the property owners were able to ascertain all of the damages which had occurred, and would occur to their properties, they were unwilling to file claims, and that after the work is completed the petitioners would remove all of their property from this state leaving nothing from which damages could be collected.
It is well settled that inadequacy of the remedy at law (unless the legal remedy is made exclusive by statute) will confer jurisdiction upon a court of equity. In the case of Meriwether Sand & Gravel Co. v. State, 181 Ark. 216, 26 S. W. 2d 57, which involved a tort, it was argued that the chancery court had no jurisdiction, and that the parties were limited to their action at law for damages. This court said: “It is insisted, however, that the appellees have an adequate remedy at law by an action for damages. In this contention, the appellant errs for the reason that the injury, as shown by the testimony which was accepted by the chancellor, is a continuing and progressive one, and to remit them to their remedy at law would result in unnecessary expense and inconvenience to the litigants and lead to a multiplicity of suits. ‘The remedy at law, to be adequate and complete, and attain the full end and justice of the case, must reach the whole mischief, and secure the whole right of the party in a perfect manner, in praesenti and in futuro.’ Ex parte Conway, 4 Ark. 302. See, also, Lawton v. Herrick, 83 Conn. 417, 76 Atl. 986; Peterson v. Santa Rosa, 119 Cal. 387, 51 Pac. 557.”
First State Bank v. C., R. I. & P. Ry. Co., 63 Fed. 2d 585, was a case arising in Arkansas, in which a temporary restraining order was denied plaintiffs by the district court. The Circuit Court of Appeals held that equity, having taken jurisdiction of the case on an equitable ground, had the inherent power to issue a restraining order. The court said: “The remedy at law must be plain, adequate, complete and as efficient to the ends of justice as the remedy in equity to preclude the maintenance of the equitable suit.”
In Murdock v. Sure Oil Co., 171 Ark. 61, 283 S. W. 4, this court said: ‘ ‘ The jurisdiction of the cause must be determined from an inspection of the bill. The allegations therein are equitable in nature and cognizable in a court of equity. . . . When equity acquires jurisdiction of a cause for one purpose under bona fide allegations, all matters in issue will be adjudicated and complete relief afforded. Horstmann v. LaFargue, 140 Ark. 558, 215 S. W. 729.”
Certainly if petitioners have caused and are causing damage to property owners who hold insurance policies issued by any of the plaintiff insurance companies, the companies would be entitled to be subrogated to the rights of the policyholders for the actual damages sustained and paid by the insurance companies involved. The chancery court held that under the allegations of the complaint it had jurisdiction, as equitable grounds were alleged and equitable relief sought, and therefore granted the injunction. According to the allegations, if an injunction had not been granted it would have been possible for petitioners to have removed all of their assets from the jurisdiction of courts in this state, and there would have been nothing left from which plaintiff insurance companies could have been reimbursed through subrogation for the amounts of damages suffered by the various property owners and policyholders, and'paid by the insurance companies in settlement of claims and possible judgments of the policyholders.
We cannot say that the insurance companies, under the facts alleged, would have a complete and adequate remedy at law, since under the allegations no property would be left in this state belonging to petitioners.
Having reached the conclusion that the chancery court had jurisdiction of the subject-matter and the parties, the petition for a writ of prohibition and dissolution of the injunction is denied. | [
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George Rose Smith, Justice.
In 1964, the appellees, Herman Kaufman and Nathan Gordon, acquired a 3,-775-acre tract of land in Conway county, with the intention of eventually using it as a cattle ranch. Two years later the Highway Commission brought this action to condemn two parcels in the tract, one of 15.53 acres and the other of 8.29 acres, for use in the construction of Interstate Highway 40. The jury fixed the landowners’ compensation at $35,000, of which not less than $32,000 must be apportioned under the evidence to the larger parcel. For reversal the Commission contends that the $32,000 award is excessive and that the court erred in allowing the jury to consider a diagram which Kaufman had prepared to assist him in testifying.
After a careful study of the record we are unable to say that the award is demonstrably excessive. The appellees paid $148,640 for the 3,775-acre tract, hut they are unquestionably right in saying that they got it at a tremendous bargain. Between the date of their purchase and the date of trial they had received $78,980.65 from the sale of timber on the land. An estimated $70,000 worth of timber was still to be cut. Even the lowest estimate of value made by the Highway Commission’s expert witnesses was $234,500. When that figure is increased by the timber proceeds already received the purchase had shown a worth of more than $300,000 by the time of trial. The landowners’ witnesses put the figure at more than $400,000.
The interstate highway will cross a neck of land, containing 123 acres, which would otherwise provide access to U. S. Highway 64 and to the Missouri Pacific railroad track, which could serve the cattle ranch by means of a spur. Construction of Interstate 40 will cut the 123-acre tract in two, destroying the ranch’s access to the highway and railroad and reducing the tract’s usable area so materially that it cannot be used as the headquarters for the proposed ranch.
An adequate site for a headquarters is admittedly essential to the operation of a large cattle ranch. Much of the landowners’ testimony went to prove that the 123-acre neck of land was by far the most suitable site for a headquarters. Its relatively high elevation is shown to be an important and desirable element in the selection of such a site. An ample supply of water is readily available there. We have already mentioned its previous access, now denied, to transportation facilities. A number of photographs in the record confirm the witnesses’ description of the parcel as a desirable, comparatively level site for the headquarters.
Expert witnesses, some of them experienced in the operation of cattle ranches, enumerated their reasons for believing that the loss of the 123-acre site seriously reduced the value of the entire 3,337-acre tract as a pros pective cattle ranch. "Those witnesses fixed the landowners’ damages at from $38,475 to more than $56,000. The two expert witnesses for the Highway Department were not shown to be experienced in appraising ranch lands and really made no effort to rebut the landowners ’ proof. On the record as a whole it cannot be said- that there is no substantial evidence to support the $32,000 award.
The appellant’s other point for reversal challenges the admissibility of a simple line drawing that Kaufman used in his testimony. The diagram was intended to show how the 123-acre site, consisting of a somewhat narrow rectangle leading to the railroad and existing highway, could have been used as an efficient ranch headquarters. The drawing, which is about as simple as one could imagine, depicts a central lane running the length of the site. It provides access to the transportation facilities at one end and to the rest of the ranch at the other. On each side of the lane Kaufman drew rectangles that were labeled as feed lots, holding areas, corrals, and a storage area. Kaufman used the drawing in explaining to the jury how the cattle could be funneled into the headquarters area, be kept in pens where they could be efficiently fed by means of an auger feeder, and eventually be moved into loading chutes for shipment.
In objecting to the use of the diagram counsel for the appellant refer to several condemnation cases, including some of those reviewed recently in Housing Authority of the City of Camden v. Reeves, 244 Ark. 783, 427 S. W. 2d 196 (1968). Those cases considered the admissibility of lot-and-block plats of residential subdivisions that existed in some instances on paper only. In several cases such plats were ruled out, either because they did not take into account the expense of bringing in streets or utility lines or because they might influence the jury to value raw acreage as if it were already divided into salable building lots.
The exclusionary principle underlying those deci sions has no application here. Kaufman’s drawing was not intended as a basis for the assignment of values to the various enclosures that were sketched. Those enclosures were nearly all mere spaces defined by lines that represented fences. The sole purpose of the diagram was to enable the jury to see how the rectangular 123-acre parcel could be used as a site for the ranch headquarters. That the witness admitted that the site might not have been completed for as much as ten years is immaterial, because Kaufman was merely explaining how the site could be used. (He added that he had been building on his own nearby ranch for 40 years and still hadn’t completed it.)
By analogy, we have held in a condemnation case that the landowner was entitled to show that his property on a river bank possessed superior advantages as a bridge site. Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, 4 Am. St. Rep. 51 (1887). So here, Kaufman was properly allowed to explain the particular suitability of the parcel as a site for the necessary ranch headquarters. In that connection the use of the drawing to present to the jury a graphic explanation that would otherwise have bpen conveyed to them by Kaufman’s admissible oral testimony falls within familiar principles governing the use of plats, diagrams, sketches, and the like as aids to a witness’s testimony. See Sanders v. Walden, 214 Ark. 523, 217 S. W. 2d 357, 9 A. L. R. 2d 1040 (1949); Howell v. Baskins, 213 Ark. 1565, 212 S. W. 2d 353 (1948). We find no error in the court’s ruling.
Affirmed.
BrowN, Jones and Byrd, JJ., dissent. | [
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Griffin Smith, C. J.
Catherine M. Gilmore has appealed from an order overruling her motion to vacate a decree granting a divorce on the complaint of her husband, John Joseph Gilmore. It is contended the husband perpetrated a fraud on the court in alleging he was a resident of Arkansas. In procuring the decree June 26, 1941, appellee testified lie had been a resident of Little Rock since September, 1940.
Appellee is a member of the Gr. L. Tarlton contracting firm. His business was to inspect, make estimates, settle controversies, and sign contracts. The firm had a contract at Camp Robinson involving approximately eleven million dollars. It was one of three companies that successfully bid to build North American Aviation Aircraft Assembly Plant at Kansas City.
Stipulation is that appellee procured accommodations at Capitol Hill Apartments in Little Rock September 18, 1940, and continuously retained them until April 10,1941, but not thereafter. In registering, appellee gave his address as 3615 Olive street, St. Louis. In May and June he was registered at the Phillips Hotel, Kansas City, where he also gave the Olive street address.
During March, April, May, June, and July, 1941, appellee carried an account with First National Bank of Chicago. He gave the management his St. Louis address, where cancelled checks were sent. For March, April, May, and June, 1941, appellee was listed as a resident member of Missouri Athletic Club, St. Louis.
After surrendering his Capitol Hill apartments, appellee had no regular place of abode in Arkansas, but usually went to Hotel Marion, where he registered as from 3615 Olive street, St. Louis.
Subsequent to April 10, 1941, and during the following summer, appellee spent a great deal of time in Washington. June 25 — one day before the decree of divorce was obtained — appellee addressed a letter to his wife. The envelope bore the return address: “Missouri Athletic Club, Fourth and Washington streets, St. Louis, Mo.” It was postmarked at Kansas City. All letters to his family bore the athletic club address and all communications by mail from members of his family were sent to St. Louis.
While in Arkansas appellee did not possess visible personal property. He did not carry a Little Rock bank account, did not assess for taxation purposes, and his federal income tax return was made to the St. Louis division.
Commencing August 18, 1941, appellee made his home at 516 Sherman avenue, Neosho, Mo. His personal address was changed from the athletic club. He estimated that between April 10, 1941, and June 26 of the same year, he was in Little Rock “between thirty and forty-five days.” During that period he did not register at a hotel “very many times” because “a great many of those trips were daily trips.” Appellee thinks he spent as many as twenty days in Little Rock after June 26. In the summer of 1941 he visited the Panama Canal Zone. .
In the face of this record appellee (in February of this year) testified that his home was still in Arkansas.
Affidavit for warning order was made May 22,1941, with proof June 26 that publication had been in a North Little. Rock newspaper. John L. Sullivan was attorney ad litem. Sullivan immediately notified the defendant that suit was pending. He informed her regarding time for an answer. In addition, attorneys representing appellee wrote appellant May 23, 1941. She was told that her husband was in Little Rock and contemplated divorce ■ — in fact, that he was filing suit. There was this statement: “Where the defendant is a nonresident the law requires that an attorney ad litem be appointed, and pursuant to this provision of the statute the court has appointed Mr. Sam Wassell, who will notify you officially of the filing of the suit.”
Appellant says she did not receive any information from Wassell, but that Sullivan wrote her. His letter was dated May 22, one day before appellee’s attorneys informed her that Wassell would notify her “officially” that suit had been filed.
In Dengler v. Dengler, 196 Ark. 913, 120 S. W. 2d 340, it was held that on motion to vacate a divorce decree, mere allegation there was a meritorious defense, without proof, is insufficient. It was also said that . . decrees of divorce are not less stable than are those in other cases.”
Dengler v. Dengler is distinguishable from the present appeal in that Mrs. Dangler was personally served. Both parties were residents of Arkansas.
The question in Gaines v. Gaines, 187 Ark. 935, 63 S. W. 2d 333, was whether a decree of divorce should be set aside because the attorney acl litem had not promptly notified the nonresident defendant that suit was pending. It was held there had been “substantial” •compliance with the law”; hence, the court had jurisdiction.
In the instant case there was want of jurisdiction if appellee were not a bona, fide resident of Arkansas. His own testimony shows he was not. He came to this state temporarily because a profitable contract required attention. He remained a resident member of the athletic club in St. Louis, and Olive street wTas his business address. Occupancy of rooms at Capitol Hill Apartments was an incident to his business. Residence in Arkansas was not his object.
Appellant’s motion to vacate the decree was filed October 3, 1941, slightly more than three months after the decree was rendered. Prima facie, residence was established for the requisite period of ninety days. This justified the chancellor in rendering’ the decree. Proof in support of appellant’s motion, however, shows that appellee misconstrued the statute; and in representing that he was a resident of Arkansas within the meaning of § 4386 of Pope’s Digest, fraud was perpetrated on the court.
The decree is reversed, with directions to vacate the decree of June 26, 1941.
Appellant and appellee were married in 1912, but had not lived together since 1936. It is asserted that “ample provision has been made for the children born of this marriage.” It was also stated in the original complaint that adequate provision would be made for the defendant.
The decree directed payment of $250 per month alimony:
The misinformation given Mrs. Gilmore — that Wassell would be appointed — was not intentional, as the record clearly discloses. | [
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Wm. M. Moorhead, Special Justice.
TMs Court is again asked to overturn the rule of law granting to municipalities immunity from liability for damages negligently inflicted on others while acting in a governmental capacity.
Appellants sued the City of Little Rock and one of its employees for damages as compensation for painful and permanent bodily injuries allegedly suffered by Mrs. Parish when her car was negligently struck by the City’s garbage truck. The judgment of the lower court sustained the demurrer of the City and dismissed the complaint against it. Plaintiffs appealed.
The Court below followed the precedents of this Court which have established that a municipality when acting in its governmental capacity is not liable in damages for injuries inflicted on others by the negligent acts of its employees, servants and officers. If the activity causing the harm was “in the interest of the public generally”, it is classed “governmental” and no suit will lie against the municipality. Clearly the operation of a garbage truck is governmental by this test. Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257 (1957). Yet, in applying this rule the Court there voiced its criticism: “Considerations of fair play and justice suggest that those injured by the negligence of a municipality or its agents should be compensated on equal terms with those injured by individuals or private corporations.” The opinion further noted that many students of law have so recommended, that the Arkansas Legislature in 1947 had authorized municipalities to purchase liability insurance with a right of direct action against the insurer and expressed the hope that the Legislature might make .the purchase of such insurance by municipalities mandatory at some future time. However, the Court felt that even though it might agree that the present rule of municipal immunity from tort actions should be replaced with a stricter, more complete rule of responsibility, it was a matter of public policy and therefore, for consideration of the Legislature, not the Court. Kirksey v. City of Fort Smith, supra. The Legislature’s broad investigative powers to determine facts and its greater flexibility in dealing with complex problems indicate a preference for a solution by statutory action. Despite the Court’s invitation for legislative action ten years ago there has quite understandably been no comprehensive legislative consideration, or action on this troublesome question. It could not realistically be expected that a problem of judge-made or “lawyers’ law” could' or would be given the necessary time and attention by the Legislature. It operates basically in a sixty-day biennial session, necessarily crowded with more pressing and immediate problems of economics, taxation, the allocation of the proceeds thereof, and the myriad other interests affecting the general welfare of the people of the State. It should also be realized that most citizens, and more particularly legislators, will normally think of themselves as being on the side of government rather than opposed to it. They are thus more likely to cling to the “pleasant and appealing advantage” of immunity from liability for injury suffered at the hands of their public servants and employees. Leflar and Kantrowitz, “Tort Liability of the States”, 29 N.Y.U.L. Rev. 1363 (1954). Although the field of the common law is not primarily the Legislature’s problem, it is the primary concern of this Court. Accordingly, the Court, not the Legislature, should extirpate those rules of decision which are admittedly unjust, for it is to the judiciary that the power of government is given to provide protection against individual hurt. Green, Freedom of Litigation, 38 Ill. L. Rev. 355, 382 (1944).
Considerations of public poliey are not and never have been for determination by the Legislature alone. Holmes, The Common Law, 35 (1881). Especially is this so when the individual’s rights are put in question by governmental activity as here. We are now of the opinion that re-examination of the principle of governmental immunity from tort action is the duty of this Court and should he undertaken at this time.
The origin of the concept of governmental immunity to suit and how it came to relieve the municipal corporation in the United States of liability for its tortious conduct, is quite involved and the subject of conflicting accounts. Nevertheless, it is generally agreed that its application to a local unit of government is first recorded in Russel v. Men of Devon, 2 T. R. 667, 11 Eng. Rep. 359 (1788). An action for injuries caused by a defective bridge was brought against all the men of the County of Devon since they were required by statute to keep it in repair. Even the reasons given in the report for denial of the right to sue are subject to much dispute today. It was said a multiplicity of suits would be encouraged; that no such action had been authorized by statute; and that a judgment would work an injustice upon the changing population of an unincorporated county since those not residents when the tort occurred could be required to help satisfy it. In the concurring opinion is found what may well be the most fundamental reason for the concept:
“It is better that an individual should' sustain an injury than that the public should suffer an ineon-venience”.
The earliest Arkansas case enunciating the rule, Granger v. Pulaski County, 26 Ark. 37 (1870), cited the Massachusetts case of Mower v. The Inhabitants of Leicester, 9 Mass. 247, which in turn had cited the Russel case, supra. It is noteworthy that in applying this concept to a county the Arkansas court pointed out the distinctions between the unincorporated county and the incorporated municipality, indicating that liability might well attach to the latter. In City of Little Rock v. Willis, 27 Ark. 572 (1872), it was said that for the exercise of judgment and discretion by the municipality for the good of the whole, no action would lie for injuries resulting therefrom, hut that for the negligent performance or execution of the orders of such a public body, suit would lie. This reasoning was followed in Mayor of Helena et al v. Thompson, 29 Ark. 569 (1874), and liability was imposed upon the City for the negligent construction of an inadequate ditch and culvert which served to divert a flowing stream.
Yet, in Trammel v. Town of Russellville, 34 Ark. 105 (1897), without mentioning the Willis and Thompson cases, supra, this Court held that a municipality is liable in tort only if the activity engaged in was solely for financial gain or “proprietary” in nature, but if the activity causing the injury was in the interest of the public generally, it is “governmental” and the city is immune to suit and liability'. In 1931, in City of Little Rock v. Holland, 184 Ark. 381, 42 S. W. 2d 383, the decisions in this field were reviewed, the oversight of the Willis and Thompson .cases, supra, in the Trammell decision, supra, was noted. Still the Court concluded that a municipality is not liable for its nonfeasance, nor for the negligence of its officers and agents in the performance of a governmental function. Thus by implication the earlier Arkansas cases imposing liability on municipalities for negligence in the performance of ministerial acts were overruled. This rule has been followed to the present with little discussion until the opinion given in Kirksey v. City of Fort Smith, supra. In applying the governmental-proprietary test, Arkansas has held that the maintenance of city streets, Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949 (1955); law enforcement activity, Franks v. Town of Holly Grove, 93 Ark. 250, 24 S. W. 514 (1910); the operation of municipal waterworks, Patterson v. City of Little Rook, 202 Ark. 189, 149 S. W. 2d 562 (1941); operation of an electrical distribution system, City of Little Rock v. Holland, supra; and the maintenance of a municipal swimming pool, Yoes v. City of Fort Smith, 207 Ark. 694, 182 S. W. 2d 683 (1944), are governmental functions. No case of liability for personal injury by a municipality is found in the Arkansas reports. In Arkansas, the immunity of the municipality in the tort field is, in practice, complete at present.
The only mitigation of the rule of governmental immunity in Arkansas has come in the past by legislative action. In 1940 this Court determined that a rural electrical cooperative should be immune from tort liability. Arkansas Valley Cooperative Rural Electric Company v. Elkins, 200 Ark. 883, 141 S. W. 2d 538 (1940). The reasons given were those applied to the governmental activities of a municipal corporation: the cooperative was not organized for profit, but only for the benefit of its members; it has no fund provided by statute out of which to pay judgments; rather, its funds were said to be held in trust, available only for its corporate purposes. Six years later the Legislature reversed that decision of the Court by providing that such organizations should be liable for torts resulting from the negligent acts of its agents, servants and employees. Act 362 of 1947; Ark. Stat. Ann. § 64-1525 (Eepl. 1966).
This same General Assembly, by Act 46 of 1947, authorized municipalities and other entities enjoying the rule of immunity to purchase liability insurance covering their tort damages. The sovereign State of Arkansas itself has submitted to a forum in which its tort liability is determined and compensation paid to the injured parties. See Ark. Stat. Ann. § 13-1401 ff. (Eepl. 1956), establishing and providing a mode of proceeding before the State Claims Commission. State employees have rights similar to those given private employees by the Workmen’s Compensation laws of this State. Ark. Stat. Ann. § 13-1407 ff. (Eepl. 1960). Thus we see that the basic injustice of the rule of tort immunity where it has come to the attention of the Legislature has met with dissatisfaction and been curtailed in part. This same “abhorrence of wrong suffered without a forum in which redress may be had”, is reflected in similar and more far-reaching legislation of other states and of the United States Government. See Leflar and Kantro-witz, Tort Liability of the States, 29 N.Y.U.L. Eev. 1363 (1954); Vermont Laws 1961, Public Act No. 265, Title 12, sec. 5601-02; Washington, Rev. Code, Ch. 4192; R.C.W. 4.92.090, added 1963 Ch. 159, sec. 2; Alask. Stats. Title 9, Ch. 65, sec. 09.65-070 added to a sec. 5.13 Ch. 101 S.L.A., 1962, and the Federal Tort Claims Act, 28 U.S.C.A., 2674 (1948). We do not construe such limited legislative action as has been taken in Arkansas to soften the impact of immunity on individual rights as an expression of legislative intent to retain the rule in all other areas. Only a comprehensive legislative study and enactment encompassing the entire field would warrant such an inference.
Legal scholars for the past forty years have criticized and condemned the concept of governmental immunity. An early and thorough-going examination of the doctrine was by Borchard, Government Liability in Tort (Pts. 1-3), 34 Yale L. J. 1, 129, 229 (1924-25); Government Liability in Tort (Pts. 4-6), 36 Yale L. J. 1, 757, 1039 (1926-1927); 28 Colo. L. Rev. 577, 734.
One of the more exhaustive examinations concludes that the failure to break fully with the immunity rule and “... to do what nearly everyone agrees ought to be done...” is found in three basic factors: First, the language of sovereignty found in the early cases; second, legislative and judicial inertia, thought to be the most potent single explanation of inaction; and finally, the fear that the financial burden of liability would result in inability to perform essential governmental services. Leflar and Kantrowitz, Tort Liability of the States, 29 N.Y.U.L. Rev. 1363 (1954).
Tort law is intended to reconcile the policy of letting accidents lie where they fall, thereby giving reasonable freedom of action to others, and protection of the individual from injury which the defendant had a reasonable opportunity to avoid at the time. Holmes, The Common Law, 144 (1881). The “reasonable freedom of action” here in question is that of a municipality, furnishing essential and other services to the public. The rule of immunity frees these activities of the city from liability for damages inflicted upon the individual. It is the tort-victim who bears the entire, sometimes calamitous, burden resulting from these enterprises undertaken for the benefit of the entire community. The considered conclusion of the legal commentators has been that this burden should be treated as any other cost of administration of municipal activity and thereby be spread by taxes among the public receiving the benefits. Municipal irresponsibility and the sacrifice of individual rights to public convenience are not required to forestall disaster to the municipality.
They have pointed out that although municipalities are political subdivisions, created by the State and performing some governmental functions, they are not the State and do not partake of its sovereignty; they are corporate bodies, capable of much the same acts as private corporations; they have special and local interests and relations not identified with the State at large. They engage in fields of activity as a service to the citizenry never dreamed of in 1788, when this doctrine was first set forth in the report of the Men of Devon, supra, nor in 1870, when it was made a part of the law of Arkansas. The assumption of new and expansion of old services by the city for the benefit of the public has so augmented the incidence of this unjust precept on individual rights that it can no longer be retained except for the most compelling reasons. It has been noted that once the doctrine was imposed and followed by the courts stare decisis insulated the high court from the magnitude of the wrong being wrought by its application. Furthermore, the victims being individuals, made up at random from among the public generally, have, in the nature of things, no voice in the legislative halls. Thus neither the judicial nor the legislative processes have been brought to bear on the problem.
The supposed threat to the cities’ operations posed by financial responsibility for its torts has ever been a major factor, though not always expressly set forth, upholding the immunity rule. This fear is found in the report of the decision in Men of Devon, supra, wherein it was expressed as “inconvenience to the entire pop-ulus”, and in Arkansas Valley Cooperative Rural Electric Company, supra, holding later that all funds were subject to a trust for the benefit of the members and to divert them to the satisfaction of tort judgments would be a violation of that trust. However, it is the conclusion of those studies that the fear of curtailment of essential public services or the imposition of tremendous financial burdens on the public, is not founded on fact. In the private sector tort liability is a small item in the budget of any well run enterprise and should prove to be proportionately no greater for the municipality, since it will have available to it the same defenses and means of spreading the risk. 9 Law and Contemporary Problems (1942); Warp, Tort Liability Problems of Small Municipalities, 363; David, Public Tort Liability Administration; Basic Conflicts and Problems, 335; David, Tort Liability of Local Governments: Alternatives to Immunity Prom Liability, 6 U.O.L.A.L. Rev. 1 (1959); Green, Freedom of Litigation, 38 Ill. L. R. 355. At page 367 of this last work this judicial fear is contrasted with experience; in Wilcox v. Chicago, 107 Ill. 334, 340 (1833), it was said that to subject cities to liability for the operation of a fire department “. . . would most certainly subject property holders to as great, if not greater burdens than are suffered from the damages from fire.” Yet, the Illinois Legislature in 1931 imposed liability on the cities for injuries to person and' property caused by the negligence of the employees of the fire department. It was thirteen years before a case appeared in the Illinois Reports in which damages had been assessed against a city under this statute. Arkan sas’s own limited experience with, the imposition of tort liability on cooperatives apparently has not resulted in a rash of eases nor oppressive financial burdens on that type of public corporation. The excellent amicus curiae brief filed herein by the Arkansas Municipal League quotes at length from reports over the last several years by the New York Legislature’s Joint Committee on Municipal Tort Liability. In 1929 the State of New York waived its immunity from tort liability by statute and in 1945 its courts construed this to be applicable to municipalities and counties. Yet those reports give no instance of curtailment or deprivation of essential municipal service. Quite expectedly this legislative committee is concerned with the extent of tort claims, the rising cost of liability insurance and in some instances difficulty in obtaining such insurance. New York’s experience with municipal tort responsibility would rather seem to indicate that the cities can continue to function while responding in tort to those injured by their activities. No one has ever suggested that it will not add to the financial problems of the municipalities. Anything short of financial disaster, however, is insufficient reason for exempting the cities from the rule of tort liability. In any case, the solution of the financial problem by taxation or otherwise rests with the legislative branches of government, not the judicial. If the rule of liability imposes on the taxpayer either a cur tailment of some municipal services or an increase in his taxes, still it will serve to assure him that the economic impact of any tortious injury he may suffer at the hands of a public employee would be shared with the other inhabitants of the city rather than, ‘ ‘... falling with awesome tragedy” upon him alone. Williams v. City of Detroit, 364 Mich. 231, 111 N. W. 2d 1, 25 (1961). Admittedly, this court, because of the limitations on the judicial function, is not able to conduct the careful survey, preparation and. study required for an ideal solution to the problem of municipal irresponsibility, nor can it limit and moderate the imposition of liability as could the legislature. Yet, if it is not con clusively shown that the cities can bear the financial burden of their own torts, neither is it demonstrated that they are unable to do so. An exemption of this magnitude to the usual rule of law leading to a just result in tort can no longer be continued because of speculative fears by the Court of financial disaster to cities. The injustice wrought by the immunity rule on the individual’s rights is clear and certain; its justification must be no less so.
Beginning with Florida in the year 1957, ten American jurisdictions have reviewed and rejected the doctrine of governmental immunity for political subdivisions and entities, Hargrove v. Town of Cocoa Beach, Fla., 96 So. 2d 130 (1957); Molitof v. Kaneland Community Unit District, 18 Ill. 2d 11, 163 N. E. 2d 89 (1959); McAndrew v. Mularchuk, 33 N. J. 172, 162 Atl. 2d 820 (1960) (active wrong-doing only); Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 359 Pac. 2d 457 (1961); Williams v. City of Detroit, 364 Mich. 231, 111 N. W. 2d 1 (1957); Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N. W. 2d 618 (1962); Spanel v. Mounds View School District, 264 Minn. 279, 118 N. W. 2d 795 (1962); Fairbanks v. Schiable, Alaska, 375 Pac. 2d 201 (1962) (interpreting statute permitting suit against local government unit and refused to apply “proprietary-governmental” test); Rice v. Clark County, 79 Nev. 253, 382 Pac. 2d 605 (1963); Haney v. City of Lexington, Ky. 386 S. W. 2d 738 (1964).
Of sovereignty as a reason for holding political subdivisions immune to suit, it is generally agreed in those decisions that cities and other such entities are not the state, and it is only to the state that the high attribute of sovereign immunity should properly be attributed. Generally governmental immunity is traced to the medieval concept that “the king can do no wrong”, a notion which is entirely foreign to and at variance with the basic principles of government in America. Whether the rule of governmental immunity is traceable to the medieval concept that “the king can do no wrong” or to the Men of Devon case, supra, which does not mention today. Further, the reasons given in the Men of of kings to govern, political subdivisions are not in fact the sovereign state. The language of the early decisions concerning sovereignty has little hearing on the question today. Further, the reasons given in the Men of Devon case, supra, if valid when adopted, are no longer sufficient to justify the rule of immunity. Public convenience? does not outweigh the right to individual compensation for injuries suffered, and the political subdivisions are corporate entities financially capable of providing for the satisfaction of such judgments. Muskopf v. Corning Hospital District, supra. In Hargrove v. Town of Cocoa Beach, supra, it is said:
“The modern city is in substantial measure a large business institution. While it enjoys many of the basic powers of government, it nonetheless is an incorporated organization which exercises those powers primarily for the benefit of the people within the municipal limits who enjoy the services rendered pursuant to the powers. To continue to endow this type of organization with sovereign divinity appears to us to predicate the law of the Twentieth century upon an Eighteenth century anachronism. Judicial consistency loses its virtue when it is degraded by the vice of injustice.” In the Molitor opinion, supra, as in others above cited, it is noted that this doctrine of immunity was created by the courts, not the legislatures, and that the courts should correct their own errors, and so concluded that the rule was, “... unjust, unsupported by any valid reason, and has no rightful place in modern day society.”
Of the fear of bankrupting the political subdivision by imposing liability these several courts note the fact that no such actual case has been pointed out, Spanel v. Mounds View School District, supra; that public liability insurance was not in common use at the time the courts of this country adopted the doctrine of governmental immunity, -while today it “... serves private citizens and private corporations as a means of prepaying and sharing this sort of unexpected burden with which we deal in this ease”. Williams v. City of Detriot, supra. All give weight to the growth of municipal activity.
Municipalities are not the State of Arkansas and do not partake of its constitutionally granted immunity. It does not clearly appear to us that in this day and time the municipality and those presumably benefiting from its services are unable to bear the full cost of these activities. The immunity rule imposing the entire burden of municipal torts on the individual victims is patently unjust and can no longer be retained without an equally clear showing of an even greater harm to the public.
Other courts during the past ten years have, like Arkansas in Kirlcsey, supra, refused to overturn the rule of governmental immunity, though many have criticized it. Their principal reason for continuing to adhere to an admittedly unjust rule is the doctrine of stare decisis. This policy of ádhering to precedent to give predictability to the law, and to avoid unsettling things, is fundamental to the common law. So too is the power to overrule a line of decisions, even those under which property rights were acquired. Carter Oil Co. v. Weil, 209 Ark. 853, 192 S. W. 2d 215 (1946). Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Any rule of law not leading to the right result calls for rethinking and perhaps redoing. Llewellyn, Jurisprudence, 217 (1962). The proper limitations on the doctrine of stare decisis have ever been recognized by this Court. “Precedent, it is said, should not implicitly govern, but discretely guide . . .”, Roane v. Hinton, 6 Ark. 525, 527 (1846). Having determined as we have here that a rule established by precedent no longer gives a just result it must then be determined whether the rights of those who have justifiably relied upon the established precedents are of greater weight in this case than that the rule be corrected. The test is whether it is more important that the matter remain settled than that it be settled correctly. Brickhouse v. Hill, 167 Ark. 513, 522, 268 S. W. 865 (1925). We are not here faced with a rule of property, for the law of torts does not affect ownership or devolution of title. Contracts and wills are not drawn in reliance upon it. Ordinarily then the doctrine of stare decisis is of no great weight in the field of tort law. Here, however, a numerous class, the municipalities, relying on the past decisions of this Court granting them immunity, may well have neglected to investigate accidents or to insure against liability as they are permitted by statute to do. Hence, because of this Court’s prior rulings, many would he unprepared to present defenses otherwise available to them, and in event of the imposition of liability, a small municipality might find itself financially unable to meet it without the possibility of disrupting its services to the public.
That possible hardship on those who have justifiably relied upon the law as announced by the Court in the past stems from the retroactive effect normally given a court decision. Legislative acts which normally operate only in the future avoid this effect. It is for this reason that many of the courts have left such problems for legislative solution. Whittington v. Flint, 43 Ark. 504 (1884). In the past we have met the problem by making our decisions operative only in the future. Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973 (1952). Other courts faced with this problem arising from elimination of past error have solved it in all three ways open to us: California in the Muskopf ease applied the decision in the normal manner; making it retroactive as to the present ease and all other actions arising within the statute of limitations. The Legislature fixed a period during which the new rule would be held in abeyance. Cal. Stat. ch. 1404. In Williams v. City of Detroit, supra, the Michigan court held that governmental immunity no longer would be recognized from the date that decision, while in Holytz v. City of Milwaukee, supra, Wisconsin allowed suit by the plaintiff before it, but made the new rule applicable to others only in the future. This last mode of procedure seems to us to best meet the several inevitable problems created by a change in a line of precedents. We declare the rule of liability to be applicable to this case and all other causes of action arising after this decision becomes final. This serves, in keeping with our system of the private enforcement of legal rights, to reward the present plaintiff for her industry, expense and effort, and for having given to this Court the opportunity to rid the body of our law of this unjust rule. The impact of retroactive application. on the present defendant is not likely to create any major crisis. Being prospective as to all other causes of action the municipalities are given time in which to procure insurance and take measures to protect themselves in suits thereafter arising. Any one of the three means of application of the law here is necessarily going to deny the benefit of this decision to some injured persons. This is always true when there is any change, judicial or legislative, in the law.
We would make plain that this decision imposes liability on municipalities only for the imperfect, negligent, unskillful execution of a thing ordained to be done. No tort action will lie against them for those acts involving judgment and discretion; which are judicial and legislative or quasi-judicial and quasi-legislative in nature. The exercise of discretion necessarily carries with it the right to be wrong. It is only for ordinary torts committed in the execution of the activities decided upon that a tort action will lie; not for the decision itself.
Nor have we at this time considered the liability of any other governmental unit or political subdivision.
Judgment reversed.
JoNEs, J., disqualified.
George Bose Smith, J., concurs.
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G-rifein Smith, C. J.
Two causes were consolidated. The appeals are from judgments rendered on jury verdicts for the defendants, partners who operated farms and gins. On behalf of John Blankenship, a minor, it is contended he was employed in violation of Initiative Act No. 1. Pope’s Digest, §§ 9068, 9069, 9071.
The second contention relates to the suit of D. W. Futrell, administrator of the estate of Alfred H. Futrell. It is conceded, there was substantial testimony upon which the triers of facts could have found for or against the defendants as to either plaintiff. Unless instructions were erroneous, the judgments must be affirmed.
Alfred Futrell, a cripple, had been employed by W. E. Cox & Sons since 1928. For a number of years he had been general foreman, supervising operations of gins and other machinery. Because of physical impairments it was Futrell’s custom to sit near when men were working and to explain to them how the work should be done. The Cox gin at Fulton was being overhauled. When in service it was driven by a gasoline engine. July 20 and 21 men had been working in the engine room. Alfred Yarbrough testified that late in the afternoon (July 21) he was sent by Ernest Cox to procure five gallons of gasoline for use in cleaning machinery. There is testimony that a tub and bucket were partially filled with the fluid, into which rags were dipped and applied' to the machinery. As a consequence, gasoline dripped to the concrete floor and formed small pools in recesses until the restricted area in which operations were being conducted became permeated.
Yarbrough asserted that Ernest Cox directed the work. Cox testified he had spent part of the day in the engine room, but contended he did not exercise- authority because Futrell was foreman and had charge of the work. An extension cord approximately twenty feet long was utilized in examining the engine. Yarbrough’s explanation of the fire was that insulation had been worn from a four,- five,- or six-inch section of the cord, permitting wires to contact and form a short circuit. The cord, he said, had been frequently dragged over the floor. Yarbrough was looking at the cord — presumably the end to which the light socket was connected — when the flash occurred and the gasoline was set on fire.
John Blankenship had been assisting a painter with outside work, but finished the assignment about thirty minutes before quitting* time. Yarbrough and Blankenship asked Futrell what to do. He directed that they help clean the engine. Futrell was sitting near a door and had been working on a look from a door on Kenneth Cox’ automobile. Blankenship, at the time of trial, weighed 163 pounds, and was six feet and one inch tall. He was paid $1.25 per day.
In testifying regarding the extension cord, Yarbrough asserted that Ernest Cox was present when it was being used, and that the exposed wires were easily seen. This witness also testified: . . the extension cord was on the floor when we began cleaning the engine, under Mr. Cox’s direction. . . . When Mr. Cox was there he was the boss around the engine.”
The inference is clear that the cord belonged to Futrell, or that it was kept by him and carried from place to place for use as occasion might require. Futrell had a chest containing* various tools, in which the cord had been frequently seen. Some of the tools were sent to Mrs. Futrell after her husband died, but the cord-was not in evidence, although witnesses testified to having seen it after the fire. Some were of opinion that the insulation referred to by Yarbrough as having been worn away was destroyed by fire.
Blankenship’s burns confined him to a hospital for three weeks. Medical treatment was required thereafter. Futrell died twenty-six hours after receiving burns.
Instruction No. 6, given on request of the defendants, reflects the trial court’s construction of the law applicable to Futrell: — ‘ ‘ If you find from the evidence that the light extension cord in question was the property of Futrell, then you will find for the defendants in the Futrell ease.”
Objection was that even though the cord belonged to Futrell, it was being negligently used at the time the fire started, and such use was supervised by Ernest Cox. The court was asked to amend the instruction by adding: “Unless you further find that at the time the extension cord was put in use by the deceased, it was defective, or in an unsafe condition.”
There is testimony that it was customary for Futrell to engage employes for Cox & Sons. Also, it is in evidence that Cox & Sons did the hiring and that Futrell’s duties were to superintend. While Yarbrough may be inaccurate in saying Ernest Cox was directing work in the engine room at the time the fire occurred, nevertheless Yarbrough did give testimony to that effect, and he coupled with such testimony the assertion that Futrell was otherwise engaged for perhaps twenty minutes preceding* the‘blaze, and that Cox directed the cleaning process.
It would be formulary to say, as a matter of law, that because of the prevailing custom permitting* Futrell to superintend mechanical operations, responsibility for specific conduct engaged in by employes in the immediate presence of Ernest Cox was deflected in such a way as to clear the partnership and attach to Fntrell— and this upon the theory that if Futrell owned the extension cord there could he no recovery by the administrator. Instruction No. 6 is what is termed “binding”. It closes with the expression, “. . . then you will find for the defendants”. Although evidence strongly indicates the cord was owned by Futrell or was so commonly utilized by him as to justify the presumption that if it were purchased by the Cox partnership, members of the firm were not concerned regarding it, there was no special finding- of ownership. We do not, however, regard this as controlling.
Appellees’ contention is that “.■ . . if the jury found that the . . . cord in question was defective and caused the fire and was the property of Alfred Futrell, and that Futrell was foreman and had charge and was superintending and directing the work, then, in this event, it is a well-settled rule of law that ‘no liability [is] incurred when the employe’s knowledge equals or exceeds that of the employer’ ”.
A flaw in this statement is assumption that the cord was defective when put to use by Futrell the previous day. Also, there is conflict in the testimony reg-arding relative activities of Ernest Cox and Futrell. Result is that a “binding” instruction which omitted essential elements should not have been given; nor could the vice be cured by giving an appropriate instruction.
Was the court in error when it refused to give plaintiff’s requested Instruction No. 1 in the Blankenship case?
Sections 2, 3, and 4 of the law which it is contended controls are copied in the margin. The instruction asked would have told the jury no child under sixteen years of age may be lawfully employed to oil, wipe, or clean machinery or assist “therein or about” in connection with any process in which dangerous or poisonous acids or gases or other chemicals are used. . . . “Therefore you are told that (as the undisputed evidence shows that John Blankenship, who was under sixteen years of age, was employed by W. E. Cox & Sons, in oiling’, wiping or cleaning machinery or assisting therein in, about, and in connection with processes in which dangerous and poisonous acids or gases and other chemicals were used, and [was employed to] wipe and clean machinery with rags dipped in gasoline from open containers and being used at the time to clean machinery) . . . [this] was' an occupation dangerous to life and limb, and injurious to the health and morals of John Blankenship, and [if] as a result of such employment John Blankenship suffered certain personal • injuries, . . . the defendants are liable to John Blankenship.- . . .”
There was no testimony that poisonous acids or other chamicals were used. We have judicial knowledge of the fact that in certain circumstances inflammable gases are created in consequence of evaporation of gasoline and its mixture with air. The lower court was justified in refusing to give the instruction on account of. the extraneous matter it contained, including* the reference to occupations injurious to the health and morals of the plaintiff.
Similar objections are open to requested Instruction No. 2.
An instruction was that if the jury should find from a preponderance of the evidence that the explosion and resulting fire were caused by acts of the defendants in having employes wipe machinery with rags dipped in gasoline supplied in open containers in the engine room in proximity to charged electric wires, and that the defendants, as ordinarily careful and prudent persons, knew, or should have known, that this method of work was dangerous and could easily result in a fire or explosion, and that as a result of such negligence the explosion occurred and Blankenship was injured, “then you should find for the plaintiff Blankenship.”
There was objection, general and specific, to the court’s action in giving defendant’s Instruction No. 7:— “The mere use of gasoline is not in itself negligence, unless it should be further shown that it was used under such circumstances as would cause a reasonably prudent person to anticipate that it ivould be ignited.”
Does § 9069' of Pope’s Digest, which directs employers not to permit a child under sixteen years of age to oil, wipe, or clean machinery, or assist therein, prohibit such minors from engaging in the character of work John Blankenship is shown to have been doing? It is conceded he was wiping or cleaning machinery. What, then, was the intent of the statute?
Becovery was allowed in Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S. W. 887, 12 A. L. R. 1208, on the theory that violation of the statute was the proximate cause of injury, there having been no intervening agency. So, in Fort Smith Rim & Bow Company v. Qualls, 146 Ark. 475, 225 S. W. 892. In the Dairy Company case it was said: “. . . the undisputed evidence shows that the child was injured while in the course of his employment, and the court properly took the question of proximate cause from the jury. ’ ’ Further comment was that employment of a minor in violation of the statute is negligence per se. If the injury is caused by reason of such employment, the act of employment is negligence, and is the cause from which the result came.
Indicative of the legislative intent regarding Initiative Act No. 1 is the second paragraph of § 3, authorizing the state board of health' to conduct hearings, and “. . . determine what other occupations are sufficiently dangerous to the life or limb or injurious to the health or morals of children under sixteen years to justify their exclusion therefrom. . . .”
If preservation of life or limb, and guardianship of health and morals of children, prompted initiation of the Act, can it be said there was an intent by those who framed the measure, or by the people who adopted it, to prohibit a child under sixteen from cleaning a non-operating gasoline engine? Was the word “machinery” intended to be‘all-inclusive, and to embrace mechanical contrivances of every kind and to prohibit persons who had not reached the designated age from using an oiled or gasolined rag in cleaning at a time when the contrivance or machine is not in use, cannot be operated, and is no more dangerous than a parked automobile from which the battery has been taken and the brakes set?
Webster’s International Dictionary defines a machine as any device consisting of two or more resistant, relatively constrained parts, which, by a certain predetermined intermotion, may serve to transmit and modify force and motion so as to produce some given effect or to do some desired kind of work. . . . “According to the strict definition, a crowbar abutting against a fulcrum, a pair of pliers in use, or a simple pulley block with its fall, would be a machine, but ordinary use would hardly include such as these; while an implement or tool whose parts have no relative movement, as a hammer, saw, chisel, plane, or the like, would not, of itself, in any ease be a, machine.
“Popularly and in the wider mechanical sense, a machine is a more or less complex combination of mechanical parts, as levers, gears, sprocket wheels, pulleys, shafts and spindles, ropes, chains, and bands, cams and other turning and sliding pieces, springs, confined fluids, etc., together with the framework and fastenings supporting and connecting them, as when it is designed to operate upon material to change it in some preconceived and definite manner, to lift or transport loads, etc.”
Taking into consideration the evil sought to be remedied, “machinery,” as used in the Act, must mean a more or less complex combination of mechanical parts operating in such manner as to fascinate or confound a person of tender years; and as to such contrivances it was the intent to prevent children from having access to them at a time and in circumstances when harm might conceivably result. To say it was the purpose to prohibit persons under sixteen years of age from cleaning the base of an engine made harmless by disuse, as to which there are no moving parts, would be carrying construction beyond reason.
An Alabama statute prohibited employment of boys under fourteen years of age in any mine. In Sloss-Sheffield Steel & Iron Co. v. Bearden, 199 Ala. 132, 74 So. 230, it was held that while § 1033 of the Code of 1907 applied to ore as well as coal mines, “we think that, regardless of the technical definition of the word ‘mine’, it was the legislative purpose to protect emploj^es in underground mines, whether coal or ore, and not in open or surface mines, such as the one here involved.”
In Daniels v. Thacker Fuel Co., 79 W. Va. 255, 90 S. E. 840, the holding was that a statute prohibiting employment of boys under fourteen years of age “in any coal mine” did not mean “in or about a coal mine.”
It will be observed that § 9069 relates to enumerated “occupations.” Certainly, in 1915, oiling and wiping idle machinery was not an occupation in Arkansas. Conversely, oiling and wiping machinery in operation was so generally engaged in that framers of the law might well have had in mind saw mills, cotton gins, and factories.'
We must assume, therefore, that in using the word “machinery” Act writers and the people visualized what a reasonable person would see in words arranged as those appearing in the sections urged by appellant Blankenship as authority for the proposition that his injuries were traceable to appellees ’ disobedience of law.
It follows that the court did not err in refusing to hold, as a matter of law, that the defendants were liable for Blankenship’s injuries merely because he was employed to clean an idle engine, no part of which featured in the result complained of. Nor is gasoline dangerous, per se. The court was correct in instructing that before the fact of its use could be relied upon as a basis of liability, it was essential to find that circumstances were such as to cause a reasonably prudent person to anticipate that its fumes might be ignited.
The judgment in the Blankenship case is affirmed. As to Futrell, the judgment is reversed and the cause is remanded for a new trial if the plaintiff so desires.
Mr. Justice Humphreys dissents in the Blankenship case. Mr. Justice Mehaeey concurs in the Futrell case and dissents in the Blankenship case.
A gasoline explosion in a gin owned and operated by defendants caused Alfred Futr ell’s death and severe injuries to young Blankenship. It occurred July 21, 1938, slightly less than a month before John would have been fifteen years of age.
Section 2: “No child under sixteen years shall be employed or permitted to work in any occupation dangerous to the life and limb, or injurious to the health and morals of such child. . . .” (Pope’s Digest, § 9068).
Section 3: “No child under sixteen "shall be employed or permitted to work at any of the following occupations: (1) adjusting any belt to any machinery; (2) sewing or lacing machine belts in any workshop or factory; (3) oiling, wiping or cleaning machinery or assisting therein; (4) operating or assisting in operating any of the following machines: (a) circular or band saws; (b) wood shapers; (c) wood jointers; (d) planers; (e) sandpaper of wood polishing ma chinery; (f) wood turning or boring machinery; (g) picker machines or machines used in picking wool; (h) carding machines; (i) job or cylinder printing presses operated by power other than feet power; (j‘) boring or drill presses; (k) stamping machines used in metal or in paper or leather manufacturing; (1) metal or paper cutting machines; (m) corner staying machines in paper box factories; (n) steam boilers; (o) dough brakes or cracker machinery of any description; (p) wire or iron straightening or drawing machinery; (q) rolling mill machinery; (r) washing, grinding or mixing machinery; (s) laundering machinery; (5) or in proximity to any hazardous or unguarded belt, machinery or gearing; (6) or upon any railroad, whether steam, electric or hydraulic.” (Pope’s Digest, § 9069).
Section 4: “No child under the age of sixteen shall be employed, permitted or suffered to work in any capacity; (1) in, about or in connection with any processes in which dangerous or poisonous acids or gases or other chemicals are used; (2) nor in soldering; (3) nor in occupations causing dust in inj'urious quantities; (4) nor in scaffolding; (5) nor in heavy work in the building trades; (6) nor in any tunnel or excavation; (7) nor in any mine, coal breaker, coke oven, or quarry; (6) nor in a bowling alley or pool or billiard room; nor in any other occupation dangerous to the life and limb, or inj'urious to the health and morals of such child.” (Pope’s Digest, § 9071). | [
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J. Fred Jones, Justice.
This is an appeal from a declaratory judgment decree of the Pulaski County Chancery Court and involves the interpretation of two sections of the Arkansas Gross Receipts Tax Act (Act 386 of 1941).
On March 18, 1966, John B. May Company, Inc. entered into a construction contract with the Board of Trustees of the University of Arkansas to install air-conditioning equipment and perform other construction work at the University of Arkansas Medical Center in Little Rock, Arkansas. Under a provision in the contract, .the Arkansas Gross Receipts (Sales) Tax of 3% was not added to, or included in, the original bid price, hut it was agreed that if it should later become necessary for the May Company to pay such tax on the materials and equipment used in fulfilling this contract, the contract would he reopened and the amount of the tax added to the original price.
Under an administrative ruling by the Commissioner of Revenues, the equipment was held taxable as a consumption by the contractor. The parties to the contract joined in a petition to the Pulaski County Chancery Court for a declaratory judgment naming the ap-pellee, Commissioner of Revenues, as defendant. The Commissioner responded to the petition and the case was submitted to the chancellor on an agreed stipulation of facts, which included the stipulation that the University Medical Center is a 'State-owned, tax-supported hospital.
The chancellor found that under the contract involved, contractor May was not an agent of the Medical Center but that under the Act he was the consumer of all machinery and goods used in the performance of a contract, and that the assessment of the tax against him was valid and legal. From the chancellor’s decision John B. May Co. appeals.
The definition section of the Gross Receipts Act (Ark. Stat. Ann. § 84-1902 [Repl. I960]) subsection (i) provides as follows:
“Consumer — User: The term ‘consumer’ or ‘user’ means the person to whom the taxable sale is made, or to whom taxable services are furnished. All contractors are deemed to be consumers or users of all tangible personal property including materials, supplies and equipment used or consumed by them in performing any contract and the sales of all such property to contractors are taxable sales within the meaning of this act.”
The exemption section of the act (Ark. Stat. Ann. § 84-1904 [Repl. I960]) provides as follows:
“There is hereby specifically exempted from the tax imposed by this act the following:
* # #
(p) Gross receipts or gross proceeds derived from the sale "of any tangible personal property or services as herein specifically provided to any hospital or sanitarium operated for charitable and nonprofit purposes; provided, however, that gross proceeds and gross receipts derived from the sale of materials used in the original construction or repair or further extension of such hospital or sanitarium, except State-owned, tax-supported hospitals and sanitariums, shall not be exempt from this act; provided that no unpaid tax imposed by Act 386 of 1941 on the gross receipts or gross proceeds derived from the sale of such materials to State-owned and tax-supported hospitals and sanitariums shall be collected after the passage of this Act [February 19, 1947].” [Italicized portions added to Act 386 of 1941 by amendment Act 102 of 1947.]
Appellant argues that it was the plain legislative intent, by Act 102 of 1947, to exempt 'State-owned, tax-supported hospitals and sanitariums from paying the sales tax on construction materials, either directly or indirectly- that the Legislature knew that such institutions were required by law to let such construction contracts to the lowest responsible bidder; that it was the intention of the Legislature by Act 102 of 1947 to repeal the definition of a contractor as a consumer whenever said contractor is doing business with a State-owned, tax-supported hospital or sanitarium; that the contractor, for purposes of the tax exemption, is nothing more or less than an agent of the tax exempt institution, buying and installing specified material and equipment for them at an agreed price; and that if it is held otherwise, Act 102 of 1947 will become a complete nullity.
Appellee argues that the intention and effect of Act 102 of 1947 was to provide an exemption only on sales made directly to State-owned, tax-supported hospitals and sanitariums; that the Act declares a contractor to be a consumer of goods used in his contract; and that the exemption doesn’t apply to contractors.
We agree with the appellee and have reached the conclusion that the chancellor’s decision must be affirmed. In determining the legislative intent, we look to the language of the whole Act. Tolleson v. McMillan, 192 Ark. 111, 90 S. W. 2d 990. If the language is ambiguous or uncertain, we may also look to the subject matter of the Act, the object to be accomplished, or the purpose intended, as well as other extrinsic matters which shed light on the legislative intent. McDonald v. Wasson, 188 Ark. 782, 67 S. W. 2d 722. But, in the case at bar, we find no ambiguity.
Prior to the amendment by Act 102 of 1947, § 84-1904 (p), supra, exempted receipts or proceeds derived from the sale of any tangible personal property or services to any hospital or sanitarium operated for charita- Me or nonprofit purpose, but specifically did not exempt the sale of materials used in the original construction or repair or further extension of such hospital or sanitarium. By the amendatory Act 102 of 1947, the Legislature excepted the State-owned, tax-supported hospitals and sanitariums from the proviso-of the Act taxing the materials used in the construction, repair, or further extension of charitable nonprofit hospitals and sanitariums, thus making the State-owned, tax-supported hospitals and sanitariums exempt in cases of sales to such hospital or sanitarium for original construction, repair, or further extension.
In construing tax exemption statutes strictly, as we must do (Scurlock, Comm. of Rev. v. Henderson, 223 Ark. 727, 268 S. W. 2d 619), we conclude from the wording used by the Legislature that the sale must be directly to such hospital or sanitarium to be exempt. This interpretation is further supported by the legislative wording in the proviso added by Act 102 of 1947, that no unpaid tax on receipts or proceeds derived from the “sale of such materials to State-owned, tax-supported hospitals and sanitariums shall be collected after the passage of this Act.”
Thus, the statute in clear and unambiguous terms requires the sale to be directly to the tax-exempt institution. Appellant contends that the contractor in this case is merely an agent of the institution, buying and installing specified material and equipment at an agreed price, and thus the sale would be to the institution. We cannot agree with this contention in light of § 84-1902 (i), supra. To do so would imply an agency when the Act clearly makes the contractor the consumer of “all tangible personal property including materials, supplies and equipment used or consumed by them in performing any contract. ...”
This same contention was advanced and rejected in the case of Alabama v. King & Boozer, 314 U. S. 1, 62 S. Ct. 43, 86 L. Ed. 3, where King and Boozer sold lumber on the order of contractors to be used by the latter in constructing an army camp for the United States. The Alabama Supreme Court had found the sale nontaxable, concluding that although the contractors were indebted to the seller for the purchase price of the lumber, they were so related by their contract to the Government’s undertaking to build a camp, and were so far acting for the Government in the accomplishment of the governmental purpose, that the tax was in effect “laid on a transaction by which the United States secures the things derived for governmental purposes,” so as to infringe the constitutional immunity. The U. S. Supreme Court reversed, stating:
“[T]lie contractors were to purchase in their own names and on their own credit all the material required, unless the Government should elect to furnish them; that the Government was not to be bound by their purchase contracts, but was obligated only to reimburse the contractors when the materials purchased should be delivered, inspected and accepted at the site.
*
[T]lie legal effect of the transaction which we have detailed was to obligate the contractors to pay for the lumber. The lumber was sold and delivered on the order of the contractors, which stipulated that the Government should not be bound to pay for it. It was in fact paid for by the contractors, who were reimbursed by the Government pursuant to their contract with it. The contractors were thus purchasers of the lumber, within the meaning of the taxing statute, and as such were subject to the tax. They were not relieved of the liability to pay the tax either because the contractors, in a loose and general sense, were acting for the Government in purchasing the lumber or, as the Alabama Supreme Court seems to have thought, because the economic burden of tbe tax imposed upon the purchaser would be shifted to the Government by reason of its contract to reimburse the contractors.
# # #
But however extensively the Government may have reserved the right to restrict or control the action of the contractors in other respects, neither the reservation nor the exercise of that power gave to the contractors the status of agents of the Government to enter into contracts or to pledge its credit.”
Appellant also contends that § 84-1902 (i); supra, pertains only to hand tools, construction equipment, etc. The King & Boozer case, supra, also refutes this argument. It could hardly be said that the lumber involved in that case fits in the category of hand tools, construction equipment, etc., but, to the contrary, it is clearly seen that lumber in that case, as air conditioners in the case at bar, becomes an integral part of the construction, yet is consumed by the contractor, for taxation purposes, in fulfilling his contract.
Even though Act 102 of 1947 contained a clause providing for the repeal of “all laws and parts of laws in conflict herewith,” we find no inconsistency between § 84-1902 (i) and § 84-1904 (p). Thus, there is no repeal thereby as appellant urges, as a general clause repealing all laws in conflict does not operate to repeal any laws not in conflict. Jones v. Oldham, 109 Ark. 24, 158 S. W. 1075.
Appellant also contends that the chancellor erred in failing to properly interpret the cases of Kern-Limerick v. Scurlock, 347 U. S. 110, 74 S. Ct. 403, 98 L. Ed. 546, which arose in Arkansas (see Parker v. Kern-Limerick, Inc., 221 Ark. 439, 254 S. W. 2d 454 and 223 Ark. 464, 266 S. W. 2d 298), and Alabama v. King & Boozer, supra. In his brief, appellant states that: “A study of the Parker v. Kern-Limerick case shows the final decision to be that where a Government Agency has a statutory sales exemption that a contractor, though defined as a consumer, becomes an agent for the owning agency for the tax exemption purposes.” We find that it is the appellant’s interpretation, and not the chancellor’s, that is incorrect. The King & Boozer case refused to imply an agency for purchase into the contract. In the Kern-Limerick case an agency for purchase was expressly created by the terms of the contract. Both cases recognized the same economic effect on the United States, but found the difference in the result to lie in the form of the contract. As stated in the Kern-Limerick case:
“Under these circumstances, it is clear that the Government is the disclosed purchaser and that no liability of the purchasing agent to the seller arises from the transaction. [This was found to be the opposite in the King & Boozer case.]
We find that the purchaser under this contract was the United States. Thus, King & Boozer is not controlling for, though the Government also bore the economic burden of the state tax in that case, the legal incidence of that tax was held to fall on the independent contractor and not upon the United States.
“But since purchases by independent contractors of supplies for Government construction or other activities do not have federal immunity from taxation, the form of contracts, when governmental immuniity is not waived by Congress, may determine the effect of state taxation on federal agencies,-for decisions consistently prohibit taxes levied on the property or purchases of the Government itself.” (Emphasis supplied.)
The latter proposition was equally stated in the King & Boozer case:
“The soundness of this conclusion turns on the terms of the contract and the rights and obligations of the parties under it.”
The appellant in the case at bar was not made an agent for the purchase of materials as was done in the Kern-Limerick case where the contract called for the contractor to act as purchasing agent for the Government, and title to the articles purchased passed directly from the vendor to the Government, and the Government was directly liable to the vendor for payment of the purchase price. These elements are not persent in the case at bar.
We agree with the chancellor’s finding that the relationship in the case at bar was one of independent contractor, not agency, and therefore the appellant was a consumer, or user, of the items involved within the meaning of the Act. The chancellor was correct in finding that the sale was to the contractor in this case and in holding that the sale to the contractor was taxable. The decree of the chancellor is affirmed. | [
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James H. Piikinton, Judge.
Appellants Marvin D. Hendrix and Michael W. Fendley are businessmen, engaged in land development under the name of Fendley & Hendrix Development Company. Both appellants, who will hereinafter be called Hendrix and Fendley, respectively, have had experience in the business of land development and are familiar with contracts of the type which are the subject of this action.
On or about December 9, 1977, Hendrix and Fendley retained appellee Sidney M. Thom & Co., Inc. (hereinafter called “Thom”), a mortgage banking firm, of Little Rock, Arkansas, to arrange for them a mortgage loan of $577,500.00 for 25 years, with interest at 9-Vk% per annum, to be repaid in monthly installments, including interest. The loan was to be evidenced by a note to be executed by the appellants and secured by a first lien on real property located on the Highway 59 By-pass, in Atlanta, Texas. The purpose of this loan was to construct a Wal-Mart store and place it on a permanent loan basis.
The agreement between Thom and appellants was executed by Hendrix and Fendley. This agreement called for the payment to Thom, for its services, the sum of $5,775.00. Appellants paid to Thom the sum of $5,775.00.
On or about December 12, 1977, Thom secured a loan commitment from appellee National Old Line Insurance Company (hereinafter called “National Old Line”), which was issued on December 21, 1977. As agent for and on behalf of the appellants, and with their knowledge and consent, Thom issued its check to National Old Line in the sum of $5,-775.00, which represented one-half of the “good faith” com mitment fee that National Old Line required from appellants before the loan commitment would be made.
On or about December 30, 1977, appellants accepted the loan commitment offered by National Old Line. The brokerage commission claimed by Thom had not been paid as the only funds received by Thom were paid to National Old Line on behalf of the appellants.
The commitment issued by National Old Line was negotiated by appellants with National Old Line. The commitment called for the payment by appellants to National Old Line of a “good faith” fee of $11,550.00. This fee was paid, $5,775-00, of which was paid by the appellants and $5,775.00 by Thom on behalf of the appellants. This fee was to be refunded if the loan was closed in accordance with the commitment.
In addition to the “good faith” fee, which was paid, the commitment called for the execution by appellants of a non-interest bearing promissory note, payable to National Old Line, in the amountof $11,550.00, which was to be in consideration of the issuance of the commitment. The note was to be payable on September 1, 1978, only in the event that the loan covered by the commitment was not closed.
Appellants executed to National Old Line the promissory note for $11,550.00 as agreed. Because of the loan commitment by National Old Line to appellants, National Old Line arranged its corporate financial affairs in order to have the money available to fund the loan called for by the commitment.
Appellants, after the signing of the commitment, were unable to consummate their purchase of the land in Atlanta, Texas, upon which the Wal-Mart facility was to be constructed. They contended they had a valid cause of action against the land owner for breach of contract; however, in order not to compromise their future relationship with Wal-Mart, and seeing a way to obtain a profit, appellants accepted the sum of $22,000.00, paid by the owner of the land, for the release of all claims against the property. The Wal-Mart facility was subsequently built, but appellants were not involved.
By a letter dated February 9, 1978, which letter was received by National Old Line on February 13, 1978, appellants requested the cancellation of the commitment and a “reasonable cancellation of obligations.” Appellants stated they would be unable to perform under the terms of the commitment because they were unable to purchase the property which was to be the security for the loan.
Appellees contended that appellants by their action repudiated the commitment, thereby breaching their contract with National Old Line. Appellees took the position National Old Line had performed under the terms of the commitment insofar as it was able in view of the repudiation by appellants.
National Old Line did not agree to a cancellation of the commitment and the loan covered by the commitment was not closed during July, 1978, in accordance with the terms of the commitment. Therefore, National Old Line claims, under the terms of the commitment, it was entitled to retain the $11,550.00 “good faith” fee paid by the appellants, or in their behalf; and to collect the note executed by the appellants which became due and payable on September 1, 1978, and has not been paid.
Hendrix and Fendley filed this suit, praying for return of the fees paid to Thom and National Old Line, and for cancellation of the note held by National Old Line under the commitment agreement. They alleged, and sought to prove, that construction financing was refused them because the commitment was conditional, and required subjective exercise of judgment by National Old Line; but, in any event, that the project was cancelled and notice was given to National Old Line prior' to the commitment becoming binding. Thom and National Old Line denied the allegations, and counterclaimed. Thom claimed its brokerage fee was justly paid; and National Old Line prayed for a declaratory judgment that the agreement is valid and enforceable, and for a finding that it is entitled to keep the “good faith” commitment fee it now holds; and to collect on the note from Hendrix and Fendley.
The lower court dismissed the complaint for want of equity, and entered judgment on both counterclaims. Hendrix and Fendley have appealed.
We think the chancery court was correct and therefore affirm in all respects.
The evidence is clear that Thom fully performed under the brokerage contract, and thus earned its fee. Pursuant to its agreement with appellants, Thom arranged the loan commitment with National Old Line, and nothing Thom did caused the project to be cancelled. The record clearly shows that Thom fully performed his obligation to appellants.
We also agree with the chancellor that the commitment in question, issued by National Old Line, was a valid and enforceable contract. We find no merit in appellants’ contention that it was a conditional and illusory agreement. It is true that this commitment contained a so-called “satisfaction clause” with reference to the site, but the document was nevertheless a binding agreement. National Old Line could not have made a determination that it was not satisfied with the site except in good faith and for valid reasons. Thus the duty to act in good faith was sufficient consideration to support the contract, notwithstanding appellants’ argument that the promises involved were illusory. Mattei v. Hopper, 51 Cal. 2d 119, 330 P. 2d 625 (1958); Larwin-Southern California, Inc. v. JGB Investment Company, 101 Cal. App. 3d 626, 162 Cal. Rptr. 52 (1979); Commercial Mortgage and Finance Corp. v. Greenwich Savings Bank, 112 Ga. App. 388, 145 S.E. 2d 249 (1965); Boston Road Shopping Center, Inc. v. Teachers Insurance and Annuity Association of America, 13 App. Div. 2d 106, 213 N.Y.S. 2d 552 (1961), Aff'd 11 N.Y. 2d 831, 182 N.E. 2d 116, 227 N.Y.S. 2d 444 (1962). See also Draper, Tight Money and Possible Substantive Defenses to Enforcement of Future Mortgage Commitments, 50 Notre Dame Lawyer 603 (1975).
The commitment issued by National Old Line was consideration for the commitment fee. This commitment obviously had value to appellants. They had paid the refundable “good faith” fee in the amount of $11,550.00, and executed a promissory note in the same amount for the commit ment. The note was to become payable on September 1, 1978, in the event the loan was not closed in accordance with the commitment letter. The record shows that appellants lost their option on the land involved and the project fell through for that reason. Appellant Hendrix admitted that the commitment would have been satisfactory if the project could have been built as anticipated. Under these circumstances, we cannot say that the decree of the chancery court is not correct. See Goldman v. Connecticut General Life Insurance Company, 251 Md. 575, 248 A. 2d 154 (1968). See also 93 ALR3d 1156 (1979).
The chancellor concluded that the commitment contract issued by National Old Line, and accepted by appellants, was a binding obligation, and that the enforcement of its terms did not depend upon any condition precedent.
We do not disturb a decree of the chancery court on appeal unless it is clearly erroneous. Rule 52, Arkansas Rules of Civil Procedure.
Affirmed.
Wright, C.J., dissents. | [
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David Newbern, Judge.
The question presented is whether leaving a complaint and summons with the son of the appellant (who was also the appellant’s employee) at the appellant’s business address constituted valid service of process upon the appellant. We hold it did not.
The appellees filed a complaint alleging the appellant owed a sum of money, evidenced by a promissory note, to the estate they represent. The complaint and summons were handed to the appellant’s son, Barry Emerson, at the appellant’s place of business, not his abode. The factual statement in the appellant’s brief is that the return filed by the sheriffs office recited that the appellant was personally served with the summons and complaint. Curiously, the summons and complaint are not abstracted, and they do not appear in the record. Instead, there is a “clerk’s statement as to summons,” as follows: “Summons issued October 26, 1979, and served on Mr. Billy G. Emerson on October 29, 1979.” We will accept the appellant’s statement of the facts with respect to what the return showed, as the appellees have filed no brief or supplemental abstract.
After 20 days had passed from the time the complaint was purportedly served, the appellant filed an answer stating he had not been personally served in the matter and alleging defenses on the merits of the claim. The trial court held a hearing on the question whether default judgment should be granted or the service quashed. At the hearing the appellant presented evidence to the effect that the summons and complaint were handed to his son, and the appellant had in turn presented them to the attorney who customarily represented him. As it happened, the attorney is a law partner of one of the appellees and thus could not handle the matter. By the time the appellant obtained other counsel, the time to answer had passed.
Toward the close of the hearing, the court made the following remarks:
There is case law that any agent or a servant employee of the party is an authorized person to receive summons. He can be served if he is in the course of his employment and found within the jurisdiction of the Court.
The closing colloquy between the court and the appellant’s counsel reveals the court’s impression that because the appellant’s son was an employee of the appellant the service was appropriate and authorized by law.
A.R. Civ. P. 4(d)(1) controls this matter. It provides:
(d) Personal Service Inside the State: A copy of the summons and of the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary: Service shall be made as follows:
(1) Upon an individual, other than an infant or an incompetent person, by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least fourteen (14) years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.
There is no question that the portion of the rule permitting service by “leaving a copy ... at his dwelling house or usual place of abode with some person residing there,” does not apply in this case. No evidence tended to show the service was made at the appellant’s dwelling or handed to a person residing there. The only question is whether, as the trial court found, Barry Emerson was “an agent authorized by appointment or by law to receive service of summons.”
1. Authorization by law.
We simply can think of no “law” which would make either a son or an employee, or a person who is both, an agent authorized to accept service of process on behalf of his father-employer. There are, of course, situations to which this part of the rule applies, such as the statute conferring authority upon the Secretary of State to receive process for a nonresident motorist or corporation. Ark. Stat. Ann., § 27-339.1(3) (Repl. 1979).
The closes we can come to finding case “law” which might be considered to constitute a family member an agent ■for this purpose is Crawley v. Neal, 152 Ark. 232, 238 S.W. 1054 (1922), in which our supreme court, by way of dictum, described the wife of a prospective defendant as his “agent” for receipt of process. There, however, our supreme court was faced with a situation in which the wife was served pursuant to the now superseded Arkansas statute permitting process to be left at the usual place of abode of the defendant with a person who is a member of his family over the age of 15 years. Clearly, such a person was specifically authorized to receive process under the superseded statute, Ark. Stat. Ann., § 27-330 (Repl. 1962), and is authorized pursuant to Rule 4(d)(1), because of the specific provision constituting such a person an agent for that purpose.
As we find no “law” validating the service in this case, we turn to the question whether the recipient was “an agent authorized by appointment.”
2. Agent by appointment.
. In its relevant part, our rule is the same as F. R. C. P. 4(d)(1). The federal rule has uniformly been interpreted strictly to require that a person who is to be considered authorized by appointment to receive process have specific authorization. See, U.S. v. Marple Community Record, Inc., 335 F. Supp. 95 (E.D. Pa. 1971). Service on a person who is an agent for purposes other than receipt of process does not comply with the rule. Hardy v. O’Daniel, 16 F.R.D. 355 (D.D.C. 1954). See generally, Annot., 26 ALR 2d 1086 (1952); Annot., 11 L. Ed. 2d 1036 (1964); and 4 Wright & Miller, Federal Practice and Procedure, § 1097, p. 370 (1969).
In states having rules precisely like or very similar to the Federal and Arkansas rules, the same or similar language has been interpreted to mean that a person who was an agent for a different purpose may not bind a defendant by receiving process for him. For example, an agent authorized to collect rent for a property owner is not considered to have been appointed to receive process for his principal, Foster v. Lewis, 78 Nev. 330, 372 P. 2d 679 (Nev. 1962), and an office secretary is not an agent authorized to receive service for her employer at his office, Haley v. Hershberger, 207 Kan. 459, 485 P. 2d 1321 (1971).
3. Superseded Arkansas law.
It is difficult for us to know what the trial court had in mind when he referred to “case law that any agent or a servant employee of the party is an authorized person to receive summons.” Our superseded statute, Ark. Stat. Ann., § 27-330, supra, would not have permitted it, although there was a provision in another statute for service upon the “cashier, treasurer, secretary, clerk or agent” of a corporation. See superseded Ark. Stat. Ann., § 27-346 (Repl. 1962).
Our supreme court was as zealous in construing statutes of this type strictly as the federal courts have been in construing the rule. See Edmondson v. Farris, 263 Ark. 505, 565 S.W. 2d 617 (1978); Booker v. Greenville Gravel Co., 249 Ark. 330, 459 S.W. 2d 408 (1970). Thus, we feel no hesitancy in following the federal cases and the state cases cited above in holding Barry Emerson was not an agent appointed for the purpose of receiving summons.
To conclude this portion of our opinion, we should note that the only argument made by the appellees at the hearing was that the return which recited service upon the appellant “speaks for itself.” The return is only prima facie evidence of what transpired, and the truth is subject to proof in a hearing such as the one held below. Hirsch v. Perkins, 211 Ark. 388, 200 S.W. 2d 796 (1947); Crawley v. Neal, supra.
Conclusion.
As we hold the service of process was invalid, sustaining a motion to quash would have been appropriate. However, the appellant has tendered an answer on the merits of the claim. On this appeal, the appellant does not ask that we regard the service of process as quashed, thus requiring the appellees to begin again. Rather, the appellant only asks that his answer be considered. This approach will, of course, save time, effort and expense for the court and the parties. Therefore, we remand to the trial court with instruction that the appellant’s answer be allowed to stand and the case be allowed to proceed as if the answer had been timely filed. A.R. Civ. P. 1.
Reversed and remanded. | [
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John I. Purtle, Justice.
Appellee was charged and convicted in the Little Rock Municipal Court for failure to pay his privilege license tax under Little Rock Ordinance 21-13. His defense was that he had paid for a mixed drink permit pursuant to Little Rock Ordinance 4-43, and this permit should take the place of the privilege license which he refused to pay. On appeal the circuit court found appellee not guilty because the city had not proved beyond a reasonable doubt that appellee should have paid the privilege license fee.
The City of Little Rock brings the appeal and alleges that (1) the trial court erred in finding the city did not prove beyond a reasonable doubt that appellee was guilty; and (2) the trial court erred in finding appellee was not required to obtain a privilege license since he had paid for a mixed drink permit. We agree with the appellant’s contentions and reverse the case.
Appellee does not dispute that he received notice to pay the taxes under the privilege license provisions of the Little Rock Code of Ordinances. He simply stated he did not think it was right to pay it when he had already paid a license to sell mixed drinks. It was appellee’s contention that the payment of the mixed drink permit authorized him to operate his private club and sell mixed drinks. Appellee has operated a private club for many years in Pulaski County, Arkansas, and up until January 2, 1978, he sold food and beverages and provided other entertainment. Since January of 1978, he has sold only non-alcoholic drinks and mixed drinks consisting of alcoholic beverages and the ingredients used in their preparation. He does not serve food. The appellee’s primary defense for not paying the privilege license tax was stated as follows:
I willfully did not pay the privilege license because I didn’t think it was right.
We will discuss both of appellant’s points for reversal at the same time. It must first be noted that appellee did not challenge the constitutionality of either ordinance nor did he deny receiving notice that the taxes were due. Appellee admits that prior to 1978 he was paying both taxes; but, when he discovered they were being billed on the same form, he decided he was being taxed twice for the same thing. Appellee did not file a brief, and the only clue we have to his contention is that set out in the facts above.
Since there is not attack on the validity of either ordinance, we consider the ordinances to be valid. Little Rock Code of Ordinances Section 21-13 provides, among other things, that any person carrying on a business shall pay a license fee. Little Rock Code of Ordinances Section 4-43 requires anyone selling mixed drinks to obtain a mixed drink permit.
Without deciding whether it is permissible for a city to impose double taxes upon its residents, we find the trial court was in error because the privilege tax was for the purpose of carrying on a business. The business was that of operating a private club. The private club also wanted to sell mixed drinks, which is no doubt the primary purpose of its existence, and before it could do so the city required a mixed drink license. These are two separate and distinct subjects of taxation. Obviously, a private club could be operated without selling mixed drinks. Certainly they would not need a mixed drink permit to have floor shows, allow dancing, or listen to music. Therefore, we have no hesitancy in saying the taxation was for two separate and distinct purposes. The fact that the two ordinances are both revenue measures has no bearing on their validity under the facts of this case.
The trial court was in error in finding the appellant had not proved its case beyond a reasonable doubt. There was no evidence whatsoever other than the appellee refused to pay the tax after notice. There was no dispute at all on the facts. This is simply a matter of the interpretation of these two ordinances. As previously stated, we interpret them to cover two separate and distinct objectives and they are therefore a valid exercise of the authority of the city.
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George Rose Smith, Justice.
The plaintiff, Clayton Howard, was employed for 20 days by the defendant company as an assistant truckdriver for long-distance hauling. After his employment ended he brought this action to recover unpaid wages and a statutory penalty of $43.69 a day for the employer’s failure to pay his wages within seven days after he was discharged. Ark. Stat. Ann. § 81-308 (Repl. 1976). The case was heard without a jury. The judgment awarded Howard $383 in back wages, but found that he was not entitled to the penalty. The Court of Appeals certified the case to us.
The appellant concedes that the statute is penal, that the penalty is imposed only in favor of one who comes strictly within its language, and that the statutory language does not cover one who quits voluntarily. Missouri Pac. R.R. v. Clement, 207 Ark. 389, 181 S.W. 2d 240 (1944).
The controlling question at the trial was whether Howard voluntarily quit or was fired. On this issue there was substantial testimony to support a decision either way. Howard rested his case after making prima facie proof that wages were due and had not been paid after demand. A witness for the defendant testified that on the last day of Howard’s employment he telephoned the company from Chicago, saying that the principal driver was ill and asking for instructions. The witness, who heard the conversation on an extension telephone, testified positively that Howard was not fired. To the contrary, Howard said that he was getting off the truck, which in the trade means that he was quitting. The witness also testified that Howard rode back on the truck as a passenger, although the company had sent him money to return by bus.
In rebuttal, Howard testified that, after an exchange of much profanity during the telephone conversation, he told Mr. Kirtner, who had answered the call, that if Kirtner had to talk to him the way he did, he couldn't work under those conditions. Howard said that he was fired and did not quit until he returned to Little Rock, saying then: “There’s no sense in you firing me, because I quit.” He said he quit because he was not paid all his wages. He admitted that he asked for and received the money for a bus ticket, that he rode back on the truck, and that he spent the bus fare to pay personal debts.
We regard the issue as having been simply one of fact, upon which reasonable minds might differ. Without having had the advantage of hearing the testimony, we are not in a position to say that the trial court’s decision is clearly erroneous.
Affirmed.
Purtle, J., not participating. Mays, J., dissents. | [
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James R. Cooper, Judge.
This appeal is from a decree of permanent injunction granted by the Chancery Court of Crittenden County, Arkansas, in which that court permanently enjoined appellants from removing earth from within 150 feet of appellee’s property and easement lines. The order denied all other prayers for relief and for damages and assessed costs of the action against appellants. The complaint of the appellee was filed July 21, 1976, and a hearing was held on July 28, 1976. The complaint prayed for a temporary injunction enjoining appellants from continuing excavation pursuant to an agreement between appellants for the removal of borrow material from 6 acres of land owned by the Johnson Company located between 2 tracts of land owned by appellee. The borrow material was to be used as fill material for a Union 76 Truck Stop, pursuant to a contract between Folk and the contractor on that project. One tract of land owned by appellee was adjacent to the Mississippi River on its west bank, and was the site of barge loading facilties. Appellee had an easement across the Johnson land for its pipelines to other facilities which were located on land which was adjacent to the Johnson property on the west side. The complaint alleged that appellee had no adequate remedy at law and that unless appellants were restrained from excavation pursuant to the agreement (the terms of which were unknown to appellee) the barge loading facilities were likely to be totally destroyed resulting in great or irrevocable injury to appellee.
Following the hearing, the Court granted a temporary injunction, and provided two alternative forms of injunction, with the choice as to which option, to use being left to appellee. The first option provided that upon the posting of a surety bond in the amount of $25,000.00, appellants were to be enjoined from further excavation as complained of in the complaint within 100 feet of appellee’s property and easement lines. The second option provided that upon the posting of a surety bond in the amount of $100,000.00, then appellants were to be enjoined from any further excavation as complained of in the complaint. Appellee chose the second option. Following trial the Court issued a memorandum opi nion and a final decree of permanent injunctions was entered March 12, 1980. That order enjoined appellants from removing earth from within 150 feet of appellee’s property and easement lines and denied claims for damage, primarily based on its allegation that it was forced to buy and haul from distant pits at a greater cost. From those decisions of the trial court comes this appeal.
Appellant first alleges that the Chancery Court erred in not awarding monetary damages when the Court made permanent only a portion of the temporary injunction. Appellant argues that it is clear that the trial court enjoined less excavation in its order of permanent injunction. Appellee argues that the planned excavation initially enjoined was less than that which was enjoined in the permanent injunction.
Ark. Stat. Ann. § 32-307, (Repl. 1977) states;
.... upon the dissolution in whole or in part of any injunction or restraining order of any and every kind and nature whatsoever, the Chancery Court wherein the same was pending may assess and render against the principal and sureties on the injunction bond, a valid judgment for any and all damages occasioned by the issuance of any such injunction or restraining order. . . .
We are unable to say that the permanent injunction was narrower in scope than the temporary injunction and, in any event, since the award of damages under the above cited statute is discretionary with the trial court, in order to reverse on this ground we would have to find that the Chancellor abused his discretion. We do not so find.
Evidence was presented to the Chancellor which indicated that the dirt removed from the Johnson property was not suitable for the completion of the contract between Folk Construction Company and Union 76 and that appellant Folk has determined prior to the issuance of the temporary injunction that another site for fill dirt would have to be located. The Chancellor could easily have found, under these circumstances, that since appellant Folk was obligated to provide fill dirt of a certain specification which was not available at this site then it could not have incurred damages as a result of the temporary injunction. Therefore the trial court may have denied an award of damages on any one of three bases: First, that the fill dirt was not suitable for purposes of the Union 76 contract, and therefore damages, if any, were not attributable to the issuance of the temporary injunction; second, that the permanent injunction was at least equal to or greater than the temporary injunction; or third, the trial court could have found that damges were not proved. In any case, the award of damages was discretionary with the trial court and unless clearly against the preponderance of the evidence or clearly erroneous we will not disturb the Chancellor’s findings. Rule 52, Arkansas Rules of Civil Procedure. We find no abuse of discretion here.
For its second point for reversal appellant claims that the Court erred in not allowing Folk to prove all damages resulting from the temporary injunction. Appellant Folk attempted to amend its pleadings during trial, after this case had been on file for almost 3 years and the trial court denied its motion to amend and refused to allow further testimony related to alleged damages not pled. A determination of whether to allow amendments to pleadings is clearly discretionary. We hold that the trial court did not abuse its discretion in refusing to allow an amendment to the pleadings at such a late date. Shoptaw v. Puterbaugh, 263 Ark. 778, 567 S.W. 2d 288 (1970).
The third point alleged as error by appellant is that the issuance of the permanent injunction was not supported by a preponderance of the evidence. We find this contention to be without merit.
This case involved extensive pleadings, discovery and the testimony included conflicting testimony of several expert witnesses. The testimony of the expert witnesses in this case was detailed and complex and the Chancellor was in a better position to judge the weight to be given their testimony than is this Court. Minton v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974). Rule 52 of the Arkansas Rules of Civil Procedure provides that this Court should not reverse the findings of a Chancellor on the value and weight to be given to the testimony of experts unless his findings are clearly erroneous (clearly against the preponderance of the evidence).
Having heard all the witnesses and examined the exhibits, the Chancellor found that the removal of earth as contemplated by appellants within 150 feet of appellee’s property and easement lines would result in irreparable injury to the property of appellee. These findings by the Chancellor are not clearly erroneous or against the preponderance of the evidence. To the contrary, his findings are clearly supported by a preponderance of the evidence.
Finding no error, we affirm the decision of the Chancellor.
Corbin, J., not participating. | [
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James H. Pilkinton, Judge.
This is a workers’ compensation case. Aubrey Chance is 56 years of age and was and is employed by the Arkansas Department of Correction. He claims, that as a result of this employment he came into contact with an occupational disease, tuberculosis; that he has been temporarily and totally disabled at varying times as a result of this tubercular condition; that the statute of limitations has been tolled; and that the Tucker Unit of the Arkansas Department of Correction, where claimant worked, is in effect a “sanitorium” within the meaning of the Arkansas Workers’ Compensation Act.
Mr. Chance was first employed by the Arkansas Department of Correction on December 7, 1970. After working a short time as a building security guard, he was assigned to the position of superintendent of maintenance at the Tucker Unit. He was responsible for maintaining the buildings, exterior and interior, on the Tucker prison farm. In February of 1974 Mr. Chance became engaged in remodeling work at the prison.
On one Sunday morning in June, 1976, Mr. Chance went to the Jefferson Hospital in Pine Bluff after he had felt bad all week. He was admitted to the hospital where he remained for approximately ten days under the care of Dr. S. H. Hoover. Following this period of hospitalization he returned to work and on August 2, 1976, while working at the prison rodeo, passed out and was hospitalized for ap proximately six days. Dr. A. G. Sullenberger was thereafter called in for consultation and, on August 26, 1976, claimant was again hospitalized and underwent surgery immediately. A few days later, Dr. Sullenberger advised claimant for the first time that he had tuberculosis. He later returned to work and in June, 1978, Mr. Chance was transferred from the Tucker Unit to a job site in Pine Bluff where he was still working at the time of the hearing.
On or about February 23, 1979, claimant filed an A-7 with the Arkansas Workers’ Compensation Commission claiming benefits as a result of injuries to his lungs which he stated occurred on October 18, 1972, from “exposure to chlorine gas.” About four months later, on June 26, 1979, claimant filed an amended A-7 which for the first time alleged “contraction of tuberculosis on the job as a result of exposure to contaminated inmates.” The amended A-7 reflected a date of “June 13, 1976” as the date of the accident.
The Arkansas Department of Correction has controverted the claim in its entirety. The hearing below was limited to the issue of temporary total disability benefits, medical benefits, and attorney’s fees, leaving open the issue of permanent disability for a later determination. It is the appellant’s contention that claimant did not sustain an accidental injury arising out of his employment, there being no causal relationship between the tuberculosis condition and his employment; and alternately, appellant contends that if claimant’s condition was causally related, the claim was barred by the statute of limitations, the last injurious exposure having occurred more than two years before the filing of the claim. Appellant further contends that claimant’s condition was not a compensable occupational disease as defined by the workers’ compensation law in effect at that time because the prison did not constitute a hospital or sanitorium as referred to and required by the applicable statute.
In an opinion, which was affirmed by the Arkansas Workers’ Compensation Commission, the administrative law judge found that Mr. Chance had contracted tuberculosis in 1974 while working for appellant and that since the claimant had been receiving medical benefits under the group in surance plan of the State of Arkansas, the statute of limitations had been tolled. There was also a further finding that under the unique circumstances of this case, Tucker Prison Unit was a “sanitorium” within the meaning of the Arkansas Workers’ Compensation Act. The Arkansas Department of Correction has appealed from the Commission’s affirmation of the above findings.
Since this claim is one for benefits as a result of an occupational disease allegedly contracted in 1976 during the course of claimant’s employment with appellant, we must review the provisions of the Workers’ Compensation Act in effect at the time insofar as they relate to occupational diseases. Section 14 of the Act (Ark. Stat. Ann. § 81-1314) in effect in June, 1976, provides in part as follows:
Section 14. Occupational Diseases: (a) General provisions: (I) Where an employee suffers from an occupational disease, as hereinafter defined, and is thereby disabled or dies as a result of such disease, and the disease was due to the nature of the occupation or process in which he was employed within the period previous to his disablement as limited in subdivision (7) of this subsection, the employee, or in case of death, his dependents, shall be entitled to compensation as if such disablement or death were caused by injury, except as hereinafter otherwise provided, (emphasis supplied)
The term “occupational disease” was further defined under that section as follows:
(5) (i) ‘Occupational disease’ as used in this Act means any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee, or naturally follows or unavoidably results from an injury as the term is defined in this Act. Provided, a causal connection between the occupation or employment and the occupational disease must be established by clear and convincing evidence, (emphasis supplied)
Other provisions of the Act which are of significance are found in Sections 15 (5) (ii) and (iii) which provide:
(ii) No compensation shall be payable for any contagious or infectious disease, unless contracted in the course of employment in, or immediate connection with, a hospital or sanitorium in which persons suffering from such diseases are cared for or treated, (emphasis supplied)
(iii) No compensation shall be payable for any ordinary disease of life to which the general public is exposed.
As to the amount of compensation payable in the case of a compensable occupational disease, the law in effect in 1976 under Section 14 provided:
(6) . .. the amount of compensation shall be based upon the average weekly wage of the employee when last injuriously exposed under such employer; and the notice of injury and claim for compensation, as hereinafter required, shall be given and made to such employer, (emphasis supplied)
One last section of the Act in effect in 1976 is found in Section 14 (7) and provides in part:
(7) An employer shall not be liable for any compensation for an occupational disease unless such disease shall be due to the nature of an employment in which the hazards of such disease actually exist, and are characteristic thereof and peculiar to the trade, occupation, process or employment, and is actually incurred in his employment. . . . (emphasis supplied)
Initially it should be observed that in a claim for occupational disease, claimant cannot prevail on a mere “preponderance of the evidence.” The law very explicitly requires that the causal connection between the occupation or employment and the occupational disease “must be established by clear and convincing evidence.” (emphasis suplied). “Clear and convincing evidence” is defined in Kelly v. Kelly, 264 Ark. 865, 575 S.W. 2d 672 (1979).
There is not doubt that claimant now has tuberculosis. However, after a careful study of the evidence, we have concluded that there is no substantial evidence in this record clearly and convincingly showing a casual connection between Mr. Chance’s employment and his tubercular condition. Therefore we must reverse.
Some of the testimony apparently was intended to prove that claimant contracted tuberculosis from either inmate Gene McGahan in 1972 or from inmate Dale Pennington in 1974. Mr. Chance himself testified that he could not say how many months he worked with Gene McGahan but as far as he recalled it was all in 1972. As to inmate Pennington, claimant testified that this inmate was transferred to Tucker from Cummins in February, 1974, and that he worked in close contact with him eight or nine months during 1974 until Pennington was transferred inside to the tool room because he couldn’t work outside. Mr. Chance further said during the period Pennington worked under his supervision, he at times drank from the same container after this inmate. The record shows that McGahan and Pennington were the only two active tuberculars with which Mr. Chance came in direct contact at the prison. After Pennington was assigned to the tool room, the exact date of which Mr. Chance could not remember, the only contact he had with him was when claimant was “in and out” of the tool room checking out tools from Pennington. This theory cannot be reconciled with the only medical proof in the record as to where or when the claimant contracted tuberculosis. In his report dated March 26, 1979, Dr. S. H. Hoover, claimant’s treating physician, stated that Mr. Chance apparently contracted the disease some time in 1976.
George Allen Antonio, the infirmary supervisor for the Tucker Unit, testified that the last active case of tuberculosis at Tucker was Roger Dale Pennington in 1974 who was discovered on September 6, 1974 to have active tuberculosis. Pennington apparently was placed in the state hospital from which he escaped on October 30, 1974. He was returned to Tucker only one day on October 5, 1975, during which time he was kept in the isolation unit. There is absolutely no proof that Mr. Chance came in contact with Pennington after September 6, 1974.
The record does show that there were other inmates at Tucker who received treatment for inactive tuberculosis. Mr. Antonio said a pill called “I.N.H.” was distributed to those inmates at “pill call” every day. He stated the prison would average having 40 or 50 inmates a year on what he termed “preventive medication” but “they were not contagious.” He later said that he “believed” that about three per cent of persons with negative x-rays could pass the disease to others even though they were classified as having inactive tuberculosis. At the most, if this opinion is to be accepted, not over two out of the fifty at Tucker would likely fall within this three per cent. The record is completely devoid of any proof that Mr. Chance came into contact with any specific inmate under this treatment, and certainly there is no proof of any contact by him with any of the so-called three per cent of those who were receiving I.N.H.
On the state of this record the Commission would necesarily have to speculate as to if and when the “last injurious exposure” occurred. Even when the testimony is given its strongest weight in favor of the appellee, as we must do on appeal, the facts fall short of constituting substantial evidence necessary to prove by “clear and convincing evidence” when and where the disease was contracted. There is some conflict in the claimant’s own proof on this point.
Having reached the conclusion that this case must be reversed and -dismissed for lack of substantial evidence showing a causal connection between Mr. Chance’s employment and his tubercular condition, we do not reach the other points raised by appellant.
Reversed and dismissed.
Wright, C.J., concurs. | [
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Robert L. Brown, Justice.
The Arkansas Court of Appeals affirmed a jury verdict and judgment in a wrongful termination action in favor of the appellees/petitioners Sue Devore, V.O. Jones, and Glenda Samuels. The appellees/petitioners then moved for attorney’s fees associated with their defense of this matter on appeal. The Court of Appeals certified the question of attorney’s fees for work done on appeal to this court for decision under Ark. Sup. Ct. R. 29(l)(c). We deny the motion.
Statutory law now provides for a reasonable attorney’s fee to be assessed in certain civil actions, including breach of contract. See Ark. Code Ann. § 16-22-308 (Supp. 1991). The appellees/petitioners contend that § 16-22-308 also embraces legal services rendered on appeal. We recently had occasion to address this precise issue in a per curiam opinion. See Mosley Machinery Company, Inc. v. Gray Supply Company, et al, 310 Ark. 448, 837 S.W.2d 462 (1992). In Mosley, we stated regarding § 16-22-308: “We have reexamined the statute and again concluded that it is not applicable to appellate courts.” 310 Ark. at 449, 837 S.W.2d at 463. We further overruled court of appeals cases that conflicted with this interpretation of the statute.
We, therefore, deny the motion of appellees/petitioners for attorney’s fees for services rendered in appellate court.
Motion denied.
Newbern, J., not participating. | [
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Steele Hays, Justice.
This dispute between brother and sister involves the construction of a deed and the will of their mother. Joe E. Edwards, appellant, and Nancy Edwards, appellee, are children of Edna Edwards, who died in December 1989. Two other children are not parties to this suit.
Edna Edwards purchased a home in Ft. Smith in April of 1988, accepting a warranty deed from the sellers “to Edna Edwards and to Joe E. Edwards, her son, with right of survivor-ship.” On September 28, 1988, Edna Edwards executed a will which contained a provision devising the identical property to all four of her children, “in equal shares, subject to a life estate to Nancy Carol Edwards, conditioned upon her occupying the home place and paying for taxes, insurance and repairs.”
After the will was filed for probate in February 1990, Joe Edwards filed a complaint in circuit court against Nancy Edwards claiming ownership of the home by virtue of the warranty deed and alleging that Nancy was unlawfully in possession of the property. Nancy filed an answer claiming under the will. On Nancy’s motion the case was transferred to chancery.
Nancy filed a counterclaim in chancery to quiet title to the property. The case was tried and the chancellor entered his decree, finding that Joe Edwards, by virtue of the deed, held the property as tenant in common with the estate of his mother, subject to the terms of her will. Joe Edwards argues that the trial court erred in finding he held the property only as a tenant in common and not as a joint tenant with right of survivorship.
The facts surrounding the execution of the warranty deed are these: Edna Edwards had concerns that her children be taken care of after she died. She had a particular concern that Nancy have a home to live in and there was testimony that she wanted Nancy to have the property in question to live in after she died. Edna had real estate holdings and also had a $65,000 CD, proceeds from her husband’s life insurance. The $65,000 was used as payment on the home.
When Edna’s husband died, Edna was living in a larger family home and decided to move to a smaller home in Ft. Smith. She meant for Nancy to live with her and to live in it after she died. Edna picked out the property in question, and decided to purchase it.
At the closing neither Nancy nor Joe was present. The closing was held at the real estate office of Caldwell-Banker Fleming-Lau, and in addition to Edna and the sellers, two real estate agents were present — Rosemary Jedlicka and Jan Ford. Ms. Jedlicka testified that the deed had been prepared by an abstract company and only Edna Edwards name was originally listed as grantee. She testified that Edna requested that her son Joe be added to the deed, that Edna specifically requested that not only his name be added to the deed, but the particular words, “with right of survivorship” be included. There was other testimony from Jan Ford, suggesting there was no specific request for those words.
Ms. Jedlicka testified that she contacted the abstract office that had prepared the deed and they authorized the addition of these words. Ms. Jedlicka then typed in after Edna’s name, in an obviously different type from the rest of the deed, “and Joe E. Edwards, her son, with right of survivorship.” Eugene Wahl, head of the abstract firm, testified he would not have authorized such wording to create a joint tenancy.
In finding there was no joint tenancy, the chancellor specifically found that the words “with right of survivorship” were not the words of Edna Edwards, but were the words of the realtor who changed the deed. Joe Edwards does not dispute that finding, rather, he insists the language used in the deed creates a joint tenancy as a matter of law, and that the trial court erred in finding otherwise. However, for reasons to be explained, we hold that a resulting trust was created for the benefit of Nancy Edwards, rendering the wording of the deed moot.
On cross appeal, Nancy Edwards agrees that Joe Edwards had no survivorship rights in the property, but argues the chancellor erred in finding he held the property as a tenant in common with the estate of Edna Edwards. She advances two alternate theories deducible from the evidence: one, that Joe held the property as a mortgagee for Edna Edwards, and, two, that an implied trust was created for Nancy’s benefit.
Under the mortgage theory, Nancy claims that Joe should be found to be a mortgagee as there was evidence he had claimed an interest in the $65,000 CD used to buy the property, and when Edna added Joe’s name to the deed she intended it, in essence, as security for the use of his money. The trial court found, however, that by Joe’s own admission he did not claim any interest in the $65,000, but testified unequivocally it belonged to his mother as beneficiary of life insurance proceeds.
Nancy Edwards does not dispute this finding but merely argues there is room for another interpretation of the evidence. That however, is not the standard for review. Rather, we reverse only if it can be demonstrated that the trial court’s findings are clearly against the preponderance of the evidence. Nancy Edwards has made no such showing.
The second argument, an implied trust, does have merit. The term “implied trust” encompasses both constructive trusts and various types of resulting trusts. See 76 Am. Jur. 2d Trusts §§ 159-163 (1992); W. Fratcher, V Scott on Trusts §§ 404 through 404.2 (1989) (describing the three types of resulting trusts) and § 462 (describing constructive trusts). Hickman v. The Trust of Heath, House & Boyles, 310 Ark. 333, 835 S.W.2d 880 (1992); Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). A constructive trust arises in favor of persons entitled to a beneficial interest against one who secured legal title either by an intentional false oral promise to hold the title for a specified purpose, or by violation of a confidential or fiduciary duty, or is guilty of any other unconscionable conduct which amounts to a constructive fraud. Andres v. Andres, supra.
A resulting trust arises where one disposes of property under circumstances which raise an inference that he/she does not intend that the putative grantee should have the beneficial interest in the property. Scott, supra, at § 404.1. There are different types of resulting trusts but that which concerns us here is often called a purchase money resulting trust and arises where property is purchased and the purchase price is paid by one person and at his/her direction the vendor converts the property to another person. Id.
The distinction between a resulting and a constructive trust is discussed in Scott:
A resulting trust is to be distinguished from a constructive trust. A constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. The duty to convey the property may arise because it was acquired through fraud, duress, undue influence or mistake, breach of a fiduciary duty, or wrongful disposition of another’s property. The basis of the constructive trust is the unjust enrichment that would result if the person having the property were permitted to retain it. Ordinarily a constructive trust arises without regard to the intention of the person who transferred the property. On the other hand, a resulting trust arises in favor of the person who transferred the property or caused it to be transferred under circumstances raising an inference that he intended to transfer to the other a bare legal title and not to give him the beneficial interest.
Scott, supra at § 404.2.
The theory of a resulting trust is that grantors expect something for their money, and when they pay the purchase price, but direct that the property be conveyed to a third party who is a stranger, the presumption is there has been no gift to the third party but a conveyance of the property to be held in trust for the party who paid the purchase price. G.G. Bogert and G.T. Bogert, The Law of Trusts and Trustees, § 454 (2nd ed. 1991). If, however, the third party stands in such relationship to the party furnishing the purchase money as to be the natural object of his/ her bounty, things get more complicated, as a gift may have been intended. Bogert, supra, § 459.
In general, a resulting trust must be proven by clear and convincing evidence. Festinger v. Kantor, 272 Ark. 411, 616 S.W.2d 455 (1981); Crain v. Keenan, 218 Ark. 375, 236 S.W.2d 731 (1951). See also Walker v. Hooker, 282 Ark. 61, 667 S.W.2d 637 (1984). In the Festinger case the grantees were the wife and daughter of the purchaser, and we noted the presumption that a gift was intended. In Jones v. Wright, 230 Ark. 567, 323 S.W.2d 932 (1959), a wife paid for land, and the deed conveyed it to her and her husband. We held that the burden was on the heirs to overcome the presumption of a gift from the wife to the husband. In First National Bank v. Rush, 30 Ark. App. 272, 785 S.W.2d 474 (1990), our Court of Appeals dealt with the same question and stated the presumption of gift could be overcome only by “clear and convincing proof that no such gift was intended.”
While we find no Arkansas case dealing with purchase by a mother naming her son as grantee, the same principles should apply. As Bogert points out:
Where a mother is the payor and a child is made the grantee, with the mother’s consent, the courts have not been entirely unanimous in their application of a presumption. Most decisions, however, treat the case in the same way as where the father pays the price, and presumes a gift, whether the child be an adult or an infant.. . . Gifts from her to the children, out of mere generosity or for the purpose of distributing her estate at the end of her life, are quite natural and common. [Bogert, supra, § 460, pp. 360-365. (Citations omitted; emphasis in original.)]
Was the evidence in this case so clear and convincing as to overcome the presumption of a gift? We think so.
Here the evidence pointed unerringly to the conclusion that Edna Edwards did not intend for Joe to have any beneficial interest under the deed, but was to act in the role of administrator or trustee of the property in case of her death so that the property could be distributed according to her will, specifically, to her four children equally subject to a life estate to Nancy. The testimony of Joe Edwards effectively confirms that conclusion.
In sum, the total proceeds with which the real estate was purchased came from Edna Edwards; Joe furnished no part of the consideration for the purchase of the real estate in question; although Joe Edwards paid the premiums on the policy of insurance on his father’s life, he made no claim whatever to that money, but acknowledged it was intended to be a resource to care for his mother, although a certificate of deposit including Joe’s name was included on the CD so he could assist in taking care of his mother; Joe, the oldest of the four children, had discussed with his parents and had understood that his parents were counting on him to carry out their intent that Nancy and their brother, Jerry, have a home the rest of their lives; Joe had known at all times that his mother intended for Nancy to have the property as her home the rest of her life, yet said nothing to his mother indicating he would not see that this was done; Joe had known of the desire of his mother and her intent that the property go to Nancy for life with remainder to the four children equally at the end of her life estate. Joe testified that after the death of his mother he intended that Nancy have the property as her home the rest of her life but he changed his mind after Nancy declined certain demands he made with regard to other matters, and after he had learned his name was on the deed.
In light of the above evidence, and the chancellor’s finding that Edna Edwards did not request the survivorship phrase be added to the deed, the clear import of the testimony, including that of Joe Edwards, was that the property in question was purchased with Edna’s money so Nancy would have a place to live after her mother died, i.e., a life estate; and the only reason Joe’s name would have been added to the deed was to allow him to act as administrator or trustee of the property when Edna died and to carry out the wishes of his mother for Nancy’s life estate.
Affirmed on direct appeal, reversed on cross appeal and remanded for further proceedings not inconsistent with this opinion. | [
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Donald L. Corbin, Justice.
Appellant, Richard Atkinson, appealed his citation and conviction of contempt by Judge Floyd Lofton. We remanded for an evidentiary hearing. The evidentiary hearing was stayed until after the trial of Kenneth Ray Clements, the defendant in the case leading to Mr. Atkinson’s contempt citation and conviction, to avoid any possible prejudice to Mr. Clements. On May 29, 1992, an evidentiary hearing was held before the Honorable Fred D. Davis, III, Circuit-Chancery Judge. The case is now ready for our consideration. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(h).
On April 23, 1991, appellant, Richard Atkinson, was appointed by the Honorable Floyd Lofton, Circuit Judge, to assist Kenneth Suggs in the representation of Kenneth Clements in his retrial for capital murder in the shooting death of police officer Ray Noblett. Judge Lofton was assigned to the case following the recusal of the Faulkner County judges. The trial was scheduled for June 24, 1991, only sixty days away. At a pretrial hearing on June 17,1991, Atkinson moved for a continuance of the June 24 trial date. Atkinson cited the voluminous nature of the discovery materials and his inability to sufficiently review this material in order to ready and properly present a defense for Mr. Clements by June 24. Judge Lofton held Mr. Atkinson and Mr. Suggs in contempt, removed them both from the case, and fined them each $1,000.00 holding they were negligent in failing to prepare the case and get ready for trial.
On appeal, appellant cites two points for reversal. They are: (1) the contempt conviction should be reversed because Atkinson never received proper notice, opportunity to defend or fair hearing as required under federal and state due process and fair trial guarantees; and (2) the evidence cannot sustain a finding of contempt of court under any formulation. We find the evidence cannot sustain a finding of contempt of court and reverse on this ground, therefore we need not address appellant’s first argument.
SUFFICIENCY OF THE EVIDENCE
In a review of a case of criminal contempt, we view the record in the light most favorable to the trial judge’s decision and sustain that decision if supported by substantial evidence. McCullough v. Lessenberry, 300 Ark. 426, 780 S.W.2d 9 (1989); Lilly v. Earl, 299 Ark. 103, 771 S.W.2d 277 (1989). In a related case, the defendant, Kenneth Ray Clements, appealed the removal of Richard Atkinson as his attorney. Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991). In Clements, we found the removal of Mr. Atkinson as Mr. Clements’ attorney improper and said: “we find no support in the record for the trial court’s discharge of Mr. Atkinson.” Id. at 607, 817 S.W.2d at 199. Since we set out the entire record colloquy pertaining to Mr. Atkinson’s motion for continuance in Clements, we do not find it necessary to repeat that information here, although it is necessary for purposes of our decision. As noted in Clements, the court did not actually grant or deny Mr. Atkinson’s motion for continuance, instead, the court asked another attorney, Mr. Hartenstein, whom the court had just assigned to help Mr. Suggs and Mr. Atkinson prepare for trial if he could represent Mr. Clements. After a brief recess for Mr. Hartenstein to consult his calendar, Mr. Hartenstein stated he could accept the appointment, although there was no way he could be ready for trial on June 24 as originally scheduled. Whereupon the court relieved Mr. Atkinson and Mr. Suggs, held them both to be negligent in failing to prepare the case and get ready for trial, held them both in contempt and assessed a fine of a thousand dollars each. The judge also forced Mr. Clements into a catch-22 position where he was compelled to “accept new, unrequested counsel in order to gain a continuance or proceed immediately to trial against the advice of his . . . attorney.” Clements, 306 Ark. at 608, 817 S.W.2d at 200.
There is no doubt the discovery in the Clements case was voluminous and the record reflects that Mr. Atkinson made a good faith effort to digest the material before the June 24 trial date. As Mr. Hartenstein noted during the pre-trial hearing, the transcript from the previous trial alone was sixteen (16) volumes and there were several boxes full of discovery material. At the evidentiary hearing, Mr. Atkinson testified in detail about the extent of the discovery material and the time he spent working on Mr. Clements’ case up to the pre-trial hearing. The discovery material consisted of about twenty (20) volumes of grand jury transcripts, approximately eight (8) hours of audiotape, and over one thousand (1000) pages of other material in addition to the transcript from the previous trial. Discovery material was being given to Mr. Atkinson by the prosecutor’s office in stages as they were able to prepare it. Mr. Atkinson had received the last installment of discovery material only four (4) days prior to the pre-trial hearing. Mr. Atkinson, who is a sole practitioner, had been working on Mr. Clements’ case almost exclusively for over forty (40) hours a week for approximately seven weeks reviewing the material he received through discovery and conducting his own investigation when the pre-trial hearing took place. Mr. Atkinson felt he was not able to spend the time reviewing the material and developing his case that was necessary for his client’s best interest. Therefore, he appropriately asked the trial court for a continuance.
Judge Lofton never asked Mr. Atkinson if he would go to trial on June 24th if his motion for a continuance were overruled, nor did Judge Lofton actually rule on the motion, although Judge Lofton did say at one point during the hearing “ [i] f I have to give you a continuance, I’m going to find you ill prepared and relieve you from the case and you will not try it at all. I’ll get somebody else to do it.” We held Mr. Atkinson’s removal from the case was improper in Clements, 306 Ark. 596, 817 S.W.2d 194. However this is not dispositive of the contempt conviction because as we noted in Clements, “[g]ross incompetence or physical incapacity of counsel, or contumacious conduct that cannot be cured by a citation for contempt may justify the court’s removal of an attorney.” Clements, 306 Ark. at 606-07, 817 S.W.2d at 199 (quoting Harling v. United States, 387 A.2d 1101, 1105 (1978)). Therefore implying problems with counsel that can be cured by a citation for contempt do not justify the court’s removal of an attorney. Thus, our decision in Clements that removal of Mr. Atkinson as counsel was improper is not dispositive of the propriety of the contempt citation and conviction.
During the hearing on the motion for continuance, the following exchange occurred between Mr. Atkinson and Judge Lofton:
MR. ATKINSON: [T]here is no way that defense can be readied and properly presented fairly for this man on the twenty-fourth.
THE COURT: If that is so, Mr. Atkinson, then the Court will have no choice but to find you negligent and in contempt, and so with Mr. Suggs, because you represented to this Court that you could and would get ready. I sent notices out to you. You both concurred in this trial date. And all I hear you saying is that, “We’ve sat on our fanny and not done anything about this and we want a continuance.” But you can’t tell me what it is you want to do. And you have no assurance — I have no assurance that if I give you another thirty days you’ll do any more than you have in the last sixty.
When Mr. Atkinson pursued his motion for continuance, continuing to cite the volume of material and his inability to adequately review it in the provided time, Judge Lofton said “[i]f I have to give you a continuance, I’m going to find you ill prepared and relieve you from the case and you will not try it at all. I’ll get somebody else to do it.” Shortly thereafter, Judge Lofton asked Mr. Hartenstein if he would be able to represent Mr. Clements. Mr. Hartenstein replied there was no way he could represent him by the 24th, Judge Lofton replied he wasn’t asking about the 24th and Mr. Hartenstein replied he would accept appointment if the court wanted to appoint him. After a brief recess for Mr. Hartenstein to consult his calendar, the following occurred:
THE COURT: All right. Mr. Atkinson, the motion before the Court is for a continuance. I’ve asked Mr. Hartenstein if he can accept an appointment.
Mr. Hartenstein, can you?
MR. HARTENSTEIN: Yes, your Honor.
THE COURT: You’re relieved Mr. Atkinson. Do you want to be relieved?
MR. ATKINSON: No, your Honor.
THE COURT: Do you want to be relieved?
MR. SUGGS: Yes, I do.
THE COURT: Ken Suggs and Richard Atkinson relieved, held to be negligent and failing to prepare case and get ready for trial, and held in contempt of Court and assessed a fine of a Thousand Dollars each to be paid within ten days unless a Notice of Intent to Appeal is filed. Ray Hartenstein and Blake Hendrix are appointed.
By implication, it could be said the court granted the continuance because Judge Lofton relieved Mr. Atkinson from the case after having said “[i]f I have to give you a continuance, I’m going to find you ill prepared and relieve you from the case.” However, we found in Clements there was no ruling on the motion and we still find there was no clear ruling on the motion. Since there was no ruling, there was no opportunity for Mr. Atkinson to comply with the court’s ruling before being found in contempt.
We do not find any indication in the record Mr. Atkinson had not been spending enough time working on the case as the trial judge apparently understood him to be saying. Every indication in the transcript of the hearing was that Mr. Atkinson had in fact been working on Mr. Clements’ case and had been very busy doing so. An attorney has a duty to “provide competent representation to [his] client.” Model Rules of Professional Conduct Rule 1.1 (1987). “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Id. In any event, it is improper for a judge to hold an attorney in contempt for simply asking for a continuance as appears to have occurred here. There is no evidence in the record Mr. Atkinson would have disobeyed the court’s order and refused to try the case on the 24th if his continuance had been denied. The court’s action in holding Mr. Atkinson in contempt for asking for a continuance was arbitrary and unacceptable.
We do not find any evidence supporting the judge’s finding of contempt and, therefore, reverse and dismiss the case with prejudice. | [
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Steele Hays, Justice.
The trial court dismissed this action by Johnny’s Pizza House, Inc., a foreign corporation, for its failure to comply with the Wingo Act, Ark. Code Ann. § 4-27-1501 (1987). On December 10, 1984, appellees, Chester and Sheila Hunstman, executed a promissory note payable to appellant, Johnny’s Pizza House, Inc., (Johnny’s) for $53,002.84 at 13 1/4% interest per year on the unpaid balance. On January 30, 1991, Johnny’s filed suit against the Huntsmans to collect the note. Among other things, the complaint alleged:
The plaintiff is a Louisiana corporation which has its principal place of business in West Monroe, Louisiana, and is doing business or has done business in Ashley County, Arkansas. The defendants are individuals who live in Ashley County.
The Huntsmans moved to dismiss Johnny’s complaint because Johnny’s did not have a certificate of authority to transact business in Arkansas as required by § 4-27-1501 and, as a foreign corporation doing business in Arkansas, which the complaint admitted, such a certificate is required. Further, that as a consequence of not having that certificate, it was precluded under Ark. Code Ann. § 4-27-1502 (1987) from maintaining any action in this state. On February 26,1991, the Huntsmans filed a motion to treat their earlier motion for dismissal as one for summary judgment.
Johnny’s responded to these motions and defended on the premise it was a franchisor only, and it is the franchisee who actually conducts business in Arkansas. It further stated that it applied for the certificate of authority, and argued that the trial court should not dismiss the case until the secretary of state’s office decided whether to issue the certificate.
The court heard argument on the motions and took them under submission pending briefs to be submitted by both sides. Based on what was before him, the judge granted a “Summary Judgment of Dismissal.” The court found that 1) the specific contract was made in Arkansas and 2) at the time it was made, Johnny’s did not have a certificate of authority, and 3) because there were no issues of material fact remaining the Huntsmans were entitled to a judgment of dismissal as a matter of law.
Johnny’s filed a motion to amend findings of fact and judgment, or a new trial. The primary point of this pleading was that the trial court had misinterpreted § 4-27-1502, and that as Johnny’s had now obtained a certificate of authority from the secretary of state, suit could be maintained. This motion was deemed denied when the trial court failed to act on it in the prescribed time.
Before addressing Johnny’s arguments, some discussion of the old and the new Wingo Acts is in order. The former act required any foreign corporation “doing business” in this state to file with the secretary of state and to obtain a certificate of authority. Ark. Stat. Ann. § 64-1201 (1987). Arkansas Stat. Ann. § 64-1202 (1987) provided two distinct penalties. The first was pecuniary, and the second provided that any contract made in Arkansas was unenforceable by a foreign corporation if the corporation had not filed with the secretary of state and received its certificate of authority. The “new” Wingo Act is part of the “Arkansas Business Corporation Act,” enacted as No. 985 in 1987, at § 4-27-101 through 4-27-1705. (§ 64-1201 and 1202 are found in their revised forms at § 4-27-1501 and 1502 respectively.) The Arkansas Business Corporation Act of 1987 is based primarily on the Model Business Corporation Act, which is a product of a committee of the American Bar Association. See A.C.A. Commentaries at p. 415; Centennial Valley Ranch Management, Inc. v. Agri-Tech Ltd. Partnership, 38 Ark. App. 177, 832 S.W.2d 259 (1992).
Under the new act, foreign corporations “transacting business” in this state are still required to file for a certificate of authority. Section 4-27-1501. The primary difference is that this section also lists a number of transactions that will not be held to be “transacting business.”
The major difference for purposes of this case, however, is in the penalty section, § 4-27-1502. While a pecuniary penalty can still be imposed, the “unenforceable contract” penalty is eliminated and a milder sanction is substituted.
The new “consequences” provision merely requires that in order to maintain a suit, the foreign corporation which transacts business in this state, must first obtain a certificate of authority. Further if such a corporation does commence a proceeding without a certificate, the court may stay the proceedings until it determines whether a certificate is needed, and grant a further stay to allow the foreign corporation to obtain the certificate if it is determined that it is needed. This is in sharp contrast to the former provision that expressly precluded any rehabilitation of the uncertified foreign corporation, and made the contract void ab initio. See Worthen Bank & Trust Co. v. United Underwriters Sales Corp., 251 Ark. 454, 474 S.W.2d 899 (1971).
On appeal, Johnny’s has challenged the correctness of the trial court’s granting of summary judgment, arguing four points for reversal. We need address only the last of these.
It appears from the order that the trial court was acting pursuant to the provisions of the old act. Its focus was on the parties having contracted in Arkansas, which fact would be neither pivotal nor conclusive under the new act. See § 4-27-1502; and see generally, Model Business Corporation Act, (Supp. 1991), Selected cases, 2. Transacting business. It seems clear the former act was being applied because instead of granting a stay, the trial court dismissed the action, presumably with prejudice.
In its fourth point for reversal, Johnny’s argues that the trial court erroneously applied the penalty provisions in the repealed act, and that rather than granting a “dismissal of summary judgment,” the trial court should have granted a stay to permit Johnny’s to obtain the certificate of authority. We sustain the argument.
Centennial Valley Ranch Management, supra, dealt with what action a trial court should take when the defense is raised under the Wingo Act that the plaintiff had not obtained a certificate as required by § 4-27-1501:
Under the old law (Wingo Act) the nonqualifying foreign corporation was not permitted to enforce any contract made in Arkansas. But [in a law review article, M. Matthew, Corporate Statutes - Which One Applies?, 13 USLF 69, 677 (1990) it says that] “the commentary to the revised Model Business Corporation Action which the section is based makes clear the drafters intended a qualifying foreign corporation be able to enforce a contract simply by qualifying.”
We agree. The Official Commentary to the Model Business Act on which ours is based, makes it clear that this provision is not to be used to penalize, but to encourage foreign corporations to file. The commentary does not state that the stay should be granted in all cases, but it does provide that the stay is to be liberally granted. The pertinent section of the commentary provides:
OFFICIAL COMMENT
The purpose of section 15.02 is to induce corporations that are required to obtain a certificate of authority but have not to qualify promptly, without imposing harsh or erratic sanctions. The Model Act rejects the provisions adopted in a few states that make unenforceable intrastate transactions by unqualified corporations or that impose punitive sanctions or forfeitures on nonqualifying corporations. Often the failure to qualify is a result of inadvertence or bona fide disagreement as to the scope of the provisions of section 15.01, which are necessarily imprecise; the imposition of harsh sanctions in these situations is inappropriate. Further, as a matter of state policy it is generally preferable to encourage qualification in case of doubt rather than to impose severe sanctions that may cause corporations to resist obtaining a certificate of authority in doubtful situations.
Section 15.02 closes the courts of the state to suits maintained by corporations which should have but which have not obtained a certificate of authority. However, this sanction is not a punitive one: section 15.02(e) states that the failure of the corporation to qualify does not affect the validity of corporate acts, including contracts. Thus, a contract made by a nonqualified corporation may be enforced by the corporation simply by obtaining a certificate. Further, section 15.02(c) authorizes a court to stay a proceeding to determine whether a corporation should have qualified to transact business and, if it concludes that qualification is necessary, it may grant a further stay to permit the corporation to do so. Thus, the corporation will not be compelled to refile a suit if the corporation qualifies to transact business within a reasonable period. The purpose of these provisions is to encourage corporations to obtain certificates of authority and to eliminate the temptation to raise section 15.02 defenses only after applicable statutes of limitation have run. [Our emphasis.]
Hence, the granting of a stay is in line with the stated intentions of the drafters of the code, and in accord with other jurisdictions operating under similar statutes. See Charles v. Smith & Sons v. Lichtefeld-Massaro, 477 N.E.2d 308 (Ind. App. 1 Dist. 1985) (“failure of a plaintiff foreign corporation to obtain a certificate. . .by the date of the filing of its complaint in Indiana merely suspends rather than bars further legal proceedings until such time as the certificate is obtained); South Carolina Equipment, Inc. v. Sheedy, 353 N.W.2d 63, 120 Wis2d 119 (Wis. App. 1984) (“Commentators and the vast majority of courts have held that when an unregistered foreign corporation commences or defends a suit, and during the course of that suit complies with the registration of law, that act is sufficient to allow it to maintain a court action or a defense.”) Tri-Terminal Corp. v. CITC Industries, Inc., 78 A.D.2d 609, 432 N.Y.S.2d 184 (1980) (the proper procedure was for the trial court to grant a conditional stay affording the corporation the opportunity to cure the defect.)
We note, too, that the commentary implies that if a dismissal, rather than a stay, is granted, it will not be a dismissal with prejudice: “Thus, the corporation will not be compelled to refile a suit if the corporation qualifies to transact business within a reasonable period.”
The appropriate action in this case would have been to grant a stay to Johnny’s until it was determined whether a certificate was necessary, and if so, to further stay the proceedings until the corporation obtained the certificate. See § 4-27-1502(C). We recognize that Section (C) of 1502 is discretionary and, where appropriate circumstances exist, the trial court may deny the request for a stay. There was no such showing in this case. See e.g., Rigid Component Systems v. Nebraska Component, 202 Neb. 658, 276 N.W.2d 659 (1979).
Reversed with directions consistent with this opinion.
§ 4-27-1502. Consequences of transacting business without authority.
A. A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.
B. The successor to a foreign corporation that transacted business in this state without a certificate of authority and the assignee of a cause of action arising out of that business may not maintain a proceeding based on that cause of action in any court in this state until the foreign corporation or its successor obtains a certificate of authority.
C. A court may stay a proceeding commenced by a foreign corporation, its successor, or assignee until it determines whether the foreign corporation or its successor requires a certificate of authority. It is so determines, the court may further stay the proceeding until the foreign corporation or its successor obtains the certificate.
D. A foreign corporation is liable for a civil penalty of not more than five thousand dollars ($5,000) and not less than one hundred dollars ($100) if it transacts business in this state without a certificate of authority. The Secretary of State shall promulgate regulations for the calculation of the appropriate penalty. In determining the appropriate penalty, the Secretary of State shall consider the size and assets of the corporation, the total amount of business transacted by the corporation within the state and such other circumstances as the Secretary of State may institute proceedings in Pulaski county Circuit Court to recover such penalty.
E. Notwithstanding subsections A. and B. of this section, the failure of a foreign corporation to obtain certificate of authority does not impair the validity of its corporate acts or prevent it from defending any proceeding in this state.
Also, there seems to be a little question that under the express provision in the act, that under the facts of this case, the new act would apply. See transition provision, § 4-27-1701 through 1706. It was stated in a recent law review article, M. Matthews, “Corporate Statutes — Which Applies?” § 13 UALRLJ 69, at 77:
The issue is whether a nonqualifying foreign corporation which enters into a contract prior to 1988 will be able to qualify and thereafter enforce the contract. The 1987 ABCA transition provisions suggest that the pre-1988 contract will be enforceable. The relevant section provides that “[i]f a penalty or punishment imposed for violation of a statute repealed by this chapter is reduced by this chapter, the penalty or punishment, if not already imposed, shall be imposed in accordance with this chapter.” Arguably the harsh penalty of voiding the contract is reduced by the 1987 ABCA comply-and-enforce approach, and the penalty should therefore be imposed according to the new statute.
There is no dispute on this point by the parties. | [
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David Newbern, Justice.
This is an appeal from the Circuit Court’s review of the 1988 and 1989 ad valorem tax assessments on specialized industrial equipment used in a papermill. The mill is owned and operated by the appellant, Potlatch Corporation (Potlatch), at Cypress Bend in Desha County. The case has a complicated procedural history.
The appellee, the Arkansas City School District (School District), claimed that Potlatch was not properly reporting or assessing the value of the equipment located in its plant. The School District, as permitted by Ark. Code Ann § 26-27-317 (Repl. 1992), petitioned the Desha County Equalization Board (Board) to adjust the Potlatch valuation for the 1988 tax year. The County Assessor, Joyce Tanner had accepted Potlatch’s 1988 assessment rendition document in which Potlatch stated the value of its personal property for assessment purposes at $10,557,600. That figure was based on a method of evaluation approved by Marvin Russell, a former director of the Arkansas Public Service Commission (PSC) Assessment Coordination Division (ACD). When the School District raised the issue, Ms. Tanner felt unqualified to assess the Potlatch property, and she called upon the ACD for assistance.
The Board’s response to the School District’s petition challenging the 1988 Potlatch assessment was to uphold the valuation rendered by Potlatch. On the date of that decision the Board was notified by the ACD that the formula utilized by Potlatch to obtain the assessment figure was too arbitrary to establish fair market value for assessment purposes. The School District filed a complaint with the PSC sitting as the State Equalization Board seeking an independent appraisal of Potlatch’s personal property. The PSC dismissed the proceeding, finding that there was an adequate remedy afforded by the appellate process, but ordered the ACD to investigate assessment practices with respect to property used in manufacturing throughout the State.
The School District then appealed the Board’s decision concerning the 1988 valuation to the County Court which affirmed the decision upholding the Potlatch valuation. An appeal to the Circuit Court was then filed and docketed as CIV 88-99-2AC.
For the 1989 tax year Potlatch engaged a professional appraiser, Gerald Searle, to assist with preparation of its rendition. Ms. Tanner requested the assistance of the ACD in assessing the property. The figures in the rendition recommended by the ACD were accepted by Ms. Tanner resulting in an increase in the valuation and assessment for Potlatch from its valuation of $52,051,585 to $61,487,104.
Potlatch filed a request for adjustment with the Board which adjusted the valuation to the original figure submitted by Pot-latch. The County Court affirmed that decision. An appeal to the Circuit Court was filed and docketed as CIV 89-78-2AC, and the case was consolidated with the appeal of the 1988 assessment.
The Circuit Court (1) held that the 1988 assessment was manifestly arbitrary and ordered reassessment using the method established by the ACD, (2) rejected the methodology applied by Potlatch in it’s 1989 rendition, (3) found the estimate of fair market value based on the ACD’s recommendation for 1989 was not in error, thereby upholding Ms. Tanner’s assessment, and (4) ordered the ACD to assist Ms. Tanner in all future assessments of Potlatch’s property.
Potlatch argues on appeal that the Circuit Court (1) erred in ordering its property reassessed for the 1988 tax year using the ACD method; (2) erred in rejecting the Board’s adjustment of their 1989 assessment; and (3) erred in ordering the ACD to participate in all future assessments of their property. We find no error and affirm.
1. The 1988 reassessment order
a. Waiver
The differences in the method of assessment used by Pot-latch from 1978 to 1988 and that recommended by the ACD and approved by the Circuit Court will be discussed below. To consider Potlatch’s first argument with respect to the 1988 assessment, that of waiver, we need only state that the two methods were substantially different. Potlatch contends the School District may not argue in court in favor of a method of assessment it did not present before the Board.
In support of this waiver argument Acme Brick Co. v. Missouri Pacific Railroad Co., 307 Ark. 363, 821 S.W.2d 7 (1991), an appeal from the Highway Commission, is cited. The Railroad Co. had filed a petition before the Commission to abandon a railroad spur. In the order granting the petition, the Commission stated that Ark. Code Ann. § 23-12-607 (1987) required it to hear and consider all petitions filed with it for the discontinuance of railroad spurs and that Ark. Code Ann. § 23-12-611 (1987) provided the standard of proof to be used in determining whether the spur track should be abandoned. The order also stated that City of Caraway v. Arkansas Commerce Comm’n, 248 Ark. 765, 453 S.W.2d 722 (1970), a case involving abandonment of an agency station, was persuasive and controlling in the matter before the Commission.
Upon receipt of the commission’s order, Acme Brick Co. moved for reconsideration arguing that “[t]he standard of proof relied upon by the Commission was improper because it is the standard of proof for considering an application to discontinue an agency station, rather than abandonment of a spur. The Commissions’ reliance on the standard of proof in Ark. Code Ann. 23-12-611 was legal error.” Because § 23-12-611 and the Caraway case both involved agency stations rather than spurs, Acme Brick Co. claimed the Commission erred in relying on them to determine the standard of proof applicable to the spur petition. We held Acme Brick Co. could not complain in court about the standard of review used by the Commission having failed to inform the Commission of the correct standard.
This case differs in several significant ways. First, Acme Brick Co. could have learned the proper standard of review through legal research. With respect to standards for determining value of property to be assessed, there is no single or “proper” assessment method to be presented. All concede that there are various ways of going about assessing the value of property. The School District’s point was to require use of some method based on actual value in compliance with the Ark. Const, art. 16, § 5.
Second, the ACD had not developed a single formula prior to the 1988 assessment, therefore, there was no single, acceptable method to apply to valuation to proffer.
Finally, with respect to the 1988 assessment, the School District argued Potlatch was not fully disclosing the extent of its personal property, and that the formula it was using resulted in an assessment based upon only 10% of market value. The School District asked both the Board and the County Court to require use of a formula which would arrive at a fair market value in accordance with the Constitution. That was sufficient to apprise these entities of the specific objections raised to the Potlatch valuation.
b. The Russell formula
Next, Potlatch argues that, as the method it used in computing the 1988 figures was supported by substantial evidence in the form of the testimony of Marvin Russell, the Court was required to affirm the Board rather then engage in an assessment of property. Mr. Russell had recommended a formula which permitted Potlatch in its first year of operation to take the actual cost of the property, divide that in half and declare 20 % of that figure as the taxable value, yielding a valuation equal to 10 % of actual cost. This same figure was thus declared each year subject to certain adjustments as equipment changes occurred. Russell testified that this formula would give level expenses for the company, level income for the taxing unit, and would also yield more money than alternative methods. He stated on cross-examination that the 50 % formula was based on the use value rather than market value of the equipment and was directly related to income producing potential.
Potlatch argues that no one testified that this formula produced a valuation unrelated to fair market value, but that is not so. In his deposition, Larry Crane of the ACD specifically said “any way you play it, an arbitrary fifty percent would not reflect fair market value for any but that one coincidental point in time it just happened to really be that.” He continued in his deposition to characterize the 50% formula on a brand new facility as ridiculous. Even Mr. Searles, Potlatch’s expert, testified that the “fifty percent of original cost method employed from 1978 through 1988 is not a recognized method” and the “fifty percent method does not have any acceptance in the world of appraisal.”
This defense of the 50 % valuation ties in with the argument that the Circuit Court erred in substituting the ACD formula for the 1988 tax year because, Potlatch asserts, affirmance of the judgment of the Board and County Court was required if there was any substantial evidence to support it.
Tuthill v. Arkansas County Equalization Board, 303 Ark. 387, 797 S.W.2d 439 (1990), is cited for its description of the agency and judicial roles as follows:
The Assessment Coordination Division of the Public Service Commission is given the power of supervision and control over the several county assessors and boards of equalization and review in order that assessments of property shall amount to true market value. Ark. Code Ann. 26-24-101 and 26-24-102 (1987). To this end, the Assessment Coordination Division annually publishes a manual to be used by county appraisers. That manual recommends the use of three methods to arrive at a true, or market, value. They are (1) comparable sales, (2) capitalization of income, (3) cost less depreciation. It is best that an assessor use two or more of the methods as a gauge of the market value. Board of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W.2d 211 (1972).
Because of the separation of powers doctrine, it is not within the province of state courts to assess property. Cook v. Surplus Trading Co., 182 Ark. 420, 31 S.W. 521 (1930). Courts can only review the assessments and reverse them and send them back to the executive department when they are clearly erroneous, manifestly excessive, or confiscatory. St. Louis - San Francisco Ry. Co. v. Ark. Public Serv. Comm’n, 227 Ark. 1066, 304 S.W.2d 297 (1957). We have said that we will reverse property assessments only in the “most exceptional cases.” Jim Paws Inc. v. Equalization Bd. of Garland County, 289 Ark. 113, 710 S.W.2d 197 (1986). The burden of proof is on the protestant to show that the assessment is manifestly excessive or clearly erroneous or confiscatory.
Potlatch is correct in stating that it is not the province of courts of law to make assessments. That is in the hands of the assessors, the ACD, the equalization boards and finally, the County Courts. However, the review of the Circuit Court is pursuant to Ark. Code Ann. § 16-67-207 (1987) which provides “the circuit court shall proceed to try all appeals from county courts de novo as other cases at law.” The record before the Circuit Court showed beyond debate that the 50% formula was not based on market value and was therefore violative of Ark. Const, art. 16, § 5, which states:
(a) All real and tangible personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property for which a tax may be collected shall be taxed higher than another species of property of equal value. . . .
Clearly the formula which was the basis for the 1988 valuation was erroneous, and the Circuit Court was correct in remanding the matter for a new valuation based on application of a proper formula as recommended by the ACD.
2. The 1989 assessment
In this argument Potlatch again asserts that the Circuit Court overstepped its constitutional boundaries in rejecting the 1989 adjustment by the Board as affirmed by the County Court. Again cited is authority to the effect that the Circuit Court’s only role is to determine that the rendition is not clearly erroneous, excessive, or confiscatory in concluding that the Court’s order substitutes itself for a purely executive function.
Ms. Tanner had asked for the help of the ACD which then furnished her with a detailed proposed assessment of the Potlatch equipment in accordance with standards published in the ACD manual for assessors of October 1988. It was her duty to follow the ACD recommendation. See Ark. Code Ann. § 26-24-102 (Repl. 1992); Tuthill v. Arkansas County Board of Equalization, supra. Yet the Board and the County Court rejected Ms. Tanner’s assessment, substituting that proposed by Potlatch without comment. The Circuit Court reinstated Ms. Tanner’s assessment. While that goes beyond merely reversing the County Court and remanding for further consideration, it is not the same as assessment of the property by the Circuit Court based upon raw data produced in evidence before it. The Court did not exercise an executive function; it merely recognized and reinstated the original executive decision by determining that the judicial and quasi judicial bodies which had reviewed it were in error.
The Circuit Court had before it testimony of ACD officials explaining the age-life method recommended to Ms. Tanner and the testimony of Mr. Searles explaining the 16-year life method upon which the 1989 assessment figure submitted by Potlatch and adopted by the Board and the County Court was based. Mr. Searles testified that his method was the one being used statewide by other paper mills. On cross-examination, he admitted he had hard (written) evidence only that it was in use by one other paper mill and that his information with respect to other paper mills had been gathered by telephone from people, some of whose names he could not remember. More important, however, the propriety of the Searles method was questioned, and the Circuit Court could well have concluded not only that the ACD method used by Ms. Tanner was a more accurate assessment tool but that the Searle method was clearly erroneous in its determination of value. The Circuit Court correctly noted evidence that the Searles method was to be used only in combination with “trending,” a means of taking into account the state of the economy, a factor not being used with the 16-year life method by Mr. Searles.
Potlatch responds that the failure to include trending is irrelevant because other paper mills using the Searles 16-year life method are not using trending, thus there is uniformity. Our view is that uniformity is, of course, desirable, but it becomes irrelevant when the issue, as in this case, is not equal protection but accuracy of the assessment method to produce that which the Constitution requires, i.e., an assessment based upon the actual value of the property being assessed.
Under these circumstances, we can hardly say the Circuit Court’s determination that Potlatch had not established before the Board or the County Court that Ms. Tanner’s assessment was in error was incorrect. Nor can we say that, to the extent his decision was factual, it was clearly erroneous. Ark. R. Civ. P. 52(a).
3. Participation in future assessments
Potlatch argues the Court erred in ordering the ACD to participate in future assessments of their property. Ms. Tanner clearly indicated her inability to conduct the assessment of Potlatch, and the ACD is charged by statute with the duty to assist and supervise the assessors. The order of the Circuit Court merely states an obligation which already exists. There was no error in the decision.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
This case involves the question of whether the appellee, A & B Dirt Movers, Inc. (“A & B”), should incur the Arkansas Gross Receipts Sales Tax on certain of their transactions involving the hauling of dirt. We find that it should and reverse.
A & B Dirt Movers, Inc. is engaged in the business of excavation and dirt hauling. The appellant, Arkansas Department of Finance and Administration, conducted a sales tax audit of A & B covering six years and determined that certain transactions involving the transfer of title and possession of tangible personal property such as dirt, fill material and similar items, were occurring without payment of the Arkansas Gross Receipts Tax. Mrs. Henry, an auditor with Arkansas Department of Finance and Administration, went to A & B and reviewed the actual sales invoices which were prepared according to the month of the sale. Information on the invoices included the customers’ names and addresses, type of transaction, date of transaction, number of loads hauled and the cost. According to Mrs. Henry, the invoices did not indicate the owners of the dirt from the beginning of the transaction to the end. As a result of this audit, A & B Dirt Movers, Inc. was assessed tax and interest in the amount of $8,919.45. No penalty was assessed because since this was A & B’s first audit, the Department of Finance and Administration assumed they were not aware of the tax. A & B disagreed with the audit contending that it was in the business of providing a nontaxable service — hauling. The company claimed that although they charged for the excavation and hauling of dirt, the dirt was actually free. After exhausting its administrative remedies, A & B filed an action in the Faulkner County Chancery Court contesting the audit determination. After a nonjury trial, the chancellor found that the transactions were not taxable, and the Commissioner of Revenues brings this appeal.
In order to be subject to the Gross Receipts Tax, the dirt hauled must be considered tangible personal property that has been sold:
26-52-301 Tax Levied
There is levied an excise tax of three percent (3 %) upon the gross proceeds or gross receipts derived from all sales to any person of the following:
(1) Tangible personal property.
Ark. Code Ann. § 26-52-301(1) (1992).
The Arkansas Gross Receipts Tax Regulations, promulgated by the Department of Finance and Administration in 1987, define the term “tangible personal property” as:
GR-3(I) The term “Tangible Personal Property” means personal property which may be seen, weighed, measured, felt, touched or is in any other manner perceptible to the senses.
The Gross Receipts Act provides the definition of a sales:
(3) (A) “Sale” is declared to mean the transfer of either title or possession. . for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which the transfer is accomplished.
(3) (D) “Sale” shall not include the furnishing or rendering of services, except as otherwise provided in this section.
Ark. Code Ann. § 26-52-301(1) (1992) (emphasis added).
In holding that the audited transactions are not subject to the gross receipts tax, the chancellor made the following findings of fact:
A. The primary business purpose of A & B is excavation and dirt hauling;
B. The primary source of revenue of A & B is generated from the services it renders;
C. The Ferguson Monument case directs the Court’s attention to the question of whether or not A & B does anything to the dirt at any time to change its character or enhance its value. A & B does nothing to the dirt to change its character or enhance its value. As delivery doesn’t enhance the value of the dirt within the meaning of Ferguson, it is not subject to tax;
D. The Court referred to the title or name used by A & B as a factor in its decision, that name being A & B Dirt Movers, Inc.;
E. The price charged by A & B for its service remained the same price to the customer even if A & B paid for and passed through the cost of the dirt;
F. The Ferguson case is distinguished from this case because (1) Ferguson’s primary purpose was that of selling a product and (2) Ferguson actually changed the form of the product prior to selling it to the customer, e.g. like changing water to ice, and A & B does not change the dirt in any manner;
G. In viewing the transfer of dirt from A & B’s property, the Court determined that (1) A & B’s primary motivation in purchasing the land was not to sell the dirt; (2) A & B’s purchase of its land was not similar to a merchants purchasing inventory for future sale; (3) A & B’s removal of dirt from its own land would improve the land and would not depreciate the land; and (4) A & B does not charge for the dirt, only the service of hauling;
H. The Court examined the various types of transactions and concludes that A & B is generally a delivery person for the customer or an agent of the customer;
I. The court cannot distinguish between the hauling of dirt from A & B’s own property versus the hauling of dirt from other property because A & B’s stockholders could easily create a separate corporation that would eliminate any distinction to be made;
J. The defendant’s witness testified that sales tax would or would not apply depending on whether or not A & B could prove with documented invoices the manner in which the particular transaction evolved. The Court finds no substantive distinction between (1) A & B paying for the dirt and passing the cost to the customer versus (2) the customer paying the owner of the dirt directly and therefore, finds that a transaction should not be considered to be taxable dependent upon whether or not it is supported by written invoices.
Ark. Code Ann. § 26-18-406(b)(l) (1992), provides that chancery courts are to review administrative tax decisions de novo. The statute gives the court jurisdiction to hear appeals of these tax cases once they have been adjudicated in chancery: “An appeal will lie from the chancery court to the Supreme Court of Arkansas, as in other cases provided by law.” Ark. Code Ann. § 26-18-406(b) (2) (1992). As such, we review this case as we review all chancery court decisions, de novo. See Medalist Forming Sys., Inc. v. Malvern Nat’l Bank, 309 Ark. 561, 832 S.W.2d 228 (1992) (“While our review of chancery cases is de novo. . .we do not reverse findings of fact unless the chancellor’s findings are clearly erroneous.”).
As this case involves a question of whether a gross receipts tax should be assessed against the taxpayer, we are deciding an issue involving the levy of a tax. Any doubts or ambiguities, in this regard, must be resolved in favor of the taxpayer. Dunhall Pharmaceuticals, Inc. v. State, 295 Ark. 483, 749 S.W.2d 666 (1988); City of Hot Springs v. Vapors Theatre Rest., Inc., 298 Ark. 444, 769 S.W.2d 1 (1989). The agency claiming the right to collect a tax bears the burden of proving that the tax law applied to the item sought to be taxed. Meadowbrook Country Club, supra.
However, if the taxpayers records are not clear, this burden shifts to the taxpayer to show why he should not be taxed. Arkansas Code Annotated § 26-18-506 (1992) provides:
(a) It is the duty of every taxpayer required to make a return of any tax due under the state tax law to keep and preserve available records as are necessary to determine the amount of tax due or to prove the accuracy of any return. ...
(d) When a taxpayer fails to preserve and maintain the records required by any state tax law, the director may, in his discretion, make an estimated assessment based upon information available to him as to this amount of tax due by the taxpayer. The burden of proof of refuting this estimated assessment is upon the taxpayer.
(Emphasis added.)
In making his determination that the transactions at issue were not taxable, the Chancellor premised his findings on the fact that “a transaction should not be considered to be taxable dependent upon whether or not it is supported by written invoices.” This underpinning is wrong as a taxpayer has a legislatively imposed responsibility to keep good tax records, and A & B failed to do so. Thus, the burden was on A & B to refute the tax.
In his findings of fact, the Chancellor refers to Ferguson Monument v. Cook, 215 Ark. 373, 220 S.W.2d 808 (1949). However, as Ferguson involves the issue of whether labor costs should be included in the price of the product for taxation purposes, we do not find this case relevant and will not discuss it.
As the auditor testified, whether ownership was transferred in certain circumstances could not be determined by looking at A & B’s records. The invoices reviewed in the audit contained the customer’s name, address, type of transaction, loads hauled and a date. According to the auditor’s testimony, she could not determine from the information on the invoices the owner of the property at the beginning and the owner at the end of the transaction.
The auditor further testified that she deleted items that she deemed taxable if A & B’s owner, Mr. Nabholz, provided proof that they should be deleted. For example, if Mr. Nabholz had a contract or other documentation proving ownership of the dirt had not transferred from A & B to the customer, the auditor deleted the item. Without documentation to the contrary, the auditor assessed a tax on the transactions as sales of dirt.
To illustrate its position, A & B prepared exhibits one through six, summarizing the transactions at issue from A & B’s viewpoint:
Plaintiff’s Exhibit One. Material Owned By Customer and Hauled to Another Location.
CUSTOMER DESCRIPTION AMOUNT
Baptist Camp Loads $1275.00
Bernard Nabholz 24 Lds Fill Dirt $ 660.00
Con Ark Const Co 23 Ld Fill $ 690.00
Con Ark Const Co 1 Ld Fill Dirt $ 30.00
Con Ark Const Co 11 Ld Fill $ 319.00
Con Ark Const Co 2 Ld Fill $ 58.00
Con Ark Const Co 2 Ld Fill $ 203.00
Con Ark Const Co 22 Ld Fill $ 638.00
Con Ark Const Co 240 Yd Fill Dirt $ 750.00
Con Ark Const Co 3 Lds Fill $ 87.00
Con Ark Const Co 7 Ld Fill Dirt $ 175.00
Con Ark Const Co 8 Ld Fill $ 200.00
Con Ark Const Co Fill $1276.00
Starkey Const Co 7 Ld Fill Dirt $ 157.00
David Starkey 12 Lds Fill $ 360.00
Bernard Naboltz 18 Lds Fill $ 450.00
Conark 2 Lds Topsoil $ 60.00
May Lewis 10 Lds Topsoil $ 300.00
Ollie Hamlett 10 Lds Haul Off $ 150.00
Ollie Hamlett 13 Lds Haul Off $ 195.00
Ollie Hamlett 6 Lds Haul Off $ 90.00
TOTAL $8123.00
Plaintiff’s Exhibit Two. All Dozer Time — Only $120.00 Charged for Material.
CUSTOMER DESCRIPTION AMOUNT
Rich Fore 4 Lds Fill $2155.00
TOTAL $2155.00
Plaintiffs Exhibit Three. Material Paid For — 2.00 Per Yard
CUSTOMER DESCRIPTION AMOUNT
Dick Enderlin 1 Ld Topsoil $ 45.00
Ralph Strack 4 Lds Topsoil $ 200.00
Frank Roland 2 Lds Haul $ 80.00
Frank Roland 60 Lds Topsoil $ 360.00
Trotter Const 14 Loads Topsoil $ 690.00
TOTAL $1375.00
Plaintiffs Exhibit Four. Material Hauled From Property of A & B Movers, Inc. to Customer.
CUSTOMER DESCRIPTION AMOUNT
Dan Davis 4 Lds Shale $ 120.00
S & S Const 10 Lds Shale $ 350.00
Ken 6 Lds Fill $ 150.00
Kent Griffin 12 Lds Shale $ 360.00
Kent Griffin 3 20 Yd Lds $ 90.00
Kent Griffin 6 20 Yd Lds $ 360.00
K & D Const 9 Lds Shale $ 400.00
K & D Const 9 Lds Shale $ 320.00
Charles Hightower 16 Lds File $1220.00
TOTAL $3370.00
Plaintiffs Exhibit Five. Material Obtained by A B Dirt Movers, Inc. Free of Charge and Delivered to Customer
CUSTOMER DESCRIPTION AMOUNT
Con Ark Const Co Loads $1650.00
Paul Bruich Fill Dirt $ 25.00
Gold Creek 7 Lds Fill $ 245.00
Paul Watts 77 Lds Fill Dirt $ 770.00
Ronnie Fowlkes Fill Dirt $ 165.00
Paul Watts 7 Ld Fill Dirt $ 350.00
Edwards Const 20 Lds Fill $ 400.00
TOTAL $40,072.60
Plaintiffs Exhibit Six. Material Obtained by Customer From a Third Party — Customer’s Material.
CUSTOMER DESCRIPTION AMOUNT
Hitower 11 Lds Fill $ 440.00
Hitower 2 Lds Fill $ 80.00
Hitower 2 Lds Fill $ 80.00
Hitower 2 Lds Fill $ 80.00
Hitower 4 Lds Fill $ 160.00
Paladino & Nash 2 Lds Topsoil $ 70.00
TOTAL $73,376.00
The Commissioner conceded during the course of the appeal that the transactions reflected in exhibits one and six were not taxable under the gross receipts tax. That leaves for our consideration the transactions alluded to in exhibits two through five. At the chancery court trial, Mr. Nabholz reviewed the exhibits and discussed the source of the dirt in each. In arguing that the transactions represented in these four exhibits are subject to the Gross Receipts Tax, the Commissioner claims that pursuant to Ark. Code Ann. § 16-18-506 (1992), he may assess a tax on these transactions because A & B’s records are not clear. We agree.
As the statutory definitions indicate, a sale of tangible personal property results when title of the property is exchanged for valuable consideration. There is no means to determine from the records of the transactions at issue how much of the price charged is for hauling and how much, if any, is actual consideration for the dirt. Nor do the records reflect from whom ownership of the dirt was transferred.
While it is clear that the transactions involved a service, it appears that these transactions also involved the sale of dirt. Absent adequate additional documentation or testimony from the parties involved, the gross receipts tax should have been levied against the taxpayer on these transactions. The taxpayer has the burden of refuting the reasonableness of the estimated tax assessments. Jones v. Ragland 293 Ark. 320, 737 S.W.2d 641 (1987). At the trial, A & B supported its documentation with testimony from Martin Presley, a customer of A & B, as well as from A & B’s owner, Mr. Nabholz. Mr. Presley testified that he often used A & B to haul materials that he had previously acquired. Transactions between A & B and Mr. Presley were included on exhibit six. Since exhibit six is one of the two exhibits the Commissioner of Revenues conceded during this appeal was not subject to tax, Mr. Presley’s testimony is not relevant to the transactions at issue in this appeal.
During the trial, Mr. Nabholz testified to explain that the information in the exhibits pertained to transactions involving charges for hauling rather than selling dirt; however, the record is devoid of any testimony from the other parties involved in exhibits two through five, the questioned transactions, as to whether or not there was a sale of dirt. In short, we find Mr. Nabholz’s testimony insufficient, standing alone, to meet the taxpayer’s statutory burden in refuting the reasonableness of the assessment. To hold otherwise would be to permit a taxpayer to maintain scant records and after an unsatisfactory tax audit, avoid taxation by merely verbalizing his transactions unsupported by appropriate documentation made at the time of the transactions or by testimony from other parties to the transactions.
Accordingly, the Chancellor’s ruling is reversed.
On cross appeal, A & B argues that the Chancellor erred in refusing to grant the company civil damages and attorneys fees claiming that the Commissioner of Revenue and his employees intentionally disregarded tax law. A & B relies upon Ark. Code Ann. § 26-18-809:
26-18-809 Civil damages for certain unauthorized collection actions.
(a) IN GENERAL. If, in connection with any collection of state tax with respect to a taxpayer, any employee of the Department of Finance and Administration, Revenue Division, recklessly or intentionally disregards any provision of this title. . .such taxpayer may bring a civil action for damages against the director. . . .
As A & B has presented no evidence to prove that the Commissioner disregarded tax law, we affirm the Chancellor’s decision in refusing damages and fees.
Reversed and remanded on direct appeal; affirmed on cross appeal.
Glaze, J., dissents. | [
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Webb Hubbell, Chief Justice.
Appellee, Land Developers, Inc., made application to appellant, Arkansas Department of Pollution Control and Ecology for a permit to operate a sanitary landfill. Appellant denied the application, and appellee appealed the decision to the Saline County Circuit Court.
In November, 1983, the trial court ordered that the matter would be heard de novo, that either party could supplement the record, and the court would accept such additional evidence as was properly offered. On February 24, 1984, the circuit court ruled that the appellant was without authority to deny the permit and that it should immediately issue the permit. Appellant argues, along with several other points for reversal, that the trial court erred in conducting a trial de novo. We agree and reverse and remand.
The circuit court ordered a trial de novo pursuant to Ark. Stat. Ann. § 82-1906 — Subdivision 7 (Repl. 1976) which provides:
The appeal shall be heard and determined by the court upon the issues raised by the notice of appeal. . . . The court on its own motion or on application of any party may, in its discretion, take additional evidence on any issue of fact or may try any or all such issues de novo, but no jury trial shall be had.
Appellant argues that a de novo review is an infringement of executive discretion in violation of Article IV of the Arkansas Constitution. In Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980), we reviewed the issue of the constitutional propriety of de novo review of administrative action by the judiciary. In Goodall we said that the constitutional propriety of de novo review primarily turns upon the character and legal status of the affected interests. If the interests are constitutionally or statutorily preserved, or preserved by private agreement, de novo review is appropriate. Thornbrough v. Williams, 225 Ark. 709, 284 S.W.2d 641 (1955). If the interests are less than fixed and their existence primarily depends on executive or legislative wisdom, de novo review is inappropriate. Goodall v. Williams, supra.
Appellant administers the Solid Waste Management Act, the purpose of which is to regulate the collection and disposal of solid wastes in a manner that will: a) protect the public health and welfare, b) prevent water and air pollution, c) prevent the spread of disease, d) conserve natural resources, and e) enhance the beauty and quality of the environment. Ark. Stat. Ann. § 82-2702 (Repl. 1976). Appellant’s determination of the suitability of a site for a landfill falls within its proper police powers to protect the health, safety, and general welfare of the citizens of the state. Such a determination, similar to that for the issuance of a liquor license, is not a determination which is judicially cognizable since the effort to obtain a permit hinges on executive discretion. Goodall v. Williams, supra.
Mere ownership, or leasehold, of property which could be utilized for the conduct of business does not constitute a non-terminable right. Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975). In Wenderoth v. City of Forth Smith, 251 Ark. 342, 472 S. W.2d 74 (1971), we said that a statute providing for de novo review of municipal zoning decision violates Article 4 of the Arkansas Constitution. For the same reasons, the right to operate a landfill must be precluded from de novo review.
We hold that Ark. Stat. Ann. § 82-1906-Subdivision 7 (Repl. 1976) is unconstitutional to the extent that it authorizes the circuit court to review de novo the appellant’s decision. This does not mean that appellant’s decisions are immune from appellate review. The circuit court has the power to grant relief in appropriate proceedings when the decision is arbitrary, capricious, or unreasonable, and to take additional evidence on any issue.
The trial court found that appellant had not adopted any procedure, rules, or regulations which afforded appellee due process. We agree with this finding. Our opinion should not be interpreted as a criticism of the circuit court which was operating under a presumptively valid statute, but since we hold de novo review constitutionally inappropriate, we must reverse and remand. The trial court should now remand appellee’s application to appellant and mandate a complete and constitutionally appropriate proceeding.
Reversed and remanded.
Hickman and Hollingsworth, JJ., dissent. | [
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Darrell Hickman, Justice.
On November 1, 1982, the judges of the Pulaski County Circuit Court issued an order which promulgated rules relating to the acceptance of bonds in their court. James F. Miller, a licensed bail bondsman, sought a writ of prohibition against enforcement of the order with this court. We denied the writ deciding that the appropriate remedy was not prohibition. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983). Miller then filed an action in Pulaski County Circuit Court seeking a declaratory judgment asking that the order be declared void. A special circuit judge held that the circuit judges did have the authority to issue and enforce the order.
Miller argues on appeal that Act 268 of 1959, which gives the courts authority to regulate the business of bondsmen, was impliedly repealed by Act 400 of 1971. Act 400 essentially sets forth the licensing requirements for bail bondsmen by the Arkansas Department of Insurance. Miller concedes that repeals by implication are not favored. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). He maintains, however, that the acts are in such conflict that Act 268 cannot stand. Miller argues that the acts are in conflict in that Act 268 gives courts the power to regulate the business of bondsmen and Act 400 invests the Department of Insurance with that power. Act 400 merely states that the Department of Insurance has the authority to administer the act and issue rules and regulations to that end. Ark. Stat. Ann. § 43-735 (Repl. 1977). That authority does not conflict with the authority given the courts by Act 268. The Insurance Department must have the authority to effect the purpose of Act 400 and the courts must have the authority to regulate their own business. The two acts recognize that and are reconcilable in that regard.
In one instance the acts are not reconcilable. The acts conflict where Act 268 allows judges to fix the maximum amount of fees and Act 400 fixes the maximum amount. We find that Act 400 controls and amends Act 268 by implication in that respect. See Pruitt v. Sebastian County Coal & Mining Co., 215 Ark. 673, 222 S.W.2d 50 (1949). Otherwise, the two acts are not in conflict and, therefore, there is no repeal by implication. Selig v. Powell, 253 Ark. 555, 489 S.W.2d 484 (1973).
Miller also argues that Act 400 of 1971 covers the entire subject matter of Act 268 and we should find a repeal by implication for that reason. We do not agree since, as we noted before, Act 268 recognizes the power of the judges to regulate the business of bail bondsmen acting in their courts, while Act 400 merely sets forth licensing requirements.
In order to address Miller’s other arguments, we will summarize parts of the order. It requires all bondsmen to apply for approval to make bail and to furnish a periodic financial statement or line of credit from a bank. The bondsman would be permitted to write bonds not exceeding his net worth or the amount of his line of credit. If by surety, the insurance company must be licensed to do business in Arkansas, and the bondsmen must notify the court of their contract and the limit of the bondsmen’s authority to write bonds. The order further provides that the bondsmen must notify the court when the maximum liability authorized has been reached and stop writing bonds at that point and that the surety and agent would be jointly and severally liable on all bonds.
We find the portion of the order which absolutely prohibits the bondsman to write a bond which exceeds his net worth or the amount of his line of credit to be invalid. Judges must use discretion in determining whether a bondsman can honor his obligations. This provision is too arbitrary, because it robs the judge beforehand of his necessary discretion. Just as a judge cannot be forced to accept a bond, a judge cannot arbitrarily deny one.
Another argument involves a meeting called by the circuit judges to explain the order to the bondsmen. At that meeting, Judge Floyd Lofton said that when a felon is bound over to circuit court from municipal court, his bond would not necessarily be approved in circuit court unless the bondsman had met the requirements of the order. Miller argues that that statement contravenes A.R.Cr.P. Rule 9.2 (e) which provides:
An appearance bond and any security deposit required as a condition of release pursuant to subsection (b) of this rule shall serve to guarantee all subsequent appearances of a defendant on the same charge or on other charges arising out of the same conduct before any court, including appearances relating to appeals and upon remand. If the defendant is required to appear before a court other than the one ordering release, the order of release together with the appearance bond and any security or deposit shall be transmitted to the court before which the defendant is required to appear. This subsection shall not be construed to prevent a judicial officer from:
(i) decreasing the amount of bond, security or deposit required by another judicial officer; or
(ii) upon making written findings that factors exist increasing the risk of wilful nonappearance, increasing the amount of bond, security, or deposit required by another judicial officer.
Upon an increase in the amount of bond or security, a surety may surrender a defendant.
Miller argues that Rule 9 guarantees that a bond approved in municial court will be sufficient for circuit court. We agree with Miller’s argument only to the extent that we find that a judge cannot refuse the bond simply because it was made in municipal court. As the rule provides, the judge can decrease or increase the bond, but if he increases it, he must have reasons to do so.
The other provisions of the order are within the judges inherent power to promulgate rules or order for the conduct of their courts. See Widmer v. Kennedy, 243 Ark. 527, 421 S.W.2d 609 (1968). Those provisions appear to simply be a declaration of policy that is not violative of any statute or law. See Letaw v. Smith, 223 Ark. 638, 268 S.W.2d 3 (1954).
We find therefore that the order of November 1, 1983, is valid and enforceable to the extent herein explained and that Act 268 of 1959 is in part amended by implication by Act 400 of 1971.
Affirmed in part and reversed in part.
Purtle, J., concurs. | [
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P. A. Hollingsworth, Justice.
The appellant was charged with driving while intoxicated pursuant to Act 549 of 1983. The jury found him guilty of third offense driving while intoxicated and imposed a one year sentence, $1500 fine, and suspension of his driver’s license. The principal points for reversal relate to the unconstitutionality of the act which (1) is unconstitutionally vague; (2) establishes a conclusive presumption of guilt; and (3) compels defendants to testify against themselves in violation of the fifth amendment to the United States Constitution. The fourth point for error is the admission of prior convictions when the record did not show the appellant was represented by counsel. Jurisdiction is in this Court under Rule 29 (l)(c).
In the course of driving upon a highway, appellant crossed the center line and was stopped by a state trooper. Upon smelling alcohol on the appellant’s breath, the state trooper administered field sobriety tests and determined that appellant was intoxicated. The state trooper arrested the appellant, and a struggle ensued. Appellant sustained a broken leg and other injuries for which he was taken to the hospital for treatment. While he was there, a blood alcohol test was given, registering .22%.
The constitutionality of the act has been raised before on the first two points argued by appellant, and we have declared the act passes constitutional muster. See Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984); Lovell v. State, 283 Ark. 425,678 S. W.2d 318 (1984). The third issue raised by the appellant is that the use of blood alcohol test results compels a defendant to testify against himself.
In Schmerber v. California, 384 U.S. 757 (1966), the United States Supreme Court held that the privilege against self-incrimination extended only to testimonial evidence, and blood alcohol test results are not testimonial. The Court reasoned that even though the test results were evidence which can be used against the defendant, his testimony was not involved.
Further, we have held that test results are admissible under our implied consent law. This law is valid and does not violate the provision against self-incrimination. Ark. Stat. Ann. § 75-1045 (Supp. 1983). Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975).
With regard to the admission into evidence of a prior conviction document which was subsequently used to enhance punishment, the state did not make a prima facie case. The trial court found that appellant had a prior DWI conviction on November 4, 1981, based on a conviction document stamped with the words “Defendant was advised by court of right to counsel, witness, trial and new law, etc., waived all rights.” The municipal clerk testified that the £tamp was entered in 1983, two years after the actual. conviction. She also testified it was the policy of the j udge to ask a defendant if he were represented by an attorney or wished to be, and that one would be appointed if necessary. The appellant made timely and proper objections to the altered document and to the testimony concerning the practice of the municipal court. Under these circumstances, an altered court record and testimony about the practice of the municipal court do not satisfy our standards as set forth in our previous decisions on proof of prior convictions. Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975); McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974).
Literally thousands of cases were held in limbo pending our review of the constitutionality of the Omnibus DWI Act of 1983. We have upheld this act on all the constitutional attacks to date. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984); State v. Ziegenbein, 282 Ark. 162, 666 S.W.2d 698 (1984). The bench and bar should be on notice that we will require strict adherence to the principles of Baldasar v. Illinois, 446 U.S. 222 (1980) which bars prior uncounseled misdemeanor convictions from being used to enhance punishment for a subsequent offense. Careful adherence should be given to our decisions regarding proof of prior convictions in these cases.
Affirmed in part; reversed in part.
Hays, J., dissents in part. | [
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Robert H. Dudley, Justice.
Vivian Varnum died on July 5, 1982, leaving an estate valued at over $400,000. Three different handwritten instruments, each with a different principal beneficiary, were offered for probate and each was denied admission. The trial court labeled the instruments the Lingo Will, the Family Will and the Terrell Will, with the label representing the principal named beneficiary in each instrument. This appeal is by the David Terrell Faith Prophet Ministries from the denial of admission of the Terrell will. We affirm the denial. This appeal is before this court pursuant to our Rule 29(1 )(p) as it presents questions concerning the construction of wills.
The probate court first reviewed the Lingo will which was purported to have been signed on June 29, 1982, although internal evidence indicates that the second page of the document, at least, was written prior to October 17, 1978. The judge held that some person had taken an unfinished draft of a will and fraudulently completed it by filling in the names of the executor and the beneficiary. Probate of the Lingo will was denied and there was no appeal from that decision. However, the Lingo will is evidence not only that the decedent wrote a draft of a will, as distinguished from a final instrument written with testamentary capacity, but also that the sentence “I Vivian Varnum, being of sound mind, declare this to be my Last Will and Testament,” in the first paragraph of that draft was not written with testamentary intent.
The next instrument the Family Will, was entirely handwritten by the decedent and, at the end, contained the signature and date “Vivian Varnum, October 22, 1968.” The trial court held that the decedent revoked the dispositive clauses of the family will be marking ou.t those clauses. No family member contests that ruling.
Based upon the testimony of experts in the field of handwritdng, and upon internal evidence contained in the language of the instrument, the trial judge held that the third instrument, the Terrell will, was written entirely by the decedent with the use of three different pens, one for the body of the document, the second for the words “My Last and Only Will” and for her signature and the third, for the date, October 22, 1968. The trial court held that internal evidence indicated the body of the purported will was written between October 17, 1978 and October 27, 1979 and the written words “My last and only will. Vivian Varnum. October 22, 1968” were written ten years earlier as they were written for, and upon, the sheet of paper which was the cover sheet or fronting page of the Family will. The body of the proposed will is on both sides of this one sheet of paper. These facts left the trial court faced with the question of whether the necessary testamentary intent existed when the signature and date were written as the cover sheet for one will and then, ten years later the body of a second will is written around that signature and date. The side of the sheet of paper containing the signature is photocopied for clarity.
Will contest cases come before this court for a trial de novo but we will affirm the order of the probate judge unless it is clearly against the preponderance of the evidence. Greenwood, Guardian v. Wilson, Adm’x, 267 Ark. 68, 588 S.W.2d 701 (1979). The existence of testamentary intent is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that intention. McDonald, Ex’x v. Petty, 262 Ark. 517, 519, 559 S.W.2d 1, 2 (1977). Inquiry may be made into all relevant circumstances where the existence of testamentary intent is in doubt. Chambers v. Younes, Adm’r, 240 Ark. 428, 399 S.W.2d 655 (1966), citing 94C.J.S. Wills, § 203. However, use of extrinsix evidence is appropriate only when the instrument expresses an intent, it is inappropriate when the instrument expresses no intent, as in McDonald, Ex’x, supra.
The evidence is undisputed that decedent was an educated woman who kept careful records of her business affairs. It was evident to the trial court from the Lingo will that decedent has previously made, at the least, one draft instrument. The trial court concluded that the Terrell will was also a draft and was without testamentary intent.
In addition, the trial court held that the language in the body of the instrument “I — Vivian Varnum being of sound, mind, — declare this to be my last will and testament” was only a draft sentence, just as the same sentence was in the draft of the Lingo will. The trial court held this sentence was not intended to constitute a signature on a holographic will as was intended in Smith v. MacDonald, 252 Ark. 931, 481 S.W.2d 741 (1972). In that case, the decedent had prepared his handwritten will on a form provided by his attorney but his signature appeared nowhere other than “I, Julian Leland Rutherford, of Monroe County, Arkansas, being over the age of twenty-one and of sound and disposing mind ...” etc. The decedent delivered the will to his attorney, told him that this was his will, and asked him to safely keep it. The envelope containing the document provided “Bill Rutherford-Will.” We allowed probate in that case because extrinsic evidence removed any doubt about testamentary intent. The accumulation of extrinsic evidence was the key factor in removing any doubt about the testator’s intent. No such authenticating circumstances appear in the case at bar, and without them, or ones of equal validity, we cannot say that the probate judge was clearly erroneous in his ruling..
The decedent wrote the word “Good” at the top of the first page of the Terrell will. The appellant contends that this word indicates testamentary intent but it just as well means that it was a good draft. We cannot say the trial judge was clearly erroneous in holding that the word “Good” is not extrinsic evidence of testamentary intent.
The appellant next contends that the Terrell will is a codicil, or republication of the partially revoked Family will and that both can be probated as one testamentary entity. Although the general rule is that a will should be, if possible, construed so as to avoid intestacy, this court will not speculate on a testator’s intent. Appellant cites Bradshaw v. Pennington, 225 Ark. 410, 283 S.W.2d 351 (1955) as authority for admitting these two documents to probate as one unit. However, Bradshaw, as many will construction cases are, is distinguishable on its facts from the case at bar. In Bradshaw, six sheets of holographic writings were filed with the probate court. Five sheets were identical in writing except that each named a different beneficiary and property list. The sixth sheet left nephews and nieces specific property. All were dated the same date and signed at the end by decedent. All six sheets were found pinned together. None of these circumstances are present in the case at bar. The findings of the probate judge in refusing to construe the Terrell will and the Family will together were not clearly erroneous.
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Steele Hays, Justice.
Appellant, Frank Heard, was convicted of second degree murder for the fatal shooting of William Stanfield, and challenges the sufficiency of the evidence by this appeal.
Appellant and Stanfield shared the same house and had argued a number of times in the past. On the night of the shooting they had argued and fought just outside appellant’s room. Appellant grabbed his pistol from the dresser and as they struggled the gun discharged, fatally wounding Stanfield. The bullet struck Stanfield on the right side of his nose and entered his brain at an upward angle of twenty-five degrees. Appellant was found guilty and sentenced as an habitual offender to forty years imprisonment and given a $500 fine.
On appeal appellant argues only that the evidence was insufficient to support the conviction of second degree murder, specifically that there was no substantial evidence to show that appellant acted with the requisite mental state to sustain a conviction of murder in the second degree.
To constitute murder in the second degree under Ark. Stat. Ann. § 41-1503(l)(b), a person commits murder if “he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” The culpable mental state required for second degree murder as defined by § 41-1503(l)(b), is to “knowingly” cause such result. Ark. Stat. Ann. § 41-203(2) defines “knowingly.”
A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
Under this statute, the state had to prove that appellant acted with an awareness of his conduct, the relevant attendant circumstances and that his conduct was practically certain to cause the death of the victim.
On appeal the evidence will be viewed in the light most favorable to the appellee and the verdict will be affirmed if there is substantial evidence to support it. The evidence is substantial if the jury could have reached its conclusion without having to resort to speculation or conjecture. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). As we have observed in other cases, intent or purpose behind an act, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances surrounding the act. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979). We need only consider that testimony that lends support to the jury verdict and disregard any testimony that could have been rejected by the jury on the basis of credibility. Chaviers, supra.
The appellant testified that he had been drinking earlier but at the time of the quarrel he was in control of his faculties and was aware of what he was doing. Appellant said when he reached for his pistol Stanfield was unarmed. Appellant testified that he had loaded the gun himself and when he grabbed the gun he was sure that he had his finger on the trigger. He said Stanfield grabbed his hand and the pistol, and as the two struggled with the gun, the gun was pushed into Stanfield’s chest and “just went off.” There was testimony that the two had argued on a number of occasions prior to the night of the shooting and that appellant had recently threatened to kill Stanfield and his son.
The expert testimony was damaging to appellant’s explanation of the shooting. The ballistics expert testified that the type of gun used by appellant could be discharged by just pulling the trigger without cocking the gun. He stated the gun was of low quality and when discharged would cau.se gunpowder residue to come out between the cylinder- and the-barrel, “just about everywhere there was an opening in the gurb”.(The medical examiner testified thatjbásed on the amount of'gunpowder residue on the body the pistol was fired from a distance of eighteen inched to two to three feet from the victim. Stanfield’s hynds and the examiner testified that if the hands were pear the muzzle there would be a residue on the hands.--"The victim’s hands were also examined for any trace metal deposits arid any pattern they might have. Deposits were found on the victim’s hands, but none that tyer€ consistent with the pattern of any pact of a gun. It.was the examiner’s opinion that the victim hadbriot handled a gun recently before his death. __
It is evident the appellant employed deadly physical force without justification, see Ark. Stat. Ann. § 41-507 , and there was substantial evidence from appellant’s own testimony as well as the expert witnesses for the jury to conclude that appellant “knowingly” caused Stanfield’s death. The jury was not bound to conclude that the shooting was accidental and was not required to accept appellant’s version as uncontradicted. It was for the jury to resolve the conflicting theories based on the evidence presented. See Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979); Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978).
The judgment is affirmed.
§ 41-507. Justification — Use of deadly physical force in defense of a person. — (1) A person is justified in using deadly physical force upon another person if he reasonably believes that the other persons is:
(a) committing or about to commit a felony involving force or violence; or
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Steele Hays, Justice.
Bill Qualls brought this action below against Philip Boren for assault and battery allegedly occurring outside a Fayetteville tavern in January, 1982. Each blamed the other for provoking the fight. The jury settled that issue by awarding Qualls $6,458.02 in compensatory damages and $5,000 in punitive damages. Boren has appealed. We affirm the judgment.
For reversal, Boren insists the trial court improperly denied him the right to impeach Qualls by showing he had stated under oath he had never been arrested or convicted of a felony, or a misdemeanor, when in fact he had been arrested twice for rape and once for theft of property and had been convicted of careless driving. Specifically, Boren contends that in interrogatories he asked Qualls if he had ever been “arrested and/or convicted” of a felony and the answer was “no.” The answers were signed by Qualls’ attorney, but were verified by Qualls as being true. Additionally, Boren points to Qualls’ affidavit, attached to a motion in limine, stating he had never been “convicted of any crime, either felony, misdemeanor or an act involving dishonesty or false statement.”
The admissibility in general of felony arrests and misdemeanor convictions for impeachment purposes need not be examined, as Boren concedes that under Unif. R. Evid. Rule 609 the trial court’s exclusion of these matters would ordinarily be correct . However, he submits they became admissible for impeachment when Qualls denied their existence under oath. Boren offers no authority to support his argument on this point, he simply asserts that he should have been permitted to show that Qualls swore he had never been arrested, when in fact he had three felony arrests and a misdemeanor conviction.
We can eliminate part of the problem by observing that the affidavit gives no support to Boren’s position. It does not mention arrests, it merely states that Qualls has never been convicted of a felony, which Boren does not dispute, or of “a misdemeanor or an act involving dishonesty or false statement.” Boren argues that Qualls has a misdemeanor conviction for careless driving and hence, his affidavit is false. But that alleged offense was never proffered and we have said a number of times a proffer is essential. Jones v. State, 283 Ark. 308, 675 S.W.2d 825 (1984); Farrell v. State, 269 Ark. 361, 601 S.W.2d 835 (1980); Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979); Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978).
With the affidavit aside, all that remains is the single interrogatory, “[p]lease state whether you have ever been arrested and/or convicted of any crimes.” The answer was “no.” As we have said, the answers were signed by Qualls’ attorney, but their truth was verified by Qualls on a separate form.
It is obvious this problem has arisen because the interrogatory employed an imprecise term, “and/or,” when precision was called for. The phrase has been so soundly criticized as to have been driven almost entirely from current usage. At best it has been labelled “equivocal,” “obscure” and “meaningless,” at worst “slovenly,” “improper” and “a linguistic abomination.” (See cases cited in Words and Phrases, Perm. Ed., pages 640 to 647). It has no place in modern practice, least of all in discovery interrogatories. A list of condemnors includes a number of our own cases. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976); Guerin v. State, 209 Ark. 1082, 193 S.W. 2d 997 (1946).
The short of the matter is the phrase may be interpreted as either conjunctive or disjunctive, and it is plain Qualls, no doubt advised to do so, chose the conjunctive use so as to interpret the interrogatory as, “have you ever been arrested and convicted of any crime,” to which he could truthfully say, “no.” The record confirms our view: when asked in-chambers if he recalled answering the interrogatory, he said, “And/or, yes sir .”
We do not suggest discovery should be treated as a game of cat and mouse, or that one litigant should be rewarded by the artful avoidance of truthful answers to proper questions. But that is not the issue before us. Our task is to determine whether (as best we can with no abstract of relevant in-chambers proceedings) the evidence of false swearing was so clear the trial court abused its discretion by excluding it for impeachment purposes. We think not under all the circumstances.
Unif. R. Evid. 608(b) speaks to the issue to this extent: it empowers the trial judge in his discretion to permit specific instances of conduct to be inquired into on cross-examination for purposes of attacking credibility, provided those matters are probative of truthfulness or untruthfulness. Whether the ruling in this instance was based on a belief Qualls answered the interrogatory truthfully, albeit technically, or that the alleged arrests had no bearing on truthfulness, or that prejudice outweighed probative value, or even that the proof of the alleged arrests was questionable, cannot be determined without going to the record. In the end we cannot say the trial judge erred in refusing it for impeachment purposes.
Next, appellant contends he should have been permitted under Unif. R. Evid Rule 404 to show the rapes as evidence of violent character. But Rule 404 deals with character evidence, proved not by specific instances of conduct, as here proposed, but by reputation or opinion, as provided in Rule 405. Moreover, the Rule states that character evidence is not generally admissible to prove that one acted in conformity with such character on a particular occasion. In Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), we said Rule 404 did not permit the introduction of evidence that Pursley had a tendency for violence when drinking, but the proof became admissible because Pursley opened the door by first offering proof he was not of a violent nature. See also Adams v. State, 93 Ark. 260, 124 S.W. 766 (1910).
Another point is the trial court erred in allowing Dr. Robert Dow, a Fayetteville neurologist, to testify that dental, hospital and x-ray services were reasonable and necessarily incurred by Qualls as a result of the fight. After establishing Dr. Dow’s medical experience, counsel for appellee submitted his qualifications as an expert, and he testified concerning Qualls’ complaints from the trauma. He said he was generally familiar with the cost of x-ray’s and dental work in the Fayetteville area and we are unable to say the trial court abused its discretion in permitting him to express an opinion on these matters. See Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).
Appellant also maintains the trial court should have granted a motion for mistrial on the ground that a defense witness was intimidated by Qualls’ attorney. The witness was with Boren when he and Qualls fought and supported Boren’s version of the incident. He testified at an in-chambers hearing on the motion that he was an employee of Qualls’ attorney, William Storey, who was surprised to see him at the trial. The witness said at first he thought he was being intimidated and his job might be in danger. He later said Storey had not tried to prevent him from testifying and had said he would not hold it against him. In the end, the witness said he was not intimidated and would testify only to the truth. There is no suggestion he did otherwise. We find no basis to overturn the trial judge’s denial of a mistrial. Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969).
The final point is that there is no evidence to support submitting the issue of punitive damages to the jury. No objection to the punitive damage instruction appears in the abstract, but aside from that, it can hardly be questioned that punitive damages are recoverable by one who suffers injury as a result of blows intentionally inflicted. See Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972).
In response to the dissenting view, we do not go to the record to reverse. First National Bank of Brinkley, Ark. v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984); Routen v. Van Dyse, 240 Ark. 825, 402 S.W.2d 411 (1966); Tenbrook v. Daisy Mfg. Co., 238 Ark. 532, 383 S.W.2d 101 (1964).
The judgment is affirmed.
Hickman, J., concurs.
Hubbell, C.J., and Dudley, J., dissent.
Cases holding that mere arrests, as opposed to convictions, of crime may not be used for impeachment are: Moore v. State, 256 Ark. 385, 507 S.W.2d 711 (1974); Polk v. State, 252 Ark. 320, 478 S.W.2d 738 (1972); Thacker v. Hicks, 213 Ark. 822, 212 S.W.2d 713 (1948).
Record, P. 104. | [
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David Newbern, Judge.
The appellant county asserts the unconstitutionality of Ark. Stat. Ann. § 43-2419 (Repl. 1979). Our jurisdiction thus is based on Supreme Court and Court of Appeals Rule 29(1) (c).
The judgment required the county to pay pursuant to § 43-2419 attorney fees to the appellees for representing indigent defendants. The case was submitted to the circuit court on a stipulation of facts. The stipulation notes the contention of the county that the “statute is unconstitutional.”
Nothing in the abstract or the record shows that the appellant gave the trial court any reason for holding the statute unconstitutional. In this court, however, the appellant argues that in a case in which a fine upon conviction goes to the city the statute requiring the county to pay fees to court appointed defenders of indigents violates Ark. Const, amend. 14 which prohibits local legislation, violates the state and federal constitutional requirements for equal protection and violates the constitutional requirement of separation of powers.
We will not consider constitutional arguments raised for the first time on appeal, Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984), even though the trial court may have been made generally aware of the contention of unconstitutionality of legislation or may have received other arguments of unconstitutionality. Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980).
Affirmed. | [
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Robert H. Dudley, Justice.
The City of Fayetteville proposed to issue $25,000,000.00 in municipal bonds to finance improvements to its wastewater treatment plant and to retire some outstanding bonds which it had previously issued. The city intends to repay the bonds with the proceeds of a one percent local sales and use tax and from revenue collected from the wastewater system. The sales and use tax would be the principal source of repayment. At a special election the voters approved the adoption of the tax, the issuance of the bonds, the pledge of the proceeds from the tax to repay the bonds, and the use of the bond proceeds to finance the improvements. Collection of the local sales and use tax commenced on November 1,1983. The city intends to pay a rate of interest greater than six percent per year.
The appellant, a citizen and taxpayer, filed a class action challenging the validity of the proposed bond issue and the legality of the use tax. The case was submitted to the chancellor on a stipulation of facts and cross motions for summary judgment. The chancellor upheld the proposed bond issue and the use tax. We reverse. Jurisidction to interpret the constitution is in his court. Rule 29 (l)(a). .
The Constitution of Arkansas provides that neither the state nor counties or cites shall ever lend their credit, nor shall cities or counties ever issue interest-bearing bonds unless five requirements are met. The five requirements are:
(1) that the taxpayers vote on the issuance of the bonds, the pledge of the proceeds and the use of the bond proceeds;
(2) that the bond proceeds be for a public project;
(3) that the bond bear no greater rate of interest than six percent per year;
(4) that the bonds be issued for no longer period of time than thirty-five years;
(5) that the bonds be paid by a special property tax not to exceed five mills.
Article 16, Section 1, as amended by Amendment 13.
In 1932 this court created an exception to the constitutional requirements. We held that a city could issue bonds to be paid entirely from revenues, without elective approval, to purchase a water and light plant. McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W.2d 1037 (1932).
In the landmark case delineating the exception to Amendment 13, Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934), we stated that compliance with the constitutional provisions was required if the bonded indebtedness for the municipal improvement would place any burden on the taxpayer, but compliance was not required if the bonded indebtedness was to be repaid solely by revenues from the improvement. We have never abandoned the exception. McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W.2d 1037 (1932); Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5 (1933); Hogue v. The Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940); and Boswell v. City of Russellville, 223 Ark. 284, 265 S.W.2d 533 (1954). Purvis v. Hubbell, Mayor, 273 Ark. 284, 620 S.W.2d 282 (1981). The week after Snodgrass was handed down we expanded the exception of “revenues from the improvements witout any burden on the taxpayer” in the consolidated cases of Johnson v. Dermott and Parker v. Little Rock, 189 Ark. 830, 75 S.W.2d 243 (1934). In the Dermott case, we approved a pledge of revenues from the municipal waterworks system to pay a bonded indebtedness incurred to build a municipal hospital, without an election. In the Little Rock case, also without an election, we held that an indebtedness for a municipal airfield could be paid out of revenues from the airport and in a significant move held that, in the event the airport revenues were insufficient to retire the indebtedness, the city could pay the bonds out of its general fund.
In City of Harrison v. Braswell, 209 Ark. 1094, 194 S.W.2d 12 (1946), we held that even though the city’s water and sewer system were technically separate, a surplus in one system might be applied to the retirement of the bonds of the other.
The revenue bond exception was then expanded further in Purvis v. Hubbell, Mayor, supra. There, in addition to revenues from a convention center, high-rise parking deck and hotel complex, the City of Little Rock pledged funds which would be derived from a special two percent sales tax and also pledged funds from any increase in state turnback from the state sales tax revenues. When we decided Purvis v. Hubbell, Mayor, supra, we recognized that the city, the attorneys, the developers, and the bond holders had relied on our past cases in defining the court created exception but a majority felt that we had gone too far with the concept. Still, the majority felt it would be manifestly unfair to restrict the exception without warnings, and so the opinion contained the following caveat:
After carefully considering our previous decisions, it appears there has been a gradual expansion of the concept of revenue producing bonds, which require no popular approval, as was authorized for instance in Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934). However, a change should not be made retroactively, after public agencies and investors have relied on our decisions; but in other instances we have given notice that an interpretation of the Constitution may or will be changed. Clubb v. State, 230 Ark. 688, 326 S.W.2d 816 (1959); Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W.2d 973 (1952). Accordingly, we give notice of our intention to prospectively reconsider our cases at the next opportunity after the present opinion becomes final.
Purvis v. Hubbell, Mayor, 273 Ark. at 339, 620 S.W.2d at 287.
In the case at bar, the City of Fayetteville does not propose to repay the bonds from revenues generated by improvements, but proposes to repay them out of a local sales and use tax. Consequently, the bonds are outside the court created constitutional exception for revenue bonds. The requirements of the constitution are mandatory, and therefore, since the bonds do not fulfill those requirements, they are invalid.
Reversed.
Hubbell, C.J., not participating.
Hickman and Purtle, JJ., concur.
Hays, J., dissents. | [
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Robert H. Dudley, Justice.
Appellee, Basil Kesterson, filed an application with the Alcoholic Beverage Control Administration for an on premises consumption mixed drink permit for a private club to be located in Grannis. Grannis is in Polk County, which is “dry”. The Director of the administration denied the application but, on appeal, the Board reversed and granted the permit. The circuit court affirmed. We reverse and remand with directions to deny the permit. Jurisdiction of this appeal is in this Court pursuant to Rule 29(1 )(c) since it involves the interpretation and construction of the Private Club Act.
Appellant’s principal argument is that the Alcoholic Beverage Control Board erred in its interpretation of the Private Club Act, Ark. Stat. Ann. Title 48, Chapter 14. The argument is meritorious.
A private club which may obtain a permit is defined as a non-profit organization consisting of at least 100 regular dues paying members and being in existence for some common purpose other than the consumption of alcoholic beverages. It must own or lease space in a building, and it must have been in existence for at least one year before applying for the permit. Ark. Stat. Ann. § 48-1402 (j) (Repl. 1977).
In this case the applicant was not an organization with at least 100 dues paying members which had been in existence for at least one year. Instead, appellee Kesterson had obtained a two year old charter from another county, amended it to change the address, and sold prospective memberships with no definite immediate purpose other than the consumption of alcoholic beverages. The applicant did not comply with the mandatory language of the statute, and the Board misconstrued the statute in finding compliance.
Further, the applicant proposed to obtain facilities after the permit was issued. Again, the mandatory language of the statute was not followed. The statute mandates that the applicant own or lease its facilities for at least one year before application.
Reversed and remanded with directions to deny the permit.
Purtle, J., dissents. | [
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John I. Purtle, Justice.
The petitioners were found to be in contempt of court and were sentenced to fines of $50.00 and jail terms of 10 days. The case is before this court on a petition for writ of certiorari. Petitioners argue that the conduct for which they were found guilty was not contemptuous and that they were entitled to a jury trial. For reasons stated below we agree that the conduct under the particular circumstances of this case was not contemptuous.
On March 6, 1984, the petitioners were in the Circuit Court of Washington County as the result of a civil action pending against them. When the court had finished for the day the petitioners proceeded into the hallway outside the courtroom. Shortly thereafter the opposing counsel approached them in what he stated was a friendly manner. However, petitioners did not feel the same and called him “the lowest son of a bitch on the face of the earth.” The attorney reentered the courtroom or a room immediately adjacent thereto. After two or three minutes inside the other room, the attorney proceeded downstairs. When he reached the second flight of stairs the petitioners were standing there and again each called him “a son of a bitch.” A deputy sheriff intervened and told the petitioners to quit annoying the attorney and to leave the courthouse. The deputy escorted the attorney downstairs at which time at least one of the petitioners approached the attorney and called him “the sorriest son of a.bitch in Washington County, Arkansas.” Thereupon the deputy took petitioners into custody and took them back to the third floor of the courthouse and into the j udge’s chambers and informed the court of the petitioner’s actions. Until that time the court had no knowledge of the events which had just occurred between petitioners and the attorney. The circuit judge advised petitioners that they were being charged with contempt of court for cursing the attorney. A hearing was scheduled for April 30, 1984. The court issued a written order informing the petitioners of the reasons for the hearing on the matter of contempt which had been initiated by the court. After the hearing on April 30, 1984, the court found both Mr. & Mrs. Edwards (petitioners) guilty of contempt of court and fined each one $50.00 and sentenced them to 10 days in jail. Mr. Edwards’ jail term was suspended.
Although appellants argue four points for reversal we discuss only the point challenging the sufficency of the evidence. Inherent power to punish for contempt resides in all courts. This necessarily includes the right to inflict reasonable and appropriate puishment upon an offender against the authority and dignity of the court. Such power cannot be removed by the enactment of laws to the contrary. Pace v. State, 177 Ark. 512, 7 S.W.2d 29 (1928). However, when the legislature speaks on the subject it should not be ignored by the courts. Therefore we take into consideration Ark. Stat. Ann. § 34-901 (Repl. 1962) along with the other circumstances of this case. The cited statute purports to define criminal contempt in the state of Arkansas. All of the listed grounds for contempt of court indicate that the contemptuous acts relate to behavior committed during the trial or in the presence of the court and that such acts impair the respect and dignity of the court. Contempt as defined in this statute includes breach of the peace in matters occurring outside the courtroom which tend to interrupt its proceedings. Of course, willful disobedience of any lawful order of the court is considered contumacious conduct.
In the present case the petitioners’ conduct occurred outside the courtroom and out of the presence or hearing of the court. The court had recessed for the day. There was no disturbance or impairment of any proceeding by the court. The court learned of the conduct after it was over. There was no evidence that petitioners attempted in any manner to interfere with the operation of the court. Actions which are designed to prevent appearance of a litigant or witness by intimidation or threats are obstructions of the judicial procedure which tend to bring the administration of justice into disrepute. Turk and Wallen v. State, 123 Ark. 341, 185 S.W. 472 (1916). In Pace v. State, supra, the husband of a witness inflicted a severe beating upon one of the attorneys during the noon recess. The attorney testified that he was on his way back to the courtroom to finish the lawsuit when he was attacked by Pace. This court found that under the circumstances in Pace the trial court was justified in finding that the assault and battery upon the attorney was in contemplation of an argument made during the pending trial and was calculated to obstruct the administration of justice and degrade the authority of the court.
The matter of contempt of court was treated rather extensively in the case of Freeman v. State, 188 Ark. 1058, 69 S.W.2d 267 (1934). The court in Freeman reviewed prior cases and derived the following rules: (1) the power of punishment for contempt is independent of statute and inherent in and an immemorial incident of judicial power, which conclusions are to be reached by the court without a jury; (2) this inherent power is entrusted to the conscience of the court alone but should never be exercised except where the necessity is plain and unavoidable if the authority of the court is to continue; and (3) the court’s contempt proceedings are to preserve the power and dignity of the court and to punish for disobedience of orders and to preserve and enforce the rights of the parties. Freeman was summoned before the court because of an editorial he published in his paper. The editorial had, in the opinion of the prosecuting attorney, made many derogatory statements which were considered disrespectful to the court. The editorial was critical of the enforcement of an ordinance and statute against keeping marble machines after the city and state sold licenses to the owners of the machines. Speaking of the judges who had initiated the criminal action against the owners of the machines, the editorial stated, “he must see how unfair it is to force these operators to pay a State and city license, then confiscate their money as well as machines. . . ” The prosecuting attorney read the editorial and believed it was a reflection upon the court. He immediately filed a petition requesting the publisher and editor be cited for contempt of court. The editor and publisher appeared on the date for the hearing and disclaimed any intent to reflect upon or influence the court or its officers. The trial court found them guilty of contempt because the editorial was of a character “having a tendency to influence the action of the tribunal before which the case is pending.’’ This court ruled that in view of petitioners’ disclaimers of intent to reflect upon the court or its officers, the judgment of the trial court was quashed. In Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974) we stated: “on the other hand, the primary reason for punishment for criminal contempt is the necessity for maintaining the dignity, integrity and au- ■ thority of, and respect toward, courts and the deterrent effect on others is just as important as the punishment of an offender.” We do not find that we have ever held that mere spoken words to a lawyer out of the presence of the court, which make no threat or attempt to interfere in any proceedings, amount to criminal contempt. Although the words in the present case may have rendered petitioners responsible for some other charge or suit they did not amount to criminal contempt. We do not find any substantial evidence that petitioners had any intent to or did commit contumacious acts. We quash the contempt citations because the undisputed facts reveal that only words were spoken to the attorney at a time and place where they did not in any manner reflect upon the integrity of the court or interfere to any degree with its proceedings. Petitioners did not even by innuendo attempt to influence the outcome of the proceedings or intimidate any witness or officer of the court. By quashing this judgment we do not wish to in any manner imply that judges do not have the inherent power and duty to preside over their respective courts and issue any orders or citations to protect the administration of justice and uphold the dignity and respect of the court.
Writ granted and judgment quashed.
Hickman, Dudley and Hays, JJ., dissent. | [
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George Rose Smith, Justice.
Frolic Footwear, Inc., asks us to set aside a $100 fine for contempt of court.
At the trial of a civil case in the Craighead Circuit Court a juror asked to be excused because she would suffer a hardship if forced to accept a juror’s daily fee of $10 instead of her wages as an employee of the petitioner. Act 425 of 1983 provides in part: “No employer shall subject an employee to discharge, loss of sick leave, loss of vacation time, or any other form of penalty on account of his or her absence from employment be reason of jury duty.” Ark. Stat. Ann. § 39-103 (Supp. 1983). The presiding judge, relying on the act, assured the juror that she would suffer no net loss as a result of her service. The juror was accepted and served for three days.
This contempt proceeding arose as a result of the juror’s application to Frolic Footwear for her net loss in pay during the three days. The company investigated the question and decided that it was not legally required to pay an employee during her abscence on jury duty. Judge Pearson then cited the company to show cause why it should not be punished for criminal contempt of court. At the ensuing hearing the company’s counsel called the court’s attention to the legislative history of Act 425. As introduced, the bill contained three additional words, which we have italicized, in the clause quoted above and in another similar clause: “No employer shall subject an employee to discharge, loss of pay, loss of sick leave,” etc. In the course of passing the bill, the legislature amended it to strike out the words “loss of pay” in both places. House Journal, 1983, Vol. 3, p. 2198. Judge Pearson had not been aware of that legislative history, but he decided that the reference to loss of pay was superfluous, because that loss would be included in the accompany general language, “or any other form of penalty.” He fined Frolic Footwear $100 for contempt. After timely notice of appeal the record was lodged in the Court of Appeals, which transferred the case to us as presenting an issue of statutory construction. Rule 29 (1) (c). Counsel have styled the case as a petition for certiorari, that being our traditional method of reviewing a conviction for contempt.
We cannot agree with the trial court’s decision. Our basic rule of statutory construction is to'give effect to the intention of the legislature. Since the legislators specifically deleted the words, “loss of pay,” we find it impossible to believe that they really meant for that deletion to be meaningless. In fact, in a practically identical case, which was not called to the trial judge’s attention, we so held. Moorman v. Taylor, 227 Ark. 180, 297 S.W.2d 103 (1957). That case governs this one.
In closing, we add a word for the future. Our fixed practice of reviewing contempt cases by certiorari is an anomaly now that Rule 3 of our Rules of Appellate Procedure declares that the mode of bringing up a judgment, decree, or order for review “shall be by appeal.” Our certiorari procedure crept into the law in a series of contempt cases spanning 100 years. In 1854 we refused to review an appeal from a conviction for criminal contempt, because the statutes did not provide for such an appeal. We said, however, that it was not to be understood that no remedy existed. Cossart v. State, 14 Ark. 538. In 1880 we reviewed, without comment, a contempt case brought up by certiorari. Harrison v. State, 35 Ark. 458. In 1889 we held that since there was no statute limiting the time for issuing certiorari in contempt cases, the time for appeal would be adopted by analogy. Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559. In 1903 review by certiorari was recognized as the proper remedy. Ex parte Davies, 73 Ark. 358, 84 S.W. 633. In 1918 a contempt case was brought up by appeal, but we treated it as being on certiorari and affirmed the decree. Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. In 1950 we decided that although the review was by certiorari, we would review the evidence just as we would an appeal in any criminal case. Blackard v. State, 217 Ark. 661, 232 S.W.2d 977. Our cases have gradually reached the point at which in contempt cases there is no difference except in name between review by certiorari and review by appeal. We now announce, as we did a few years ago with respect to review by certiorari in habeas corpus cases involving child custody: "Henceforth we shall call these proceedings by their true name, appeals, and shall regard them as being governed by the statutes [and rules] pertaining to appeals.” Faulks v. Walker, 224 Ark. 639, 275 S.W.2d 873.(1955).
Reversed. | [
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Hart, J.
Abe Green was indicted for the crime of rape. He was tried before a jury, found guilty and sentenced to death. He has duly prosecuted an appeal to this court.
The testimony is correctly abstracted by the Attorney General as follows:
Eura Webb, the prosecuting witness testified: “My name is Eura Webb. I am fourteen years of age. I know the defendant. I went over to Mr. Malone’s after some hoes and goobers. I started back home and met Abe Green. He spoke to me, and asked me where Pa was. I told him at home plowing, and he got behind me and grabbed me around the neck and started with me out in the bushes. And that is the last I know. He was choking me. I don’t know exactly how far we were from'home or Malone’s. The next time I remembered anything I was in my brother’s field. There was a string around my neck. I don’t know how I got it off. My neck and face were bloody when I got there. My brother, Ellis, took me to Mr. Malone’s. This was in Van Burén County, three or four weeks ago. Afterwards I was sore on my back and neck, in the small of my back. I had a bruised place on the back of my leg (indicating.) I had a string around my neck, but don’t know where I took it off, nor what I did with it. That was down in the woods. I was thoroughly conscious that the string was there, and that I was choking. The first I remember after that was in Ellis’s field. I didn’t look at the string when I took it off; haven’t any idea how I got it off; haven’t seen it since. My private parts were not sore. There was a scratch on the back part of my leg above the knee. (Shows the court how large). I couldn’t see it, but my mother told me it was there. She examined me the next day. My underskirt was torn down at the hem. (Shows the court; the rent was about eight or nine inches long). I don’t know whether it was torn when I met the defendant or not. The first thing I remember after he took me into the bushes was that I was in Ellis’s field. I knew there was a string around my neck because I was lying down and choking. I got it off while I was on the ground. When I took it off, I fell with my head in my lap.”
Martha Webb testified: “Eura Webb is my daughter. I know Abe Green. My daughter was assaulted on Monday, the 10th day of May, about three weeks ago. I live near Formosa, in Van Burén County, Ark. Mr. M'alone lives about a mile from us in the same county and State. The road between our house is in the same county and State. Eura left home about eight o’clock. The next I saw of her was about ten o’clock. They had started to Mr. Malone’s house when I got there. She was bruised up. Her neck was red as blood. Her underskirt was torn into the hem, and she had a scratch on her leg, about so long (indicating six inches,) and two splotches on her clothes in front. They were on her bottom skirt; were stiff white splotches, right in front (indicating to the court they were about one and one-half inches square). The marks on her leg look lilce the print of finger nails (indicates that it was five or six inches long). Her neck was black, and there was the print of a string around it where it had buried itself in her neck. There was blood on her neck and her top dress and waist. I didn’t examine her clothes until Tuesday morning about sunup. There was no blood on her underclothing, and her leg looked like it had been freshly scratched. My daughter was 14 years old the 19th of February, 1909. She was fully developed into womanhood, and had her first monthly sickness on the 13th day of April, 1909.”
Other testimony was introduced to show that in the bushes where the prosecuting witness says the defendant was dragging her there appeared the prints of the heel of woman’s shoe as if made by a person laying down, and close to it appeared the toe prints of a man’s shoe.
The defense introduced Dr. Russell, a practicing physician, as a witness, who testified that he did not think a girl of 14 could have intercourse for the first time without being sore. That the soreness is caused by the entering and dilation of the parts.
The only question raised the record is, was there sufficient evidence to support the verdict? We are convinced there was not;
Rape, as defined by our statute, is the carnal knowledge of a female forcibly against her will. Kirby’s Digest, § 2005.
Proof of actual penetration into the body shall be sufficient to sustain an indictment for rape. Ib. § 2006.
The prosecuting witness says that the defendant grabbed her around the neck and started with her into the bushes. That she became unconscious, and does not remember anything more until she regained consciousness, and found she was in her brother’s field. The record does not disclose that any examination was made of her private parts to ascertain if they had been bruised or had become inflamed, as tending to show penetration of her body. The prosecuting witness herself testified that she felt no soreness there. Dr. Russell stated that he thought soreness would result from sexual intercourse with a girl 14 years old. There is no testimony whatever to indicate that penetration of her body had been made unless it can be inferred that such act was accomplished because a stiff white splotch was found on her underskirt and the toe print of a man’s shoe and the heel prints of a woman’s shoe in the soft earth where the defendant had dragged her. We do not think this is sufficient to show that there was penetration of her body.
In connection with the prosecuting witness’ testimony, it is ample to show an assault with intent to rape of a most aggravated character.
An assault with intent to commit rape is included in the charge of rape, and a conviction may be had of the former under an indictment for the latter. Pratt v. State, 51 Ark. 167.
Therefore, the uncontradicted evidence showing that the defendant was guilty of an assault with intent to rape, under the rule established in the case of Jones v. State, 88 Ark. 579; Hamby v. State, 72 Ark. 623 and Vance v. State, 70 Ark. 272, and other cases decided by this court, an order will be made setting aside the judgment for rape, and affirming the judgment for assault with intent to commit rape, with the punishment fixed at'2i years in the State penitentiary, unless the Attorney General shall, within 15 days, elect to take a new trial. In which event the judgment will be reversed, and the cause remanded for a new trial. | [
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Frauenthau, J.
The plaintiffs, Cazort & McGehee Company and another, instituted this suit in the Crawford Chancery Court against the defendants, E. C. and W. T. Dunbar, seeking to foreclose a mortgage executed to plaintiffs by John and Ella Sharp on real estate which was subsequently conveyed by the mortgagor, Ella Sharp, to the defendants.
To the complaint the defendants interposed a general demurrer, which was incorporated in their answer. This demurrer was sustained by the chancery court; and, the plaintiffs declining to plead further, the complaint was dismissed; and from the order of dismissal the plaintiffs bring this appeal.
The complaint, in substance, alleged that in a certain cause pending theretofore in the Crawford Chancery Court, wherein Henry L. Fitzhugh, trustee, was plaintiff and John Sharp and Ella Sharp were defendants, a decree was rendered in favor of the plaintiffs in that suit, and the defendants appealed therefrom to the Supreme Court; and on August 1, 1903, executed a supersedeas bond with the plaintiffs in the present case as sureties thereon; that said decree was by the Supreme 'Court affirmed in part and reversed in part; “that the said Ella Sharp failed and refused to perform that part of the judgment of the lower court which was affirmed by the Supreme Court;” that afterwards said Fitzhugh, trustee, instituted suit in the Crawford Circuit Court against these plaintiffs upon said supersedeas bond, and on July 3, 1907, recovered judgment against these plaintiffs for the sum of $2,500 and costs amounting to $7-75; and that on October 15, 1907, the plaintiffs paid said judgment; that, in order to secure the plaintiffs by reason of the execution by them of said super sedeas bond as such sureties, the said John Sharp and Ella Sharp, on August 1, 1903, executed to them a mortgage on certain real estate, which was duly acknowledged by them, and that the mortgage was duly filed for record on August 11, 1903; that thereafter on June 6, 1905, the said Ella Sharp conveyed said real estate to the defendants. And the plaintiffs in this complaint prayed for a foreclosure of said mortgage and a sale of the land to reimburse them for the amount paid by them on said supersedeas bond and judgment; and they prayed “for such other relief, general and special, as the facts may justify and as to the court may seem fit.” Copies of the supersedeas bond, mortgage and judgment referred to in the complaint were made exhibits thereto and also the deed from Ella Sharp to defendants. These exhibits are the foundation of this action, and they are therefore a part of the record of this suit, and will control the averments of the complaint. Beavers v. Baucuni, 33 Ark. 722; American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263.
By the provisions of the supersedeas bond the said John Sharp and Ella Sharp as principals, and these plaintiffs as sureties, did covenant, amongst other things, the following: “Also that they will satisfy and perform the judgment or order appealed from in case it should be affirmed and any judgment or order which the Supreme Court may render or order to be rendered by the inferior court not exceeding in amount or value the original judgment or order.”
The indebtedness clause in the said mortgage executed by John and Ella Sharp to plaintiffs is as follows: “Whereas, the said Cazort & McGehee Company have become sureties on a supersedeas bond given by John Sharp and Ella R. Sharp to supersede a judgment in favor of Henry L. Fitzhugh in the sum of four thousand dollars. Now, if said John Sharp and Ella R. Sharp shall satisfy said judgment, if affirmed, or any judgment rendered against them by the Supreme-Court in this cause, then this bond shall be void, but if they fail to do so, then the said grantees or their assignee, agent or attorney in fact, shall have power to sell said property at public sale to the highest bidder, for cash.” etc.
It is contended by the defendants that the complaint does not state facts sufficient to show that any condition of said mortgage has been broken, so as to authorize a foreclosure; that this is an indemnity mortgage; that the condition of said 'mortgage would only be broken in event that the Supreme Court affirmed the judgment appealed from and rendered judgment in the Supreme Court against the makers of the supersedeas bond, and the mortgagors did not then satisfy such judgment and the mortgagees did pay same; and they contend that such allegations are not made in the complaint.
In determining whether the complaint in this cause states sufficient facts to constitute a cause of action, every fair and reasonable intendment must be indulged in to support it. If a cause of action can be reasonably inferred from the allegations, then it is not subject to a general demurrer. If the averments are imperfect, incomplete or defective, the proper mode of correction is not by demurrer but by a motion to make the allegations more definite and certain. Upon a general demurrer being interposed to a pleading the test then is, can the pleading be cured by amendment? And if the facts stated, together with every reasonable inference therefrom, constitute a cause of action, then the demurrer should be overruled. Murrell v. Henry, 70 Ark. 161; Moore v. Rooks, 71 Ark. 562; St. Louis, I. M. & S. Ry. Co. v. Moss, 75 Ark. 64; Nelson v. Cowling, 77 Ark. 351; 6 Enc. Pleading & Prac. 389; 31 Cyc. 289-290.
From the complaint and exhibits it sufficiently appears that the obligation assumed by the execution of said supersedeas bond was not only to satisfy any judgment for the recovery of money that might be directly adjudged in and by the Supreme Court against the parties makers on said bond, but any judgment or order that the Supreme Court might render; and therefore, if by any order or judgment of the Supreme Court a liability was incurred by reason of the execution of that bond, the principals in that bond, the mortgagors, agreed to satisfy that liability. That is but a fair and proper inference from the provisions of the supersedeas bond and the mortgage. If, by reason of the judgment of the Supreme Court, a liability resulted against the makers of the supersedeas bond which could be enforced by suit in any court, that liability the mortgagors agreed to satisfy; and the mortgage was executed to secure the performance of that obligation by the mortgagors; and on a failure, therefore, by' them to satisfy that liability the condition of the mortgage was broken. There is a clear distinction between an indemnity mortgage to save the mortgagee harmless and an indemnity mortgage to satisfy a liability incurred. In the former the condition is not broken until the mortgagee is actually damnified by being forced to pay the liability; in the latter the condition is broken as soon as the liability accrues. The bond and mortgage in this case form a contract of indemnity against liability; and when that liability was established, the cause of action accrued to the plaintiffs.
Prom the allegations of the complaint and the provisions of the supersedeas bond and mortgage it may be reasonably inferred that the averments are in effect that the mortgagors promised to pay whatever liability would be incurred by reason of the execution of the supersedeas bond; and to secure that written promise they executed the mortgage. Upon a failure, then, by John Sharp and Ella Sharp, or either of them, to pay such lia-. bility, the cause of action accrued to the mortgagees. Snider v. Greathouse 16 Ark. 72; Bone v. Torrey, 16 Ark. 83; Faust v. Burgevin, 25 Ark. 170; Guncl v. Cue, 72 Ind. 34; Thurston v. Prentiss, 1 Mich. 193; 22 Cyc. 90; 27 Cyc. 1068.
The amount of that liability is alleged in the complaint as being the amount of a certain judgment recovered against the plaintiffs in the Crawford Circuit Court by the appellee in the supersedeas bond. That judgment, it appears, was recovered against the plaintiffs by consent. John and Ella Sharp were not parties to that suit, and therefore no judgment was recovered against them. The judgment, therefore, can only be prima facie evidence of the amount of the liability secured by the mortgage. Because the judgment was rendered by consent does not render it void. The fact that consent to its rendition was given is no evidence’Of any fraud, for that action may have.been taken because there was no defense thereto, and to save cost. If the defendants desired a more detailed or definite statement of the liability, it could have been secured by a motion made for that purpose.
The indebtedness clause of the mortgage does not state the exact amount of the debt to be secured. But the character of the indebtedness is sufficiently set forth, from which the amount could be ascertained. “If the mortgage contains a general de scription sufficient to embrace the liability intended to be secured, and to put a person on examining the records upon inquiry, and to direct him to the proper source for more minute and particular information of the amount of the incumbrance, it is all that fair dealing and the authorities demand.” Curtis v. Flinn, 46 Ark. 70; Hoye v. Burford, 68 Ark. 256.
It is also urged by defendant that it appears from the mortgage and acknowledgment that Ella Sharp was the wife of John Sharp, and that she did not convey the land in question as hei separate property, but only released and conveyed dower and homestead rights. We do not think that there is any merit in this contention, even if it should be conceded that the complaint would be demurrable on this account. It appears from these instruments that Ella Sharp did join in the granting clause of the mortgage; and also that the following clause is in the mortgage: “And I, Ella R. Sharp, wife of the said John Sharp, for the consideration aforesaid and hereinafter set out, do hereby convey and ■release unto the said Cazort & McGehee Company all my estate, title and interest, and all my rights of dower and of homestead in and to said lands.” The acknowledgment states: “And on the same day also voluntarily appeared before me the said Ella Sharp, wife of said John Sharp, to me well known, and in the absence of her husband declared that she had, of her own free will, executed the foregoing deed, and executed, signed and sealed the relinquishment of dower and of homestead therein expressed, for the consideration and purposes therein mentioned and set forth, without compulsion or undue influence of her said husband.” This is a sufficient execution and acknowledgment of a deed by a married woman to her separate property.
From this it follows that the court erred in sustaining the demurrer to the complaint and in entering its decree of dismissal.
The decree is therefore reversed, and this cause is remanded with directions to overrule said demurrer to the complaint. | [
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McCulloch, C. J.
At a mass meeting of citizens of Benton-ville, Arkansas, the plaintiff, W. A. Burks, proposed, on condition that the citizens of Bentonville should, within fifteen days from that date, purchase from him, at the price of $50 per lot2 two hundred lots, fifty by one hundred fifty feet in size each, to be surveyed and platted out of a certain tract of land adjoining said city of Bentonville, to erect near Spring Park, on a tract of. land known as “Spring Park Addition,” a hotel building of certain, dimensions and capacity, and to make certain other improvements on the premises so as to make the place an attractive resort. The lots were to be selected after the plat should be made, and the same were to be paid for as follows: One-half when the walls and roof of the hotel should be completed, and the balance when the whole improvements were completed. A committee was appointed by the assembled citizens to solicit purchasers in order to accept the plaintiff’s proposition.
The committee secured a large number of subscribers or purchasers, each agreeing to purchase a certain number of- lots at the price named, and out of these the plaintiff selected two hundred, and they each executed to him an obligation in writing which, after reciting the plaintiff’s undertaking with respect to erecting the hotel building, etc., is as follows:
“Now, therefore, in consideration of the above agreement and the benefits arising to the undersigned and the citizens of Bentonville, and the further agreement'that the said W. A. Burks is to execute and deliver or cause to be executed and delivered a warranty deed conveying to J. W. Harriss one lot, the particular location to be hereafter determined, each lot to be 50 x 150 feet, situate on the following described tract of land situate in Benton county, Arkansas, to-wit: the S. E. *4 of the S. E. J4 of section 19, and the N. E. % of the N. E. of section 30, township 20, range 30, we, the undersigned, promise to pay the said W. A. Burks the sum of fifty dollars at the Eidelity Savings Bank & Loan Company, in the city of Bentonville, upon the following terms: One-half of said sum when the walls of the said hotel
building and roof thereon shall be completed, the remaining half to become due and payable when the said hotel, the dam and the six cottages shall have been completed according to contract, and that this note shall bear interest at the rate of ten per cent, per annum from date when said payment shall fall due until paid.”
The plaintiff then caused the tract of land in question to be surveyed and platted into 330 lots, out of which number the committee selected two hundred, to be conveyed to the purchasers as soon as it should be determined what particular lot or lots each purchaser should receive. These lots were of unequal value, some worth practically nothing, and some worth_ double the price named.
The committee decided to distribute or apportion the lots to the respective purchasers by a chance, each purchaser to take the lot drawn by him, and this plan was accepted and carried out. The plaintiff did not propose this plan, but he acquiesced in it, and was present at the drawing. It was proposed and carried out by the committee who represented the citizens and purchasers. The plaintiff erected the proposed building and other improvements, and demanded payment from the purchasers of their respective obligations. He also executed and tendered to them deeds conveying the several lots apportioned to them in the drawing. Defendants Harriss, Armstrong, Crowell, Duckworth, Bates, Stevenson, Porter, Maxwell, Hildebranth and Graham each declined to accept the lots so apportioned to them and refused to pay the price. The plaintiff instituted separate suits in equity against them, to recover the several amounts due, and to foreclose his alleged lien on the lots apportioned to them. These suits were consolidated and tried together, and a decree was rendered dismissing the complaint for want of equity, and the plaintiff appealed.
The defense asserted by each of the defendants was, among other things, that the scheme for the sale and distribution was a lottery, in violation of the law. “A lottery is a species of gaming, which may be defined as a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize.” 25 Cyc. 1633.
The Constitution and statutes of this State make it unlawful to conduct a lottery or to sell or otherwise dispose of lottery tickets, gift concert tickets, or the like. Constitution of 1874, art. 19, § 14; Kirby’s Dig., § § 1862, 1863. Contracts for the sale of tracts of land of unequal value, to be apportioned among the purchasers by lot, are held in many cases to be within the statute against lotteries; and it is immaterial that every purchaser is to receive some return. Paulk v. Jasper Land Co., 116 Ala. 178; Elder v. Chapman, 176 Ill. 142; Lynch v. Rosenthal, 144 Ind. 86; Den v. Shotwell, 24 N. J. L. 789; Seidenbender v. Charles, 4 S. & R. 151.
It is insisted, however, that where it is no part of the original contract of sale that the lots shall be divided by chance, and the vendor does not direct or make himself a party to the unlawful distribution, the contract is not vitiated, and that a recovery may be had thereon. The principle thus stated in the contention is undoubtedly sound, for where a number of parties join together and purchase lands, even with the intention of dividing it in an unlawful method, the vendor is not a party to the scheme, and is entitled to recover the agreed price. In that case the unlawful scheme for the division by lot is not a part of the original contract of sale.
In Martin v. Hodge, 47 Ark. 378, which involved to some extent the same principles which must control here, the court said: “The test to determine whether a plaintiff is entitled to recover in an action like this or not, is his ability to establish his case without any aid from an illegal transaction; if his claim or right to recover depends on a transaction which is malum in se or prohibited by legislative enactment, and that transaction must necessarily be proved to make out his case, there can be no recovery.”
Now, in applying that test to the present action, it becomes necessary to inquire particularly as to what the contract was between the parties. It will readily be observed that it was not a joint contract on the part of the subscribers or purchasers to purchase together a quantity of land to be subsequently distributed or apportioned among themselves according to a method of their own selection. If such were the case, each purchaser would be bound by the purchase, and would be obligated to accept and pay for his undivided part of the lands so purchased, and the vendor would not be concerned in the method of its apportionment or allotment between the several purchasers. The contract iii this case is in writing and speaks for itself. Each subscriber or purchaser agreed to become the purchaser of a lot, to be thereafter selected, of given dimensions and for a certain stipulated price. There were 200 of these subscribers, and they separately agreed in these contracts to purchase lots of the same dimensions and at the same price, but of unequal value. The sale to each purchaser was not complete until the lot was selected, and the method of selecting the lot was necessarily a part of the contract. It was necessary for the plaintiff to prove the distribution of each lot in order to show a completion of the contract and his right to recover thereon; for the purchaser did not agree to pay until the lot should be apportioned and set aside to him. Applying the test laid down by this court in Martin v. Hodge, supra, it was necessary for the plaintiff, in order to make out his case, to prove an illegal transaction whereby the lots were set apart and apportioned to the respective purchasers. While the evidence in this case does not establish the fact that the plaintiff selected the method of apportioning the lots, yet the contract itself necessarily made him a party to whatever method was selected, because, until the apportionmént of the lots, -the contract was not complete and susceptible of enforcement. The obligation which he accepted from the various purchasers contemplated that the distribution would be entirely by chance,- arid without reference to the actual value of the lots. It was not susceptible of the interpretation that a lawful method would or could be adopted whereby the lots were to be distributed. It could mean nothing else save that these lots of unequal value should be apportioned among the purchasers without regard to values, for each purchaser agreed to take a lot of the stipulated dimensions, no more, no less, and to pay the uniform price named, no more and no less. It was necessarily not in the contemplation of the parties at the time the contract was made that any regard to value should be had in the distribution of the lots, or that the values should be equalized in distributing them.
There is a decision of the Supreme Court of Iowa which, at first glance, appears to be in conflict with the views we have herein expressed; but, on careful analysis of the facts of that case, we find that it is clearly distinguishable from this. There certain promoters engaged in an enterprise with a packing company to erect its plant at the city or town named, and entered into a contract with the owners of a tract of land that the same should be platted and sold to subscribers or purchasers at a uniform price, and that the same were to be distributed among the subscribers according to methods to be thereafter selected by the latter. The subscribers were procured, and the lots platted and conveyed to the promoters for distribution among the subscribers, and the latter agreed upon and carried out a -plan of distribution by drawing, similar to that adopted in the present case. The promoters had nothing to do with the adoption of the method of distribution. The court held that the contract was not vitiated by the agreement between .the promoters and the purchasers for a distribution by chance. It is clear from the opinion, however, that the court treated the transaction as a purchase of the whole tract by the promoters, who held the title as trustees for the subscribers. The court said:
“It thus appears that there must be some plan or scheme on the part of the promoters of the enterprise alleged to be unlawful for the sale or disposition of property by lot or chance before it can be said to have the character of a lottery. If the sale is without the purpose that the property, or any part of it, shall be obtained by the purchaser through chance, and this does not result from the nature of the transaction, then it is not so tainted. The sale of the lots to the subscriber's in this case was not in pursuance of any design to promote a lottery, or in evasion of the law.” Chancery Park Land Co. v. Hart, 104 Iowa 592.
The facts of the present case do not fall within the rule announced in that case. Here there was no completed purchase of any particular lot, but as we have already shown, -the contract of purchase depended upon a subsequent method thereafter to be agreed upon for the distribution of the lots. In other words, it was not a purchase of an undivided tract and subsequent agreement of a division by chance, but it was a separate purchase by which each subscriber -bought lots, the particular identity of which was to be determined by chance.
The correct distinction is, we think, drawn -by the ■ Supreme Court of Illinois in Elder v. Chapman, 176 Ill. 142, wherein it is said: “There is a broad distinction, however, between a division of property by lot and lottery. A partition of property into parts as nearly equal as possible, where owned by joint owners, may be made and a determination had by lot as to which part shall go to each joint owner sever all)1-, without coming within the prohibition of the statute. The joint owners being seized of the whole estate before partition, and the object of the lot being to assign to each his particular portion, the whole having been previously divided into parts as nearly of equal value as possible, such partition would not constitute a lottery.”'
We are of the opinion that the contract of sale contemplated an unlawful method of performance, and that the decree of the chancellor was correct.
" Affirmed. | [
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Wood, J.,
(.after stating the facts.) The undisputed evidence shows that appellee knew when he was walking between the tracks that there was a train on the main line south of him. It was but a short distance away, and he could see it plainly. But, after first looking and seeing the train, he turned his attention to. the engine which was passing him on the side track, and did not look to see the movements of the train on the main line. He moved over so near to the main line track that a casual glance would have shown him that he was too near this track for the train that was south to pass him without striking him. In the middle of the track he would have been perfectly safe from the passing engines. He carelessly chose the place of danger. There was nothing in the surroundings to warrant any confusion of his senses. No emergency of peril that should have caused him to act on the sudden impulse. He had ample time for deliberation in his movements, and with any prudence whatever could have avoided the injury he received. It was a plain case of contributory negligence on liis part, which the court should have instructed upon the uncontroverted evidence. Griffie v. St. Louis, I. M. & S. Ry. Co., 80 Ark. 186; Burns v. St. Louis S. W. Ry. Co., 76 Ark. 10; St. Louis, I. M. & S. Ry. Co. v. Johnson, 74 Ark. 372; St. Louis & S. F. Rd. Co. v. Crabtree, 69 Ark. 134; Little Rock & F. S. Ry. Co. v. Blewitt, 65 Ark. 238; Martin v. Little Rock & F. S. Ry. Co., 62 Ark. 158; St. Louis, I. M. & S. Ry. Co. v. Martin, 61 Ark. 549.
The proof shows that appellee did not look any more for the train on the main line after he first discovered its position, and that he walked on some fifty or one hundred yards between the tracks in the direction of this train. The passing of. the engine near him was no excuse for his failing to look for the other engine on the main line, nor for his placing himself so near the main line that he could not escape injury. He was apprised of the precise conditions, and his failure to use his eyes, under the circumstances, was inexcusable carelessness. See St. Louis & S. F. Rd. Co. v. Portis, 81 Ark. 325; St. Louis S. W. Ry. Co. v. Bryant, 81 Ark. 368; Adams v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 300; St. Louis & S. F. Rd. Co. v. Ferrell, 84 Ark. 270.
The court therefore erred in submitting to the jury the question as to whether appellee was guilty of contributory negligence, as it did in instruction number four. Ark. Central Rd. Co. v. Fain, 83 Ark. 532; El Dorado & Bastrop Rd. Co. v. Whatley, 88 Ark. 20. Under this instruction the jury might have found that appellant was negligent, and that appellee was not guilty of contributory negligence. Who can tell?
But, notwithstanding the contributory negligence of appellee, it was a question for the jury as to whether the employees of appellant, having discovered his peril, failed to exercise ordinary care to avoid injury to him. The jury might have found that the engineer and fireman saw appellee, and that they were aware from his movements that he was oblivious of the fact that the northbound train was approaching him; that they could have sounded the whistle or rung the bell or have lessened the speed of the train, in order to avoid striking appellee, and that they failed to exercise any of these precautions, and that his injury was caused by such failure. These questions were presented in the evidence and were correctly submitted. St. Louis S. W. Ry. Co. v. Thompson, 89 Ark. 496; Ark. Central Rd. Co. v. Fain, 85 Ark. 532; St. Louis, I. M. & S. Ry. Co. v. Evans, 74 Ark. 407; St. Louis, I. M. & S. Ry. Co. v. Hill, 74 Ark. 478; Griffie v. St. Louis, I. M. & S. Ry. Co., 80 Ark. 186.
For the error in giving the instruction indicated, the judgment is reversed, and the cause is remanded for a new trial. | [
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Hart, J.
The foundation of this suit is the following contract :
“For and in consideration of the sum of three thousand five hundred ($3,500) dollars, cash in hand paid to us by L. W. Snyder, agent for Anderson-Tully Company, the receipt whereof is hereby acknowledged, we, T. K. Lee and J. P. Alexander, described herein as parties of the first part, bargain, sell, convey, transfer and warrant unto Anderson-Tully Company, known herein as parties of the second part, all of the cottonwood trees twenty inches in diameter and up at the stump now standing or located on the following described property, what is known as the Florence Plantation, Chicot County, State of Arkansas, commencing at west line of the .Tecumseh Plantation, running to Adams place on the east, the levee is the north line, Mississippi River and Wailer place is the south line. The party of the second part, or assigns, shall have the full, free and undisturbed right of entry on and into said lands for the term of five years from this date to cut, raft and carry away said trees sold to them. Parties of the second part shall have the right with their employees to go in and upon said land and to use and occupy same for such necessary and useful purposes, in order to cut and carry away said cottonwood timber. Also small trees necessary for rafting timber for towing. All the rights herein granted to said Anderson-Tully Company shall include then heirs and assigns.
“In witness whereof the parties have hereunto signed their names, this 8th day of May, 1902.
“Anderson-Tully Company, parties of the second part, agree and bind themselves not to hire any of T. K. Lee and J. P. Alex ander’s (parties of the first part) plantation laborers, without first consulting parties of the first 'part, or their agents, and securing their consent thereto.
(Signed) “T. K. Lee,
“J. P. Alexander.
“Witnesses:
“John M. Parker,
“H. W. Langer.”
A complaint was filed by the Anderson-Tully Company, a Michigan corporation, in the Chicot Chancery Court, against J. W. Griffin, T. K. Lee and J. P. Alexander Company, Limited, a Louisiana corporation, it being alleged that these defendants had purchased the lands mentioned in the contract since the date of its execution.
On the 8th day of May, 1907, a large number of the trees from said land had been felled and cut into logs; but the logs had not been removed from the land.' The amount was estimated to be 400,000 feet. The plaintiff alleged that it had not been able to remove the same on account .of high water, and the object of this action was to enjoin the defendants from interfering for a reasonable time with its servants and employees in removing the logs.
A temporary injunction was granted which by the final decree was made perpetual. The defendants answered, denying the title of the plaintiff to the logs remaining on the land at the date of the expiration of the contract, and by way of cross-complaint alleged that the plaintiff had cut a lot of timber, which was under the size of the trees conveyed. They asked that the plaintiff be enjoined from removing any of the timber until their rights could be determined, and that a master be appointed to take an account of the amount of timber cut, which was under the size mentioned in the contract.
By agreement of the parties to the suit, R. D. Chotard, the clerk of the court, was appointed special master to ascertain the amount of cottonwood timber cut on said land by plaintiff and appropriated to its use, which was not embraced in the terms of the contract above set forth. He was given power to summon witnesses and take all necessary proof to ascertain that matter.
The master reported that 250,683 feet of cottonwood logs, less than 20 inches in diameter at the stump at the date of the execution of the contract, were cut upon the land described in the contract, and that the price of said logs was the sura of $877.39. The report was confirmed by the court, and a decree was entered, in accordance with the report,;against the plaintiff in favor of said defendants for said sum of $877.39, with six per cent, interest per annum thereon from the date thereof, viz., April 10, 1909, until paid.
Both the plaintiff and defendant introduced evidence tending to sustain their respective contentions, and both have appealed from that part of the decree against them.
This court decided in the case of Indiana & Arkansas Lumber & Manufacturing Co. v. Eldridge, 89 Ark. 361, that under a contract for the sale of growing timber, whereby the grantee is authorized to cut and remove timber within a certain period of time, the title to timber cut by the grantee within such period, but not removed from the land, passes to such grantee. Under this decision, the plaintiff owned all the trees embraced within the terms of its contract which had been severed from the soil and cut into logs at the date of the expiration of its contract, and had a right for a reasonable time thereafter to remove them. The evidence shows that at the time the final decree was entered these logs had been removed. Hence the question of whether the court was right in its decree as to the injunction passes out of the case. The logs belonged to the plaintiff, and it removed them before the final decree was entered. The appeal from that part of the decree is therefore fruitless, and the court will not consider whether it was right or wrong. Wilson v. Thompson, 56 Ark. 115.
Counsel for plaintiff urges that no issue was raised by the cross-complaint as to a violation of the contract by cutting timber under twenty inches in diameter. The following paragraph appears in the answer and cross-complaint:
“Defendants charge that said plaintiff has violated said contract with the defendants by cutting and carrying away about 400,000 feet of-cottonwood trees that were less than twenty inches in diameter on the 8th day of May, 1902, the day of their contract; that said 400,000 feet of cottonwood timber is worth $3,000.”
The prayer of the answer and cross-complaint is as follows:
“Wherefore defendants pray that the writ of injunction heretofore granted be dismissed, set aside and naught held, and that defendants be granted an injunction against plaintiffs from removing any of said cottonwood logs .until the title of said logs is adjudicated by this court. Defendants pray that if the court refuses to dissolve said injunction granted to the plaintiffs, and also refuses to grant an injunction enjoining the plaintiffs from removing said logs, then the defendants pray the court to appoint a receiver or master to take an accounting of said logs and report the same to the court at its November term, 1907. Defendants further pray that, if the court refuses to dissolve said injunction granted to the plaintiffs, the court require the said plaintiffs to give an additional bond in the sum of $10,000. Defendants pray, upon a final hearing of this cause, that all of said cottonwood logs be turned over to them or the plaintiffs be made, by the judgment of this court, to pay full market value for same to defendants, the sum of $6,000.”
The defendants and cross-complainants asked for an accounting of the logs taken in violation of the contract, and for judgment for the amount so found. We think this was sufficient to raise the issue. Moreover, proof on this issue was introduced by both sides without objection. In such cases it is the uniform holding of this court that the pleadings will be considered as amended by us to conform to the proof. Roach v. Richardson, 84 Ark. 37, and cases cited; White River Ry. Co. v. Batesville & Winerva Telephone Co., 81 Ark. 195; Hurley v. Oliver, post p. 427.
Counsel for plaintiff earnestly insist that the question of the size of the trees should be determined as of the date of the cutting, and not as of the date of the contract. In short, they urge that no regard should be taken of the growth of the trees from the time of making the contract until the time of cutting. In support of their contention, they cite the case of Bryant v. Bates (Ky. App.) 39 S. W. 428. In that case, without any discussion, the court said that plan of measurement was proper because there was no practicable way to ascertain the growth of the tree from the time of the contract and the time it might be cut under the contract. In that case the trees were oak, gum and ash, trees of slow growth, and the time of removal three years. In the present case the time of removal was five years, and the trees were cottonwood,' which grow at the -rate of one or one and one-half inches each year. The language of the contract describing the trees" sold is as follows: “All of the cottonwood trees 20 inches in diameter and up at the stump now standing or located on the following described property. (Here follows description of land.)” Thus it will be seen that the title passed, according to the plain and express terms of the contract, only to those trees which measured the required size at that date, and not at the date of their severance. The identification of the trees by specifying their size tends to show that the intention of the parties was to include such only as at the time the contract was made answered the description. Their diameter at that time was capable of definite ascertainment. The parties, being timber men, knew that cottonwood was of quick growth, and no doubt knew what -would be its probable growth in five years. The soil was extremely rich, and on that account the growth would be quicker. It is not to be presumed that the owner intended to convey that growth unless he expressly did so by the terms of his convej^ance. If the purchaser wished to be saved the trouble and expense of measuring and marking the trees at the time of the sale, it should have secured a clause in the contract fixing then the measurement at the time when cut or severed from the soil. This is in accordance with the well-established general rule of the construction of contracts, as well as with the majority of adjudicated cases on this particular subject. 28 Am. & Eng. Enc. Law (2d Ed.) p. 542 and cases cited; note to case of McRae v. Stilwell, 55 L. R. A. 524.
The record shows that at the April term, 1908, of the Chi-cot Chancery Court, by consent of .all parties, R. D. Chotard was appointed master to determine what amount of cottonwood timber under the size specified in the contract had been cut by the plaintiff on the lands described therein. He was directed to summon witnesses and to take all necessary proof to ascertain that fact. Under such circumstances, his findings of facts are entitled to the same conclusiveness as is given the verdict of a jury or the findings of fact by a court sitting as a jury. Paepcke-Leicht Lbr. Co. v. Collins, 85 Ark. 414; Greenhaw v. Combs, 74 Ark. 338.
It is next objected by counsel for plaintiff that there is no evidence to sustain his findings as to a part of the timber. In other words, they contend that some of the timber was estimated twice.
G. F. Horner was one of the witnesses for the defendants. He testified that he made estimates of the amount of cottonwood under 20 inches in diameter on the land described in the contract twice. He said that the first time he only made an estimate of the timber on the north part of the land because at that time he thought the timber on that part was all that was in dispute. The second time he only measured the timber on the remainder of the land. The findings of the master as to the amount of timber on the land under 20 inches in diameter at the stump is warranted by his testimony and by the testimony of other witnesses tending to corroborate it. Of course, this evidence is contradicted by the witnesses for the plaintiff. But because the finding of the master in this regard must be sustained under the rule above announced it will not be necessary for us to set out the evidence on this point.
We find no prejudicial error in the record, and the decree is therefore affirmed. | [
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McCulloch, C. J.
This is an action, instituted by appellee Bridges against appellants, to recover-a commission to which he is alleged to be entitled under, a contract for the sale of land. The contract is as follows:
“June 24, 1907.
“We authorize R. E. Bridges to sell for us the tract of land in Cleveland County known as the Hense Gibson place for $2 per acre. Whatever he realizes over $2 per acre belongs to him. This list is good until January 1, 1908.
(Signed) “S. Blumenthal & Co.”
The appellants sold the land to one Quinn on October 28, 1907, for the sum of $300, without the knowledge, assistance or procurement of appellee, and executed to Quinn a deed of conveyance, which was duly placed on record. In December, 1907, appellee tendered to appellants the sum of $320, and demanded of them that they convey the land to one 'Gibson, to whom he claimed he had sold the land. Appellee knew at that time that appellants had previously sold the land to Quinn.
Appellee testified that in the latter part of June, after the date of the contract with appellants, he sold the land to Gibson for $3 per acre, and in August, 1907, notified the appellants that he had found a purchaser for the land, but did not inform them who the purchaser was. S. Blumenthal, one of the appellants, testified in the case, and denied that appellee ever told him that he had found a purchaser, but on the contrary told him that he could not sell the land.
The court refused to instruct the jury at appellants’ request to the effect that by the execution of the contract in question they did not waive the right to sell the land in question; that the sale made by them to Quinn operated as a revocation of the contract, and that they had a right to revoke it. The court submitted the case to the jury on the following instruction:
“If you believe from the evidence that the plaintiff at any time between the 24th day of June, 1907, and the first day of January, 1908, in good faith made a verbal agreement with one Hense Gibson for the sale of the land in controversy to him for the sum of three dollars per acre, and that before the first day of January, 1908, plaintiff for the said Hense Gibson tendered to the defendants in money the sum of $320, and demanded of them' a deed for the said land to the said Gibson, and that the defendants refused to execute the same, then you will find for the plaintiff in the sum of $160 with interest thereon at the rate of 6 per cent, to the .present time from the first day of January, 1908.” The jury returned a verdict in favor of appellee for the sum of $160, judgment was rendered accordingly, and appeal was taken to this court.
Appellants contend that the contract was not one for exclusive agency, and that they had the right at any time before a sale was negotiated by appellee to revoke it. They rely upon numerous cases which announce the general rule that where real estate is placed in the hands of an agent or broker for sale in the ordinary way, without a stipulation to the contrary and without specifying any definite period of time within which the agent is to have the exclusive right to sell, this does not deprive the principal of the right to sell ■ the land himself when he acts in good faith toward the agent, and that in such cases there is an implied reservation of the right of the' principal to sell, free from any charge or liability for commission. See note to Hoadley v. Savings Bank of Danbury (Conn.), 44 L. R. A. 321; 23 Am. & Eng. Enc. L., 913. The same rule was announced by this court in Hill v. Jebb, 55 Ark. 574.
Those cases do not, however, announce the controlling principle in this case, for here the contract expressly stipulated for a definite period of time within which the agent might make a sale. In such case the contract implies an exclusive right to sell within the time named, without the right of the principal to revoke the agency unless there is a reservation to the contrary. Levy v. Rothe, 39 N. Y. Supp. 1057; Glover v. Henderson, 120 Mo. 367; Green v. Cole, 127 Mo. 587. That principle was distinctly recognized by this court in Novakovich v. Union Trust Co., 89 Ark. 412. The court in that case quoted with approval the following statement of the law, taken from Mechem on Agency, § 210:
“Where no express or implied agreement exists that the agent shall be retained for a definite time, the power and the right of revocation coincide. Such employments are deemed to be at will merely, and may therefore be terminated at any time by either party without violating contract obligations or incurring liability. The law presumes that all general employments are thus at will merely, and the burden of proving an employment for a definite period rests upon him who alleges it. * * But where the agent has been employed for a fixed period, the agency can not be rightfully terminated before the expiration of that period at the mere will of the principal, but only in accordance with some express or implied condition of its continuance. Any other termination of such an agency by the act of the principal will subject him to liability to the agent for the damages he has sustained thereby.”
The same author at another place (§ 618) says: “When the agent is employed for a definite term, he can be discharged without liability only when there has been a breach of some express or implied condition of the contract creating the agency.”
Now, if the principal cannot, under a contract of this kind, stipulating a definite time within which the sale may be made, revoke the agency directly, it follows that he cannot do so indirectly by making the sale of the property himself, thereby putting it beyond the power of the agent to perform the contract. The revocation of the agency, either directly or by making a sale of the property, is a breach of the contract on the part of the principal, and renders him liable to the agent for damages which the latter sustains thereby. The court in the Novakovich case places a contract of this kind on the same ground as any other contract for employment of an agent to perform a stipulated service, and'the same measure of damages must necessarily be applied, so far as the nature of the case makes it applicable. This court in Van Winkle v. Satterfield, 58 Ark. 621, laid down the following rule, which is sustained by the text writers and by the adjudged eases, as to the measure of damages which a servant, wrongfully discharged, may recover from his employer:
“First, he may consider the contract as rescinded, and recover on a quantum meruit what his services were worth, deducting what he had received for the time during which he had worked. Second, he may wait until the end of the term, and then sue for the whole amount, less any sum which the defendant may have a right to recoup. Third, he may sue at once for breach of the contract of employment.”
This rule was subsequently approved in Spencer Medicine Co. v. Hall, 78 Ark. 336, where it was held that a discharged agent, who had been employed to sell patent medicines, could recover anticipated profits which he could have realized during the pendency of the contract if he had been permitted to perform it. It was also held in the last-named case that where the character of the service stipulated for in the contract did not involve the whole time of the agent during the period named, nor interfere with his carrying on other work, no deduction should be made for the value of the time saved. •
The appellee in this case elected not to treat the contract as rescinded and sue to recover on a quantum meruit what the services already performed were worth, but he sued to recover the profits which he would have earned upon the sale if he had been allowed to perform the contract within the stipulated time. The question of recovery of anticipated profits gave the court much concern in Spencer Medicine Co. v. Hall, supra, and the court held that the same could be recovered. We see no reason why, if anticipated profits on a sale of merchandise could be recovered as damages on a broken contract, such profits cannot be recovered on a broken contract for the sale of land. The same principle controls in both kinds of contracts.
Other courts have held that this is the measure of damages for breach of contracts for sales of land similar to the one in this case. Van Gorder v. Sherman, 81 Iowa 403; Schultz v. Griffin, 26 N. Y. Supp. 713; Levy v. Rothe, supra; Green v. Cole, supra.
In Rowan v. Hull (W. Va.) 47 S. E. 92, the following rule was announced, taken from Rinehardt on Agency, § 269; “Where the parties had provided by their agreement what the agent’s compensation shall be in case the principal sees fit to revoke the contract prematurely, such agreement shall form the basis of the agent’s recovery.” This is the rule which prevailed in Novakovitch v. Union Trust Co., supra.
In the present case, however, the contract does not stipulate expressly for a measure of the agent’s compensation in case the contract should be broken. It only provides for what the compensation shall be when the contract is performed. Therefore, where the agent elects not to treat the contract as rescinded as soon as it is broken and sue for the value of his services, but elects to sue for the probable damages resulting from the breach, the only measure of his damages is the profit he would have realized from the performance of the contract if he had been permitted to perform it within the time-named. The court submitted the case to the jury on this measure of damages, and there was evidence sufficient to sustain the verdict.
The instruction given by the court was not strictly accurate, in that it told the jury that appellee, before he could recover, must show that he found a purchaser and tendered to the appellants the price. But this inaccuracy was not prejudicial to appellant, for it imposed an additional burden on appellee which it was not necessary for him to sustain in order to entitle him to a recovery. If, before the revocation of the contract, he produced a purchaser, ready, willing and able to purchase the property, then he was entitled to the earned compensation, whether the right of revocation existed or not. ’And, even if he had not produced a purchaser before the revocation, he would have been entitled to recover by proving by competent testimony that he could, within the remaining time of the contract, have sold the land at an advance over the price named in the contract. This he might have shown by proving that the lands were of sufficient value in the market, and that his opportunities for finding a purchaser were such that he could have found a purchaser at an advanced price if he had been permitted to do so.
We conclude upon the whole that the case was fairly tried- and that the verdict should not be disturbed.
Affirmed. | [
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Battle, J.
This suit involves the title to a certain tract of land. The appellant, William A. Wagner, claims it under a deed executed by James R. Berry, Auditor of Public Accounts of the State of Arkansas, on the 21st day of June, 1871, whereby the State conveyed to the appellant all its right, title and interest in and to the land in controversy as a donation, upon condition that he “will regularly and annually pay or cause to be paid the State and county taxes which shall thereafter accrue upon the land.” The appellee, John H. Arnold, claims the land under a sale thereof made on the 8th day of November, 1882, under a decree of the Little River Chancery Court rendered in the exercise of the-jurisdiction vested in it by an act entitled “An act to enforce the payment of overdue taxes,” approved M-arch 12, 1881. The land was sold under the decree to enforce the payment of -the taxes' for the years 1868-69-70-71. Treating the -sale as ordered by the court in the exercise of its jurisdiction and regularly made according to the decree of the court and the law and approved, did. it divest the appellant of the title to the land? The trial court held that it did.
This question has been decided in the affirmative by this court in Williamson v. Mimms, 49 Ark. 336, and McCarter v. Neil, 50 Ark. 188. In those cases the defendants sought to defeat the sales made under decrees of the court in the exercise of the jurisdiction vested in it by the act of March 12, 1881, to pay taxes, by showing that the taxes for which the sales were made liacl been paid -before the institution of the action in which they were ordered sold. This court treated the proceedings instituted under the act of March 12, 1881, as actions in rem, in which all persons interested in the lands affected were concluded by the decrees and orders of the court made and rendered in the exercise of its jurisdiction. The effect of this ruling was to hold that the decrees in those cases estopped or barred persons interested from attacking sales thereunder on account of defenses which they could have set up in the action in rem in which such decrees were rendered. So in this case the appellant is barred from attacking the sale under which appellee claims by his failure to defend in the action in which the sale was made, the court rendering the decree having acquired jurisdiction of the land in that case. McCarter v. Neil, 50 Ark. 191; Clay v. Bilby, 72 Ark. 101, 112. The existence of the facts in that case which this court has held confer jurisdiction has not been questioned; neither has the regularity of the sale in that case been challenged.
Decree affirmed. | [
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Frauenthae, J.
The plaintiff, Edgar Woodson, was in the employ of the defendant, the Prescott & Northwestern Railway Company, as a fireman on one of its engines; and while in that employment he claims that he sustained personal injuries through the negligence of the defendant; and he brought this suit against defendant to recover damages for those injuries. The defendant in its answer denied all allegations of the complaint, and alleged That any injury the plaintiff sustained was caused by his own negligence.
The evidence tended to prove the following facts: The plaintiff had been in the employ of the defendant for about a month as a fireman on one of its engines, and was acting in that capacity at the time of the injury complained of. On November 6, 1907, the train was running in the direction of Prescott, and when it came to a certain switch, known as Arcadia Switch, the engine left the track, and continued some forty or fifty yards, and turned over. The plaintiff at the time was engaged in his duty as fireman in shoveling coal. He was caught by the engine as it turned over, and was severely injured. The blind drive wheels of this engine had become so worn that grooves had been made in them, so that these wheels had flanges on each side. These blind drive wheels were made without any flanges, and all other wheels on the engine had flanges only on the inside of the wheels. From the marks that were made on the ties it appeared that these blind drive wheels, with their flanges on the outside, struck the stop rail at the point where the switch joins the main track, and caused the engine to be derailed. The evidence tended to prove that these grooves had worn into the blind drive wheels to a depth of one-half inch, and that the derailment of the engine was caused by this defect in these wheels. The train was going at the rate of about ten miles an hour when it left tha track, and the plaintiff did not attempt to jump from the engine.
The plaintiff requested the court to give the following instruction to the jury: “1. A railroad company owes to its employees, engaged in the running of its trains, the duty of using reasonable and ordinary care to furnish and keep in safe repair safe and suitable engines and other appliances for the carrying on of such operation, and to inspect or cause to be inspected such engines and appliances at all reasonable and necessary times, with the view to keeping the engines in such reasonably safe condition ; and if it does not do so, but negligently permits any wheel, or wheels of its engines to become so worn as to render the running or operation of such engine dangerous, and by reason thereof its employee is injured, it is liable to him in damages.”
The court refused to give the instruction as asked, but modified it by striking therefrom the following: “And to inspect or cause to be inspected such engines and appliances at all reasonable and neecssary times with the view to keeping the engines in such reasonably safe condition.”
Among other instructions it gave at the request of the defendant the following: “10. You are further told that if, after the plaintiff knew the engine was derailed, he knew he could have escaped in safety, but thought the engine would stop, and, with full knowledge of the facts, -decided to remain on the engine and take the risk, instead of trying to escape, he can not recover.”
The jury returned a verdict in favor of the defendant; and from the judgment entered thereon the plaintiff prosecutes this appeal.
It is claimed by the defendant that the plaintiff was guilty of contributory negligence by remaining on the engine and by not jumping therefrom. The question presented by the above instruction number 10, given at the request of the defendant, is whether as a matter of law under the circumstances of the case the plaintiff was guilty of contributory negligence by remaining on the engine. The evidence tended to prove that the derailment of this engine was caused by defective drive wheels. These wheels had been in use so long that grooves had worn into the wheels to a depth of one-half an inch, so that it made flanges on each side of the wheels, and this caused the engine to leave the track. It was not the duty of the plaintiff to inspect the appliances that were furnished him. He had a right to rely on the assumption that the defendant had exercised due and ordinary care in furnishing him a reasonably safe engine in which to work. There is no evidence to show that the engine left the track through any fault or negligence of the plaintiff. A perilous emergency was thus presented. It is well established that when one is required to act suddenly and in the face of an imminent danger he can not be held to be guilty of contributory negligence because he failed to exercise the best judgment or did not take the safest course. Especially is this true when the peril has been caused by the fault of another. In the case of Jones v. Bryce, 1 Stark. 493, Lord Ellenborough said: “If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences.” It is true that it is the duty of the employee to exercise ordinary care to avoid injury and to take reasonable precaution not to expose himself to extraordinary danger. 3 Elliott- on Railroads, § 1314. But where, in the face of imminent peril, the employee is -obliged to act on the spur of the moment, he can not be necessarily charged with negligence if he -does not do the right thing. The question is then for the jury to determine whether under all the circumstances he acted as any ordinarily prudent and careful person would have done under similar circumstances. 1 White on Personal Injuries on Railroads, § 422.
As is said in case of St. Louis, I. M. & S. Ry. Co. v. Stamps, 84 Ark. 241: “Where there are two courses left open to a person in the face of imminent danger, and he chooses on' the spur of the moment the one which is really the more dangerous, he can not be held as a matter of law to be negligent in his choice, although by choosing the other course he might have escaped.” Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11; Kansas City S. Ry. Co. v. Henrie, 87 Ark. 443.
It then becomes a question for the jury to determine whether he is guilty of negligence, and his conduct -must be tried in the light of all the surrounding circumstances of the case.
Now, by this instruction the court in effect told the jury that the defendant was in this impending danger guilty of negligence as a matter of law if he knew he could have escaped in safety, but thought the engine would stop and therefore decided to remain on the engine. The plaintiff might have thought that he would be safe in remaining on the engine. The presumption is, from the natural desire to preserve life, that he did think that. And yet if, with these two courses before him, he in good faith believed he would be safe by remaining on the engine, under this instruction he would still be guilty of negligence by thus remaining on the engine. This in effect would make the employee the insurer of his own safety.
In effect, the court by this instruction told the jury that as a matter of law the plaintiff was guilty of negligence in not leaping from the engine. Under the circumstances of this case, that was error.
It is urged by the plaintiff that the court erred in modifying the above instruction number one asked for by the plaintiff. The modification eliminated from the instruction the duty on the part of the defendant to inspect its engines. But this was to a great extent covered by instruction number two given on the part of the plaintiff, and for that reason we do not think that this cause should be reversed solely on the refusal to give the instruction number one as asked by plaintiff. But, inasmuch as there must be a new trial of this cause, we deem it but proper to say that'the plaintiff is entitled to a suitable instruction presenting the duty of defendant to inspect its engines at such reasonable times and in such reasonable manner as an ordinarily prudent and careful person would do under like circumstances. “It is the duty of the master to exercise ordinary care to provide his servants with a reasonably safe place in which to work and reasonably safe appliances with which to work. This duty also includes one of making reasonable inspection to see that the place and appliances are safe.” 1 Labatt on Master and Servant, § 7; 26 Cyc. 1182, 1177; St. Louis, I. M. & S. Ry. Co. v. Rice, 51 Ark. 467; St. Louis, I. M. & S. Ry. Co. v. Gaines, 46 Ark. 555; St. Louis, I. M. & S. Ry. Co. v. Brown, 67 Ark. 304; Bryant Lumber Co. v. Stastney, 87 Ark. 321; Ozan Lumber Co. v. Bryan, 90 Ark. 223.
It is true that the presumption is that the master has done his duty in furnishing safe and suitable appliances; and, even if they are defective, it is further presumed that the master had no notice of the defect, and was not negligently ignorant of it. But these presumptions can be overcome by proof. Negligence of the master can not be inferred merely from the happening of the accident. That must be proved, and the burden of establishing it is on the plaintiff. But this can be shown by evidence that there was a defect in the appliance which caused the injury, and that this defect was discoverable if it had been reasonably inspected. It would then become a question for the jury to determine whether the defendant was guilty of negligence in failing to inspect and discover such defect. St. Louis, & S. F. Rd. Co. v. Wells, 82 Ark. 372; Kansas City S. Ry. Co. v. Henrie, 87 Ark. 443; 1 Labatt on Master and Servant, § § 155-157; Bailey v. Rome, W. & O. R. Co., 139 N. Y. 302.
For the error in giving said instruction number ten on the behalf of the defendant the judgment is reversed, and the cause is remanded for a new trial. | [
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Wood, J.
(after stating the facts.) The policy provides that “the books and inventories and each of the same shall be by the assured kept securely locked in a fireproof safe at night, and at all times when the building mentioned in the policy is not actually open for business.”
It has often been held by this court that a clause in a fire insurance policy similar to the above, and generally designated as the “iron safe clause,” is valid, and that a compliance with its terms by the assured is essential to recovery. Western Assurance Co. v. Altheimer, 58 Ark. 575; Southern Ins. Co. v. Parker, 61 Ark. 207; Germania Ins. Co. v. Bromwell, 62 Ark. 43; Sun Mut. Ins. Co. v. Dudley, 65 Ark. 240.
In the case at bar the evidence was ample to warrant the court in submitting to the jury the question as to whether the appellee had complied with the provisions of the iron-safe clause. The facts in this case bring it clearly within the rules of law announced by this court in Sun Insurance Co. v. Jones, 54 Ark. 376, and the trial court, on the question under consideration, followed closely the doctrine of that case in its instructions numbered two and three.
Wampoo was situated in a country district, where the great majority were negroes, who, being paid off on Saturday nights, visited the stores at that time and remained for some time in making their'purchases. ' It was proper to prove what the cus tom of these stores was in that district or place to accommodate the trade there, and appellant, effecting insurance on a store in such territory, must take notice of the custom of such stores as to their hours of trade as affecting the risk incident to the insurance of such property. There were only two stores in the country district of Wampoo where the people gathered for trade and to get their mail. The custom of these two stores as to the hours of business and trade was therefore necessarily the custom for that 'territory; and appellant, insuring one of these stores, must be held to have taken the usual or customary hours of business into consideration in consummating its contract with appellee.
“A usage of trade may have a greater or less territorial extent or a more general or restricted one, according to the circumstances which give rise to it.” 12 Cyc. p. 1041, and cases cited in notes. There was no error in admitting the evidence of the custom of the two stores in keeping open on Saturday nights, nor in instruction numbered two.
So far as the preservation of the inventories was concerned, they fall under the same clause and the same rule for the preservation of the books; and the court properly submitted the question as to whether appellee had been negligent in preserving these according to the provisions of the policy in its instruction numbered four.
Conceding that the contract of insurance was indivisible under the doctrine announced in McQueeny v. Phoenix Ins. Co., 52 Ark. 257 and Planters Ins. Co. v. Lloyd, 71 Ark. 292, we do not see how the court’s instruction number one was prejudicial to appellant. The verdict shows that the jury found that there was no breach of the conditions of the iron-safe clause, and no forfeiture of the policy upon any other ground. Hence the question of the divisibility of thé contract did not arise. So appellant is not prejudiced by the erroneous instruction.
This disposes of the instructions given by the court.
The prayers of appellant 1 and 2, which the court refused, in effect told the jury that upon different phases of the undisputed evidence in the case appellant was entitled to a verdict. Prayer number 3 was in form a peremptory direction for appellant. All these prayers were properly rejected.
Finding no reversible error, the judgment is affirmed. | [
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Jack Holt, Jr., Chief Justice.
The issue before us is the effect of a court ordered termination of the parental rights of a mother to her child in relation to the rights of the child’s maternal grandmother to visitation and custody of the child. We hold that the grandmother’s rights are derivative of her daughter’s rights, and for this reason the grandmother has no standing to intervene in the adoption proceedings of her granddaughter.
Lori Hughes Cook and Carl Mounts were married from 1980 to 1984 and had one daughter, Crystal Mounts, in 1982. Thereafter, they were divorced, and Lori Hughes Cook entered into a common law marriage in Ohio with Mike Hughes during which Lori Hughes Cook took Mr. Hughes’ last name and the two had one child, Loretta Hughes. They later moved to Harrison, Arkansas.
In 1990, the Arkansas Department of Human Services (DHS) filed a petition to obtain emergency custody of Crystal on the basis that she was “dependent-neglected.” The petition and affidavits filed by DHS contained allegations that Lori Hughes Cook neglected Crystal and physically abused her. The trial court placed Crystal in the care and custody of DHS’ Division of Children and Family Services, who in turn placed her in a foster care program except for a brief period when she was temporarily returned to her mother.
After conducting several periodic reviews as mandated by Ark. Code Ann. § 9-27-337 (Repl. 1991), the court entertained a petition on September 17,1991 to terminate Lori Hughes Cook’s parental rights. She was present and represented by counsel. Thereafter, the chancellor entered an order terminating Ms. Cook’s parental rights to Crystal under Ark. Code Ann. § 9-27-341 (Repl. 1991). The order stated “all parties agree that there is clear and convincing evidence to show that an order should be entered terminating Lori Hughes Cook’s parental rights and granting custody with power to consent to adoption to the Arkansas Department of Human Services,” that it was in the best interest of the child to be placed for adoption, and that the case would be reviewed next on March 10, 1992.
In February, 1992, while incarcerated in the Arkansas Department of Correction, Lori Hughes Cook filed a petition to set aside the order terminating her parental rights on the basis that she had consented to the termination only because she understood that her former common law husband, Mike Hughes, would be allowed by DHS to adopt Crystal.
Five days before the March 1992 review hearing, Crystal’s maternal grandmother, Lois Suster, along with Crystal’s three maternal uncles, filed a motion to intervene in the cause of action on the basis that they had a significant interest relating to Lori Hughes Cook’s parental rights because her parental rights directly affected their ability as relatives to contact, communicate with, visit, and have a relationship with Crystal. The Susters, residents of Ohio, also filed a pleading in support of the motion to intervene as required by Ark. R. Civ. P. 24 in which they sought to obtain custody of Crystal or, at least, visitation rights.
As a result of the March review hearing, the chancellor entered an order on July 7,1992 denying Mrs. Cook’s petition to set aside the order terminating her parental rights and denying Mrs. Suster’s motion to intervene stating in pertinent part:
That the maternal Grandmother of Crystal Mounts, Lois Suster, has filed a motion in this action alleging that by an Order of this Court on May 28, 1991, she was granted visitation rights with her Granddaughter, Crystal Mounts and asking that she be allowed to intervene in this matter. Mrs. Suster has also filed a petition alleging that she has not been allowed to visit with Crystal Mounts since September 17, 1991, and asking for custody of Crystal Mounts or, in the alternative, the right to have visitation with Crystal Mounts.
Lois Suster’s argument that she can still receive visitation rights after Lori Hughes (Cook’s) parental rights have been terminated because the parents of Crystal Mounts are divorced is without merit. Lois Suster’s visitation rights were contingent upon her daughter Lori Hughes Cook having rights. Mrs. Suster could only take through her daughter, a parent of the child, and that parent’s rights have been terminated.
In addition, Lois Suster’s argument that she was entitled to due process notice of the termination proceedings or an opportunity to be heard in those proceedings is without merit as she was not a party nor an intervenor. The rights of visitation that were granted to Mrs. Suster were upon her visiting the State of Arkansas and were to be decided in the future if she decided to make the trip to Arkansas. Those rights of visitation were not based upon a regular pattern of visitation or rights that were incumbent to a party or an intervenor. The Court is denying Lois Suster’s motion to intervene.
Mrs. Suster, individually, appeals both the trial court’s finding that she no longer had visitation rights due to termination of Lori Hughes Cook’s parental rights and the trial court’s denial of her motion to intervene as of right pursuant to Ark. R. Civ. P. 24(a). The denial of an intervention of right based on a claimed interest in the litigation which may be unprotected constitutes an appealable order under Ark. R. App. P. 2(a)(2). Cupples Farms Partnership v. Forrest City Prod. Credit, 310 Ark. 597, 839 S.W.2d 187 (1992).
Mrs. Suster argues that the trial court erred by denying her motion to intervene pursuant to this rule since her grandparent’s rights “are personal to her” and “no other parties appear to be adequately representing Mrs. Suster’s interest.” She relies on Ark. Code Ann. § 9-13-103 (Repl. 1991) as her authority in that it provides her the right to have visitation by virtue of being a grandparent; however, she is wrong in this regard.
A reading of this code section reveals that it does not give Mrs. Suster an unconditional right to intervene, but merely a means of petitioning for visitation which she has done. Simply put, this code provision does not vest grandparents with an absolute right to visitation or intervention.
Mrs. Suster’s reliance on Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981) is also misplaced. In Quarles, two children’s paternal grandparents were permitted to intervene in adoption proceedings concerning the grandchildren following their father’s death on the basis that the grandparents had stood in loco parentis to the children and previously had court ordered visitation as provided by statute. Here, the focal point is the intervention of a grandparent following a termination of parental rights by court order not following the death of a parent. Thus, Quarles is of no import.
DHS argues that Ark. Code Ann. § 9-13-103 (Repl. 1991) should not be interpreted to include grandparents where the intervening parental rights have been terminated. DHS quotes Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978), a case in which grandparents sought visitation rights where their grandchild had been adopted by a third party:
To create new, enforceable rights in grandparents could lead to results that would burden rather than enhance the welfare of children. Certainly prospective adopted parents would be less inclined to assume that worthwhile role. Of paramount importance in this case, as in all adoption and custody matters, is what is in the best interest of the child.
DHS cites our recent decision of Rudolph v. Floyd, 309 Ark. 514, 832 S.W.2d 219 (1992) for further support, where we quoted with approval a law review article which stated, “Grandparent rights, to the extent they may be said to exist, are derivative of their son’s or daughter’s parental rights . . . Because a grandparent’s rights are only derivative, they may be contingent upon the establishment of paternity or maternity and are subject to divestment when parental rights are terminated.” Chauncey Brummer & Era Looney, Grandparent Rights in Custody, Adoption, and Visitation Cases, 39 Ark. L. Rev. 259, 261 (1985).
Although Crystal has not yet been placed for permanent adoption by a third party, we also look to our statutes which detail the effect of termination of parental rights and adoption by a third party:
An order terminating the relationship between parent and juvenile divests the parent and the juvenile of all legal rights, powers, and obligations with respect to each other, including the rights to withhold consent to adoption, except the right of the juvenile to inherit from the parent, which is terminated only by a final order of adoption.
Ark. Code Ann. § 9-27-341 (c)(1) (Repl. 1991).
A final decree of adoption and an interlocutory decree of adoption which has become final, whether issued by a court of this state or of any other place, have the following effect as to matters within the jurisdiction or before a court of this state ... to relieve the natural parents of the adopted individual of all parental rights and responsibilities, and to terminate all legal relationships between the adopted individual and his relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives for all purposes including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship
Ark. Code Ann. § 9-9-215(a)(1) (Repl. 1991) (emphasis added).
These statutes point to a public policy which, in determining what is in the child’s best interest, favors a complete severing of the ties between a child and its biological family when he is placed for adoption. We have said it is “unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring grandparents and other blood kin who are related to the child through the deceased parent.” Wilson v. Wallace, 274 Ark. 48, 50, 622 S.W.2d 164, 166 (1981). Our legislature has declined to adopt another rule, so we will not here.
Our case law and statutory law support DHS’ position. We hold, accordingly, that Mrs. Suster’s rights as a grandparent were derivative of her daughter’s parental rights and as a result were terminated when her daughter’s parental rights were terminated, and that she does not have a recognized interest in the subject matter of this litigation to warrant intervention as a matter of right. For these reasons, we affirm the trial court’s denial of her motion to intervene. | [
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Per Curiam.
Appellant, Calvin Marshall, by his attorney, Alvin A. Simes, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Per Curiam.
The appellant, Jimmy Dean Welch, by his attorney, has filed a motion for a rule on the clerk.
His attorney, Phil Kinsey, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.
The motion is therefore granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Steele Hays, Justice.
Michael Vincent Adams was convicted of five felonies: two counts of aggravated robbery and theft of property and one count of aggravated assault, a lesser included offense of attempted capital murder. Under the Habitual Offender Act, Adams was sentenced to two consecutive life sentences for the aggravated robberies, two concurrent ten year sentences for the thefts, and a concurrent fifteen year sentence for aggravated assault.
Michael Vincent Adams appeals from the judgment of conviction, contending the trial court erred in not suppressing his confessions on the grounds that they were involuntary or were elicited because he was not taken before a judicial officer without unnecessary delay. Finding no error, we affirm the judgment.
Adams was arrested by police from the City of Rogers at about five o’clock on the afternoon of October 15, 1991. The arrest was pursuant to a warrant issued by the State of California. Around six o’clock, Adams asked to speak to Sgt. Mark Russell. Russell told Adams that he would talk to him as soon as he finished other duties. Russell returned about midnight and proceeded to take a statement from Adams until 3:30 a.m. The statement implicated Adams in several offenses but not in a recent robbery and theft at the Westside Elementary School.
On the following day Adams complained of chest pains and was taken to a Rogers hospital, returning later that afternoon. At 5:19 p.m. Russell again spoke with Adams and this time Adams implicated himself in the Westside incident.
Adams maintains that both confessions should have been suppressed because he was not brought promptly before a judicial officer and because the confessions were involuntary. The trial court denied the motion and both confessions were introduced at the trial.
Adams submits that under Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), and County of Riverside v. McLaughlin, _U.S_, 114 L.Ed. 49 (1991), his confessions should be excluded due to a violation of A.R.Cr.P. 8.1, which provides:
An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.
In the Duncan case we held that when a delay occurs in bringing a defendant before a judicial officer we will exclude a confession taken during the delay if: a) the delay was unnecessary; b) the evidence is prejudicial; and, c) there is a reasonable correlation between the confession and the delay. The delay need not have been the sole basis for the confession, it is enough if it reasonably appears it was a coefficient cause of the confession. Id., p. 529-530. See Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992).
In the McLaughlin case, supra, the Supreme Court held that when no probable cause hearing is conducted within forty-eight hours following an arrest, the burden of proof shifts to the government to demonstrate the existence of a “bona fide emergency or other extraordinary circumstance” occasioning the delay. The court also pointed out that a probable cause hearing would not pass constitutional muster simply because it occurred within forty-eight hours of the arrest. The prompt arraignment rule could be violated under such circumstances if the probable cause determination was delayed unreasonably. McLaughlin continued:
Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill-will against the arrested individual, or delay for delay’s sake.
The issue then is whether there was an unnecessary delay and, if so, whether it warrants exclusion of the confessions under the Duncan test.
As to the first confession, within an hour of his arrest Adams asked to speak to Sgt. Russell and Russell met with Adams as soon as other matters were completed. Between midnight, when the interview began, and 3:30, when it ended, Adams confessed to all the crimes with which he was later charged except the Westside School robbery. We find no basis for the suppression of this confession either for unnecessary delay or for a causal connection between the confession and a lapse of time. The defendant’s confession appears to have been entirely prompted by his own purposes. See Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989).
At 5:30 on the following afternoon, Russell again interviewed Adams and took his confession to the Westside School robbery. Adams argues that the want of an appearance before a judicial officer on October 16 constitutes an unnecessary delay. We disagree, particularly in light of the fact that Adams’s medical problems necessitated his spending part of that day at the hospital. The details of the events of October 16 are sketchy at best, but inasmuch as Adams had, at that point, been confined for less than twenty-four hours, it was not the state’s burden to disprove that any delay in arraignment was simply for the sake of delay or was motivated by ill-will. Rather, it was appellant’s burden to show that the delay was the precipitating cause of the confession. We find no such proof in the record.
As to the argument the confessions were involuntary, there is no basis in fact. Adams alludes to his unhealthy state, lack of sleep, hours of questioning and the subtle coercion associated with his girlfriend and their daughter. He also points to the supportive testimony of a cell mate, who testified that he observed officers throw Adams down in the cell and jump on him. Adams’s girlfriend testified that he had not slept the night of the 14th, but taking that proof at face value, Adams still had opportunities to rest between the arrest at 5:00 p.m. and the initial meeting with Russell seven hours later. Nor do we regard three and one-half hours as unreasonable on its face. It was Adams who requested the interview and there is no indication that he wanted a cessation. See Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990).
As to the likelihood of subtle coercion, we can find no direct proof in support of that conclusion and Russell’s testimony to the contrary is essentially unrefuted. In short, these issues turned altogether on credibility and we cannot say the findings of the trial court were clearly erroneous.
For the reasons stated, the judgment is affirmed. | [
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Donald L. Corbin, Justice.
Appellant, James A. Richardson, was found guilty by a jury of four (4) counts of rape by engaging in deviate sexual activity with other persons who were less than fourteen (14) years of age in violation of Ark. Code Ann. § 5-14-103(1987). Appellant was also found guilty of one count of engaging children in sexually explicit conduct for use in visual or print medium in violation of Ark. Code Ann. § 5-27-303 (1987). Appellant was sentenced to forty (40) years imprisonment for each rape charge and ten (10) years imprisonment and a ten thousand dollar ($10,000) fine for the charge of engaging children in sexually explicit conduct for use in visual or print medium. The terms of imprisonment were ordered to run consecutively for a total sentence of one hundred seventy (170) years. Appellant appeals from this sentence and asserts many errors occurred below which require us to reverse and dismiss two of the charges and remand the remaining charges for a new trial. We hold appellant’s four convictions for rape should be reversed and remanded for a new trial and appellant’s conviction for engaging children in sexually explicit conduct for use in visual or print medium should be reversed and dismissed. Accordingly, we will address only those points necessary for us to explain our disposition of this case and those likely to occur on remand.
I. PECUNIARY PROFIT
Appellant argues the trial judge erred in denying his motion for a directed verdict on the charge of engaging children in sexually explicit conduct for use in visual or print media in violation of Ark. Code Ann. § 5-27-303. Appellant moved for a directed verdict on the basis the state had not proven the photographs were taken for “pecuniary profit.” The trial judge ruled “pecuniary profit” was not an element of the crime.
Section 5-27-303 provides in pertinent part:
(a) Any person who employs, uses, persuades, induces, entices, or coerces any child to engage in, or who has a child assist any other person to engage in, any sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct shall be guilty of a Class C felony for the first offense and a Class B felony for subsequent offenses.
At issue is the definition of “producing” as used in the statute. “Producing” is defined at Ark. Code Ann. § 5-27-302(3) (1987) as “producing, directing, manufacturing, issuing, publishing, or advertising for pecuniary profit.” Appellant contends “pecuniary profit” modifies producing, directing, manufacturing, issuing, publishing, and advertising. Appellant contends that to read the statute in any other way results in the absurd consequence that only advertising not for pecuniary profit is prohibited. Appellant also points to the other sections in Act 499 of 1979 as indicating the legislature’s intent to limit the statute to the production of visual or print media for pecuniary profit. The state argues that the rules of statutory construction require a limiting clause to be restrained to the last antecedent, unless the subject matter requires a different construction. Sutherland Stat Const § 47.33 (5th Ed). Therefore, the state argues since there is no comma preceding the phrase “for pecuniary profit”, the phrase only modifies advertising and “pecuniary profit” is not an element of the crime which applies to producing, directing, manufacturing, issuing or publishing.
The definition at issue was originally enacted pursuant to Act 499 of 1979. The definition of “producing” in Act 499 contained a comma after the word “advertising” and before the phrase “for pecuniary profit.” The pertinent provision of Act 499 reads: “ ‘Producing’ means producing, directing, manufacturing, issuing, publishing, or advertising, for pecuniary profit.” As originally codified at Ark. Stat. Ann. § 41-4202 (Supp. 1985) the definition of “producing” also contained a comma after “advertising” and before “for pecuniary profit.” Thus, it is clear to us that the legislature intended pecuniary profit to modify not just advertising, but also producing, directing, manufacturing, issuing, and publishing.
Additional authority for determining the legislature intended for “pecuniary profit” to modify all the preceding terms is provided by House Bill 1471 of 1987. In H.B. 1471, the General Assembly
“authorize[d] and empowered] the Arkansas Statute Revision Commission to revise, codify, and publish a code of all the statute law of the State of Arkansas of a general and permanent nature, but without changing the substance or meaning of any provision of the statutes and after approval and adoption by the Arkansas General Assembly[.]” [Emphasis added.]
The result was the Arkansas Code of 1987. H.B. 1471 also provided in pertinent part:
SECTION 4. (b) All acts, codes, and statutes, and all parts of them and all amendments to them of a general and permanent nature in effect on December 31, 1987, are repealed unless:
(2) Omitted improperly or erroneously as a consequence of compilation, revision, or both, of the laws enacted prior to the Code, including without limitation any omissions that may have occurred during the compilation, revision, or both, of the laws comprising the Code; ....
(c) In the event one of the exceptions in subsection (b) should be applicable, the law as it existed on December 31, 1987, shall continue to be valid, effective, and controlling.
Removal of the comma changed the substance and meaning of section 41-4202. Obviously, the absence of the comma after the word advertising was an omission as contemplated under-Section 4(b) of H.B. 1471. Therefore, the law as it existed on December 31, 1987, is controlling. The law as it existed on December 31, 1987, contained a comma after the word advertising. Thus, “for pecuniary profit” is a required element of proof under the statute. The state failed to present proof appellant took the photographs “for pecuniary profit.” This charge should properly have been dismissed.
II. SEARCH WARRANT
Appellant raises two arguments urging us to find the search warrant used to obtain photographs and other evidence introduced at trial was invalid and the evidence should have been suppressed. Appellant first argues that there was no probable cause to issue the search warrant for his home. Appellant’s second argument is that the evidence seized from his home should have been suppressed because it was obtained as a result of an illegal nighttime search. Since we find appellant’s nighttime search argument has merit, we do not reach his probable cause argument.
Appellant contends the evidence seized from his home should have been suppressed because it was obtained as a result of an illegal nighttime search. We refer to searches which occur after 8 p.m. as “nighttime” searches in our case law. The search warrant at issue was executed at approximately 8:45 p.m. and the search continued until around midnight. The trial judge determined the evidence should not be suppressed. When reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination, based on the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993).
Ark. R. Crim. P. 13.2(c) provides:
Except as hereafter provided, the search warrant shall provide that it be executed between the hours of six a.m. and eight p.m., and within a reasonable time, not to exceed sixty (60) days. Upon a finding by the issuing judicial officer of reasonable cause to believe that:
(i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy;
the issuing judicial officer may, by appropriate provision in the warrant, authorize its execution at any time, day or night, and within a reasonable time not to exceed sixty (60) days from the date of issuance.
The warrant in this case contained two different places the issuing magistrate could check to indicate when the warrant could be executed. The magistrate in this case checked the box next to the phrase “between six (6:00) AM and ten (10:00) PM o’clock.” The other box the magistrate could have checked read as follows:
( ) at any time during the day or night, after finding this is necessary because:
( ) The (person/s) (place) (object/s) to be searched is difficult of speedy access;
( ) the objects to be seized are in danger of imminent removal;
() the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy[.]
We have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search. Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991). The warrant was obtained based on information given to the affiants, Detective Joseph Scott Stidman and Detective Robert Turberville, on May 12,1992, about events occurring at appellant’s home on or about May 2, 1992. The affidavit contains a statement that “[i]t is further believed that the above described illegal items are in danger of being removed from said premises or destroyed.” We have held conclusory language such as this unsupported by facts is insufficient to justify a nighttime search. State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). Given that there was nothing to give reasonable cause to believe the items specified in the search warrant would be disposed of, removed, or hidden before the next morning, issuance of the nighttime search warrant was in error. State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991 ); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990).
However, even when a search warrant is issued in violation of Rule 13.2(c), a motion to suppress will not be granted unless the violation is “substantial.” Hall, 302 Ark. 341, 789 S.W.2d 456. We have repeatedly held that failure to justify a nighttime search with sufficient factual information results in a substantial violation. Garner, 307 Ark. 353, 820 S.W.2d 446.
Therefore, we must consider whether the executing officers acted in good faith under United States v. Leon, 468 U.S. 897 (1987), and, if so, whether that salvages an otherwise defective search and seizure. Id. While subjectively the police officers executing the warrant apparently believed they were complying with the law since the printed form appeared to authorize a search until ten (10) p.m., we apply an objective standard in deciding whether the executing officers acted in good faith. Id. Our rules of criminal procedure provide that a search conducted after 8 p.m. requires a finding by the issuing judge that the warrant should be executed at any time, day or night because one of the three circumstances set out in Ark. R. Crim. P.13.2(c) exists. The objective standard requires officers to have a reasonable knowledge of what our rules require. Hall, 302 Ark. 341, 789 S.W.2d 456. At the suppression hearing, Detective Stidman testified he was familiar with our rules. We have held that where no factual basis supports the issuance of a warrant for a nighttime search, the Leon good-faith exception is not applicable. Id. For these reasons, we hold the trial court erred in denying appellant’s motion to suppress the evidence seized pursuant to the search warrant.
Finally, we must decide what effect the suppression of this evidence has on appellant’s rape convictions. The evidence seized which was introduced at trial consisted of various books with the following titles: Sexual Experience Between Men and Boys; Boyhood; Lewis Carroll’s Photographs of Nude Children; The Child Lovers; Playtime Pals II; Show Me; Coming Out; Nudist Studio Review; Boys Studies Volume No. IF, Boys Studies No. Ill, and Piccolo. Also introduced were: photographs of the three (3) boys who testified appellant raped them and took naked photographs of them; a paper sack containing several pairs of boys underwear; a box containing literature and about fifteen sexual devices; and six (6) copies of a certificate purporting to grant a one-fifth (1 /5) interest in a three-wheeler. This evidence undoubtedly influenced the jury’s decision and was prejudicial to appellant. Therefore, the rape charges must be reversed and remanded for a new trial.
III. SEVERANCE
Appellant next argues the trial judge erred in refusing to grant severance of the charges against him. Appellant asked for severance of each of the rape charges and of the charge of engaging children in sexually explicit conduct for use in visual or print medium. Since we have dismissed the charge of engaging children in sexually explicit conduct, we will address the issue of severance only as to the rape charges.
Granting or refusing a severance is a matter within the discretion of the trial court. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Where the facts necessary to prove the offenses would almost be required in each trial if a severance were granted and the evidence would be used in each trial to prove a plan, scheme, motive or state of mind, there is no abuse of discretion in refusing to sever the cases. Id. When the charge concerns the sexual abuse of children, we have held that evidence of sexual abuse with children other than the victim is admissible to show motive, intent, or plan pursuant to A.R.E. Rule 404(b). Id.
In this case, appellant was charged with four counts of rape involving three victims. All of the alleged events occurred at appellant’s home. Two of the victims J. L. and D. W. testified that they were at appellant’s home at the same time when appellant told both victims to come into his bedroom where he performed oral sex on one victim while the other child performed anal sex on appellant. Each of these victims testified that appellant performed oral sex on them and J. L. testified that he also saw appellant perform oral sex on D. W. D. W. also testified that appellant performed anal sex on him on a different occasion. M. H. testified appellant asked him to come back in his bedroom while there were other boys in the house and appellant performed oral sex on M. H. As all this evidence would have been admissible at the trial of each charge to prove motive, intent or plan, it was not an abuse of the trial judge’s discretion to deny severance.
IV. SURPRISE
Appellant claims he was unfairly surprised when the state asked the trial judge to charge the jury with two (2) counts of rape as to one of the victims, D. W. The information charged appellant with four (4) counts of rape by engaging in deviate sexual activity with other persons who were less than fourteen (14) years of age. It did not specify the names of the individuals or any other details upon which the charges were based. The state apparently revealed the names of four boys to appellant and gave appellant the transcripts of their police interviews. One of the boys did not show up for the trial for reasons which are not known. Appellant claimed surprise when the state asked to charge the jury with two counts of rape as to D. W. Appellant claims he was told in a letter he received from the state that there would be one charge of rape for each child. The prosecutor told the judge that he had disclosed four victims and their statements but that he never indicated it was one charge per victim. Appellant has not provided us with the letter from the prosecutor, so we are unable to determine whether appellant was led to believe the state intended to prove one charge of rape for each victim disclosed. In any event, since we have reversed and remanded the rape charges for a new trial, appellant has not shown any prejudice since he is now aware that the state intends to prove two counts of rape as to D. W.
V. SENTENCING
Appellant argues the trial judge abused his discretion by taking into consideration the possibility that there were more victims than those that testified at the trial and that appellant had been convicted of similar crimes in Louisiana for which he was subsequently pardoned in deciding to sentence appellant to consecutive terms of imprisonment. As appellant did not object to his terms of imprisonment being imposed consecutively, we will not address this argument on appeal. Moore v. State, 303 Ark. 514, 798 S.W.2d 87 (1990). However, we note that we have held it is impermissible to use pardoned offenses in determining punishment. Duncan v. State, 254 Ark. 449, 494 S.W.2d 127 (1973). Likewise, consideration of uncharged offenses is also impermissible.
CONCLUSION
Since the remaining issues are unlikely to arise on remand, we do not address them.
Reversed and remanded in part; reversed and dismissed in part.
Hays, J., dissents. | [
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Tom Glaze, Justice.
On July 12,1991, an information was filed on Bobby McClure charging him with kidnapping, attempted rape, felon in possession of a firearm, and battery in the second degree. The firearm charge was later severed by McClure’s motion, and the rape and battery charges were nolle prosequi by the state. On June 4,1992, McClure was convicted by a jury of kidnapping and sentenced to forty years imprisonment. McClure appeals from that conviction based on sufficiency of the evidence.
The facts are that in the early morning of Saturday, July 6, 1991, Heather, who was sixteen years old at the time, drove to the Red-X Express Mart where she called her boyfriend on the pay phone. The Red-X was located on Highway 62 in Carroll County near Alpena, Arkansas; the pay phone was located outside and on the backside of the store. Heather saw a man staring at her and because of the man’s strange behavior, she ended her conversation. As she was returning to her car, the man grabbed and dragged her toward his truck which was parked behind the store. While the store was well lit on the front, the area behind it was in shadow.
As the man was trying to get Heather into the cab of his truck, he threw her to the ground and repeatedly hit her, choked her, threatened to break her arm and kill her, and partially pulled off her shirt. Heather found a gun on the truck seat and threatened the man with it, but he took it away from her. After he got her into the truck, Heather continued to fight by trying to get out of the truck. While holding on to her by the hair, the man drove out of the store parking lot and down the highway. Approximately one-half block from the store, Heather was able to open the passenger door, slide out of the moving truck, and escape.
During the scuffle Heather’s screams alerted Ruby Gatlin, who lived near the Red-X, and could see the back of the store from her bedroom window approximately 150 feet away. Although it was still dark during the attack, Ruby was able to identify the approximate size and shape of the assailant, the coloring of his clothing, the type and general coloring of the vehicle involved, and corroborate Heather’s story of her struggle and abduction. J.R. Ashcock, a lieutenant and crime investigator with the Carroll County Sheriffs Office, got McClure’s name from the store clerk as someone who had been present at the store that morning.
At approximately 5:18 a.m. that same morning, Bobby McClure was arrested for DWI, speeding, and driving without a license in Madison County. During a vehicle search, a gun was found behind the driver’s seat.
McClure challenges the sufficiency of the evidence based upon inconsistent statements made by the victim and Ruby Gatlin, and the lack of physical evidence connecting him to the crime. He claims that while he was present at the Red-X on the morning of the assault, he was not the one who committed the crime. McClure moved for a directed verdict both at the close of the state’s case-in-chief and again at the close of the case, thus preserving his appeal based on sufficiency of the evidence.
When the sufficiency of the evidence is being challenged on appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. We do not weigh evidence on one side against the other; we simply determine whether the evidence in support of the verdict is substantial. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another, and requires more than mere speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991). It is permissible to consider only the testimony which supports the verdict of guilt. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Wilson v. State, 307 Ark. 21, 817 S.W.2d 203 (1991).
In this case the evidence supporting McClure’s conviction is more than substantial including the victim’s identification of him as her assailant and abductor. Heather testified that she had noticed McClure watching her while she talked on the phone and that she saw him face to face during the attack while he was choking her. At the hospital she was able to give the investigator a description of her assailant and his clothing. That description was corroborated by Ruby Gatlin. Both described the man as tall having long dark hair and wearing dark clothing. Heather was also able to describe the man as having a full beard. Upon his arrest in Madison County on the morning of the abduction, McClure had long dark hair and a full beard, and was wearing dark clothing. On July 19, 1991, Heather identified McClure’s photograph immediately from among a group of six and identified him again in court as her assailant. Further, she was able to point out the differences in McClure’s appearance at the trial compared to the way he looked on the morning of the kidnapping.
Additionally, the store clerk, Michael Langston who knew McClure because he lived near the store and had come into the store before, testified that on the morning of the crime while taking the trash out, he saw McClure standing toward the rear of the store and that Heather was on the phone nearby. Also, Stanley Jones, who worked with McClure at Tyson Foods in Green Forrest, was at the Red-X the morning of the abduction, and testified that he saw McClure drive into the parking lot to the back of the store and park, and that he also saw a “young lady” on the phone.
McClure argues that neither the victim nor the eyewitness ever positively identified his truck as the one involved in the crime. And that each woman described the truck involved as different in color from his, and both were equivocal as to the presence or absence of a tailgate. Further, he argues that Heather described the gun she found in the truck of her assailant as silver with a wooden handle, but that his gun was silver with a brown plastic handle. McClure argues that the discrepancies in this testimony are critical details that prove that he was not the one who assaulted and abducted Heather.
We reject his arguments. Heather identified both a photo of McClure’s truck as similar to the one involved in the crime and his gun as similar to the one she had found in the truck. Further, Heather was able to describe the inside of the cab including the fact that the truck had a big horn which she blew in her struggle and attempts to attract help, the passenger-side door handle which she used to effect her escape, and a multicolored, woven seat cover. While the descriptions of the outside of the truck and the gun do not perfectly match McClure’s truck and gun, neither victims nor eyewitnesses are expected to notice and remember every detail while a crime is in progress. Any discrepancies that occur in the testimony are for the jury to resolve. White v. State, 39 Ark. App. 52, 837 S.W.2d 479 (1992). See also Smith v. State, 271 Ark. 671, 609 S.W.2d 922 (1981).
Certainly, the unwavering testimony of the victim that McClure was her abductor coupled with her identification of him both in a photographic lineup and in the courtroom is substantial evidence. Added to that is her general description of the outside and the specific details of the inside of McClure’s truck, as well as the presence of a gun in the truck. Heather’s testimony regarding the crime is corroborated by the testimony of the eyewitness, Ruby Gatlin. Additionally, the testimony of Michael Langston and Stanley Jones place McClure and his truck at the Red-X on the morning of the abduction and directly in the vicinity of Heather as she talked on the phone.
Any discrepancies in descriptions of details were minor and were within the providence of the jury to resolve. The jury could believe or disbelieve any of the testimony totally or in part. Because substantial evidence supports McClure’s conviction, we affirm. | [
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Robert L. Brown, Justice.
This appeal arises from a burglary committed in Camden for which the appellant, Michael D. Hall, was convicted and sentenced as a habitual offender to 37 years in prison and fined $10,000. The points raised by the appellant do not warrant reversal, and we affirm.
On July 11, 1992, between 7:00 a.m. and 8:00 a.m. Mrs. Ruby Bearden entered the living room of her home in Camden and found a man who was later identified as the appellant rifling her purse. After Mrs. Bearden threatened to call her husband, the appellant fled the residence with her wallet. Mrs. Bearden then called the Camden Police Department, and Officer Chris Wages was dispatched to her home.
Mrs. Bearden described the intruder as a male with a beard and long curly black hair. She stated that he wore a dark shirt and shorts. Other officers in the area were advised of this description, and Officer Larry McMahen of that department observed a man fitting it walking without a shirt. He called Officer Wages, who went to the area and saw the man just after 8:00 a.m. about to enter a truck. The man was wearing dark green shorts and no shirt. Officer Wages stopped him, asked his identity, and requested that he return to the Bearden residence. The man was the appellant. Officer Wages patted him down and confiscated approximately $62.00.
After Hall was returned to the Bearden residence, Mrs. Bearden identified him as the man that she saw going through her purse earlier. He was arrested for burglary and charged.
At trial, Officer Wages testified, in answer to the prosecutor’s questioning, that Officer McMahen informed him that a man fitting the description given by Mrs. Bearden was seen walking down Cash Road towards Fairview Road. Officer Wages then stated:
Officer McMahen is the one that said that. He said that the subject was near — on Cash Road near Chaffee Creek trails. It’s another street down there. At this time I left Mrs. Bearden’s residence and went down there and found the black male which was Mr. Hall here. We’ve had previous occasions and stuff — .
At this point, defense counsel objected, and the objection was sustained. He next moved for a mistrial but that was denied.
Officer Larry McMahen later testified, and during cross examination by defense counsel, this colloquy ensued:
DEFENSE COUNSEL: Would there be any particular reason for you to make note of what kind of shirt he was wearing at that particular time?
McMAHEN: Yes, sir. Good patrol tactics. We’ve had problems with him in the past, and just — note what he’s wearing.
DEFENSE COUNSEL: Okay. So you see him going in Chicken Country and make a mental note that he’s wearing a shirt similar to that?
McMAHEN: Similar to that.
DEFENSE COUNSEL: No reason to be suspicious of him at that time?
McMAHEN: Other than we’ve had problems in the past.
DEFENSE COUNSEL: I understand that. Now did you ever come back to the scene of the Chicken Country?
There was no objection to the officer’s statement about past problems.
During closing arguments, defense counsel made the following remarks to the jury:
I would hate to send an innocent man to the penitentiary because of a witness who had no opportunity to make an observation, and then the police bring him in here and you will recall the testimony was, “We have your suspect in the car.” There’s no lineup at that point.
“Here’s the man that did it. We’ve had trouble with this man before. Come out and make sure that’s the one.”
The jury found appellant guilty of burglary. After a subsequent hearing as a habitual offender, he was sentenced to 37 years imprisonment and fined $10,000.
The appellant raises two points of error, both of which he contends pertain to the two officer comments about prior bad acts of the appellant. First, he argues that the trial court erred by denying his motion for a mistrial based on the testimony of Officer Wages, “We’ve had previous occasions and stuff. . . .” Secondly, he refers to Officer McMahen’s comment, “We’ve had problems with him in the past. . . .” The two statements, according to Hall, violate the proscription against testimony of prior bad acts in Ark. R. Evid. 404(b).
This Court has observed that there is always some prejudice that results from the mention of a prior bad act in front of the jury. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). In instances where the infraction creates minimal prejudice the proper remedy is an objection to the evidence and an admonition or instruction to the jury to disregard the remark. Sullinger v. State, 310 Ark. 691, 840 S.W.2d 797 (1992). A motion for mistrial is only appropriate where the error is beyond repair and cannot be corrected by any curative relief. Id.; Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993). The trial court has wide discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for abuse of discretion or manifest prejudice to the complaining party. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).
We first address the testimony of Officer Wages. We are not convinced that the jury interpreted his incomplete sentence about “previous occasions and stuff” as a reference to prior bad acts of the appellant. Furthermore, we have held that remarks, which amount to inadvertent references to previous illegal conduct, may be cured by an admonition from the trial court ordering the jury to disregard the statement. Mitchael v. State, 309 Ark. 151, 828 S.W.2d 351 (1992); Strawhacker v. State, supra. In the instant case, no admonition was requested by defense counsel. In sum, the statement was vague and any problem resulting from it could have been cured by an instruction to the jury. We cannot say that the court abused its discretion in denying appellant’s motion for a mistrial. Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985).
Turning to the testimony of Officer McMahen, defense counsel failed to object to the perceived prejudicial comment. Without a timely objection, the issue is not preserved for appeal. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). The reason, no doubt, for the failure to object is that defense counsel himself elicited the comment at issue on cross examination. That circumstance, however, does not relieve counsel from objecting or asking that the jury be instructed to disregard the statement. On this point, we have held that an appellant cannot claim reversible error on testimony that he or she chose to introduce. Kaestel v. State, 274 Ark. 555, 626 S.W.2d 940 (1983). In short, Hall should have taken some measures to preserve the issue for appeal, and he did not do so.
This brings us to Hall’s final point where he contends that the trial court should have admonished the jury to disregard the statements of Officers Wages and McMahen and erred in failing to do so. This point has no merit. It is the defendant’s duty to request a curative instruction. Sullinger v. State, supra; Woods v. State, 40 Ark. App. 204, 846 S.W.2d 186 (1993). We again recognize that no such relief was requested by the defense counsel. The appellant’s failure to ask for an admonition at trial cannot inure to his benefit on appeal. Sullinger v. State, supra; Jurney v. State, 298 Ark. 91, 766 S.W.2d 1 (1989).
Affirmed. | [
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Robert L. Brown, Justice.
William Whitson, the appellant, was found guilty of Driving While Intoxicated and violation of the Implied Consent law in the Municipal Court of Springdale. He appealed to the Washington County Circuit Court. Following a jury trial, he was again found guilty of both charges. Based on the jury verdict, his license was suspended for six months, a $ 150 fine was levied against him, and he was sentenced to three days in the Washington County Jail. On appeal, he raises the following issues: (1) whether the trial court erred by admitting testimony about the Horizontal Gaze Nystagmus (HGN) Test; (2) whether the trial court erred by permitting testimony of Whitson’s post-Miranda silence; (3) whether the trial court erred by not ruling on the constitutionality of the Arkansas Implied Consent Law; and (4) whether the trial court erred by allowing the State to inquire about a prior bad act committed by the appellant.
None of the errors asserted requires reversal of this case, and we affirm.
During the early morning hours of June 1, 1991, the Springdale Police Department responded to a call regarding a problem at a residence jointly owned by Whitson and a friend of longstanding, Penny Curtis. Officer Robert Scott Lewis of that department arrived at the appellant’s residence at 2:05 a.m. At trial, Officer Lewis testified that he found the appellant to be “highly intoxicated.” He was drinking a beer when the officer arrived, and his eyes were bloodshot and glassy. His speech was also slurred, and his movements were slow and sluggish. The police officer advised the appellant that “he should not drive at all.” Fearing that Whitson might try to leave, the officer notified the Springdale dispatcher of the license number on Whitson’s black Ford Ranger truck.
Approximately two hours later at 4:20 a.m., Officer Lewis observed Whitson’s truck going east on Highway 412 towards Huntsville. The officer followed the truck and saw the appellant cross the center line two times. He stopped the appellant, and when Whitson exited his vehicle, Officer Lewis approached him and told him that he “knew he had been drinking” and requested him to take field sobriety tests to determine his level of intoxication. Again, the officer noted that the appellant’s eyes were very bloodshot, his speech was slurred, he smelled of intoxicants, and he was swaying and leaning against the truck.
Officer Lewis gave the appellant three sobriety tests. He first administered the one-leg-stand test. Prior to giving the appellant final instructions about the test, the officer asked him if he had any knee, back, or feet problems. The appellant said that he had back problems. The appellant failed this test. The second test conducted was the finger-to-nose test. While giving Whitson instructions for this test, the officer was told that Whitson’s left arm did not function properly, and he would only be able to perform the test with his right hand. Officer Lewis then had the appellant perform-the test with his right hand only. The appellant also failed this test.
The third test administered by the police officer was the horizontal gaze nystagmus test (HGN test). Officer Lewis later testified that he had taken an eight-hour night course on HGN testing at the State Police Academy. In Whitson’s case, he tested each eye separately and administered three drills for each eye. The officer first requested that Whitson follow the tip of his pen with one eye without moving the head; secondly, that he move his eye fully to the corner; and thirdly, that he follow the pen with his eye to a forty-five degree angle. Officer Lewis stated at trial that he looks for several things during the tests, including a lack of smooth pursuit by the eye and the presence of nystagmus or involuntary twitching and jerking in the eye. He stated that nystagmus indicates the presence of alcohol in the system and alcohol actually increases nystagmus to a measurable degree. He concluded that the tests showed nystagmus for both eyes under all three tests which indicated the presence of alcohol in the system. Whitson was then placed under arrest for driving while intoxicated.
The police officer later testified that had Whitson passed two of the three field sobriety tests, he would not have arrested him, but he failed all three. After his arrest, Whitson was taken to the police station for a breathanalysis where he was read the Implied Consent Warning and Right to Another Test form by Officer Lewis. Whitson indicated to the police officer that he understood the form and that he would take the test, and he checked the answers to questions on the form and initialed them. Whitson either refused or was unable to blow into the machine on two occasions. He attributed this inability at trial to a scarred lung condition. He was charged with DWI and violation of the Implied Consent Law.
Whitson was tried and convicted of both charges in Springdale Municipal Court. He then appealed to Washington County Circuit Court. Prior to trial, Whitson moved to dismiss the Implied Consent charge on grounds that the law is unconstitutional, both facially and as applied. Specifically, he argued that Ark. Code Ann. § 5-65-205(c) denies the accused the right to a jury trial because it speaks in terms of a judge deciding the issue. As a concomitant, he contended that only a judge could determine violation of implied consent under the statute — not a jury. The trial court denied the motion to dismiss.
A jury was impaneled to hear the DWI and implied consent charges in circuit court. Whitson was convicted on both charges and assessed three days in jail and $150 fine for DWI and a six-month suspension of his drivers license for violating the Implied Consent Law. Judgment was then entered.
I. HGN TEST
On appeal, the appellant first argues that the trial court-erred in admitting Officer Lewis’s testimony about the HGN test because (1) the test was not relevant, and (2) a preliminary Prater hearing to determine relevancy was not conducted. He cites this court to Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), and Middleton v. State, 29 Ark.App. 83, 780 S.W.2d 581 (1989), and argues that a mistrial should have been declared.
In 1986, the Arizona Supreme Court defined nystagmus as follows:
Nystagmus is an involuntary jerking of the eyeball. The jerking may be aggravated by central nervous system depressants such as alcohol or barbiturates. (Citation omitted.) Horizontal gaze nystagmus is the inability of the eyes to maintain visual fixation as they are turned to the side.
State v. Superior Court of County of Cochise, 149 Ariz. 269, 271, 718 P.2d 171, 173 (1986). In 1988, an American Law Reports Annotation further stated that HGN testing had been in use for 30 years but had not been widely used until recently. Horizontal Gaze Nystagmus Test: Use In Impaired Driving Prosecution, 60 ALR4th 1129, § 1, p. 1131 (1988).
We note initially that Officer Lewis did not testify to a specific blood alcohol percentage after administering the HGN test but only concluded that the test indicated the presence of alcohol. The pertinent DWI statute describes two unlawful acts — one for driving while intoxicated and one for driving with .1 percent blood alcohol content as proven by chemical testing:
(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10 %) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.
Ark. Code Ann. § 5-65-103 (1987). “Intoxicated” is further defined as ingesting alcohol to such a degree that the driver’s motor skills are substantially altered and a clear and substantial danger to the driver or to others exists. Ark. Code Ann. § 5-65-102(1) (Supp. 1991).
In 1989, the Court of Appeals concluded that the testimony of an arresting officer was insufficient to provide an evidentiary foundation to determine the percentage of alcohol content in the driver’s blood. Middleton v. State, supra. In that case, the officer testified that the driver’s blood alcohol level was. 15 or. 16 percent based solely on the HGN test.
The fact that the police officer in Middleton v. State testified to fixed percentages of blood alcohol content under § 5-65-103(b) distinguishes that case from the case at bar. Here, the HGN test administered by Officer Lewis was not used to quantify a precise percentage of blood alcohol content but rather to show some indication of alcohol consumption in conjunction with other field sobriety tests. Using the test to identify a precise blood alcohol content under § 5-65-103(b) is vastly different from testing to indicate some alcohol in the system for purposes of intoxication under § 5-65-103(a). In a later case, the Court of Appeals had occasion to consider the HGN test when the testing officer did not attempt to identify precise blood alcohol content. Brown v. State, 38 Ark. App. 18, 827 S.W.2d 124 (1992). In Brown, the Court of Appeals held that where there was no testimony of specific blood alcohol percentages by the police officer but only that the HGN test showed the driver had ingested substances that would make him an unsatisfactory driver, no error occurred. The facts of the Brown case more closely approximate those in the present case.
We note that other jurisdictions have also been circumspect about permitting police officers to testify to percentages of blood alcohol content predicated solely on the HGN test. See, e.g., State v. Superior Court of County of Cochise, supra; People v. Loomis, 156 Cal. App. 3d Supp. 1, 203 Cal. Rptr. 767 (1984). Yet, when blood alcohol content is not quantified by the testifying officer, introduction of nystagmus as some evidence of impairment due to alcohol has been allowed. See, e.g., State v. Superior Court of County of Cochise, supra (dictum); State v. Clark, 762 P.2d 853 (Mont. 1988). In County of Cochise, the Arizona Supreme Court assessed the use of HGN testing to prove blood alcohol content or, alternatively, to prove that one was “driving under its influence.” The Arizona Court drew a clear distinction between 1) using nystagmus to prove a percentage of blood alcohol content under one Arizona statute comparable to Ark. Code Ann. § 5-65-103(b), and 2) using it to prove driving under the influence of alcohol under a second statute much like Ark. Code Ann. § 5-65-103 (a). The court denied the use of HGN testing to establish blood alcohol content but did not prohibit introduction of the results of the test to prove driving under the influence.
We agree that testimony of the driver’s nystagmus is relevant for the limited purpose of generally indicating the presence of alcohol. In the case at bar, Whitson was charged with driving while intoxicated, not with operating a vehicle with a blood alcohol content of. 1 percent or more, and the jury was only instructed on the § 5-65-103(a) offense. Also, Officer Lewis’s training and qualifications are not contested on appeal. Moreover, the HGN test was not used to fix a percentage of blood alcohol content under § 5-65-103(b) but rather to indicate impairment. Indeed, no percentages of blood alcohol were testified to by Officer Lewis. We hold, therefore, that testimony of Whitson’s nystagmus was relevant as some proof of intoxication under § 5-65-103(a).
We turn next to the issue of whether the trial court erred in not conducting a preliminary Prater inquiry on the relevancy of the test. In 1991, this court announced the relevancy approach as our standard for determining the admissibility of novel scientific evidence which we described as a more liberal test than the Frye standard which looked to general acceptance of the procedure in question in the scientific community. Prater v. State, supra. The relevancy approach requires that the trial court conduct a preliminary inquiry of any novel scientific evidence and focus on: (1) the reliability of the process used to generate the evidence; (2) the possibility that the jury would be overwhelmed, confused or misled by the evidence; and (3) the connection between the evidence to be offered and the disputed factual issue in the particular case.
The State clearly did not consider HGN testing to be “novel scientific evidence” warranting a preliminary Prater inquiry under these facts. As already indicated, HGN testing has been in existence for 35 years, and officers are trained in this technique at the State Police Academy. Moreover, Whitson, who asked for the discrete hearing, made no showing of novelty but merely argued the absence of reliability and relevancy. We agree, based on the record before us, that the results of nystagmus testing for purposes of showing some indication of alcohol was not novel scientific evidence requiring a preliminary inquiry. Our opinion, however, might well be different had the officer attempted to quantify blood alcohol content based solely on the HGN test.
In sum, we hold that the results of the HGN test were relevant to show alcohol consumption in conjunction with the results of other field sobriety tests performed. We note in this holding that the training and qualifications of Officer Lewis to administer the test are not in dispute. We further underscore the point that the test was not used to quantify blood alcohol content and, thus, the novelty of the test was not such as to require a discrete Prater inquiry. The motion to declare a mistrial was properly denied.
II. LACK OF COOPERATION
The appellant next argues that his right to remain silent under the Fifth Amendment was violated after he was given Miranda warnings in contravention of Doyle v. Ohio, 426 U.S. 610 (1975). He specifically objects to testimony given by Officer Lewis that during the booking process he was cooperative “[t]o a certain degree” and “refused to answer certain questions.” The State counters that this issue was not preserved for appeal because at trial Whitson argued that his refusal to answer questions was irrelevant whereas on appeal he has changed his argument to violation of Due Process on the basis that the officer’s remarks constituted a reference to his post-Miranda silence.
It is well settled that only an issue stated clearly and specifically below will be reviewed on appeal. See, e.g., Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990); Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984). Where an appellant objects to testimony on one theory at trial, we will not consider a distinct argument raised for the first time on appeal. Segerstrom v. State, 301 Ark. 314, 783 S.W.2d 847 (1990), Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983). The reason is simple. The trial court was not given an opportunity to consider the point now raised. Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992); Gustafson v. State, 267 Ark. 83, 593 S.W.2d 187 (1980).
In the instant case, Whitson objected to the introduction of a Miranda warning form which he apparently refused to sign. The State sought to introduce the form as evidence of the appellant’s lack of cooperation. The court sustained a defense objection to its introduction but permitted inquiry into Whitson’s “overall degree of cooperation” on the basis that this was probative of intoxication. Following that ruling, Officer Lewis testified, “Mr. Whitson was cooperative to a certain degree. He refused to answer certain questions.” Defense counsel objected again, and the court ruled a second time that lack of cooperation was relevant to the issue of intoxication.
Though Whitson protests vehemently that this is not the case, it is obvious to us that his argument has changed on appeal. Whitson now argues that his Due Process rights were violated under Doyle v. Ohio, supra, by allowing interrogation which alluded in any respect to his post-Miranda silence. This is a wholly distinct and dissimilar argument from his objection concerning the relevancy of a refusal to sign the Miranda form which he made at trial. There, the argument made was that a refusal to sign a Miranda form was not pertinent to the issue of lack of cooperation. We will not consider constitutional issues raised for the first time on appeal, Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993), and we conclude that this issue is not properly preserved for appeal.
As a footnote to this issue, we observe a potential inconsistency between advising a defendant of the right to remain silent as part of the Miranda warnings and using any subsequent refusal to answer questions as evidence of uncooperativeness and, ultimately, of intoxication. The privilege against self-incrimination embraced within the right to remain silent is fundamental. Using that silence to prove lack of cooperation, if appropriately raised, is clearly prohibited. However, a defendant could well refuse to answer certain questions in a spirit of rebellion that have nothing to do with guilt or innocence. In the case before us, we can only surmise what brand of “questions” Officer Lewis was alluding to in his testimony.
III. IMPLIED CONSENT LAW
Next, Whitson charges that the Arkansas Implied Consent Law is unconstitutional on its face and as applied in that it provides for a judicial determination and not trial by jury. Because the judge is the factfinder under Ark. Code Ann. 5-65-205 (c) (1987), according to the appellant, the law deprives defendants of their right to a jury trial. This point was argued by appellant as a pre-trial motion, but the trial court refused to rule on the constitutionality of the statute, stating that the motion was not timely filed and the Attorney General had not been given notice.
We hold that this point is now academic because the appellant did receive a jury trial on the implied consent charge. He is not a member of the class adversely affected and, therefore, lacks standing to raise the issue that § 5-65-205(c) does not provide for a jury trial. Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991). Furthermore, because the appellant has received a jury trial the matter is moot, and there is no relief left to be afforded. See Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993).
IV. PRIOR BAD ACT
For his final point, the appellant argues that the trial court erred by allowing the State to elicit testimony from Peggy Curtis, that he had previously fought with her and shoved her. We note that the appellant’s defense was based in large part on the fact that he was physically unable to pass the field sobriety tests due to back and arm injuries. The colloquy on this issue was as follows:
PROSECUTOR: Is he able to engage in fighting?
CURTIS: I have never seen him fight.
PROSECUTOR: You haven’t?
CURTIS: No.
PROSECUTOR: He has fought with you, hasn’t he?
CURTIS: He has never hit me.
PROSECUTOR: Okay, I want to show you a document here that I want to call State’s Exhibit Number 3. Is this in your writing? An affidavit you filled out at my office.
CURTIS: Yes, he didn’t hit me, he shoved me.
The defense first objected on grounds that this was impeachment on a collateral matter by using extrinsic evidence and later added objections to the State’s introduction of the affidavit on the basis of relevancy and the resulting prejudice which would outweigh the probative value of the document. The trial court denied introduction of the affidavit but permitted the prosecutor to inquire further into the “rough-housing” between Whitson and Peggy Curtis as relevant to Curtis’s truthfulness.
First, we note that Whitson is entirely correct that a witness cannot be impeached by extrinsic evidence on a collateral matter. Ark. R. Evid. 608(b); see also Sutton v. State, 311 Ark 435, 844 S.W.2d 350 (1993). The trial court did properly deny admission of the affidavit into evidence. We turn, therefore, to the issue of the cross examination itself. Even though the extent of Whitson’s physical abilities was a crucial issue in this case, we consider questioning about whether the appellant could hit, shove, or push Curtis to be a collateral matter and, in addition, an improper area of examination for the very reason argued by the appellant — its probative value was outweighed by the potential prejudicial impact. Ark. R. Evid. 403. Nonetheless, we note where later in her testimony, Curtis answered affirmatively that the appellant was rough-housing her and had pushed her on the day he was arrested. Whitson made no objection to this subsequent testimony. Hence, we conclude that any error committed by the prosecutor’s first questioning which was objected to by defense counsel was rendered harmless by Curtis’s subsequent testimony to the same effect, though it related to a separate incident. See Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986).
Affirmed. | [
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David Newbern, Justice.
Kevin Burkhart states four points for reversal of his conviction of capital murder for which he was sentenced to life imprisonment without parole. He contends a mistrial should have been declared when the prosecutor referred to another homicide in opening statement. We find the statement was barely, if at all, prejudicial and not a sufficient basis for mistrial. He argues the court erred in not suppressing evidence based on an involuntary statement given by Alvin Edward Morris who was tried separately for his participation in the crime. We hold Burkhart lacked standing to question possible violation of Morris’s constitutional rights. Burkhart also contends it was error to admit Morris’s testimony to the effect that Morris had been convicted of the crime and sentenced to life without parole. Because the basis of objection argued on appeal was not raised in the trial court, we decline to review it. Finally, Burkhart contends it was error to admit certain photographs of the crime scene which were unnecessarily inflammatory and duplicative. We cannot reach the point fully, as we have been furnished only black and white versions of the pictures made on a photocopy machine rather than originals or copies of what we presume to have been the color photographs admitted at trial. To the extent we can tell what was in the pictures admitted as exhibits, we find nothing unfairly prejudicial. The conviction is affirmed.
Kevin Burkhart and Eddie Morris, young men high on marijuana, walked into the Mountain Home residence of an elderly couple, Victor and Minnie Magnus, beat and kicked them to death, stole their money, and went to Alabama. Kevin’s brother, to whom the two described their crime, turned them in. Morris was tried first and convicted. He testified at Burkhart’s trial and told of how the two had planned to rob but not kill the victims and that the idea was Burkhart’s.
1. Opening statement
At the outset of his opening statement the prosecutor apologized to the jury for being “discombobulated” as a result of having just received word of the commission of another homicide which had occurred in another county in his district. Burkhart’s counsel objected on the ground that the remark was immaterial and prejudiced the jury. He asked for a mistrial and alternatively that the prosecutor be admonished. The mistrial motion was denied, and the prosecutor was not admonished.
A mistrial is to be granted only where an admonition to the jury would not be sufficient to remove the unfair prejudice which may have resulted from the event in question. Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988). If there is no request that the jury be admonished it is not error to fail to do so. Vaughn v. State, 289 Ark. 31, 709 S.W.2d 73 (1983). The unfair prejudice, if any, resulting from the prosecutor’s remark was not so drastic as to warrant a mistrial, and there was no request that' the jury be admonished.
2. The tennis shoe
Tennis shoes discarded after the crime were found by the police as a result of in-custody statements given by Burkhart and Morris. The state sought to introduce one of the shoes as one which made tracks at the scene of the crime. The state did not introduce Burkhart’s statement. Burkhart objected to introduction of the tennis shoe as an exhibit on the ground that Morris’s statement had not been voluntary and the shoe should be excluded because it would not have been found but for Morris’s statement. He contends it was fruit of the poisonous tree and its admission violated his Fourth Amendment rights, citing Wong Sun v. United States, 371 U.S. 471 (1963).
Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128 (1978). Evidence is not to be excluded unless the admission of it would violate the constitutional rights of the defendant on trial as opposed to the rights of some other person. United States v. Payner, 447 U.S. 727 (1980).
3. Morris’s sentence
Except for some objections about leading questions, there was no objection to Morris’s testimony, upon direct examination by the prosecutor, in which he detailed the events of the crime and his feelings about having participated. However, when he was asked about the sentence he had received an objection was made. Burkhart’s counsel stated to the court only that Morris’s testimony that he had received life without parole was “irrelevant” and “highly prejudicial.” The prosecutor responded that he had thought Burkhart would want the jury to have that information.
In his brief on appeal Burkhart argues that the testimony violated his right to equal protection of the laws because, had Burkhart been tried first, Morris would not have felt free to testify against him. This constitutional argument was not presented to the trial court. To have it considered on appeal, even a constitutional argument must have been made at the trial. See Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984), which also involved raising an equal protection argument on appeal which had not been stated as a basis of objection at trial. The ground for objection may not be changed on appeal to one which was not raised at trial, as we will not consider an objection raised for the first time on appeal. Hegwood v. State, 297 Ark. 218, 760 S.W.2d 859 (1988); Hart v. State, 296 Ark. 290, 756 S.W.2d 451 (1988).
4. The photographs
Relying primarily on Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), Burkhart complains that the photographs of the crime scene were so gory and duplicative that he was unfairly prejudiced because of the inflammatory effect of the pictures on the jury. It is impossible for us to address this question fully because the record contains only machine photocopied black and white reproductions of the pictures. We cannot see the details of which Burkhart complains, such as blood on the objects depicted, because the pictures are not in color. We do not know whether the original photographs were “gory” or not.
While some of the pictures are very similar, such as two taken of Mrs. Magnus’s body from different angles, all of them depict the crime scene. They do not give rise to reversible error as did those in the-Berry case in which autopsy pictures introduced by the prosecution were found by this court to have been highly objectionable.
5. Other error
We have examined all of the objections raised by Burkhart pursuant to Arkansas Supreme Court and Court of Appeals Rule 11(f), and we find no prejudicial error.
Affirmed.
Price, J., not participating. | [
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Darrell Hickman, Justice.
The trial judge, upon learning the circumstances of the forgery charge levied against Marvin Eugene Brooks, decided Brooks should not be convicted of a felony and entered the following order: “Whereupon, the Court over the objection of the State amends the charge to THEFT OF PROPERTY, a misdemeanor....” The state appeals seeking a declaration of error under a statute and rule that permit that procedure. Ark. Code Ann. § 16-91-112(b) (1987); A.R.Cr.P. Rule 36.10(c); Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984).
We deem the question sufficiently important to the administration of justice to warrant review.
The duty of charging an accused with a felony is reserved either to the grand jury or the prosecutor. Ark. Const, amend. 21, § 1. The trial judge encroached upon the prosecutor’s constitutional duties and breached the separation of powers doctrine.
In a similar case, United States v. Edmonson, 792 F.2d 1492 (9th Cir. 1986), cert. denied, 479 U.S. 1037 (1987), a federal judge treated a felony charge as a misdemeanor and the appeals court stated:
[T]he decision whether to prosecute, and the decision as to the charge to be filed, rests in the discretion of the Attorney General or his delegates, the United States Attorneys. The Executive Branch has ‘exclusive and absolute discretion to decide whether to prosecute.’ The discretion to prosecute carries with it the discretion to choose the statute that will be charged. The district court has no power to deny the United States Attorney his prerogative under the Separation of Powers doctrine. (Citations omitted.)
See also Petition of United States, 306 F.2d 737 (9th Cir. 1962); State v. Laury, 397 So.2d 960 (Fla. App. 1981).
Error declared. | [
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David Newbern, Justice.
Mrs. Gula Lytle appeals the chancellor’s order reducing the alimony she is to receive from Dr. Jimmie E. Lytle from $1500 to $250 per month. We cannot say that the factual findings of the chancellor were, as Mrs. Lytle contends, clearly erroneous, nor do we find we should reverse the chancellor’s conclusion which we review de novo.
Upon a prior appeal we affirmed a decree divorcing the parties although we remanded the case because of an error in property division. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979). The alimony award was not contested in the earlier appeal. In 1988, Dr. Lytle petitioned the court to reduce the alimony because of changed conditions. In his order the chancellor recited the following:
(a) At the time of the divorce, Ms. Lytle received approximately $135,000.00 in liquid assets plus other property, and thus, over the years, has had available to her the investment income from that property, thus alleviating her need for alimony.
(b) Dr. Lytle’s income has decreased in recent years due to his cutting back in his medical practice in preparation for semi-retirement or full retirement.
(c) Dr. Lytle has re-married.
(d) Most importantly, the proof at the time of the divorce from Ms. Lytle was that she was not able to work and earn any money for herself because of her medical problems. However, since the divorce she has been employed earning a substantial income for herself.
(e) Due to the fact she was working plus receiving investment income plus receiving full alimony award (which was fixed on the assumption that she would not be able to work), Ms. Lytle should have been able to accumulate substantial savings over and above her needs for living expenses. The facts indicate that she did, in fact, accumulate substantial savings and passed such savings along to her children by way of periodic and substantial gifts to them.
Mrs. Lytle’s brief states that the standard of review in challenging the chancellor’s finding of changed circumstances is that we may not reverse unless we determine the findings to have been clearly erroneous, citing Nix v. Nix, 17 Ark. App. 219, 706 S.W.2d 403 (1986). The Nix case involved a child custody order. The court of appeals wrote that the findings of the chancellor resulting in a change of a custody order were to be affirmed unless shown to be clearly erroneous or clearly against the preponderance of the evidence, citing Ark. R. Civ. P. 52(a). The decision of the court of appeals, however, was apparently that the conclusion of the chancellor, which may be reviewed de novo, based on the facts he had found, was proper. We have held that, even in a de novo review we will not set aside the chancellor’s decision unless it is “clearly wrong.” Pinkston v. Pinkston, 278 Ark. 233, 644 S.W.2d 930 (1983).
Mrs. Lytle challenges some of the factual findings made by the chancellor as well as some of his conclusions based on those findings.
Tax records showed that Dr. Lytle’s adjusted gross income between 1981 and 1987 peaked at $117,298 in 1983. It was $91,688 in 1984, $91,628 in 1985, $87,650 in 1986, and $77,963 in 1987. He is remarried, and his wife works in his clinic as a nurse without pay. He has been involved in property transactions with other physicians, suffering some reverses, and has incurred some debt. He testified that he was having to slow down his medical practice because of health problems and age and has, until recently, been paying the salary of an associate. He now has an arrangement with the associate whereby he will receive half the associate’s medical practice income in exchange for supplying space, equipment, and other support for his practice. Dr. Lytle conceded he was beginning to earn some income from the arrangement.
Mrs. Lytle testified she recalled her testimony at the divorce trial in which she told the chancellor of a back problem and back surgery she had undergone. There was thus reason to conclude that her physical condition would affect her ability to work if not preclude her from working. At the hearing on the modification petition she testified the problem had not reoccurred and she has been steadily employed, although in very low-paying jobs, since the divorce. The evidence showed that she had given large sums of money and other gifts to the adult Lytle children, one of whom is now a surgeon, and another of whom is in college at age 29. The money for these gifts apparently came from the property Mrs. Lytle received at the time of the divorce. She retains a substantial stock portfolio and a retirement account. Mrs. Lytle describes these facts as creating the “crux of the case.” She argues that the alimony granted to her was not conditioned upon her inability to work and that she should not be penalized for her generosity toward her children.
While it is correct to say that the alimony was not conditioned on Mrs. Lytle being able to work, her disability at the time of the divorce was a fact in evidence, and that circumstance has undisputedly changed. It cannot be denied that had she not given away assets which could have produced income to her, her standard of living would be higher.
The evidence with respect to Dr. Lytle’s financial condition and his prospective earning capacity is conflicting. Mrs. Lytle notes that while claiming to be slowing down, Dr. Lytle has entered into an arrangement with other doctors to open an afterhours clinic. She does not dispute his testimony that he has stopped accepting new obstetrics patients and that he has health problems which are slowing him down.
We cannot say that any of the fact findings in the chancellor’s order are clearly erroneous. Nor do we, in our de novo review, necessarily disagree with the conclusion he reached to lower the alimony payments. The testimony about Dr. Lytle’s finances was somewhat complicated as was that with respect to Mrs. Lytle’s assets, both those expended and those which remain. As we have held many times, we must take into consideration the superior position from which the chancellor evaluates the credibility of the witnesses. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Sowards v. Sowards, 243 Ark. 821, 422 S.W.2d 693 (1968). We cannot say the result reached was clearly wrong.
Affirmed.
Purtle, J., dissents.
Hays, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
This appeal involves conversion of a checking account and savings account and wrongful dishonor of checks written on the checking account. Jurisdiction is pursuant to Ark. Sup. Ct. R. 29(1 )(c).
In the fall of 1985, the appellant, City National Bank of Fort Smith (CNB) had two customers named Larry Goodwin, the appellee, Larry J. Goodwin, and Larry K. Goodwin. In November, 1985, two loans of Larry K. Goodwin were in default. On November 26, 1985, a collection officer, Jim Geels, initiated a process to take money from Larry K. Goodwin’s deposit accounts and credit them to Larry K. Goodwin’s loan. Before he withdrew the funds, he pulled Larry K’s loan file and checked the Social Security number on a document in the file. The Social Security number shown for Larry K. Goodwin was, in fact, Larry J. Goodwin’s number. After checking this number in the computer, Geels took $3,229.07 from the joint checking and savings accounts of Larry J. Goodwin and his wife, Sandra Goodwin (Goodwins), instead of the accounts of Larry K. Goodwin.
On Saturday, November 30, Ms. Goodwin received written notice from CNB that four checks she had written between November 21 and 26, 1985, to four merchants (Harps, Vaughn Drug, Radiology Services, and the Colony Shop) had been returned for insufficient funds and that the Goodwins’ joint checking account had a zero balance. Ms. Goodwin went to the central branch on the same day, and someone in the loan department informed her that there was no money in the Goodwins’ checking account and that there was also a hold on their savings account.
After Ms. Goodwin told the employee that there should be funds in the accounts, she was referred to a loan officer, who told her that it appeared Jim Geels had taken the money to pay someone else’s loan. Two unsuccessful attempts to contact Geels were made. Ms. Goodwin requested that certified letters of apology be sent and calls made to the merchants involved, and that her money be returned.
On Monday, December 2, she called three of the businesses to which she had written the checks. Apparently, none of them had received a call or letter. Later in the day, Ms. Goodwin met with Geels at the main bank; Geels told her that he had taken money from the wrong account and that letters would be sent to the persons who received the returned checks stating that the bank was at fault. On the same day, Geels redeposited the money into the accounts and informed her he had done so. Later that day, Geels dictated letters to the businesses that received the returned checks. He mailed the letters on the next day, December 3. No check written on the checking account subsequent to December 2, 1985, was dishonored.
On Thursday, December 5, the Goodwins received notice from CheckRite that the check written on November 21 to Vaughn Drug had been returned; notice from Radiology Services that the check written on November 21 had been returned; notice from Harps that the check written on November 26 had been returned; a bank statement from CNB, dated November 29, postmarked December 3, showing a zero balance in both their checking and savings accounts; and copies of four letters from CNB to Harps, Vaughn Drug, Radiology Services, Colony Shop, each stating that the error was due to a mistake by the bank.
On December 16, the Goodwins received a bank statement dated December 11 reflecting a balance of $1,560.91 in their checking account and that a number of checks had cleared the account between December 2 and 11. The statement did not reflect the status of the savings account. About this time, the Goodwins received another notice from CheckRite that a check written on November 25 had been returned.
The Goodwins received a bank statement on January 10, 1986, reflecting money in the checking account, but again failing to contain anything concerning the savings account. On January 14, 1986, Ms. Goodwin closed both accounts and was paid the correct balances due.
Subsequently, CNB learned from a letter from the Good-wins’ attorney that other checks written to merchants on November 12 and 21 had also bounced. CNB wrote a letter to one merchant and called the other, stating that it was the bank’s fault that the checks were returned. The Goodwins did not notify the bank concerning any discrepancy or omission that occurred after December 2.
On February 6, 1986, the Goodwins filed suit against CNB based upon two causes of action. First they alleged that CNB willfully, maliciously, and intentionally, or in the alternative, acted with such reckless disregard of the consequences from which malice may be inferred, withdrew all the funds from their accounts and converted the funds to its own use. Secondly, they alleged that CNB wrongfully dishonored seven checks. For each cause of action, the Goodwins asked for $20,000.00 in compensatory damages and $144,706.06 in punitive damages.
At the close of the Goodwins’ case, CNB moved for a directed verdict on the issue of punitive damages on both causes of action. The trial court denied the motion. The jury found for the Goodwins and awarded compensatory damages of $10,000.00 and punitive damages of $30,000.00. The court entered judgment for $40,000.00, plus interest and costs. Thereafter, CNB moved for judgment notwithstanding the verdict, or in the alternative for a new trial, on the basis that there was insufficient evidence to support the verdict. The court denied the motion. From this order, CNB appeals.
CNB argues ten points for reversal. We reverse and remand on the ground that the trial court should have granted a directed verdict on the issue of punitive damages and, as a result, the trial court further erred in admitting into evidence two exhibits on the issue of punitive damages. Accordingly, we do not address CNB’s other four contentions relating solely to punitive damages. However, it is necessary to consider three of the four remaining issues inasmuch as we remand to the trial court.
I. PUNITIVE DAMAGES/ADMISSIBILITY OF EXHIBITS
CNB contends that the trial court erred in failing to direct a verdict on the issue of punitive damages and in admitting into evidence plaintiffs’ Exhibit No. 69, a chart showing punitive damages, and Exhibit No. 71, a statement of CNB’s financial condition on December 31, 1985, in that these exhibits were admissible only on the issue of punitive damages.
In considering the denial of a motion for directed verdict, this court views the evidence in a light most favorable to the party against whom the motion is sought and gives it its highest probative value, taking into account all reasonable inferences deducible from it. We affirm if there is substantial evidence to support the verdict. James v. Bill C. Harris Construction Co., 297 Ark. 435, 763 S.W.2d 640 (1989).
This court has stated that conversion is “the exercise of dominion over property in violation of the rights of the owner or person entitled to possession.” Thomas v. Westbrook, 206 Ark. 841, 177 S.W.2d 931 (1944). See also McKenzie v. Tom Gibson Ford, Inc., 295 Ark. 326, 749 S.W.2d 653 (1988); Ford Motor Credit v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). Conversion can only result from conduct intended to affect property. W. Prosser, Handbook of the Law of Torts § 15 (5th ed. 1984). See also First National Bank of Brinkley v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984); Restatement (Second) of Torts § 222 A. (1965). The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the plaintiffs rights. W. Prosser, supra.
Punitive damages are not recoverable in a conversion action simply because the defendant intentionally exercised control or dominion over the plaintiffs property. Simply put, the act of conversion in itself will not support an award of punitive damages. Instead, the plaintiff must show that the defendant intentionally exercised control or dominion over the plaintiffs property for the purpose of violating his right to the property or for the purpose of causing damages. See Walt Bennett Ford, Inc. v. Keck, 298 Ark. 424, 768 S.W.2d 28 (1989); Herring, supra. See also McKenzie, supra.
In Walt Bennett Ford, supra, a buyer purchased an automobile from Walt Bennett Ford. Mechanical and other defects immediately developed, and the buyer took it back to the dealer for repair on at least two occasions. On the first occasion, the dealer provided a substitute automobile for the buyer to use while his car was being repaired. On the second occasion, the buyer told the dealer that he would be out of the state for six to eight weeks and needed a “loaner” automobile to use while his car was being repaired. He testified that he was told that there would be no charge for the “loaner.” On both occasions, the buyer signed a lease agreement form but testified that the form was blank when he signed it and that he was told that the form was only necessary to waive liability insurance on the substitute automobile.
When the buyer returned to pick up the car seven weeks later, the dealer demanded $1,200.00 in rent for the use of the substitute automobile. Upon the buyer’s refusal to pay, the dealer reduced the rental to $360.00, calculated to cover the time that the dealer contended the car had been repaired and available to be picked up. The buyer testified that he had not received prior notice that the automobile was ready and refused to pay the reduced demand. Because of the buyer’s refusal to pay rental, the dealer declined to surrender the car, and its service manager told the buyer that the dealer would keep the car until the buyer paid the rental claimed. The buyer left the dealership on foot.
It was undisputed that all repairs to the car were warranty repairs, that the buyer owed nothing for the repairs, and that the lease agreement form for the substitute automobile did not grant the dealer a possessory lien on the automobile being repaired.
On appeal, the dealer contended that the trial court erred in submitting the issue of punitive damages to the jury and that the jury’s award of punitive damages was unsupported by the evidence. This court disagreed, stating:
Appellant’s conduct of retaining the Yugo even through the trial, thirteen months after the demand for surrender, without any claim of mistake or privilege or other legal right to do so, presents a submissible issue on punitive damages. The jury reasonably could have concluded that appellant withheld Keck’s property, his means of transportation, with the intent of causing him such inconvenience and damage that he would be coerced into payment of a questionable debt. Appellant continued his course of conduct even after it was sued for conversion, obtained legal counsel and filed a counterclaim for the disputed rental. The evidence is sufficient to support a finding of intent to cause damage.
There is no evidence in the case at bar that CNB converted the Goodwins’ money for the purpose of violating their rights to the money or for the purpose of causing damages. The evidence simply shows that CNB, as a result of its confusion over the identities of Larry K. Goodwin and Larry J. Goodwin, intentionally exercised dominion over the wrong Goodwins’ funds. After Ms. Goodwin informed CNB of its error and CNB verified what had occurred, CNB promptly redeposited the money into the Goodwins’ checking and savings accounts. When Ms. Goodwin closed the accounts, CNB paid her the correct balances due. Granted, the bank statements sent to the Goodwins after CNB redeposited the money in both accounts did not reflect the status of the savings account; however, this evidence, standing alone, does not show an intent by CNB to violate the Goodwins’ rights to their money or an intent to cause damages. Under the circumstances, we cannot say there is substantial evidence to support an award of punitive damages on the conversion cause of action.
Likewise, we find that there is no substantial evidence to support an award of punitive damages on the wrongful dishonor cause of action. This court has indicated that punitive damages may be recoverable where a payor bank wrongfully dishonors a check written by its customer. See Twin City Bank v. Isaacs, 283 Ark. 127, 672 S.W.2d 651 (1984). However, only actual damages are recoverable where the dishonor occurs through a mistake. Ark. Code Ann. § 4-4-402 (1987).
This court has not defined the parameters of the concept, “mistaken dishonor.” Other courts, interpreting provisions identical to Ark. Code Ann. § 4-4-402, have defined “mistaken dishonor” as wrongful dishonor done erroneously or unintentionally. Yacht Club, Etc. v. First National Bank, Etc., 101 Idaho 852, 623 P.2d 464 (1980) (Interpreting Idaho Code § 28-4-402 (1980)). The word “mistake” is to be construed as limited to wrongful dishonor made in good faith. Elizarraras v. Bank of El Paso, 631 F.2d 366 (5th Cir. 1980) (Interpreting U.C.C. 4-402). Where a dishonor is caused by a set-off or charge made by a bank under an erroneous belief that it had a legal right to do so, the dishonor is not classified as mistaken but as willful or intentional. Yacht Club, supra. See also J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code, § 17-4 (2d ed. 1980).
There was simply no evidence presented that CNB acted in bad faith or that it deliberately or willfully dishonored the Goodwins’ checks. In addition, the dishonor was not the result of a set-off caused by an erroneous belief by CNB that it had the legal right to do so. The record is devoid of evidence that CNB ever formed a belief as to its legal right to set-off the Goodwins’ checking account. It simply confused the identities of Larry K. and Larry J. Goodwin and, as a result, set-off the checking account of Larry J. Goodwin and Sandra Goodwin instead of the accounts of Larry K. Goodwin. In sum, the dishonor of the Goodwins’ checks occurred through a mistake. Accordingly, punitive damages were not recoverable.
Since the issue of punitive damages should not have been submitted to the jury, plaintiffs’ Exhibit No. 69, the chart showing punitive damages calculated as one percent of CNB’s stockholders’ equity, and Exhibit No. 71, the statement of CNB’s financial condition, were not admissible. See Life and Casualty Ins. Co. of Tenn. v. Padgett, 241 Ark. 353, 407 S.W.2d 728 (1966). See also KARK-TV v. Simon, 280 Ark. 228, 656 S.W.2d 702 (1983).
In law cases, the issues of punitive and compensatory damages may be so interwoven that an error with respect to one requires a retrial of the whole case. Id. See also Shepherd v. Looper, 293 Ark. 29,732 S.W.2d 150 (1987). This court has held that where the issue of punitive damages is erroneously submitted to the jury, together with the defendant’s financial condition, an award of compensatory damages cannot stand. Padgett, supra; KARK-TV, supra.
Accordingly, we reverse and remand the entire case for further proceedings consistent with this opinion.
II. ISSUES ON REMAND
A. JURY INSTRUCTIONS ON CONVERSION
CNB contends that Instruction No. 6 on conversion given by the trial court was defective in that it failed to advise the jury that there must be a finding that CNB intended to exercise dominion over the Goodwins’ accounts. CNB also contends that its proposed Instruction No. 6 correctly advised the jury on the law of conversion.
Instruction No. 6 given by the trial court stated that the Goodwins had the burden of proving three essential propositions to recover on their conversion cause of action:
(1) That they have sustained damages;
(2) That City National Bank took or exercised dominion over the checking and savings account in violation of the rights of the owners or the person entitled to possession; and
(3) That such taking or exercising of dominion over the checking and savings accounts was a proximate cause of Larry and Sandra Goodwin’s damages.
Inasmuch as conversion can only result from conduct intended to affect property, CNB is correct that Instruction No. 6 should have advised the jury that the Goodwins had the burden of proving that CNB intended to exercise dominion over their accounts. However, CNB’s assertion that its proposed instruction properly stated the law on conversion is incorrect. Granted, the proposed instruction correctly informed the jury that the Goodwins had the burden of proving that CNB exercised dominion or control over their accounts in violation of their rights and intended to do so. Notwithstanding, the proposed instruction erroneously stated that the Goodwins had the burden of proving that they made demand for the return of their funds and that CNB refused to return the funds. Proof of demand and refusal is not necessary to support a conversion action. Westark Production Credit Association v. Shouse, 227 Ark. 1141, 305 S.W.2d 127 (1957); Myers v. Myers, 214 Ark. 273, 216 S.W.2d 54 (1948).
B. INTERVENING CAUSE
CNB contends that the court erred in failing to give its offered Instruction A on intervening cause in that the Goodwins’ own actions caused any damages they suffered. We disagree.
Offered Instruction A, modified AMI Civil 2d 503, stated:
If, following any act or omission of a party, an event intervened which in itself caused any damage, completely independent of the conduct of that party, then his act or omission was not a proximate cause of the damage.
The question of intervening cause is simply a question of whether the original act of negligence or an independent intervening cause is the proximate cause of an injury. Hill Construction Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987). The original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is in itself sufficient to stand as the cause of the injury. Id. The intervening cause must be such that the injury would not have been suffered except for the act, conduct, or effect of the intervening cause totally independent of the acts of omissions constituting the primary negligence. Id.
In light of our language in Hill, it is clear that the intervening cause is a negligence concept. It has no application to intentional tort or wrongful dishonor cases such as the case before us. In short, the court was correct in refusing to give the instruction on intervening cause.
C. TORT OF OUTRAGE
CNB contends that the trial court erred in failing to give its offered Instruction E, modified AMI Civil 3d 404, on the tort of outrage. Since there was no evidence presented at trial to warrant an instruction on outrage, this argument is meritless.
Reversed and remanded.
Turner, J., not participating. | [
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Per Curiam.
The appellant obtained an extension of time to file the record from the trial court on December 11, 1989. The time expired that day to file the record with us. The record consisted only of pleadings and orders in the circuit clerk’s office.
The record was ultimately filed December 18, 1989. The appellee moves to dismiss the appeal citing the jurisdictional limitations on filing transcripts, Rule 5(a) of the Arkansas Rules of Appellate Procedure, and the requirements of Rule 5(b) of those rules.
Rule 5(b) reads in pertinent part:
In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the trial court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order.
It is conceded this record contained no stenographically reported portions. The trial court was without authority to extend the time to file the record, and since the record was not filed within 90 days under Rule 5(a), the appeal is dismissed.
The rule is explicit and for good reason. Otherwise, a lawyer could delay any case for seven months for no good reason. A record that only consists of pleadings and documents can easily be filed within 90 days. The attorney appealing, who delays filing of the record, does so at his peril.
We have always, as near as possible, been strict on this question of jurisdiction. The burden is placed on the appellant’s attorney to prepare and file the appeal. See Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983). Attorneys know this, or quickly learn it. Even enforcement of a rule is far more just than selectively granting exceptions.
Motion to dismiss granted.
Turner, J., dissents. | [
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Jack Holt, Jr., Chief Justice.
This case involves former (double) jeopardy.
On December 20,1988, the appellant, Richard Lee McMillan, was charged by grand jury indictments with one count of conspiracy to commit theft of property and one count of accomplice to capital felony murder. In addition, he was charged with four other counts: two counts of conspiracy to commit burglary and two counts of conspiracy to commit aggravated robbery.
The trial court initially joined all of the charges to be tried on March 7, 1989. McMillan then filed a motion to sever the conspiracy to commit theft of property and accomplice to capital felony murder charges from the four other counts with which he was charged. The trial court, however, severed all of the charges.
McMillan was convicted of all of the conspiracy counts, but the charge of accomplice to capital felony murder remains.
On June 30,1989, McMillan submitted a motion requesting that the accomplice charge be dismissed on the grounds of former jeopardy. The trial court denied the motion, but reduced the charge to accomplice to first degree murder. McMillan then filed a petition for writ of prohibition with this court. It was temporarily granted, with instructions to remand to the trial court to make specific findings of fact and conclusions of law as to the issue of former jeopardy.
The trial court submitted its findings and order to this court, which McMillan attacks on four points of error. Since we find reversible error in McMillan’s claim that the trial court erred in dismissing his motion to dismiss on the basis of former jeopardy grounds, we will limit our discussion to that point of error. In doing so, we will treat the trial court’s denial of a plea of double jeopardy as a final and appealable order. Beard, Morrison & Cooky. State, 277 Ark. 35, 639 S.W.2d 52 (1982) (citing Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (1959)).
Arkansas R.Cr.P. 21.3 addresses the failure to join related offenses and provides in pertinent part as follows:
(a) Two (2) or more offenses are related offenses for the purposes of this rule if they are within the jurisdiction and venue of the same court and are based on the same conduct or arise from the same criminal episode.
(b) When a defendant has been charged with two (2) or more related offenses, his timely motion to join them for trial shall be granted unless the court determines that because the prosecuting attorney does not have sufficient evidence to warrant trying some of the offenses at that time, or for some other reason, the ends of justice would be defeated if the motion is granted. A defendant’s failure to so move constitutes a waiver of any right of joinder as to related offenses with which the defendant knew he was charged.
(c) A defendant who has been tried for one (1) offense may thereafter move to dismiss a charge for a related offense, unless a motion for joinder of these offenses was previously denied or the right of joinder was waived as provided in subsection (b). The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.
In Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986), we recognized that this rule has three requirements: 1) the offenses must be within the jurisdiction of the same court, 2) arise from the same conduct or criminal episode, and 3) a timely motion to join must be made.
In this case, McMillan, a Conway Police Officer, conspired with Kenneth Clements to steal a flatbed trailer from a parking lot. In the course of stealing the trailer, Clements shot and killed a police officer. McMillan was not physically present during the commission of the theft and murder, because he was on duty at the police department.
After McMillan was charged with the offenses of conspiracy to commit theft of property and accomplice to capital felony murder, he submitted the following motion to the trial court:
MOTION FOR SEVERANCE OF OFFENSES
Comes the defendant, Richard Lee McMillan, by his attorney, Helen Rice Grinder, and for his Motion for Severance of Offenses made pursuant to the Arkansas Rules of Criminal Procedure, Rule 22.2, states as follows:
1. That the defendant is charged by indictment as an accomplice to capital felony murder and with five conspiracies. Only one conspiracy charge; Conspiracy to Commit the Theft of a flatbed trailer, is related to the accomplice charge. The other conspiracy charges are not the same or similar in character or related to the accomplice charge.
2. Severance of the accomplice charge and the conspiracy to commit theft charge, from the other charges, is necessary due to the complexity of the evidence which will be offered at trial. Severance is also necessary for a fair determination of the innocence or guilt of the defendant due to the number of charges.
The trial court granted this motion; however, it also severed the conspiracy to commit theft of property charge from the accomplice to capital felony murder charge.
McMillan’s subsequent conviction of conspiracy to commit theft of property serves as the basis for his motion to dismiss the accomplice to capital felony murder charge according to Rule 21.3.
In Cornett v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987), we stated that:
[c]ourts should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek. It would not be in the interest of justice and fair play to be blindly guided by the title of a motion or pleading. We continue to abide by the well-established rule that a pleading will not be judged entirely by what it is labeled but also by what it contains.
The conspiracy to commit theft of property charge and the accomplice to capital felony murder charge are within the jurisdiction of the Faulkner County Circuit Court. The offenses concededly arise from the same criminal episode. In deciding whether a timely motion to join was made, we consider that McMillan’s motion, although entitled “Motion for Severance Of Offenses,” plainly shows on its face that McMillan intended that the two charges be joined together and that they also be severed from the remaining four charges.
In his brief, the Attorney General concedes that “the face of this motion plainly shows that it was McMillan’s intention to have joined the conspiracy charge involving the theft of a flatbed trailer . . . and the murder charge . . . and that the Faulkner County Circuit Court erred in denying McMillan’s motion to dismiss . . . .”
We agree.
Consequently, we dissolve the temporary stay of the writ of prohibition, reverse the judgment of the trial court, and order the trial court to dismiss the charge in accordance with this opinion.
Hickman, Hays, and Glaze, JJ., dissent. | [
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Steele Hays, Justice.
This appeal from a criminal conviction questions whether the trial court correctly denied a motion to suppress evidence, and challenges the constitutionality of the statutes under which the appellant was convicted.
Appellant, Tina Winters, is the owner of Miss Buckando, a registered quarter horse acquired in 1975. On April 5, 1987, appellant separated from her husband, Gene Winters, and returned to her home in McRae, Arkansas, while Winters remained at his farm in Cabot. Appellant left her horses at Cabot with the understanding that she would remove them as soon as possible.
On April 24, 1987, without appellant’s knowledge, Gene Winters took Miss Buckando, along with some of his own horses, to a veterinarian for testing for equine infectious anemia (EIA). See Ark. Code Ann. § § 2-40-801 — 805 (1987). Under our code, if a horse tests positive, it must be branded and quarantined or sold for slaughter. When a voluntary test is given the state requires that a consent form be signed by the owner or the owner’s agent. Winters signed the consent for his horses as well as for appellant’s horse. The test was administered by Dr. Mann, who had previously furnished veterinary services to both parties. After obtaining the consent form from Gene Winters, Dr. Mann drew blood on all the horses and sent the samples to the Arkansas Livestock and Poultry Commission for testing. The test on appellant’s horse was positive. When she was contacted by an ALPC agent about compliance with the state regulations for a “reactor” animal, appellant refused to have the horse branded and quarantined.
Under Ark. Code Ann. § 2-40-802 (1987), a failure or refusal to comply with the EIA provisions under the code is a misdemeanor. Appellant was tried in Searcy Municipal Court and found guilty. She appealed to the Circuit Court of White County and moved to suppress evidence of the test results and challenged the constitutionality of the statutes under which she was being charged. The motions were denied and after a trial on the merits, appellant was again found guilty for refusing to brand a reactor horse and fined $750. From that decision, appellant brings this appeal.
Appellant first argues that the trial court erred in denying appellant’s motion to suppress the EIA test results. Appellant’s argument is based entirely on agency theories, contending that Gene Winters had no authority as her agent to consent to the test.
There are inherent flaws in appellant’s argument. First, the exclusionary rule is not applicable to this case because the actions complained of were not taken by the state, but by private individuals. Second, even if we were to reach the consent question, a consent to a Fourth Amendment search is not judged by traditional rules of agency, but by case law developed in criminal law on consent as that law relates to searches.
For a search to be implicated under our Criminal Code, the search must constitute an “official intrusion.” See A.R.Cr.P. 10.1(a) and Commentary to Article IV. “The search and seizure clauses are restraints upon the government and its agents, not upon private individuals.” Walker v. State, 244 Ark. 1150, 429 S.W.2d 121 (1968). The general corollary to this proposition is that the exclusionary rule is not intended as a restraint upon the acts of private individuals. Such searches will not implicate the Fourth Amendment unless the search by the private party has been done at the request or direction of the government, or in some way has been a joint endeavor with the government. Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989), citing to 1 LaFave, Criminal Procedure § 3.1(h) (1984). Where a state official has no connection with a wrongful seizure, there is no basis for exclusion. Id.
Here the search was undertaken pursuant to a request from appellant’s estranged husband and the blood was drawn by a private veterinarian. There is no contention by appellant that these two private individuals were in any way acting under the government’s direction or in a joint endeavor with state agents. The trial court was correct to deny the motion to suppress.
Secondly, appellant submits the trial court erred in upholding the constitutionality of EIA regulatory statutes, Ark. Code Ann. §§ 2-40-801 — 805 (1987). The argument suggests two grounds for a constitutional challenge — lack of substantive due process and a taking without just compensation under the Fifth Amendment.
Under substantive due process, the legislation must be rationally related to achieving a legitimate governmental objective. See, McClelland v. Paris Public Schools, 294 Ark. 292, 742 S.W.2d 907 (1988); McCammon v. Boyer, 285 Ark. 288, 686 S.W.2d 421 (1985). Appellant does not contend the state goal is not a legitimate one, but rather that the regulations are not rationally related to achieving those ends. Specifically appellant points out that of those horses testing positive, 80 to 95 % will never transmit the virus, so that of 25,000 horses tested annually, only 60 to 170 horses would transmit the virus; that there has been no decrease in transmitters since the development of this test for EIA; and that five other states have abandoned this test. We take the argument to be that the methods incorporated in the statutes are so inefficient that there is no rational relationship to the state goal of eradicating or controlling the disease.
We responded to a similar argument in McClelland, supra, that the appellant in that case had misconstrued the test when she argued that the regulation was not accomplishing any of its goals. The same is true here. The test is whether there is a conceivable basis for the rule, so that it can be said the action was not arbitrary. “The Constitution is not violated so long as a law is not premised upon a patently irrational basis. Judicial inquiry does not concern itself with the accuracy of the legislative finding, but only with the question of whether it so lacks any reasonable basis as to be arbitrary.” McClelland, supra, citing from Cook County College Teachers Union v. Taylor, 432 F. Supp. 270 (1977).
The burden of establishing this result is on the appellant, McClelland, supra, and here appellant has not made such a showing. Rather, she relies on evidence which, while indicating some inefficiency in the test, nevertheless is premised on the fact that the regulations are related to the state’s goals, and nothing appellant has presented suggests a “patently irrational basis.” Furthermore, there was other testimony from the same expert cited for appellant’s arguments, which explained away most of appellant’s objections to the program, and provided more than an adequate basis for sustaining the regulations. As stated in Bolling v. Texas Animal Health Commission, 718 S.W.2d 819 (Tex. App. 1986), which considered the constitutionality of brucellosis regulations, “The mere fact that a certain regulation is not the best possible regulation, or that the regulation can be improved, is not justification to invalidate the regulation.”
Appellant next argues that under the Fifth Amendment to the United States Constitution and art. 2 § 22 of the Arkansas Constitution, she cannot be deprived of her property without just compensation. She testified that her horse was worth $1,000 and that because she did not have enough acreage for the required quarantine area (a minimum of forty acres) she would have to have the horse slaughtered for which she would receive about $200. This, she insists, amounts to a taking and should therefore be compensated.
It has already been settled in Arkansas that a police power regulation for the health and welfare of the state which requires destruction of contaminated animals is not a taking, if the regulation is an otherwise valid exercise of the police power and if there is some residual value to the owner. Burt v. Arkansas Livestock & Poultry Comm’n, 278 Ark. 236, 644 S.W.2d 587 (1983).
Here, as already noted, the regulation is a valid exercise of the police power and there has been no total diminution of the value of appellant’s horse, but only a reduction in its value. And while there is no set formula to determine where regulation ends and taking begins, J.W. Black Lumber Co. v. Ark. Dept. of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986), when comparing this to similar cases, we conclude the reduction in value does not equate to a taking. See Bolling v. Texas Animal Health Comm’n, supra; Numley v. Texas Animal Health Comm’n, 471 S.W.2d 144 (Tex. Civ. App. 1971). And see also 2 J. Sackman, Nichols on Eminent Domain, § 6.07 (1985).
Finally, appellant objects to the trial court’s admission of the state’s test results because there was insufficient authentication of those results. Appellant makes two points under this argument. The first is that the vet testified he drew the blood on April 24, but that the test form he completed for the lab was dated April 25th. Appellant objected to the introduction of the test form bearing the state’s results, because of this discrepancy, but the objection was overruled.
In the trial court’s finding of facts it made a finding on this point, noting that the vet had testified that he would regularly complete the document sometime after he drew the blood sample. And this finding is supported by the record. The vet’s records further showed that he had only drawn blood for Mr. Winters in April of 1987 on the 4th, 14th and the 24th.
The trial judge determines whether the evidence is admissible and on review, the appellate court will reverse the decision only if there is an abuse of discretion. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987); A.R.E. Rule 104(a). Given the facts in the record, there was more than an adequate basis for the court’s admission of the test results, as the discrepancy in the dates was easily and logically explained.
The appellant’s second point essentially contends that at some point the blood samples had been sufficiently separated from any identifying papers or labels on the samples themselves, so that there was insufficient authentication to show that the positive tests results belonged to the horse in question. However, there was no objection on this basis below. Appellant’s objection before the trial court reached only the discrepancy in the dates. Failure to make a specific argument below waives any argument on appeal. A.R.E. Rule 103(a)(1); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988).
AFFIRMED.
The animal must be isolated from other horses a distance of at least 200 yards.
Although there are similarities, there are differences; suffice it to say that a different body of law applies to questions of consent with agency theories and Fourth Amendment searches. See A.R.Cr.P. 11.2; See also, Spears v. State, 270 Ark. 331, 605 S.W.2d 9 (1980); United States v. Butler, 495 F. Supp. 579 (E.D. Ark. 1980); Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979). | [
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Per Curiam.
Petitioner seeks to intervene, asking this court to remand the case of William Frank Parker, whose execution is scheduled to take place February 28,1990, to the trial court for a sanity determination. He also asks us to set aside Parker’s conviction on double jeopardy grounds and to hold the Arkansas capital punishment scheme unconstitutional. Petitioner has filed a separate petition to stay Parker’s execution. His petitions are denied because petitioner lacks standing.
Nothing in the record of either of Parker’s trials suggests that he is presently incompetent to waive further litigation or appeals nor is there anything to suggest a change in Parker’s behavior that would reflect he is presently incompetent. Our recent cases of Franz v. State, 296 Ark. 181, 754 S. W.2d 839 (1989), and O’Rourke v. State, 300 Ark. 323, 778 S.W.2d 938 (1989), are both distinguishable from the present situation. This court has considered two direct appeals regarding this matter. In the first one, Parker had been convicted of capital murder and was sentenced to death; we reversed. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). In the second, Parker, again, was convicted for capital murder, and again he was sentenced to death; this time, we affirmed. Parker v. State, 300 Ark. 360, 779 S. W.2d 156(1989). Parker seeks no further relief, and petitioner, in our view, simply has no standing, under the facts alleged and the existing circumstances of this case, to intervene on Parker’s behalf. Accordingly, petitioner’s petition for stay of execution is denied as well. | [
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Tom Glaze, Justice.
This case involves the appellee’s sale of a combine to the appellant. In August 1982, appellant purchased the machine for $46,500 payable over a five year period; he paid a down payment comprised of $3,000 in cash and a note in the amount of $6,500 which was secured by the combine. Soon after the sale, appellant complained that the combine failed to harvest his crops. After the parties were unable to satisfy their differences, the appellee, having repossessed the combine, filed suit on October 2, 1985, to collect the $6,500 note. Appellant answered denying liability. Appellee then moved for a summary judgment, and appellant responded, raising several defenses including the appellee breached expressed and implied warranties. Appellant raised his implied warranty defense late in the litigation by amending his counterclaim on March 29, 1988. The trial court granted appellee’s request for summary judgment, finding the appellant’s expressed warranty defense was barred by the terms of the parties’ sales contract, and it further concluded that appellant’s implied warranty claim was foreclosed by both the terms of the contract and by the statute of limitations. We reverse.
Appellant does not seriously challenge the trial court’s holding that his expressed warranty claim is barred by a specific provision contained in the parties’ contract. Instead, his primary argument is that his implied warranty claim was not barred by the statute of limitations nor should it have been resolved by summary judgment. In making his argument, appellant states that while he raised his implied warranty defense by amended counterclaim after the four year statute of limitations for such a claim had run, Ark. R. Civ. P. 15(c) operated to relate the amended claim back to the date of appellant’s original pleading (counterclaim) which had been filed well within the limitation statute. We agree.
Rule 15 not only makes liberal provision for amendments to pleadings, it also states that any claim asserted in the amended pleading, which arises out of the conduct, transaction or occurrence set forth in the original pleading relates back to the date of the original pleading. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). Since the amendment relates back, there can be no statute of limitations objection to the amendment without proof of undue delay or prejudice. Id. In the present case, in his original counterclaim, appellant alleged the appellee had expressly guaranteed that the combine would properly harvest appellant’s crop — which the machine failed to do after multiple adjustments and repairs. In his amended claim, he primarily relied upon the same allegations underlying his express warranty claim but added that the same sale or transaction, and appellee’s conduct surrounding it, breached implied warranties of merchantability and fitness for particular purpose. Because appellant’s amended claim arose out of the same transaction described in his original counterclaim, his amended counterclaim related back to his original pleading and thereby avoided the application of the statute of limitations. Furthermore, the appellee failed to argue below that the amendment of the counterclaim would cause undue delay or prejudice. Regardless, since the appellant’s claim for breach of implied warranty is so closely related to the earlier claim of breach of expressed warranty, there can be no undue delay or prejudice.
In so holding, we note the appellee’s argument that neither appellant’s original nor his amended counterclaim contained sufficient facts to support his allegations of expressed or implied warranty violations. We dismiss such arguments because they were not raised below. Appellee could have raised such arguments by filing a motion under Ark. R. Civ. P. Rule 12(b)(6), but instead it sought summary judgment relief pursuant to Ark. R. Civ. P. Rule 56.
Of course, summary judgment is only proper when a review of the pleadings, depositions or other filings reveal that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Township Builders, Inc. v. Kraus Construction Co., 286 Ark. 487, 696 S. W.2d 308 (1985). While appellee contends otherwise, we conclude that the record reveals the appellant has shown a material factual issue exists regarding his implied warranty claim, which we found above to have been filed timely.
To recover for breach of implied warranty, the plaintiff must prove the following: (1) he sustained damages; (2) at the time of contracting, the defendant had reason to know the particular purpose for which the product was required; (3) the defendant knew the buyer was relying on the defendant’s skill or judgment to select or furnish the product; (4) the product was not fit for the purpose for which it was required; (5) the unfitness was a proximate cause of plaintiffs damages; and (6) the plaintiff was a person whom defendant would have reasonably expected to use the product. See E. I. DuPont Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).
Here, the appellant’s pleadings and affidavits show he purchased a new combine from appellee after appellee assured appellant that the combine would properly harvest appellant’s crops. Appellant sustained over $20,000 in damages as a result of the combine’s failure to harvest his crops. Appellant relied upon appellee and his mechanic to correct the equipment, but to no avail. We believe the appellant’s assertions clearly support an implied warranty claim.
Finally, we consider appellee’s contention that the appellant waived his right to bring a counterclaim for breach of warranty when he signed a “reaffirmation” agreement to pay the note upon which appellee brought this action. In'sum, appellee claims it negotiated a settlement whereby it repossessed the combine, agreed not to sue for the deficiency owed by appellant and the appellant reaffirmed he would pay the $6,500 down payment note. Appellee claims the appellant does not dispute that such a settlement took place, but concedes the appellant asserts that any such settlement was the result of undue influence exercised by the appellee against the appellant. Appellee attached to his summary judgment motion a typewritten note signed by the appellant whereby he agreed to pay the $6,500 promissory note and acknowledged that the appellee’s repossession of the combine did not satisfy the promissory note.
Although appellant never denied he signed a “piece of paper” that provided he would pay the $6,500 note, appellant stated the appellee only asked him to sign that paper so appellee could show it to appellant’s wife so she would pay the $6,500 from life insurance proceeds after the appellant died. Appellant said that his doctors had told him he had terminal cancer and only a few months to live. Appellant shared this information with appellee and further revealed his wife would receive a “good bit of life insurance.” During this discussion, appellant submits he told appellee that he had no money and did not feel obligated to pay the $6,500 note but that because he and appellee were friends, appellant would ask his wife to pay the $6,500 from the life insurance proceeds after he died.
When we view the pleadings and affidavits most favorably in appellant’s behalf, as we must, we conclude a genuine issue of material fact exists concerning whether appellant ever agreed to any final settlement or resolution of the differences separating the parties. For this and the foregoing reasons, we reverse and remand this matter for further proceedings and a full development of the issues by the parties.
As another deficiency in pleading breach of warranty, appellee argues on appeal that the appellant’s pleadings were required to, but did not, contain the factual allegation of notice. Again, this issue was not argued below, but even so, such notice requirement is no longer necessary. See Ark. R. Civ. P. Rule 9(c); Cox, Newbern, New Civil Procedure: The Court that Came in from the Code, 33 Ark. L. Rev. 1, 22 (1979).
We note that the appellant raised two other arguments concerning the impropriety of summary judgment in this case. These arguments concerned undue influence and strict foreclosure notice requirements, however because of our holding on the first issue we need not address them. | [
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David Newbern, Justice.
Ronnie Midgett appeals from the decision of the probate court by which his parental rights were terminated and the appellee, Arkansas Department of Human Services (DHS), was appointed guardian of his three children with the power to consent to adoption. The sole issue raised is whether DHS complied with a statutory requirement to provide remedial support services designed to reunite the child and the parents before seeking to establish grounds for the guardianship. The trial court found that DHS had made reasonable efforts to deliver “applicable available services” to the family. We agree that compliance with the statute was had and affirm.
Testimony of DHS caseworker Suzann Henry showed that the Midgett family began receiving services from the agency in 1977. In that year one of the children was placed in foster care as a result of having been abused. The child was later returned to the family, and services continued. A second child was placed in foster care in 1978 where he remained over two years. The mother left the home in 1980 because of abuse administered by Ronnie Midgett. DHS lost contact with the case while the family was in Texas, but it was known that a Texas agency placed one of the children with an aunt while the family was there after placing him in foster care twice as the result of physical abuse. Contact was regained in 1986 when the family returned to Craighead County.
In January, 1986, a protective services case was reopened on the family due to a report of child abuse. At that point the family consisted of Ronnie Midgett and his four children. The mother continued to live away from the home. She received services from DHS, or was offered them, up until the time of the hearing in this matter.
Ronnie Midgett was convicted of first degree murder of his eight-year-old son as the result of a brutal beating which occurred in May, 1986. We affirmed the conviction after modifying it to second degree murder. Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987). After his conviction, Midgett was incarcerated. He argues DHS failed to provide family rehabilitative services required by statute while he was in prison.
At the time of the hearing in this matter, the applicable statute provided for establishment of grounds for a guardianship, and in Ark. Code Ann. § 9-9-304(F)(ii) (1987), which has since been repealed, it was further provided:
However, before grounds may be established under this subdivision, the court must be satisfied that the parents have received for a period of up to six (6) months in the discretion of the court, from the Arkansas Department of Human Services, remedial support services designed to reunite the child and the parents and that such services have failed to substantially reduce the risk of harm to the child.
The statute was not very clear in that one cannot tell whether the discretion of the court was to be applied to the matter of whether the services were to be provided or only to the matter of their duration. In any event, there was no requirement that the services be provided in the six months immediately preceding the guardianship hearing. In Watson v. Dietz, 288 Ark. 111, 702 S.W.2d 407 (1986), our statement with respect to the requirement was only that, “[t]he services must last six months.” In this case, the evidence is sufficient to support not only the trial court’s finding that DHS made reasonable attempts to deliver “applicable available services” but that such services were in fact delivered for years.
Midgett cites Santosky v. Kramer, 455 U.S. 745 (1982); A.B. v. Arkansas Social Services, 273 Ark. 261, 620 S.W.2d 271 (1981); and Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979), for the proposition that the state’s burden in showing parents of a child to be unfit is a heavy one which can be met by producing clear and convincing evidence of unfitness. DHS concurs in that statement of the standard to be applied, and it is the one recited by the trial judge. No argument is made, however, that the facts here do not demonstrate unfitness. Bush v. Dietz, 284 Ark. 191, 680 S.W.2d 704 (1984), is cited, but the maximum effect our decision in that case could have here is its implication that the imprisonment of a convicted murderer is not, standing alone, sufficient to show unfitness. While all parties and courts concerned accept the clear and convincing evidence standard for proof of parental unfitness, no case has been cited applying that standard to a determination whether there has been compliance with § 9-9-304(F)(ii). Such a standard would be inappropriate in view of the statutory language giving the trial court discretion. We hold there was ample evidence of compliance with the statute.
Affirmed.
Price, J., not participating. | [
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Steele Hays, Justice.
At around three o’clock on the morning of August 4,1988, the Zero Quickie Stop in Ft. Smith was robbed. The lone attendant, Ms. Patricia Chitwood, described the robber as a slender, white male, 5’ 2” to 5’ 5” tall, who spoke with a Spanish accent and wore a denim jacket and dark baseball cap. She said he held a sawed-off .22 caliber rifle in his left hand and carried a blue canvas bag in which she was instructed to place the cash register receipts. The robber told her if she gave his description to the police he would return and kill her. She reported the incident promptly and within a few hours had identified Jorge Borges Gonzales from a group of mug shots.
A week later the same attendant noticed someone peering into the convenience store in a manner that aroused her suspicions. She called the police and Gonzales was apprehended near the store. A blue canvas bag was in his pants pocket and a sawed-off shotgun was found in his truck. Ms. Chitwood again identified Gonzales as the robber and testified at trial that the weapon and canvas bag were the same as those used in the robbery.
Gonzales was tried and convicted of aggravated robbery and criminal use of a prohibited weapon. He appeals from the judgment imposing concurrent sentences of forty and six years. Appellant’s two points for reversal are unpersuasive and, accordingly, we affirm the judgment on the sentences.
I
The Trial Court Erred in Not Suppressing the In-Court Identification of the Appellant.
Appellant moved to suppress an in-court identification by the attendant on the premise that the photographic line-up was tainted. This preliminary ruling by the trial court is on a mixed question of law and fact and will not be reversed unless clearly erroneous. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). Whether an in-court identification meets constitutional standards is for the trial court, Banks v. State, 283 Ark. 284, 676 S.W.2d 459 (1984), and once admitted, the weight of the evidence is for the jury to determine. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984).
We find nothing unduly suggestive in the photographic line-up. The witness was given five photographs of Cuban males bearing reasonable similarity to the appellant. Appellant’s photograph was near the bottom of the stack. After making her selection, which was unequivocal, Ms. Chitwood was not told that she had chosen correctly and we find nothing to suggest that her selection was influenced in any manner.
Appellant argues, in effect, Ms. Chitwood chose him by a process of elimination, that by excluding two because they were too young, one because he was too dark and another because he appeared to be an Indian, she chose the only remaining possibil ity, the appellant. The argument is unconvincing, as a review of Ms. Chitwood’s testimony in its entirety reflects that she was simply trying to be certain of her identification and to explain why she selected the appellant. While the absence of anything unduly suggestive in the identification process ordinarily ends the matter, Moulding v. State, 296 Ark. 378, 757 S.W.2d 916 (1988), it might be noted that Ms. Chitwood had an excellent opportunity to observe the robber in strong light, that her identification was firm and that she gave particulars to the police which fit the appellant in every material respect. There were minor discrepancies, to be sure — she described the weapon.as a sawed-off .22 rifle, as opposed to a 410 shotgun, for example, but these were matters for the jury to resolve.
II
The Trial Court Erred in Not Allowing the Appellant to Cross Examine the Victim by Use of a Voice Identification Test.
Defense counsel asked Ms. Chitwood if she thought she could identify the voice of the person wha .robbed her. Her response was that she didn’t know whether she could or not. Asked if she would be willing to try, she answered, “I guess so, why not?” Counsel then asked permission to set up a screen and have the appellant and three Cuban males speak the words the perpetrator had used during the robbery to see whether the witness could identify appellant’s voice. The trial court sustained an objection by the state.
The only authorities cited by appellant are two cases, Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985), and Gustason v. State, 267 Ark. 278, 590 S.W.2d 583 (1979), which support the general rule that a cross-examiner is given wide latitude in criminal cases. Appellant points out that the police commonly require individuals in a line-up to recite any words that the victim may have heard during a crime. True enough, but there was no showing that such methods were used in this case, nor anything to indicate that voice was a factor contributing to the selection of the appellant. At no time did Ms. Chitwood contend that any part of her identification of appellant was dependent upon his voice. In fact, when asked if she thought she could identify appellant’s'voice her answer was, “I didn’t know.”
We have not previously considered whether voice identification procedures can be adapted to the courtroom, although we have held in a number of cases that it is within the sound discretion of the trial court to grant or refuse permission during trial to either party to conduct an experiment or test in the presence of the jury. Kellensworth v. State, 277 Ark. 238, 641 S.W.2d 699 (1982); Rasmussen v. State, 277 Ark. 238, 641 S.W.2d 699 (1982); Edgemon v. State, 275 Ark. 313, 630 S.W.2d 26 (1982). We see no reason to depart from that rule and cannot conclude, on the facts of this case, that it was an abuse of discretion by the trial court to deny the proposed demonstration. In Bland v. State, 89 S.W.2d 996 (1936), the Court of Criminal Appeals of Texas upheld the trial court’s refusal to conduct voice identification tests during trial, even though the victims of a robbery identified the defendant by his voice as the masked gunman who robbed them.
AFFIRMED.
Turner, J., not participating. | [
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Robert H. Dudley, Justice.
In July 1982, appellant pleaded guilty to a felony and was sentenced to imprisonment for five (5) years under the Youthful Offender Alternative Service Act of 1975. Ark. Stat. Ann. §§ 43-2339 to -2349 (Supp. 1982). Under the Act appellant was immediately eligible for parole. Ark. Stat. Ann. § 43-2342(c). Upon completion of his five-year sentence he was entitled to have the record of conviction expunged. Ark. Stat. Ann. § 43-2344. Appellant completed his sentence without incident. There is no showing whether the record was in fact expunged.
In October 1987, appellant possessed a firearm. He was subsequently charged and convicted in the case at bar of being a convicted felon in possession of a firearm. Ark. Code Ann. § 5-73-103 (Supp. 1989). We reverse and hold that even though the appellant’s record may not have been actually expunged, his prior sentence under the Youthful Offender Act cannot be used as the underlying felony in a later prosecution for felon in possession of a firearm.
The Youthful Offender Alternative Service Act of 197 5 provides that upon completion of the sentence, “the Commissioner [of the Department of Correction] shall direct that the record of the eligible offender be expunged . . . .” Ark. Stat. Ann. § 43-2344. Expunged means an entry upon judicial and law enforcement records “signifying that the defendant was completely exonerated of any criminal purpose and said disposition shall not affect any civil right or liberties of said defendant.” It does not mean the physical destruction of the records. Ark. Stat. Ann. § 43-2340(g).
The foregoing language leaves little room for doubt about our decision in this case. However, we are additionally persuaded by the public policy underlying the Youthful Offender Act. That policy is to remove the stigma of youthful indiscretions, and to give a youthful offender a second chance to a life free of a criminal record.
The federal Youth Corrections Act, 18 U.S.C. §§ 5005 to -5026 (1976), is similar to our Youthful Offender Act of 1975. While federal decisions do not mandate how we decide state issues, we note that the three (3) Circuit Courts of Appeal which have construed the federal act have construed that act the same as we now construe our act. United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980); United States v. Purgason, 565 F.2d 1279 (4th Cir. 1977); United States v. Fryer, 545 F.2d 11 (6th Cir. 1976).
The State argues that it produced the judgment of conviction, and even though it may have been subject to expungement, it was up to the appellant to show actual expungement. Such an argument disregards the language of the Act. The 1982 judgment of conviction offered in evidence by the State to establish the original conviction revealed that appellant was sentenced under the Youthful Offender Act. Under the language of the Act the young offender does not have to petition for expungement. Instead, it is a ministerial duty to be completed by the Commissioner of the Department of Corrections. The Act provides that the “Commissioner shall direct that the record of the eligible offer be expunged. . . .” Even if the Commissioner had failed to perform his ministerial duty, we would not subject a citizen to incarceration solely because a State official did not perform a ministerial act.
Further, proof of a prior felony is an element of the crime of felon in possession of a firearm and must be proven beyond a reasonable doubt by the State. To require an accused to prove expungement would be to require an affirmative defense when none is required by the statute. See United States v. Arrington, 618 F.2d 1119 (5th Cir. 1980).
The State additionally argues that this case is governed by Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984). In Gosnell, we held that an expunged conviction can be used to enhance the sentence of an habitual offender. We distinguish Gosnell because in that case the expunged conviction was not used as an element of the crime. Here, the State used the expunged conviction as an element of the crime.
Finally, the State argues that the commentary to the felon in possession statute, Ark. Code Ann. § 5-73-103, dictates affirmance. The argument is without merit. The commentary deals with suspension and probation, not with expungement.
Reversed and remanded.
Holt, C.J., concurs. | [
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Steele Hays, Justice.
Judy Holbird was convicted by a jury of attempted capital murder and of possession of a firearm by a felon, receiving a sixty year sentence for the attempted capital murder and a twelve year sentence for the possession of a firearm. She appeals from the judgment on the convictions. We find no error.
Appellant contends that the trial court erred in denying her motion for a mistrial when it was discovered early in the trial that one of the jurors was acquainted with a witness. During voir dire potential juror Cecil Moss failed to indicate that he knew any of the state’s witnesses. After the state concluded its direct examination of Detective David Caldwell of the Fort Smith Police Department, an eyewitness to the crime, the following exchange occurred:
JUROR:
I didn’t recognize the witness, but I have met this witness one time before.
THE COURT:
Is there anything about that that would keep you from being fair and impartial if you sit on this jury?
JUROR:
None, your Honor.
(Note: Juror indicated above is Rex [Cecil] Moss).
The trial judge determined that the juror had failed, innocently, to recognize Detective Caldwell during voir dire and, realizing his mistake, thought it important to inform the Court of their prior meeting. After questioning Moss, the judge ruled out any underlying bias and allowed him to remain on the jury.
In Clay v. State, 290 Ark. 54, 716 S.W.2d 751 (1986), we held that the trial judge did not err in denying a mistrial when, after the trial had commenced, a juror told the trial judge that he knew the prosecutrix. The juror recalled meeting her a few years earlier when he repaired a typewriter at a bank where she worked. This juror also indicated to the trial judge that he could be a fair and impartial juror.
Similarly, Juror Moss, after the trial had commenced, remembered meeting Detective Caldwell on a prior occasion and promptly notified the court. Moss also told the trial judge that he could be a fair and impartial juror and nothing to the contrary was shown or even suggested. The determination of whether a mistrial is called for is within the sound discretion of the trial court. Brazel v. State, 296 Ark. 563, 759 S.W.2d 28 (1988). Reviewing the facts, we do not find that the trial judge abused his discretion.
The appellant next objects to the introduction of a .32 caliber bullet, state’s exhibit #9. Appellant contends the state failed to properly establish the bullet’s chain of custody. The state attempted to prove that the .32 caliber bullet removed from Detective Haney’s thigh was shot from the appellant’s .32 caliber handgun. The appellant, to the contrary, contended that Detective Haney accidentally shot himself with his own .38 caliber gun and the bullet removed from his leg was replaced with a .32 caliber bullet to frame the appellant.
The evidence at trial indicates that Nurse Jean Simpson, Operating Room Supervisor for Sparks Regional Medical Center, was in the operating room when the bullet was removed from Detective Haney’s thigh. Nurse Simpson testified that Dr. Wikman removed the bullet, handed it to a surgical assistant, Larry Bray, and Bray placed the bullet in a specimen cup, properly labeled. Larry Bray then gave the cup to Ms. Simpson who delivered the bullet to Detective Champion, in accordance with hospital policy. She identified the specimen cup at trial as identical to those used at the hospital.
On cross-examination, Ms. Simpson was asked if she were shown two or three different bullets whether she could identify the one she saw removed from Detective Haney’s leg. She replied that she knew the bullet removed was a large bullet but could not, if shown a bullet, unequivocally say it was the bullet removed from Detective Haney’s thigh. From this series of questions, the appellant asserts that the chain of custody of the bullet was broken.
The purpose in establishing the chain of custody is to prevent the introduction of evidence which is not authentic. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). To prove authenticity, the state must demonstrate that the evidence has not been altered in any significant manner. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). However, it is not necessary that every possibility of tampering has been eliminated; it is only necessary that the trial judge, in his or her discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979). Here, the trial judge found that the chain of custody was adequate. The only evidence of tampering was the appellant’s testimony. Any minor discrepancies in the chain of custody are for the trial court to weigh and, absent some evidence of tampering, the trial judge is accorded discretion and we will not reverse the ruling unless there is a clear abuse of discretion. Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989). We find no abuse of discretion here.
The appellant contends that the trial court erred in admitting the testimony of Ronald Anderjack, the state’s firearm expert. However, the appellant’s brief fails to present either authority or persuasive reasoning on this point, therefore, we need not address this issue. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
AFFIRMED. | [
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Tom Glaze, Justice.
This appeal is a sequel to our decision in Arkansas State Highway Comm’n v. Munson, 295 Ark. 447, 749 S.W.2d 317 (1988), where we refused the Commission’s request for a writ of prohibition against a Pulaski County Chancery Court’s order staying the Commission from collecting a prior judgment it obtained against the Coffelts in a Pulaski County Circuit Court in November 1985. Following our decision, the chancery court made its stay permanent upon finding the circuit court’s earlier judgment was void as a taking of the Coffelts’ property without compensation in violation of the Arkansas and United States Constitutions.
The Commission argues the chancery court erred in finding the circuit court’s judgment was void. It contends further that the doctrine of res judicata barred the Coffelts’ subsequent action in chancery court.
The parties agree that an erroneous judgment subject to direct attack does not impair its effect as res judicata; a void judgment, however, amounts to nothing and has no force as res judicata. See Selig v. Barnett, 233 Ark. 900, 350 S.W.2d 176 (1961); 2 A.C. Freeman, Law of Judgments § 642 (1925). Thus, the threshold question in this appeal is whether the 1985 circuit court judgment is void since only under such a circumstance were the Coffelts allowed collaterally to attack the circuit court’s judgment. We hold that the circuit court clearly had jurisdiction and was competent to enter the judgment it did against the Coffelts and that the chancery court erred in holding the judgment void.
First, we point out that the 1985 circuit court judgment in issue here was the focus of controversy in Coffelt v. Arkansas Highway Comm’n, 289 Ark. 348, 712 S.W.2d 283 (1986). There the Coffelts sought relief from the circuit court judgment, but we upheld the judgment by summarily affirming the appeal from that judgment pursuant to Ark. Sup. Ct. R. 9(e)(2). Next, we note that it is well settled that a judgment on first appeal is conclusive as to every question of law or fact that was actually decided, or could have been decided, at that time. May v. May, 267 Ark. 27, 589 S.W.2d 8 (1979). Nevertheless, while the Coffelts do not question such legal authority, they still maintain that the circuit court’s judgment in question here is facially void and open to attack because the judgment reflects the jury found for the Coffelts but awarded no damages for the Commission’s taking of their property. As a consequence, the Coffelts contend the circuit court judgment was not merely erroneous and subject to direct appeal, but instead was void and subject to collateral attack. In support of this argument, the Coffelts cite Greene County v. Knight, 174 Ark. 618, 297 S.W. 861 (1927) and Independence County v. Lester, 173 Ark. 796, 293 S.W. 743 (1927).
The Knight case is clearly distinguishable because the lower court’s condemnation order there was made without notice to the landowners and was unquestionably void. In the present case, the Commission performed its statutory duties and the Coffelts undisputedly were apprised and notified of the state’s condemnation proceedings.
The Lester case involved a county court’s taking of a landowner’s property but the landowner’s claim for the damages was disallowed because the county revenues had been exhausted and the county was therefore prohibited from paying the claim under restrictions in amendment 11 to the Arkansas Constitution. Under such circumstances, this court held the county court had no power to condemn the landowner’s property and thus the county court’s order to that effect was absolutely void. Although when reviewing the language used in the Lester decision one might question whether the county court’s order could be labeled as merely erroneous rather than void, this court’s decision there was based upon its finding that the county court, under amendment 11, had no authority whatsoever to take the landowner’s property since the county court had no revenues to pay for such a taking. In this context, the court concluded the county court’s order was absolutely void. Again, in the present case, the situation differs since the Commission followed its statutory duties required under Ark. Code Ann. §§ 27-67-301 to -67-323 (1987) and paid an estimated deposit under § 27-67-314 (1987) in connection with its taking of the Coffelts’ property. In sum, here the circuit court had jurisdiction of the condemnation proceeding and no showing was made that fraud or collusion was involved. That being so, the judgment was not void.
Finally, we address the Coffelts’ concern that since the circuit court judgment reflects the Commission took their property without an award of damages, such a verdict was inconsistent and therefore void by its own terms. The Commission counters such an argument, correctly we believe, stating the Coffelts wish to ignore that the jury was correctly instructed concerning the state’s taking of the Coffelts’ property and that the jury could have accepted the Commission’s expert testimony that no damages resulted from the taking. Such damages issues could well have been addressed in the Coffelts’ direct appeal from the circuit court’s 1985 judgment and a determination could have been made regarding the correctness of the jury’s acceptance of the Commission’s evidence on this issue. As previously mentioned, we disposed of this and other issues raised (or which could have been raised) when we summarily affirmed the Coffelts’ appeal from the circuit court’s judgment in 1985.
For the foregoing reasons, we reverse and dismiss the chancery court’s decision holding the Pulaski County Circuit judgment void.
Hickman and Turner, JJ., not participating.
Actually, the judgment was entered against Mrs. Coffelt, but because Mr. Coffelt has since become a party to this litigation, our reference will include both for ease of writing this opinion. | [
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Tom Glaze, Justice.
This is an appeal from the chancellor’s order setting aside two default judgments entered against the appellee on February 2,1988, and March 15,1988. The appellant received two judgments against her former husband, Billy May, for failure to comply with their divorce decree and for attorney fees. Billy May is employed by the appellee. Two writs of garnishment after judgment were served on the appellee. When the appellee failed to respond to either of the two writs, two default judgments were entered against the company totaling $22,442.77. In setting aside the default judgments, the chancellor found that Ark. Code Ann. § 16-58-124 (1987) governed service of the writs, and that the service of the writs was not in compliance with this statute.
In her appeal, the appellant argues that the chancellor erred in finding that § 16-58-124 was not superseded by ARCP Rule 4(d)(5). The appellee argues that the chancellor was correct in finding that service of the writs was invalid, and in addition, makes three other arguments on why the chancellor’s setting aside the default judgments must be affirmed. We agree with the appellant’s argument that ARCP Rule 4(d)(5) controls service and find no merit in two of the appellee’s alternative arguments. However, we find that appellee’s other argument was not fully developed below. Therefore, we reverse and remand.
The first writ of garnishment was served on the appellee’s bookkeeper, Loretta Bozeman, at the corporation’s office on November 16,1987. According to her testimony, at the time the writ was served she and another woman were the only ones in the office, and she was more or less in charge. On February 11,1988, the second writ of garnishment was served on Wanda Hankins, the secretary of the corporation and wife of Bob Hankins, the president of the corporation. The returns did not reflect if the president was unavailable when the writs were served, and testimony elicited at the hearing regarding the subject was inconclusive. Bob Hankins testified that since both writs were served on Mondays, he, in all probability, was there. However, the company does not keep any records on when Hankins is in or out of the office. According to Hankins, he first learned about the default judgments when a writ of garnishment was served on the company’s bank account in July of 1988. At this time, the appellee filed a Motion to Set Aside Judgment.
We first must decide whether Ark. Code Ann. § 16-58-124 or ARCP Rule 4(d)(5) controls service of a writ of garnishment on a domestic corporation. As previously noted, the chancellor held §16-58-124 was controlling and the service attempted in this matter failed to comply with it. The appellant argues that Rule 4(d)(5) superseded § 16-58-124, and that her service of the writs met all the requirements of the Rule. Section 16-58-124(a) and ARCP Rule 4(d)(5) provide the following:
§ 16-58-124 METHOD OF SERVICE — CORPORATIONS
(a) When the defendant is a corporation created by the laws of this state, the service of summons may be upon the president, mayor, or chairman of the board of trustees. In the case of the absence of the above officers, then it may be served upon the cashier, treasurer, secretary, clerk, or agent of the corporation.
ARCP 4 SUMMONS
(d) PERSONAL SERVICE INSIDE THE STATE: A copy of the summons and the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows: (5) Upon a domestic or foreign corporation ... by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.
In our per curiam of December 18, 1978, we adopted the Arkansas Rules of Civil Procedure based on Act 38 of 1973 and our constitutional and inherent authority to regulate procedure in the courts. Before that time, the Civil Code controlled all aspects of practice and procedure in this state. Section 16-58-124 is part of that Civil Code and is found in Title 16 of the Code, Practice, Procedure, and Courts, and in subtitle 5, Civil Procedure Generally. Act 38 provides that all laws in effect at that time regarding pleading, practice and procedure in civil proceedings would remain in effect only until this court prescribed rules regarding the same. Since the adoption of the Rules of Civil Procedure, this court has listed statutes in per curiams that were deemed superseded. Section 16-58-124 was not included in the list. However, in the per curiams, this court has stated that the question of supersession of all other rules and statutes will be determined by Act 38 and the supersession rule — “All rules in conflict with the Arkansas Rules of Civil Procedure . . . shall be deemed superseded. . . .” See ARCP Rule 1, Reporter’s notes; see also Venable v. Becker, 287 Ark. 236, 697 S.W.2d 903 (1985). Under ARCP Rule 81 (a), it is stated that these rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this state, except in those instances where a statute which creates a right, remedy, or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.
The facts in the present case clearly illustrate that § 16-58-124 and Rule 4(d)(5) cannot stand together. Because the absence of the corporation’s president was never shown, service on the bookkeeper and the secretary of the corporation would not be proper under § 16-58-124. But, under these same circumstances, service on the secretary of the corporation and the bookkeeper, who testified that she was “more or less in charge of the office” at the time of the service, would be proper under Rule 4(d) (5). Since these provisions conflict and § 16-58-124 does not fit into the exception described in ARCP Rule 81(a), we must hold that Rule 4(d)(5) supersedes § 16-58-124. In so stating, we note the case of Travelodge International v. Handleman National Book Co., 288 Ark. 368, 705 S.W.2d 440 (1986), where this court stated that garnishment is a special statutory procedure and to the extent that the garnishment procedures differ from the Rules of Civil Procedure, the statutes control. However, in that case, this court was referring to Ark. Code Ann. §§ 16-110-401 to -110-415 (Garnishment Proceedings), and these statutes do not contain a method of service provision. Rather, § 16-110-402(2)(A) (Supp. 1989), states that the writs shall be served in the same manner as writs of summons, which would be pursuant to ARCP Rule 4.
Further, we note Rule 4(k), a 1986 amendment to the Rule, which states the following:
Whenever any rule or statute requires service upon any person, firm, corporation or other entity of notices, writs or papers other than a summons and complaint, including without limitation writs of garnishment, such notices, writs or papers may be served in the manner prescribed in this Rule for service of a summons.
This provision makes it clear that writs of garnishment are to be served pursuant to ARCP Rule 4.
Since we find error in the chancellor’s holding, we now turn to the appellee’s alternative arguments of why the default judgments should be set aside. The chancellor did not address these arguments below. However, we can address these issues, because we review chancery cases de novo, and the chancellor’s decision will be affirmed if correct for any reason. See Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978). We first address the appellee’s argument that the chancellor’s ruling can be affirmed, because the default judgments should have been set aside pursuant to ARCP Rule 55(c) for excusable neglect, unavoidable casualty, or other just cause.
Also, under ARCP Rule 60(c)(7), the trial court, after 90 days after the filing with the clerk of the court, has the power to vacate a judgment for unavoidable casualty or misfortune preventing the party from appearing or defending. However, before a judgment can be set aside under this rule, the defendant in his motion must assert a valid defense to the action and make a prima facie showing of the defense at the hearing. ARCP Rule 60(d). We have stated that default judgments are not favorites of the law and should be avoided when possible. See Burns v. Shamrock Club, 271 Ark. 572, 609 S.W.2d 55 (1980). Further, we have noted that default judgments are a harsh and drastic action and may deprive a party of substantial rights. Id.
While the chancellor did not rule on this issue below, the following evidence was presented in the appellee’s petition to set aside the judgments and by testimony at the hearing, on why the appellee failed to answer the writs. Wanda Hankins, the secretary of the corporation and the bookkeeper were the only ones that knew about the service of the writs of garnishment. When the writs were served, the appellee was already withholding money from Billy May’s salary pursuant to an earlier writ of garnishment from appellant’s judgment for child support. The bookkeeper believed and advised Wanda Hankins that the writs served on the corporation in November and February were related to this earlier writ of garnishment, with which the appellee was already complying. However, Wanda Hankins did testify that she wondered why she was receiving other writs when they were already withholding the money. In addition, the testimony showed that during this same time the company received and answered a writ of garnishment from the Surgical Clinic of Northeast Arkansas for medical expenses incurred by Billy May.
After reviewing the above evidence, we agree that the appellee’s failure to answer was due to neglect, but we cannot say that it was excusable. In Metal Processing, Inc. v. Plastic & Reconstructive Associates, 287 Ark. 100, 697 S.W.2d 87 (1985), this court faced a similar fact situation. There, a writ of garnishment was served on the company in compliance with ARCP Rule 4, but the company failed to answer and a default judgment was entered. In the company’s motion to set aside the default judgment, the president of the company argued that the defendant had only been employed for five weeks and was not due any money and that he did not realize that the writ was directed to him but assumed that it was just another suit against the defendant for his failure to pay his bills. In affirming the default judgment, this court noted that the writ’s simple and direct message was written in plain language and it is impossible to say that the garnishee’s failure to understand and comply with the writ is excusable neglect.
We believe that the holding in Metal Processing controls this case. As in Metal Processing, the writs, here, were written in plain language and included the dates of the appellant’s judgments. In addition, both writs clearly stated that a default judgment would be entered against the corporation for the amount of the judgments if no reply was made within twenty (20) days. A simple checking of the prior writ of garnishment would have shown that these writs were referring to two separate judgments. The secretary of the corporation, herself, expressed doubt as to why the writs would be served again if they applied to the earlier judgment. With such information before the corporation, the failure to comply with these writs cannot be excusable neglect.
Next, the appellee alleges five defects with the garnishment proceedings. We summarily dismiss two of these alleged defects, because the appellee failed to cite any legal authority in support of its argument. See Jones v. Ragland, 293 Ark. 320, 737 S.W.2d 641 (1987).
Appellee first alleges that the garnishment was defective because the garnishee was not accurately and properly named as a party. The appellee’s name is Bob Hankins Distribution Company, Inc., but the name of Bob Hankins Distributing Company was used in the writs of garnishment. We have stated that when there is some slight elaboration of the party’s exact corporation name, such an error is immaterial when no separate party is actually involved. Meek v. U.S. Rubber Tire Co., 244 Ark. 359, 425 S.W.2d 323 (1968). A misnomer is only fatal when it is so material and substantial as to indicate a different entity or to produce doubts as to the corporation intended to be sued. See 19 Am. Jur. 2d Corporations § 2216 (1986). Here, the garnishee is clearly identifiable. In fact, Bob Hankins admitted during his testimony that he refers to his company as Bob Hankins Distributing Company and Bob Hankins Distributing, and that Bob Hankins Dist. is on his letterhead.
Likewise, we find no merit in the appellee’s argument that the garnishment proceeding was defective because the garnishment papers did not specify the amount owed. Both of the writs of garnishment served on the appellee contained the amount of the judgments entered against its employee. The writs also contained the following language:
(T)he petitioner alleges that the Garnishee above named is indebted to the said defendant or has in his hands and possession goods, chattels, monies, and effects belonging to said defendant. Now, therefore, you are hereby commanded to summon the said Garnishee above named to appear in this Court within 20 days from the date of delivery of this writ to the Garnishee and then and there answer what goods, chattels, monies, credits, effects he may have in his hands or possession belonging to said defendant to satisfy the judgment aforesaid ....
The purpose of these writs of garnishment is to summon the garnishee to appear before the court and reveal how much money is owed to its employee. However, since the appellee failed to answer, the court properly entered default judgments against the garnishee for the full amount specified in the appellant’s judgments against Billy May plus costs pursuant to Ark. Code Ann. § 16-110-407 (1987).
In its last allegation of defects in the garnishment proceedings, the appellee relies on Ark. Code Ann. § 16-110-133 (1987) to argue that there must be a direct action against the garnishee with adequate notice of the claim being made. The appellee’s reliance on this statute is misplaced, because § 16-110-133 applies to attachment proceedings. Here, there has been no attempt to attach the garnishee’s property. Section 16-110-407 controls this situation, and it is a matter of settled law that a default judgment may be entered against a garnishee upon his failure to answer. See Karoley v. A.R.&T. Electronics, 235 Ark. 609, 363 S.W.2d 120 (1962); Wilson v. Overturf, 157 Ark. 385, 248 S.W. 898 (1923).
Finally, the appellee seems to argue that our statute, which allows default judgments to be entered when a writ of garnishment is not answered, is unconstitutional. Specifically, the appellee contends that there is lack of adequate notice of the plaintiffs claims against the garnishee. We decline to reach this constitutional issue. The parties fully developed this case below so that we were able to consider and decide the foregoing issues in this de novo review. However, such is not true regarding the due process question in this appeal. In cases when action in chancery court has prevented the case from being fully developed, we remand. Ark. Nat’l Bank v. Cleburne Bank, 258 Ark. 329, 525 S.W.2d 82 (1975).
For the reasons stated above, we reverse and remand.
Hays, J., concurs in part and dissents in part; Price, J., not participating.
In the alternative, the appellant argued that service was proper under § 16-58-124. However, since we agree with her first point, it is unnecessary to address this argument. | [
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Robert H. Dudley, Justice.
This is a second appeal of this case. The appellant, Linda Brimer, was employed as a bookkeeper by Mary Morgan and her husband, Dr. Benjamin Spock, from 1982 to 1984. During that time appellant misappropriated a large sum of her employers’ money; the prosecutor said it was a little over $138,000.00, and she said it was considerably less. She pleaded guilty to theft of property, a Class C felony. On January 12, 1987, the trial court sentenced her to six (6) years in prison, with two (2) years of the sentence suspended provided she made restitution of $135,000, payable over a twelve-year period. The beginning payments were to be $200.00 per month. Appellant appealed the judgment, but apparently did not make an appeal bond because she served fifteen (15) months in the penitentiary and made $200.00 payments to the clerk of the trial court in January, February, and March of 1988. On April 5, 1988, the $600.00 which she had paid to the county clerk was paid by the clerk to the victims. On March 14, 1988, we reversed and remanded the judgment because (a) the maximum sentence for the Class C felony was ten (10) years and the trial court made the period of restitution run over a twelve (12) year period, and (b) the appellant was not allowed to offer testimony about the amount she owed. Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988).
By order dated October 24, 1988, the appellant was resentenced to (a) ten (10) years suspended imposition of sentence, (b) $20,000.00 in restitution, payable at the rate of $100.00 per month for one year, $200.00 per month through December 1996, and the balance due before January 1, 1997, and (c) entry of a civil judgment in favor of Benjamin Spock and Mary Morgan in the amount of $83,000.00. In short, aside from the prison term, the resentencing amounted to an order of restitution and a civil judgment totaling $ 103,000.00 while the original order of restitution had been for $135,000.00. The appellant did not appeal from this second sentence. It became a final judgment.
Over the next six (6) months, the appellant did not make the first six (6) payments of $100.00 due each month under the order of restitution and did not make any payments on the $83,000.00 civil judgment. The prosecutor filed a petition to revoke appellant’s suspended imposition of sentence, and Spock and Morgan sought to garnish appellant’s wages. The trial court set a hearing on the petition to revoke. Appellant did not file any pleadings in either action.
At the revocation hearing no witnesses were heard. The attorneys agreed no payments had been made under the second order of restitution. The appellant’s attorney argued that she was entitled to six (6) months credit for the $600.00 paid under the first, or reversed, order of restitution, and the State’s attorney argued that $600.00 was expressly considered in the agreement to reduce the judgments from $135,000.00 to $103,000.00. In its findings the trial court held in accordance with the State’s argument, but stated that appellant was legitimately confused over the matter and refused to revoke the suspension of imposition of sentence. Even though the suspension was not revoked, the appellant appeals claiming she is entitled to the $600.00 credit.
Jeopardy has attached on the issue of revocation of sentence for failure to pay the $600.00, and appellant has prevailed on that issue. Thus, she has nothing to appeal on that count. In this appeal, she attempts to appeal only as to lack of a credit on the order of restitution. In doing so, she questions the $20,000.00 restitution contained in the court’s earlier order dated October 24, 1988, and now argues, in effect, that she owed only $19,400.00 when the October 24 order was entered. Having failed to appeal from that earlier order, appellant is precluded from challenging the restitution amount in this revocation proceeding.
The trial court’s oral ruling on the $600.00 is interlocutory in nature. It is not at all a final enforceable order for a definite sum of money. It did not dismiss or end the order of restitution, or conclude either party’s rights in the matter. It is not an appealable order under Rule 2 of the Rules of Appellate Procedure.
Appellant next argues the trial court erred in allowing garnishment by the judgment creditors. The matter was not preserved for appeal.
As previously set out Spock and Morgan held a civil judgment against appellant in the amount of $83,000.00. They caused a writ of garnishment to issue against appellant’s employer on March 2,1988. The “Notice to Defendant” required by Ark. Code Ann. § 16-110-402(1)(A) (Supp. 1989) may not have been attached to the writ. Appellant did not file any type of pleading asking that the writ be quashed for failure to attach the notice. The garnishee paid $112.25 into the registry of the court. On March 23,1989, the trial court ordered the money paid over to Spock and Morgan. Twelve (12) days laters, on April 4, appellant’s counsel, in a post-trial letter brief about the revocation issue, mentioned for the first time that the proper notice was not attached to the writ. If the trial court was even aware of the argument, he did not rule on it as the writ had been issued and returned, and the proceeds from it ordered paid over to the judgment creditors. Thus, the matter was not preserved for appeal.
Affirmed in part and dismissed in part.
Price, J., not participating. | [
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Darrell Hickman, Justice.
Ronald Shane Smith was convicted of second degree murder on August 11,1989. He filed his notice of appeal on August 24,1989. The record is due to be filed with our clerk on February 14, 1990.
Smith has filed a motion asking for permission, under A.R.Cr.P. Rule 37, to file a motion for a new trial with the trial court. The basis for the motion is newly discovered evidence consisting “of two statements made by a Frank Pilcher, which would indicate that parties other than the petitioner were responsible for the death of the victim in the instant case.”
The state points out that Rule 37 has been abolished, and the correct procedure for “bringing newly discovered evidence before a lower court after conviction but before affirmance is by petition for a writ of coram nobis. See Edgemon v. State, 292 Ark. 465, 730 S.W.2d 898 (1987); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984).” Since both Smith and the state misunderstand the law, some elaboration is in order.
First, Rule 37 was abolished in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). Smith, who was convicted after Whitmore, is entitled to no relief under Rule 37.
Second, a motion for a new trial on the basis of newly discovered evidence must be filed with the trial court within 30 days from the entry of the judgment. Ark. Code Ann. § 16-91 -105 (1987); A.R.Cr.P. Rule 36.22. Smith’s motion is too late.
Third, we have not held that a writ of coram nobis can be granted on the basis of newly discovered evidence. Gross v. State, 242 Ark. 143, 412 S.W.2d 279 (1967); Penn v. State, supra. However, the language in Edgemon v. State, supra, does leave that impression and is in error in stating newly discovered evidence is a basis of relief under coram nobis. We said in Penn v. State, supra, newly discovered evidence was not a basis for a writ of coram nobis.
Fourth, the facts do not fit the exception made in Penn v. State, supra. Penn did not establish the writ of coram nobis. It merely expanded the remedy to include, as a grounds for relief, a confession by a third party to the crime after trial and before we have decided the case on appeal. That is all Penn holds.
In Penn we reviewed what a writ of coram nobis was and the existing grounds for such a writ.
Smith’s request fails for two reasons: (1) it is a motion for a new trial based upon newly discovered evidence and is filed too late, and (2) it does not enumerate any relief available under a writ of coram nobis. Finally, it is noted that the basis of relief is couched in conclusory language anyway and could not be the basis of relief under any procedure.
Motion denied. | [
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Smith, J.
This is a suit in ejectment brought by appellee, who owns the northeast quarter of section 31, township 19 south, range 22 west, in Columbia County, Arkansas, against appellants, who own the southeast quarter of that section, it being alleged in the complaint that appellants, the defendants below, are in the unlawful possession of a portion of the northeast quarter, which the complaint described by metes and bounds. The correct location of the true line between these two quarter sections of lands is determinative of the question at issue. There was a verdict for the plaintiff, the effect of which was to sustain his contention as to the location of this line. A judgment was pronounced upon this verdict, which awarded to the plaintiff the possession of the land in litigation, and the defendants seek by this appeal to reverse that judgment. As grounds for rever sal, it is insisted, (1), that the testimony does not sustain the verdict, and (2), that error was committed in excluding testimony offered on behalf of defendants.
This dividing line was in dispute between the parties, and the defendants employed J. L. Pope, a surveyor, to run the line. Pope performed this service, and his survey established the line as contended for by plaintiff. Pope made a plat of his survey, which he offered in evidence in explanation of his testimony, and with this plat in hand he testified as follows: “This is the line right here, a straight line, the land line. Here is the northeast quarter, and here is the southeast quarter. The southeast quarter is owned by L. D. Mason, and the northeast quarter by J. M. Mason, and this is the line between them, and Mr. Luther Mason’s fence (one of the defendants) is fifty-eight feet north of this corner, and runs at an angle for one hundred and twenty feet, and right here it crosses this quarter a quarter of a mile to here, and then runs due north, and thence northwest to the public road, and then it turns back here and back to this line.”
Witness checked the description on the plat of the land in litigation, and showed that it was correctly described by metes and bounds in the complaint, and was, in fact, north of the dividing line between the two quarter sections, and therefore a part of the land owned by the plaintiff.
The witness testified that the survey was made after locating the government corners. Another surveyor, named Puska, verified this survey, except that Puska’s survey gave plaintiff twelve feet more land than Pope’s survey did.,
Both these surveyors admitted that they had made former surveys to locate this dividing line, and that the former surveys sustained defendant’s contention as to the location of the dividing line, but they testified that, in these former surveys, they had accepted as a corner a point located by defendants as 'such, and had proceeded upon the assumption that the point shown them as the corner was the true corner, whereas the last surveys had. been made after they had located the true corner at another point.
This testimony is sufficient to support the verdict.
L. D. Mason, one of the defendants, offered to testify that he knew of another survey, made in 1882 by Andrew B. Johnson, who was the county surveyor at that time, and that the trees showing the government corner were then in existence, and that Johnson located the line between the two quarter sections north of the tract of land in controversy. The court excluded this testimony, and that action is assigned as error.
Appellants cite authorities to the effect that the surveyors who made the survey, the chain carrier who assisted him, and other non-experts, may testify as to the location of the line of the survey upon the ground, the placing or marking of the original monuments, and the order in which the lines were run. But the rejected testimony does not come within the rule contended for. Johnson was not offered as a witness, nor was the testimony of any other witness offered who was shown to have been present at the survey, nor was there any offer to introduce any record of a survey which Johnson had made as county surveyor. Section 1897, C. & M. Digest.
The testimony offered was hearsay, pure and simple, and no error was committed in excluding it.
As no error appears, the judgment is affirmed. | [
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Griffin Smith, C. J.
The plaintiff, Dover Mercantile Company, is a corporation. S. M. Myers is the wife of D. E. Myers. The corporation sued in circuit court to quiet and confirm its title to 160 acres and two lots purchased at an execution sale, allegation being that the defendants claimed some interest in the property —an interest “not founded upon law.”
The answer of S. M. Myers denied that the corporation had title, the facts being, she said; that the lands were her separate estate. As to the tract containing 160 acres, it, with other lands, was acquired in 1925 through purchase from Road Improvement District No. 1 of Polk County, the District having foreclosed for delinquent assessments. Also, in 1925, Mrs. J. A. Mullins conveyed to S. M. Myers two lots in Mena. The mercantile company had procured judgment against D. E. Myers on his independent obligation. Levy under execution was upon the lots and acreage. There was a prayer that the cause be transferred to equity.
. In a reply to Mrs. Myers’ answer, the corporation admitted the acreage was acquired by the improvement district, but alleged that D. E. Myers was actual purchaser, he having procured a deed in his wife’s-name. It was claimed he had consistently assessed the property as his own, and in like manner he had paid taxes, except that on two occasions forfeiture was to the state, in consequence of which D. E. Myers redeemed in his own name before there had been certification to the commissioner at Little Rock.
As to the lots in Mena, it was alleged that prior to 1925 they were owned by Mrs. Mullins, and that D. E. Myers owned two acres near Hatfield. The Mena lots and the acreage near Hatfield were exchanged, title to the lots having been taken in the name of S. M. Myers. The deed was not placed of record until after the mercantile company levied. It was charged that alterations had been made whereby S. M. Myers was substituted for D. E. Myers as grantee. Following the levy, this deed was recorded. It was thereafter lost. Deed to the IGO-acre tract was not recorded until the levy was made.
S. M. Myers did not testify. Except as to record entries, most of the evidence is statements made by D. E. Myers on direct and cross examination. In effect he admitted insolvency in 1922. This status was brought about because he improvidently indorsed notes for $16,000. Myers detailed efforts he had made to meet the obligations he was secondarily bound to discharge. He told of other judgments, some of which had been paid. His contention was that a bank failure and stock obligations resulted in financial ruin, although at points in his testimony there was the contention that substantial equities in property existed. This witness was called by appellant.
Appellees stress that while the deeds to Mrs. Myers were executed in 1925, appellant’s judgment was not procured until 1930.
Myers ’ testimony is confused and is far from satisfactory as a guide upon which to predicate a decision. It is apparent that the chancellor had this view. But it is equally certain that the chancellor did not believe appellant had met the burden of proving the property in question was not purchased with the separate funds of Mrs. Myers. Here, too, the testimony is rather vague. It was contended that a large herd of cattle sold long before the present controversy arose was partly owned by Mrs. Myers, and that proceeds were invested for her. This may be true, or it may not. But in any event the chancellor had to decide whether fraud charges had been sustained. His determination is not contrary to a preponderance of the evidence when it is considered that one who alleges must establish the ground upon which relief is sought.
Affirmed. | [
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McHaney, J.
This is the second appeal of this case, the first being reported in 171 Ark. 197, 284 S. W. 53. The former case was first affirmed, and petition for rehearing overruled. A short time thereafter appellant paid the-judgments of the two lien claimants, who are the appellees herein. Some months after the first decision the .court, on its own motion, recalled the judgment, amended its opinion, set aside the original judgment of affirmance, and reversed and dismissed the causes on the ground that, at the time the actions were instituted, the appellees did not have claims which might he the basis of liens, following its former decision in the case of Acme Brick Co. v. Swim, 168 Ark. 185, 269 S. W. 369. Thereafter .the appellees filed a petition for rehearing, which was granted, and the former order of the court dismissing the case was set aside, and the cause was reversed, and remanded for a new trial. Thereupon appellant demanded of appellees that they refund it the money it had erroneously paid them, and, upon their refusal to return same, it filed an answer and cross-complaint in each case in the court below, alleging the facts heretofore set out, and prayed judgment against appellees for the amounts paid them. The facts in the original action are stated in the opinion on the former appeal.
The appellees answered, admitting that these payments had been made, but, by way of offset against any claim of appellant, they stated that it Avas indebted to them, as set out in the original complaint, which they pleaded in bar of. any right of appellant on its cross-complaint. They also filed amendments to their original complaints, that the material sold to Shepherd, a subcontractor of appellant, Avas in fact contracted for by appellant, 'but AA7as, at its request, and for its convenience in keeping- separate the amount delivered to Shepherd, charged to Shepherd’s account; that Shepherd had been doing the plastering- work on the building, and that a controversy had arisen because of which Shepherd had. abandoned his contract with appellant, and it was carrying out Shepherd’s contract, and for this reason, in order to fix liability :on Shepherd’s bond to it, it desired the material charged to Shepherd, but that appellant agreed to pay for it; that the material was ordered out by appellant’s superintendent in charge of the building, and that all of the items were in fact delivered to 'appellant, who agreed to be primarily liable therefor, but desired the account carried in the name of Shepherd for its convenience; that, upon the completion of the contract, appellant, through its superintendent, requested a final statement, which was furnished and ok’d by its superintendent, and that the appellees were requested by appellant to bring action against it, Shepherd and the Fidelity & Deposit Company of Maryland, for the purpose of establishing their claims, so that appellant could realize on the bond of Shepherd.
Appellant answered, denying all these allegations, demurred to the amendment to the complaint, and moved to strike the same from the records, on the ground that it stated a new cause of action different from that alleged in its original complaint. The court overruled the demurrer and motion to strike, as also the plea of the statute of frauds, on the ground that said agreement was not in writing. The case was submitted to a jury, and, on a finding in favor of appellees, judgment was rendered for them, from which is this appeal.
We cannot agree with appellant that the court erred in overruling its demurrer and motion to strike. Appellant had been made a party defendant in the original suit because it was the original contractor, having given a bond to the State of Arkansas for the use and benefit of all persons who might have liens, in which it was set up that Shepherd, the contractor, had purchased the material. This was done at appellant’s request in order to fix 'the liability of Shepherd so that appellant might collect from him on his bond given to the principal contractor. In that suit appellant was sought to be held as secondarily liable, that is, liable on its bond to all persons who might have liens. The effect of the decision in the former case was, as finally determined by this court, that the complaints in that case did not state a cause of action against the bonding company, because not filed within the ninety-day period fixed by the statute from the date of the last item of material that had been furnished, and therefore did not fall within the statute giving materialmen a right - of action against the bonding company, one of the defendants, as construed in the case of Acme Brick Co. v. Swim, supra. It did not preclude appellees, on a remand of the case, from amending their complaints in any manner which the facts justified to show appellant primarily liable for their claims. We do not think the cases cited by appellant support his contention in this regard. On a remand of the case the court permitted both sides to amend, appellant to amend its answer and file a cross-complaint, and the appellees to amend their complaints. By permitting the amendment to the complaint, the cause of action was changed from one on the bond to one of debt. Under our liberal system of pleading and amendments to pleadings, we do not think there was any error in permitting this to be done. Indeed, appellees could have filed an original suit against appellant, alleging that it purchased this material, had not paid for it, and praying for judgment for the amount thereof. Certainly, if this could be done, the court did not abuse its discretion in permitting appellees to amend their complaints and try out this matter in the suit pending.
The next assignment -of error is that the court erred in overruling its objections to certain testimony of Brewster and McMillan. This testimony related to conversations had with one Ingram, who was the foreman of appellant in charge of the construction of the building. It is admitted by appellant that Ingram was its foreman in charge of the work, and had authority to order out material for the building as the work progressed.' These conversations were to.the effect that Ingram had told them that Shepherd had abandoned his contract for the plastering of the building, and that appellant had taken same over to be completed by it, and that, for its convenience, so that the plastering account and the general construction account would not get confused, it desired that the material furnished for plastering be charged in the name of Shepherd, but that it would be paid for by appellant. Ingram had authority to order out material as the work progressed, and in fact did order same out from time to time as it was needed, and he had the implied power to bind appellant by placing orders for this material, as it was in the apparent scope of his authority. This, too, regardless of the fact that the president of appellant stated that he had no authority to make ,a contract for the purchase of material, but only to order same out after he had made the contract of purchase. By putting him in charge of the work, with authority to order out the material; he had the implied power to order any necessary material for the building, whether previously purchased by appellant’s president or not. And we think the conversations above referred to were competent testimony, and that there was no error in the court’s overruling the objections thereto. Being the foreman of construction, and being on the job all of the time, with authority to order out material, it was certainly within the apparent scope of his authority to direct appellees to charge the material in the name of Shepherd, who, it is alleged, defaulted in his contract to plaster the building, for the convenience of appellant in keeping the accounts separate, so that appellant could hold Shepherd’s bondsmen liable for the amount thereof.
There was no error in the refusal of the court to instruct a verdict in appellant’s favor, at the conclusion of appellee’s testimony, and at the conclusion of all of the testimony. Appellees had testified to facts and circumstances which, if'believed by the jury, made appellant primarily liable for the debts due appellees as having been ordered out by it directly, with a request to charge it to Shepherd. This was the state of the testimony when appellees rested. Appellant denied this evidence given by appellees, which made a disputed question of fact at the conclusion of all the evidence, making it a case for the jury. "Where there is a disputed question of fact on a material issue, it is not proper for the court to instruct a verdict for either party. ■
Complaint is made to the giving of instructions requested by appellees and in modifying and giving one instruction requested by appellant. We have examined these assignments of error carefully, and find no error in them. We do not set them out, as it would unduly extend this opinion. Suffice it to say that the case was submitted to the jury under correct instructions which fairly submitted the contentions of both sides, and, it having found against appellant, the judgment will be affirmed. | [
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McHaney, J.
This appeal is prosecuted from a decree of the cha.ncery court of Sevier County holding valid a mortgage on the furniture, fixtures and equipment of a restaurant or cafe known as the Bon Ton Cafe. Appellant is a creditor of this concern and appellee is the holder of a mortgage given to secure a valid indebtedness. In connection with its restaurant business, the Bon Ton Cafe had a soda fountain, sold cold drinks, cigars and confections. This was, however, incidental to its main business, that of serving foods to its customers. Appellant concedes appellee’s indebtedness, but seeks to have its mortgage declared void under act 374, Acts of 1923, which is amendatory of § 4870 et seq., C. & M. Dig., commonly known as the “Bulk Sales Law.” The first section of said act reads as follows:
“The sale, transfer, mortgage or assignment, in bulk, of any part of or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conduct of any such business, otherwise than in ordinary course of trade and in the regular prosecution of the business of the seller, transferrer, mortgagor or assignor, and the purchaser, transferee, or assignee shall, at least ten days before the sale, or the giving of said mortgage, make a full detailed inventory and preserve the same, showing the quantity and, so far as it is possible with the exercise of reasonable diligence, the cost price to the seller, transferrer and assignor of each article to be included in the sale; and also, unless the purchaser, transferee or assignee demands and receives from the seller, transferrer or assignor a written list of the names and addresses of the creditors of the seller, transferrer or assignor with the amounts of-the indebtedness due or owing to each, certified by the seller, transferrer or assignor, under oath to be a full, accurate and complete list of his creditors and of his indebtedness; and also unless the purchaser, transferee or assignee shall, at least ten days before taking possession of such merchandise and fixtures or paying therefor, 'notify, personally or by registered mail, every creditor whose name and address is stated in said list, or of whom he has any knowledge, of the proposed sale and the price, terms and conditions thereof. Sellers, transferrers, mortgagors and assignors, purchasers, transferees, mortgagees and assignees under this act shall include corporations, associations, copartnerships, and individuals. But nothing contained in this act shall apply to sale by executors, administrators, receivers, trustees in bankruptcy, or any public officer under judicial process. Any purchaser, transferee, mortgagee or assignee who shall not conform to the provisions of this act shall, upon application of ¡any creditor of the seller, transferrer or assignor, become a receiver and be held accountable as such to creditors for all goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale, mortgage, transfer, or assignment; provided, however, that any purchaser, transferee, mortgagee or assignee who shall conform to the provisions of this act shall not be held in any way accountable to any creditors of the seller, transferrer or assignor for any of the goods, wares, merchandise or fixtures that may come into his possession by virtue of such sale, transfer or assignment.”'
In the case of Ramey-Milburn Co. v. Sevick, 159 Ark. 358, 252 S. W. 20, this court held that the bulk sales law “has no application to a manufacturing plant which sells its product merely as an incident to the business.” In Fiske Rubber Co. v. Hayes, 131 Ark. 248, 199 S. W. 96, an automobile agency and accessory business was held not to be within the bulk sales law. See also Robbins v. Fuller, 148 Ark. 173, 229 S. W. 8. In State Bank of Siloam Springs v. Marshall, 163 Ark. 566, 260 S. W. 431, 34 A. L. R. 202, this court, in defining a merchant or trader, said:
“One engaged in the business of running a boarding and rooming-house is not engaged in the purchase and sale of merchandise or chattels, but is engaged in furnishing the traveling public with a temporary home and with food. It is true that groceries and other merchandise are purchased for use in running rooming-houses and feeding the boarders, but the articles are used by the roomers, and served to the .boarders in a changed form. It has been well said that to say that such a business is that of a merchant or trader is giving those words an elasticity of meaning not according to common usage” (citing cases).
It will be noticed from the language of the act that it pertains only to the business of merchandising — the business of a merchant or trader' in merchandise — and the prohibition is leveled against the sale or mortgage in bulk of a “part of or the whole of a stock of merchandise, or merchandise and fixtures”, of a merchant. Clearly, we think, a keeper of a restaurant, whose business it is to serve food and drink to the public, is not engaged in the mercantile or merchandising business, nor is he a merchant, within the meaning of the bulk sales law. Even though he may keep some merchandise which is used or useful in his business, including cigars and cold drinks, still we are of the opinion that this does not change the character of the business, but is only incidental thereto.
We therefore conclude that appellee’s mortgage is valid, and that the' chancery court correctly so held. The decree is accordingly affirmed. | [
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McHaney, J.
Petitioner has filed in this court a petition for a writ of prohibition against the respondent, as chancellor of the Sebastian Chancery Court, Greenwood District, praying that respondent be prohibited from hearing and determining a consolidated cause pending in said chancery court, on the ground that said court is without jurisdiction to hear and determine same. The petitioner alleges in his petition that, as administrator of the estate of Eobert S. Boyd, deceased, he brought a suit in the Sebastian Circuit Court, Greenwood District, on Nov. 27, 1926, against the Mutual Benefit Health & Accident Association, to recover on an accident policy of said as sociation in the sum of $1,500 held by his intestate, in which said association agreed to pay said sum in the event of the accidental death of said intestate; that said Boyd came to his death on November 23, 1925, through accidental means, within the meaning of said policy, and was therefore liable to the plaintiff in said sum, for which he prayed judgment.
The defendant in this action filed an answer, admitting that said Boyd had taken out a policy in said company and paid the premium thereon up until April 1, 1925, by which it insured the said Boyd from loss of life through accidental means in the sum of $1,500, but that suicide, sane or insane, was not one of the risks covered by said policy; that said policy lapsed on April 1, 1925, for nonpayment of premiums, and was not in force thereafter until the 12th day of October, on which date Boyd procured the defendant to reinstate said policy, and paid the premium thereon to December 31, 1925, and denied that Boyd came to his death through accidental means, or in any way in which to make said defendant liable. It was further alleged in said answer that said Boyd procured the reinstatement of said policy on October 12 with the purpose and intent of committing suicide, so as to benefit his estate-in the sum of $1*500' and to defraud the defendant out of said sum; that, during the period covered by said policy after reinstatement, to-wit, on November 23,1925, said Boyd committed suicide with the intent of defrauding the defendant, and that his action in thus procuring the reinstatement of the policy constituted a fraud upon the.'defendant, and that therefore the reinstatement was void and of no effect. The defendant-further alleged that it had instituted a suit in the Sebastian Chancery Court, Greenwood District, against the plaintiff, by which it sought to have the reinstatement of the policy canceled and set aside for fraud, and prayed that the cause pending in the circuit court be transferred to equity. Upon a hearing of the motion to transfer, on January 18, 1927, the motion was granted and the cause was transferred, over the objections and exceptions of petitioner, to the chancery court, and was there consolidated with the canse of action pending in the chancery court heretofore mentioned. Thereafter, on April 23,1927, petitioner filed in the chancery court a motion to transfer back to the law court, because the chancery court had no jurisdiction, and because there was a full, complete and adequate remedy at law for said association, which was overruled by the court. Petitioner thereafter filed a demurrer and answer to the suit pending against him in the chancery court.
Petitioner further alleges that, unless prohibited by tins court, the respondent, as judge of the Sebastian Chancery Court, will proceed therein, to determine said cause, and he therefore prays that this court prohibit respondent from so doing. To this petition respondent filed a general demurrer.
This is an original proceeding in this court, and not a proceeding by way of appeal, and this court cannot consider the alleged errors of the circuit court and chancery court to determine whether the application for the writ should be granted. In the recent case of District No. 21 United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546, this court said:
“The case not being here on appeal, but upon prohibition, our consideration must be confined to the question of the power of the chancery court to appoint a receiver in a case of this sort. The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. ’ ’ Citing Russell v. Jacoway, 33 Ark. 191, and Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59.
The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction; but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. To illustrate: The circuit judge certainly had jurisdiction to pass upon the motion to transfer to equity the case pending in its court. If it erroneously transferred the case to equity, prohibition is not the remedy. It can be corrected only on appeal. Petitioner pursued the proper course in objecting and excepting to the order of the circuit court- transferring the case to chancery, and by appearing in the chancery court and moving to transfer the case back to the circuit court. Upon his motion to re-transfer being overruled in the chancery court, he could pursue either of two courses: He could stand upon his motion and refuse to proceed with the trial, in which case the chancellor would no doubt dismiss his complaint and enter a judgment against him, from which he could appeal to this court, thereby testing the jurisdiction of the chancery court. Hodges v. Harrell, 173 Ark. 210, 293 S. W. 25, where a similar procedure was adopted. Or he could go to trial in the chancery court, and, upon an adverse decree against him, he could appeal to this court, where this court would review the case for all errors appearing in the record de novo.
We therefore refrain from a discussion of whether the transfer from the circuit to the chancery court was right, and whether the decision of the chancery court on the motion to re-transfer to the circuit court was right, for, if both of these decisions were wrong, they cannot be corrected by prohibition, and can only be corrected by appeal. The petition for a writ of prohibition is therefore denied. | [
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Humphreys, J.
This suit was brought in a justice of tlie peace court in Crawford County, Arkansas, by appellee against appellant, to recover $75 for the neglig-ent killing of a female dog, on December 23,1925. Judgment was rendered for said amount against appellant, by default, from which an appeal was duly prosecuted to the circuit court of said county, where the case was set for hearing on March 24, 1927. On March 23, the day before the trial, appellant filed a motion to require appellee to make the complaint more definite and certain, whereupon he amended liis complaint to allege that the dog was killed by a westbound train on December 23, 1925, and stated in open court that the dog was killed between 6 o’clock p. m. oil the 23d and. 6 o’clock a. m. on the 24th of said month. After receiving- this information, appellant filed another motion to make the complaint more definite and certain by requiring- appellee to designate the train that killed the dog-, or to state the time within an hour when the dog- was killed, upon the theory that it could not make a defense except at great cost, on account of numerous trains that passed west between the alleged hours.
The court overruled each motion, and exceptions were properly saved to the rulings.
Thereupon appellant filed a motion for a continuance on the ground that six of its westbound trains passed between the hours alleged, and that it would require considerable time to confer with the engineers and firemen operating each train, and, as all lived at a distance, it would require time to secure their attendance as witnesses on the court, and, if present in court, each would testify he was maintaining a constant lookout at the point at which the dog was supposed to have 'been killed, but neither saw the dog, and that the train operated by him did not kill her. The court overruled the motion for a continuance, over the exceptions of appellant. On the following day the cause was called and tried, resulting-in a judgment against appellant, from which is this appeal.
Appellant testified that he loaned two dogs, on December 22, 1925, to a neighbor, one being the dbg in . question; that the other dog returned on the night of the 23d, but that the dog- in question failed to come home; that he found her on the 26th or 27th day of December, lying fifty or sixty feet off the railroad track, down in a ditch beside the track, with marks indicating- that she had been knocked down there from the east to the west; that one side of the dog was skinned up, and that blood was running from her mouth and nose; that her fair market value was $100; that the railroad track where she was killed was straight in both directions for a distance of.about half a mile. Other evidence was intro cluced tending to corroborate appellant’s testimony with reference to the value of the dog.
At .the conclusion of the testimony each party requested the court to direct a verdict in his favor, and asked no other instructions. By doing this they, in effect, agreed that the question at issue should be decided by the court, and the court’s finding in favor of appellee was tantamount to a finding of a jury in his favor. St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643, Ann. Cas. 1913C, 1339.
Appellant conténds for a reversal of the judgment upon the alleged ground that there is .no substantial evidence in the record showing that the dog was killed by the train. We think the mangled condition of the dog and the __ fact that she had been knocked from east to west down into a ditch fifty or sixty feet from the track made it a question for the jury to say whether she was killed by the train. Appellant is therefore bound upon this issue by the finding of the court against him. As a result of this finding, a presumption of negligence arose, and the burden was then upon appellant to show that it had not negligently killed the dog. Mo. Pac. Rd. Co. v. Bain, 370 Ark. 594, 280 S. W. 625.
Appellant further contends for a , reversal of the judgment because it was prevented from meeting this burden by the court’s refusal to sustain its motion, for a continuance. Appellant availed itself of the first opportunity to obtain an allegation as to when the dog was killed, with sufficient definiteness to make a defense. It did not have time thereafter or before the trial to get its witnesses, so the court erred in overruling its motion.
In passing it may be said that appellant alleged as definitely as he knew as to the time the dog was killed, and testified as definitely as he could relative to the date. Appellant, could only be required, under the allegations and proof, to bring into court the witnesses who operated its westbound trains between 6 o ’clock p. m. on the 23d and 6 o’clock a. m. on the 24th of December, 1925. The expense attached to bringing them into court could not relieve appellant of the duty to meet the burden by showing that it did not kill the dog, or, if so,' that it did iiot kill her negligently.
On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial. | [
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Hart, C. J.,
(after stating the facts). The first contention of appellants is that the court was without power to .set aside the decree of foreclosure which it had rendered in favor of appellants against appellees on the 14th day of May, 1925. They contend that the term of court had expired by operation of law when the decree was set aside on the 13th day of July, 1925, and that the court hiad lost control of it, except for the causes mentioned in § 6290 of Crawford & Moses’ Digest, giving courts power, after the expiration of the term, to vacate or modify their judgments for certain specified causes. It is the contention of appellees that the term of court had not ended by operation of law in July, 1925, when the decree of May, 1925, was set aside, and the chancellor evidently acted on this theory, because he set aside the decree on his own motion and not for any of the grounds mentioned for setting aside decrees after the expiration of the term.
The correctness of the ruling of the chancery court • depends upon the construction • to be given to the act creating the First Chancery District, when considered in connection with the subsequent statute enacted for the purpose of expediting the business in the chancery courts of the First Chancery District.
The Legislature of 1923 passed an act that the First Chancery District should thereafter be composed of Pulaski, White, Lonoke and Prairie counties. Under the terms of the act the chancery court was to be held in Lonoke County on the third Monday in May and November; in White County, on the. second Monday in June and December, and for the Southern District of Prairie County on the first Monday in May and November. Acts of 1923, p. 271. The Legislature of 1925, for the purpose of expediting- the business in the chancery courts of the aforesaid counties, provided that the chancery courts of said counties “shall always be open for the transaction of business, and may hear cases and render decrees in said counties at any time. ’ ’ Acts of 1925, p. 250.
Before the passag-e of the act of 1925, the term of a chancery court in the Southern District of Prairie County, where the decree in question was rendered, began on the first Monday in May and November. The decree was rendered at the May term, 1925. Before the act of 1925, the May term would have ended by the adjournment of the chancery court by the chancellor, or by operation of law when court was begun in Lonoke County on the third Monday in May, 1925. Both the above acts must be construed tog-ether, and, when so construed, we are of the opinion that the chancery courts of this chancery district still have terms. This court has held that it was within the power of the Legislature to prescribe the time and place of holding, courts and to authorize courts to be in session at all times for certain purposes. Wilmot Rd. Imp. Dist. v. De Yampert, 159 Ark. 298, 251 S. W. 880, and Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002. It necessarily follows that, if the Legislature had the power to provide for courts to be kept open for certain purposes, it might also provide that they be kept open at all times for all matters within the jurisdiction of such courts. We are of the opinion that, when both acts are construed together, the act of 1925 did not albolish the terms of court, but it did change the duration of the terms. The chancellor could no longer adjourn court for the term, and the term did not end by operation of law when the time for holding court in another county in the chancery district arrived. Under the act of 1923, as amended by the act of 1925, the term of the chancery court in each county in the chancery district continued until the arrival of the day designated by the statute for the beginning of another term of the same court for the same county. The evident purpose of the act was to continue the term of court in each county from the be ginning of the term until the opening- of the next term in the same county. This would enable the chancellor to hold court at any time in the county when he was not engaged in like service in another county in the chancery district, and we are of the opinion that the term of the chancery court of the Southern District of Prairie County continued from the first Monday in May until it ended by operation of law at the beginning of the succeeding term on the first Monday in November. During the entire term the court had plenary power over its decrees, and might vacate, set aside, modify, and annul them. Hence the chancellor had the power to set aside the decree rendered in May in the succeeding July.
The court held that appellants were barred of maintaining this action by the statute of limitations, and counsel for appellants insist that this was error under the ruling in the case of Gorman v. Pettus, 72 Ark. 76, 77 S. W. 907. In that case the evidence showed that Cook had borrowed a sum of money from Rolfe, which was paid him through Pettus & Buford. A part of the money so borrowed was applied to the payment of a prior incumbrance on land that Cook mortgaged to Rolfe to secure the loan. One hundred dollars of the borrowed money were applied to the credit of an account which Cook owed Pettus & Buford, and which was barred by the statute of limitations. The remainder of the borrowed money was paid Cook. The bookkeeper of Pettus & Buford gave Cook a statement showing the disposition of the money. This statement showed that $100 had been applied in part payment of the account sued on. There was other evidence to show that Cook, within four or five months of his death, admitted that he was indebted to the plaintiff. This court held that the evidence was sufficient to support the finding of the circuit court that the $100 was appropriated and paid on the account of and with the knowledge and consent of Cook, and that ihe circuit court was justified in finding that there was a part payment by Cook and a promise to pay the balance due.
The reason is that part payment is treated as an admission of the continued existence of the debt and an implied promise to pay the balance. It is equally well settled, however, that such promise is not to be implied where the part payment is accompanied toy circumstances or declarations of the debtor showing that it is hot his intention to admit, by the payment, the continued existence of the debt, and his obligation to pay the balance. Burr v. Williams, 20 Ark. 171; Chase v. Carney, 60 Ark. 491, 31 S. W. 43; and Cox v. Phelps, 65 Ark. 1, 45 S. W. 990.
In this connection it may toe .stated that the part payment in the present case was a debt which Sanders owed McOlintock, and which he wished to1 set-off against the note which he claimed McOlintock owed him. This court has held that, before a cross demand or set-off can constitute a payment, it is indispensable that an agreement to that effect shall be proved. Parker v. Carter, 91 Ark. 162, 120 S. W. 836, 134 Am. St. Rep. 60. It may also be stated here that, under the holding in Blackburn v. Thompson, 127 Ark. 438, 193 S. W. 74, we cannot consider the testimony of McOlintock on this point, because the suit was brought by the executrix of the estate of R. H. Sanders, deceased.
We are of the opinion, however, that, in the application of the principles of law above, announced, the chancellor was justified in holding that McOlintock did not admit by payment the continued existence of the debt and did not obligate himself to pay the balance. It is not enough to prove an admission of indebtedness, if it is accompanied by circumstances which repel such inference, or even leave it in doubt whether the party intended to revive the cause of action. Morrow testified that Sanders and McOlintock were the best of friends, and had had mutual transactions relative to the settlement of the affairs of an insolvent bank of which they were both directors. McOlintock appeared to be dumfounded when Sanders asked him to credit the $200 which he, Sanders, owed McOlintock, on a note for $2,500 which San ders claimed McClintock owed Mm. McClintock, when he. was shown the note, admitted the signature to be his own, but he seemed to have no recollection about the matter, and his whole attitude was one of doubt. The chancellor was justified, under the circumstances, in holding that he only agreed to the credit being placed upon the note because of his confidence in Sanders. This view is strengthened by the fact that, when Morrow asked McClintock afterwards about the payment of the note, McClintock said that he would have to look the matter up. McClintock was a very old man, and had gone in there in the beginning to collect $200 which Sanders owed him, and, under the circumstances, we do not attach any importance whatever to the receipt which has been introduced in evidence. Morrow admits that McClintock 'asked for the receipt in order to have something to show Sheets, if he should ever ask him about the matter. The whole attitude of McClintock was one of doubt and perplexity about the matter. The chancellor was justified in holding that his consent to the credit on the note afforded no just ground to infer his intention to renew the promise of its payment. In this connection it may be stated that the note showed on its face that it was barred by the statute of limitations, and, although it had been due for several years, no attempt seems to have been made to collect it until McClintock presented his demand for the payment of the $200 which Sanders owed him. Hence we are of the opinion that the chancellor was justified in finding that the evidence offered by appellants in the present case falls short of proving an acknowledgment of the debt sued on sufficient to form the basis of a new promise.
It follows that the decree must be affirmed. | [
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Humphreys, J.
North Arkansas Highway Improvement District No. 2, running through Independence, Izard and Fulton counties, was created by act No. 473 of the Legislature of 1917, and provided for three commissioners, one from each county. A part of the roadbed in the district was constructed under written contract ■between said commissioners and Davis Construction Company, the appellee herein.
Appellee instituted suit in the circuit court of Izard County, at the March term, 1926, against the district for $.1.7,232 for additional estimates which it alleged it should have received from the engineer in charge of the construction of the road. An amended complaint was filed in September, 1926, to which the district filed an answer, through its employed attorneys, denying the material allegations in the complaint. The cause was passed until the March term of court, 1927. During the pendency of the suit, and a short time before court convened, the Legislature of 1927 passed act No. 22, making the county judges in each of the three counties commissioners of said district to succeed the old commissioners. Two of the new commissioners, C. C. Aylor and E. H. LaMore, Ayler being president and LaMore secretary of the board of commissioners, attended court and, while the employed attorneys were trying to' get a continuance of the cause, compromised and settled the case by agreeing in open court that a judgment for the sum of $8,000 might be rendered against the district. The agreement upon which the judgment was rendered is as follows:
“We, the undersigned, president and secretary of North Arkansas Highway Improvement District No. 2, hereby agree in open court that the judgment for the sum of eight thousand dollars ($8,000) may be rendered against said district, instead of $17,232 as asked for in the complaint of the plaintiff. It is understood that this judgment for the sum of $8,000 shall be rendered against said district in full settlement of all claims in the suit herein pending for $17,232.
Signed: “Davis Construction Company,
‘ ‘ By Northcutt & Humphries,
“Attys. for plaintiff.
■“North Arkansas Highway
Improvement District No. 2,
“By C. C. Aylor, President.
“E. H. LaMore, Secretary.”
After the rendition of the judgment and final adjournment of court, appellants herein instituted suit in said court to set aside the judgment, upon the alleged ground, amongst others, that the confession of the judgment by two members of the board, in the absence of the third, without notice to him, was void. This issue was controverted, and submitted to the court upon the testimony introduced by the respective parties, which resulted in a dismissal of appellant’s complaint to vacate the judgment, from which is this appeal.
The sole question therefore presented by this appeal is whether two members of the board, in the absence of the third, could compromise and settle the suit against the district and bind it by confession of judgment for the amount agreed upon.
Appellants contend that, under the rule announced by this court in the oases of School District v. Bennett, 52 Ark. 511, 13 S. W. 132, and Kirst v. Street Improvement Dist. No. 120, 86 Ark. 1, 109 S. W. 526, the compromise agreement was not binding upon the district, being made by two members of the board in the absence of the third, without notice to him. In the first case cited this court said: “We conclude that two directors might, bind the district by a contract made at the meeting at which the third was present, or of which he had notice; but no contract can be made at a meeeting, and no meeting can be held, unless all are present, or unless the absent member had notice.” And in the last case cited, said: “Two members of a board of assessment of an improvement district are not authorized to act as a board in the absence of the third member, and without notice to him.”
The character of business referred to by the court in the two cases cited had no reference whatever to the conduct or disposition of suits brought against the district. The district was a party defendant in the instant case by virtue of a summons which had been duly served upon the commissioners of the district at the time of the institution of the suit, and by virtue of an answer which the commissioners had filed, denying each and every allegation in the complaint. It was the duty of each of the commissioners to be present when the case was called, for the purpose of taking such steps as were necessary to protect the interest of the district. The successors to the original commissioners took their place, and it was incumbent upon each of them to be present when the case was called for the purpose of either procuring a continuance, defending against the suit, or compromising and settling same. Each was bound to know that the case was pending and that the court could not he expected to delay business for the new board representing the district to give additional notice to an absent member to meet for the purpose of determining what course to pursue when the case should be called. Notice of the pendency of the suit and when the court would meet was sufficient notice to all members to be present and perform their duty. An emergency confronted the majority of the board who were present in the performance of their duty. Appellee was pressing for a trial, and appellants had failed to file a motion’ in accordance with the law for a continuance. The commissioners present sought a conference with the representatives of appellee, and finally effected a compromise and consented to the judgment. As no additional notice was required for the absent commissioner to be present, the court is of opinion that the other two, constituting a majority of the membership, had authority to compromise and settle the case and agree to a consent judgment.
No error appearing, the judgment is affirmed. | [
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McHaney, J.
Appellee is a railroad brakeman, and is a member of the Desha Lodge No. 162 B. of R. T., and held a beneficiary certificate issued by appellant as follows :
“This beneficiary certificate, issued by the Grand Lodge Brotherhood of Railroad Trainmen, witnesseth: That Brother Dewey Deaton, a member of Desha Lodge No. 162 of said brotherhood, is entitled to all the rights, privileges and benefits of membership, and to participate in the beneficiary department, class D, of said brotherhood, to the amount set forth in the constitution thereof, which amount, in the event of his total and permanent disability, as defined in § No. 68 of the. constitution, shall be paid to him, or, at his death, shall be paid to Jewel Deaton, his wife, if living; if not, to the executor or administrator of said member’s estate, in trust, however, for and to be forthwith paid over to his heirs at law, and the amounts to be paid hereunder shall become due only upon the presentment of proper proofs of the death of the assured, and the legal right of such executor or administrator to receive the same, such proofs to be made in accordance with the constitution and general rules of the brotherhood.
“This certificate is issued upon the express condition that the. said Dewey Deaton shall comply with the constitution, general rules and regulations now in force or which may hereafter be adopted by the within named brotherhood, which, as printed and published by the grand lodge of the said brotherhood, with the application for this certificate as signed by him and the medical examination of said D. Deaton, copies of which application and medical examination are attached hereto, all of which are made a part hereof, and, together with this certificate, constitute the contract between said D. Deaton gjid said brotherhood, and that he pay all dues and assessments imposed upon him within the time specified hy the constitution and general rules * * * ”
Section 68 of the constitution referred to in the beneficiary certificate reads as follows:
“Any beneficiary member in good standing who shall suffer the amputation or severance of an entire hand at or above the wrist joint, or who shall suffer the amputation or severance of an entire foot, at or above the ankle joint, or who shall suffer the complete and permanent loss of sight-of one or both eyes, or, upon becoming seventy years of age, shall be considered permanently and totally disabled, but not otherwise, shall thereby be entitled to receive, upon furnishing sufficient and satisfactory proofs of such total and permanent disability, the full amount of his beneficiary certificate. A disabled member paid under this section shall automatically become a non-beneficiary member, beginning with the month following the month in which his claim was approved, provided he pays such dues- and assessments that are required from non-beneficiary members.”
Appellee relies for a recovery in this case on the provisions of § 70 of the constitution, which reads as follows:
“All claims for disability not coming within the provisions of § 68 shall be held to he addressed to the systematic benevolence of the brotherhood, and shall in, no case be made the basis of any legal liability on the part of the brotherhood. . Every such claim shall be referred to the beneficiary board, composed of the president, assistant to the president, and general secretary and treasurer, who shall prescribe the 'Character-and decide as to the sufficiency of the proofs to be furnished by the claimant, and, if approved by said board, the claimant shall he paid an amount equal to the full amount of the certificate held by him, and such payment shall be considered a surrender and cancellation of such certificate; provided, that the approval of said board shall be required as a condition precedent to the right of any such claimant to benefits hereunder, and it is agreed that this section may be pleaded in bar of any suit or action at law, or in equity, which may be commenced in any court to enforce the payment of any such claims. No appeal shall be allowed from the action of said board in any case; but the general secretary and treasurer shall report all disapproved claims made under this section to the board of insurance at its next annual meeting for such disposition as such board of insurance shall deem just and proper.”
The-undisputed facts are that, while riding on top of a box-car at Colliston, Louisiana, the air hose “bursted,” automatically setting the air brakes on the train, and threw him off of the top of the car, breaking his right ankle and foot, fracturing his backbone, and breaking his left heel. He was permanently disabled and incapacitated from performing any work as a railroad brakeman. He did not suffer the loss by amputation of either hand at or above the wrist joint, nor either foot at or above the ankle joint, nor did he suffer the loss of either eye. The case was submitted to the court sitting as a jury, and appellant requested the court to enter judgment for it. Its motion to this effect was overruled, and judgment entered in favor of appellee for the sum of $2,800 under the benefit certificate and $129 dues paid subsequent to the date of said injury, or % total of $2,929, from which comes this appeal.
Counsel for appellee concede that § 68 of the constitution does not cover the injury sustained by appellee, but, contend that they are entitled to recover under the provisions of § 70 of the constitution, both of which have heretofore been set out. The constitution, general rules and regulations of the brotherhood are made a part of the contract between the parties, and appellee’s right to recover in this case depends upon the proper ‘construction to be given the beneficiary certificate when read in connection with §4 68 and 70 of the constitution. And, since it is conceded that § 68 has no application in this case, the right to a recovery will have to be based upon a 'Construction of the beneficiary certificate and said § 70, together with that section of the constitution defining class D certificates.. There is no question raised about the correctness of the amount of insurance covered by class D, nor the amount of premiums paid since his injury. It will be noticed that the beneficiary certificate recites that he “is entitled to all the rights, privileges and benefits of membership, and to participate in the beneficiary department, class D, of said brotherhood to the amount set forth in the constitution thereof, which amount, in the event of his total and permanent disability as defined in § No. 68 of the Constitution, shall be paid to him,” etc. Since appellee did not receive any “permanent disability as defined in § No. 68 of the constitution” by suffering the loss of either hand at or above the wrist joint, or either foot at or above the ankle joint, or the loss of either or both eyes,” which was all appellant agreed- to insure appellee against, it necessarily follows that appellee has not brought himself within the terms of the policy or beneficiary certificate by showing that he suffered an injury covered by the policy.
Section 70 has no application. Appellant did not agree to insure appellee against all total and permanent disability, but only such total and permanent disability as is covered by § 68. All claims under § 70, as stated therein, which include all claims other than those arising under § 68, “shall be held to be addressed to the systematic benevolence of the brotherhood, and shall in no case be made the basis of any legal liability on the part of the brotherhood.” In other words, appellant and appellee agreed that, for any other disability suffered by appellee than those defined in § 68, he would leave*it to the brotherhood to say whether his claim should be paid. In the event his claim is allowed, the full amount of the certificate must be paid him, but, as to whether he will be paid this amount or nothing, is left absolutely to the discretion of an agency of appellant. Courts must construe contracts as the parties have made them, and, where they are unambiguous and their meaning definite and certain, nothing is left for construction. As was said in the case of Pool v. Brotherhood of Railroad Trainmen, 143 Cal. 650, 77 Pac. 661:
“We must apply the ordinary rules governing contracts to the agreement made by the defendant with plaintiff in this case. He was guaranteed to be paid a certain sum in-case of total disability from the causes set forth in § 45 of the constitution. He paid for and was insured against the loss of a hand or a foot, or of both eyes. His contract was absolute in case his disability had been permanent and caused in the manner defined in the last cited section. In other cases the claim was of a purely benevolent nature. The beneficiary board had the power to allow it or reject it, but no duty was imposed upon such board to allow it. If the board reject such claim, the claimant may have it acted upon by the next biennial convention, and the convention may make such disposi-' tion of it as may be deemed just and proper. We know of no reason why such a contract may not be made. The plaintiff was not compelled to become a member of the defendant, but, having become such member, he must show a legal liability within the terms of his contract before he can recover in court.”
In that case the California court had under consideration §§ 45 and 46 of appellant’s constitution, which were at that time identical with the sections now under consideration, §§ 68 land 70.
In a well considered case, Grand Lodge Brotherhood of' Railroad Trainmen v. Smith, 129 Miss. 738, 92 So. 837, 27 A. L. R. 863, the Supreme Court of Mississippi had under consideration the identical provisions of the contract as'in this case, and held that the plaintiff was not entitled to recover under § 70 for injury received to his back, whereby he became totally and permanently dis-. abled. This opinion reviews many of the cases arising in other jurisdictions under the same provisions of the constitution of the brotherhood, and in which the court said:
“Neither these constitutional provisions of appellant nor any like them have been 'before this court for interpretation. Bnt, so far as the question here involved is concerned, we see no difficulty in said constitutional provision, even without the help> of authority from other States. There is nothing whatever either in the constitution or laws of appellant in conflict with or which 'broadens the meaning of siaid §§68 and 70 of its constitution to the extent of giving appellee any contract right for his disability. And those two sections, in unmistakable terms, provide that there shall be no liability whatever on the part of appellant for any permanent and total disability except that provided for in § 68. And § 70, taken alone, in equally plain terms provides that claims by members for any other permanent and total disability shall be addressed alone to the benevolence of appellant society, for which there shall be no legal liability on the part of appellant. This amounts simply to an invitation on the part of appellant to appellee that, if he shall suffer a permanent and total disability other than that provided for in said § 68, appellant will hear his application for a donation, which it will grant or not as it sees fit, expressly providing that there shall be no liability, either at law or equity, for such disability. Construing appellant’s constitution, laws and beneficiary certificate most strongly against it, as argued should be done, they mean that, and nothing more, so far as the question here is concerned. Appellee accepted a contract by the plain terms of which there is no liability to him by appellant for the disability he suffered, and we 'are unable to see any reason why he should not be bound by it. The decision of this question goes to the root of the whole case, and renders it unnecessary to decide the question whether a party to a contract can bargain away his rights to resort to the courts, for, if he has no rights, there is nothing to contract away. And it follows also from these views that appellee was not entitled to recover back from appellant the dues paid by him to appellant since his injury in order to keep his beneficiary certificate alive, which question is involved in appellee’s cross-appeal.”
Appellee recognizes the force of these decisions in other jurisdictions, hut says that the rule in this State should be different, because of § 6156 of C. & M. Digest, which-, reads as follows: “No policy of insurance shall contain any condition, provision or agreement which shall directly or indirectly deprive the insured or beneficiary of the right to trial by jury on any question of fact arising under such policy, and all such provisions, conditions or agreements shall be void.” He contends that to deny him the right to recover under § 70 is in violation of said section of the Digest, for the reason that it is left to the beneficiary board of appellant to determine appellant’s liability, instead of the courts. In other words, that appellant sets up a tribunal of its own to pass upon the claims of its members for the purpose of ousting the jurisdiction of the courts therein. We cannot agree with appellee in this contention, as § 70 does not create an absolute liability on the part of appellant for any total disability. Section 68 does create such a liability, and, as to its liability under this section, appellant could not provide for a board of arbitration or set up a tribunal of its own to determine its liability, because it absolutely binds itself to pay for a loss covered by such section. Therefore the authorities cited by appellee, holding that it is not competent for parties to contract in advance of a dispute that the decision of the board of arbitration or tribunal named in the contract shall be final and binding on the parties, thereby ousting the jurisdiction of the courts, have no application to this case. We therefore conclude that said § 70 of the constitution cannot be made the basis of a cause of action against appellant, and that the court should have granted appellant’s request for a judgment in its favor.
The judgment of the circuit court must be reversed and the cause dismissed. It is so ordered. | [
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J. Fred Jones, Justice.
This is an appeal by James G. Chesser from a summary judgment of the Lawrence County Circuit Court in favor of George King and Memphis Concrete Silo Company. Chesser was the plaintiff in the trial court and King and the Silo Company were co-defendants.
The facts are undisputed and, as established by the pleadings, and by the affidavits and depositions in support of the motion for summary judgment, reveal that the appellee Silo Company is a Tennessee corporation engaged in the manufacture of concrete silos of different heights, widths, and capacities, which are sold through agents to various customers. The silo walls are erected by the Silo Company from four inch thick blocks, or staves, prefabricated in Memphis and the silos are erected on foundations furnished by the purchaser.
Certain of these prefabricated concrete blocks contain steel bars with right angle bends so that in the erection of the silo, or one of a group of silos, the blocks containing the steel bars are placed one over the other to form a ladder ten inches wide with rungs of 9/16 steel extending five inches from the face of the silo wall and being from fourteen to fifteen inches apart.
Although the ladder is primarily placed for the use and benefit of the Silo Company employees in erecting the silo, when the silo is completed the ladder remains on the wall available for whatever use the owner may make of it. Since these ladders appear on the wall of each silo, or. on one silo in each series, they have become accepted in the trade by the purchasers of silos as simply a part of the silo.
The Arkansas Rice Growers Association purchased, through appellee King, four such tanks or silos to be erected at Tuckerman, Arkansas. The silos were erect ed by the Silo Company and turned over to the purchaser. The appellant, while employed by the association owner, was climbing the ladder for purposes of changing a grain spout near the top of the silo and slipped and fell from the ladder to the floor of the silo housing and was injured.
Appellant’s action was based on negligence in erecting the ladder, negligence in the manufacture and supplying of a negligently designed product and on breach of implied warranty.
The portion of appellant’s complaint pertinent to this appeal, as abstracted, is as follows:
“That the defendant, Memphis Concrete Silo Company, through its agents, particularly George King, was negligent in the following respects:
a. In failing to supply and erect parallel sides to said ladder as required by the Arkansas Labor Safety Code.
b. In failing to extend the rungs of said ladder to a distance of at least 6% inches from the face of said silo as required by the Arkansas Labor Safety Code.
c. In failing to supply and erect a ladder with rungs measuring at least 15 inches across the front as required by the Arkansas Labor Safety Code.
d. In failing to supply and erect a cage or basket guard to said ladder as required by the Arkansas Labor Safety Code.
That the defendant knew, held themselves out as knowing, or by the exercise of reasonable diligence should have known that the ladder was constructed, designed and installed in a manner that violated the requirements of the Arkansas Labor Safety Code. That these acts of negligence created an imminently dangerous, unsafe and hazardous condition to persons using said ladder. That the defendants were further negligent in manufacturing, supplying and erecting a negligently designed product. That said acts were a direct and proximate cause of the injuries sustained by the plaintiff.”
On appeal, the appellant abandons his theory of negligence in the erection of the silo and he does not argue breach of warranty. Appellant’s contention here is that the trial court erred in granting appellees ’ motion for summary judgment when the complaint was predicated upon the theory that the appellee Silo Company was negligent in manufacturing and selling negligently designed product.
The record is clear that appellee King only sold the silo and checked upon its erection for the appellee Silo Company, and had nothing to do with its manufacture or design. As to the appellee Silo Company, we do not agree with appellant that the trial court erred in directing a summary judgment for the appellees.
While the direct liability of the manufacturer to the injured consumer iu products liability cases is well established in Arkansas (see International Harvester Co. v. Land, 234 Ark. 682, 354 S. W. 2d 13), we do not have the authority or inclination to extend the rules of negligence to make a manufacturer liable in a tort action for failure to meet the specifications of rules promulgated under the Arkansas Labor Safety Code. The entire statute (Ark. Stat. Ann. §§ 81-101 — 81-119 [Repl. I960]) is directed to employers and employees in relation to working conditions, safety and enforcement of the labor laws in connection therewith, and it is not shown to us that these statutes apply, or were intended to apply, to manufacturers in the design of products to be sold on the open market.
In review of a summary judgment, we must view the motion in the light most favorable to the party resisting the motion. In the case at bar, even if we should find the allegation of negligence to be as to the specific acts and not the violation of the safety code, with that violation being only evidence that the specific acts were negligent, summary judgment was proper.
The general rule in cases of this nature is stated in Memphis Asphalt & Paving Company v. Fleming, 96 Ark. 442, 132 S. W. 222, where appellant contracted with a city improvement district to construct a sidewalk alongside a street and across a branch, but did not construct a guard rail or barrier where the sidewalk crossed the branch, nor did the contract call for one. Appellee was injured by falling from the sidewalk into the branch and the negligence alleged was the failure to construct a guard rail. Appellant contended that the sidewalk was constructed in accordance with the contract and that the work was completed and accepted before the injury occurred. This court reversed the trial court and dismissed the cause of action, stating that:
“The general rule is that after the contractor has .turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties by reason of the condition of the work, but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. Thompson on Negligence, 686, and cases cited; First Presbyterian Congregation v. Smith, 163 Pa. 561, 26 L. R. A. 504; Daugherty v. Hergog, 145 Ind. 255, 32 L. R. A. 837; Salloitte v. King Bridge Company, 58 C. C. A. 469.
It would not come within the qualifications to the rule that the work was a nuisance per se, or was turned over by the contractor in a manner so negligently defective as to be eminently dangerous to third persons.
‘The rule in this connection does not require a for mal acceptance of the contractor’s work. The liability of the contractor will cease with a practical acceptance after completion of the work.’ Read v. East Providence Fire District, 20 R. I. 574, 40 Atl. 760.”
The above rule and exceptions have been upheld by this court in the later cases of Canal Construction Company v. Clem, 163 Ark. 416, 260 S. W. 442, 41 A. L. R. A; and Reynolds v. Manley, 233 Ark. 314, 265 S. W. 2d 714. Under the Canal Construction case, supra, the contractor cannot be held liable even if it be conceded that the record shows substantial evidence of such negligence, and the contractor remains-liable only to the proprietor for a breach of his contract; with the responsibility to others, if any, for maintaining or using the work product in its defective condition being shifted to the proprietor after acceptance.
In the ease at bar, appellees have shown by affidavits and depositions, submitted in support of their motion for summary judgment, that they contracted to do the work with the Arkansas Rice Growers Association; that the work was carried out in accordance with the specifications contained in the contract; that the work was completed and turned over to the owner on July 18, 1964; that appellees inspected the silo in September 1964 and have not been on the job since; that the work was accepted by the owner and final payment made prior to December 22, 1964, when appellant was injured; and that the size and manner of construction of the ladder is open and visible to anyone who looks at it.
Under these facts, we cannot say that the general rule does not apply, even in the light most favorable to appellant. Neither do the recognized exceptions apply, as it cannot be said here that the ladder is a nuisance per se, or that it is erected by the appellee in such a manner as to be immediately and imminently dangerous to third persons, especially where there is no showing of a latent defect in the constrnction.
In Mid-South Insurance Company v. First National Bank of Fort Smith, 241 Ark. 935, 410 S. W. 2d 873, this conrt stated:
“In Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141, (1963), this conrt approved the following statement from United States v. Dollar, 100 F. Snpp. 881 (1951); ‘The motion [for summary judgment] requires the opposition to remove the shielding cloak of formal allegations and demonstrate a genuine issue as to a material fact.’
In the face of documentary support for summary judgment, Mid-South would force the case to trial by merely contending that an issue exists, without any showing of evidence. This would defeat the whole purpose of summary judgment procedure.”
Since appellant has not disputed appellees ’ facts by submitting affidavits or depositions to refute the motion for summary judgment, we find no genuine issue as to a material fact and under the general rules stated, a summary judgment as a matter of law was proper. The judgment of the trial court must be affirmed.
Affirmed. | [
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