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Frank Holt, Justice.
Appellant was convicted in 1974 of first degree murder and received a life sentence. We reversed and remanded. Sims v. State, 258 Ark. 940, 530 S.W. 2d 182 (1975). Following our remand on the murder conviction, the trial court sentenced appellant to 21 years on his plea of guilty to a reduced charge of second degree murder to run consecutively to a total of 15 years he was already serving. Nearly three years later, appellant filed this pro se motion alleging he pled guilty to the reduced murder charge with the understanding the sentences would run concurrently. The trial court conducted a Rule 37 hearing at which appellant alone testified. On the basis of this testimony and the transcript from the prior hearing, the court found the consecutive sentence was correctly given. Appellant now raises the issue that his plea was not intelligently and voluntarily made. He argues that his negotiated plea of guilty to the reduced murder charge was without a full understanding on his part of the agreement reached by his counsel and the state, and there was insufficient compliance by the trial court with Arkansas Rules of Criminal Procedure, Rules 24 and 25. Consequently, his sentence should be modified so that it be concurrent rather than consecutive.
We have held that a “substantial, though not technical, compliance with these rules” is sufficient. The critical question, and the one presented here, is whether the plea was voluntary. Simmons v. State, 265 Ark. 48, 578 S.W. 2d 12 (1979). In Irons v. State, 267 Ark. 469, 591 S.W. 2d 650 (1980), we held:
This rule [24.4] . . . require[s] that the trial judge ascertain whether a plea of guilty is voluntary. There is no constitutional requirement that the trial judge make the explanations of the right to jury trial and of the maximum possible sentence required by Boykin, and a silent record does not require automatic reversal if it be proved at a postconviction evidentiary hearing that the plea was voluntary and intelligently made. . . .
At the evidentiary hearing on his postconviction motion, the appellant testified he thought at the time of sentencing on the reduced murder charge that his sentence would run concurrently to the 15 year sentence previously imposed. He admitted that he did not protest the imposition of the consecutive sentence at the timé of sentencing; although he left the courtroom, he protested to his attorney, who told him it would do no good.
It is apparent from the record made at sentencing that the matter of the sentences running concurrently was not a condition of the plea agreement for a 21 year sentence. Prior to accepting his plea, the transcript of the sentencing reflects that appellant assured the court his plea was voluntary; he understood the charges and he knew he was entitled to a jury trial; he had discussed with his attorney the charge and punishment and all the facts and circumstances relating thereto; and he was satisfied with the attorney’s services. The state recommended a 21 year sentence on the guilty plea. Appellant’s attorney stated this was the result of a negotiated plea, acknowledging that the court could accept or reject it. Appellant’s attorney then importuned the court to consider concurrent sentences. The court declined to do so, announcing the sentence would be consecutive, and this would result in a total of 36 years requiring him to serve 1/3 of that total sentence before being eligible for parole. The court then asked if there were any questions. Appellant asked no questions nor did he make any objection to the sentences being imposed consecutively. Counsel again requested the sentences be concurrent which the judge denied.
In the circumstances, we hold there was substantial compliance with the sentencing requirements on a negotiated plea of guilty, and, therefore, appellant has not demonstrated that his plea was made unintelligently and involuntarily.
Affirmed. | [
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John I. Purtle, Justice.
The Circuit Court of White County affirmed the action of the Arkansas State Banking Board and State Banking Commissioner in granting a charter to the First State Bank of Beebe. Citizens Bank of Beebe intervened and brings this appeal.
On appeal appellant relies upon three points: (1) the court erred in affirming the Bank Board’s decision because the Board members voted before formal findings of fact and conclusions of law had been adopted; (2) the court erred in refusing to consider voluntary responses by members of the Board to interrogatories propounded to them after the charter had been approved; and, (3) the court erred in affirming the Bank Board’s decision because there was not sufficient evidence to support the decision.
The facts of this case reveal that the proposed First State Bank of Beebe made application for a bank charter on March 6, 1979. The existing bank in Beebe, Citizens Bank, filed a timely protest to the application. On June 6, 1979, a hearing was held on the application before the Commissioner and the Banking Board. A copy of the application and the supporting materials had been furnished to each Board member and the protesting bank several weeks in advance of the hearing. The hearing was scheduled to last two days; however, it was concluded at the end of the first day. The Board, by a three to two vote, approved the charter. The findings of fact and conclusions of law had not been formulated at that time. Appellant’s attorney did not accept an invitation to participate in preparing the findings of fact and conclusions of law. The findings of fact and conclusions of law were finally approved by the Board at its regular scheduled meeting on July 17, 1979. Appellant’s attorney objected to the approval of the findings of fact and conclusions of law. Appellant insisted that the findings of fact and conclusions of law should be reduced to writing before the Board acted on the application for the charter.
The petition for a judicial review was filed on August 16, 1979. Subsequent to the approval of the charter by the Board, the appellant sent written interrogatories to the Board members. The appellant argued before the court that the findings of fact and conclusions of law were not properly adopted by the Board and that such findings should have been made before the charter was granted. Also, the appellant attempted to introduce into the record the replies to the interrogatories submitted and replied to by the members of the Commission. At the hearing First State Bank and the State Bank Board objected to the interrogatories, and the circuit court refused to consider them.
We first consider appellant’s argument the court erred in affirming the decision of the Board and Commissioner because the decision to grant the charter was made without the aid of formal findings of fact and conclusions of law. Appellant insists that the findings and conclusions are a prerequisite to a decision. There are two statutes and one regulation which appear to control this argument, and they are set out below:
Ark. Stat. Ann. § 5-710 (b) (Repl. 1976): In every case of adjudication, a final decision or order shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be served either personally or by mail with a copy of any decision or order.
Ark. Stat. Ann. § 67-207 (g) (Repl. 1980): At or after a hearing before it, the State Banking Board shall render its decision in writing, which decision shall include the Board’s findings of fact and conclusions of law. If the application is approved by the Board, the Bank Commissioner may, in the event that he also shall approve the application, grant the relief sought.
Arkansas Bank Department Manual, Regulation 28: Findings of Fact; Conclusions of Law and Decision. After the Board members reach a decision on a contested application they will execute in written form their Findings of Fact, Conclusions of Law and Decision, a signed copy of which (accompanied by the Bank Commissioner’s written concurrence or dissent) will be mailed to each person, firm, corporation or group (or to representatives of any group) which actively appeared and participated in the hearing. ... As a rule, the attorneys appearing in the matter will be asked to prepare these findings, etc. See Sec. 67-207(g), 1973 Supp.
From reading the above regulation and statutes it appears that two of them specifically authorized the findings of fact and conclusions of law to be formulated after the decision is made. The other statute is silent on this point. Therefore, we give the expressed words their ordinary meaning and in doing so necessarily imply that Ark. Stat. Ann. § 5-710(b) also permits the findings of fact and conclusions of law to be adopted after the decision is reached. Even if we were to agree with the appellant’s argument that the findings of fact and conclusions of law must be in existence prior to the approval of the charter, we think the Board did exactly that in its meeting of July 17, 1979. At the meeting of July 17, 1979, a motion was made and seconded that the order approving the application for the charter of the First State Bank of Beebe, the findings of fact and conclusions of law, which had been reduced to writing, be adopted. The motion was approved without dissent.
We agree with appellant that the Administrative Procedure Act requires a full compliance with the law, but we think that full compliance was had in this particular case. We do not find appellant’s argument regarding the procedure followed concerning the findings of fact and conclusions of law to be persuasive. It is the common practice in most trial courts to require the participating attorneys to prepare an order which will be entered at a later date although the court announces its decision at the conclusion of the trial. We find the Commission was in full compliance with the requirements of the law and regulations of the Bank Department.
We recently decided the case of Bank of Waldron v. Scott County National Bank, et al, 267 Ark. 407, 590 S.W. 2d 654 (1979), which is almost squarely on point with the present case. In Bank of Waldron the evidence presented had been furnished to the interested parties several weeks in advance. The case had been set for a two day hearing but ended at the close of the first day. A vote was taken at the end of the hearing and by a vote of three to two a charter was granted to the Bank of Waldron. The factual situation is so similar to the present one that we think that case is controlling. In affirming the decision in Bank of Waldron we stated:
. . . Here the evidence presented at the hearing including various economic reports and the oral testimony, does not appear to be of a highly technical or complex nature in view of the experience and expertise of the members of the Board. Although the decision to approve the application was made immediately following the presentation of the evidence, we cannot say that it is demonstrated the Board failed to adequately consider the evidence. Accordingly, we hold the Board’s decision was not arbitrary and capricious, did not deprive the appellant of due process, was not an abuse of discretion, nor was it in violation of Ark. Stat. Ann. § 67-303.1 (Supp. 1979), which only requires “consideration” of certain factors by the Board.
We further quoted 2 Am. Jur. 2d, Administrative Law, § 439, in Bank of Waldron v. Scott County National Bank, et al, supra:
The extent to which an independent study of the evidence in the record is necessary to the required exercise of informed judgment must be left to the wisdom and practical good sense of the agency.
We also held in Arkansas Savings & Loan Association Board v. Central Arkansas Savings & Loan Association, 256 Ark. 846, 510 S.W. 2d 872 (1974), that the requirement for the underlying facts to be concisely and explicitly stated was primarily for the benefit of the reviewing court. Both the Savings and Loan Board and the Banking Board proceedings are controlled by the Administrative Procedure Act which is Ark. Stat. Ann. § 5-701, et seq. (Repl. 1976). Considering the fact that the Banking Board adopted findings of fact and conclusions of law at the same time they finally approved the application for the new bank, we do not find any error relating to the first argument advanced by the appellant.
The second point argued by the appellant relates to certain interrogatories propounded to the members of the Board after the decision to grant the charter had initially been announced. Appellant does not cite any Arkansas precedent in support of this contention. We know of no authority which would allow this particular procedure to be followed. In any event, the trial court found the answers to be inadmissible at the hearing of the case on its merits. Finding no authority for the submission of the interrogatories and further finding no abuse of discretion on the part of the trial court in reviewing the interrogatories, we hold that it was not error to prevent the admission of the interrogatories.
Appellant’s third and final argument for reversal is that the decision was not supported by substantial evidence. We think the application of Ark. Stat. Ann. § 67-303.1 (Repl. 1980) and Ark. Stat. Ann. § 5-713 (h) (Repl. 1976) controls this argument. The record clearly shows that the findings of fact and conclusions of law are adequately supported by the evidence. We deem it unnecessary to set out the lengthy find ings of fact and conclusions of law in support of this opinion. After considering the requirements of the last two statutes quoted, we find the State Banking Board was obviously justified in the action taken in this particular case. We held in Arkansas Savings & Loan Association Board and Security Savings & Loan Association v. Central Arkansas Savings & Loan Association, 260 Ark. 58, 538 S.W. 2d 505 (1976), that upon judicial review of an administrative decision the proper rule to employ was substantial evidence. We also declared that the substantial evidence rule in this type of case required a review of the entire record and not merely a review of the. evidence supporting the administrative findings. It is a well-settled rule that this court relies upon the findings of fact and conclusions of law by administrative agencies because they are better equipped by specialization, insight, and through experience to determine and analyze the legal issues. Terrel Gordon v. Gordon L. Cummings, et al, 262 Ark. 737, 561 S.W. 2d 285 (1978).
Affirmed.
Hickman, J., not participating. | [
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Darrell Hickman, Justice.
Five young black males were charged with raping two young white females. The case was tried before the Pulaski County Circuit Court sitting as a jury. After deliberating, the court found three of the defendants guilty and two not guilty. The three found guilty were Gregory Smith, Larry Donnell Jones, and John Edward Pride, Jr. On appeal they allege as common error that there was insufficient evidence to sustain their convictions. Their defense consisted mainly of attacking the credibility of the two females and hinged on the fact that neither of the females could say positively that a certain defendant penetrated her.
It must first be emphasized that the distinction between a principal and an accessory has been abolished. One who aids or assists in the commission of a crime is as guilty as the actual perpetrator of the deed. Ark. Stat. Ann. § 41-302 (Repl. 1977). Next, it is not for this court to determine the credibility of witnesses. That is a function of the trier of fact. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980). We only determine if there is substantial evidence to support the judgment. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979). We find substantial evidence and affirm the convictions.
The female victims both testified that they were only fourteen years of age when they were raped. They were at a high school football game at Quigley Stadium in Little Rock on November 9, 1978, where they met three young black males during the game and engaged in coversation. It was agreed that they would go somewhere and get “high.” The victims said that there were two black girls with the young men and they all left the game to go a block or so to an apartment. The females said they did not know any of the black males or females before that evening.
Both white females agreed that at first there were only three males present in the apartment, but that others came into the apartment later. Jones left to get some liquor. When Jones returned the group had a drink; talked, and played cards. Later, one of the white females became somewhat apprehensive because the black females had left and when she asked to go to the restroom, Jones accompanied her to a separate building and stayed outside the room. She said that she was looking for a way out. After they returned to the apartment the two females said they had to leave. Both females agreed that two males blocked their way and that the lights were then turned off. One said she was raped three separate times; the other also said she was raped at least three separate times and perhaps four or five times. One said there were five or six males in the room; the other said there were eight or ten males when the rapes occurred.
Both females gave considerable testimony incriminating Larry Jones. Jones was at the game and at the apartment all the time, except when he left for the liquor. One female said Jones held one of her legs when she was raped. Jones was one of the two males that blocked the door when they tried to leave; he made obscene remarks just before they were raped; and he pushed one of the girls back just before the rape.
The females also identified the two other defendants as participants, but to a lesser degree. One described Gregory Smith as having a pierced ear with a small gold ball in his ear. He was identified as being one of the two who remained in the apartment when Larry Jones left for the liquor. He was identified by one female as being the other male who assisted Jones in blocking the door.
John Edward Pride, Jr., was identified by one female as having braided hair. He was identified as being one of two males who remained in the apartment when Larry Jones went for the liquor. He was also identified as being one who played a game of cards with one of the females and as one of the males who held one of the females when she was assaulted.
The only defense witnesses were two witnesses who were called on behalf of Pride. These were Pride’s brother and mother, both of whom testified that he was home when the alleged rapes took place.
Identity and the credibility of the witnesses were the critical issues in this case. However, the testimony we have recited is substantial and is sufficient to support the findings of guilty entered. Consequently, we affirm the convictions.
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Richard L. Mays, Justice.
In January 1980, after appellant allegedly committed the offense of theft of property on December 16, 1979 and the offenses of felon in possession of a firearm, rape, and burglary approximately one week later on December 22, the prosecuting attorney filed a petition to revoke a probation and a suspended sentence which he had received in 1976 and 1979, respectively. The 1976 probation grew out of a plea of nolo contendere to a charge of theft of property in which the court postponed the pronouncement of sentence and placed appellant under supervision for a period of four years. The suspended sentence stems from a revocation on October 26, 1979 of another probation which the court had granted for three years in connection with a guilty plea on June 6, 1979 to a charge of felon in possession of a firearm. The suspended sentence resulted when the court revoked the 1979 probation and imposed a sentence of five years, suspending all but 119 days, which had already been served, for burglary and theft of property allegedly committed by appellant on June 19, 1979.
After several hearings on the prosecutor’s revocation petition, the court eventually revoked appellant’s probation and suspended sentence, imposing a total prison term of nine years, five years for violating the terms of his 1976 probation and four years for violating the terms of his 1979 suspended sentence. Now on appeal appellant’s sole contention is that the trial court erred in sentencing him on the two revocations to more than 7 years, the combined terms of his 1976 and 1979 probations.
We do not reach appellant’s argument in regard to the revocation of the three year 1979 probation since no objection to the revocation and imposition of a five year suspended sentence was raised in the trial court. Having accepted the sentence, appellant now has no legal standing to complain. See Gregory v. Gordon, 243 Ark. 635, 420 S.W. 2nd 825 (1967). However, appellant’s objection in regard to the revocation of his 1976 probation was timely raised and, therefore, must be considered on its merits.
The appellant’s sentence challenge grows out of our decision in Culpepper v. State, 268 Ark. 263, 595 S.W. 2d 220 (1980). In Culpepper the trial court revoked a five year suspended sentence with three years probation and imposed a 15 year prison term because the defendant violated the conditions of his suspeiided and probated sentence. Recognizing that the defendant not only did not appreciate the extent of his jeopardy at the time he received his suspend ed and probated sentence, but that the 1976 Criminal Code no longer allowed the suspension of execution of a sentence, or a combined suspended and probated sentence, we limited the trial court on revocation to the sentence actually pronounced, five years. We also emphasized that a trial court could only release a defendant by postponing pronouncement of sentence for a specified period of suspension or probation. Although the trial court here postponed pronouncement of sentence for a specified period of probation, four years, appellant contends that the specified period of probation represents a “sentence imposed” which limits the trial court on any revocation.
Appellant’s argument is grounded in a 1979 Amendment to Ark. Stat. Ann. § 43-2332 (Repl. 1977), which provides in part:
As speedily as possible, the probationer shall be taken before the court having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence which might have been originally imposed. (Emphasis supplied)
The appellant seizes upon the words, “sentence imposed,” arguing that they mean the period of probation, and seeks to limit the trial court upon any probation revocation to the term of the probation. In essence, appellant employs this language to sanction reinvesting the trial court with the authority to release a defendant on probation by pronouncing sentence and suspending execution. This view was obviously rejected in Jefferson v. State, 270 Ark. 909, 606 S.W. 2d 592 (1980), where we recently recognized that specifying a period of probation in no way limited a trial court on revocation when no sentence had been imposed or pronounced. Nothing that we said in Culpepper v. State, supra, was meant to suggest otherwise. Under the 1976 Criminal Code, a sentence is not imposed until the court pronounces a fixed term of imprisonment as opposd to simply specifying a definite period of time of probation. See Ark. Ann. § 41-801(2) and 41-1208(6) (Repl. 1977. The 1979 Amendment to Ark. Stat. Ann. § 43-2332 (Repl. 1977) was obviously intended to merely effect a change in the salary administration of probation officers, although there was another variance in language between the original and amended version which is not material to this case. The amended statute, therefore, must be construed along side other relevant provisions of the Criminal Code and reconciled to effect the legislative intent of the combined whole. See City of Fort Smith v. Brewer, 255 Ark. 813, 502 S.W. 2nd 643 (1973); Cook v. Bevill, 246 Ark. 805, 440 S.W. 2nd 570 (1969); Bond v. Kennedy, 213 Ark. 758, 212 S.W. 2nd 336 (1948). Unquestionably, the legislature did not intend Ark. Stat. Ann. § 43-2332 (Supp. 1979) to effect a basic change in probation procedures or prohibit a court from releasing a defendant on probation for a prescribed period of time without pronouncing sentence. The words, “sentence imposed,” therefore, presume that a sentence has been pronounced. In the appellant’s case, none was pronounced until his four year probation was revoked. Therefore, since no sentence was imposed at the time appellant was placed on probation, the language in Ark. Stat. Ann. § 43-2332 (Supp. 1979) has no application and provides him no relief.
Affirmed.
Fogleman, C.J., concurs.
Purtle, J., not participating.
The trial court actually improperly sentenced appellant since it suspended execution of a pronounced sentence, a method of sentencing which the 1976 Criminal Code no longer sanctions. See Ark. Stat. Ann. § 41-801(1) (Repl. 1977). | [
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Lawson Cloninger, Judge.
This is an appeal from a trial court decision that appellant Barbara Ann Baker could not maintain a suit as a third party beneficiary against the appellee Bank of Northeast Arkansas. The trial court found that the appellee bank failed to follow the instructions of appellant’s benefactor, the depositor, in the issuance of a certificate of deposit, but that appellant had no interest in the property and could not recover.
We find that appellant is a third party beneficiary; that, as such, she is entitled to maintain the action; and that she is entitled to damages against appellee on her cross-complaint.
This is the second time this proceeding has been before this Court, the first being styled Carlton v. Baker, 267 Ark. 949, 591 S.W. 2d 696 (1980). The original dispute was between the administrator of the estate of Rebecca C. Self and Barbara Ann Baker, niece of Rebecca Self, about ownership of three $5,000 certificates of deposit at the Bank of Northeast Arkansas. The trial court and this Court found that the certificates were intended by Rebecca Self to pass to Barbara Ann Baker upon Rebecca Selfs death, but this Court reversed the trial court in regard to the disposition of one of the $5,-000 certificates, holding that there was no substantial compliance with the statutory designation-in-writing requirement. The effect of this Court’s opinion was to give Barbara Ann Baker $10,000 in the certificates and to give the administrator the additional $5,000. This Court remanded the case for further proceedings.
This aspect of the case involves the cross-complaint filed in the original action by Barbara Ann Baker against the Bank of Northeast Arkansas. The cross-complaint stated that it was the intention of Rebecca Self for the certificates to pass to Barbara Ann Baker, and it was the fault of the bank that they did not. Barbara Ann Baker asked for a money judgment against the bank in the event she was not found to be the owner of the certificates. Her theory was that she was the beneficiary of a third party contract and that the bank was negligent. No additional testimony or proof was presented upon remand from this Court. The chancellor found that the bank had made mistakes but held that Barbara Ann Baker could not maintain her claim because she had no contractual relationship with the bank. This appeal is from that decision.
The appellee is correct in pointing out that upon a second appeal the judgment of the former appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former suit, and also those which might have been, but were not, presented. Moore v. Robertson, 244 Ark. 837, 427 S.W. 2d 796 (1968); Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979). In the instant case, however, the appellant did present her theory of third party beneficiary, but its applicability was not ruled upon by this Court. It might have been better if this Court had entered judgment on appellant’s cross-complaint on the first appeal, but we exercised our discretion and remanded the questions of third party beneficiary and damages to the trial court, since the trial court had not considered those issues or ruled upon them. Neither party raised the issue of the law of the case upon remand and the chancellor made the issue of damages moot when he held that appellant was not entitled to maintain the suit.
The chancellor, in making his ruling, commented that, “. . . Mrs. Self here, deposited this money in the bank; and wanted it to go to this Mrs. Baker, survivor here. But still, Mrs. Baker didn’t contribute anything to it . . . There was no contract with Mrs. Baker, with the bank, that she could enforce at all . . .” Later on the chancellor stated that “Mrs. Baker had no right in this account here, unless it was done exactly right. The bank fouled up, there’s no question about it.”
The Arkansas Supreme Court has held that a contract made for the benefit of a third party is actionable by such third party. Lovell v. Mariana Federal Savings and Loan Association,, 264 Ark. 99, 568 S.W. 2d 38 (1978). The appellant is a donee beneficiary as that term is defined in Coley v. English, 235 Ark. 215, 357 S.W. 2d 529 (1961):
He is a ‘donee beneficiary’ if it appears from the terms of the promise in view of accompanying circumstances that the purpose of the promisee in obtaining the promise of all or part of the performance is to make a gift to or confer right of action upon the beneficiary.
The definition in Coley v. English, supra, is in line with the term as it is defined in 17 Am. Jur. 2d, Contracts, § 311:
A person other than the promisee who will be benefited by the performance of the promise is a donee beneficiary where it appears that the purpose of the promisee in obtaining the promise was to make a gift to the beneficiary. In other words, a donee beneficiary is one to whom the promisee intends to make a gift of the performance by the promisor.
It is not necessary that consideration move to the obligor from the third party beneficiary. If there is consideration between the parties, then a standard contract is created. There must be consideration between the obligor and the obligee, but the absence of consideration or contract between the obligor and the third party beneficiary is the fundamental characteristic of a third party beneficiary contract. Rebecca Self supplied consideration to the bank in the form of a $5,000 deposit, and the provision requested by Rebecca Self was for the direct benefit of appellant. The benefit intended to accrue to the appellant grew out of the contract itself, and appellant’s interest was not a mere incident.
We find that appellant has proved a breach on the part of appellees and is entitled to judgment. Under the procedures normally followed by appellee, a certifícate of deposit was prepared with three copies. The original certificate was delivered to the purchaser and the copies were kept for bank use. The procedure called for the purchaser to sign one of the copies in a space prescribed for that purpose; that signed copy served as a receipt for the certificate, and under the ruling of this Court in the first case of Carlton v. Baker, supra, satisfied the designation-in-writing requirement of Ark. Stat. Ann. § 67-552 (1966 Repl.). Two of the receipts for the certificates purchased by Rebecca Self bore no signature, and because of this failure, the certificate was declared by this Court to be the property of the estate of Rebecca Self and not of Barbara Ann Baker.
There was ample testimony to show that Rebecca Self intended that the three certificates were to pass to Barbara Ann Baker upon Mrs. Selfs death, and that Mrs. Self effectively conveyed that intention to appellee. All three certificates were issued in the name of Rebecca Self or Barbara Ann Baker, either or the survivor of either. The loss to appellant arose because of the failure of appellee to follow its own procedures.
The appellee is not required, or permitted, to give legal advice to its customers, but it does hold out to the public that money can be deposited and passed on in the way Rebecca Self attempted. The position of appellee is similar to that of the appellee in Lovell v. Marianna Federal Savings and Loan Association, supra, with the qualification that in the present case there is no hint of fraud on the part of any of the participants.
The judgment of the trial court is reversed and the cause remanded with directions to enter judgment for appellant on her cross-complaint.
Fogleman, Special Judge, joins in this opinion.
Corbin, J., not participating. | [
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Richard B. Adkisson, Chief Justice.
Following a jury trial, appellant, Dennis Edward Loane, was convicted of aggravated robbery and sentenced to 32 years’ imprisonment under the Habitual Criminal Act, Ark. Stat. Ann. § 41-1001 (Repl. 1977).
Appellant first argues that the trial court erred in finding from the testimony at the pre-trial hearing that he had intelligently and knowingly waived his right to counsel at his post-information lineup. The “Motion to Suppress Identification Testimony” and the testimony at the pre-trial hearing in regard thereto pertained only to whether Loane had waived his right to have counsel present.
The question here considered relates to the waiver of the presence of counsel at the lineup. Appellant does not contend that the actual lineup procedures were improper or suggestive. The basic unfairness of the lineup as a denial of due process was not raised in the trial court and is, therefore, not before us.
In January, 1980, counsel was appointed to represent appellant on two separate charges of aggravated robbery then pending in Fort Smith Municipal Court. The robberies occurred at Fort Smith in 1976 at the Kentucky Fried Chicken Restaurant [hereinafter referred to as “Kentucky”] on March 13, and the Sirloin Stockade Restaurant [hereinafter referred to as “Sirloin”] in April.
Appellant, through his attorney, “requested a lineup to be viewed by the people that claimed that he was the person involved in these charges.”
His attorney was presented at the first lineup which was held on February 14, 1980, and which was viewed by two persons from “Sirloin” and three persons from “Kentucky.” One witness from “Kentucky,” Richard Maestri, identified Loane and that same morning a preliminary hearing was held. Loane was formally charged in circuit court in the “Kentucky” case on February 20, 1980.
At the preliminary hearing, Loane had a conversation with his attorney to the effect that no one had identified him in the “Sirloin” case. After consulting his attorney, Loane agreed to stand in a second lineup, for which he agreed to shave his beard and mustache.
On March 5, 1980, both Loane and his attorney were notified that the second lineup would be held at two o’clock; he consulted with his attorney and agreed to appear in the lineup, although his attorney was not expected to be present. At two o’clock he agreed to appear in the second linup after being informed that four or five witnesses would view the lineup and that his attorney was not present. Five persons viewed the March 5, 1980, lineup: Mr. Conger from “Kentucky” identified him, but none of the four persons from “Sirloin” could identify him.
The “Motion to Suppress Identification Testimony” in this case entitled appellant to a hearing at which the State bore the burden of showing that the waiver of appellant’s constitutional right to counsel was given voluntarily, knowingly, and intelligently and was based upon his receiving adequate warning as to his right to counsel. See Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319 (1970).
Appellant testified and the Sate candidly admitted that Loane was mistaken “as to what he perceived was the purpose of the lineup.” And, appellant does not claim that the State, in any way, tricked or intentionally misled him with respect to his appearing in the second lineup.
Appellant correctly contends that he had the right to the presence of counsel at a post-information lineup absent a knowing and intelligent waiver of that right. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). And, Johnson v. Zerbst, 304 U.S. 458, 464 (1930), states:
A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.
Using this definition, we consider the following factors in evaluating the background, experience, and conduct of the accused for purposes of determining whether an intelligent waiver was made:
1. Loane is on record as having continuously requested a lineup on both charges.
2. He knew all witnesses did not view the first lineup.
3. He agreed to shave his beard and mustache for the second lineup.
4. He discussed with his attorney the need for the attorney’s presence at the second lineup.
5. He was admittedly informed of his counsel’s absence by Detective Hammond prior to the lineup and was asked if he chose to proceed.
The cumulative effect of these factors is that the appellant did, in fact, waive his right to counsel at the second lineup. Therefore, the trial court’s finding that appellant had voluntarily, knowingly, and intelligently waived his right to counsel during the lineup confrontation is supported by substantial evidence. Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319 (1970). We will not set aside the ruling unless it is clearly erroneous. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).
In his second point for reversal, appellant argues that the trial court erred in refusing to allow him to introduce evidence that his fingerprints were not found at the place where the alleged robbery occurred unless the prosecution was allowed to introduce its evidence that the fingerprints of one Richard Lee was found.
Appellant first sought to introduce evidence that Loane’s fingerprints were not found at the crime scene: “Well, what I intended to offer is hearsay evidence. It is hearsay to the fact that Loane’s fingerprints were not found. I agree to that.” The prosecution sought to introduce hearsay evidence that the fingerprints of the alleged accomplice, Richard Lee, were, in fact, found at the crime scene. The court ruled it would allow the fingerprint evidence offered by either side or prohibit it altogether. All the fingerprint evidence sought to be introduced was acknowledged to be hearsay by both the prosecutor and defense, the FBI expert not being available to testify. Appellant waived any objection as to hearsay but reserved his objection based on the relevancy of Lee’s fingerprints being found on a paper cup at “Kentucky.” This contention is without merit, and we uphold the trial court’s ruling.
Rule 401, Uniform Rules of Evidence, Ark. Star. Ann. § 28-1001 (Repl. 1979), states that relevant evidence is that evidence which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Also, “evidence is relevant and admissible if it tends to prove an issue, or constitutes a link in the chain of proof, even if other evidence is required to supplement it.” Martin v. State, 258 Ark. 529, 531, 527 S.W. 2d 903 (1975).
Appellant testified on direct examination that he became acquainted with Lee when the two of them served time in an Oklahoma penitentiary and that Lee was serving time on a robbery charge. Appellant further testified that following his release from an Oklahoma penitentiary in 1975, the two fre quently saw each other through the middle of 1976. On cross-examination appellant described Lee as being shorter than himself and having much darker hair than his; and, he stated that Lee was of a medium build and had what could be a scar on the right side of his face.
This description coincides with the one given by the eyewitnesses. Lee was described as being 5 feet 9 inches tall, weighing 145-150 pounds, having black hair, and having a scar under one eye. Also, he was described as being shorter and stockier than appellant.
Appellant was identified as being at the restaurant and participating in the robbery of “Kentucky” by two witnesses. Lee’s fingerprints were found at “Kentucky” immediately after the robbery. These two facts viewed in the light of appellant’s testimony that he had never come to Fort Smith with Lee may very well have raised serious doubts as to the credibility of the appellant in the minds of the jury.
The fact of Lee’s fingerprints being found at the scene of the robbery is clearly relevant when viewed in the light of the other testimony in the case.
Affirmed.
Purtle, J., dissents. | [
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Robert H. Dudley, Justice.
This is a quiet title action involving 17.3 acres in Independence County. The chancellor found the title to the land in dispute should be quieted in the appellees, as their record title is superior to that of appellants, and because they and their predecessors in title had been in possession of the land for a long period of years. The appellees were awarded $100 in damages for timber which the appellants had sold off the tract and were found to have a private easement across the appellants’ adjoining land. The findings of the trial judge are not clearly against the preponderance of the evidence and we affirm.
The only claim to record title by appellants is two deeds executed in 1973 from the heirs of James M. Case. There are no conveyances to James M. Case nor are there any to his heirs who executed the deeds.
The chain of title from the United States of America down through appellees is unbroken. However, commencing in 1933, an erroneous line appears in the descriptions in the various deeds. While the deeds from 1933 do not correctly describe the tract in question, they do furnish a sufficient key to make the description definite. The south and east borders are marked by a creek which is referred to in the deeds, and the west boundary is marked by the railroad right-of-way which also is referred to in the deeds. The north line is marked by a fence line tying into a rock wall which was not mentioned in the deeds. This is a sufficient description for color of title. Branscum v. Drewry, 232 Ark. 947, 341 S.W. 2d 6 (1960).
The appellees have color of title and the record reflects overwhelming proof of possession of the tract by appellees and their predecessors in title. The chancellor did not commit error in quieting the title in appellees.
The appellants sold timber off the disputed tract but the timber cutter did not know how much timber he cut, and he guessed between 2,500 and 3,500 board feet. No other witness knew the value at stumpage.
The chancellor awarded $100 as nominal damages and we affirm. Nominal damages may be recovered for the in fringement of a right. See Western Union Telegraph Co. v. Aubrey, 61 Ark. 613, 33 S.W. 1063 (1896). Additionally, wherever a party establishes the infraction of a right but the evidence fails to show the extent of the damages resulting therefrom, he is entitled to nominal damages, whether the act complained of is an actual injury or not. Cathey v. Arkansas Power & Light Co., 193 Ark. 92, 97 S.W. 2d 624 (1936). Some damages are always presumed to follow from the violation of any right and the law in such cases awards nominal damages. See jBarlow v. Lowder, 35 Ark. 492 (180).
The chancellor also found the appellees had acquired a private easement by prescription across appellants’ land to the tract in dispute. The proof is substantial that appellees and their predecessors in title have used the road in question for many years. To acquire a private way by prescription, there must be a continuous use for seven years known by the owner. See LeRoy v. Sigman, 209 Ark. 469, 191 S.W. 2d 461 (1945). The finding of the chancellor is not against the preponderance of the evidence.
We affirm.
Hickman, J., concurs. | [
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John A. Fogleman, Chief Justice.
Appellants, Charles and Ailene Morton, operated a service station in Atkins, Arkansas. On May 8, 1975, Charles Bryant drove into the station in his truck, running on a rim. He had a new 7.50 X 16 tube type tire which he had just purchased from appellee, Raymond Wiley, doing business as Wiley Grain and Chemical Company, which he wanted mounted in place of the flat tire on his truck. Don Morton, one of the two sons of appellants, who assisted them in the operation of the station, put the tire on the truck, but called his father when he could not get it to take air. Morton, who is legally blind but can “read a ruler” and “count money,” attached an expander to the tire and it began to take air. As he leaned over the gauge, checking the pressure, the tire exploded injuring him severely about the head and shoulders. Later, it was discovered that appellee had sold Bryant the wrong size tire for the tire rim. One of the issues was whether Bryant or appellee was responsible for this. The Mortons brought suit against appellee for damages sustained by Morton when the tire exploded. The jury denied the Mortons any recovery. On appeal the Mortons allege eight points of error. We find no reversible error and affirm.
I
Appellants initially argue that there was reversible error in the solicitation of inadmissible testimony by appellee’s attorney in the cross-examination of appellee, who had been called by appellants in their case-in-chief. Appellee’s attorney questioned him concerning a conversation he had had with one of appellants’ attorneys, Mr. Mobley. The conversation had been mentioned on direct examination in response to a question posed by Mobley to appellee relative to the procedure in selling a customer a product the customer specifically requested. Appellee stated that he usually sold a customer making a specific request exactly what he asked for without going into details of how the product would be used and for what. To illustrate this response appellee recounted an incident where Mobley and his partner, Mr. Smith, came into appellee’s store and asked to purchase 10-20-10 fertilizer. Appellee related that he did not ask Smith any particulars as to the size of the lawn or the nature of the use, he merely sold Smith what he had requested. In answering the question by appellants’ attorney, Wiley had stated that this incident occurred a day or two after Mrs. Morton had come to Wiley’s place of business and asked for the tire, which Wiley had retrieved from the Morton’s station within an hour after the explosion. Wiley said that he had refused to let Mrs. Morton take the tire, but had told her she could come and look at it at any time.
The objectionable question was:
What else did Mr. Mobley tell you when he came down to see you that day and asked for that tire?
Appellee was well into his response and had said that Mobley had said what he was going to do and that the tire companies had a lot of money, before appellants objected on the grounds that the question was meant to elicit self-serving testimony. At this point, the trial judge dismissed the jury and allowed appellee’s attorney to make a proffer of the testimony he hoped to bring out through this line of questioning. The proffer revealed that appellee would testify that Mobley approached him and told him that he (Mobley) was just trying to help the Mortons out, that tire companies had a lot of money and that he was going to proceed to get them money to take care of their obligations. Appellee said that he asked Mobley why he did not forget the whole thing. The court held this testimony irrelevant and inadmissible. The trial resumed, after the jury was reseated, and Mobley called his next witness. At no time did appellants move for a mistrial or request that the court give an admonishing instruction. The trial judge sustained appellant’s objection, but was not asked to do more. We do not feel that the drastic remedy of declaring a mistrial would have been warranted, even if appellants had moved for that relief. We cannot agree with appellants that the question and answer had obviously been rehearsed. In light of the trial judge’s favorable ruling on the objection, it is likely that he would have given an admonition to the jury if one had been requested.
Appellants also contend that appellee’s attorney committed reversible error by attempting to mislead the court and jury by arguing that the testimony was admissible on the ground that appellant’s attorney had asked Wiley about statements made or a conversation had in the presence of appellant’s attorney, citing Ark. Stat. Ann. § 28-1001, Rule 103 (2) (c), relating to the conduct of proceedings so as to prevent inadmissible evidence from being suggested to the jury. No objection, request for admonition or motion for mistrial was made on this ground. We will not consider it because it is an issue first raised on appeal.
Appellants rely on International Harvester Inc. v. Hardin, 264 Ark. 717, 574 S.W. 2d 260. In that case Rule 615 of the Uniform Rules of Evidence [Ark. Stat. Ann. § 28-1001, (Repl. 1979)] was expressly violated, on a continuing basis, throughout the trial, by the court’s improperly excluding a witness from the courtroom, over appellant’s objection. We held that the error could not be considered harmless, so we found it necessary to reverse. The evidence to which appellants objected here was held inadmissible. In the absence of a request by appellants for an admonishing instruction and in view of the trial court’s ruling in their favor, any error committed in this respect could not be the basis for reversal.
II
Appellants next argue that the court abused its discretion in forbidding appellant’s attorney, on redirect examination, from eliciting an explanation of an answer given by Mrs. Morton on cross-examination. Appellee’s attorney had asked Mrs. Morton whether it was true that she had hired legal counsel within three weeks of the accident. She responded that she sought legal counsel when she saw how much her husband was suffering. Appellee’s attorney interjected and asked the witness to respond to his question. Appellants’ attorney intrerposed and insisted that she be allowed to answer the question. The trial judge ruled that the witness should answer the question, and, if the answer needed an explanation, she could explain after answering and directed appellee’s attorney to repeat the question. The examination continued and Mrs. Morton said that she had “more or lesss” employed the attorneys representing appellants to assist in any claim they might have when she and the attorneys went to Wiley’s place of business seeking to obtain the tire. Upon further inquiry she said that these attorneys had not told her to keep up with bills and drug bills or that they would be important later. Appellant’s attorney then interrupted, telling the witness that she had previously started to make an explanation. Appellee’s attorney objected and the trial judge told appellant’s attorney that he would have an opportunity to examine her after cross-examination was concluded. On redirect examination, appellant’s attorney asked Mrs. Morton what had occurred to cause her to contact legal counsel and, when an objection was made, the circuit judge questioned the relevancy of the inquiry and sustained the objection after appellants’ attorney had said that he sought to show that the reason Mrs. Morton had employed counsel was that she had called Wiley to get the tire and he would not let her have it and would not sell it to her.
The trial judge had a great latitude of discretion in deciding questions of relevancy. We would have to say that his ruling affected a substantial right of appellants before we could say that there was error. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979). We cannot do this. Appellee’s attorney was questioning appellants’ failure to present medical bills. We agree with the trial judge that it made no difference why she employed counsel or when.
Ill
Appellants object to a statement made by appellee’s attorney as he objected to a question posed by appellants’ attorney to Charles Wilson, a tire merchant in the community. Wilson asked if, in his opinion, a 17-year-old boy would notice the difference in trying to fit the wrong size tire on the wrong size rim. The statement was:
We will object to that question, Your Honor, because whether or not a seventeen year old boy — if they had a seventeen year old boy operating this machine, that’s just the risk they took.
When objection was made to this statement, the trial judge promptly ruled in appellant’s favor and admonished the jury not to consider the statement, and appellee’s attorney apologized. Appellants contend that this was insufficient to cure the erorr but they not request more. As justification, they cite Missouri Pac. Ry. Co. v. Glidewell, 199 Ark. 1187, 137 S.W. 2d 237. There the opposing attorney on voir dire had asked the veniremen if they would have any prejudice against his counterpart even though ‘he was a republican.,’ The court admonished the jury not to consider this remark, but on appeal we felt that the question may have evoked prejudices and biases too great to be cured by an admonition. We reversed and remanded for a new trial. A mistrial is an extreme and drastic remedy that will be granted only if justice cannot be served by a continuation of the trial. Foots v. State, 258 Ark. 507, 528 S.W. 2d 135; Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690; Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366. (1980). Any prejudice here was sufficiently cured by the admonition. To say the least, it was not so great or inherently prejudicial as to excuse appellants from moving for a mistrial.
Appellants argue that if they had requested a mistrial in this instance, the wrong would have been reemphasized. We are not impressed with this contention; as appellee points out, a mistrial may be requested at the bench, out of the hearing of the jury, without any resulting prejuduce. It is anomalous for counsel to avoid requesting a mistrial, when appropriate, because of a fear of compounding a wrong done to his client as prejudicial as he claims this one to be.
In Foots we addressed a situation similar to that here. The deputy prosecuting attorney had made some objectionable comments in his opening statement. The trial court admonished the jury to disregard the comments but did not grant a mistrial. On appeal we stated that such a situation does not warrant the granting of a mistrial as the jury is not only admonished to disregard the statement but it is instructed by the court that statements of counsel are not evidence and are not to be considered so. We find this case supportive of our conclusion here that a mistrial, even if requested, would not have been warranted.
IV
The next point involves the trial court’s exercise of discretion in the realm of cross-examination. Appellants contend that the trial court erroneously limited their cross-examination of appellee’s expert witness, Bernie Bower, general manager of a tire and battery organization servicing 135 dealers in Arkansas. In Bower’s role as general manager he is called to upon to teach and train dealers on the sale and installation of the brands of tires his company carries. Bower, after testifying on direct examination as to how he would mount and install the tire in question, was asked on cross-examination how he would determine the size tire to be sold to a customer. He stated that if the customer were a man, he would ask him the size tire he wanted and would accept his word on it. However, if a lady came in to buy a tire he would go out and check her car to determine the correct size. Counsel then attempted to pursue further hypothetical examination by asking what Bower would do if the customer were a 17, 18 or 19-year-old boy. Bower attempted to respond, qualifying his answer with the admonition that in most operations ‘we’ do the installation ‘ourselves.’ Appellants’ counsel interjected that the hypothetical question was limited to the operation of a store, and did not concern the mounting of tires. At this point the trial court put a stop to that line of questioning as going beyond the scope of cross-examination.
Appellants argue that the question should have been permitted in order to show that the witness was not basing his opinion on any reasonable basis, citing Wallace v. Williams, 263 Ark. 702, 567 S.W. 2d 111. There was no evidence that Charles Bryant, the buyer, was a teenage male so the question did not relate to a material fact at issue. Concededly the question was hypothetical. The court had allowed appellants to ask their hypothetical question with relation to men and women. We cannot see the necessity of pursuing the treatment of specific age brackets within each sex. In Wallace the opinion testimony erroneously insulated from impeachment on cross-examination, concerned the amount of medical bills and treatment the injured party would require; it served, in effect, as the basis of the damages. Here the manner in 'which Bower treated those of his customers who were teenage boys was not material.
In Arkansas State Highway Comm’n. v. Dean, 247 Ark. 717, 447 S.W. 2d 334, an eminent domain action, we found that limiting cross-examination of a real estate appraiser to two to four comparable sales from a list of 250 he had introduced on direct examination, was an abuse of discretion. However we warned: “We do not mean to say that the court should have permitted a detailed interrogation about each of the 250 sales studied by Barnes.” Once the procedure used by Bower in dealing with men as opposed to women customers had been established, it was not abuse of discretion to prohibit appellants from pursuing specific age categories within each sex without some showing that the buyer, Bryant, fell into that group. We will not reverse the trial court’s discretion in limiting cross-examination unless we find gross abuse. Arkansas State Highway Com’n. v. Cutrell, 263 Ark. 239, 564 S.W. 2d 213; Henry v. Landreth, 254 Ark. 483, 494 S.W. 2d 117; Gustafson v. State, 267 Ark. 278, 580 S.W. 2d 853. We do not find that here.
V
Appellants next assert error in the trial court’s refusal to permit their asking Betty Wiley, appellee’s ex-wife, whether or not she was still in love with appellee. It is their contention that the jury was entitled to this information in order to properly weigh all the testimony of Mrs. Wiley. They insist the question went to any bias Mrs. Wiley might have had in testifying. The jury had been made aware that Betty Wiley was married to appellee at the time Charles Bryant bought the tire; in fact, she was the salesperson who wrote up the sale. The sales tickets, an original and a duplicate, were introduced through her.
We cannot see how appellants were prejudiced. When the trial judge ruled that the question was improper, appellants’ attorney stated that the purpose of the question was to show the present relationship between the parties. The judge stated that he could do so otherwise. In spite of this, appellants’ attorney did not pursue the matter further. The court only excluded the particular question. We do not see how any substantial right of appellants was affected, since the court did not otherwise limit the examination as to the relationship between the parties. In listening to the testimony of Mrs. Wiley, the jury was aware that she and appellee had been married at the time of the sale and were now divorced. In the absence of an abuse of discretion, we affirm the trial court’s limiting of cross-examination. Henry v. Landreth, supra; Arkansas State Highway Com’n. v. Cutrell, supra. In view of the appellants’ tactical decision not to pursue the matter, they are in no position to argue an abuse of discretion.
VI
Neither of the parties desired to invoke the rule on sequestering witneses when inquiry was made by the trial court at the beginning of the trial. After appellee was called by appellants as their first witness and had given testimony identifying himself, counsel for appellee requested the rule. The court granted the request. Appellants claim that in so doing the court abused its discretion. We not that the rule is mandatory when requested by one or both of the parties. Uniform Rules of Evidence, § 28-1001 R. 615 (Repl. 1979); Chambers v. State, 264 Ark. 279, 571 S.W. 2d 79. Even if we should conclude that application of the rule was discretionary, rather than mandatory, at this stage of the trial, there was no abuse of discretion.
VII
Appellants assert error in appellee’s counsel’s comment on the law while cross-examining one of appellants’ witnesses, who as a seller of tires at retail, testified as an expert. The witness had responded to a question concerning his opinion as to appellee’s negligence as related to the limitation of appellee’s business only to the sale of tires and not to mounting them, as the witness did. The witness had stated that he did not feel that there is any less liability just because an individual’s business scope is different. At this point appellee’s counsel remarked:
Well, of course, liability is something the Court and the Jury will determine and that’s something that’s connected with cause . . .
Appellants objected but the judge did not rule on their motion stating that he had not heard the remark. The trial resumed. Here again appellants failed to pursue any remedy, either through admonition or mistrial.
The jury was instructed that remarks made by counsel during trial are not evidence and that it should disregard any arguments, statements or remarks of attorneys having no basis in the evidence. The type of remark made here would not have been sufficient to cause a mistrial. Wicks v. State, supra. It was argumentative, but not an incorrect or misleading statement.
VIII
Appellants finally argue the insufficiency of the evidence to support the verdict. They contend that the jury verdict is contrary to the preponderance of the evidence. We cannot sustain appellants’ contention since they are in error as to the applicable standard of review. In determining the sufficiency of the evidence to support a jury verdict, we affirm if there is substantial evidence to support the verdict. Thrifty-Rent-A-Car v. Jefferey, 257 Ark. 904, 520 S.W. 2d 304. If we apply the correct standard of review, we must nonetheless affirm, as there was substantial evidence to support the verdict.
The jury verdict is affirmed.
Mrs. Morton had testified on direct examination that her husband’s medical bills totalled something in the neighborhood of $3,556.21, which was not supported by the bills in many instances, because she was not able to locate them. | [
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James H. Pilkinton, Judge.
This is an unemployment compensation case. Appellees were discharged from their employment with St. Vincent Infirmary on October 4, 1979. They were employed in a child day care center operated by St. Vincent. The appellant contends that appellees were guilty of misconduct in accordance with Section 5(b)(1) of the Arkansas employment security law, which provides:
“. . . [a]n individual shall be disqualified for benefits:
(b)(1) If he is discharged from his last work for misconduct in connection with the work. ...”
It is well settled that in order for an employee’s action to constitute “misconduct” it must “. . . be an act of wanton or wilful disregard of the employer’s interests, a deliberate violation of the employer’s rules, a disregard of the standard of behavior which the employer has a right to expect of his employees.” Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W. 2d 495 (1980); see also 76 Am. Jur. 2d, Unemployment Compensation, § 52; 26 ALR 3d 1356; Parker v. Ramada Inn, 264 Ark. 472, 572 S.W. 2d 409 (1978).
At the time of their discharge, Ms. Lockhart was employed as the secretary of the day care center, and Ms. Williams was a day care aide in the center.
Ms. Lockhart was discharged for a series of events occurring between October 1 and October 3, but particularly on October 3. The director was away from the center for part of the day on October 3. Ms. Lockhart engaged in personal business most of the day, visiting in the office with Ms. Williams and other employees, trying on blouses, and going over to the hospital to get food for herself and some of the other employees. Sometime between 1:00 and 1:45 in the afternoon, Ms. Lockhart left the grounds of St. Vincent Infirmary with Helen Williams and remained absent until about fifteen minutes to three that afternoon. Both Ms. Williams and Ms. Lockhart failed to clock out, which violated a well-established and generally known policy at the center. Ms. Williams and Ms. Lockhart refused to state where they had gone during this time, but admitted it was for personal business. They claimed they were gone only an hour, from 1:45 until.2:45, but there is evidence to the contrary.
Ms. Williams was discharged for her misconduct on October 3. As a day care aide for small children, she was supposed to supervise the children closely.. Instead of staying out on the playground with her co-worker and her charges, she visited with Ms. Lockhart in Ms. Lockhart’s office, ate a snack, and generally disregarded her duties. As stated above, she left the premises during the most crucial period of the afternoon, from 1:30 to 2:30. It was well known by her and the other employees at the center that this time of day was especially important, because day children were being picked up and evening shift children were being left off; and children were waking up from their naps and needed attention. Under established policy, no employee who had charge of children was permitted to leave at this time-unless it was her regular lunch break or unless she received special permission. And only the cook took a regular lunch break at this time.
After a thorough investigation of the facts on October 4, 1979, Ms. Carol Lawrence, director of the child care center, made the decision to terminate both employees for serious misconduct. When appellees later applied- for benefits, the initial determination of, the Employment Security Division was that they were disqualified. The claimants appealed, and after a hearing the appeals referee reached a decision that the claimants had been discharged for “reasons other than misconduct” and directed St. Vincent Infirmary to pay unemployment benefits. That decision was affirmed by, the Board of Review, which adopted the opinion of the referee. St. Vincent Infirmary brings this appeal from the decision of the Board of Review.
The Arkansas Employment Security Act provides that individuals are disqualified for eight weeks of employment security benefits if they are discharged from their work for "misconduct in connection with the work.” Ark. Stat. Ann. § 81-1106(b)(1) (Repl. 1976).
Ark. Stat. Ann. § 81-1107(d)(7) provides “in proceedings under this subsection (relating to an appeal to the Court of Appeals) the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.”
Whether the findings of the Board of Review are supported by substantial evidence is a question of lag, and this court may reverse a finding of the Board of Review which is not supported by substantial evidence. Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978).
We have been favored with splendid briefs by both appellant and appellees; and the case has also been argued orally. After a careful study of the record we have concluded there is no substantial evidence to support the decision of the Board of Review that appellees were discharged for “reasons of misconduct.” Therefore this case must be reversed.
It is undisputed that both appellees left the hospital grounds without permission, and without clocking out; that they were absent during the busy periods of the day; the time when they were gone, regardless of the length, did not correspond with appellees’ normal lunch period; and their absence placed the day care center in violation of regulations concerning the ratio of adult employees to the number of children present.
Appellees rely on Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W. 2d 890 (1980). As there stated, the statutory disqualification for unemployment benefits for misconduct should not be so literally construed as to effect a forfeiture of benefits by an employee except in clear instances of misconduct. The case at bar is distinguished from Willis Johnson Co. v. Daniels, supra. Here we have clear instances of misconduct on the part of both discharged employees and an absence of any substantial evidence to show that they were discharged for any reason other than misconduct in connection with their work. The actions on their part, which led to their discharge, were intentional, and displayed a substantial disregard of the employer’s interests, and of the employees’ duties and obligations. The record contains no evidence to the contrary. In Willis Johnson Co. v. Daniels, supra, we affirmed because in that particular case we found substantial evidence to support the result reached by the Board of Review. In the case before us now we must reverse because we cannot find substantial evidence to support the conclusion reached by the Board of Review that appellees were discharged “for reasons other than misconduct.”
Reversed.
Flowers, J., dissenting.
Hays, J., not participating. | [
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Tom Glaze, Judge.
The ultimate issues in this case on appeal involve venue. The appellant, Atkins Pickle Company, Inc., (Atkins) engaged the appellee, Burrough-Uerling-Brasuell Consulting Engineers, Inc., (Engineers) to design and supervise the construction of a brine storage area for cucumbers. The storage area was constructed on Atkins’ property in Pope County, Arkansas. Atkins also engaged Arkansas Erectors, Inc., (Erectors) and Arkansas Structural Products, Inc., (Structural) to assist in the construction and installation of the storage facility. The other appellee, Allen R. Henson, (Henson) an engineer and agent of Structural, participated with Engineers in the overall design and preparation of the plans and specifications for the facility.
After the storage facility was constructed and installed, Atkins contends that due to faulty design and installation, the concrete walls of the facility moved, causing it to leak brine and thereby ruin the cucumbers contained therein. Atkins filed suit in Pope County against Engineers, Erectors, Structural and Henson. Since National Surety Corporation (National) was the surety and bonding company for the performance of Structural and Erectors, Atkins also sued and joined National. None of the parties sued by Atkins are residents of Pope County nor were they served with summons in Pope County. All of the parties entered special appearances, challenging the Pope County venue. The trial court held it had venue in the actions against Erector, Structural and National but not against Engineers and Henson. Atkins appeals the court’s adverse ruling involving Engineers and Henson and raises two points for reversal.
Atkins first argues that there is joint or common liability between all of the parties it sued in Pope County and since the Pope County Circuit Court held it had venue over Erector, Structural and National, venue also exists as to Engineers and Henson.
In most cases, our Arkansas General Assembly has provided by law that a defendant must be sued in the county of his residence. The General Assembly has on occasion enacted laws which permit venue to be found in a county other than a defendant’s residence. The trial court did so in the instant case as to National, and in doing so, the court based its action on Ark. Stat. Ann. § 66-3234, which in pertinent part provides:
66-3234. Suits against insurers — Venue. — (1) An action brought in this State by or in behalf of the insured or beneficiary against an insurer as to a loss occurring or benefits or rights provided under an insurance policy or annuity contract shall be brought in either:
(a) The county in which the loss occurred, ... or
(b) The county of the insured’s residence at the time of the loss or death . . .
The court below also relied on the case of Ray Ross Construction Company, Inc. v. Raney, 266 Ark. 606, 587 S.W. 2d 46 (1979), wherein our Supreme Court construed § 66-3234, above, and held:
. . that the residence of the beneficiary on the surety bond and the county in which the loss occurred are sufficient to establish venue on a subcontractor’s complaint against a surety.
Although the case at bar does not involve a subcontractor’s suit against a surety, the trial court did apply § 66-3234 and held venue was established in Atkins’ suit against National. Moreover, the court found that the bond issued by National named and covered the performance of Erectors and Structural, and further found these two parties to be properly and jurisdictionally before the court. Atkins assumes by its argument in this appeal that the trial judge correctly applied the law in establishing venue over National, Erector and Structural, but claims the court erred only in not extending its jurisdiction to include Engineers and Henson. We do not agree.
The landmark case of Wernimont v. State, 101 Ark. 210, 142 S.W. 2d 194 (1911) is instructive in deciding the venue question at hand. The court in Wernimont stated:
It is the policy and spirit of our law, enacted into statute by our Legislature, that every defendant shall be sued in the township or county of his residence. To this general principle there are statutory exceptions, chiefly in cases where there is a joint liability against two or more defendants, residing in different counties. In such cases it is provided that suits may be brought in the county of the residence of any of the defendants, and service of summons can be had upon the other defendants in any county, thereby giving jurisdiction over their persons to the court wherein the suit is thus instituted. Kirby’s Digest, §§ 6072 [Ark. Stat. Ann. § 27-613 (Repl. 1979)] and 4558. But, before this jurisdiction can be acquired by virtue of these statutes over the person of such defendants non-resident of the county wherein the suit is instituted, it is essential that the defendant resident of the county where the suit is brought shall be a bona fide defendant. By our statute, it is further provided that, before judgment can be had against such nonresident defendant, a judgment must be obtained against the resident defendant. Kirby’s Digest § 6074 [Ark. Stat. Ann. § 27-615 (Repl. 1979)]. [Emphasis supplied.]
Since the Wernimont case, the Supreme Court has repeatedly held that in order to obtain judgment against a defendant who resides in a county other than that in which a suit is brought, the defendant must be jointly hable with a defendant who resides or is summoned in the county where the suit is filed. See Barr v. Cockrill, Judge, 224 Ark. 570, 275 S.W. 2d 6 (1955); Terry v. Plunkett-Jarrell Grocery Company, 220 Ark. 3, 246 S.W. 2d 415 (1952), and Meeks v. Waggoner, 191 Ark. 189, 85 S.W. 2d 711 (1935). In the case at bar, it is agreed that none of the parties sued by Atkins is a resident of Pope County. In fact, National is the only party against whom a summons could be issued by law and it was done pursuant to a specific statute, viz. § 66-3234 above. Atkins actually served its complaint and summons on National by having the sheriff deliver it to the Arkansas Insurance Commissioner in Little Rock as National’s agent. Whether venue was- correctly established as to National, Erector and Structural is not at issue in this appeal. For purposes of our decision, it is unnecessary for us to declide whether National was “summoned” in Pope County as that term was considered and contemplated by our Supreme Court in the cases of Wernimont, Barr, Meeks and Terry. In these cases, the Supreme Court was presented with facts wherein the law suit was filed in the county in which the defendant resided or was personally served with process. The reasoning and the decisions in these cases would not appear to be decisive of the venue issue before us. Regardless of the questions one might have concerning how venue should be established in the case before us, the law is clear that joint or common liability must exist between National, assuming it is properly “summoned” in Pope County, and the non-resident defendants, Engineers and Henson. Under the facts of this case, we find no joint or common liability exists between National, Engineers and Henson. The only liability which National could incur would arise out of whatever damages Atkins can successfully prove against and attribute to Erectors and Structural. Neither Engineers nor Henson is named in National’s surety bond. Thus, if Atkins were successful in its suit against Engineers and Henson, National would not be obligated or affected on its bond.
Atkins further claims that joint liability does exist between all of the parties because of allegations in the complaint which attributes negligence to all defendants jointly and severally. Of course, if any of the parties except National had been legally summoned in Pope County, Atkins’ argument might have merit. This, however, is not the case. It was National which was summoned and whether or not joint or common liability exists must be determined or measured commencing with National and its common liability, if any, with the other defendants. It shares none with Engineers or Henson.
The second argument advanced by Atkins that venue lies in Pope County is that Ark. Stat. Ann. § 27-601 (Repl. 1979) controls Section 27-601 (Repl. 1979) provides as follows:
. . . Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof, is situated, . . .
# # *
Fourth. For an injury to real property . . .
It was orally argued by Atkins that injury occurred to its property because brine leaked onto the soil. Moreover, Atkins claims that the storage facility was a fixture and is, therefore, real property. If so, Atkins further argues the damage to the storage facility was an injury to real property and venue would be controlled by § 27-601 above.
Since no testimony or evidence was presented, our review of this case is limited to the pleadings. So, we consider Atkins’ contentions in light of the allegations contained in its complaint. The complaint fails to allege any damages to the real property owned by Atkins, and contrary to what may have been inferred in oral argument, the complaint is silent as to any damages Atkins may have sustained to its real property due to brine leaking into the soil. Where Atkins sets forth specific damages in its complaint, there is no mention of any monetary damages sought for anything other than that which was directly related to the storage facility.
Thus, for Atkins to prevail in its contention, we must find from the complaint that the storage facility is a fixture and, therefore, real property within the context that term is used in § 27-601 above. After a careful study of the allegations contained within the complaint, we are unable to do so. A fixture has been defined by our Supreme Court as property originally personal which, being affixed to the soil or to a structure, is clearly a part of the soil and, being affixed or attached to the land, has become a part thereof. It must also be annexed to the freehold for use in connection therewith and so arranged that it cannot be removed without injury to the freehold. Continental Gin Company v. Clement, 176 Ark. 864, 4 S.W. 2d 901 (1928). In Clement, the Court held an elevator in a cotton gin did not become a fixture, since it was not shown that it could not be removed without injury to the freehold. The allegations in Atkins’ complaint never mention that the storage facility was affixed or attached to the property nor that it would injure the freehold if removed. The facts alleged by Atkins refer to prefabricated base slabs and pre-cast-prestressed panel walls. The common usage of the term prefabricate indicates that the items employed in the construction of the storage facility were fabricated elsewhere but brought to the Atkins site for installation. Without evidence or assertions in the complaint to the contrary, it is certainly .reasonable to infer that the prefabricated items could also be removed from the Atkins site if Atkins so elected. We cannot insert words or language into Atkins’ complaint to provide the storage installation was affixed and could not be removed without causing injury to the real property. Although we might envision facts by which this storage facility could be a fixture, we are unable to do so from the complaint before us.
For the reasons stated above, we affirm the trial court’s decision.
Affirmed.
Corbin, J., not participating.
Fogleman, Special Judge,
joins in the opinion, but would also hold that National Surety Corporation was not summoned in Pope County. | [
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Robert H. Dudley, Justice.
The jury found appellant guilty of first degree murder. There was substantial circumstantial evidence to prove that he ran over his wife more than twice with his automobile, and there was no reversible trial error. Accordingly, we affirm the judgment of conviction.
The conviction was based upon circumstantial evidence. The appellant recognizes that circumstantial evidence can constitute substantial evidence, see Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989), but questions whether there was substantial evidence of his guilt, and, even if there was substantial evidence of his guilt, argues that it did not exclude every other reasonable hypothesis as is required in cases of circumstantial evidence. See Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). He contends that it is reasonable to hypothecate that Jackie Shempert was the murderer. As a result of the argument, we must set the evidence out in some detail.
Five days after the victim’s death, appellant gave the police a statement in which he said that on the night of his wife’s death he and his wife got into an argument while they were at the Starlight nightclub near Bondsville in Mississippi County. He said he was intoxicated, but drove their automobile as they left the nightclub. He drove the car only a short distance when his wife began scratching and clawing him. He said he had to hit her in the mouth and grab her hair to restrain her. He stated that he felt the car swerve as she jumped out of the car. He said he drove the car an additional seventy-five yards and then backed the car and found her beside the road.
Separate evidence established that appellant’s automobile was blue in color and that the victim was wearing a black sweater. Even though it was below freezing, the victim was not wearing a coat or shoes.
Herbert Ainsworth testified that at, or shortly after, midnight he was a passenger in John Murphy’s vehicle as they were driving in an easterly direction on their way to the Starlight club when he saw a dark colored car on the side of the road. The dark colored car was headed west, which was the direction appellant and the victim would have driven. After passing the dark colored car Ainsworth saw someone crawling beside the road. That person had on a black sweater and pants. He saw the dark colored car’s brake lights come on and then saw its back-up lights come on. He thought either a fight had occurred, or else the person crawling was drunk. He and Murphy decided to continue east to the club. While travelling to the club, Ainsworth saw a car driven by Jackie Shempert going in the opposite direction, or west.
John Murphy gave much the same testimony. He saw the person crawling beside the road and did not think that person was hurt. He saw the brake lights on the parked car and then saw its back-up lights come on. He testified that the dark colored car had bright back-up lights. He thought that the dark colored car might be backing up to pick up a drunk. They went to the club and returned a short time later.
Lori Hill testified that she and Jackie Shempert had been at the Starlight club and were in Shempert’s car on their way home. They were headed west. Lori Hill saw a body beside the road. Shempert immediately began to turn the car around, and, while doing so, a car driven by Archie Ohler approached. Ohler was in his lane headed east toward the Starlight club and stopped immediately. Lori Hill testified that Shempert and Ohler got out of the two vehicles, looked at the body, and Shempert said, “It’s Shelia Dixon,” and “Let’s go to my brother’s house and call 911 from there.” Hill testified that she and Shempert went to Shempert’s house and called the police.
Archie Ohler testified that he was on his way to the nightclub when he saw the victim’s body on the opposite side of the road. Her legs were in the roadway while the upper part of her body was off the road. He stopped and turned his car so that his headlights shined on the victim’s body.
Ohler testified that while he was maneuvering his car to get his car lights on the body, Shempert and Hill completed their turnaround and returned. He stated that they did not see any other vehicles. As Ohler and Shempert looked at the horribly battered body, appellant drove up, and ran over the victim’s leg. Ohler testified that appellant “seemed to come up out of nowhere.” Appellant, who was drunk, said someone had run over his wife.
Deputy Sheriff Jones testified that he responded to the call. When he arrived, the appellant was there and said that he and his wife had been arguing and that he let her out of the car, drove about one hundred yards, turned around, and came back to get her but found that someone had run over her. The victim’s shoes were found in appellant’s car, as well as a large amount of hair that appeared to be from her head. Stains that appeared to be blood were found in the front seat and on the right rear wheel and tire, the right rear quarter panel, and the right rear wheel well of appellant’s car. Fresh scratches were found on the lower part of the front bumper. The victim’s purse was found in the trunk of the car. It contained a letter to the appellant that stated she was suing him for divorce because, “This is hell on earth for me. I need out and away from you. Tommy, you’re too, too rough for me. . . .” The officers examined the other vehicles at the scene, but none of them showed any evidence that they had struck the victim. Shempert had left earlier to call the police, and his car was not there to be examined at the time. The police examined it two days later, and there was no evidence that it had struck the victim.
Dr. Violet Hnilica, the forensic pathologist from the Medical Examiner’s office, testified that the victim suffered multiple injuries in four different areas of her body and that the pattern of abrasions indicated the victim “had been run over probably more than twice.” Dr. Hnilica further testified that the victim’s injuries were inconsistent with falling out of a car.
The foregoing constitutes substantial evidence that the victim was killed by being run over more than twice by an automobile. Appellant had a motive and the opportunity to kill the victim. If the victim had intended to voluntarily get out of the car, it is unlikely that she would have gotten out barefooted and without a coat in the freezing cold weather. The hair and blood in the car is evidence of a violent struggle. If the victim had only fallen from the passenger side door, and appellant had only accidentally run over her, it would not have damaged the lower part of the front bumper. The testimony of Ainsworth and Martin is substantial circumstantial evidence that, at the time they saw the dark colored car, appellant applied his brakes and put his vehicle in reverse to back over the victim. Appellant’s vehicle is the only vehicle that showed evidence of running over the victim. All of the testimony taken together constitutes substantial circumstantial evidence of appellant’s guilt.
Appellant also contends it is reasonable to hypothecate that Shempert is the one who ran over the victim. The argument is without basis. Lori Hill’s testimony and the physical evidence that Shempert’s vehicle had not struck anyone negates such a hypothesis. Accordingly, we hold there is substantial evidence to support the conviction.
Appellant did not object to some photographs being admitted into evidence. He now argues that we should reverse and remand because the trial court erred in not excluding the photographs on its own motion. We summarily reject the argument because we have repeatedly said that we do not have the “plain error” rule in this State. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Appellant’s final argument is that the trial court erred in admitting into evidence the letter to the appellant that was found in the victim’s purse. The objection at trial was based only on relevancy. A trial court’s decision regarding relevancy is entitled to great weight and will be reversed only if the court abused its discretion. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). The trial court ruled the letter was relevant because it showed motive. Although the State is not required to prove motive, it may introduce evidence showing all of the circumstances that explain the act, illustrate the accused’s state of mind, or show a motive for the crime. Richmond v. State, 302 Ark. 498, 79 S.W.2d 691 (1990).
Affirmed. | [
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John A. fogleman, Chief Justice.
This matter reaches us upon a petition for post-conviction relief by Francis Edward Klimas, who was found guilty of burglary of the Dixie Wood Preserving Company’s building near Pine Bluff and of grand larceny of property therein. On his direct appeal, we found reversible error in the enhancement of his sentence under our Habitual Criminal Act [Ark. Stat. Ann. §§ 43-2328-30 (Repl. 1974)]. The error was in the admission into evidence of seven felony convictions in the form of certified copies of the records of the Department of Correction of Missouri State Penitentiary, which complied with the requirements of Ark. Stat. Ann. § 43-2330, but none showed that Klimas had the assistance of counsel at the times of the convictions and the state introduced no evidence that Klimas actually had the assistance of counsel at the time of any of the Missouri convictions. We reversed the judgment unless the state agreed to accept a reduction of the sentence to three years, the minimum for the charges on which Klimas was tried. Klimas v. State, 259 Ark. 301, 534 S.W. 2d 202, cert. den. 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed. 2d 117 (1976). The state filed a petition for rehearing, correctly pointing out that we had overlooked the fact that evidence of six prior Arkansas felony convictions had been admitted without challenge, in addition to the Missouri convictions. We then gave the state the option of a new trial or a reduction to a sentence of 42 years. The state accepted the 42 year sentence. Klimas petitioned the United States Supreme Court for review of our decision on certiorari, but the writ was denied. 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed. 2d 117 (1976).
Thereafter Klimas sought a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas under 28 USC § 2254. The denial of that petition by the district court was reversed by the Eighth Circuit Court of Appeals. Klimas v. Mabry, 599 F. 2d 842 (8 Cir., 1979). Even though Klimas had not petitioned this court for post-conviction relief under Rule 37, Arkansas Rules of Criminal Procedure, vol. 4A, Ark. Stat. Ann. (Repl. 1977), the state, for some reason, conceded in that proceeding that Klimas had exhausted his state remedies. The Court of Appeals for the Eighth Circuit vacated the order of the district court dismissing the petition for habeas corpus and remanded the case with directions to hold the petition in abeyance in order to afford the State of Arkansas the opportunity to resentence Klimas by jury in accordance with Arkansas law. Rehearing and rehearing en banc were denied. Chief Judge Gibson and Circuit Judges Henley and Ross dissented, taking the view that the State of Arkansas should be given the option of having petitioner sentenced to imprisonment for not more than 21 years or giving him a new trial on all issues. On certiorari, the United States Supreme Court on June 30, 1980, reversed the judgment of the Court of Appeals and remanded the case to that court for proceedings consistent with the opinion rendered by the Supreme Court. Mabry v. Klimas,_U.S. _100 S.Ct. 2755, 65 L.Ed. 2d 897 (1980). The remand was based upon the fact that the Arkansas courts should be given an opportunity to pass upon and decide whether Klimas was entitled to be resentenced by reason of the amendment of our recidivist statutes resulting from the adoption of the Arkansas Criminal Code which became effective oh January 1, 1976, well after Klimas was sentenced by the trial court, but before our modification of the sentence on appeal, for which we applied the law which was in force at the time of the trial and gave no regard to the law as set out in the new Criminal Code.
Although we do not know what action has been taken in the Court of Appeals for the Eighth Circuit or the District Court for the Eastern District of Arkansas, Klimas has filed his petition for permission to apply to the Circuit Court of Jefferson County, in which he was tried, for post-conviction relief under Rule 37, Arkansas Rules of Criminal Procedure, on the basis of the per curiam opinion of the United States Supreme Court.
It seems to us that the Criminal Code itself contains the answer to the question presented. It provides that an offense committed prior to the effective date of the code shall be punished in accordance with the law existing at the time of the commission of the offense. Ark. Stat. Ann. § 41-102 (3) (Repl. 1977); Campbell v. State, 265 Ark. 77 , 576 S.W. 2d 938 (1979); It is equally clear that, in Arkansas, the habitual criminal statutes make prior convictions the basis for increasing the punishment for the offense on trial. Finch v. State, 262 Ark. 313, 556 S.W. 2d 434; Osborne v. State, 237 Ark. 5, 371 S.W. 2d 518. In view of the clear answer to the question of law presented, there is no need to authorize proceedings in the trial court. See Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934.
The practice followed by us in considering the direct appeal of Klimas was followed by us in McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 and Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600 and seems to have been approved by the Court of Appeals for the Eighth Circuit in Cox v. Hutto, 589 F. 2d 394 (8 Cir., 1979). It seems to us that it has been recognized, at least by implication, by the United States courts that imposition of the lightest sentence possible, giving consideration to unchallenged convictions, is not a denial of due process of law, as we read the majority opinion in the decision of the Court of Appeals for the Eighth Circuit and the opinion of the United States Supreme Court. Klimas has never challenged the six Arkansas felony convictions introduced in evidence. Under the law in force at the time of his conviction the minimum punishment under the recidivist statutes for burglary would have been imprisonment for 21 years and the minimum punishment for the charge of larceny on which he was tried was also 21 years. As pointed out in the dissenting statement of Circuit Judge Henley, in which Chief Judge Gibson and Circuit Judge Ross joined, the circuit judge could have made the sentences for the two offenses run concurrently. Ark. Stat. Ann. § 43-2312 (Repl. 1977). In order to make certain that Klimas has not suffered any prejudice by the previous action of this court, his sentence is reduced to 21 years.
Purtle, J., not participating.
This statute was in effect when Klimas committed the offese and remains the law today. | [
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Robert H. Dudley, Justice.
The plaintiff, J.D. Fisher, filed a multi-count suit in chancery court against ten defendants. The chancellor transferred to circuit court the counts that sought remedies at law. Those law counts were against four of the defendants and are the counts involved in this appeal. The chancellor tried the equitable counts against the other six defendants and, after a trial on the merits, ruled in favor of those defendants. The plaintiff appealed, and we affirmed. Fisher v. Jones, 306 Ark. 577, 816 S.W.2d 865 (1991). Subsequently, the four defendants with counts remaining against them in circuit court filed motions for summary judgment. The circuit court granted the motions, and the plaintiff appeals. We affirm, mainly because the primary issue is precluded by the prior holding.
J.D. Fisher, the plaintiff-appellant, was one of three principal owners of Fisher Buick, Inc., which held the Mercedes Benz franchise in Fayetteville for several years before February 26, 1986. On that date, Fisher Buick entered into a contract to sell the dealership to Kelly Hill and others with the consideration to be paid in monthly installments. The contract restricted Hill from reselling the franchise or the other property without the prior approval of Fisher Buick, and further gave Fisher Buick the right of first refusal to repurchase the franchise and other assets. It also provided that Mercedes Benz of North America (MBNA) had to approve any sale of the dealership made before the purchase price was paid in full. A copy of the contract was provided to MBNA’s agents in its Houston, Texas zone office. An agent for MBNA, at its Houston office, told plaintiff that he saw no reason why the franchise would not be re-awarded to plaintiff if Hill went out of business. However, the agents at the. Houston zone office did not have authority to bind MBNA to a contractual agreement for the granting of a franchise, and plaintiff knew they had no such authority.
In May 1986, Hill was awarded the Mercedes Benz franchise in Fayetteville. At that same time, Fisher Buick dissolved its corporate charter.
Hill financed his inventory of Mercedes Benz automobiles through the Mercedes Benz Credit Corporation (MBCC). Hill, who apparently was undercapitalized, sold automobiles but failed to reimburse MBCC. By the end of October 1989, Hill had closed the dealership and vacated the premises. MBNA terminated the franchise in November 1989.
In October 1989, defendant Gerald Jones saw that the Mercedes Benz dealership had gone out of business and called MBNA to see about obtaining the franchise. MBNA advised Jones that he needed to contact Hill. Jones did so and began negotiating with Hill in the latter part of October 1989. The negotiations resulted in the execution of a franchise sales agreement between Hill and Jones Olds-GMC-Buick, Inc., dated October 28,1989. The agreement was supplemented on November'3, 1989, to address a settlement of Hill’s debts to MBNA and MBCC. Hill neither informed plaintiff of the pending sale nor offered him first refusal.
Plaintiff learned of the pending sale and, on October 31, filed two suits in the Chancery Court of Washington County. The first was against Kelly Hill, Thelma Hill, Hill Investment Co., Hill Motor Cars, Inc., Hill Motor Cars II, Inc., and Mcllroy Bank and Trust Company, the escrow agent-bank into which Hill was supposed to make the monthly installment payments. The second complaint was against Gerald Jones, Jones Olds-GMC-Buick, MBNA, and MBCC. The two chancery court suits were consolidated, but the law counts, which were contained in the second complaint and form the basis of this appeal, were transferred to circuit court. The chancellor heard the equitable counts and ruled in favor of the defendants remaining in chancery court. The plaintiff appealed, and we affirmed. Fisher v. Jones, 306 Ark. 577, 816 S.W.2d 865 (1991). Following the affirmance of the chancery case, the circuit court counts remained pending against four of the defendants. Those four defendants filed motions for summary judgments. The circuit court granted summary judgment in favor of each of the defendants, and the plaintiff appeals. We affirm.
The first assignment of error involves the summary judgment in favor of Gerald Jones and Jones Olds-GMC-Buick. The plaintiff alleged that Jones and Jones Olds-GMC-Buick tortiously interfered with his contractual relations or business expectancy. The circuit court ruled that there were no genuine issues of material fact involving two of the elements of this tort. That ruling was eminently correct.
In Walt Bennett Ford v. Pulaski County Special School District, 274 Ark. 208, 214, 624 S.W.2d 426, 429 (1981), we set out the elements of the tort as follows:
The basic elements going into the prima facie establishment of the tort are (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.
Plaintiff could not establish that a material issue of fact existed about element one above; that is, plaintiff could not show that there was a material dispute about the existence of a valid contract. He was prevented from doing so by the doctrine of collateral estoppel, or issue preclusion, because, in the first appeal, we affirmed the chancellors’ ruling that plaintiff did not have a contract with MBNA to re-award him the franchise. Fisher v. Jones, 306 Ark. at 582, 816 S.W.2d at 868.
Collateral estoppel, or issue preclusion, requires four elements before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 543, 713 S.W.2d 456, 459 (1986). All four elements are met in this case, and, since we previously held that there was no contract with MBNA, the issue is precluded from being relitigated.
While the claim of tortious interference with a contractual relationship is claim precluded by collateral estoppel, the claim of tortious interference with a business expectancy might not be so precluded. However, we need not decide whether the business expectancy was certain enough to give rise to such a cause of action in this case, because, even if it were, the plaintiff could not show any dispute of material fact involving element two, or knowledge of the expectancy of business on the part of the interferer. Jones attached an affidavit to his motion for summary judgment in which he stated that he had no knowledge of the 1986 agreement between Hill and plaintiff before he entered the contract with Hill on October 28, 1991. Plaintiff did not counter Jones affidavit in any manner. Other evidence corroborates Jones’s statement. Plaintiff only showed that on October 31, 1989, plaintiffs attorney sent a letter to Jones. This was after the date of the contract, and the contents of the attorney’s letter were not disclosed. Jones testified that he received the letter from plaintiffs counsel before he executed an addendum on November 3, 1989, but he testified that the contract between Hill and himself was complete and that the addendum was related to negotiations conducted with MBCC and MBNA on October 30, 1989, which, again, was before he was aware of a possible business expectancy on the part of plaintiff. In sum, plaintiff did not show any dispute of material fact involving defendant Jones’s lack of knowledge that he was interfering with plaintiffs reasonable expectation of a business relationship. Accordingly, the trial court correctly granted summary judgment in favor of defendant Jones.
The plaintiff argues that collateral estoppel should not be applied, and the issue of tortious interference should not be precluded because Jones was not a party to the first appeal. At one time, mutuality was a requirement of res judicata or claim preclusion, and also of collateral estoppel or issue preclusion. See, e.g., Restatement of Judgments § 93 (1942); see also Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1911). While still a requirement of res judicata, the requirement of mutuality has been abandoned by most jurisdictions for collateral estoppel. 18 Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure § 4464 (1981); Stuart Johnson, Note, North Carolina Abandons the Mutuality Requirement for Defensive Collateral Estoppel, 66 N.C. L. Rev. 801 (1988). The case at bar deals with the defensive use of collateral estoppel. The U.S. Supreme Court first approved the defensive use of collateral estoppel in Blonder-Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313 (1971). While the offensive use of collateral estoppel has also been approved, it is more controversial, and not at issue in this case. (The Supreme Court approved the offensive use of collateral estoppel in Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)). Other state supreme courts have abandoned the mutuality requirement for the defensive use of collateral estoppel. See, e.g., Silva v. State, 745 P.2d 380 (N.M. 1987); Thomas M. McInnis & Assocs., Inc. v. Hall, 349 S.E.2d 552 (N.C. 1986); Black Hills Jewelry Mfg. Co. v. Felco Jewel Indus., 336 N.W.2d 153 (S.D. 1983). In the present case, plaintiff chose to file his case against all of the defendants in chancery court and requested that the legal counts against four of the parties be transferred to circuit court, which they were. The chancery case was fully litigated and involved some of the same issues in the circuit court counts. We have no hesitancy in holding that mutuality of parties or privity in the chancery case and its appeal is not required for the defensive use of collateral estoppel in the circuit court case.
The next assignment of error involves the summary judgment in favor of MBNA. Plaintiff pleaded MBNA was liable for damages for breach of contract. A part of our holding in the first appeal was concerned with this claim: “In sum, we hold the evidence supports the chancellor’s decision that no express or implied contract existed and therefore no judgment against MBNA for specific performance could be granted.” Fisher v. Jones, 306 Ark. at 582, 816 S.W.2d at 868. The trial court held that plaintiff’s claim of MBNA’s breach of contract was barred by the doctrine of res judicata.
In Bailey v. Harris Brake Fire Protection District, 287 Ark. 268, 269, 697 S.W.2d 916, 917 (1985), we set out the elements of res judicata as follows:
(1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; and (5) both suits involve the same parties or their privies.
All of the elements are met with regard to plaintiff’s breach of contract claim, and the chancellor was thus correct in concluding this claim was barred by res judicata.
Plaintiff also pleaded that MBNA was also liable for tortious interference with contractual relations. No mention of interference with business expectancy is made in this assignment. Initially, since MBNA is one of the parties to the alleged contract with plaintiff, it is difficult to understand how MBNA could be the interferer in the contract. In the chancery suit, the chancellor ruled that the plaintiff failed to meet his burden of proving the existence of a contract requiring MBNA to re-award the franchise to him. The chancellor additionally found that MBNA agents in the Houston office lacked the authority to bind MBNA to such a contract and that plaintiff was aware of this lack of authority. In affirming the chancellor we held the evidence supported the chancellor’s decision that no express or implied contract existed between plaintiff and MBNA. That issue was precluded from further litigation in the counts that remained in circuit court. Thus, plaintiff was precluded from establishing the first element of the tort of interference with contractual relations.
Plaintiffs final assignment of error is that the trial court erred in granting summary judgment in favor of MBCC because there are material facts in dispute involving his claim that it tortiously interfered with his right of first refusal in his contract with Hill. MBCC repossessed the car inventory from the dealership for resale in a commercially reasonable manner. The trial court ruled that even if MBCC had somehow interfered with plaintiffs right of first refusal with Hill, plaintiff could not prove any damages because MBNA was under no contractual obligation to re-award its franchise to plaintiff, and the trial court also ruled that because Hill owed MBCC about $600,000.00, MBCC had a right to lawfully protect its interest.
For an interference to be actionable, it must be improper. Walt Bennett Ford v. Pulaski County Special Sch. Dist., 274 Ark. 208, 214-A, 624 S.W.2d 426, 429 (1981) (supplemental opinion on denial of rehearing). The Restatement (Second) of Torts sets out the factors in determining when interference is improper as follows:
Factors in Determining Whether Interference is Improper.
In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
(a) the nature of the actor’s conduct;
(b) the actor’s motive;
(c) the interests of the other with which the actor’s conduct interferes;
(d) the interests sought to be advanced by the actor;
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other;
(f) the proximity or remoteness of the actor’s conduct to the interference; and
(g) the relations between the parties.
Restatement (Second) of Torts § 767 (1979). The trial court also considered section 769 of the Restatement, which provides:
Actor Having Financial Interest in Business of Person Induced
One who, having a financial interest in the business of a third person intentionally causes that person not to enter into a prospective contractual relation with another, does not interfere improperly with the other’s relation if he
(a) does not employ wrongful means and
(b) acts to protect his interest from being prejudiced by the relation.
As a second ground of the summary judgment in favor of MBCC, the trial court considered MBCC’s financial interest in the business and correctly concluded that there simply was no proof of an improper interference by MBCC.
Affirmed.
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Steele Hays, Justice.
This interlocutory appeal by the state is the second time this case has been before us. Appellee Russell was tried on April 16 and 17, 1979, and convicted of first degree murder. A material witness for the state was unable to attend the trial due to illness, and the trial court permitted his video-taped deposition to be used in evidence, over the objection of the defendant. That conviction was reversed in Russell v. State, 269 Ark. 44, 598 S.W. 2d 96 (1980), for the reason that at the time of Russell’s trial the law in Arkansas did not permit the use of a deposition by the state in criminal trials. That rule was changed by Act 1022 of 1979 [Ark. Stat. Ann. § 43-2011 (Supp. 1979)], but the act did not take effect until April 18, 1979, the day after Russell was tried.
Following remand, the state again sought to use the deposition, the witness having died, and moved for a pretrial ruling as to its admissibility. The trial court held that the deposition was not admisisble under the decision reached in the first appeal, notwithstanding the demise of the witness. The state brings this interlocutory appeal contending that the deposition was admissible.
We do not reach the appeal on its merits, as the order appealed from is not an appealable order, a jurisdictional requirement which the court itself may raise. Alexander v. State, 260 Ark. 785, 545 S.W. 2d 606 (1976).
Prior to the adoption of the Arkansas Rules of Criminal Procedure in 1976, the state had no right of interlocutory appeal. It could appeal only after judgment in conformance with § 329 of the Criminal Code (Ark. Stat. Ann. § 43-2720), now embodied in Rule 36.10. The state now has a statutory right to an interlocutory appeal in some instances, but under the Rules of Criminal Procedure the state may take an interlocutory appeal only with respect to an order prior to the commencement of trial granting a motion to suppress evidence alleged to be illegally seized, as provided in Rule 16.2(d). State v. Glenn and Hamilton, 267 Ark. 501, 592 S.W. 2d 116 (1980). The procedure for appeals by the state both interlocutory and after judgment, is governed by Rule 36.10.
The order here appealed from dealt only with the admissibility of evidence in the form of a deposition and not with the suppression of evidence and hence was not appealable.
Appeal dismissed.
Holt, J., not participating. | [
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W. Harold Flowers, Judge.
Appellants appeal from an order of the chancery court granting appellee motion for a summary judgment and dismissing appellants’ complaint on the ground that a prior action filed by appellants in the circuit court seeking a money judgment estopped them from instituting this action in chancery court seeking judgment and an equitable mortgage.
Appellants, an aged couple married for fifty-two years, withdrew from their savings accounts the sum of $22,000 at the request of the appellee and his wife, the son-in-law and daughter of appellants, and paid off the mortgage on their home. Pursuant to an oral agreement between the parties, that the advancement would be repaid in monthly payments of $250, appellee and his wife made five payments in the sum of $250 each, the last being made by the appellee on April 2, 1976, a few days subsequent to the death of his wife on March 26, 1976. Thereafter appellee refused to make further payments on the loan.
On May 2, 1977, appellants filed suit against appellee in the circuit court seeking recovery of the unpaid balance of the loan. An answer was filed by appellee generally denying the allegations and specifically pleading the Statute of Frauds. The suit proceeded to trial, ánd upon the close of appellants’ case appellee moved for a directed verdict on the ground the evidence shows the oral agreement was not to be performed in one year and was not enforceable because of the Statute of Frauds. Appellants thereupon elected to take a non-suit and the cause was dismissed without prejudice on May 16, 1978.
On June 20, 1978, appellants filed an action in the chancery court for the debt and declaration of an equitable mortgage. Whereupon, appellee filed an answer invoking the defenses of election of remedies, estoppel, and Statute of Frauds, and asked dismissal of the complaint or in the alternative summary judgment. The trial court held appellants elected their remedy in the circuit court action and were es-topped from re-instituting this action in the chancery court.
On appeal appellants contend the chancery court erred in ruling appellants were barred from pursuing this action in chancery and we agree.
If a plaintiff files an action to enforce one remedy and dismisses it without prejudice, he is thereafter barred from pursuing an action seeking enforcement of an inconsistent remedy. Miller v. Empire Rice Mills, Inc., 228 Ark. 1161, 312 S.W. 2d 925 (1958).
The chancery suit was not in conflict with the circuit court suit, but only sought an equitable lien in addition to judgment for the debt. The pleadings and circumstances do not bring the case within the rule which bars a second suit which attempts to obtain relief in conflict with the first action.
It is clear from a review of the evidence appellants entered into an oral agreement whereby appellants loaned appellee and wife $22,000 and that appellee agreed to repay the loan at the rate of $250 per month. The proceeds of the loan were used to pay off an existing mortgage on appellee’s home. Appellee and his wife made five monthly payments on the loan, and appellee then declined to make further payments. While the trial court dismissed the case on the erroneous theory appellants were barred because of a prior election of remedy in the circuit court action, it was stipulated the evidence was fully developed. This being an appeal from the chancery court, we review the case de novo and dispose of all issues. Royal Manor Apartments v. Parnell, 258 Ark. 166, 523 S.W. 2d 909 (1975).
Appellee pled as a defense the Statute of Frauds, but we hold the full performance on the part of appellants by extending the loan and part performance on the part of appelee in making payments on the loan operated to take the oral agreement out of the Statute of Frauds, which would apply except for the circumstances of performance, since the agreement was not to be performed by appellee within one year. This holding is supported by numerous cases from various jurisdictions cited in 6 ALR 2d 1122, and by Ferguson v. Triplett Co., 199 Ark. 546, 134 S.W. 2d 538 (1939). Two of the well reasoned cases from other jurisdictions supporting this rule are McDonald v. Crosby, 61 N.E. 505 (Ill. 1901) and Kneeland v. Shroyer, 328 P. 2d 753 (Ore. 1958). This rule should have been followed in the circuit court action.
There is no evidence of any agreement that appellee would provide a mortgage to secure the debt, and thus we find no basis for an equitable mortgage.
No objection was made to the jurisdiction of the chancery court, and absent an objection the chancery court should have rejected judgment on the undisputed evidence for the accrued unpaid monthly payments.
The judgment is reversed and the case is remanded for entry of judgment in favor of appellants for all accrued and unpaid monthly payments.
Reversed and remanded. | [
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John I. Purtle, Justice.
Appellant was convicted of capital felony murder pursuant to Ark. Stat. Ann. § 41-1501 (Repl. 1977) and aggravated robbery pursuant to Ark. Stat. Ann. §§ 41-2102 and 41-2103 (Repl. 1977). He was sentenced to life without parole on capital murder and ten years on aggravated robbery.
The appellant argues eight points for reversal, and we will deal with them separately as we proceed through the opinion. We find prejudicial error on grounds which will be later set out and remand for a new trial.
Appellant and two others were charged with capital murder and aggravated robbery as a result of an occurrence at Charlotte, Arkansas, on December 14, 1978. Appellant and one of the other codefendants went to the store operated by Morris Lillard and in the course of robbery took the life of Mr. Lillard by the use of a firearm. The following day the appellant and the same codefendant went to Tucson, Arizona, where they were arrested in a mobile home by the Arizona police on December 18, 1978. The Arizona police were acting on the authority of an Arizona statute which enabled them to make an arrest on receiving information from the authorities in another state that the person to be arrested was charged with a crime which carried a penalty of more than one year in prison. Following his arrest, appellant gave a confession to the Arizona police. An attorney was appointed for the appellant shortly after the confession was made. He subsequently waived extradition and was returned to Arkansas. He was tried in Heber Springs on a change of venue from Batesville. Prior to his trial a motion to suppress the confession was overruled. The confession was subsequently introduced at trial and was corroborated by the Arizona officer who was present during the time the statement was taken. A codefendant’s statement was excluded when it was offered by the appellant on his behalf during the trial. The appellant took the stand and in effect testified that although he knowingly went to the store for the purpose of robbing Mr. Lillard he did not take part in the actual murder of the victim. The arguments for reversal on appeal relate to the actual trial proceedings.
I.
THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE INCRIMINATING STATEMENTS BY THE APPELLANT WHICH WERE NOT VOLUNTARY, WERE OBTAINED IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS, AND WERE TAINTED BY AN ILLEGAL ARREST.
The Arizona officer testified that he gave the appellant his Miranda warning immediately after entering the mobile home and making the arrest. The officer stated they were in vited into the mobile home after knocking on the door. The officer further testified that at one point the appellant appeared to become somewhat confused and he stopped his questioning and again went through the Miranda warning process. During the approximately one hour in which the appellant was questioned, he received the Miranda warning three times.
Julie Lauber, an attorney with the Pima County Public Defender’s office, interviewed the appellant after the statement and stated he found him to be incoherent, unintelligent and possibly under the influence of drugs.
Dr. Lewis Britton, a psychiatrist, testified he felt appellant was under the influence of drugs and/or alcohol and was suffering from long-term toxic poisoning effects of drugs and/or alcohol. He felt the appellant demonstrated an organic brain syndrome.
Dr. Rosendale, psychiatrist for the state, concluded that the appellant was not under the influence of drugs or alcohol, was not suffering from organic brain syndrome, and that he made a voluntary and knowing waiver of his rights in giving the statement to the police.
When the voluntariness of a confession is dependent upon the credibility of the witnesses, we must defer to the superior position of the trial judge for a resolution of the conflict and determination of the fact question. Grant v. State, 267 Ark. 50, 589 S.W. 2d 11 (1979). We have many times held that on appeal this Court reviews the evidence and makes an independent determination of the ultimate issue of voluntariness based upon the totality of the circumstances. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). See also Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977). In viewing the totality of the circumstances in this case, in addition to the testimony given by the appellant when he took the stand in his own behalf, we are of the opinion that the trial court did not err in admitting the statements in question.
II.
THE TRIAL COURT ERRED IN REFUSING TO EXCUSE FOR CAUSE TWO PROSPECTIVE JURORS WHO INDICATED THAT THEY COULD NOT CONSIDER AGE AND/OR OTHER MITIGATING FACTORS IN DETERMINING THE SENTENCE TO BE IMPOSED ON THE APPELLANT IF HE WERE FOUND GUILTY OF CAPITAL MURDER.
The voir dire examination of the jurors went on exhaustively with at least two jurors making equivocal statements that they would or would not consider the appellant’s age or his mental condition in determining the sentence to be imposed. In other words, they would not abide by the court’s instruction because they felt if the appellant was old enough to commit the crime, he was old enough to suffer the consequences. It would serve no useful purpose to detail the many times contradictory answers were given by these two jurors. It is well summed up by the court in making the final decision on one of the jurors when the court stated:
I’m not going to excuse her for cause. I don’t think she understands properly, so I’m going to leave it like it is.
It appears that if the court or one of the attorneys had put the question to the juror early in the voir dire as to whether the juror would consider the full range of the penalties on the guilt or innocence stage and whether they would consider the mitigating circumstances in the sentencing stage, that the answer should have been binding and all the vacillating thereafter could have been avoided. It is not necessary to question a juror repeatedly when they have once expressed a clear opinion as to whether they would or would not consider all relevant matters. Although we think at least one of the jurors should have been excused for cause, we do not find it prejudicial error for the reason that she was challenged peremporily by the defense. Thereafter, there was no showing that the appellant had to accept another juror who was unacceptable after they had exhausted their peremptory challenges. In any event, questions relating to the death penalty became moot when such penalty was not imposed.
III.
THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE TESTIMONY BY MEMBERS OF THE VICTIM’S FAMILY WHICH WAS IRRELEVANT OR THE RELEVANCE AND PROBATIVE VALUE OF WHICH WERE SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE TO THE APPEULANT.
The widow of the victim was called to the stand to identify the cash register and to show the decedent’s habits and routine. Appellant agreed to stipulate to the testimony of the widow and to the truthfulness thereof. However, the court ruled that the state had the right to put her on but cautioned against anything inflammatory. Her testimony included the length of their marraige and the manner in which they operated the store. She broke into tears and was obviously emotionally upset. The three children of the victim testified about the normal habits of the deceased, and one of them testified that she arrived at the store and observed her “daddy’s” body and further that nothing was moved until the police arrived. She also identified pictures as being those of her father.
The appellant argues that this testimony by the family should have been excluded under Uniform Rules of Evidence, Ark. Star. Ann. § 28-1001 (Repl. 1979), Rule 401. It is the opinion of the majority of the Court that the testimony of the family members was properly allowed. Although it may have been inflammatory to an extent, it was proper to allow the state to prove its case as fully as it could. Rule 401 states:
“Relevant evidence” means evidence having any tendency to make the exitence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 406 (a) provides:
Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
The trial court has the discretion to determine the relevancy of evidence and its admissibility. This Court will not overturn that discretion absent a clear abuse thereof. Hamblin v. State, 268 Ark. 497, 597 S.W. 2d 589 (1980). We are not unaware of appellant’s reliance upon Walker v. State, 239 Ark. 172, 388 S.W. 2d 13 (1965). However, the majority distinguishes the Walker case from the present case inasmuch as in Walker, there was no effort to prove the habit or routine practice of the decedent nor any fact in issue. The majority feels that all of the evidence presented by the members of the family was either for the purpose of showing a proper element of die offense or to show the habit and routine of the victim. Therefore, we do not find the admission of this testimony to be reversible error.
IV.
THE TRIAL COURT ERRED IN REFUSING TO ALLOW TESTIMONY CONCERNING A STATEMENT MADE TO POLICE OFFICERS BY THE APPELLANT’S ACCOMPLICE, WHO WAS UNAVAILABLE AS A WITNESS.\
Appellant sought to introduce evidence that a police officer from Arizona would testify that David Weaver, an accomplice, told the officer during an interview that the appellant used a pistol as the murder weapon. The evidence produced at the trial indicated that a rifle was used to fire the fatal shots. Appellant sought to support the officer’s statement by the accomplice; however, he was unable to do so because the accomplice invoked the Fifth Amendment. Appellant argues that \ the accomplice then became unavailable at a witness. He relies upon Uniform Rules of Evidence, Ark. Stat. Ann. § !28-1001 (Repl. 1979), Rule 804 (a) (1). There is no question but that the accomplice became unavailable pursuant to this rule. The question then is whether such testimony is available to the appllant. Thus, Rule 804 (b)(3) comes into play. This rule states:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interset, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception.
Although Rule 804 (b)(3) defines hearsay exceptions, it must be noticed that the concluding sentence pertains to the situation where the statement or confession is offered against the accused. In this case it was offered on behalf of the accused. Therefore, the proffered testimony does not come under the plain language of the last sentence of Rule 804 (b) (3), which is the exception to the exception. Appellant further argues the case of Welch v. State, 269 Ark. 208, 599 S.W. 2d 717 (1980), is controlling in this case. We do not agree that Welch supports appellant’s argument. In Welch we stated:
By the explicit language of the Rule this particular statement was not admissible unless corroborating circumstances clearly indicate its trustworthiness. That condition is of primary importance, for without it an accused could fabricate a tale that he met a stranger on the street who admitted having comitted the offense on trial. Other witnesses could also be called to testify that the stranger made the statement.
Thus, it seems to us that Welch holds squarely against the appellant’s argument. Therefore, it was hearsay, and we can not say that the corroborating circumstances clearly indicate the trustworthiness of the statement. We do not find the court erred in rejecting this evidence.
V.
THE TRIAL COURT ERRED IN REFUSING TO GIVE THE APPELLANT’S REQUESTED JURY INSTRUCTIONS ON LESSER INCLUDED OFFENSES.
Appellant requested the court to give instructions on the lesser included offenses of first degree murder, second degree murder, manslaughter and negligent homicide, as well as instructions concerning the lesser included offenses in general and the punishment for non-capital homicide. The court refused to give these instructions. In the very recent case of Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980), this Court held it was reversible error to refuse to give instructions on the lesser included offense of second degree murder where the appellant was charged with capital murder. In Robinson, as here, the defense of insanity of diminished mental capacity was argued. We have held that where there is the slightest evidence to warrant such an instruction, it was error to refuse to give it. King v. State, 117 Ark. 82, 173 S.W. 852 (1915); Walker v. State, 239 Ark. 172, 388 S.W. 2d 13 (1965); and Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). No right has been more seriously protected by this Court than the right of an accused to have the jury instructions on lesser offenses included in the more serious offense charged. Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972).
There was evidence that the appellant was suffering from mental disease or defect or drug intoxication at the time of the offense. Had the jury been given an opportunity to decide between murder in the first degree and capital felony-murder they may have chosen the former. Under the instructions given, they were not permitted to find appellant guilty of murder in the first degree. Also, there was some evidence, however slight, that the appellant did not commit the homicidal act nor solicit, command, induce, procure, counsel or aid in its commission. Even though it was admitted that appellant was armed with a deadly weapon and knew that his accomplice was also armed, the jury could have found appellant guilty of murder in the first degree and not guilty of capital murder. It seems to us that the trial court’s ruling that there was no evidence to indicate a lesser degree of murder was error. We think this error was prejudicial and that the evidence as presented would at least support giving the instruction on murder in the first degree. Upon retrial, the evidence may not be the same and may require different instructions concerning lesser included offenses.
VI.
THE TRIAL COURT ERRED IN REFUSING TO RULE THAT ARK. STAT. ANN. § 41-1501 (REPL. 1977) IS UNCONSTITUTIONAL IN THAT IT PROVIDES AN “AFFIRMATIVE DEFENSE’’ WHICH IM-PERMISSIBLY SHIFTS THE BURDEN OF PROOF TO THE DEFENDANT WITH RESPECT TO AN ESSENTIAL ELEMENT OF THE OFFENSE OF CAPITAL MURDER.
Appellant is correct in stating that the state has the burden of proof throughout the trial and this burden never shifts. However, appellant argues that the affirmative defense set out in Ark. Stat. Ann. § 41-1501 (2) (Repl. 1977) in actuality shifts the burden to the defendant with respect to an essential element of the offense. He argues this shifting of the burden when an affirmative defense is relied upon violates the rules set forth in Mullaney v. Wilbur, 421 U.S. 684 (1975). We considered the matter of shifting the burden in an affirmative defense case in Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977), where we stated:
We do not view the court’s instruction here as an erroneous one since it does not change the burden of proof as to the essential elements of the crime which always remain on the State; only the burden of persuasion as to the affirmative defense is placed on the appellant.
There would be no question that an affirmative defense which would require the appellant to testify to establish what is actually an element of the offense would be in violation of the Fifth Amendment. The question then presented is whether the affirmative defense in this case in practical application requires the accused to take the stand in the matter of proof on his affirmative defense. We cannot answer the question in this case due to the manner in which the evidence has been presented. Therefore, we are unable to say that § 14-1501 as applied in this case shifts the burden to prove any element of the offense to the accused. Therefore, we do not find prejudicial error to have occurred.
VII.
THE TRIAL COURT ERRED IN ADDING TO AMCI 401 (ACCOMPLICES - DEFINITION AND JOINT RESPONSIBILITY) THE FOLLOWING SENTENCE: “THE PUNISHMENT FOR AN ACCOMPLICE IS THE SAME AS THAT OF A PRINCIPAL.”
AMCI 401 does not include the sentence added by the court. The Court added the sentence: “The punishment for an accomplice is the same as that of a principal.” Appellant timely objected. In our Per Curiam of January 29, 1979, wherein we adopted the AMCI instructions, we stated:
If Arkansas Model Criminal Instructions (AMCI) contains an instruction applicable to a criminal case, and the trial judge determines that the jury should be instructed on the subject, the AMCI instruction shall be used unless the trial judge finds that it does not accurately state the law. If that event, he will state his reasons for refusing the AMCI instruction. . . .
Even though the jury was entitled to an instruction concerning an accomplice, this was not the place in the trial when it should have been given. Also, it is a misstatement of the law as it says the punishment for an accomplice is the same as that of a principal when in fact the law states that an accomplice may be punished the same as a principal. Also, he could receive a sentence less than the principal.
We find the added sentence constituted prejudicial error in this case.
VIII.
THE TRIAL COURT ERRED IN REFUSING TO SUSTAIN THE APPELLANT’S OBJECTIONS AND MOTIONS FOR MISTRIAL BASED UPON REMARKS BY THE PROSECUTOR DURING CLOSING ARGUMENT WHICH WERE NOT BASED ON THE EVIDENCE, WHICH CONSTITUTED APPEALS TO THE PASSIONS AND PREJUDICES OF THE JURY, AND WHICH CONSTITUTED ERRONEOUS STATEMENTS OF THE LAW.
The prosecutor made remarks relating to the testimony of the members of the family. The appellant objected to these remarks as being outside the record. Since the majority holds the testimony of the family members was proper, then it follows that the remarks by the prosecutor concerning these matters would have a basis in the record and consequently did not result in prejudicial error. However, the prosecutor did attempt to explain Ark. Stat. Ann. § 41-1502 (2) (Repl. 1979), the affirmative defense to capital murder, to the jury. We find the remarks by the prosecutor relating to the affirmative defense erroneous. It appears that he gave an improper explanation of the affirmative defense. There is always a danger in attempting to explain a complicated instruction to the jury. Therefore, an attorney does so at his own peril when he attempts to comment on the law contained in instructions which have been read to the jury.
Since this is not likely to occur on retrial, we will not go into the matter any further at this time. However, we will state that closing arguments should be confined to the questions in issue, the evidence introduced, and all reasonable inferences and deductions which may be drawn therefrom. Williams v. State, 259 Ark. 667, 535 S.W. 2d 842 (1976).
Reversed and remanded. | [
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Tom Glaze, Justice.
This is an appeal from the chancellor’s finding that the appellant’s residence violates a restriction in the appellant’s deed prohibiting mobile homes. Below and here on appeal, appellant does not deny the existence of the restriction but instead contends that her residence is a manufactured home and is not covered by the restriction. Appellant also argues that the restrictive covenant is invalid because a general development plan had not been maintained in the subdivision. We are not persuaded by the appellant’s arguments and therefore affirm.
Neighbors of the appellant, appellees, brought this lawsuit to force the appellant to remove her residence from her property because it violated the land use restriction against mobile homes found in both parties’ deeds. This restriction provided the following: “No house trailer or mobile home shall be parked on any part of said tract nor maintained thereon for residence or other purposes.” The neighbors all testified that they were worried that a mobile home on the appellant’s property would adversely affect their property values.
On appellate review, we try chancery cases de novo and will not reverse the chancellor’s findings unless clearly erroneous. Conway Corporation v. Construction Engineers, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989). In considering the sufficiency of the evidence to support the chancellor’s finding, we view the evidence most favorable to the appellee. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983).
The chancellor heard the following evidence about the appellant’s residence. Appellant’s residence was transported to her property in two sections. Each section had steel beams attached underneath with wheels attached. Upon arrival at the property site, the wheels, axles and tongue were removed and the two sections were put together. Concrete footings were not poured prior to the placement of the home and tie-downs or anchors were used to stabilize the home. Appellant’s residence rests on concrete piers.
After the placement of the home, appellant spent approximately $5,000 in putting in a septic tank, and building a front porch, a carport and storage room. Appellant also had a rock “foundation” built around the front of her mobile home, but she testified that she did not know if the foundation supported the house absent the concrete piers. Other witnesses stated the rock “foundation” was merely a skirting around the appellant’s residence. While there was evidence presented to the contrary, three witnesses, who were familiar with mobile homes, testified that the appellant’s residence was a mobile home.
Other evidence before the chancellor included a copy of the Department of Finance and Administration Registration listing the appellant’s residence as a mobile home. Appellant’s policy of insurance on her residence also lists the insured structure as a mobile home. In addition, appellant bought her residence from Quality Mobile Homes.
This court has never addressed the difference between a mobile home and manufactured home. But both parties cited the court to cases from other jurisdictions discussing the differences between mobile homes and manufactured homes. The case most similar to the present case is Albert v. Orwige, 731 S.W.2d 63 (Tenn. Ct. App. 1987). There, the Orwiges also argued that their home was a manufactured home, not a mobile home. The residence was transported by truck to the property in two units. The two parts were bolted together and tied down by anchors to concrete footings. The structure was further enclosed by an additional concrete foundation. The Tennessee court held that the Orwiges’ home was a mobile home.
Likewise, we hold here that the chancellor’s finding that the appellant’s residence is a mobile home is not clearly erroneous. Witnesses identified the appellant’s residence as a mobile home, and most telling, the majority of the appellant’s papers concerning her residence labeled it as a mobile home. While we note the appellant’s contention that, in order for the residence to be moved, the rock “foundation” would have to be removed and the wheels reattached, a majority of jurisdictions have held that a mobile home remains a mobile home notwithstanding removal of the wheels and placement on a permanent foundation. R. Anderson, American Law of Zoning, § 14.03, p. 675 (1986).
In the second issue, the appellant argues that the restrictive covenant cannot be upheld because there is no general plan of development. We do not agree. The primary test of the existence of a general plan of development or improvement of a tract of land divided into a number of lots is whether substantially common restrictions apply to all lots of like character or similarly situated. Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981). Out of the forty-three tracts in the subdivision, only six tracts, one a cemetery, were not subject to the same restrictions. As we stated in Jones, the mere showing of other violations does not always constitute acquiescence or waiver of the restrictions. That is the situation here.
For the reasons stated above, we affirm.
Appellant testified that when she signed the registration certificate the place for the body style was blank and that someone filled in mobile home after she signed the form. | [
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Tom Glaze, Judge.
This case arises from a post-divorce action in which the appellee filed a motion, contending appellant was in contempt of the Chancery Court’s divorce decree for his failure to pay certain debts which were a part of the Court’s order. The parties were divorced on April 26, 1979, and each party was directed by the Court to be responsible for various debts that they incurred during the marriage. The debts assigned to the appellant were balances owed on a 1975 Ford pickup, a 1978 Mercury and a bass boat and motor, all of which were awarded him by the Court. Appellee was a co-obligor on a bank note which represented monies borrowed for the purchase on the boat and motor. Appellee was also an employee of the bank from which the loan on the boat and motor was obtained.
On June 22, 1979, appellee filed her motion citing appellant for contempt, alleging he refused to pay the indebtedness owed on the bass boat and motor. On June 28, 1979, appellant filed a petition in bankruptcy which listed, among other debts, the obligations the Court ordered him to pay in the April 26, 1979 divorce decree. The Bankruptcy Court adjudged appellant a bankrupt and entered its order of discharge on October 5, 1979- On March 29, 1980, the Chancery Court conducted a full hearing on appellee’s motion for contempt and held appellant in contempt of its prior order. The Court found that the bankruptcy order of discharge did not discharge the appellant’s obligation imposed by the Chancery Court decree to hold the appellee free and harmless on the bank note signed by the parties in acquiring the boat and motor. The Court entered its order on May 12, 1980, and ordered further that appellant reimburse appellee $1,600 that she had paid on the bank note and directed that he pay appellee the amount of the future monthly payments due on the note until the note is paid in full. Appellant appeals this adverse ruling.
The appellant first argues that the debt owed on the bass boat and motor is not maintenance or alimony and is dis-chargeable in bankruptcy. Thus, he contends that since the debt is dischargeable in bankruptcy, the Chancery Court cannot, therefore, compel him to be responsible for the debt. During the period with which we are concerned, 11 U.S.C. § 35(a)(7) provided in substance that an obligation was not dischargeable in bankruptcy if it was for alimony or for the support of a divorced spouse or a child. Arkansas law must be resorted to in order to determine what constitutes alimony, maintenance or support. Rule v. Rule, 612 F. 2d 1098 (8th Cir. 1980) and In Re Waller, 494 F. 2d 447 (6th Cir. 1974). Neither appellant nor appellee cite any Arkansas cases on the issue of whether our State considers an indebtedness such as the one before us an award of alimony, maintenance or support, or merely a division of property. Of course, if the debt is a division of property, it is dischargeable in bankruptcy. In Re Waller, supra.
The issue presented appears to be one of first impression in Arkansas. Appellant cites and relies on the case of Fife v. Fife, 1 Utah 2d 281, 265 P. 2d 642 (1954) wherein the Utah Supreme Court held that an order directing the husband to pay the claims of creditors on jointly acquired property awarded the wife by an annulment decree was not alimony. The Utah Supreme Court, however, in Erickson v. Beardall, 20 Utah 2d 287, 437 P. 2d 210 (1968) greatly limited any precedential value Fife might have had by pointing out that the case involved an annulment, where there is usually no right of support or alimony. The facts in Erickson are not dissimilar to those at bar. The former wife initiated a proceeding against her former husband to compel him to pay certain debt obligations that he was ordered to pay by their divorce decree. He contended that the debts were discharged in bankruptcy, and the former wife contended the debts were maintenance or support and, therefore, excepted by the bankruptcy court. The Court in Erickson held that the decree which required the former husband to pay the debts was support and maintenance, and in so holding stated:
... it is the duty of the court to look to substance rather than to form. This is especially true where rights and responsibilities with respect to the family relationship are being dealt with. It is no less true here because this suit was initiated as a separate proceeding to enforce obligations of the divorce decree. . . . We give deference to the advantaged position and prerogatives of the trial judge as the finder of the facts; allow him considerable latitude of discretion as to the orders made; and we will not upset his judgment and substitute our own unless it clearly appears that he abused his prerogatives.
In the case at bar, the Chancellor who heard and decided the divorce between the parties is the same Chancellor who, in the post-divorce contempt proceeding, held the debt ordered paid by appellant was support or maintenance. In accordance with Ark. Stat. Ann. § 34-1211 (Repl. 1962) which was controlling at the time, the trial judge entered a divorce decree touching the alimony of the wife and care of the parties’ child as the circumstances and the nature of the case reasonably warranted. The Chancellor, as reflected in the divorce decree, directed appellant to pay child support and the three debts, including that incurred on the bass boat and motor, and he further ordered the appellee to be responsible for a debt owed on furniture. Other specific and named obligations were ordered paid out of the parties’ proceeds from the sale of their home. All of these matters were correctly considered by the Chancellor under § 34-1211 above and it is logical to infer that each item assigned and made responsibilities of each party was interrelated. In fact, there was sufficient evidence in the record to show that when appellant failed to pay the bass boat and motor debt, appellee lost her job at the bank because it required her to pay the note from which appellant was discharged. The appellee was then compelled to work two jobs to meet this debt in addition to her other obligations. Moreover, the appellee, in this same post-trial contempt proceeding, is also requesting the Court to order appellant to pay an increase in child support payments so that she can make ends meet. The Chancellor, however, would not decide if appellee is entitled to an increase in child support until the issue involving the boat and motor debt is decided on appeal. Again, it is clear the Chancellor considered all awards and responsibilities set forth in the April 26, 1979, divorce decree as interrelated.
We feel there was sufficient evidence in the record for the lower court to decide the boat and motor debt was maintenance and support, and we cannot say the Chancellor’s findings were clearly erroneous or against the preponderance of the evidence. Rule 52(a) of the Arkansas Rules of Civil Procedure.
The appellant next contends that he cannot be held in contempt of court for failure to pay an otherwise dis-chargeable debt. Of course, we have already held the lower court decided the boat and motor debt to be support or maintenance, and, in doing so, the debt is not dischargeable. Thus, the only remaining issue is whether the decree before the Chancellor was enforceable by way of a contempt proceeding, and, if so, whether the evidence supports the trial court’s decision finding appellant in contempt. We have no hesitancy in finding in the affirmative.
Our courts of equity have the power to enforce decrees and orders for alimony and maintenance by contempt proceedings. Ark. Stat. Ann. § 34-1212 (1979); Thomas v. Thomas, 246 Ark. 1126, 443 S.W. 2d 534 (1969). It is also settled law that before appellant can be held in contempt for failure to pay alimony or support, it must be justified only on the ground of willful disobedience of the trial court’s orders. Feazell v. Feazell, 225 Ark. 611, 2845 S.W. 2d 117 (1956).
With these legal principles in mind, we must examine the record to determine if the evidence supports the Chancellor’s decision that appellant was in contempt. The appellant failed to make any payments on the boat and motor debt after the divorce decree was entered. Yet, appellant admits that after the divorce, he received approximately $5,100 from the sale of a truck and the parties’ home. In addition, appellant testified that he earned a salary in 1979 in excess of $19,000. In this same year, appellant filed for bankruptcy and was discharged from all his indebtedness in October, 1979-The course of events in 1979 regarding appellant’s bankruptcy which transpired is significant. Appellant filed for bankruptcy one week after appellee filed action to cite him for contempt for failure to pay the boat and motor debt. The appellant also testified that he later reaffirmed his debt on his Ford pickup and his obligation to Lion Oil Credit Union, an obligation connected with his employer. The only debt appellant was ordered by the court to pay which he chooses not to liquidate is the boat and motor loan on which appellee is a co-obligor. There is substantial evidence in the record to support the trial court’s decision that appellant is in contempt of its prior orders, and we affirm that decision.
The appellee requests an additional attorney’s fee in connection with services rendered on this appeal, and we grant a fee in the sum of $400 plus the costs incurred on appeal.
Affirmed.
Fogleman, Special Judge, joins in ths opinion.
Corbin, J., not participating. | [
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John A. Fogleman, Chief Justice.
Appellant was found guilty of manslaughter and sentenced to ten years imprisonment on October 12, 1979. He had been tried on a charge of first degree murder of his brother-in-law, George Parker, Jr., arising from an incident on May 7, 1977, but was found guilty of the lesser offense. The charge was filed on May 10, 1977. This appeal is based upon the trial court’s denial of several pretrial motions. They were: (1) a motion to dismiss the charge on account of the state’s failure to bring him to trial within three terms of court; (2) a motion to prohibit witnesses whose names were belatedly furnished to defense counsel from testifying; (3) a demurrer and motion to dismiss the charge on account of a defect in the name of the person charged in the information; and (4) a motion to quash the information. We find reversible error in regard to the second motion.
On September 11, 1978, appellant moved that the state be required to file a “bill of particulars” including the names of every person known to the state who had any information, the addresses of such persons, the substance of their expected testimony and a statement whether the state intended to use them in the trial of the case. At a pretrial hearing on September 28, 1979, after the case had been set for trial on October 12, 1979, the court ordered the state to furnish counsel for defendant a list of witnesses which it proposed to use along with their addresses and an itemization of any other evidence in the state’s possession by October 2, 1979. On October 2, 1979, a deputy prosecuting attorney addressed a letter to appellant’s attorney advising him that the state intended to call Wallace Champion, Leroy McCowan, Robert Lee Pen and Evelyn Dupree. In spite of the fact that the charges had been pending for more than two years, the letter included the following: “At the present time, this is a complete list of the witnesses and evidence available to the State. If anything further turns up, you shall be advised promptly.” Yet, on October 10, 1979, subpoenas were issued on behalf of the state for Shela [Sheila] Wood, Jacqueline [Jacqulin] Rodgers, Bear Webb and Ernest Thomas [Thompson] and on October 11, 1979, for Myena [Murna] Bryan. On October 12, appellant’s attorney requested that the court deny the prosecution the right to call Sheila Wood, Jacqulin Rodgers, Ernest Thompson, Ollie Mae Parker and Murna Bryan as witnesses. Appellant’s attorney stated that he was not made aware of the evidence these witnesses would introduce, that the names of Wood, Rodgers, and Thompson had not been furnished him until approximately 2:15 p.m. on October 10, and that on October 11 at 4:00 p.m., he was given the names of Parker and Bryan. The attorney stated that he had not had an opportunity to talk with any of these witnesses and had no idea what their testimony would be or the purpose of their being called. He said that on the preceding day he had called Sheila Wood and Ernest Thompson by telephone and had made appointments for each of them to come to his office, but both failed to appear. He said that he had tried to reach Jacqulin Rodgers by telephone, but had found that she was working and could not be reached. The prosecuting attorney said that he had located these witnesses himself during the preceding two days and that, if a request had been made he would have been glad to have told appellant’s attorney the “substance of their involvement in the matter.” He said that Murna Bryan was a nurse who had been located in an effort to prove the corpus delecti after it was discovered that the attending physician did not have a good recollection of the cause of the death of George Parker, Jr. After the prosecuting attorney had been sworn and had testified that he had advised the trial judge on September 28 that he had furnished the contents of his investigative file to defense counsel “as of June 15,” that he had given Mr. Street-man a list of all witnesses “we had as of October 2,” that he had furnished appellant’s attorney with a list of all witnesses as “I have received them,” and that he had made no attempt to withhold anything from appellant’s attorney, the trial judge overruled appellant’s motion. Appellant’s attorney was permitted thereafter to cross-examine the deputy prosecuting attorney, apparently for the record. This witness then admitted that he did not know of any reason why the state had not been aware that Ollie Mae Parker would be called as a witness and why, with reasonable diligence, the prosecuting attorney, who had filed the charge and his deputy, or the present incumbent of these offices, could not have learned the names of all these witnesses and furnished them to appellant’s attorney at an earlier date. The trial judge then noted that appellant had objected to each of these persons being permitted to testify, thus obviating the requirement that appellant register an objection when each of them was called.
There was really no prejudice to appellant resulting from the testimony of Murna Bryan, Ernest Thompson or Sheila Wood. The witness Bryan simply testified as to the condition of George Parker, Jr., when he was brought into the emergency room at the hospital in Crossett on May 7, 1977. She described the wounds and the blood she saw on the clothing and the body. Dupree testified and admitted that he had been armed with a knife when he and Parker had an encounter and that he had used the knife in self-defense, or to keep Parker off him. Dupree said that he did not think that Parker had ever seen the knife, but that after Parker was cut, he had bled, looked at himself and at Dupree and had run. There does not seem to have been any serious question about the cause of death, so permitting this witness to testify under the circumstances was not sufficiently prejudicial to justify a reversal for abuse of the trial court’s discretion.
Sheila Wood testified only in rebuttal. She controverted the testimony of Dupree that the physical encounter between the two was commenced by Parker’s pushing him and that, before Parker was cut, the two had fallen to the ground. Her testimony was cumulative to that of Evelyn Dupree and Jacqulin Rodgers. Thus, it was not sufficiently prejudicial to constitute reversible error. The only testimony by Thompson related to his seeing Parker run away from the scene of the encounter between Dupree and Parker, and to Parker’s condition when Thompson went to the place toward which he had seen Parker running and found Parker lying on the ground.
Ollie Mae Parker was the mother of George Parker, Jr., and Evelyn Dupree. She testified that, on the evening of the encounter between her son and son-in-law, Evelyn had come running back to the Parker house and was upset. She said that she went outside and saw that appellant had driven her daughter’s car and positioned it so she and her daughter could not use it to go see about George Parker, Jr., that appellant had stated that he had cut that “so-and-so” and that he was going to wind up killing all of the Parkers. She also told of the condition in which she later found her son. Appellant himself testified that, after his encounter with Parker, he had gotten in the car and had driven home, which was next door to the Parker house, where he met Mrs. Ollie Mae Parker and her family, who were on their way to see Parker, but denied having blocked the driveway. Dupree could not well have been surprised to learn that Mrs. Parker would be a witness. Investigation of the case should have revealed the nature of the testimony she might be expected to give. A defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation.
On the other hand, the record does not disclose any means that appellant had of anticipating that Jacqulin Rodgers would testify or what her testimony might be. The testimony abstracted does not reveal that appellant knew that Jacqulin Rodgers, Sheila Wood, and a man named Arthur had been in an automobile from which George Parker, Jr., had alighted before the encounter between him and appellant on the grounds of a place known as Willie Penn’s Bar-b-que only a short distance from the dwelling house of the elder Parkers. Her testimony was as damaging to appellant and his defense as that of any other witness. She testified that she had never been contacted by anyone about the case until she was served with a subpoena the day before the trial.
The state seeks to excuse its failure to comply with the court’s order on appellant’s motion for discovery by stating that the deputy prosecuting attorney who participated in the trial had only located the witnesses, to which appellant objected, two days before the trial, that he had learned that certain of the witnesses whose names he had furnished were unavailable, and thereafter had sought replacement witnesses. The state called only one witness on its original list. Even though the case had been pending over two years, the state’s attorneys, only ten days before trial, stated that certain witnesses would be called and then discovered they were not available. Even though there may have been no lack of good faith, diligence on the part of the prosecuting attorney would have prevented appellant from being misled as to the witnesses with whom he would be confronted. The admission of a lack of prosecutorial diligence in the matter of witnesses was certainly appropriate. Even so, only the mechanics of compliance rest upon the prosecuting attorney. The discovery rules require that he make disclosure upon timely request. His obligations under Rule 17, Arkansas Rules of Criminal Procedure, extend to material and information within the knowledge, possession and control of members of his staff arid of any others who have participated in the investigation or evaluation of the case and who regularly report, or with .reference to the particular case, have reported, to his office. It would be difficult to believe that there had been no investigation that revealed that Jacqulin Rodgers was a potential witness. In Williamson v. State, 263 Ark. 401, 565 S.W. 2d 415, we pointed out that Rule 17.1 imposes a duty upon the state to disclose all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use of it.
It is quite possible that the trial court might have rendered the state’s failure to earlier furnish the names of the witnesses it used harmless by granting appellant a continuance or by recessing the trial until appellant’s attorney could have an adequate interview with the witnesses. See Rule 19.7, Arkansas Rules of Criminal Procedure, Ark. Stat. Ann. vol. 4A (Repl. 1977); Hughes v. State, 264 Ark. 723, 574 S.W. 2d 888. But the court never gave any indication that this relief was available to appellant. The court’s overruling of appellant’s motion before his attorney could cross-examine the deputy prosecuting attorney was certainly not indicative of the availability of such relief.
Appellant argues that the trial court erred in denying his motion to dismiss for failure to try him within three terms of court as required by Rule 28. His original motion for dismissal for failure to bring him to trial within three terms of court was based solely upon the provisions of Rule 28. Arkansas Rules of Criminal Procedure, supra. The critical dates disclosed by the record and by statute are:
March 21, 1977 Term of court began
May 5, 1977 Appellant arrested
May 10, 1977 Information filed
June 13, 1977 Appellant admitted to bail
October 17, 1977 Term of court began
January 27, 1978 Entry on court’s docket: Defendant ill in Trumann with flu. Pass for plea. Set for trial on June 6, 1978
March 20, 1978 Term of court began
June 6, 1978 Date case set for trial
October 1978 Employment of Bruce Switzer as appellant’s attorney terminated
October 16, 1978 Term of court began
March 19, 1979 Term of court began
June 28, 1979 Appellant arraigned
September 19, 1979 Motion to dismiss filed
September 28, 1979 Motion to dismiss denied, without either party offering evidence
October 12, 1979 Appellant’s trial held and motion to dismiss again denied
October 15, 1979 Term of court began
The term of court during which appellant was arrested and charged is excluded. State v. Messer, 269 Ark. 431, 601 S.W. 2d 857. It is clear, however, that three terms of court passed before appellant was brought to trial unless there were excluded periods under Rule 28.3. The period of delay resulting from a continuance granted at the request of the defendant or his counsel is such an excluded period. Rule 28.3 (c), Arkansas Rules of Criminal Procedure, supra. The burden was on the state to show that a period should be excluded. The trial judge denied the motion when no evidence was presented on the basis of the docket entry dated January 27, 1978. It was proper for the judge to act upon the basis of the docket entry. The court’s docket is an appropriate record of continuances granted. See Ark. Stat. Ann. § 22-117 (Repl. 1962). A court’s records have a large degree of sanctity attached to them and are not to be lightly overturned. Williams v. Alexander, 140 Ark. 442, 215 S.W. 721. There was nothing before the court to overturn the record made.
If that record was correct, trial was imminent at the time, or there would have been no occasion for a motion for continuance by the defendant. The definite trial date set when the continuance was granted was well into a new term of court. After the continuance was granted the circuit judge was required to hold terms of court in Bradley County on the first Monday in February, 1978; in Drew County on the third Monday in February, 1978; in Cleveland County on the first Monday in March, 1978; and in Dallas County on the third Monday in June, 1978. The continuance resulted in a setting in the March, 1978, term of the Ashley Circuit Court and before the circuit judge had to commence a term of court in Dallas County.
We have indicated that a delay by reason of a continuance should not exclude a full term of court, if that can be avoided. Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58. It is difficult to see how the exclusion of the October 1977 term might have been avoided. Thus, if the continuance was granted on motion of the defendant, he was brought to trial within three terms.
Appellant renewed his motion to dismiss on October 12, 1979- In this motion he reasserted his contention with reference to Rule 28 and added that he was materially prejudiced by the delay because several key witnesses for the defense were not available to testify and that their whereabouts were unknown to him. Appellant proffered his testimony as well as that of Bruce D. Switzer, appellant’s former counsel, to controvert the docket entry. The trial judge declined to hear the testimony because it was not offered on September 28 and because the new motion had not been filed more than 10 days prior to trial. After the testimony was proffered, the trial judge stated that he denied the motion because of the docket entry, which was in the handwriting of the judge who then presided over the court, because the testimony should have been tendered on the date of the first hearing and because the motion was filed too late.
We are not aware of any requirement that a motion to dismiss for denial of a speedy trial be made more than ten days before the date of trial. A failure to make the motion before trial would have constituted a waiver. See Rule 30.2, Arkansas Rules of Criminal Procedure, supra. The abstract of the record does not disclose that an omnibus hearing had been held in this case. Nevertheless, we cannot say that there was error in the denial of the motion. The state had met its burden by the docket entry. Appellant sought to overcome its effect by its own testimony and that of Switzer. The docket entry was not conclusive, and was subject to rebuttal by parol evidence. The trial judge would not be justified in his reliance upon it if had been refuted by unequivocal testimony, which was unrebutted. Front v. State, 256 Ark. 723, 510 S.W. 2d 291.
We cannot say that the docket entry should have been overturned upon the proffered testimony. Appellant testified that Switzer had represented him until approximately October, 1978. Appellant testified unequivocally that he did not ask Switzer to postpone a trial date because appellant had been sick, or for any other reason. He said that he did not know where Trumann, Arkansas is and did not think he had ever been there. He said that he was living in Crossett on January 27, 1978. He admitted that he had had the flu but said that he did not report it to Switzer. Switzer testified that he did not recall having asked the court to continue the case in January, 1978, and that his file did not reflect that he had. He said that he did not recall the appellant’s having been ill with the flu nor did he recall having any information about the appellant’s having had the flu. Since it is clear that appellant had had the flu and the attorney only denied any recollection of having requested a continuance or any disclosure of such a request in his file, we cannot say that the record made on the docket should have been overturned.
We find no merit in appellant’s contention that the court erred in denying his demurrer and motion to quash the information because it named Edgar Dupree and he was actually Edgar Dupree, Jr. That motion was filed at 1:00 p.m. on Oc tober 12, 1979, after the jury had been impaneled and sworn to try the case. Appellant testified that he had “turned himself in when it happened.” Appellant admitted that he had been known as Edgar Dupree. Appellant’s father, who was living, was also named Edgar Dupree.
We need not consider the denial of appellant’s motion to quash the jury panel. It is highly unlikely that the particular situation of which appellant complained would arise again.
The judgment is reversed and the cause remanded.
Mr. Justice Hickman and Mr. Justice Mays dissent as to the remand. | [
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Tom Glaze, Justice.
A Pulaski County Circuit Court jury found the appellant, Adrian Tisdale, guilty of two counts of kidnapping, one count of capital murder, and one count of criminal attempt to commit capital murder. Tisdale received sentences of life imprisonment on each kidnapping charge, life in prison without parole on the charge of capital murder and sixty years for attempted capital murder. Tisdale appeals the convictions and raises four points for reversal. We find his contentions without merit and affirm.
Tisdale first argues there was insufficient evidence upon which the jury’s verdicts of guilty could rest. We disagree and hold that there was substantial evidence to support the jury’s verdicts.
On November 10, 1991, at approximately 6:00 a.m., Little Rock Police were summoned to the parking lot of Little Rock Crate and Basket Company, located on East 14th street, where a white Toyota had been found. Two men, Ira Akins and T.J. Morgan, were found inside the car, and both had been shot in the head. Morgan had suffered three gun shot wounds while Akins had suffered two. The shots killed T.J. Morgan; miraculously Akins survived.
Ira Akins was the state’s star witness at trial, and it was upon his testimony that the jury returned a verdict of guilty on all charges. At trial, Akins recounted the events which transpired in the early morning hours of November 10, 1991, as follows:
At approximately 2:00 a.m. Akins exited a well known gambling house located near the Little Rock Airport. Akins walked to, entered and remained inside his girlfriends’s white Toyota which was situated in front of the establishment. A few minutes later, Tisdale and another man, Anthony Johnson, exited the gambling house and approached the white Toyota. Akins let the two men inside the car. (Akins and Tisdale knew one another.) Tisdale sat behind the passenger seat, while Johnson sat directly behind Akins, who was in the driver’s seat. Tisdale revealed a gun, and held it on Akins. Then, T.J. Morgan, Akins’ friend, left the gambling house and entered the white Toyota, taking the unoccupied passenger’s seat. T.J. Morgan was unaware that Tisdale had a gun.
Tisdale ordered Akins to drive. The four men drove around the projects in the area for approximately three-to-four hours until Tisdale told Akins to drive to Little Rock Crate and Basket Company. When the car stopped, Tisdale shot T.J. three times and Akins twice. A few days later, Tisdale was arrested after Akins identified Tisdale as the man who shot him and T.J. Morgan.
Tisdale claims reversal of his convictions is required in that, absent Akins’ own testimony, no evidence existed linking Tisdale to the shootings. Tisdale also points out the exculpating testimony of several uninterested witnesses. Further, Tisdale claims Akins could not recall the events which occurred prior to the shooting because the gunshot wounds caused Akins’ to suffer retrograde amnesia. He supported this theory through expert medical and psychological testimony and by eliciting and emphasizing numerous critical contradictions in Akins’ own account of the events leading up to the shooting.
Tisdale moved for a directed verdict at the close of the State’s evidence and again at the close of the case, thus preserving for appeal the issue of sufficiency of the evidence. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992).
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. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). On appeal, the appellate court does not weigh evidence on one side against the other; it simply determines whether the evidence in support of the verdict is substantial. Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991).
Unequivocal testimony identifying the appellant as the culprit is sufficient to sustain a conviction. Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990). Further, the uncorroborated testimony of one state’s witness is sufficient to sustain a conviction. Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985); Meeks v. State, 161 Ark. 489, 256 S.W.2d 863 (1923). Although Akins’ description of the events leading up to the shooting sometimes varied drastically from statement to statement, Akins was sure of one thing — that Tisdale was in fact the person who shot him and T.J. Morgan. From this declaration he never wavered.
We affirmed the conviction in Davis based solely upon a store manager’s testimony that the accused was the person who had robbed the store some six years earlier. That case involved a six year old identification, while in the case at bar, the victim-witness, Akins, actually knew the accused and identification was not a problem.
The contradictory nature of both the lay and expert evidence necessarily required the jury to base its ultimate determination on the credibility of the witnesses before them. The credibility of witnesses is a fact question for the trier of fact. The trier of fact alone determines the weight to be given the evidence, and may reject or accept any part of it. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). Credibility determinations will not be disturbed on appeal when there is substantial evidence to support the fact finders conclusion. Brown v. State, 309 Ark. at 506, 832 S.W.2d at 479 (1992). In keeping with these settled principles, we hold that the jury’s acceptance of Akins’ invariable testimony that Tisdale fired the shots, combined with acceptance of expert opinion that Akins did not suffer from retrograde amnesia, is sufficient to support the convictions.
Tisdale next argues that both kidnapping convictions are invalid, and must be set aside, in that their imposition violated Ark. Code Ann. § 5-1-110 (1987). That statute prohibits an accused from being convicted of more than one offense when the proof required to establish the greater offense necessarily includes proof of every element of another. In particular, Tisdale contends that the state used the kidnapping convictions as the underlying felonies for finding him guilty of capital felony murder of T.J. Morgan and criminal attempt to commit capital felony murder of Ira Akins.
Tisdale’s contention is without merit. The state amended its earlier information charging Tisdale with capital felony murder and explicitly charged Tisdale under Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1991) with capital murder for the premeditated and deliberated killing of T.J. Morgan. Thus, Tisdale was not charged under the “capital felony murder” provision when he was tried. It is clear that no proof of an underlying felony was necessary to convict Tisdale of the capital murder of T.J. Morgan, and consequently the dictates of § 5-1-110 were not violated.
However, the state did not amend its original charge against Tisdale of criminal attempt to commit capital felony murder of Ira Akins. Still, Tisdale’s contention of this charge is without merit as well. Regardless of the wording of the state’s charge, the trial court actually instructed the jury that it could only find Tisdale guilty of “attempted capital murder” if the jury found Tisdale purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of an offense, that offense being “capital murder,” which Tisdale committed, “if with the premeditated and deliberated purpose of causing the death of another person, he causes the death of another person.” Tisdale never objected to this instruction at trial nor to the trial court’s entrance of conviction on the kidnapping charge, and such issues raised for the first time on appeal will not be considered. Smith v. State, 310 Ark. 30, 832 S.W.2d 497 (1992); St Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990).
Tisdale next contends that the trial court abused its discretion in allowing an expert witness for the state, Dr. Yvette Baker, to testify regarding “memory loss” test results which had not been made available to Tisdale prior to trial, in contravention of A.R.Cr.P. 17.1. While such test results were not given to Tisdale’s counsel, we hold the trial judge did not abuse his discretion in allowing Dr. Baker to testify.
Judge Langston told counsel for Tisdale that the state’s conduct was unacceptable and stated that if the defense requested a days continuance, a continuance would be granted. Instead of moving for a continuance, counsel studied the test results with the assistance of his expert witness, and when asked a short time later, told Judge Langston that he was ready to proceed with the testimony of Dr. Baker. Any harm done to Tisdale was apparently remedied by the short recess, and because he agreed with the trial court’s solution, Tisdale cannot attack the solution on appeal. Hughes v. State, 264 Ark. 723, 727, 574 S.W.2d 888, 890 (1978).
Finally, Tisdale contends a new trial must be ordered in that (1) his counsel at trial was ineffective, and (2) other “numerous errors” committed during trial resulted in prejudice. We disagree.
Ordinarily, we do not address Rule 37 issues in a direct appeal from a judgment of conviction. Philyaw v. State, 292 Ark. 24, 728 S.W.2d 150 (1987). We have reiterated time and again that the question of effectiveness of counsel may not be raised for the first time on appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983); Haynie v. State, 257 Ark. 542, 518 S.W.2d 942 (1975). However, the record here shows that during his trial, not afterwards, Tisdale requested the court to relieve Robert Scull III from being Tisdale’s counsel. He based his request solely upon the fact that he wanted to call Anthony Johnson as a witness, while Scull opined that such an action would be against his best advice. The trial judge reviewed the applicable law, and denied Tisdale’s motion to relieve Scull as counsel.
After conviction, Tisdale filed a pro se motion for a new trial arguing the ineffectiveness of Scull and pointing to alleged errors made by Scull, including, but not limited to the fact that Scull did not call some witnesses requested by Tisdale. Because Tisdale’s only objection at trial was that Scull failed to call Anthony Johnson, then it is that contention alone which has been properly preserved for direct appeal. Sumlin, 273 Ark. 185, 617 S.W.2d 372.
Tisdale’s contention has no merit for two distinct reasons. First, decisions to call certain witnesses and reject other potential witnesses is largely a matter of trial strategy. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). Second, Scull ultimately decided to call Anthony Johnson as a witness and Johnson did testify at trial. Thus, Tisdale’s objection to Scull’s failure to call Anthony Johnson is therefore moot.
Tisdale next argues that “numerous errors” were committed at trial and therefore, the trial judge committed error in not granting his motion for a new trial. This contention is wholly without merit. Tisdale’s post-conviction motion for a new trial was based solely upon alleged ineffectiveness of counsel. The motion fails to cite any of the occurrences now alleged to be “errors” requiring a new trial. This court will not consider arguments raised for the first time on appeal. Smith v. State, 310 Ark. 30, 832 S.W.2d 497 (1992).
Furthermore, a new trial will not be ordered because Tisdale failed to support the alleged “errors” with citations of legal authority, and such deficient contentions are not considered on appeal. McArthur v. State, 309 Ark. 196, 830 S.W.2d 832 (1992).
Pursuant to Ark. Sup. Ct. R. 11(f), the state has made certain that all objections decided adversely to Tisdale have been abstracted and briefed. No issues of prejudicial error exist.
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Tom Glaze, Justice.
Appellants, Lorene Hollingsworth and Don Gore, brought this malicious prosecution and tort of outrage case after having prevailed in an earlier federal lawsuit where the appellees claimed appellants had violated the federal “RICO” statutes. In that federal action, appellees alleged the appellants were involved in racketeering activities by laundering illegal funds, committing mail fraud and criminal enterprise, misusing credit card numbers, forging documents and other similar fraudulent conduct. The federal court had allowed the appellees to obtain a prejudgment attachment, but subsequently set it aside. At trial, Gore was granted a directed verdict, but the federal judge allowed Hollingsworth’s case to go to the jury, which returned a verdict in her favor. In filing their complaint in this state action, appellants, among other things, set out the “RICO” allegations the appellees had previously alleged against appellants, stated the appellants had been absolved of those allegations and further asserted the appellees had commenced the federal action maliciously and without probable cause. They also complained appellees were liable for the tort of outrage because appellees’ actions were extreme and outrageous beyond the bounds of decency. Appellees moved under ARCP Rule 12(b)(6) to dismiss appellants’ state action, alleging appellants’ complaint failed to state facts upon which relief can be granted. The trial court agreed, and appellants appeal the trial court’s ruling.
Arkansas has adopted a clear standard to require fact pleading: “ a pleading which sets forth a claim for relief . . . shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief . . .” ARCP Rule 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” This court has stated that these two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id; ARCP Rule 8(f).
As mentioned above, appellants seek damages against appellees for malicious prosecution and the tort of outrage. The elements necessary to show the tort of malicious prosecution are the following: 1) a proceeding instituted or continued by the defendant against the plaintiff; 2) termination of the proceeding in favor of the plaintiff; 3) absence of probable cause for the proceedings; 4) malice on part of the defendant; and 5) damages. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988). To establish liability for the tort of outrage, the following four elements are needed: 1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; 2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency” and was “utterly intolerable in a civilized community”; 3) the actions of the defendant were the cause of the plaintiffs distress; and 4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992).
Here, appellants’ complaint falls short of pleading a cause of action for malicious prosecution because they failed to plead sufficient facts to show either malice or lack of probable cause. Malice has been defined as “any improper or sinister motive for instituting the suit.” Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). Probable cause for prosecution must be based upon the existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the crime for which he is charged. Id. Ordinary caution is a standard of reasonableness, which presents an issue for the jury when the proof is in dispute or subject to different interpretations. Id.
In their complaint, the appellants mention no facts bearing on the background for appellees having filed the RICO action. Appellants merely allege they prevailed against appellees’ allegations which is not the same as saying appellees had no probable cause to file the action the first place. Concerning appellant Hollingsworth, the federal court obviously ruled sufficient evidence had been presented to send her case to the jury. Such a ruling itself indicates probable cause accompanied the RICO action that the appellees filed against her. Regardless, the appellants’ merely stating that the appellees’ actions were malicious is not sufficient to meet the pleading requirements under ARCP Rule 8(a)(1). The only facts the appellants set out in the complaint were that Hollingsworth had been served while she was working at a school in front of some of her students and this manner of service was used to embarrass and humiliate her. Again, such an allegation has little to do with whether appellees had probable cause to bring the earlier RICO action against appellants. Likewise, the appellants failed to plead any facts to support their cause of action for tort of outrage besides merely stating in summary fashion that the appellees’ actions were “extreme and outrageous beyond the bounds of decency.” Accordingly, we uphold the trial court’s decision to dismiss appellants’ complaint.
One last point needs to be addressed. The court’s order in the present case was silent as to whether the appellants’ complaint was dismissed with or without prejudice. When a complaint is dismissed under Rule 12(b)(6) for failure to state facts upon which relief can be granted, the dismissal should be without prejudice. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). The plaintiffs then have the election to either plead further or appeal. Id. In Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987), the trial court dismissed the appellant’s complaint without any mention of prejudice to Arkhola. Arkhola then had the election to plead further or appeal. Arkhola appealed, and therefore it waived its right to plead further and the complaint was dismissed with prejudice. Likewise, in the present case the appellants chose to appeal rather than plead further, thus the appellants’ complaint is dismissed with prejudice. | [
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Robert L. Brown, Justice.
Appellant Odessa Young raises as her sole issue on appeal that the circuit court erred in submitting the issue of her alleged contributory negligence to the jury because there was no evidence of her negligence presented at trial. We agree that prejudicial error was committed, and we reverse the judgment and remand the matter for a new trial.
On February 13,1989, Odessa Young was driving her 1982 Lincoln Town Car south on Ferris Mountain Road, a single-lane road near Fordyce in Dallas County. It had been raining, and there were puddles on the road. The time was about 9:40 p.m. A friend, John Allen, was a passenger in her car. At the same time, Larry Johnson was driving a U-haul truck north on the same road. Shortly after Young rounded a curve in the road, she and Johnson collided. Johnson described the accident in these terms:
Well, I turned in and like they said it had been raining, and was real muddy and slushy and I never recognized the headlights on their car. As I approached the curve, right before I approached the curve I was smoking a cigarette. I had just lit the cigarette and I dropped it and looked down to pick the cigarette up and bang, I had run into them folks car.
Young sustained back and neck injuries and was taken to the Dallas County Hospital where she remained for four days. Allen was also taken to that hospital where he was treated for injuries to his right knee and hip. Young’s car burned and was a total loss.
Young and Allen subsequently filed a negligence action against Johnson, and Johnson alleged contributory negligence on the part of Young. The case was tried before a jury. Young testified that he medical bills came to $13,279.69. She further testified that her car was worth about $8,000 before the accident and was a total loss.
Kyle Smith, who was then employed by the Dallas County Sheriffs Department, testified for Young and Allen that he prepared the accident report. He stated that Young’s car was damaged on the left front side and that the left front bumper of Johnson’s truck was also damaged. He further testified that Ferris Mountain Road is a one-lane road but is wide enough for two vehicles.
John Allen testified that he and Young were traveling down the hill when they collided with Johnson’s truck. He said that when Young saw the headlights from Johnson’s truck, she slowed down and pulled over to the right side of the road as far as she could. Allen stated they were in a ditch when Johnson hit them.
Young testified that when she saw Johnson’s lights in the distance, she slowed down and got to her side of the road. She said that she was on her side of the road when Johnson hit her. She stated that the cause of the accident was Johnson’s driving on her side of the road.
Larry Johnson testified, as quoted above, that he was looking for a cigarette which he had dropped when he hit Young’s car. He said that he did not see Young’s car until he hit it.
After Johnson testified, Young and Allen moved for a directed verdict on the issue of Young’s contributory negligence. They argued that there was no proof that Young had been negligent; therefore, there was no issue of her negligence to submit to the jury. The defense countered that there was some proof that Young was negligent because she testified that she saw Johnson’s headlights when he was some distance away. The circuit court conceded that proof of negligence on Young’s part was “very slim” but nevertheless denied plaintiffs’ motion for directed verdict.
The circuit court then instructed the jury on the law and included AMI 206 to the effect that the defendant Johnson was contending that the plaintiff Young was negligent, and he had the burden of proof on this point. The court also gave AMI 305 on the duty of both parties to exercise ordinary care and AMI 2109 on the comparative negligence of the parties. Closing arguments ensued, and after the jury retired to reach its verdict, counsel for Young and Allen made a record on their objections to the three AMI instructions on grounds that the instructions submitted the issue of Young’s contributory negligence to the jury. The circuit court overruled the objection and stated that there was “some evidence, however small, of the negligence of Ms. Young” for the jury to consider.
The jury returned a general verdict in favor of Young and Allen, awarding Young $7,500.00 and Allen $1,000.00, although Allefi had only claimed $600 in medical expenses. Young then filed a motion for a new trial, contending that it was error to instruct the jury on her contributory negligence and that the award of $7,500.00 was contrary to the preponderance of the evidence. The motion for a new trial was not ruled on within thirty days of filing, and, accordingly, was deemed denied. Young filed a timely notice of appeal from both the judgment and the denial of her motion for a new trial.
Odessa Young’s primary argument on appeal is that the circuit court erred in not directing a verdict in her favor regarding her negligence. She also alludes to the court’s instructions relating to her negligence and the claimed prejudice that resulted. Young, however, did not object to the instructions given until after the jury had retired. Objections to instructions must be made either before or at the time the jury instructions are given. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990). Waiting to object until after the jury has been instructed on the law and has retired is untimely, for it gives the circuit court no opportunity to react to the instructions at issue or to amend them. See Sims v. State, 286 Ark. 476, 695 S.W.2d 376 (1985). Because the objections were untimely, we will not consider the disputed instructions. Young’s failure to object to the comparative fault instructions, however, is not essential for our consideration of the court’s denial of her motion for directed verdict.
In general, we have been extremely reluctant to affirm a directed verdict on behalf of the plaintiff. On two occasions, we have quoted with approval the following statement from the Eighth Circuit Court of Appeals which describes our rationale against directing verdicts in the plaintiff’s favor:
Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.
Untied States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542, 547 (8th Cir. 1958); quoted with approval Morton v. American Med. Int’l, Inc., 286 Ark. 88, 90, 689 S.W.2d 535, 537 (1985); Spink v. Mourton, 235 Ark. 919, 922, 362 S.W.2d 665, 667 (1962). Thus, we are loath to direct a verdict in favor of the party who has the burden of proof because the jury may disbelieve the credibility of such proof.
Here, however, that is not the case. With respect to Young’s negligence, the defendant Johnson had the burden of proof. See AMI 206; see also Hill Constr. Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987). If he did not satisfy the burden, a directed verdict in favor of Young was appropriate. See Kinco, Inc. v. Schueck, 283 Ark. 72, 671 S.W.2d 178 (1984). In Kinco, we stated the test for a trial court’s ruling on a motion for directed verdict:
The test for the trial court in ruling on a motion for a directed verdict by either party is to take that view of the evidence that is most favorable to the non-moving party and give it its highest probative value, taking into account all reasonable inferences deducible from it; after viewing the evidence in this manner, the trial court should: (1) grant the motion only if the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside, or (2) deny the motion if there is substantial evidence to support a jury verdict for the non-moving party. Farm Bur. Mut. Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Id.
291 Ark. at 283, 671 S.W.2d at 180-181; see also Williams v. Smart Chevrolet Co., 292 Ark. 376, 730 S.W.2d 479 (1987).
In the case before us, the circuit court denied Young’s motion for directed verdict. Under the test cited in Kinco, we first view the evidence of Young’s negligence, if any, and give it its highest probative value. The question then becomes: was there substantial evidence of Young’s negligence to support denial of the motion? or, alternatively, should the court have granted the motion because of the insubstantial evidence? We conclude that the circuit court was in error and that the motion should have been granted.
Johnson did not see Young’s vehicle. He had dropped a cigarette, and when he looked up, he crashed into Young’s car. Allen and Young testified that when she saw Johnson’s headlights, she slowed down and moved as far to the right as possible. Allen said that Young was in the ditch when Johnson hit her. Investigator Kyle Smith testified that the left front side of Young’s car was damaged and the left front bumper of Johnson’s truck had been hit, which supports the testimony that Young’s car had pulled over to the right.
Johnson argues that there was evidence that enabled the jury to make the determination it did because of photographs of the road referred to by investigator Kyle Smith. But unlike the situation in East Texas Motor Freight Lines, Inc. v. Dennis, 214 Ark. 87, 215 S.W.2d 145 (1948), where truck tracks crossing the center line were the issue, there is no hint from Smith’s presentation that the photographs supported Young’s negligence.
In sum, the evidence indicates that Young took reasonable precautions by pulling over to the right when she saw Johnson’s headlights. The jury, of course, was free to disbelieve the testimony of Young and Allen. But even giving the remaining evidence presented, such as Larry Johnson’s testimony, its highest probative value, there is nothing to suggest Young’s negligence. We hold that any conclusion that Young was negligent under these facts is highly speculative and conjectural and, thus, not substantial. See Williams v. Smart, supra; Kinco, Inc. v. Schueck Steel, Inc., supra.
The circuit court, therefore, erred in not directing the jury to enter a verdict for Young on the issue of her negligence. Our holding, though, does not equate to a directed verdict in favor of Young on the issue of Johnson’s negligence. For Young to prevail, it was still essential for her to present her case on Johnson’s fault to the jury for its consideration, and the jury was then free to believe or disbelieve the proof presented. Conceivably, based on that proof the jury could have 1) found Johnson negligent and awarded Young damages; 2) found Johnson negligent and refused Young a damage award; or 3) found Johnson not negligent and entered a defendant’s verdict.
It could reasonably be contended that though the circuit court might have erred in refusing to direct a verdict on Young’s negligence, this error was cured by the jury’s verdict for Young. We cannot say, though, that the court’s refusal to take Young’s negligence from the jury did not have a prejudicial impact on the damages awarded to her. Cf. Little Rock Elec. Contrs., Inc. v. Okonite Co., 294 Ark. 399, 744 S.W.2d 381 (1988). In Okonite, a general verdict was returned, and we could not determine whether the error in giving a comparative fault instruction was harmless. As in Okonite, here the jury returned a general verdict. From the verdict form, we cannot say that the failure to direct a verdict on Young’s negligence was harmless.
We, accordingly, hold that the circuit court erred in not granting a directed verdict in favor of Young on the issue of her negligence, and we remand for a new trial.
Reversed and remanded.
FIays, Glaze, and Corbin, JJ., dissent. | [
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Tom Glaze, Justice.
This case involves art. 5, § 38 of the Arkansas Constitution as amended by Amendment 19, which became effective in 1934. That amendment provides as follows:
None of the rates for property, excise, privilege of personal taxes, now levied shall be increased by the General Assembly except after the approval of the qualified electors voting thereon at an election, or in case of emergency, by the votes of three-fourths of the members elected to each House of the General Assembly.
As can be seen, Amendment 19 requires any rate increase in the taxes then levied and enumerated in it to be approved by a vote of the people or to be passed by a three-fourths vote of the General Assembly.
Arkansas’s original gross receipts tax was passed in 1941 and was not one of the taxes set out in the 1934 Amendment. The tax in issue in this lawsuit, Act 63 of 1983, increased Arkansas’s sales tax from three-to-four percent, and was passed only by a majority, not a three-fourths, vote of the General Assembly.
The state contends the vote requirement of Amendment 19 does not apply to Act 63 because it increased the sales tax which was not a tax enumerated in the Amendment of 1934. The taxpayer, Mr. Ruben Miller, brings this suit asking this court to apply the Amendment 19 vote requirements to Act 63 and hold that because Act 63 did not receive a three-fourths vote, it is a nullity. His reasoning will be discussed below. Granting summary judgment, the chancellor below rejected the taxpayer’s argument and upheld Act 63’s constitutionality. At the same time, the chancellor denied the state’s motion to impose Rule 11 sanctions against Mr. Miller. We affirm the chancellor’s rulings on both points.
In challenging Act 63’s validity, Mr. Miller asks us to limit our reading of Amendment 19 to say it prohibits a tax rate increase involving any tax without a vote of the people or a three-fourths vote of the General Assembly. In support of this contention, he argues the Amendment’s ballot title which he says omits reference to the enumerated taxes and “now levied” language contained in the text of the Amendment. In sum, Miller suggests Amendment 19 should be construed to read that all tax increases of any kind require a popular vote of the people or a three-fourths vote no matter when those increases are levied. As pointed out, Miller’s argument ignores the “now levied” and enumerated taxes language in the text of the Amendment and overlooks the fact that the ballot title of Amendment 19 is not a part of the measure and, therefore, in no way controls the meaning of the Amendment unless the Amendment itself is ambiguous. Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). No ambiguity exists here.
This court has construed Amendment 19 and has done so consistent with the chancellor’s holding in this case. See Combs v. Glens Falls Insurance, 237 Ark. 745, 375 S.W.2d 809 (1964); Caldarera v. McCarroll, 198 Ark. 584, 129 S.W.2d 615 (1939). In Combs, for example, the General Assembly enacted by simply majority vote Act 527 of 1963, which increased the privilege taxes on foreign insurance companies. This court held the 1963 Act unconstitutional because Amendment 19, adopted in 1934, provided that none of the rates for privilege taxes then levied shall be increased without a three-fourths vote of the General Assembly. Such a privilege tax on foreign life insurance companies was in effect in 1934, and since Act 527 of 1963 involved the tax on life insurance companies, the court held the act violated Amendment 19.
Also, in the early case of Caldarera, wholesale dealers of intoxicating beer brought suit contending Act 310 of 1939 violated Amendment 19 because the Act did not receive a three-fourths vote which was required since Act 310 increased a preexisting privilege tax on such wholesalers imposed by law as early as 1933. This court, however, concluded Act 310 was a different and new privilege tax from the one imposed in 1933 and therefore was constitutional since it did not increase the tax previously levied on wholesalers in 1933. Two justices concurred, explaining Act 310 of 1939 levied a tax on a new product made saleable in the state after Amendment 19 was adopted and therefore the 1939 tax was not within the purview of the Amendment.
In accordance with the plain language of Amendment 19 and the cases construing it, we must conclude Act 63 of 1983 challenged here does not fall within the Amendment’s terms because the tax it increases is the sales tax, which is not one of the taxes enumerated in the 1934 Amendment. Further, since Act 63 increased the 1941 sales tax law which was not in effect at the time of Amendment 19’s passage, the General Assembly acted within its authority to pass such an increase by a majority vote. In short, we hold Act 63 constitutional.
On cross-appeal, the state claims Miller’s lawsuit was baseless and Rule 11 sanctions should have been imposed against him by the trial court. We disagree.
By the terms employed in the Federal and Arkansas Rules 11, an attorney signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that (1) the attorney made a reasonable inquiry into he facts supporting the document or pleading, (2) he or she made a reasonable inquiry into the law supporting that document to ensure that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (3) the attorney did not interpose the document for any improper purpose, such as to harass or to cause unnecessary delay or needles increase int he cost of litigation. See also Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988); Smith Intern, Inc. v. Texas Commerce Bank, 844 F.2d 1193 (5th Cir. 1988); Wright & Miller, Federal Practice and Procedure: Civil 2d § 1335, p. 58 (1990); Note, Rule 11 in the Federal Courts — Unanswered Questions in Arkansas, 43 Ark. L. Rev. 847, 852 (1990). When a violation of Rule 11 occurs, the Rule makes sanctions mandatory. Miles, 297 Ark. 274, 760 S.W.2d 868: Crookham v. Crookham, 914 F.2d 1027 (8th Cir. 1990); O’Connell v. Champion Intern. Corp., 812 F.2d 393 (8th Cir. 1987). Whether a violation occurred is a matter for the courts to determine, and this determination involves matters of judgment and degree, and in reviewing a trial court’s Rule 11 determination, we do so under an abuse of discretion standard. Miles v. Southerns, 297 Ark. 280-A, 763 S.W. 656 (1988) (supplemental opinion denying rehearing); Crookham, 914 F.2d 1027; O’Connell, 812 F.2d 393.
Here, the taxpayer, Miller, obviously made reasonable inquiry into the law, but in arguing that law below and on appeal, the courts thoroughly disagree with his construction of the applicable constitutional and statutory provisions and the precedents interpreting them. He specifically asked that this court reject the Caldarera decision, among other reasons, as being inconsistent with the purpose of Amendment 19; he certainly has a right to urge such a legal argument under Rule 11. Although we disagree with Miller’s arguments in these respects, our rejection does not suggest he failed to make a reasonable inquiry into the facts and law in this case. On these facts, we cannot say the trial court abused its discretion in denying the state’s motion for sanctions.
We affirm both on direct appeal and cross-appeal.
Miller also cites the case of Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988), where a group sponsored a propsoed consitutlonal amendment to change Amendment 19 and the ballot title of the proposed amendment referred to Amendment 19 omitting the “now levied” terminology contained it it. | [
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Robert H. Dudley, Justice.
This is a condemnation case. In 1986, the Arkansas State Highway Commission petitioned the County Court of Madison County and asked the County Court to condemn some property adjacent to State Highway 295 in Madison County so that some of the curves in the road could be made safer. Section 27-67-212 of the Arkansas Code Annotated of 1987 provides that the Commission may request that the county condemn land for a change in a state highway. Section 27-67-212(b) provides that if a county refuses the Commission’s request, the Commission may either refuse to improve the road or file the condemnation action itself and force the county to pay for half of the cost of condemnation. Ark. Code Ann. §§ 27-67- 212(b); 27-67-320 (1987). Madison County acceded to the Commission’s request and commenced condemnation proceedings against the appellants. The County Court of Madison County condemned a perpetual easement over some of appellants’ land for highway purposes. Appellants were given notice of the order after it was entered.
Appellants filed a petition in the County Court of Madison County in which they alleged: “That said statutes in that they allow petitioners’ rights to be decided without notice or hearing are unconstitutional on their face and as applied in this case, because they violate petitioners’ due process rights guaranteed under both the Arkansas and United States Constitution[,]” and alternatively asked for damages. The record does not reflect what was argued to the County Court. The record reflects only that the Judge of the County Court ruled, “That Ark. Stat. Ann. §§ 76-926 and 76-928 do not violate Petitioners’ due process rights under either the Arkansas or United States Constitutions.” The County Court ruled that the improvements to the highway benefitted appellants’ land to such an extent that no damages were due.
Appellants appealed to circuit court and apparently made a due process argument that is not in the record currently before us, and alternatively asked for damages. The trial court rejected the due process argument and set the case for trial. A jury awarded a judgment against the Commission. The Commission appealed. We held that the Commission was not the proper party defendant and reversed and remanded. Arkansas State Highway Comm’n v. Dotson, 301 Ark. 54, 781 S.W.2d 459 (1989). Upon remand, the case was again tried in circuit court. This time, a jury found that appellants were not entitled to any damages.
Appellants appeal and argue that their right to due process has been violated since the county judge, who presides over the county court and initially determines the value of the land condemned, is also the chief executive officer of the county, and accordingly, has an interest in not fully and fairly assessing the damages suffered by a landowner. In support of their argument they cite Tumey v. Ohio, 273 U.S. 510 (1920), Ward v. Village of Monroeville, 409 U.S. 57 (1972), and Gore v. Emerson, 262 Ark. 463, 557 S.W.2d 880 (1977). The argument might well have merit, but we do not reach it.
The record of the proceedings in the trial court reflects only that the appellants argued they were denied due process because they were not given notice before the condemnation proceeding was commenced. Similarly, the judgment reflects only that “issues pertaining to the constitutionality of Ark. Code Ann. § 27-67-212 and Ark. Code Ann. § 14-298-121 [are] being submitted herein to the court for proper adjudication and determination. . . .’’The judgment does not reflect that the trial court ruled on these “issues,” but the record discloses that the trial court ruled from the bench, “I’m going to deny your motion to declare those statutes unconstitutional again.”
The record does not reflect that an argument was presented to the court that the appellants were denied due process because of the dual capacities of the county judge, or that the trial court ruled on such an argument. Generally, an appellate court in this State reverses a trial court only when that trial court has committed some prejudicial error, and if an issue was never presented to the trial court, it could not have committed error on that issue. See Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992). As a general rule, plain error is not recognized by our state appellate courts, Sturgis v. Lee Apparel Co., 304 Ark. 235, 800 S.W.2d 719 (1990), and, as we have so often said, appellate courts will not consider an argument presented for the first time on appeal. Moorman v. Lynch, 310 Ark. 525, 837 S.W.2d 886 (1992).
Affirmed.
Holt, C. J., not participating. | [
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Robert H. Dudley, Justice.
This case began in 1989 when an unwed mother, then living in Humbolt County, California, sought assistance in obtaining child support from the father who lived in Jefferson County, Arkansas. The Family Support Division of the District Attorney’s Office in Humbolt County filed a complaint on behalf of the mother and child pursuant to the Revised Uniform Reciprocal Enforcement of Support Act. The Superior Court of Humbolt County, the initiating court, determined that the unwed mother was in need of support and certified a complaint to the County Court of Jefferson County. See Ark. Code Ann. § 9-14-314 (1991). Paternity cases in this State have been transferred by statute from county court to chancery court; thus, the case was filed in the Chancery Court of Jefferson County. The chancellor made a finding of paternity, ordered the father to pay child support, and placed custody of the child in the mother subject to the father’s right of visitation. There was no direct appeal at that time from the part of the decree involving the award of custody or visitation. Subsequently, the father filed a petition in which he alleged that he had been denied visitation, and asked that child support payments be suspended until he was allowed to visit the child. The chancellor eventually ordered that future support payments be suspended until the mother allowed the father to visit with the child. The Jefferson County Child Support Enforcement Unit, on behalf of the mother and child, appeals and argues that the receiving court, the Chancery Court of Jefferson County, did not have jurisdiction to adjudicate visitation rights, and, therefore, erred in suspending the child support payments. The argument is meritorious, and accordingly, we reverse and remand.
The purposes served by RURESA are similar to those of the Uniform Child Custody Jurisdiction Act, or UCCJA, two of which are to avoid jurisdictional competition and conflicts, and avoid the litigation of custody decisions. See Hogan v. Durgan, 11 Ark. App. 172, 668 S.W.2d 57 (1984). RURESA did not give the Jefferson County Chancery Court jurisdiction to address the issue of visitation. Under RURESA collateral matters such as visitation cannot be raised as a defense. In State v. Kerfoot, 308 Ark. 289, 291, 823 S.W.2d 895, 896 (1992), we quoted with approval from Todd v. Pochop, 365 N.W.2d 559 (S.D. 1985) as follows:
The very purpose of the URESA requires that it be procedurally and substantively streamlined. Interstate enforcement of support obligations will be impaired if matters of custody, visitation, or custodial parent’s contempt are considered by the responding court. The introduction of such collateral issues will burden the URESA mechanism. Moreover, permitting the resolution of other family matters in a URESA proceeding may deter persons from invoking URESA.
The father responds that the Jefferson County Chancery Court did not grant visitation, instead it only suspended support payments until visitation was allowed. The argument is not well taken. Generally, a court may not do indirectly that which it is directly prohibited from doing. Shackleford v. Shackleford, 194 Ark. 381, 107 S.W.2d 344 (1937). Under RURESA the Arkansas court could not directly determine visitation. Therefore, it could not indirectly determine visitation by making payment of child support dependent upon visitation. See Doody v. Sanders, 18 Ark. App. 38, 709 S.W.2d 823 (1986).
In addition, the Jefferson County Chancery Court had personal jurisdiction over the father only. It never had personal jurisdiction over either the mother or the child, and, since there was neither a marriage nor a divorce, it did not have jurisdiction over the marital res. A section of RURESA, Ark. Code Ann. § 9-14-332 (1991), provides, “Participation in any proceeding under [RURESA] does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding.” The general rule in a RURESA proceeding is that support and visitation orders are not interdependent. Muller v. Muller, 515 A. 2d 1291 (N.J. Sup. Ct. 1986). Accordingly, we hold that the Chancery Court of Jefferson County erred in indirectly addressing the issue of visitation. While the original order of the Jefferson County Chancery Court purporting to award custody and visitation was not appealed, it is settled that jurisdiction is always subject to question.
Two court of appeals cases, Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991) and Arkansas Department of Human Services v. Cameron, 36 Ark. App. 105, 818 S.W.2d 591 (1991), may be read to conflict with the holding of this opinion. To prevent any possible confusion, we note that the federal regulation quoted in those cases, 54 Fed. Reg. 15,761 (April 19, 1989), is not related to visitation or custody defenses, and to the limited extent that there may be some conflict, they are overruled.
Reversed and remanded for entry of orders consistent with this opinion. | [
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Per Curiam.
Brenda Chorn, by her attorney, has filed a motion for rule on the clerk.
The motion admits that the record was not timely filed and that it was no fault of the appellant.
However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If the attorney for Brenda Chorn will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied. | [
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Robert L. Brown, Justice.
This case concerns the Freedom of Information Act, and the appeal presents a single issue for consideration: whether a ground lease between the City of Fort Smith and the appellant, the Sebastian County Chapter of the American Red Cross, wherein the City charges Red Cross a one- dollar-per-year lease payment, qualifies as support by public funds. The circuit court found that it did. We hold that the finding was clearly erroneous, and we reverse and remand.
At the meeting of the Fort Smith Board of Directors on December 6, 1983, a resolution was adopted authorizing a lease agreement between the City and the Red Cross. The agreement provided that the City would lease a lot to the Red Cross for a period of thirty years with an annual rental fee of one dollar. It further provided that the Red Cross would commence construction of a building for its offices and that the building would revert to the City upon the expiration of the lease.
On January 8, 1992, the appellee, Wanda Weatherford, directed a request to the Red Cross, seeking an opportunity to “inspect and copy all non-privileged documents” in its possession. The Red Cross denied the request, and Weatherford filed a petition for disclosure under the Arkansas Freedom of Information Act on the basis that the lease constituted public funding. She also contended that the American Red Cross received federal funding, but no proof of that fact was presented to the circuit court.
The Red Cross answered and asserted that the building was constructed on the leased property at its own expense and that at the expiration of the lease term the building and improvements would become the property of the City. The Red Cross also emphasized that it was not a public agency or an organization “wholly or partially supported by public funds or expending public funds” within the meaning of Ark. Code Ann. § 25-19-103 (Repl. 1992). Further, the Red Cross contended that Weather-ford was using the FOIA as a replacement for discovery related to a civil action it had pending against certain Red Cross officials.
At a subsequent hearing, the parties stipulated that, standing alone, $1.00 per year would be less than a reasonable rental value for the leased property. Also at the hearing, reference to a 1979 appraisal was introduced establishing the value of three lots, one-half of which constitutes the leased land in question, at $62,500. Counsel for Red Cross argued that the lease was an arms-length transaction in that the City would ultimately gain the constructed Red Cross building valued at $60,000 in 1983 and the public had the use of the conference room in the building. He also argued that the one-dollar-per-year rental payment did not qualify as support by public funds. Following the hearing, the circuit court entered an order in which it first recognized that the lease required the Red Cross to build a building and that the public might obtain substantial benefit from the lease. The court then found that the fair market value of the leased property was “substantially more than $1 per year” and that the lease constituted a partial support by public funds, or an expenditure of public funds under § 25-19-103. Accordingly, the court ordered the Red Cross to open its non-exempt records for inspection pursuant to the FOIA.
The Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-101 —25-19-107 (Repl. 1992), was originally enacted as Act 93 of 1967. The legislative intent behind the FOIA is stated at Ark. Code Ann. § 25-19-102 (Repl. 1992):
It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials.
We have stated repeatedly that the FOIA should be liberally construed in order to accomplish the Act’s laudable purposes. See, e.g., Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992); City of Fayetteville v. Edmark, 304 Ark. 179, 801 S.W.2d 275 (1990); North Central Assoc. of Colleges & Schools v. Troutt Bros. Inc., 261 Ark. 379, 548 S.W.2d 825 (1977); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). We have also remarked that we are aware of the need for a balancing of interests to give effect to the intent of the General Assembly, and we do so with a common sense approach. Bryant v. Mars, supra; Simmons First Nat’l Bank v. Liberty Mut. Ins. Co., 282 Ark. 194, 667 S.W.2d 648 (1984).
The FOIA opens to inspection and copying “all public records.” Ark. Code Ann. § 25-19-105(a) (Repl. 1992). As defined by Ark. Code Ann. § 25-19-103(1) (Repl. 1992), “public records” means writings and other documentation “required by law to be kept or otherwise kept, and which constitute a record of the performance of lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds.” (Emphasis supplied.)
The issue in this appeal has been narrowly drawn by the parties and the circuit court, that is, what constitutes support by public funds? We focus first on the term “public funds,” which is not defined in the FOIA. The definition given in Black’s Law Dictionary, 6th ed. (1990), is “Moneys belonging to government, or any department of it, in hands of public official.” Case law cited by Black’s in support of this definition is relevant to the present case. See Droste v. Kerner, 217 N.E.2d 73 (Ill. 1966). In Droste,a taxpayer attacked the Illinois legislature’s conveyance of land submerged beneath Lake Michigan to U.S. Steel on the basis of a statute that prohibited the “disbursement” of “public funds” and “public moneys” by state officials. The Illinois Supreme Court affirmed the trial court and rejected the taxpayer’s attempt to translate 194.6 acres of land into “public funds.” The court concluded that “the legislature could not have contemplated real estate when it referred to public funds, nor may this court torture the meaning of the words employed to arrive at that result.” 217 N.E.2d at 78-79.
This court has dealt with several instances in which private entities have received public funds, and in those cases we have applied the FOIA. See City of Fayetteville v. Edmark, supra; North Central Ass’n of Colleges & Schools v. Troutt Bros, Inc., supra; Rehab. Hospital Services Corp. v. Delta-Hills Health Systems, Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). In City of Fayetteville v. Edmark, supra, outside attorneys were employed and paid by the City for their work. Records in their possession were held to be subject to FOIA disclosure, in part because they had been hired in lieu of the city attorney and paid with public funds.
An earlier case, North Central Ass’n of Colleges & Schools v. Troutt Bros, Inc., supra, involved a suit over the exclusion of a reporter from a state meeting of the North Central Association of Colleges and Schools, an organization that sets educational standards and policies for colleges and secondary schools. Dues from the Arkansas schools supported the NCA. Although the association was a private, nonprofit corporation, a factor stressed by this court in applying the FOIA was that over 90% of the money contributed by Arkansas schools to the NCA was public money.
In still another case, the Delta-Hills Health Systems Agency, Inc. had been created under federal law to assist the Arkansas State Health Planning and Development Agency in the regional review of certain proposed changes in health care. Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 400, 687 S.W.2d 840, 842 (1985). The primary source of funding for the Delta-Hills HSA was the federal government, which we held to be public funding. Because of this, we concluded that Delta-Hills HSA, though a private, nonprofit corporation, was subject to the FOIA.
All of these cases dealt with direct public funding of some sort as the catalyst for the application of the FOIA. None of these cases expanded the term “public funds” to embrace an indirect benefit conveyed by government upon a private organization.
In the present case, we are mindful that under the Lease Agreement the City will at some point fall heir to the Red Cross building and, thus, receive the benefit of this improvement and that in the interim the public has use of the Red Cross conference room. However, we do not decide this case on that basis. The plain language of the FOIA confirms that the General Assembly intended that direct public funding be required. As previously noted, the FOIA applies to private entities “supported wholly or in part by public funds.” Had the General Assembly intended to extend the FOIA to private organizations that receive any form of government assistance or subsidy, no matter how indirect, it would not have used the words “supported ... by public funds” to describe the nature of support necessary to trigger the Act.
Refusal to read indirect government benefits or subsidies into the term “public funds” is not at odds with a liberal construction of the FOIA. Were we to construe “public funds” to include an entirely separate and new category of government support, we would be amending the FOIA to expand its application significantly. For example, the Arkansas Code contains statutes designed as incentives to induce businesses to locate in the state. Arguably, the use of such devices for industrial development or other purposes constitutes indirect public support. Did the General Assembly, without saying so, intend the application of the FOIA to all private organizations which receive some government benefit, no matter how minor? We think not.
We, therefore, adopt a common sense approach, as we did in Bryant v. Mars, supra, and give the term “public funds” its plain and ordinary meaning which is best evidenced by Black’s Law Dictionary and the definition “moneys belonging to government.” Here, no payment of government moneys was made to the Red Cross and the concomitant application of the FOIA should not transpire. In deciding as we do, we resist the temptation to legislate judicially. See Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). We do, however, recognize that all records pertaining to the Lease Agreement between the City and the Red Cross were available to Weatherford through an FOIA request to the City.
Reversed and remanded for an order consistent with this opinion.
Dudley, J., dissents.
At oral argument before this court, counsel for Red Cross also acknowledged that the Red Cross was receiving what amounted to an indirect benefit from the City by virtue of the one-dollar-per-year lease payment. | [
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James H. Pilkinton, Judge.
This is a workers’ compensation case. The issue is the extent of appellee’s disability. At the hearing below it was stipulated that appellee had sustained a compensable injury on or about March 18, 1977, and was entitled to the maximum weekly benefit of $84.00. Temporary total disability was paid until May, 1977. After May, 1977, appellant paid additional permanent disability benefits. until June 12, 1979, the date of the hearing, based upon a permanent disability rating of 15% to the body as a whole, which appellant insisted was correct.
Appellee contends that he had sustained compensable injuries while working for appellant in 1972 and in 1975; and again finally on March 18, 1977. The last injury required back surgery. Appellee claimed that he had not returned to work since March 18, 1977, due to the injuries. He claimed that additional benefits were due.
Appellant has controverted payment of any permanent disability benefits over 15% to the body as a whole.
The administrative law judge found, among other things, that appellee is totally disabled. The Arkansas Workers’ Compensation Commission adopted and affirmed the opinion of the administrative law judge. The Commission determined that the healing period ended on October 2, 1978, and entered an award directing payment of weekly benefits from that date forward as long as appellee remains totally disabled. Appellant has appealed to this court from the findings and award of the Commission.
Appellant contends there is no substantial evidence to support an award in excess of 15% to the body as a whole. Under the principles of the Workers’ Compensation law as explained by this court and the Arkansas Supreme Court on many occasions, the decision of the Workers’ Compensation Commission must stand if supported by substantial evidence. The findings of fact made by the Commission are given the same standing as a jury verdict. Barksdale Lumber Company v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1977).
Appellee testified that he was forty-four years of age, married and had two children living at home. It is undisputed that appellee had an eighth grade education, and no vocational training. He had started working for the appellant in 1967. Prior to that time, he had worked as a farm laborer, as a tractor operator for the highway department, as a plumber’s helper, and as a leather cutter. Appellee further testified that since going to work for the appellant company in 1967, he had performed nearly every job in the factory. He testified that he first injured his lower back in 1972 and was treated by Dr. Robinson in Dumas. He testified that he hurt his back again in 1975 and that time was treated not only by Dr. Robinson but also by Dr. Sam Thompson in Little Rock. It is undisputed that claimant injured his back again on March 18, 1977.
According to the evidence, appellee had not received any injury other than those sustained while working for the appellant. Subsequent to his injury in March, 1977, he had surgery performed by Dr. Robert Dickins and remained under his care as of the date of the hearing. According to appellee his back still gave him trouble and he had difficulty sleeping but was able to get along without medication.
Appellee testified that he had attempted to return to work for appellant in December of 1978. According to his testimony he saw the personnel manager, Ms. Margie Poole, who apparently had all of the doctors’ reports on the claimant at the time. Appellee says that Ms. Poole did not put him to work but told him she would let him know something in a few days. Appellee testified that he had not had any word from the company since his conversation with the personnel manager, although on more than one occasion he has talked with Ms. Poole in regard to the payment of bills and weekly benefits. Appellee candidly admitted that if the firm had a job which it would allow him to undertake, he would go back immediately.
The appellee testified that he had attempted to find work at other places. He said that he had made applications at the unemployment office in Dumas, at Curt’s Auto Parts Store, T. A. Edwards Trucking Company, the Piggly Wiggly store, Richard Powell’s One Stop, and at the Catfish Kitchen. Appellee said that he had lived in the Dumas area for twelve years but had been reared sixteen miles east of Dumas at a town called Watson. He stated that he knew the people in the area and they knew him. He had been unsuccessful in his efforts to find work in the area. The record shows that he had even talked to a friend of twenty years about a job at a car lot, but this friend also would not hire him. In addition to the appellee’s efforts to obtain employment at most available sources in the area, the record shows that appellant employed the Southern Rehabilitation Service to attempt to rehabilitate the appellee. The record shows that appellee went to Little Rock in December of 1978 and took tests, and in January of 1979 he was contacted at Dumas by a representative of the Southern Rehabilitation Service. He has had no further contact whatsoever from Southern Rehabilitation Service since January of 1979.
A review of the medical records in this case indicates that the appellee has a long-standing back problem which originated as a compensable injury while working for the appellant. The problems he has had since that time have all been related to his employment with the appellant. His testimony indicates that he would be working for appellant right now if appellant would allow him to return. The unexplained refusal by appellant to allow appellee to return to work is inconsistent with its position that he is only 15% disabled. The record is clear and undisputed that appellee has made a good faith effort to find employment in a somewhat rural area. Thus far, all of his attempts to find employment have been unsuccessful and, as far as this record shows, the efforts of the Southern Rehabilitation Service employed by appellee have been abandoned. We find that there is substantial evidence to support the Commission’s finding that the appellee is, in fact, totally disabled as a direct result of the injuries he has sustained at the appellant plant. It follows, of course, that appellee is entitled to be compensated for total disability benefits until such time as his total disability ceases. As a result of these industrial injuries, appellee has been placed in a rural labor market with very limited education, at forty-five years of age with three back injuries which have resulted in surgery and a permanent impairment rating of 15% to the body as a whole. The consequence of this situation is apparent. The appellee cannot secure employment. This case is governed by Ark. Stat. Ann. § 81-1313 (a) (Repl. 1976). The pertinent provisions reads as follows:
(a) Total Disability. In case of total disability, there shall be paid to the injured employee during the con tinuance of such total disability 66-2/3 of his average weekly wage. . ..
The term “disability” is defined in Ark. Stat. Ann. § 81-1302(e) as follows:
(e) ‘Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.
The plain meaning of the language quoted above is that if the appellee is totally incapacitated to earn in the same or any other employment the wages he was receiving at the time of his injury, then he is entitled to receive weekly benefits “during the continuance of such total disability”.
By making this award, the Commission hoped that the appellee’s disability is not permanent and that he will eventually remain an employment status. That, however, remains to be seen.
Since the decision and award of the Arkansas Workers’ Compensation Commission is supported by substantial evidence, it is our duty to affirm.
Newburn, J., dissents. | [
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Per Curiam.
Dr. David A. Lupo, the petitioner, seeks writs of prohibition and certiorari to prevent his having to give a deposition as an expert witness involuntarily in the case of William Rodgers, Individually and as Administrator of the Estate of Patricia Rodgers v. Dr. Robert Teryl Brooks, Jefferson County Circuit Court No. 91-439-2-3. Counsel for William Rodgers has subpoenaed Dr. Lupo, contending that he will only be asked “factual” questions rather than for expert opinion. Dr. Lupo asserts that the “facts” he expects to be asked are within his knowledge only because of his status as an expert and he should not have to submit involuntarily to the deposition.
All proceedings, including discovery, in Rodgers v. Brooks, are temporarily stayed. Counsel for the petitioner and for the respondent are ordered to brief the issue fully pursuant to Arkansas Supreme Court and Court of Appeals Rule 16 and 7. In addition to the merits of the question presented by the petition, the parties are directed to brief the question of the propriety of a writ of certiorari in the circumstances presented in this case. | [
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Richard L. Mays, Justice.
Appellant was convicted by a jury of capital felony murder and was sentenced to life imprisonment without parole. On appeal appellant argues 19 points for reversal. Since we find reversible error, we shall limit our discussion to those points which compel reversal and to those which, though not error, are likely to confront the court on a retrial.
Although included among appellant’s points for reversal is a challenge to the sufficiency of the evidence, we find ample evidence to sustain a conviction of capital felony murder. A person commits capital murder if he causes the death of any person under circumstances manifesting extreme indifference to the value of human life while committing or attempting to commit a robbery. Ark. Stat. Ann. § 4l-1501(l)(a) (Repl. 1977). Specifically, appellant, Ismet Divanovich, was charged by information, along with a co-defendant, Wayne Abbott, with feloniously causing the death of Anna Trailovich by striking her with a rubber mallet and cutting her with a knife in the course of robbing her. The evidence indicates that appellant had accompanied his landlord to the victim’s apartment the day before her death and overheard her tell the landlord that she had misplaced $140.00 with which to pay her rent. The next morning appellant was observed pounding a rubber mallet against his hands, saying it would make a good murder weapon. A little later he was seen carrying what appeared to be the same rubber mallet, now covered with blood, and conversing with Wayne Abbott, who was holding a knife, also covered with blood. He was overheard saying that he thought “that lady” had more money than she had. Subsequently, the victim was found dead in her apartment (which was adjacent to appellant’s), her skull having been fractured. Contusions and lacerations covered her head and blood was spattered on the floor and the door. Appellant was arrested with blood stains on his clothing and a blood stained rubber mallet and knife were found in another apartment to which appellant had a key.
We must sustain appellant’s contention that his right to a fair and impartial trial was undermined and unduly jeopardized by remarks of the trial judge. The record reflects that appellants’ defense attorney was threatened with jail and was refused the opportunity to make a record to establish that the jury heard the threat.
During cross-examination of a prosecution witness by the defense attorney, the state objected to a question on the ground that it called for speculation from the witness. Instead of ruling specifically on the objection, the trial court directed counsel to “stop arguing” with the witness. The defense counsel denied that he was arguing and, during the heated exchange which followed, the court threatened the defense counsel with incarceration, saying, “I’ll put you right down there where he is,” referring to the defendant. The defense counsel objected, requested a mistrial, and, since there was some qustion about whether the jury heard the judge’s rebuke, offered to proffer the testimony of another attorney in the courtroom who had allegedly heard the court’s remark. The court refused the proffer and directed the defense counsel to proceed. When the defense counsel suggested that he could not continue with cross-examination, the court responded, “Otherwise, I’m going to declare a recess and we will have a session . . . and you may spend the night downstairs.”
Although the state concedes that the judge’s remarks were inartfully phrased, the state argues that they were provoked by appellant’s counsel. We do not believe, however, that the responsibility of the trial judge to maintain the integrity of the judicial process is diminished by the misconduct of lawyers. As Mr. Justice Butler so aptly stated many years ago in Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 429, 100 S.W. 2nd 676 (1937):
We are not unaware that many things occur during the trial of a case to fray and irritate the nerves of the presiding judge and that he is not immune to the natural frailities of humanity, but because of his position he must exercise the greater forbearance and patience.
In alluding to the perceptive words of Justice Butler today, we emphasize that it is not the lawyer who is on trial for his life or who suffers when a judge’s disparaging retort to an unseasoned attorney hardens the jury against the defense. Neither the rights of the defendant, nor the dignity of the court can be sacrificed because of human frailties of the judge. This is no new principle of law adopted only for this occasion, but is one to which this Court has consistently adhered. In McAlister v. State, 206 Ark. 998, 178 S.W. 2d 67 (1944), we reversed a grand larceny conviction because the judge told the defense counsel that to grant his motion “would be just silly,” and, that he was “not going to put up with any more of this foolishness.” In Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924), we found error when the defense counsel stated he was “just trying to facilitate matters” and the judge retored, “Yes, facilitate like a crawfish does, backwards.” In Chapman & Pearson v. State, 257 Ark. 415, 516 S.W. 2d 598 (1974), we found error when the defense attorney, excepting to an evidentiary ruling of the court, said, “Note our exceptions,” and the judge replied, “Yes, sir, and the court will also note your dilatory tactics.”
We also found that the trial court erred in permitting testimony from one of the investigating officers that appellant offered to make a statement about the murder but changed his mind after talking with his lawyer. The officer testified that appellant, after several weeks in jail, stated “I’ll give you a statement 20 pages long in reference to this murder.” Although the appellant did not give a statement concerning the murder, the implication to the jury was clearly that appellant wanted to confess. The implication is so harmful that any probative value the evidence could have is substantially outweighed by the prejudicial effect. Rule 403, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). The prejudice was not diminished by permitting appellant to explain the “statement” away when he testified in his defense. The damage had been done.
The trial court also erred by permitting the state to question appellant on cross-examination about instances of misconduct which were not probative of his veracity. Specifically, the prosecutor asked appellant if he had ever broken out a window of the car of Mr. Knezevich, a witness who testified during the trial on behalf of appellant, and whether he had ever struck or attempted to strike Mr. Knezevich with a crowbar. The prosecutor further asked appellant whether he had been guilty of damaging the apartment of two friends and had to be restrained by deputy sheriffs. The trial court overruled the defense counsel’s objections to the questions as appellant admitted breaking the windows. In Gustafson v. State, 267 Ark. 278, 590 S.W. 2d 853 (1979), this court enumerated the conditions under which questions of prior misconduct would be allowed for impeachment purposes under Rule 608(b), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979): (1) the questions must have been asked in good faith (2) the probative value of the conduct must outweigh any prejudicial effect, (3) the misconduct must relate to truthfulness or untruthfulness. Questions regarding appellant’s violent nature and destruction of property are wholly unrelated to his propensity for honesty and, therefore, improper.
We find no merit in appellant’s contention that the court erred in allowing the photographs of the victim to be introduced. The admissibility of photographs is a matter largely within the discretion of the trial court. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979). Photographs are useful in assisting the jury to better understand the testimony and may only be excluded if their probative value is substantially outweighed by their prejudicial effect. Gruzen v. State, supra; Rule 403, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). Here, the photographs revealed the nature and extent of the victim’s wounds and the savagery of the attack. Since the murder was not witnessed and the murder weapon was in question, the photographs were relevant to establishing the rubber mallet, allegedly owned by appellant, as the murder weapon. We have held that the ghastly character alone of a photograph which depicts the wounds inflicted upon a body does not necessarily justify excluding it. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973). No error has been shown.
We find appellant’s challenges to the court’s jury instructions to be insubstantial and discern no particular value in discussing them at length.
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Richard B. Adkisson, Chief Justice.
This appeal is from a judgment denying relief under Rule 37, Ark. Rules of Crim. Proc., on the ground that the petitioner was not in custody at the time the petition was filed.
In a jury trial on April 26, 1978, appellant, Orval Burkhart, was convicted of first degree assault and his punishment was fixed at $375.00, from which there was no appeal.
The “Scope of the Remedy” for proceedings under Rule 37 is confined to “a prisoner, in custody under sentence of a circuit court ...” The petitioner in this case was not in custody at the time of filing his petition and, therefore, was entitled to no relief. See Hartsell v. State, 254 Ark. 687, 495 S.W. 2d 523 (1973).
Rule 37 is not a substitute for appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973).
Affirmed. | [
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James H. Pilkinton, Judge.
The original opinion in this case, dated November 12, 1980, is withdrawn, and is replaced by this substitute opinion.
This is a workers’ compensation case. Claimant suffered a work related injury which his treating physician found to constitute 10% impairment to the body as a whole. The Commission, based on a wage loss consideration as well as the medical evaluation, awarded claimant 35% permanent partial disability. This opinion was entered on March 10, 1978, and became final thirty days later as the employer took no further appeal.
After the decision became final, and payment had been made for the disability set by the Commission, claimant requested that the employer pay for a program of vocational rehabilitation. This request was refused as not being timely made. At a later hearing on the vocational rehabilitation request, the administrative law judge held that the request was timely made, and the program requested was reasonable as related to the injury. The requested program was thus approved. The employer appealed to the Commission which affirmed the administrative law judge in a split decision. The decision of the Arkansas Workers’ Compensation Commission is now brought to this court on appeal.
I
Appellant first argues that the Commission erred in holding that the request for vocational rehabilitation was timely filed. We agree. This claim for benefits is based upon Ark. Stat. Ann. § 81-1310(f), as it existed on August 22, 1974, the date of claimant’s injury. Under the mandatory requirement of the act, a program of rehabilitation had to be filed with the Commission within sixty (60) days from the final determination of permanent disability benefits. That was not done in this case, and appellant must be sustained in its contention that the request was not timely filed. The award of permanent disability was first made on February 11, 1977, and affirmed by the full Commission on March 10, 1978. There was no “filing” with the Commission of any “program” of rehab until the rehab hearing held November 16, 1978. The 60-day period provided in the “old” act had long since expired by that time. Under either act, “old” (60 days after final award), or “new” (prior to determination), the claimant was barred.
II
Appellee claims that appellant waived the right to object by not pointing out below that claimant’s efforts to reserve the question of vocational rehabilitation for a later determination was improper. We cannot agree. The statute is clear on this matter. The claimant, carrying the burden of proof and as the moving party, pushed his claim to a final determination of his permanent disability benefits without requesting vocational rehabilitation training within 60 days thereafter as required by the act. It was the omission of the claimant himself, not of the employer, which foreclosed the right.
Ill
Appellant also contends that the program requested was not reasonable in relation to the disability sustained by the employee. We need not reach that question as the case must be reversed and dismissed on point one.
Reversed and dismissed.
Hays, J., dissents. | [
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Darrell Hickman, Justice.
This is an appeal from the Chancery Court of Craighead County and involves the issue of usury. The case presents no unusual problems because a routine FHA loan is involved. The chancellor found that all of the loan closing charges were legitimate and that the interest charged did not exceed 10%. We agree with this judgment and affirm the decree.
Gary Johnson purchased a house in 1974 from George and Marie Baldwin. Originally the parties agreed that the sale price would be $43,500.00. For some reason, apparently because Johnson could not get a conventional loan, a new offer and acceptance was signed reflecting a sales price of $40,000.00. It was agreed that the sale would be secured by an FHA mortgage. Boyle Mortgage Company made a $35,-500.00 loan to Johnson, and the Baldwins, who were the sellers, paid a 7% discount to Boyle Mortgage Company. Boyle later sold the mortgage to Federal National Mortgage Association, the appellee. Johnson’s main argument is that the 7% discount, which amounted to over $2,000.00, made his 8-%% loan usurious. In addition, he alleges that virtually all the charges made by Boyle should have been considered interest, increasing the already usurious interest charge.
In no way is this situation similar to that in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W. 2d 973 (1952), where we issued a caveat regarding discounts. In this case the sellers did not increase the sales price to accommodate the discount points; it was purely an arms-length transaction.
Furthermore, the sellers paid the discount points. The additional amount was, therefore, not interest.
There was no evidence at all that any of the other charges made by Boyle Mortgage Company, which the chancellor found legitimate, could be considered a cloak for usury. The fees included charges for photographs, appraisals, title insurance, credit reports, abstract and attorney fees. In every instance the evidence was that the money charged for these services was paid to a third party and was legitimate.
Boyle Mortgage Company did collect interest that was due on the note before the first payment would be due, which is a standard practice. Also, Boyle Mortgage Company did collect a one percent origination fee. The court considered both charges interest but this did not affect the legality of the loan. The burden of proof is upon the one asserting the defense of usury and he must prove it by clear and convincing evidence. Moore, d/b/a Pulpwood Suppliers, Inc. v. Owens, 268 Ark. 324, 597 S.W. 2d 65 (1980). Not only did Johnson fail to prove usury, but the evidence is overwhelmingly to the contrary.
Affirmed.
George Rose Smith, J., concurring.
Purtle, J., not participating. | [
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George Rose Smith, Justice.
This action was brought by the appellant, Nancy Oliver, to recover damages for the wrongful death of Donald L. Phillips, who was then the appellant’s husband. The defendant Bluegrass is a financial holding company headquartered in New York and involved in acquiring leases on coal property and subleasing or further leasing the rights it has acquired. Phillips was accidently killed while working in a coal mine in Johnson County, a mine in which Bluegrass had an interest as assignee of the original coal mining lease. The trial court entered a summary judgment for Bluegrass, finding that there is no issue of fact to support the plaintiff’s asserted cause of action against Bluegrass. We agree with the trial court’s conclusion.
In 1978 the owner of the land executed a coal mining lease to Fidelity Coal Company, which was required by the lease to mine the coal and pay royalties to the owner. The lessee was also required to comply with federal and state laws providing for the safety of employees working in the mine. Fidelity assigned the lease to Bluegrass. Bluegrass subleased the property to a limited partnership, which in turn entered into a mining agreement with Hays Chapel Coal Corporation, a wholly owned subsidiary of Bluegrass. Under the mining agreement Hays Chapel was an independent contractor with complete authority and responsibility for operating the mine, in return for a half interest in the coal produced. The agreement required Hays Chapel to comply with applicable federal and state laws.
Hays Chapel carried workers’ compensation insurance on its employees and for that reason was of course immune from tort liability for any negligence on its part. We agree with the appellant’s contention that Bluegrass, even though it was Hays Chapel’s parent corporation, might nevertheless be liable for independent negligence on its own part that contributed to Phillips’s accidental death. A subsidiary s immunity does not necessarily extend to the parent company.
The question, then, is whether there is any substantial evidence to show independent negligence on Bluegrass’s part. It is undisputed that Bluegrass, a financial holding company in New York, took no active part in the operation of the coal mine. The argument, however, is that Bluegrass, as the assignee of the lessor’s interest, was responsible for initiating safety programs and for correcting equipment defects that allowed a coal car to break loose and roll down an incline, striking and killing Phillips.
The flaw in this argument is that no affirmative action by Bluegrass is shown. Whatever liability it may have arises from a contract, from its position as the assignee of the coal lease. Certainly tort liability may originate in a contractual duty, but it must come from affirmative action (misfeasance) rather than from passive inaction (nonfeasance). As we said in Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W.2d 908 (1978):
Prosser has pointed out that án action in tort cannot ordinarily be based upon a breach of contract which amounts to mere nonfeasance, which means not doing the thing at all, as distinguished from misfeasance, which means doing it improperly. ‘‘Much scorn has been poured on the distinction, but it does draw a valid line between the complete non-performance of a promise, which in the ordinary case is a breach of contract only, and a defective performance, which may also be a matter of tort.” Torts, § 92(4thed., 1971). We recently applied that very distinction, citing Prosser, in Morrow v. First Nat. Bank of Hot Springs, 261 Ark. 568, 550 S.W. 2d 429 (1977).
There is no proof that any employee of Bluegrass was ever in Arkansas, much less that one participated in the operation of the coal mine in Johnson County. There was an assertion that Bluegrass supplied defective equipment, but the only evidence is that it owned none of the equipment in the mine. There is simply no proof of active negligence in Bluegrass.
The appellant’s remaining arguments may be quickly answered. We find no evidence that Bluegrass was engaged in a joint venture with its subsidiary, but even if that were so, Bluegrass would then have been a joint employer of Phillips and hence immune under the. workers’ compensation law. Nor is there any proof to support the novel suggestion that the reopening of a coal mine is such an ultrahazardous activity that Bluegrass should be subjected to liability without fault.
December 17, 1984
681 S.W.2d 350
Affirmed. | [
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Webb Hubbell, Chief Justice.
This is an appeal from a decree of the Pulaski County Chancery Court ordering appellants, Mary Ellen Jackson, Jerry Jewell, and Ometa Jewell to specifically perform a contract to sell real property. Jerry Jewell borrowed money from Barney Mays and deeded property to Dorothy Mays as security for the loan. Dr. Jewell and Barney Mays had an understanding that the property would be reconveyed upon repayment of the loan. Barney Mays, who was president of Mays Realty, listed the property for sale. One of his agents found a buyer, appellee, who made an offer to purchase the property on January 9, 1979. During that same month, Dr. Jewell repaid the loan, and at Dr. Jewell’s request, Mrs. Mays deeded the property to Dr. Jewell’s secretary, Mary Ellen Jackson. Appellee made another offer; the offer and acceptance was signed; and $200.00 earnest money was accepted by the agent of Mays Realty. On April 23, 1981, appellee sued for specific performance of this land sale contract. The chancellor ruled that the contract was valid and that appellee was entitled toa decree of specific performance. Appellants urge error in the chancellor’s finding that Mary Ellen Jackson had authority to sign the land sale contract and error in actions by the chancellor at trial. We affirm.
The chancellor made the following findings of fact: 1) Mary Ellen Jackson held record title to the real property; 2) Mary Ellen Jackson entered into the written land sale contract with appellee as buyer; 3) Mary Ellen Jackson signed the contract at the direction of Jerry Jewell and as agent of Jerry Jewell and Ometa Jewell, and her signature on the contract is not a forgery. Findings of fact by the chancellor shall not be set aside unless clearly erroneous or clearly against the preponderance of the evidence. ARCP Rule 52. Ivey v. Bray, 278 Ark. 475, 647 S.W.2d 430 (1983). Since the question of preponderance turns heavily on the credibility of the witnesses, we defer to the superior position of the chancellor in this regard. Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W.2d 465 (1979). Mary Ellen Jackson held record title to the property. Her signature appeared on a valid contract for the sale of land for which consideration in the amount of $200.00 was paid. One of the partners of Farm and Commercial Property testified that although he had numerous conversations with Dr. Jewell about the price of the property, “there was never anything said that it [the signature] was a forgery or even anything improper about it.” An agent for Mays Realty testified that Dr. Jewell set up an appointment with him to meet with Mary Ellen Jackson for her to sign the offer and acceptance. He further testified that he took the offer to her apartment where, stating she was authorized to sign by Dr. Jewell, she signed it in his presence. We conclude the chancellor did not err in finding that Mary Ellen Jackson, as Dr. Jewell’s agent, had authority to sign the offer and acceptance nor in awarding appellee specific performance of the land sale contract.
Appellants also contend the chancellor erred in prematurely ruling that Mary Ellen Jackson’s signature was not a forgery and in calling a witness to the stand after he had been excused. In the direct examination of Jerry Jewell concerning Mary Ellen Jackson’s signature, he stated “I think it’s a forgery.” The chancellor then stated “The Court made a Ruling on that, or if it didn’t, the Court is going to make a Ruling after taking extensive evidence that that is not a forgery. That that is Ms. Jackson’s signature, and let’s move on from that question.” Although the trial court may have erred in refusing to accept appellants’ evidence that the signature on the offer and acceptance was a forgery, appellants’ counsel did not attempt to proffer any evidence. An exclusion of evidence cannot be reviewed in the absence of a proffer showing what the evidence would have been. Malcolm v. Thompson, 280 Ark. 275, 658 S.W.2d 357 (1983).
At the beginning of the proceedings, appellants’ counsel had requested “the rule” to be invoked, and the chancellor so ordered. During the questioning of appellee’s second witness, the first witness, who had been excused, re-entered the courtroom. The chancellor recognized his presence, asked him a question, and allowed appellant’s counsel to question him. Although the chancellor’s action may have constituted error, counsel for appellee failed to object. The absence of a timely objection precludes a consideration of the matter on appeal. Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983).
Affirmed.
Hays, J., not participating. | [
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Steele Hays, Justice.
Edward Lee Bailey was charged by felony information with battery in the first degree, a class B felony. In a preliminary hearing before the Little Rock Municipal Court to establish probable cause, the state called two witnesses to show that Bailey had become angry when Jessie Lee Henson was unable to pay for two beers anda hot dog in Bailey’s club. Henson said he asked his companion, Don Stewart, to go outside to the car and bring in Henson’s billfold, but Bailey grabbed Stewart, drew a pistol and, according to Stewart and Henson, shot Henson in the throat, leaving him severly handicapped. No one testified for the defense.
Arguing that the shooting could have been accidental, Bailey asked that the charge be lowered to third degree battery, a misdemeanor. The municipal judge reduced the charge as requested, fining Bailey $850 and suspending a one year jail sentence.
The state refiled the original felony charges in Circuit court where Bailey was convicted by a jury verdict and a sentence of eight years in the Department of Correction was imposed. On appeal, Bailey argues that Article 2, Section 8, of the Constitution of Arkansas, providing that no one shall be twice put in jeopardy of life or liberty, was violated by the trial in Circuit Court, after he had been tried and convicted in the Little Rock Municipal Court for the same offense.
The answer to appellant’s argument lies in the fact that jeopardy did not attach by reason of the preliminary hearing before the Little Rock Municipal Court. Felonies are heard by municipal courts only to determine whether probable cause exists and municipal courts may either bind the accused over to the circuit court or, if the proof is lacking, release the accused from custody. See Ark. Stat. Ann. § 22-709 (Repl. 1962), §§ 43-603, 618 and 619 (Repl. 1977). In the latter event, the state may pursue the charge directly in circuit court. A municipal court has no jurisdiction to render a final judgment on a felony information, and it may not reduce a felony to a misdemeanor. To do so, would be rendering a final judgment. McArthur v. Circuit Court of Pulaski County, 253 Ark. 501, 488 S.W.2d 5 (1972).
Appellant cites us to Decker v. State, 251 Ark. 28, 471 S.W.2d 343 (1971), where we held that double jeopardy did not attach. Decker had escaped from an arresting police officer by drawing a concealed weapon; he took the officer’s service revolver and fled, later to be recaptured. Decker pleaded guilty in municipal court to the crime of drawing a weapon on a law officer, a misdemeanor. Afterwards he was charged with robbing the officer of his revolver, a felony. We rejected his double jeopardy argument because two separate crimes had been committed. Bailey now submits by analogy we should find double jeopardy because a single crime is involved in this case as opposed to the two crimes in Decker. The argument overlooks the fact that, unlike the Decker case, the state did not initially charge Bailey with a misdemeanor and proceed to trial in municipal court. Had it done so, double jeopardy would prevenía second trial where separate crimes are not involved.
The judgment is affirmed.
Purtle, J., dissents.
Holt, C.J., and Newbern, J., not participating. | [
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Steele Hays, Justice.
Appellee, Corine Crawley, originated this action against appellant, AAA T.V. & Stereo Rentals, Inc., for invasion of privacy. Mrs. Crawley had rented a television set from AAA in March, 1982 for $15.00 per week. In September, while she was one week behind in her payments, her home was broken into and the set removed. AAA does not dispute the proof that two of its employees forced open the door of her residence while she was at work. A number of other repossessions had been effected in the same manner.
The jury awarded Mrs. Crawley $4,590 in compensatory damages and $15,000 in punitive damages. AAA has appealed, alleging four errors by the trial court. We affirm the judgment.
AAA argues it was error to allow a judgment of more than $90 for appellee’s compensatory damages. Mrs. Crawley testified she spent $90 having her front door repaired. Since this was the only actual expense she incurred, appellant submits there was no evidence to support the jury verdict of $4,590 awarded her. The answer to the argument lies in the fact the court also instructed the jury it could consider any outrage, shame, humiliation, ridicule and mental anguish suffered by Mrs. Crawley. Appellant made no objection to the instruction and offered no proposed instruction of its own. See ARCP Rule 51.
Appellant urges mental suffering would not support more than nominal damages, but we disagree. Mrs. Crawley testified she was frightened for her children when she was called off the assembly line to be told her home had been broken into. She called the police and hurried home to find the front door and facing badly damaged. She said she was upset and embarrassed that everyone at hev job knew about the incident! The court’s instruction permitted the jury to weigh the feelings which might be expected to follow when one’s home is invaded by outsiders who have no lawful right to be there. Under our cases the verdict will ordinarily not be disturbed on appeal unless clearly the result of passion or prejudice, or so great as to shock the conscience of the court. Hambry v. Haskins, 275 Ark. 585, 630 S.W.2d 37 (1982); Sterling Stores Co. v. Martin, 283 Ark. 1041, 386 S.W.2d 711 (1965); Missouri Pacific Railroad Co. v. Simon, 199 Ark. 289, 135 S.W.2d 336 (1940). This jury may well have felt a degree of indignation over the flagrant intrusion suffered by Mrs. Crawley at the hands of AAA’s employees, but the amount is not so great as to indicate an impassioned verdict. Accordingly the verdict will stand. See Price v. Watkins, 283 Ark. 502, 6785.W.2d 762 (1984).
Next, AAA insists the trial judge gave an incorrect instruction on punitive damages. It contends the jury should have been instructed in accordance with AMI 2217, the prescribed instruction on punitive damages, whereas the court gave its own punitive damage instruction. The argument overlooks our holding in Ford Motor Co., v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), where we said AMI 2217 was drafted for use in negligence cases and should not be given where an intentional tort is involved. See Tandy Corporation, et al v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). AAA points out the trial judge did not comply with our Per Curiam order of April 19, 1965, by failing to state his reason for modifying an AMI instruction. But we will not reverse for that omission when the reason is obvious and the modification is in accordance with our decisions. AAA has not challenged the substance of the instruction as given and we have not dealt with that question.
The two remaining points deal with the instruction on invasion of privacy and may be answered together. AAA contends the instruction was wrong because (1) it told the jurors an invasion of privacy entitled the plaintiff to substantial damages, and (2) it failed to define the invasion as an unreasonable and substantial intrusion upon the seclusion of another, in accordance with CBM of Central Arkansas v. Bemel, 274 Ark. 223, 623 S.W.2d 518 (1981) and Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979).
These arguments must fail because the only objection to the instruction was the broad assertion that there was “no legal authority” for such instruction. ARCP 51 provides:
A mere general objection shall not be sufficient to obtain appellate review of the trial court’s action relating to instructions to the jury except as to an instruction directing a verdict or the court’s action in declining to do so.
An objection which merely complains that a jury instruction “is an incorrect declaration of the law,” is a general objection, preserving no point for review. CBM of Central Arkansas, Inc. v. Bemel, supra; Chandler v. Kirkpatrick, 270 Ark. 74, 603 S.W.2d 406 (1980); Capital Sheet Co. v. Foster ir Creighton Co., 264 Ark. 683, 574 S.W.2d 256(1978).
Affirmed. | [
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William A. Eckert, Special Chief Justice.
Prior to March 8, 1980, appellee Worthen Bank made six unsecured installment loans to appellant Ward, the loans being in connection with appellant’s Datsun dealership. In November, 1980, appellant sold the dealership to Bart Roach Datsun, Inc., the sales agreement providing that the purchaser assume liability for the balance owed on the promissory notes to appellee and a note to Union Bank. Appellee bank provided separate financing to Roach and was aware of the loan assumption agreement, but did not release appellant from liability.
Appellee mailed installment notices to an address furnished by Roach, who made payments until July, 1982, when he encountered financial difficulties. Roach sold the agency for considerations including royalty of $75 on each Datsun/Nissan unit the purchaser sold for twenty years. This royalty was assigned by Roach to appellee bank and filed as a financing statement with the Secretary of State on August 6, 1982.
All notes assumed by Roach became deliquent in August, 1982. Union Bank demanded and received payment of its note from appellant in September, 1982.
Appellee had made secured loans to Roach, which, on default, were foreclosed. Appellant, having reacquired the right to possession of the premises leased to Roach, denied appellee access to conduct foreclosure sale until an agreement was made. Consideration for using the premises required the appellee convey to appellant certain furnishings and fixtures on the premises. The bank was given right to use the premises through September, 1982.
The agreement contains mutual releases of both parties, and provides:
“. . . The Wards agree that they will not constitute or institute involuntary bankruptcy proceedings against Bart Roach or Bart Roach Datsun, Inc., nor will they encourage, instigate or assist anyone else in such an endeavor.”
Appellant was aware of the $75 royalty assignment when he made the rental agreement.
On October 19, 1982, appellee’s officers discussed the several loans in default, including recognition that the royalty assignment held from Roach could be set aside as a preference should Roach become bankrupt within ninety days from its execution. A decision was made to be “mum” with reference to the loans.
On October 22, 1982, appellee’s officer, by letter to Roach, wrote:
“. . . We have your copy of the letter from Webb Hubbell concerning your obligation to Seth Ward which amounts to some $25,000. It is our plan, and I recommend that it be your plan, that we do nothing about this, just don’t pay anything and delay talking about it. I am going to send a copy of this to our attorney to ask him to see where we stand in his mind legally and if there is something beneficial discovered, I will tell you . . .
# # *
We discussed the notes that are due us by Seth Ward, which amount to some $25,000 that we understand were assumed by you, but we were not informed and we did not accept any sort of a release of Seth. It is our plan to hold still on this for a while and work on Seth on getting those notes current come December time . . .
Appellee bank made demand on appellant for payment of all notes on December 17, 1982. This action followed, appellant counterclaimed for utility costs incurred by appellee under the rental agreement.
The Trial Court, sitting as a jury, rendered judgment for Appellee on its notes and on the counterclaim. Appellant was given judgment in his third party claim against Roach.
Appeal comes under Supreme Court Rule 29(1) (c).
Appellant argues that appellee’s conduct, specifically its intentional deferment in making demand on appellant while perfecting its rights in the royalty assignment, creates an estoppel.
Absent a duty otherwise imposed, the holder of a note is under no obligation to notify the maker of any deliquency. The printed installment notes each contain the following provision:
“RIGHTS PRESERVED. You can delay or omit enforcing any of your rights at any time under this note without losing them in the future.”
For appellant to establish estoppel, he has the burden, among other things, of proving:
Appellee had a duty to notify appellant.
Appellee failed to notify appellant.
Appellee relied upon such failure to receive notice in good faith.
Brixey v. Union Oil Company, 283 F. Supp. 353 (D.C. Ark. 1968).
Appellant contends he would have sued both Roach and appellee had he known of the default in note payments and of the royalty assignment; however, appellant had stated on September 10, 1982, that he would be the last person to put Roach in bankruptcy, that he would take a judgment and wait for Roach to inherit money. Roach was substantially indebted to appellant. It was to appellant’s interest that Roach not be discharged in bankruptcy.
Appellee’s decision to delay collection procedure against appellants was made subsequent to the date of the rental agreement. That agreement, in any event, did not preclude appellant from suing Roach; it provided that appellant not have Roach declared bankrupt.
Appellant was not in a confidential relationship with appellee. He had the right to determine the current status of his note obligations both from Roach and from appellee. He was actively engaged in matters related to Roach’s financial condition; he was represented by eminent counsel.
While appellee’s decisions to be “mum”, to withhold making demand on appellants, and advising Roach to withhold payment of his debts, is deficient in candor, such conduct is not actionable as a matter of law.
Failure to speak is the equivalent of fraudulent concealment only in circumstances involving a confidential relationship when a duty to speak rises where one party knows another is relying on misinformation to his detriment.
There are times when the law imposes a duty to speak rather than remain silent, when a failure to speak is the equivalent of fraudulent concealment. Berkeley Pump Co. v. Reed-Joseph Land Co. 279 Ark. 384, 653 S.W.2d 128 (1983):
“. . . But this rule is based on special circumstances not evident here, such as a confidential relationship, so that a duty to speak arises where one party knows another is relying on misinformation to his detriment. The general rule is to the contrary, and ordinarily, absent affirmative fraud, a party, in order to hold another liable in fraud . . . must seek out the information he desires and may not omit inquiry and examination and then complain that the other did not volunteer information. (See 37 Corpur Juris Secundum, Fraud, § 15, p. 242 and Smith, “Law of Fraud”, § 8 p. 18.) We find nothing in the abstract suggesting circumstances from which that rule of law might be found applicable. If fraud exists, whether affirmatively or by concealment, it ought not to be difficult to isolate and cite it ... ”
The party asserting estoppel must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference, and nothing can be supplied by intendment. Martin, Inc. v. Indiana Refrigeration Lines, Inc., 262 Ark. 671, 560 S.W.2d 228.
We do not find estoppel.
Appellant additionally contends that there was a novation because the bank accpeted note payments from Roach and sent notices of installments due to Roach’s address.
In order for there to be a novation it is necessary to show an intent on the part of the creditor to release an old debtor and substitute therefor a new debtor. Simmons National Bank v. Dalton, 232 Ark. 359, 337 S.W.2d 667. There must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement.
The clear and definite intention does not have to be express but may be implied:
“ ‘It is not essential that the assent to and acceptance of the terms of the novation be shown by express words to that effect, but the same may be implied from the facts and circumstances attending the transaction, and in the conduct of the parties thereafter. Such consent is not to be implied merely from the performance of the contract by the substitute, for that might well consist with the continued liability of the original party, the substitute acting for the purpose in the capacity of agent for the original obligor. Elkins v. Henry Vogt Mch. Co., 125 Ark. 6, 187 S.W. 663.
The appellee did not release appellant on the notes nor were new notes substituted. Appellant acknowledged his intention to remain personally liable after the debt had been assumed. Ward testified that if Worthen had notified him of the default he would have paid the notes.
There is not sufficient evidence of a novation.
Appellant also argues that Ark. Stat. Ann. § 85-3-606(1) discharges him from liability during the time collection effort was suspended on the notes. The pertinent portions of the statute provide:
“Impairment of recourse or of collateral. —(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
(a) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of resourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary; ...”
This statute applies where there is an enforceable contract not to sue a liable party. Glover v. National Bank of Commerce of Pine Bluff, 258 Ark. 771, 529 S.W.2d 333 (1975).
There is no enforceable promise by appellee not to sue Roach. Further, Roach was not the maker of the note. The statute is not applicable here.
Appellant counterclaimed for utilities sued by the bank during the period of the rental agreement.
Generally, the consumer of public utilities services is liable in contract for the charges for such services. 64 Am. Jur. 2nd 596, “Public Utilities,” § 60. Typically, the tenant will bear such expense. Appellant did not pay the utility charges; the amount and period of usage by the bank is disputed; the utility company is not a party to this action.
The rental agreement provides:
“6. Worthen and the Wards mutually release each other from any and all claims, obligations or rights that they may have against each other arising from the lease of the property at Second and Broadway . . .
From the evidence presented we do not find that the Trial Court’s judgment was clearly erroneous.
Affirmed.
Special Justice Lewis Epley joins in this opinion.
Hubbell, C.J., and Hays, J., not participating.
Purtle, J., dissents. | [
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Per Curiam.
On August 15, 1984, appellants filed a notice of appeal of the trial court’s decision rendered July 20, 1984. A separate designation of the record was filed. The notice did not contain a statement that the transcript, or specific portions thereof, had been ordered. Arkansas Rules of Appellate Procedure Rule 3(e). On October 24, 1984, appellants filed an amended notice of appeal which recited that the complete transcript had been ordered. On November 9, 1984, appellants moved for an order extending the time to file their appeal. The motion stated that the transcript could not be prepared within the requisite 90 day period to docket the appeal with this court. The motion requested until February 15, 1985 to file the record and transcript.
On November 9,1984, Sherry Freeland, the chancellor’s court reporter, filed an affidavit which avérred that on November 6,1984 she received a phone call from appellants’ attorneys’ office advising that appellants needed an extension of time to file an appeal, that until that date she had no notice that an appeal had been filed, and that as of November 9, 1984, the reporter’s transcript was not ordered. Also, on November 9, 1984, the chancellor entered an order finding that the reporter’s transcript was not ordered, that both notices of appeal failed to comply with A.R.C.P. Rule 11 and Rules 3 and 6 of the Arkansas Rules of Appellate Procedure, and that the Motion for Extension of time was denied.
On the afternoon of November 9, 1984, appellants filed a second motion for extension of time, in which they recited that contemporaneously with the filing of the second motion they had purchased and received the record from the Ouachita County Clerk and had ordered the transcript from the court reporter and had tendered the amount estimated to be due for its preparation. On November 13, 1984, appellants filed with us a Motion for Rule on the Clerk which simply recites the facts as we have just outlined. Appellees filed a response and brief to appellants’ motion objecting to the granting of the motion and pointing out that until November 6,1984 the court reporter had never been notified that the record had been ordered or even that a notice of appeal had been filed.
We deny the motion for Rule on the Clerk. The appellants had not ordered the transcript by the time they filed their first notice of appeal as required by the Arkansas Rules of Appellate Procedure Rule 3(e). The appellants had not ordered the transcript by October 24, 1984 when they filed their amended notice of appeal and certified that it had been ordered. They only ordered the transcript after the trial court denied their first motion for extension of time. The trial court certainly did not abuse its discretion in denying appellants’ second motion for extension of time.
Appellants’ motion for Rule on the Clerk is denied.
Purtle and Hollingsworth, JJ., dissent. | [
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Robert H. Dudley, Justice.
The appellant, Ernest Maxwell, Jr., was found guilty of the first degree murder of Carol Conn and was sentenced to life imprisonment. We affirm. An earlier conviction for the same offense was reversed by this Court in Maxwell, Jr. v. State, 279 ark. 423, 652 S.W.2d 31 (1983). Jurisdiction of this subsequent appeal of a life sentence is in this Court under Rules 29( 1) (b) and (j).
On the morning of June 25, 1981, the badly battered body of Carol Conn, age 20, clothed in a T-shirt, blue jeans, and tennis shoes, was found near the Plummerville exit from Interstate 40, in Conway County. The clothed body was taken to the state medical examiner for an autopsy. That afternoon the police questioned appellant, age 43, with whom the victim had lived for about four weeks in his home near Atkins, in Pope County. Appellant told the police that he last saw the victim at this home at about five o’clock the preceding evening. He went to sleep then. When he awoke about eight, Carol was gone. He went into Atkins about eleven to ask his brother if he had seen Carol; the next morning he asked about her elsewhere. He told the officers that during the four weeks he and the victim had been living together he had hit her only once, about two weeks earlier with his open hand, but he had never seen any bruises on her.
The state medical examiner, Dr. Malak, performed the autopsy, which at his request was witnessed by Berwin Monroe, an employee of the Crime Laboratory having extensive training and experience in criminal investigation. Dr. Malak testified, with the support of photographs he had taken, that the victim’s body was bruised from head to foot, front and back. Some of the bruises had been inflicted about ten days before her death, others about three days before death, and others still later. The skull had been fractured, but the actual cause of death was a heavy blow to the area of the umbilicus (navel), which burst her intestines and caused her death within not more than ten minutes. Louise Kiburn, who worked at the Sav-A-Sum Market in Atkins, saw appellant and Carol in the store a few days before Carol’s body was found. At that time Carol was horribly bruised and swollen. Appellant told Kiburn that Carol had fallen down. The appellant did not testify at this trial.
For his first assignment of error appellant contends that (a) the trial court erred by not ruling on the prosecutor’s motion in limine before the time of the opening statement and (b) further erred by later granting the motion. The motion, filed immediately prior to trial asked that the appellant, his witnesses and his attorneys be prohibited from referring to the demotion of Berwin Monroe by the State Crime Laboratory Director. The court did not rule on the motion until immediately before Monroe was to take the witness stand. Since the motion was granted, the appellant has not shown any prejudice, or that the trial judge abused his considerable discretion in waiting to rule on the motion. The judge simply allowed the trial to take its natural course to the point where the evidence could be introduced.
Similarly, we find no error in the ruling granting the motion. The only evidence concerning the demotion came from Monroe, who testified that the demotion was due entirely to a personality conflict with the Director of the Crime Laboratory and was not related in any manner to his functions as a criminalist. On the limited evidence in the record we cannot say the trial judge abused his discretion. The demotion, based upon a personality conflict, does not demonstrate a lack of competency, or constitute a showing of bias, or any type of inconsistency or contradiction. In short, it simply does not impeach the credibility of the witness in his capacity to scientifically examine minute criminal evidence. The trial judge commented that any probative value in allowing testimony about the demotion was outweighed by danger of unfair prejudice. See Ark. Stat. Ann. 28-1001, Rule 403, Ark. Unif. Rules of Evid. We note that the judge commented that the appellant would be allowed to inquire into any specific instances of conduct which might cast doubt upon the credibility of Monroe.
Appellant next contends that the trial judge committed error by refusing to grant a mistrial as a result of the closing argument by the prosecuting attorney.
We have not been furnished a transcript of the closing argument because the trial judge did not require the court reporter to make a stenographicrecord of the argument. It is not error if the trial court does not require the court reporter to make a stenographic record of argument when counsel fails to request it. Ark. Stat. Ann. § 22-352 (Repl. 1962); McCain v. State, 132 Ark. 497, 201 S.W. 840 (1918).
The record reflects only the request for a mistrial after the opening of the state’s closing argument. The request for a mistrial was based upon an alleged inferential comment on the failure of the appellant to testify. The trial judge denied the request and stated that the statement was a comment upon the falsity of appellant’s statement to the police. Without a record, we must presume the trial judge was correct. Our presumption is buttressed by the trial court’s comment to the prosecutor just before the rebuttal phase of the state’s argument:
I noticed when Mr. Mobley [appellant’s attorney] indicated that he could put the Defendant on the stand for three weeks, I noticed your eyes somewhat perked up to the extent that you might think you could make reference to him not testifying. I want to head you off before you get anywhere near that.
The appellant contends that the trial court erred by refusing to allow him to ask, on cross-examination, if the sheriff had investigated the possibility that Henry L. Lucas or Otis Edward Toole committed the murder. According to the proffer, one of these men had been arrested in Florida and the other in Texas, and both have committed many murders. However, the proffer did not present any information which would have even remotely linked either man to this crime. The questions were conjectural and speculative. Questions on cross-examination should not be conjectural, speculative or argumentative. Dillard v. State, 260 Ark. 743, 752, 543 S.W.2d 925, 932 (1976).
The appellant next argues that the trial court allowed an expert witness, Berwin Monroe, to invade the province of the jury. Monroe’s testimony was proper. He explained to the jury that the presence of the particles on the bottom of the victim’s feet and on the soles of her tennis shoes showed that she could not have walked out of the house, either barefooted or wearing the tennis shoes nor could she have walked for even a slight distance on grass, concrete or asphalt without disturbing the particles on her feet or on the shoes. The testimony did not tell the jury which result to reach, rather it gave the jury appreciable help in reaching the result. See Gramling v. Jennings, 274 Ark. 346, 348, 625 S.W.2d 463, 464 (1981).
There are no other rulings, adverse to appellant and not raised on appeal, which constitute reversible error. Rule 11 (f). Affirmed. | [
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Steele Hays, Justice.
This case turns on whether there was a sufficient designation in writing to comply with Ark. Stat. Ann. § 67-1838 (Repl. 1980), so that certificates of deposit belonged to the survivor, rather than to the estate of the decedent. The Chancellor found there was no right of survivorship. That finding was clearly erroneous and requires reversal.
The facts are not disputed. In 1979, Guthrie Penn, using $70,000 inherited from his mother, purchased two certificates of deposit from the First National Bank in Blytheville. When the CD’s matured, he left $10,000 at the bank in a joint account with his daughter-in-law Patricia Penn, but because of a more favorable rate of interest at the Blythe-ville Federal Savings and Loan Association, he used $60,000 to purchase two $30,000 CD’s from the savings and loan association. These CD’s he also had issued to Guthrie Penn or Patricia Penn and they both signed a signature card relative to each CD stating that the account was held in joint tenancy with right of survivorship.
When the CD’s matured thereafter Patricia Penn would surrender the old CD’s and new CD’s would be issued to Guthrie Penn or Patricia Penn to replace the matured CD’s. No new signature cards were signed, the existing.signature cards were simply altered with a white substance obliterating the old numbers and dates with new numbers and dates typed in. Guthrie Penn did not come to the savings and loan office on these occasions when the CD’s were surrendered and reissued. The final two CD’s were issued in October, 1982.
On December 10, 1982, Guthrie Penn died. Three days after his death, Patricia Penn surrendered the CD’s and deposited the proceeds in a Memphis bank in her name and that of her husband. Appellees, who are five of Guthrie Penn’s six children, sued Patricia Penn claiming the CD’s belonged to the estate of their father and asking the chancery court to impose a constructive trust upon five/sixths of the proceeds. The Chancellor held that Ark. Stat. Ann. § 67-1838 was not complied with and ordered Patricia Penn to deposit $50,000, plus interest, in the registry of the court. On appeal, we reverse.
Our statute, § 67-1838, provides that savings accounts in savings and loan associations may be opened in the name of two or more persons, and if the person opening such account designates in writing that the account is to be a “joint tenancy” account, or a “joint tenancy with right of survivor-ship” account, or that the account shall be payable to the survivor or survivors of the persons named in such account, then such account and all additions thereto shall be the property of such persons as joint tenants with right of survivorship. The statute also provides that during the lifetime of such persons, the account may be paid to any one of them, if no contrary written designation is given the association.
We can conceive of no reason to hold there was not a sufficient designation in writing in this case. Guthrie Penn unquestionably took the necessary steps to create a joint account with right of survivorship with Patricia Penn. Nor is there any suggestion from the wording of the statute that what was plainly intended in writing should be abrogated simply because when the CD’s were reissued, the same signature cards were used in connection with the new CD’s. A fatal weakness in the appellees’ position is that when Patricia Penn surrendered the matured CD’s and had them reissued to herself and Guthrie Penn she was legally free to have them issued to herself alone, because under the wording of the statute either she or Guthrie Penn was entitled to claim the proceeds, since no “contrary written designation” was given to the assocation. Thus, under the wording of the statute, while Guthrie Penn and Patricia Penn were still living, either of them could hve reissued the CD’s in the same manner, or in their joint names, or even cashed them outright.
Appellees submit the money used to purchase these CD’s belonged to Guthrie Penn and that is not disputed. They then cite us to language in Snow v. Martensen, 257 Ark. 937, 522 S.W.2d 371 (1975), where we said § 67-1838 is not to be interpreted as “closing and locking the door behind a joint account with right of survivorship when once the money is deposited in two names . . . regardless of whose money is involved and who makes the deposit.” But that language must be read in the context of that case, which is in marked contrast to the case before us. In Snow v. Martensen, the deceased depositor never signed a signature card creating a joint account, nor gave any designation in writing (or otherwise) that she intended the deposit to be in joint tenancy with right of survivorship. The decedent died five days after the account was opened and there was no proof she even knew it was in a joint tenancy. The account was created in the first instance as a joint tenancy account simply upon the instructions of the individual claiming the funds by right of survivorship, Mrs. Martensen, and we pointed out that to apply joint tenancy to those facts “would create a situation wide open for fraud.” we adhere to that view.
By analogy, appellees argue that Guthrie Penn signed nothing when the CD’s were reissued and new numbers, new interest rates, and new maturity dates were assigned. But the significant fact is that Guthrie Penn clearly had designated in writing the intention to create a joint tenancy with Patricia Penn when the CD’s were first purchased and twice again when they matured, whereas in Snow v. Martensen, there was no designation in writing that Mrs. Box, the depositor, intended a joint account with Mrs. Martensen, to the exclusion of other heirs. On as many as four separate occasions Guthrie Penn demonstrated in writing his intention to create a joint tenancy with Patricia Penn.
Appellees also cite McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980), where we affirmed the trial court’s holding that money deposited in a Paragould savings and loan association belonged to the estate of the depositor, rather than to a niece who claimed the acount by survivor-ship. Again, the.important distinction between that case and this one is there was no written indication the depositor intended to create a joint tenancy with right of survivorship. The language of McDonald v. Treat, supra, both as to the purpose of our statutes (§ 67-552 and § 67-1838) and the need for certainty in this area of the law, is appropriate:
At the outset we stress the desirability of certainty with regard to payable-on-death bank accounts and certificates of deposit. Such a disposition of money is similar to a will in that it may be changed by the property owner during his lifetime and does not take effect until his death. The law carefully safeguards the integrity of wills, but under the earlier statutes there was a regrettable degree of laxity with respect to payable-on-death accounts. We summarized the situation in Cook v. Bevill, supra, in construing new statutes applicable to bank deposits:
It is a mild statement to say that Act 260 of 1937 created a maze of problems in the handling of joint bank deposits and certificates. Much litigation over those deposits has reached this Court. Many decisions had to be made by ascertaining the intent of the depositor from parol evidence “after death had sealed the lips of the person principally concerned.” Ratliff v. Ratliff, Adm’x., 237 Ark. 191, 372 S.W.2d 216 (1963). Act 260 had minimal written requirements which fell far short of being sufficient. In that situation the Legislature and the banking interests turned to the comprehensive act under which the building and loan associations had been operating for years.
Thus what the new statutes did was to correct the earlier state of uncertainty by requiring that persons who resort to payable-on-death accounts or certificates designate in writing, over their signatures, just who is to receive the money at their death.
We conclude that Guthrie Penn’s written designation of a joint tenancy with Patricia Penn was clear, and under § 67-1838 either he or Patricia Penn was entitled to the proceeds of these certificates of deposit during their lifetime, or by survivorship on the death of the other.
Accordingly, the decree is reversed. | [
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Eugene T. Kelley, Special Justice.
The appellant, Ralph Carter, appeals from a jury defendant’s verdict in favor of the appellee, Missouri Pacific Railroad. On October 22, 1982, at about 8:15 a.m., appellant was driving his pickup truck east on U. S. Highway 64 near Wynne, Arkansas. Mr. Carter’s pickup truck was struck by a northbound train as he attempted to cross the tracks on a clear morning. At the time of the accident, the crossing’s flashing light signal device was against a backdrop of a brilliant rising sun. Mr. Garter’s view of the tracks was obstructed by a large building to the south, the direction from which the train was approaching.
The appellant questions three rulings on the admissibility of evidence made by the trial court. Appellee contends that the three evidentiary rulings were within the sound discretion of the trial judge.
The first issue raised by appellant is that the trial judge erred in admitting into evidence a film produced by the appellee that showed the crossing signals against a backdrop of dark clouds. The court in admitting this film into evidence instructed the jury that the film should not be considered as a re-creation film but only as the site appeared on the morning the film was taken. The film was made on a cloudy day with the sun behind a dark cloud and the sun could not be seen. This court recently considered another case which involved the introduction into evidence of a film which was characterized as a re-creation film that was found to be misleading and prejudicial. Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983)..
Both the appellant and the appellee cite Carr in support of their respective contentions. The appellee contends that Carr establishes a strict standard for only those films which attempt a re-creation of the original happening. In a recreation film the essential elements must be substantially similar to those existing at the time of the accident. The appellee further urges a more lenient standard for those films where no re-creation is attempted. In support of admitting this film, three (3) cases have been cited. Rayner v. Stauffer Chemical Company, 120 Ariz. App. 328, 585 P.2d 1240 (1978); Wagner v. International Harvester Co., 611 F.2d 224 (8th Cir. 1979), and Collins v. B. F. Goodrich Co., 558 F.2d 908 (8th Cir. 1977). These cases deal with films of experimental evidence which tends to show general traits or characteristics of a scientific nature. The appellant relies primarily on Carr to exclude this motion picture as a recreation film.
A review of the facts surrounding the making of the film is in order. Mr. John Orville Thomas, a professional photographer, filmed the crossing at Wynne on September 26, 1983, at approximately 8:17 in the morning. A camera was placed inside a truck and driven down the highway toward the crossing in an easterly direction. The camera started filming approximately 1,500 feet west of the crossing and went straight to the crossing. The vehicle was driven at about 35 miles per hour. The lights at the crossing were activated by the railroad company. Other pictures were taken on the side of the road at various distances. On cross-examination the photographer admitted that the sun was behind a dark hanging cloud and could not be seen. In the film the crossing lights appeared bright against the dark background.
The court is persuaded that this film is an attempted re-creation of. the accident scene by the appellee railroad company. The undisputed testimony indicates that the film was taken at approximately the same time of day of the accident; that a camera was placed in a truck and driven at the rate of 35 miles per hour through the crossing; and that the appellee arranged to activate the flashing crossing lights. The appellee contends that the film was useful and necessary and within the sound discretion of the trial judge in order to help the jury to understand the general characteristics of the intersection. The record indicates that there were numerous diagrams, charts, and testimony all of which were available to the jury for its consideration. The most important issue before the jury was why the appellant failed to see the lights at the crossing. This issue was central to the appellant’s claim of negligence. We find that the film depicted the lights in operation under circumstances which were substantially dissimilar to those testified to by the eyewitnesses. The unfair prejudice that arises as a result of the jury seeing the bright crossing lights in operation far outweighs the usefulness to the jury to better understand the scene. This court finds that the film did not fairly and accurately reflect the scene at the time of the accident and should not have been admitted into evidence. We have stated in Carr v. Suzuki:
It is well settled that when a test or experiment is an attempt to reenact the original happening, the essential elements of the experiement must be substantially similar to those existing at the time of the accident. Hubbard v. McDonough Power Equipment, 83 Ill. App. 3d 272, 38 Ill. Dec. 887, 404 N.E.2d 311 (1980); Payne v. M. Greenberg Construction, 130 Ariz. 338, 636 P.2d 116 (1981). We applied this same rule in Dritt v. Morris, 235 Ark. 40, 357 S.W.2d 13 (1962) where we held that although it was not necessary that conditions of an experiment be identical to those existing at the time of the occurrence, there must be a substantial similarity, and the variation must not be likely to confuse and mislead the jury.”
Other cases have held that if a film is misleading, it should be excluded. See Wagner v. International Harvester, 611 F.2d 224, 233 (8th Cir. 1979); Collins v. B. F. Goodrich Co., 558 F.2d 908, 910 (8th Cir. 1977).
The second issue involves the trial judge’s refusal to admit evidence of two prior accidents and two prior near misses. The record indicates that the accidents and the near misses all occurred in the afternoon when the sun was in a different location. The flashing lights at the crossing were changed after the two prior accidents and after the two near misses from eight inch diameter lights to twelve inch lights which were in place at the time of the accident. Because of the changed conditions evidence of the prior accidents and near misses was properly refused.
The general rule with regard to the admissibility of evidence of similar occurrences is that such evidence is admissible only upon a showing that the events arose out of the same or substantially similar circumstances and the burden rests on the party offering such evidence to prove that the necessary similarity of conditions exists. Fulwider v. Woods, 249 Ark. 776, 461 S.W.2d 581 (1971); See also - St. Louis S.R. Co. v. Jackson, 242 Ark. 858, 416 S.W.2d 273, later app 246 Ark. 168, 438 S.W.2d 41 (1967); Chicago, R.I. & P.R. Co. v. Lynch, 246 Ark. 1281, 441 S.W.2d 793 (1969); Oates v. St. Louis S.R. Co., 266 Ark. 527, 587 S.W.2d 10 (1979).
The final issued raised on appeal is based on an agreed stipulation to exclude evidence that Mr. Carter had been divorced twice. The parties had agreed that there would be no voir dire of the jury on the issue of divorce. The parties had agreed that unless the issue of divorce was raised by the appellant, the appellee would not bring the matter up. On direct examination, appellant was asked if he was “single” he answered yes. At the end of direct examination, appellee counsel moved that he be allowed to inquire concerning appellant’s marital status. The trial court permitted one question on cross-examination. The very first question on cross-examination of Mr. Carter was:
Question: Mr. Carter, you testified that you are single. Is it not correct that you have been divorced twice?
Answer: Well, that is correct.
The appellant argues that the lower court erred by permitting the appellee to question Mr. Carter about his being divorced twice. The appellant also contends that the failure of the trial court to allow the appellant to voir dire the jury at that point in the trial as to their feelings and beliefs concerning divorce was in error.
The parties knew that this was to be a lengthy trial, that the voir dire had been restricted to omit any reference to divorce and that the appellant relied on the motion in limine. The response of the appellant that he was single is the minimum testimony that could be given by the witness concerning his marital status without totally ignoring it. The appellee’s emphasis on the fact that Mr. Carter had been divorced twice is exactly the evidence which the parties and the court had agreed not to admit into evidence.
“We have often held that the scope and extent of cross-examination of a witness is largely discretionary with the trial court, and unless that discretion is abused, no reversible error is committed. King v. State, 106 Ark. 160, 152 S.W. 990; Dawson v. State, 121 Ark. 211, 180 S.W. 761; Peterson v. Jackson, 193 Ark. 880, 103 S.W.2d 640.”
Considering all the surrounding circumstances, it appears that the appellee went too far in calling undue attention to appellant’s prior divorces.
Reversed and remanded.
George Rose Smith, J., concurs in part.
Hubbell, C.J., and Hickman, J., dissent.
Dudley, J., not particiapting. | [
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Jack Holt, Jr., Chief Justice.
This case arose when Rick Nelson did not appear for a muscular dystrophy benefit concert in Fort Smith. The concert promoter, Chet Bonar, filed suit against Nelson’s booking agent, Jim Halsey Co., Inc., for breach of contract, fraud, and negligence. This appeal from the jury’s verdict in favor of the promoter is before us under Sup. Ct. R. 29(1) (c) and (o) as it presents questions about an act of the general assembly and in the law of torts. We affirm.
The facts are summarized as follows: A muscular dystrophy association festival was planned in Fort Smith by the appellee, Bonar, and others, which was to include an arts and crafts fair, other activities at Kay Rodgers Park, and a concert by a named performer. Bonar was to receive 25% of the gross from ticket sales, gate fees, and arts and crafts table rentals. Bonar contacted the appellant, Halsey Inc., to hire a performer for the concert. Rick Nelson was selected for a $6,500.00 fee. The fee was increased twice with Bonar’s approval until it was set at $8,500.00. In each instance a contract was prepared by Halsey, Inc., and sent to Bonar for his signature. Bonar returned the signed contract to Halsey Inc., and it was forwarded to Nelson for his signature. It was never signed by Nelson or by his personal manager, Greg McDonald.
Bonar made a $3,750.00 deposit to Halsey Inc. on July 27, 1979, and began promoting the concert based on the appellant’s assurances that Nelson would appear. The concert was scheduled for August 18, 1979. The final contract was sent to Bonar for his signature on August 2, which Bonar again signed and returned to Halsey Inc., who again forwarded it to Nelson. He still did not sign the contract. Two days before the concert, McDonald notified Halsey Inc. who in turn notified Bonar that Nelson would not perform at the concert. Halsey Inc. offered Hank Williams, Jr., in his place, and Williams played the concert for a fee of $6,500.00.
Bonar filed suit for breach of contract, fraud, and negligence. The jury returned a verdict for Bonar for $100,000.00.
The appellant raises numerous points on this appeal. We will address them in the order in which they were discussed in the parties’ briefs.
The first allegation is that the trial court erred when it submitted the case to the jury on any theory other than breach of contract. The appellee also alleged fraud and negligence in his complaint. The jury was instructed as to these two theories in addition to breach of contract.
The appellant is apparently arguing that the appellee cannot pursue his case under two theories — contract and tort. Halsey Inc. maintains therefore that breach of contract is the appropriate theory, since the facts do not support the allegations of fraud and negligence. This argument is without merit.
This court has held that when a defendant denies liability, a plaintiff may proceed under two consistent theories of recovery, Elrod v. G&R Const. Co., 275 Ark. 151, 628 S.W.2d 17 (1982); Brown v. Aquilino, 271 Ark. 273, 608 S.W.2d 35 (1980); Ark. R. Civ. P. 18(a); Brill, The Election of Remedies Doctrine in Arkansas, 37 Ark. L. Rev. 385, 408 (1983). Contract and tort theories have been determined to be consistent when both seek the same relief and the evidence to support recovery on one theory partially supports it on another. Brill, supra.
Here, the remedies are concurrent and consistent in that they arise out of the same transaction, the same facts prove at least parts of the theories, and no inconsistent positions are taken.
The appellee’s allegations of fraud and negligence are based on factual representations by the appellant that they would provide Nelson for the concert. The appellee states that Halsey Inc., knew these representations were untrue and that he, as a promoter, relied on the representations and was damaged as a result. He further maintains that Halsey Inc., had a duty to warn him of the likelihood that Nelson would not appear in sufficient time for him to seek a substitute performer and fully promote that performer. The appellee offered evidence in support of these allegations sufficient to instruct the jury on theories of fraud and negligence. There was no error.
The next issue raised is that the trial court erred in admitting testimony and exhibits of potential lost profits, past and future, and submitting them as damages to the jury because such lost profits were speculative and conjectural.
The j ury was instructed that, if they ruled in favor of the appellee, they were to award him an amount of money to fairly compensate him for the following elements of damage:
FIRST: The value of any profits lost and the present value of any profits reasonably certain to be lost in the future.
SECOND: The present value of any loss of ability to earn in the future.
THIRD: The value of any expenses lost.
The appellant objected to this instruction on the basis that there was no substantial evidence making it reasonably certain that appellee would have made, or will make a profit. Halsey Inc., maintains the evidence was insufficient to remove the question of profits from the realm of speculation and conjecture. We disagree.
On appeal this court views the evidence in the light most favorable to the appellee and affirms if there is substantial evidence to support the jury’s verdict. American Fidelity Fire Ins. Co. v. Kennedy Bros. Const., 282 Ark. 545, 670 S.W.2d 798 (1984).
The appellee offered the following evidence as to lost profits. He maintained that he would have received a profit of $15,193.75 if Rick Nelson had appeared. The $15,193.75 figure was based on 85% capacity at the stadium, with half of the tickets sold to adults for $7.00 and half to children for $4.00. Half of the partial capacity seating was then multiplied by $4.00 and the other half by $7.00. These two gross revenues were then added. That total was multiplied by 25%, Bonar’s contractual share of the ticket sale. The total equalled $15,193.75.
Bonar’s evidence of loss of reputation was supported by his own testimony about the good reputation he previously enjoyed and the testimony of Fred Baker, Jr., another local promoter. Baker and other concert sponsors also testified that they would not hire Bonar again because of what happened with the Nelson concert.
Baker testified as to the amount of income the appellee will lose as a result of the damage to his reputation. The witness stated that a promoter can expect to put on at least one concert a year. He then figured a reasonable income from that concert based on a formula which included the number of seats at the local stadium, a typical ticket price, and reasonable ticket sales based on an average vacancy rate. He subtracted concert expenses and arrived at a new yearly income for the promoter of $31,880.00.
A second witness testified as to the present value calculation of that annual income over periods of three, five, and ten years.
This court has held that:
The rule that damages which are uncertain or contingent can not be recovered, does not apply to uncertainty as to the value of the benefits to be derived from performance, but to uncertainty as to whether any benefit would be derived at all. If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining party is entitled to recover.
Crow v. Russell, 226 Ark. 121, 289 S.W.2d 195 (1956), (quoting Black v. Hogsett, 145 Ark. 178, 224 S.W. 439 (1920)).
The fact that a party can state the amount of damages he suffered only approximately is not a sufficient reason for disallowing damages if from the approximate estimates a satisfactory conclusion can be reached. Williams v. Black Lumber Co., 275 Ark. 144, 628 S.W.2d 13 (1982). Here, the appellee offered sufficient proof that he would have realized a profit and an approximate estimate of what that profit would have been.
In proving anticipated profits, a party “must present a reasonably complete set of figures, and not leave the jury to speculate as to whether there could have been any profits.” American Fidelity Fire Ins. Co. v. Kennedy Bros. Const., supra (quoting Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947)). Here again, the appellee offered proof of the amount of lost future profits, along with the formula used to compute the amount. It was therefore not error to submit lost profits to the jury as damages.
The appellant’s third argument is that the trial court erred in not dismissing the appellee’s negligence and fraud causes of action because they were barred by the statute of limitations.
The allegations of fraud and negligence were raised by the appellee in amendments to his original complaint. The trial court has broad discretion to permit amendments to pleadings and we sustain the exercise of that discretion unless it is manifestly abused. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983); Ark. R. Civ. P. 15.
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.” Rule 15(c).
Since the amendment relates back, there can be no statute of limitations objection to the amendment without proof of undue delay or prejudice. See, Brill, supra; Ozark Kenworth, Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899 (1984). No such proof was offered here.
The appellant next contends that the trial court erred in not dismissing appellee’s cause of action based upon fraud because the complaint and amendments failed to state with particularity the circumstances of fraud.
Ark. R. Civ. P. 9(b) provides:
(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud, mistake, duress, or undue influence, the circumstances constituting fraud, mistake, duress or undue influence shall be stated with particularity.
The appellee’s amended complaint stated that the defendant (the appellant here) made factual reapresentations that they had an agreement with Rick Nelson and would provide him for the concert and that “[t]hese representations were untrue and known to be untrue by the Defendant.” Bonar the alleged reliance on the factual representations and resulting damages. When the appellant objected at trial to the proof offered as to fraud, the judge ruled that the allegation of misrepresentation in the original complaint was stated “with enough particularity to give notice and . . . the subsequent amendments relate back.”
This court has held that fraud must be specifically alleged and that, “[t]he facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation (emphasis added), ... by which another is misled, to his detriment; and these . . . must be alleged and proved.” (citations omitted). Beam Bros. Contractors v. Monsanto Co., 259 Ark. 253, 532 S.W.2d 175 (1976). We found that a cause of action had been stated in Beam where the complaint alleged a representation and its falsity, which was material to the contract; reliance on the representation; the right to so rely; and resulting damages.
Here, proof was offered of a misrepresentation — that Nelson would appear — which was material to the contract; reliance on the representation since Bonar began promoting the concert; the right to so rely, based on Halsey Inc.’s representation that they hadan agreement with Nelson; and resulting damages. The allegation of fraud was therefore stated with sufficient particularity.
The fifth issue raised is that it was error to permit cameras in the courtroom and adjacent areas over appellant’s objection.
In Petition of Ark. Bar Ass’n, 271 Ark. 358, 609 S.W.2d 28 (1980), this court adopted Canon 3 of the Code of Judicial Conduct and decided to permit broadcasting and photographing of trial proceedings. See also, Modification of Code of Judicial Conduct, 275 Ark. 495, 628 S.W.2d 573 (1982) (removing the requirement of prior written consent from all parties and witnesses). The final version of the rule, in pertinent part, reads:
(b) An objection timely made by a party or attorney shall preclude broadcasting. . .of the proceedings; and an objection timely made by a witness who has been informed of the right to refuse such exposure, shall preclude broadcasting.
The rule also vests in the trial judge the right to make the final decision as to “whether it would be fitting and proper to permit photographing and recording of trial proceedings.” 271 Ark. at 361.
Appellant argues that he objected to the use of cameras in these proceedings and the activity should therefore have been prohibited. The appellant is correct in his contention that an objection by one of the parties is sufficient to prevent any broadcasting or photography. Therefore it was error for the trial judge to disregard Canon 3 and permit the broadcasting. When the appellant offered his objection at the beginning of the trial, the judge ruled that he would allow the cameras in, but he stated, “If it becomes distracting to anyone, they should raise an obj ection at that time and I’ll take care of it at that time.” Subsequently the appellant did not object.
The appellant acquiesced in the trial judge’s ruling by failing to make further objections during the course of the trial. In this instance, the error was rendered harmless. The bench and bar should be on notice however that this court will closely scrutinize any further violation of this rule.
The sixth assignment of error is the trial court’s denial of appellant’s motion for mistrial when it was revealed that two jurors watched television news accounts of the trial contrary to the court’s instructions.
The trial judge has wide discretion in dealing with a motion for mistrial and we do not reverse absent a manifest abuse of that discretion. Garner v. Finch, 272 Ark. 151, 612 S.W.2d 304(1981).
We find no such abuse of discretion here. The two jurors who watched the news account testified that all they saw was a picture of Rick Nelson and they heard that the trial was taking place after four years. The court admonished the jurors to disregard what they saw and decide the case only on what was presented in court. The appellant failed to demonstrate any prejudice as a result of the juror’s actions.
The seventh issue in this appeal concerns the trial court’s failure to dismiss appellee’s cause of action because he failed to register with the secretary of state as a professional fund raiser and because he allegedly contracted to charge more for his services than allowed by the law. This argument is also without merit.
The appellant is contending that the appellee’s failure to comply with the statute made the contract illegal and therefore unenforceable. Illegality of a contract is an affirmative defense which under Ark. R. Civ. P. 8(c) must be specifically pled. The appellant instead raised this issue in a motion for a directed verdict.
Substantively, the argument also must fail. The requirements cited by the appellant are contained in Ark. Stat. Ann. §§ 64-1608 — 64-1615 (Repl. 1980). These statutes require “any person acting as a professional fund raiser for any charitable organization to register with the Secretary of State”, § 64-1609; require all contracts between the fund raiser and the organization to be in writing, § 64-1610; and provide that no such contract shall allow the fund raiser to receive more than 25% of the money collected. Id. These are the provisions the appellant claims the appellee violated.
A professional fund raiser is defined however by § 64-1608 as “any person who for compensation or any other consideration plans, conducts or manages in this state the solicitation of contributions for or on behalf of any charitable organization.” The appellee was not soliciting contributions, he was promoting a concert and selling tickets, with the proceeds benefiting a charitable organization. The act is therefore inapplicable to him.
The next assignment of error concerns the trial court’s failure to grant appellant’s motion for summary judgment. The motion was based on the written contract which provided that any claim, dispute, or controversy arising under the contract shall be arbitrated by the international executive board of the American Federation of Musicians.
The appellant cites as authority a Louisiana case where Nelson failed to appear for a concert and the disagreement was submitted to arbitration by court order. Hodges, d/b/a/ Old South Jamboree v. Rick Nelson, et al, # 79-605-B (M.D. La. Aug. 20, 1981). That situation was distinguishable however, in that in Louisiana, there was a written signed contract and the issues to be resolved concerned who had the authority to sign for Nelson. Here, there was merely an unsigned written contract and an oral contract between the appellant and the appellee, which the appellant breached. The appellee sued for breach of the oral agreement whereby appellant promised to provide Rick Nelson for the concert. It was the written contract which contained the provision calling for arbitration. That provision is therefore inapplicable. Furthermore, this case presents questions in the law of torts which are not subject to written agreements to arbitrate. See Ark. Stat. Ann. § 34-511 (Supp. 1983).
The ninth issue is whether the trial court erred in admitting a video tape of promotions for the muscular dystrophy association because it was irrelevant and so prejudicial as to outweigh its probative value.
The evidence consisted of interviews about the festival, news stories and public service announcements. The judge admitted the evidence for the purpose of proving promotion efforts by the appellee.
Rulings on the relevancy of evidence are discretionary with the trial court and we do not reverse absent an abuse of discretion. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).
No abúse of discretion is demonstrated.
The final argument presented by the appellant is that the trial court should have granted his motion for judgment notwithstanding the verdict (n.o.v.) because the verdict was for excessive damages and was apparently influenced by passion and prejudice.
We uphold the denial of a motion for judgment n.o.v. “if there is any substantial evidence to support the jury’s verdict.” Arkansas Power & Light Co. v. Adcock, 281 Ark. 104, 661 S.W.2d 392 (1983). The trial judge is to set aside a jury verdict only if he finds it to be against the clear preponderance of the evidence. Pilkington v. Riley Paving Co., 271 Ark. 746, 610 S.W.2d 570 (1981).
We have previously commented on several aspects of the evidence, particularly on the admissibility of damages based on lost profits, past and future. We therefore find that there was substantial evidence to support the verdict.
delivered April 15, 1985
688 S.W.2d 275
Affirmed. | [
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Steele Hays, Justice.
By this appeal, Farmers Insurance Company of America challenges the allowance of an attorney’s fee in a dispute with its insured. Farmers insured the dwelling and contents of Mark Shuffield, which were later damaged by fire. While the claim was being processed, Farmers sued Shuffield, alleging he had committed fraud in submitting his proof of loss. Farmers asked that its coverage be declared void.
Shuffield counter-claimed for the fire damage and moved that Farmers’ suit be dismissed, which the trial court declined to do. Prior to trial, and without objection from Farmers, the trial court ordered a reversal of the parties so that Shuffield became the plaintiff and Farmers the defendant. The case was tried in that posture and the jury assessed Shuffield’s damage at $57,809.15, appreciably less than he had alleged. Shuffield moved for a penalty and attorney’s fee for defending Farmers’ suit and the trial court allowed a fee of $7,500 from which Farmers has appealed. We affirm.
Farmers argues that Ark. Stat. Ann. § 66-3238 (Repl. 1980) providing for penalty and attorney’s fee, is not applicable because we have held the statute must be strictly construed and, hence, not to be applied where the insured fails to recover the amount claimed under the policy. Countryside Casualty Co. v. Grant, 269 Ark. 526, 601 S.W.2d 875 (1980); Hill’s Co-op Gin Co. v. Bullington, 261 Ark. 915, 522 S.W.2d 281 (1977); MFA Mutual Insurance Co. v. Perrow, 249 Ark. 542, 459 S.W.2d 798 (1970); Smith v. Beal, 248 Ark. 248, 451 S.W.2d 195 (1970); Kansas City Fire and Marine Insurance Co. v. Baker, 229 Ark. 133, 13 S.W.2d 249 (1958).
If that were the only rule of law involved, we could sustain the argument, as the amount recovered by Shuffield fell short of the amount claimed by some $25,000. But Farmers had initiated suit to cancel its policy on an allegation of fraud and Ark. Stat. Ann. § 66-3239 (Repl. 1980) applies in that situation:
In all suits in which the j udgment or decree of a court is against a life, fire, health, accident or liability insurance company, either in a suit by it to cancel or lapse a policy, or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of such policy of any of his rights hereunder, or in a suit for a Declaratory Judgment under such policy or in a suit by the holder of such policy to require such company to reinstate such policy, such company shall also be liable to pay the holder of such policy all reasonable attorney’s fee for the defense or prosecution of said suit, as the case may be . . .
Here, the fraud issue was not dismissed but was submitted to the jury in conjunction with Shuffield’s claim of entitlement under the policy and, pursuant to the statute, the trial court had the authority to allow an attorney’s fee for defending against Farmers’ attempt to cancel the policy.
We find no merit in the argument that the realignment of the parties removed the case from the purview of § 66-3239. That step may have been taken merely to facilitate the trial process, and Farmers’ acquiescence lends credence to that assumption. The significant fact is that Farmers’ efforts to void its coverage remained an issue in the trial and it was for the trial court to determine whether that warranted an attorney’s fee pursuant to the statute.
An additional fee of $1500 is allowed for counsel’s services in connection with this appeal
Affirmed.
“In all cases where loss occurs and the . . . fire .... insurance company . . . liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such [company] shall be liable to pay the holder of such policy . . . in addition to the amount of such loss, twelve percent (12%) damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; ...” | [
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Darrell hickman, Justice.
This is another in a series of cases challenging the Omnibus DWI Act. Ark. Stat. Ann. §§ 75-1031.1, 75-1045, 75-2501 — 75-2514 (Supp. 1983). Gregory C. Sparrow, the appellant, was found guilty of speeding and driving with a blood alcohol content exceeding 0.10%. According to the chemical test, he had a blood alcohol content of 0.17%, and he admitted to having at least three drinks prior to driving. He appealed his conviction to the Washington County Circuit Court and waived a j ury. He was found guilty, fined $300, plus costs, sentenced to 24 hours continuous incarceration in the city jail and his license was suspended for 90 days.
On appeal he raises questions which, with minor exceptions, have been answered in previous cases. He argues that the DWI law violates the separation of powers provision in the Arkansas and United States Constitutions in that it takes away from the prosecuting attorney and the court the right to reduce a charge and accept plea bargains and places that power within the hands of the policeman, who files the charge. Appellant cites no authority for these propositions. This part of the law is not unconstitutional. It is well settled that it is for the legislative branch of a state or federal government to determine the kind of conduct that constitutes a crime and the nature and extent of the punishment which may be imposed. Carter v. State, 255 Ark. 225, 500 S.W.2d 368 (1973); Thom v. State, 248 Ark. 180, 450 S.W.2d 550 (1970); C. E. Torcia, Wharton’s Criminal Law § 10 (1978). See 21 Am. Jur. 2d Criminal Law § 589 (1981). In fact, there is no authority for Sparrow’s contentions that penalties and their imposition are for the courts to decide.
Sparrow cites no authority for his argument that he is deprived of the right to plea bargain, nor does he even maintain that it is his right. In North Carolina v. Alford, 400 U.S. 25 (1970), the United States Supreme Court said: “The States in their wisdom . . . may prohibit the practice of accepting pleas to lesser included offenses under any circumstances.” Plea bargaining is merely a tool to aid in the administration of justice. Furthermore, statutes are valid which provide that an accused may not plead guilty. 22 C.J.S. Criminal Law 422 (1).
Sparrow also argues that he should have been taken before a judicial officer for a probable cause determination since he was arrested without a warrant. ARCP Rule 8.1 requires that one arrested shall be taken before a judicial officer without unnecessary delay. Here, Sparrow was detained approximately six and one-half hours. We find no violation of Rule 8.1. See Brown v. State, 276 Ark. 20, 631 S.W.2d 829 (1982).
The other arguments that Sparrow raises on appeal have been answered in other cases. Ark. Stat. Ann. § 75-2503 (b) (Supp. 1983) is not void for vagueness. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). Sparrow argues that the statute requires that he be informed that he may take another breath chemical test in addition to the one he was given. The written warning that Sparrow signed stated that he had the right to request a test of a different type. However, it also stated “I will assist you in obtaining another test of your choice . . .” Ark. Stat. Ann. § 75-1045 (c) (3) only requires that an individual be advised that he can have tests “in addition to any test administered at the direction of a law enforcement officer.” The facts in this case are virtually identical to those in Spicer v. City of Fayetteville, 284 Ark. 315, 681 S.W.2d 369 (1984), and, again, we find no error.
Sparrow also contends that he was not observed for 20 minutes by the operator of the machine as required by the department of health standards. Substantial compliance with health department regulations is all that is required. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975). As in Spicer v. State, supra, the appellant was collectively observed by officers for 30 minutes prior to the administering of the test.
Affirmed. | [
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Hart, J.
Albert Eno was arrested and tried before a justice of the peace for the crime of malicious mischief, charged to have been committed by wilfully and maliciously shooting five horses in Jackson County, Arkansas, belonging to J. R. Hawley.
He was convicted, and duty appealed to the circuit court. On a trial de novo in the circuit court, the jury returned the following verdict: “We, the jury, find the defendant guilty, and assess his fine at ($20) twenty dollars,.and the damages at ($50) fifty dollars.” Judgment was entered on the verdict in favor of the State of Arkansas for the amount of the fine, and in favor of the owner of the horses for triple damages in accordance with the provisions of sec. 1893 of Kirby’s Digest. From the judgment the defendant has duty prosecuted an appeal to this court.
Counsel for the defendant insists that the venue was not proved, and also that there is not sufficient evidence to sustain the verdict. The undisputed evidence shows that three horses and two colts belonging to J. R. Hawtyy were shot in August, 1907. That both he and defendant lived near the Hart field, and that the father of the defendant made a crop in the Hart field in 1907. The undisputed evidence also shows that the Hart field is situated in Jackson County, Arkansas. The evidence on the part of the State showed that the defendant admitted to several witnesses that he had shot the horses of J. R. Hawley in the Hart field. One of them stated that defendant pointed out to him the horses he had shot, and stated that he had shot them in the lower Hart field. Witness stated that he knew the horses were the horses of J. R. Hawley, and that the Hart field was- in Jackson County, Arkansas. Other witnesses testified that shortly after the horses were shot they saw the tracks of some horses and colts and also an empty shotgun shell in the Hart field. The testimony tended to show that the wounds were inflicted with a shotgun. The defendant denied having shot the horses, and evidence was introduced in his behalf tending to corroborate his testimony; but it has always been the settled rule in this State that the weight of the evidence is a question for the jury, and its verdict is binding on us, if there is sufficient evidence to sustain it. We are of the opinion that there was sufficient evidence to warrant the verdict and therefore, we will not disturb it.
Counsel for defendant also contends that the court erred in permitting the following question and answer:
“Q. How much were the horses damaged by reason of having been shot?”
“A. They were damaged something like a hundred dollars worth.”
Counsel for defendant objected to the question, but did not assign it as a ground of his motion for a new trial.
Exceptions to the introduction of evidence are waived where they were not brought forward in the motion for a new trial, and will not be considered on appeal. Planters’ Mut. Ins. Association v. Hamilton, 77 Ark. 27; St. Louis, I. M. & S. Ry. Co. v. Baker, 67 Ark. 531; Young v. Stevenson, 75 Ark. 181; Allen v. State, 70 Ark. 337; Ince v. State, 77 Ark. 418; Choctaw & Memphis Ry. Co. v. Goset, 70 Ark. 427; Mt. Nebo Anthracite Coal Co. v. Williamson, 73 Ark. 530.
Finding no prejudicial error in the record, the judgment is affirmed. | [
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Wood, J.,
(after stating the facts). First: As early as Watson v. State, 29 Ark. 299, this court said: “The only purpose of the warrant is to have the person charged with the commission of the offense arrested and brought before the justice, or other officer issuing it, to be dealt with according to law; and when that is done it has performed its function, and has no operation whatever upon the subsequent proceedings. The object in naming or stating in it the offense charged is only that the person to be arrested may at the time be informed for what he is arrested; but if it does not then sufficiently appear, it can have no such effect as releasing him when brought before the magistrate.”
The warrant contained the charge generally that appellant had carried a pistol as a weapon, and this was sufficient to admit proof of carrying, as a weapon, a pistol such as is not used in the army or navy of the United States; or of carrying, as a weapon, a pistol such as is used in the army or navy of the United States in any manner except uncovered and in his hand. The warrant, and the arrest under it, gave the court jurisdiction, and it was then a question to be determined by the evidence, as to whether the appellant had carried a pistol as a weapon such as is not used in the army or navy of the United States, or whether he had carried as a weapon an army or navy pistol in his pocket, or in some other manner than in his hand and uncovered. See Blacknall v. State, 90 Ark. 570; Searcy v. Turner, 88 Ark. 210; Burrow v. Hot Springs, 85 Ark. 396, and cases there cited.
In instruction number 3 given at the request of appellant the court told the jury “that the burden was on the State to prove that the pistol was not such as is used in the army or navy of the United States, and that this fact must be proved by testimony offered in the case, and not left to be presumed or arrived at by the jury from their general knowledge; and, unless the State has proved by competent testimony in the case, beyond a reasonable doubt, that the pistol in question was not such as is used in the army or navy of the United States, the jury will acquit the defendant.” This instruction was in accord with the doctrine of this court announced in Vaughan v. State, 84 Ark. 332; McDonald v. State, 83 Ark. 26; State v. Ring, 77 Ark. 139, and other cases.
Under this instruction appellant would have been entitled to-a verdict of not guilty as matter of law upon the authority of the above cases, if the only charge against him had been that of carrying a pistol as a weapon such as is not used in the army or navy of the United States, for there was no proof that the pistol was not such a pistol as is used in the army or navy of the United States.
In the cases of State v. Ring, McDonald v. State and Vaughan v. State, supra, the charge was by indictment under section 1609 of Kirby’s Digest. The proof had to correspond with the allegations of the indictment. The indictment could not be amended to correspond with the proof.
But in this case, as we have seen, the warrant and arrest brought the appellant before the court to be tried for the offense of carrying a pistol, as a weapon, in any manner that the evidence might show that he committed that offense, whether by carrying as a weapon such pistol as is not used in the army or navy, or by carrying as a weapon such pistol as is used in the army or navy in some other manner than uncovered and in his hand. In other words, the charge under this warrant was tantamount to a charge of the offense of carrying a pistol as a' weapon in the alternative, and brings the case well within the rule announced in Blacknall v. State, supra, and State v. Bailey, 62 Ark. 489. It follows that the latter clause of instruction number 3 given at the request of appellant was more favorable to him than the evidence warranted, for it told the jury to acquit “unless the State has proved by competent evidence beyond a reasonable doubt that the pistol in question was not such as is used in the army or navy of the United States.” But, under the evidence, the appellant was not entitled to acquittal if the State proved that he carried in his pocket, as a weapon, a pistol, even though it was such a pistol as is used in the army or navy of the United States. The State adduced evidence tending to prove that the appellant drew the pistol from his pocket which he used as a weapon. Therefore appellant can not complain because the jury ignored an instruction given at his request that was more favorable to him than the law authorized under all the facts that the evidence tended to prove.
This instruction number three at the request of appellant was based on one phase of the evidence only, to-wit, that there was no evidence to show that the pistol was not such as is used in the army and navy of the United States. But the verdict shows that the jury grounded their verdict upon the evidence which tended to show that the appellant “pulled a big gun out of his pocket” which he used as a weapon. It was within the province of the jury to accept this evidence on behalf of the State.
On the theory presented alone by this evidence, the jury was correctly instructed in instructions numbered 2 and 3, given at the request of the State. These instructions were in irreconcilable conflict with instruction number three given at the request of appellant, since that allowed the jury to consider only as to whether the pistol was not such pistol as is used in the army or navy of the United States. But, if the jury had found that the pistol was not such as is used in the army or navy of the United States according to instruction number three given at the request of appellant, they could only have returned a verdict of not guilty. The fact therefore that they returned a verdict of guilty shows that their finding was based on the charge of his carrying a pistol as a weapon such as is used in the army or navy, in a manner except uncovered and in his hand.
The conflict in the instructions could not have confused the jury. The propositions covered by them were entirely distinct, and the verdict shows which view of the evidence the jury must have adopted, and that such view was necessarily based upon the correct instructions in the cause. The erroneous instruction was in appellant’s favor and invited by him, and therefore he can not complain because such instruction is in conflict with other instructions that are correct.
Second. The second instruction given at appellant’s request is not the law. The statute inhibits “wearing” or “carrying” “in any manner whatever as a weapon any pistols except such as are used in the army or navy of the United States” (Kirby’s Dig., § 1609), and makes it unlawful to “wear” or “carry” any such pistol as is used in the army or navy in any manner except uncovered and in his hand. Kirby’s Dig., § róio.
To “wear” or “carry” “in any manner as a weapon” is broad language. The statute “takes no note of the time” the pistol shall be carried. The purpose is to prevent the “wearing” or “carrying” about the person any of the pistols mentioned under the circumstances detailed in the statute as weapons, i. e., to be used aggressively or defensively. The length of time it may be carried for such purpose is wholly immaterial.
Other inhibited conditions existing, the use of a pistol in fight, though but for a moment or second, is evidence that it was carried as a weapon in the sense of the statute. See Lemmons v. State, 56 Ark. 559; Carr v. State, 34 Ark. 448.
The court has correctly declared the law applicable to the charge of carrying a pistol such as is used in the army or navy of the United States. Therefore it was not error to refuse this as applied to that kind of pistol.
Finding no prejudicial error, the judgment is affirmed. | [
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Battre, J.
The following is the complaint filed in this action (omitting caption) :
“Come the plaintiffs, John -C. Hickson and Joe Findley, and state that on or about the 15th day of January, 1908, they, as carpenters, entered into a contract with the defendant, O. O. Womble, to build a residence for the defendant on his lot in the town of Womble, Arkansas, and that according to said contract the said defendant was to pay them the sum of $155 for the carpenter work, in a manner and at such times as was to be agreed upon at a later date. The said O. O. Womble was to furnish all material for the construction of said residence. The said contract, together with the specifications and drawings, as provided for, are filed herewith and marked exhibits “A” and “B.” That the contract was entered into in good faith by all parties and signed in the presence by both plaintiffs and defendant. They state further that the defendant, O. O. Womble, has refused to furnish them (the plaintiffs) the said carpenter work; that, according to agreement, they were to begin the work on or about January 18, 1908. That said defendant has placed other carpenters to work on said residence. That plaintiffs have been ready and willing to begin work on said house at all times since the contract was entered into, and that they have been hindered by virtue of said contract from taking other contracts or jobs of work, and that they have been damaged thereby. They pray judgment for one hundred and fifty-five dollars and for costs.”
The following is a copy of the contract on which the action is based:
“This agreement, entered into this day by and between John ■ C. Hickman and Joe Findley, house carpenters, and O. O. Womble, all of Womble, Arkansas, is and shall be as follows: The said Hickson and Findley agree to build a residence out of the material furnished by Womble, which will be a duplicate of the Monroe Rowton house in Womble, with the exception that they will build the hall 7 feet wide, will make the cornice ‘square style’ and build the front and back porches with flat roof to be covered with tin, and it is understood -and agreed that Womble is to furnish all lumber, nails and shingles, tin and all other necessary material for the construction of said house. Hickson and Findley agree to put only first-class workmanship in this building, and agree to sandpaper and smooth all finishings such as baseboards, casing, etc. Womble agrees to pay for the carpenter work on said house to Hickson, and Findley the certain sum of one hundred and fifty-five dollars ($155) in a manner and at' such times as will be agreed on later, which subsequent agreements will be attached and become a part of this instrument. A drawing and specifications of said house is to be attached and become a part of this contract. .
Signatures: “John C. Hickson,
“Joe Findley,
“Carpenters.
“O. O. Womble.”
The contract was written by Womble, and signed by all the parties. It was not dated. The place where the residence was to be constructed was not specified, nor the time when it was to be built, but that was understood and agreed upon. A drawing and specifications of the house were to be attached and become a part of .the contract, but this was not done, through no fault of the plaintiffs. This was not a condition of the contract, and was not necessary. The house to be built was to be a duplicate of the “Monroe Rowton house” in Womble, with certain specified exceptions, which itself furnished the plans and specifications required. Plaintiffs offered to perform their part of the contract, but were not allowed by the defendant to do so. They made diligent efforts to obtain work in the time required to build the house of tire defendant, but were unable to earn in that time exceeding $48.00. The jury impaneled to try the issues in the case returned a verdict in favor of the plaintiffs for $107. It was more favorable to defendant than he was entitled to. •
Judgment affirmed. | [
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Hart, J.,
(after stating the facts). 1. It is earnestly insisted by counsel for appellants that the act of February 13, 1899, under which the proceedings complained of were instituted, is unconstitutional. No useful purpose can be served either by discussing the reasons given by learned counsel in support of their contention, or in reviewing the authorities cited by them; for this court has heretofore deliberately decided that that part of the act which makes it the duty of certain officers to issue a warrant for the seizure and destruction of intoxicating liquors when, after notice to and hearing of claimants, it shall be established that the liquors seized were illegally kept for sale, is not unconstitutional. Ferguson v. Josey, 70 Ark. 94; Kirkland v. State, 72 Ark. 171; Osborne v. State, 77 Ark. 439.
2. Counsel for appellants also insist that the license issued to the appellants were properly granted. The record shows that the old public school house, -mentioned as the center of the circular area of the prohibitory order of 1905, and the new public school house, named as the center of the prohibitory order of 1908, are only a quarter of a mile distant from each other. Therefore, counsel argue that, because the areas embraced in the two prohibitory orders overlap each other, the order made in 1908 was of no effect, and that, the order of 1905 having been revoked, the county-court properly granted to appellants licenses for the sale of liquor. We can not agree with their contention.
In the cases of Robinson v. State. 38 Ark. 641, and Edgar v. State, 45 Ark. 356, this court held that the retailing of spirituous liquors is not a natural right, and that persons engaging in it must submit to such terms, regulations, and burdens as the Legislature may impose for the public good.
Sec. 5129 of Kirby’s Digest provides in effect that the adult inhabitants residing within three miles of any school house, by complying with the terms imposed by the act, may put in force the statute that prohibits the sale of intoxicating liquors'within three miles of. such school house. Thus it will be seen that the act contemplates that the whole State may be covered by orders putting in force the three-mile statute. Manifestly, this could not be done unless the circular areas could overlap each other. There is nothing in the opinion in the case of Williams v. Citizens, 40 Ark. 290, that contravenes this construction of the stat ute. It was held in that case that it was a statutory proceeding, and that it could not be extended beyond its prescribed limits. The opinion,' in effect, holds that it was the legislative intent, as plainly expressed by the terms of the act, to prohibit the sale of liquor within a territory covered by radii extending in all directions three miles from a center marked by a school house or other institution of learning, or by a church house; and that the designation of two points as centers in the same order could not be done because it would either lessen or make greater the area.
The object of the statute, as plainly expressed by its terms, was to prohibit the liquor traffic within certain defined areas in any part of the State. It was the evident intention of the Legislature to make the act applicable to all parts of the State alike. Obviously, the act could not be put in force in all parts of the State if the circular areas could not overlap each other. The revoking of one prohibitory order by the county court in compliance with the petition of a majority of the adult inhabitants residing within the limits of that territory does not revoke a separate prohibitory order which puts in force the statute in a part of the territory embraced in the former. In other words, an order of the court revoking a prohibitory order only means that the particular prohibitory order annulled no longer puts in force the three-mile statute, but it does not affect another prohibitory order putting in force the three-mile statute, although a part of the same area may have been embraced in both prohibitory orders. It follows, then, that the prohibitory order made in April, 1908, not having been revoked or annulled, is still in force, and by its terms extends over the territory in which the appellants had their place of business for the sale of liquors, and they are not protected by the license granted to them by the county court.
3. The record shows that the school house named as the central point of the area in which the sale of liquor was prohibited in the order made in April, 1908, was only three-fourths of a mile' distant from the boundary line between the States of Arkansas and of Missouri; and that a majority of the adult inhabitants residing within the three-mile radii extending in all directions from the central point resided in the State of Missouri, and were not taken in account in making the prohibitory order which put the statute in force. Hence counsel argue that the statute was not put in force by the order.
It has been repeatedly held by this court that it is not'the order of the county court, but the act of the Legislature, which prohibits the sale of the liquor within the prescribed area; and for this reason, in the case of Wilson v. Thompson, 56 Ark. 110, it was held that county lines would not be considered in the proceeding for putting the statute in operation. Here the case is different. It is not a question of county lines but of State boundaries.
“Statutes derive their force from the authority of the Legislature which enacts them; and hence, as a necessary consequence, their authority as statutes will be limited to the territory or country to which the enacting power is limited. It is only within these boundaries that the Legislature is lawmaker, that its laws govern people, that they operate of their own vigor on any subject.” 1 Lewis’ Sutherland, Statutory Construction, § 13, and cases cited.
It follows, therefore that the Legislature of the State of Arkansas could not pass an act prohibiting the sale of liquors in the State of Missouri.
“It is so unusual for a Legislature to intend that its acts shall have such world-wide effect that courts are never justified in putting such construction upon them if their language admits of any other reasonable interpretation.” State v. Lancashire Insurance Co., 66 Ark 476.
Section 7792 of Kirby’s Digest provides that “all general provisions, terms, phrases and expressions used in any statute shall be liberally construed, in order that the true intent and meaning of the General Assembly may be fully carried out.” Applying these canons of construction, it will be readily seen that the Legislature only intended that the three-mile law should be effective in the State of Arkansas, and that the territory embraced within the radii extending in all directions from the central point should be territory embraced within the boundaries of the State of Arkansas. The areas thus formed, except when the central point is at or within the three miles of the State boundary, are in the form of circles, but the form is merely descriptive of the territory embraced in the prohibited limits. When the point which marks the center is less than three miles from the State boundary, only that segment of the circle within the limits of the State is affected by the order, and the adult inhabitants of this State only should be considered in determining whether the petition, either for putting in force the three-mile law or for revoking such prohibitory order, contains the requisite majority.
It is also insisted that the order of April, 1908, is not effective because the new stone school house named as the central point was described as being on block 23, instead of block 22, where it is in fact situated. The school house is described as being situated in the town of Mammoth Spring in Fulton County, Arkansas; and it is further described as a new stone public school house. It was not necessary to mention the number of the block on which it was situated. It was sufficient to describe it in the language of the statute with such reasonable certainty as to identify it as the point marked from which the radii were to extend in designating the territory to be embraced in the order. Blackwell v. State, 36 Ark. 178.
The case having been submitted and decided upon its merits, it is not necessary to pass upon the rights of appellant for a restraining order, pending the appeal, which was also submitted.
The judgment will be affirmed. | [
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Frauenti-iae, J.
The defendant, Mose Ware, was tried in the Calhoun Circuit Court upon an indictment charging him with the crime of murder in the first degree by killing one Craft Wood. He was convicted of voluntary manslaughter, and prosecutes this appeal to obtain a reversal of the judgment upon that conviction.
The evidence on the part of the State tended to prove that the defendant was a colored school teacher, and the deceased, Craft Wood, was a colored preacher, and they lived for a number of years about one mile from each other. Upon the morning of January 22, 1907, the deceased was riding upon a horse along the road by the home of the defendant, and there was shot and killed. On the same day and very shortly after the killing the defendant voluntarily surrendered fo parties in the neighborhood, who took him to the sheriff of the county. To the sheriff the State proved that he made the statement that the deceased had been having wrongful relations with his wife, and that he had written deceased a note to leave, which deceased had refused to do, and that he had shot the deceased. But the sheriff did not claim that the defendant told him all the particulars of the killing. There was no one present at the time of the killing, save the defendant and deceased. The prosecution proved by the wife of the deceased that a short time before the killing the defendant had written to deceased a note asking him to leave and charging him with wrongful relations with defendant’s wife; and by several witnesses the prosecution proved that the defendant made the statement that the trouble was all about his wife. There were some other slight circumstances indicating that a breach of the friendly relations between these parties had occurred on this account; and the sole and only motive for the killing which the evidence on the part of the State indicated was the alleged illegal relations of deceased with the wife of defendant. The defendant testified in his own behalf that when the deceased passed along the road at his house a controversy arose between them about the wrongful relations between deceased' and defendant’s wife and about deceased leaving; that in the controversy the deceased started to draw a pistol from a pocket of his overcoat and had pulled it partially out of the pocket and was attempting to draw it for the purpose of killing him, when the defendant shot the deceased with his shotgun.
Briefly, but sufficiently, the above presents the testimony showing the manner and the cause of the killing as claimed by the prosecution on the one hand and as urged by the defendant on the other. It is not considered necessary to further detail the evidence, because from this it can readily be determined whether the court committed an error in permitting the introduction of the testimony which we will now refer to, and whether such error was so prejudicial as to deprive the defendant of a fair and impartial trial.
In its examination in chief, .and before the defendant had introduced any testimony, the State introduced as a witness Bell Wood, who testified that she was the daughter of the deceased; that a number of months after the killing the defendant gave her ten dollars for the purpose of sending her out of the State; that she-was an unmarried woman and the mother of two illegitimate children, and that the defendant was the father of one of these bastard children; that the defendant had thus had illegal relations with her and debauched her. And in the same connection she stated that she had never told the deceased of any such wrongful relation with the defendant; that she had never told any one of it, and no one had ever spoken of it; that her father, the deceased, did not know it, and had. never heard of it; and neither by her testimony or by any testimony was any circumstance shown by which it could be found that this alleged relation of the defendant with her was in any way the cause of or connected with this killing.
Fet us then see if under the circumstances of this case there was any legal ground for .the introduction of this testimony, or in what way it could throw light, if any, on the cause or manner of this killing. It is conceded that the deceased had never heard of this alleged relation, and had never in. any way referred to it or in any way connected the defendant with 'his daughter; and .that nothing had ever occurred that caused even a mention o'f the daughter between deceased and defendant. The sole and only motive for the killing which is advanced by the testimony of the State is the alleged illegal relation between deceased and the wife of defendant; and .there is not a tittle of testimony which shows that the alleged relation of defendant with deceased’s daughter was the cause or the motive of the killing. This testimony could not throw any light on the question as to who was probably the aggressor, for the reason that it is conceded that deceased knew nothing of the alleged relation, and that therefore no difficulty could have arisen between them from that cause. The sole effect, if not the purpose, of this testimony was to attack the character of the defendant. The question therefore presented is whether this testimony was admissible to prove the bad character of the defendant. The defendant occupies a two-fold relation in this case. He is the defendant; and he was a witness in his own behalf.
It is uniformly held that the prosecution cannot resort to the accused’s bad character as a circumstance from which to infer his guilt. This doctrine is founded upon the wise policy of avoiding the unfair prejudice and unjust condemnation which such evidence might induce in the minds of the jury. If such testimony should be admitted, the defendant might be overwhelmed by prejudice, instead of being tried upon the evidence affirmatively showing his guilt of the specific offense with which he is charged. 1 Grecnleaf on Evidence (8th Kd.), § 1.4 b, § 14 q; Wigmore on Evidence, § 57.
And so, too, it is held that one. offense cannot be proved by the evidence of.the commission of another offense, unless the two are so connected as to form a part of one transaction. I hit, as wholly independent acts, the commission of one offense cannot be shown by evidence of the commission of another. And the introduction of such testimony is also inadmissible because it raises another and different issue which would call for the introduction of other testimony upon such issue, and thus? would involve the true and specific issue presented to the jury for its determination, whether the defendant was guilty of the specific crime charged in the indictment. Dove v. State, 37 Ark. 261; Endaily v. State, 39 Ark. 278; Ackers v. State, 73 Ark. 262; Allen v. State, 68 Ark. 577.
Hut a defendant on trial for a crime of anv grade is entitled to offer in his defense evidence as to his good character. Such evidence is permitíed as to and should be limited to such character as would show that it would be unlikely that the defendant would commit the crime with which he is charged, 1 Wigmore on Evidence, § 5b: 1 Greenleaf on Evidence, § 146: Kee v. State, 28 Ark. 155; Edmonds v. State, 34 Ark. 720; Maclin v. State, 44 Ark. 115. After the defendant has offered testimony of his good character in his own aid, the prosecution may by wav of rebuttal offer evidence of his bad character. The object of permitting the prosecution to introduce such evidence is not for the purpose of showing the bad character of the defendant; but it is for the purpose of refuting his claim that he has a good character, and thus to prevent the defendant from imposing a false character upon the jury.' Hut, as is said in the case of State v. Laxton, 76 N. Car. 216. “this right of reply however is only co-extensive with the privilege of the defendant, and is limited to evidence of general reputation.’’ The prosecution is not permitted, even 011 rebuttal, to show specific acts of misconduct. The testimony that is here permissible is similar to that testimony of general reputation which is allowed in order to impeach a witness. 1 Greenleaf on Evidence, p. 39; t Wigmore on Evidence, § 56; Commonwealth v. Hardy, 2 Mass. 317.
The testimony of Bell Wood was therefore not admissible in order to show the had character of the defendant. <
After the State bad introduced this testimony and rested, the defendant introduced evidence of his good character. And, even though it should be considered that the testimony of Bell Wood was only introduced out of regular order in the progress of the trial, and simpty on that account was not objectionable, nevertheless, it was still inadmissible because it was not limited to evidence of general reputation, but related solely to an alleged specific act of immoralhy.
And for the same reason this testimony was not admissible for the purpose of impeaching the defendant as a witness in the' case. As a witness in the cause, he could have been cross-examined ; and upon his cross-examination, like any other witness, he could have been asked as to specific acts for the purpose of discrediting his testimony as a witness. But as is said by the Court of Appeals of-New York: “It is well settled that, for the purpose of impairing the credit of a witness by evidence introduced by the opposite party, such evidence must go to his general character.” Newcomb v. Griswold, 24 N. Y. 298. As is said in case of Hollingsworth v. State, 53 Ark. 387, in such event “proof of specific acts of immorality is not competent.” 1 Greenleaf on Evidence, § 461; Acts 1905, 143. It therefore follows that this testimony of Bell Wood was incompetent, and that it was an error to admit its introduction.
But, although it was an error to admit the introduction of this testimony, it does not necessarily follow that this error was prejudicial to the rights of the defendant; and it was not prejudicial if it did not deprive him of a fair and impartial trial under all the testimony adduced in the case. In a case where the uncontrovented' testimony shows that the defendant is guilty of the degree of crime of which he is convicted, the error in permitting the introduction of • incompetent testimony is not prejudicial to the rights of the defendant. This is based upon the ground that, viewing such incompetent testimony in any light, the jury could not have rendered a verdict of acquittal. Levy v. State, 70 Ark. 610; Taylor v. State, 72 Ark. 613; Darden v. State, 73 Ark. 315; Daniels v. State, 76 Ark. 84; Clingan v. State, 77 Ark. 141.
But the contrary of this proposition is also true. If the facts are disputed, and if the proof is controverted, then that view of the testimony should be taken which is favorable to the defendant; and if, in such view of the case, the incompetent testimony would have a tendency to disparage this controverting evidence on the part of the defendant, then its admission would be prejudicial. Whit v. State, 74 Ark. 489.
In this case the defendant was a witness in his own behalf and -the sole witness who testified as to the manner and circumstances of the killing. He testified to a state of facts which showed that he acted in his necessary self-defense; and if his testimony is true, he is not guilty of manslaughter. The physical facts proved by the evidence are not sufficient to show conclusively that the testimony of the defendant as to the circumstances of the killing is not true.- The evidence proved that some of the shots entered the shoulder of the deceased; that one shot entered his head, somewhat on the side of his head and just back of the ear, and that some shot entered his back. But the deceased was at the time on his horse, and testimony as to the tracks of the horse indicated that the horse plunged and probably wheeled about, so that it is possible that the deceased may have been drawing a pistol in a manner and while in a position to shoot the defendant, and the defendant, acting on such appearances, fired his gun at deceased, and at the instant of doing so the position of deceased changed so that he received the shot in the parts of the body as shown by the evidence. The defendant had the legal right to have the jury pass on his testimony together with the other testimony in the case and these circumstances and to determine the facts. The undisputed testimony, therefore, does not show that the defendant did not act in his necessary self-defense; and therefore it does not appear from the uncontroverted testimony that he was guilty of the crime of which he was convicted. Now, this incompetent testimony was of a nature to discredit the defendant as a witness and to cover him with a moral turpitude that may have led the jury to accept it as a link in fixing on the defendant a criminality in the commission of this act. The testimony was of such a nature that it was well calculated to arouse in the minds of the jury an unfair prejudice, and thereby not onfy to cause the jury to 'discredit his testimony as a witness, but also to condemn him as a man. It is true that the weight of the testimony is to the effect that the deceased had no pistol, and was unarmed, and that the defendant did not kill him in necessary self-defense. -But under the law 'defendant had the right to testify as a witness, and he had the legal right to have that testimony presented to the jury unassailed by any unfair prejudice or by any incompetent testimony discrediting ’ him. What credence the jury might have given to his testimony unaccompanied by this discredit, or to what extent they may'have been influenced by testimony tending to show that the defendant liad debauched the daughter of the man he was charged with having killed, we cannot say; but unquestionably this testimony had the tendency to affect and influence the jury to the detriment of the cause of the defendant. If it was illegal to admit this testimony, its admission was calculated to deprive the defendant of that absolutely fair trial under the law, to which he was entitled, and this error was prejudicial.
We find no other error in the case.
For the error in admitting the testimony of Bell Wood, the judgment of the Calhoun Circuit Court is reversed; and this cause is remanded for a new trial. | [
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McCulloch, C. J.
Appellant was tried on an indictment charging him with the crime of murder, and was convicted of involuntary manslaughter, and sentenced to the penitentiary for a period of one year. He killed one Minor Killgore, and admits the killing, but seeks to justify it. The evidence tends to establish the following circumstances attending the homicide:
Appellant came upon Killgore in a field of weeds, attempting to have carnal intercourse forcibly with his (appellant’s) niece, a little girl about twelve years of age. Appellant was first attracted by the child’s screams, and when he came upon the couple Killgore sprang up and ran away. Appellant hallooed several times for him to halt, and when at a distance of about forty yards he fired a shot which struck Killgore in the back of the head, immediately producing death.
This is appellant’s own version of the tragedy, and it is supported by other testimony corroborating him as to the attempt on the part of deceased to ravish the child. He stated on the witness stand that he did not take deliberate aim, and that' it was not his intention to. kill Killgore at the time he fired the shot, but that he fired only to stop him and bring him to justice. It is earnestly insisted by counsel for appellant that the evidence is not sufficient to sustain the verdiet; but, after careful consideration, we are of the opinion that the verdict should not be disturbed on that account. The evidence warranted a finding by the jury that, though the deceased had committed a felony, and appellant was within the line of his duty as a private citizen in attempting to arrest him, yet the killing was unnecessary. The jury had a right to apply their judgment to the facts presented, and say by their verdict whether it was reasonably necessary for appellant to shoot in order to prevent Killgore’s escape. A felon’s flight does not justify his pursuer in killing him unless that is necessary to prevent escape. Reasonable care should be exercised by one placed in such a situation, either as an officer or a private citizen, to prevent the escape of a felon without doing personal violence; and it is only where killing is necessary to prevent the escape of the felon that the slayer is held in law to be justified. Carr v. State, 43 Ark. 99.
It is insisted that the court erred in giving the following instruction: “n. The court tells the jury that if they believe from the evidence beyond a reasonable doubt that the defendant, Ben Green, shot Minor Killgore with a pistol as alleged in the indictment and killed him, but at the time he fired the pistol shot he had no intention of killing the deceased, but shot only to make the deceased stop, and the shooting was done in a careless and reckless manner, the jury will find him guilty of involuntary manslaughter and assess his punishment at imprisonment in the State penitentiary for a period not exceeding twelve months.”
This instruction is criticised on the alleged ground that the jury might have understood it to mean that, even if the circumstances were such that it was necessary to slay the fleeing felon in order to prevent his escape, and appellant had a right to do so, yet, if appellant fired the shot without any intention to inflict a death wound and did so carelessly, then he would not be justifiable, but would be guilty of involuntary manslaughter. In other words, the contention is that this instruction is susceptible of the meaning that, even if it was necessary to kill the felon in order to prevent his escape, yet, if appellant fired the shot without any intention of killing him, but did so carelessly, he was not justifiable. We do not think that this instruction is open to that construction. But, if there were any doubt as to its true meaning, the same must have been, in the minds of intelligent jurors, completely removed by the following instruction which was given at appellant’s request:
“3. The jury are instructed that if a felony be committed and the felon fly from justice, it is the duty of every man to use his best endeavors for preventing the felon’s escape; and if in the pursuit the felon be killed, when he cannot be otherwise overtaken, the homicide is justifiable. And if you find from the evidence in this case that Minor Killgore, the deceased, had committed rape upon Odie May Killgore, or had assaulted said Odie May Killgore, with the intent to commit rape, and that defendant, Ben Green, detected said Minor Killgore in the commission of said rape or the attempt thereof, and that said defendant then and there killed said Minor Killgore in' an attempt to arrest him, you will acquit the defendant, provided you further find from the evidence that said killing was necessary to prevent the escape of said Minor Killgore.”
We find nothing in the record that would justify us in disturbing the verdict.
Judgment affirmed. | [
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McCuuroch:, C. J.
Appellees are the proprietors, editors and publishers of two newspapers, a weekly and a daily, in the city of Prescott, Arkansas, and in order to swell the list of subscribers to said papers they offered a prize to contestants who should receive the highest number of votes in what was termed a “popularity contest,” the privilege of casting a certain number of votes to be accorded to each cash subscriber. The circulation territory was divided into seven districts, and a prize was allotted to each district, and also two grand prizes for the whole territory, the first consisting of a piano, valued at $450, and the second a buggy, valued at $75. The contest was to be closed on September 23, 1908.
Mrs. Lizzie McDaniel, the appellant, was nominated by her friends as one of the contestants for a grand prize, and seems to have received their enthusiastic support, for on the day of the last count and publication of the number of votes cast, which was just a week before the contest closed, she was found to be considerably ahead of her nearest rival. When the day approached, the appellees announced through the columns of the newspapers that the contest would be continued for thirty days longer, instead of closing on the day named, and on that day the appellant, claiming to be the successful contestant for the grand prize, instituted this suit to prevent the appellees from prolonging the contest or from awarding the prize to any other contestant. In addition to the above recital of facts, she alleged in her complaint and amendments thereto that she had received the highest number of votes, and was entitled to one of the grand prizes; that the appellees were insolvent, and that she had no adequate remedy at law. She also alleged that certain employees of the appellees had, in violation of the terms of the contest, aided another contestant during the dosing days of the contest by giving out the number of votes which appellant had received, and also by receiving votes after the hour fixed for closing the contest. The court sustained a demurrer to the complaint as amended, and dismissed it for want of equity.
We need not pass upon the legality of the contract set forth in the complaint, as the case is disposed of on another ground. Mr. Pomeroy stated the following rule, which is applicable to this case: “An injunction restraining the breach of a contract is a negative specific enforcement of that contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrines and rules; and it may be stated as a general proposition that wherever the contract is one of a class which will be affirmatively specifically enforced, a court of equity will restrain its breach by injunction, if this is the only practical mode of enforcement which its terms permit. * * * The universal test of the jurisdiction, admitted alike by the courts of England and of the United States, is the inadequacy of the legal remedy of damages in the class of contracts to which the particular instance belongs.” 4 Pomeroy’s Equity Jurisprudence, § 1341.
In Leonard v. Board of Directors of Plum Bayou Levee District, 79 Ark. 42, we said: “Exceptional cases may be found where courts of equity will afford equivalent relief by enjoining the doing of any act inconsistent with performance of the contract, thus in a negative way enforcing specific performance. This exception is found, however, in cases dealing with contracts of a special, unique or extraordinary nature, such as that of an actor or singer.”
It is seen, therefore, that where a contract is one the specific performance of which a court of equity will compel, and will therefore restrain the doing of any act inconsistent with its performance, the criterion is whether or not there is an adequate remedy at law, for in either event where the remedy at law is adequate and complete the complaining party will be remitted to it. Now, it is plain that a court of equity should not interpose, under any circumstances, to prevent the, continuance of a contest such as that described in the complaint, except in so far as it interferes ' with the performance of the agreement to award prizes at the end of the stated period. So the question arises whether or not the wrongful continuance of the contest interferes with appellant’s remedy for the enforcement of her rights, and whether or not her remedy at law for the enforcement thereof 'is complete and adequate.
Whether the grand prize, for which the appellant claims to be the successful contestant, was a specific article, appropriated and set apart for the purpose of the award, or whether the contract was merely an executory agreement to award an article of that description, in either event appellant’s remedy at law was complete. If, as she contends, the contest was at an end according to its terms, and she was the successful contestant, and the defendants refused to award the prize to her, then her remedy at law was complete.
It does not appear from the allegations of the complaint that any particular piano or buggy had been set apart and appropriated to the award, but it appears only that a piano and buggy of certain description were to be awarded. So that appellant’s only remedy, if any, was to recover judgment for the value of the prize wrongfully withheld, and she could do this in an action at law.
Appellant is not aided by the allegations as to the insolvency of the appellees, for, even if she should be permitted to proceed to final decree in the suit in equity, and her alleged rights were thereby enforced, she could only recover damages against the appellees for the value of the prize, and in case of insolvency such a decree in equity could no more be enforced than could a judgment at law.
Upon the whole, we are clearly of the opinion that the complaint stated no cause of action for equitable relief, and the demurrer was properly sustained.
Affirmed. | [
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McCulloch, C. J.
This appeal involves the validity of proceedings establishing a certain drainage district in Independence County, and assessing damages and benefits to property resulting from the construction of the drainage ditch. The county court made several changes in the route of the ditch, and it is conceded in the briefs of counsel that the only question presented for our consideration is as to the jurisdiction of the county court to order the last change.
The petition for the establishment of the district, and designating the proposed route of the ditch, was filed in the county court on April 6, 1906, in accordance with the statute, by the owners of the land to be affected by the alleged improvements. The court granted the prayer of the petition, and appointed viewers and an engineer to view and make preliminary survey of the line of the ditch, and to report whether or not the proposed improvement was necessary and practicable, and would be “conducive to the public health or welfare,” etc. Due notice was given, in accordance with the statute, of the appointment of viewers, the point of beginning, route and terminus of the proposed ditch and the time fixed by the court at which the viewers should make their report,
The viewers and engineer filed their report on August 26, a clay of the regular July term of the court, recommending the adoption of the route proposed in the petition as being conducive to the public health and welfare. Thereupon the court found in favor of the making of said improvements, and made an order establishing the district. An order was also entered directing the viewers to go upon the proposed line of the ditch and survey and level the same, set stakes, etc., make a profile map, plat and report of same, estimate the amount of earth to be removed and the cost thereof, and assess the damages and benefits from said improvement to each tract of land of forty acres or less.
In obedience to said order, the viewers and engineer proceeded to go upon said route and comply with said order, and thereafter filed their report, which contained an assessment of the damages and benefits to the lands to be affected by the construction of the ditch. All the owners of the land to be affected were duly summoned, as required by the statute, and appeared in court on October 6, 1906, the day fixed therein, and numerous exceptions to the report were filed by the land owners. It -is conceded that up to this point the proceedings were regularly conducted and in strict accord with the statute.
The court, after a full hearing of all exceptions and objections, made an order on’December 5, 1906 (which was a day of the October term, 1906), reciting a finding that the proposed route of the ditch was impracticable, and that the' assessment of damages and benefits made by the viewers was unfair and unjust. The coitrt ordered a change made in the route of the ditch, designating the new route and directing the viewers and engineer to go upon the new line and survey it and set stakes, assess damages and benefits, etc., as directed in the former order. This order was omitted from the record, but was duly entered later by nunc pro tunc order at the January, 1907, term of court.
At the next July term of the court, the viewers reported adversely to the route designated by the court in the above mentioned order, and reported that they had laid out another route which they recommended for adoption. The court thereupon found that this report was irregular because all the viewers did not join therein, but found that the last proposed route was practicable and adopted it. Viewers were again appointed to survey and stake out this route, assess damages and benefits, etc., and report thereon. At the October, 1907, term of the court the viewers again reported, recommending the extension of the ditch, and also reported the assessment of damages and benefits. Exceptions to this report were filed by certain landowners, and on the hearing thereof the court refused to confirm the report, but ordered still another change in the route, and sent the viewers out again to stake out and survey this route and assess the damages and benefits. The original petitioners, without waiting for another report of the viewers, took an appeal to the circuit court, where a motion to dismiss the appeal was overruled, and on a hearing de novo the court adopted and confirmed the last report of the viewers which had been rejected by the county court. From this .judgment of the circuit court the parties who excepted thereto have prosecuted an appeal to this court.
It is contended by the appellants that the above-mentioned order of the county court, made on December 5, 1906, designating a new route of the ditch and directing the viewers to survey and stake it off, assess the damages and benefits and report back to the court, was final, and that the county court was without jurisdiction to make the subsequent changes in the route. This involves an inquiry into the meaning of the statute which authorizes the proceedings.
The statute provides that the proceedings shall be inaugurated by a petition of land owners, setting forth the necessity for the improvement and giving a general description of the proposed ditch. A cost bond is required of the petitioners. (Kirby’s Digest, § 1415.) The court then appoints viewers and an engineer, with directions to make a preliminary survey of the line of the proposed ditch, and to “report, by actual view of the premises along and adjacent thereto, whether the proposed improvement is necessary, practicable, or will be conducive to public health, convenience or welfare, and report the best route for the proposed drain,” etc. (Section 1416.)
Notice by publication is required (section 1417) of the pend-ency of the proceedings and appointment of viewers, and the time fixed for 'hearing of their report. On the hearing of this report, if the county court finds against the improvement, the petition is dismissed (section 1418) ; but,- if the court finds in favor of the improvement, then “the lands which will be affected thereby or assessed therefor shall constitute a drainage district,” and the court causes to be entered on its records an order directing the viewers to go upon the line described in the order with an engineer and survey and stake out the line, make a map and profile thereof, estimate the cost of the construction and assess the damages and benefits to the lands affected, etc. They may also be ordered to apportion and allot the the construction of the number of linear feet and cubic yards of the proposed work to each respective tract of land affected (section 1420). Notice of this report of the viewers, and of the time of the hearing thereof by the court, must be given by summons to be served on the owner of each tract, or his agent or tenant if residing within the county, or by publication if the owner’s residence is without the county or can not.be ascertained, and he has no resident agent or tenant (section 1422). The succeeding sections bearing on the subject read as follows:
“S'ec. 1423. The court shall first .determine whether the required notice has been given. If they find that due notice has not been given, they shall continue the hearing to a day fixed by them and order the notice to be served as herein provided; and when they find that due notice has been given they shall examine the report of the viewers and the apportionment by them made, and if it is in all things fair and just, according to the benefits, they shall approve and confirm the same. If, however, the county court shall find that the location of said ditch or the apportionment reported by the reviewers is unfair and unjust and ought not to be confirmed, they may make an order changing the location or dimension of said ditch or any part thereof and amend the report upon the evidence so as to make it fair and just in proportion to the benefits.
“Sec. 1428. Any person or corporation party to proceedings may, on filing the bond, to he approved by the county court, conditioned to pay all costs occasioned thereby, file exceptions to the apportionment, or to any claim for compensation or damages at any time before the day set for the hearing of said report by the court. The county court may hear testimony and examine witnesses upon all questions made by the exceptions, and for that purpose may compel the attendance of witnesses by subpoena, and their decisions upon each of the exceptions shall be entered of record; and if they sustain the exceptions the cost of hearing the same shall be paid out of the county treasury, and if they overrule the same such cost shall be taxed against the person or corporation filing the exception. Any person or corporation may appeal from the order of the court, and upon such appeal may determine either of the following questions:
“First. Whether such improvement will be conducive of public health, convenience or welfare, or the location of any part changed.
“Second. Whether the route is practicable.
“Third. Whether the compensation has been allowed for property appropriated.
“Fourth. Whether proper damages have been allowed fpr property affected by the improvements.
“The appellant shall pray an appeál to the circuit court, and file a motion in writing specifying therein the matters appealed from; which motion shall be filed and recorded. The county court shall then fix the amount of bonds to be given by the appellant, and cause an order thereof to be made on their record. The party appealing shall within ten days thereafter file with the county clerk a bond in the amount fixed by the county court, with at least two good and sufficient sureties, to be approved by the clerk, conditioned to pay all costs made on the appeal in case the appellant fail to sustain the same or -the appeal be dismissed for any reason, and the said clerk shall make a complete transcript. of the proceedings had before the county court and certify the same with all the original papers filed in his office and file them in the office of the clerk of the circuit court within thirty days from the day of filing said bond.”
We interpret the meaning of the statute to be that the court possesses the power to change the location of the ditch at any time before it finally approves the assessment of damages and benefits. The approval of the assessment of damages and benefits is the final act of the court in establishing the district and authorizing the improvement, and up to that time any owner of lands may appear and object to the proceedings, and on appeal from the final order test any of the questions enumerated in section 1428 of the statute.
If any other construction was placed upon the statute, and an order fixing the location of the ditch without then approving the assessments was held to be final, it would deny the privilege of a hearing on the question of the location of the ditch to the owner of land affected by the new location and subsequently as-assessed. The statute clearly contemplates that, when the final order of the court is made, the owners of all lands to be affected shall have been summoned, so that they can be heard, not only as to the validity of the assessments, but also as to the propriety of the whole project and the practicability of the route adopted. If a change at any stage of the proceedings in the route of the ditch affects the lands of any owner not theretofore summoned, he must be brought in by service of summons in accordance with the statute in order to be given a hearing on the whole project. To do otherwise would be to deny him the equal protection of the statute.
The court may change the location of the ditch and readjust the assessments directly by hearing evidence. This is what this statute seems to contemplate; but it also implies the power to adopt any other means of ascertaining the facts, and may do so by sending viewers out again for another assessment and report. But in either event this order is not final and irrevocable until the assessments are approved by the court. It follows, therefore, that the contention of counsel for appellant is unsound, and that the county court had the power to make the last change complained of.
Now, if the order of the county court changing the route and sending the viewers back to survey it out and assess the damages and benefits was not final, then the last order of that court to the same effect, from which the appeal was attempted to be taken, was not appealable. No appeal could be taken until the court either dismissed the whole proceedings or finally approved the assessments. Then an appeal could be taken, bringing up to the circuit court for hearing de novo the whole proceeding.
It is plain that the statute does not contemplate an appeal and hearing in the circuit court by piecemeal. It provides that when an appeal is taken the whole record is sent up to the circuit court, and nothing is left for the county court. When the circuit court renders its judgment, the record is retransmitted to the county court for the purpose of having the judgment of the circuit court entered, and then the county court orders the letting of the contracts for the construction of the improvement. (Sections 1429-1430.)
We conclude therefore that -the appeal from the county court was premature, and should have been dismissed.
Reversed and remanded with directions to dismiss the appeal.
Battue, J., dissenting. | [
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Frauenthae, J.
The plaintiff, John LaCotts, instituted this suit on December 14, 1904, in the Arkansas Chancery Court against the defendants, who are the widow and children of J. F. Pike, deceased. In his complaint he alleges that he formed a partnership with said J. F. Pike on September 1, 1888, and that the contract of partnership was evidenced by a deed of that date executed by J. F. Pike to him by which said Pike conveyed to him an undivided one-half interest in certain land and a saw and grist mill, gin stand, press and machinery located on the land; that there had never been any settlement of the partnership ; and he seeks an accounting of the partnership business and a division of t-hej partnership assets. Subsequently, the administrator of J. F. Pike was made a party defendant. TL defendants denied the existence -of a partnership at any time between plaintiff and J. F. Pike, and .specifically denied each allegation of the complaint; they also denied that plaintiff had any interest in or title to any of the property; and they pleaded laches and limitation against the alleged claim of plaintiff. John A. Bower filed an intervention, in which he alleged that J. F. Pike had executed to him a mortgage upon the property involved in the suit to secure certain indebtedness owing by Pike to him; and he asked for a foreclosure of this mortgage.
Upon the trial of the cause the chancery court entered a decree in which it dismissed the complaint for want of equity, and-dismissed the intervention of Bower without prejudice. From that decree the plaintiff appeals to this court.
The evidence by which the plaintiff seeks to establish the alleged partnership between himself and J. F. Pike consists of a deed in ordinary form executed by J. F. Pike to the plaintiff on September 1, 1888, by which said Pike conveyed to plaintiff an undivided one-half interest in a certain tract of land and the above-mentioned personal property. The plaintiff testified that by virtue of said deed there was a partnership between them, but he did not make any other statement relative to the partnership. He did not state that they should share in the profits, or that they should be liable for the losses of the alleged partner ship business; nor did he state the nature and extent of the business contemplated or intended by the alleged partnership. On the contrary, the plaintiff testified that J. F. Pike paid him $50 rent per year for certain years for his interest in the property; and the undisputed evidence is that J. F. Pike replaced all the personal property from time to time with other property of a similar kind, and that he purchased all said property upon his sole and individual account. During all the years from 1888 until the death of J. F. Pike in September, 1903, the property was in the possession of said Pike, and all transactions relative thereto with third persons were had and made in the sole and individual name of J. F. Pike. The evidence tended also to prove that in December, 1888, the plaintiff -executed to one Merritt a mortgage upon his undivided interest in the land, and that this’interest in the land was sold in 1894 under a decree of foreclosure of said mortgage, and in 1894 after confirmation of said sale a deed thei efor was executed by the commissioner in chancery to one J. W. Crockett, trustee. The plaintiff testified that after the conveyance of said interest in the land to said Crockett he considered that the partnership between himself and Pike was thereby dissolved. In 1900 J. W. Crockett, trustee, for $50 conveyed this interest in the.land to plaintiff.
In order to constitute a partnership, it is necessary that there shall be something more than the joint ownership of property. A mere community of interest by ownership is not sufficient. This creates a tenancy in common, but not a partnership. Oliver v. Gray, 4 Ark. 425; Haycock v. Williams, 54 Ark. 384; Harris v. Umsted, 79 Ark. 499.
The test of a partnership between the parties themselves is largely a question of intention, but before there can be a partnership between the parties themselves there must be an agreement from which a community of profit and loss arises. There is no presumption of a partnership from a mere joint ownership of the property. Neill v. Shamburg, 156 Pa. St. 263; St. John v. Coates, 63 Hun, 460.
It is ordinarily considered that an agreement to snare in the profits is an essential element of every partnership, and yet because one shares in the profits this does not necessarily constitute him a partner. But if there is an absence of a sharing in the profits, then there is no agreement by which it can be said a partnership exists. Between the partiés themselves, it is essential that they shall share in the profits before it' can be said that an agreement of partnership has been entered into and exists. Culley v. Edwards, 44 Ark. 427; Johnson v. Rothschilds, 63 Ark. 518; Herman Kahn Co. v. Bowden, 80 Ark. 23; Buford v. Lewis, 87 Ark. 412; 30 Cyc. 366.
In this case there is a total lack of evidence on the part of the plaintiff to show that there was an agreement between him and Pike by which they should share in the profits, or that there was any understanding as to the proportion in which such profits should be shared. And the evidence of plaintiff seems to indicate that he himself had no idea, much less an intention, of bearing any loss. The plaintiff relies upon the deed as an evidence of a partnership; but such deed only makes the parties tenants in common of the property and not partners.
We are of the opinion therefore that the chancellor was correct in his finding that the evidence does not show that the relationship of partners existed between plaintiff and J. F. Pike.
It is urged by the plaintiff that the complaint should be considered in the nature of a petition for partition of the land, and that he should have that relief. But the defendants claim that they are and always have been in the adverse possession of the land, and they_ dispute the title of plaintiff to the land, and dispute any interest of plaintiff therein. The complaint is founded upon the allegation of a partnership, and the relief sought therein is the winding up of that partnership. The land, by the bill, is claimed to be a part of the assets of the partnership, and its disposal is sought only upon a settlement of the business of the partnership. When the court determined that there was no relation of partnership existing between the parties, there was no equitable ground upon which to assume jurisdiction over the land and the parties. The defendants were claiming the land adversely to plaintiff, and partition cannot be had of land held adversely. Landon v. Morris, 75 Ark. 6.
It has been repeatedly held by this court that unless a tenant in common is in possession of the land or his title is admitted he cannot maintain a bill in equity for a partition thereof. Byers v. Danly, 27 Ark. 77; London v. Overby, 40 Ark. 155; Moore v. Gor don, 44 Ark. 334; Criscoe v. Hambrick, 47 Ark. 235; Ashley v. Little Rock, 56 Ark. 391; Eagle v. Franklin, 71 Ark. 544; Landon v. Morris, 75 Ark. 6; Cannon v. Stevens, 88 Ark. 610.
By virtue of his deed the plaintiff was only a tenant in common in the land. Where the tenant in common is ousted from the land or his rights totally denied by the cotenants, his remedy is by an ejectment suit for his proportion of the land. Kirby’s Digest, § 2746; Trapnall v. Hill, 31 Ark. 345.
The party who is in possession claiming the land adversely has a right to have a trial of his cause in the law court; and, until the issue as to the title is determined, a court of equity has no jurisdiction to partition the land between alleged tenants in common. But the plaintiff should not be prejudiced hy any decree herein in his right to institute an ejectment suit for the recovery of his alleged portion of the land, if he should so desire.
In order that the decree in this case may not possibly have such effect, the decree should be modified so that it will dismiss his complaint; but will dismiss it without any prejudice to the plaintiff to institute a suit for a recovery of his alleged portion of the land.
The decree will be here modified in that regard. And, so modified, the decree is affirmed. | [
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Per Curiam.
J.W. “Dub” Stipes, by his attorney, has filed a motion for a rule on the clerk.
His attorney, Phyllis B. Worley, admits by motion and brief that the record was tendered late due to a mistake on her 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 In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).
The motion is, therefore, granted. A copy of this opinion will be forwarded' to the Committee on Professional Conduct. | [
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Tom Glaze, Justice.
Jeannie Worthey and her husband Kenneth obtained an automobile liability policy from Nationwide Mutual Insurance Co. on their two pickup trucks and Cadillac. The policy covered the Wortheys and their son Dustin, for all bodily injuries sustained by them and caused by an accident and arising out of another’s ownership, maintenance, or use of an uninsured automobile. The Wortheys also owned a 1975 Honda Trail 70 vehicle which they did not insure; it is that vehicle which is the center of this litigation.
In short, Dustin was operating the Trail 70 vehicle on a county road when an uninsured motorist ran into Dustin. Nationwide refused to pay for Dustin’s injuries, so Jeannie, as Dustin’s next friend, brought suit against Nationwide to recover under the uninsured motorist coverage of the Wortheys’ policy with Nationwide. The trial court awarded judgment against Nationwide from which Nationwide now appeals.
Nationwide argues that Dustin is excluded from the uninsured motorist coverage of Wortheys’ policy because the policy terms provide that “[I]t (the uninsured motorist coverage) does not apply to bodily injury suffered while occupying a motor vehicle owned by you or a relative living in your household, but not insured for Uninsured Motorists coverage under this policy.” Nationwide contends the Worthey Trail 70 vehicle was a motor vehicle and therefore excluded from coverage since the Wortheys owned the vehicle but failed to insure it for uninsured motorist coverage.
Worthey counters Nationwide’s contention by arguing the Trail 70 is not a motor vehicle. The trial court agreed with Worthey, and Worthey submits the evidence presented below clearly supports the trial court’s holding.
Both Worthey and Nationwide point to the policy which defines “motor vehicle” as follows:
[A] land motor vehicle designed to be driven on public roads. They do not include vehicles operated on rails or crawler-treads. Other motor vehicles designed for use mainly off public roads are covered when used on public roads.
In discussing the foregoing definition, Worthey cites cases and Arkansas statutes to support her position that the uninsured Trail 70 vehicle owned by the Wortheys and operated by Dustin was not a motor vehicle and therefore did not come within the uninsured motorist exclusion provision of Nationwide’s policy. For clarity sake, we first dispel any thought or suggestion that the Trail 70 vehicle is not a motor vehicle under state law. Second, we will consider if the language contained in Nationwide’s policy definition of motor vehicle permits or dictates a different result.
Under Arkansas Registration and Licensing laws, motor vehicle means every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. Ark. Code Ann. § 27-14-207 (Supp. 1991); see also Motor Vehicle Safety Responsibility Act, Ark. Code Ann. § 27-19-206 (1987) for the same definition. Obviously, a Trail 70 is self-propelled, and is further included within the statutory definition of a “motor-driven cycle,” which is a motor vehicle having a seat or saddle for use of the rider and designed to travel on no more than three wheels in contact with the ground and having a motor which displaces 250 cubic centimeters or less. Ark. Code Ann. § 27-20-101(2) (1987). It is also clear that when a motor-driven cycle (which by definition includes a Trail 70 motor vehicle) is operated on the streets and highways of Arkansas, that vehicle must be registered and licensed. Ark. Code Ann. § 27-20-105 (Supp. 1991). In addition, state law requires such a motor vehicle be equipped with standard equipment, including a headlight, tail light, red reflector, horn and standard muffler. Ark. Code Ann. § 27-20-104 (1987).
Here, the Wortheys knew their Trail 70 had a 70 cc engine, they allowed Dustin to ride the vehicle on public streets and knew the accident giving rise to this litigation had occurred on a public road. From the record before us, we have no doubt that, under state law at least, the Worthey Trail 70 vehicle was a motor vehicle (motor-driven cycle), and because it was used upon public streets, was subject to Arkansas’s registration and licensing laws. Thus, if statutory law alone controlled the terms or coverage of the Nationwide policy here, Dustin obviously could not recover since he was operating a Trail 70 motor vehicle when injured and the motor vehicle had not been insured by the Wortheys for uninsured motorists coverage. Having said this, however, does not resolve the issue concerning the Nationwide policy definition of motor vehicle — which differs from the one defined by statutory law — and whether that difference precludes Nationwide from using the uninsured motorist exclusion provision of its policy to deny Dustin damages. We believe it does.
As previously set out above, the Nationwide policy defines “motor vehicle” as a land motor vehicle designed to be driven on public roads. Because the policy definition limits “motor vehicle” to one “designed to be driven” (not merely used) on public roads, such a definition appears somewhat narrower than that contemplated by Arkansas’s statutory law. Thus, Worthey argues that, because she offered evidence below that the Trail 70 vehicle Dustin operated was designed and intended for use off the public road, such vehicle did not come within the policy definition of motor vehicle. This being so, she concludes the uninsured motorists coverage exclusion simply is inapplicable and cannot be used to prevent Dustin’s recovery for the damages he sustained.
In support of Worthey’s argument, she cites Carner v. Farmers Ins. Co. of Ark., 3 Ark. App. 201, 623 S.W.2d 859 (1981), which factually is similar to Worthey’s present situation. In Carner, the insurance automobile policy covered three cars owned by Carner, the insured, and it provided further that the named insured or relative could recover necessary medical service expenses for bodily injury sustained through being struck by a motor vehicle while not occupying any other motor vehicle. Carner’s son was riding on a friend’s motorcycle when the motorcycle was struck by a car, and in seeking medical expenses under the policies covering his three automobiles, Carner contended the motorcycle which his son rode was not a motor vehicle as defined by the policies issued on Carner’s automobiles. Carner pointed to the definition of motor vehicle contained in his policies which provided that the term means a land motor vehicle designed for use principally upon public roads. The court of appeals held that, in determining the character of the vehicle in issue, it must consider (1) the vehicle’s actual use, (2) the design and intended use by the manufacturer and (3) how it is commonly used. When considering Carner’s proof relative to these factors, the court rejected earner’s contention by finding the evidence was insufficient to show that the vehicle his son was riding was not a trail bike rather than a motorcycle. To the contrary, the court held that the record showed the vehicle was a motorcycle which by definition was a motor vehicle.
Worthey argues that, contrary to the insured’s failure of proof in Carner, she presented ample proof below that the Trail 70 vehicle was designed and intended for use off public roads. Based on that proof, the trial court here found that under the Nationwide policy terms, the Trail 70 was not a motor vehicle and such finding should be affirmed unless determined clearly erroneous.
If sufficiency of the evidence in this appeal proved the determinative issue, we might readily differ with Worthey’s view that the evidence bearing on the three factors noted in Carner require a finding that Worthey’s Trail 70 is. not a motor vehicle. While Worthey certainly offered evidence indicating that the Trail 70 was not designed and manufactured for use on public roads, considerable proof also showed that Dustin’s actual use of the vehicle was on public streets and roads. As to the third factor in Carner or how the Trail 70 was commonly used, we do not find the evidence or argument compelling on either party’s side of the issue.
The clear answer to whether the uninsured motorist coverage provision in Nationwide’s policy bars Worthey recovery is found in the third sentence of the policy definition of motor vehicle, and when reading it, in determining whether an ambiguity exists as a matter of law. It has been held that where a term is defined in the policy, the court is bound by the policy definition. Enterprise Tools, Inc. v. Export-Import Bank, 799 F.2d 437 (8th cir. 1986). It is also settled that an insurer may contract with its insured upon whatever terms the parties may agree upon which are not contrary to statute or public policy. Aetna Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978).
Under Arkansas law, the intent to exclude coverage in an insurance policy should be expressed in clear and unambiguous language, and an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer. Baskette v. Union Life Ins. Co., 9 Ark. App. 34, 36, 652 S.W.2d 635, 637 (1983). If the language in a policy is ambiguous, or there is doubt or uncertainty as to its meaning and it is fairly susceptible of two or more interpretations, one favorable to the insured and the other favorable to the insurer, the one favorable to the insured will be adopted. Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 620, 588 S.W.2d 419, 423 (1979).
Keeping in mind the foregoing rules, we direct our attention to the policy language contained in the third sentence following the policy definition of motor vehicle which reads, “other motor vehicles designed for use mainly off public roads are coveréd when used on public roads.” In reading this language in conjunction with the first sentence defining motor vehicle, it appears to say that even motor vehicles not designed to be driven on public roads are covered under the policy when the vehicle is used on public roads. Nationwide attempts to argue the reference to the word “covered” does not mean covered by the policy, but instead means the definition of motor vehicle covers an off-road vehicle when it is used on a public road. Nationwide’s explanation for the term “covered” in this context is somewhat puzzling. Significantly, we think, Nationwide offers no reason or purpose why such coverage language would be placed in the definition section of the policy, especially when the policy contains provisions which exclude physical damage, personal injuries and uninsured motorist coverage when such damages are sustained when occupying an insured’s off-road motor vehicle. Nevertheless, the language employed in the policy unquestionably lends itself to the reasonable interpretation we mentioned above, namely, that the policy provides coverage even when off-road motor vehicles are used on public roads. Because we hold an ambiguity exists in Nationwide’s policy, we must adopt the interpretation that favors the insured in these circumstances, and in doing so, hold Dustin’s injuries were covered under the Nationwide policy. Accordingly, we affirm the trial court’s decision and award favoring Worthey. While we recognize the trial court decided this case on a different theory, the court sustains a trial court’s ruling if it reached the right result. Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992).
In conclusion, we mention Nationwide’s second point for reversal wherein it argues the trial court erred in allowing into evidence a report from the Code of Federal Regulations which indicated that a mini-bike was not a motor vehicle under the terms or meaning of the National Traffic and Motor Vehicle Safety Act of 1966. Of course, this evidentiary point has no relevance on whether Nationwide’s policy contained an ambiguity. Whether an insurance contract is ambiguous is a question of law. Enterprise Tools, Inc., 799 F.2d 437. Thus, the federal report admission into evidence has no relevance to this case as decided on appeal and suffered no harm by its introduction below.
Affirmed.
Brown, J., concurs.
We note that this court has held this type uninsured motorist exclusion is valid. See Crawford v. Emcasco Insurance Company, 294 Ark. 569, 745 S.W.2d 132 (1988); see also Ark. Code Ann. § 23-89-403 (1987).
This definition does not include a motorized bicycle. See Ark. Code Ann. § 27-20-101(3).
At one point, we hypothesized that perhaps the Nationwide policy would cover certain medical or physical damages when an insured’s off-road vehicle was struck by another’s insured vehicle even though the policy coverage would not extend to uninsured motorist coverage. This possibility was dismissed when examining other parts of the policy which appear to exclude all damages when sustained under such circumstances. | [
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David Newbern, Justice.
Sherman Noble pleaded guilty to capital felony murder and was sentenced to life imprisonment without parole. On appeal, Noble contends the Trial Court should have granted his motion to suppress his in-custody statement made to the police. He argues the statement was involuntary.
The basis of this appeal of a guilty plea conviction is Ark. R. Crim. P. 24.3(b), which states:
(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
Nothing before us shows that Mr. Noble conditioned his guilty plea by reserving, in writing, his right to appeal. Nor is there any indication that the Trial Court or the prosecutor consented.
Absent any showing that these requirements were met, we dismiss the appeal.
Appeal dismissed. | [
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David Newbern, Justice.
Theodore Jones, the appellant, was convicted of carrying a weapon, driving without a driver’s license, operating a vehicle without a license plate, failure to obtain a vehicle inspection sticker, and failure to provide proof of insurance. Mr. Jones was tried, and found guilty of all charges, in a municipal court. He appealed and was again convicted in a de novo trial in Pulaski Circuit Court. He was fined and sentenced to six months in jail. Mr. Jones raises several points for appeal, none of which have merit, and we affirm the convictions.
1. Representation
Mr. Jones argues the Trial Court erred in failing to appoint counsel of his choice to represent him. At each of Mr. Jones’s trials, the judge persistently urged Mr. Jones to allow the court to appoint an attorney to represent him. Mr. Jones adamantly refused to be represented by a licensed attorney, insisting that the court appoint a “trusted person” of his choice. This request was repeatedly denied.
The Sixth Amendment of the United States Constitution, and Art. 2, § 10, of the Constitution of Arkansas, clearly state that a defendant is entitled to counsel. Equally clear is Art. 7, § 4, of the Constitution of Arkansas, which empowers this Court to regulate the practice of law in this State. Both this Court and the United States Supreme Court have held that it is not inconsistent with a defendant’s right to counsel to limit such appointments to licensed attorneys. See Wheat v. State, 486 U.S. 153 (1988); Nichols v. State, 273 Ark. 466, 620 S.W.2d 942 (1981).
2. Lack of proper charging instrument
Mr. Jones further argues the Trial Court failed to present the original citation issued to him. The Trial Court proceeded with a photocopy of the citation, which was identified by the issuing police officer.
Mr. Jones testified he was given a copy of the citation by the issuing police officer. Mr. Jones also introduced the copy he received from the officer into evidence. He has failed to show how he was prejudiced by the manner in which the Trial Court proceeded. We do not reverse on a point such as this one absent a showing of prejudicial error. Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992); Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).
3. Uniform Commercial Code
Mr. Jones also argues the Trial Court failed by not referring to the Uniform Commercial Code in resolving the charges. The laws governing the offenses of which he was charged are as follows: carrying a weapon, Ark. Code Ann. § 5-73-120 (Supp. 1991); driving without a driver’s license, Ark. Code Ann. § 27-16-602 (1987); operating a vehicle without a license plate, Ark. Code Ann. § 27-14-304 (1987); failure to obtain a vehicle inspection sticker, Ark. Code Ann. § 27-32-109 (1987); and failure to provide proof of insurance, Ark. Code Ann. § 27-22-104 (Supp. 1991). The Uniform Commercial Code does not apply to any of these offenses.
4.Jury Oath
Mr. Jones takes issue with the oath the jury was sworn to, but his abstract fails to demonstrate the oath that was administered. The administration of the oath is absent from the record as well. In his reply brief, Mr. Jones states that he did not abstract the oath because the court reporter failed to record it. We have clearly stated the rules for a proper abstract in Ark. Sup. Ct. R. 4-2(a)(6). That a pertinent point on appeal has been omitted from the record is an unacceptable excuse for a failure to properly abstract. It is an appellant’s responsibility to produce a sufficient record of all issues to be appealed. Odum v. State, 311 Ark. 576, 845 S.W.2d 524 (1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).
5.Jury instructions
Mr. Jones also contends that the jury should have been instructed that it was the judge of both law and fact. In essence, he is arguing for jury nullification, i.e., the jury should have been allowed to disregard the law if it chose.
This contention has no merit. Arkansas Code Ann. § 16-89-107 (1987) states that during a trial all questions of law are decided by the court and the jury is bound by the court’s decision.
6.Carrying a weapon
Mr. Jones finally contends his conviction for carrying a weapon, in violation of § 5-73-120, violates his Second Amendment right to keep and bear arms. When he was stopped in his vehicle he was found to have a pistol in his pocket.
Section 5-73-120(a) regulates the possession of a handgun in a vehicle, providing in pertinent part:
A person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on or about his person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ it as a weapon against a person.
The Statute provides several exceptions to the general rule stated, but Mr. Jones does not contend he comes within any of them. Rather, he rails against any restriction upon the bearing of arms.
Long ago we made it clear that the State may, as a matter of its police power, place appropriate restrictions on one’s right to bear arms. See Haile v. State, 38 Ark. 564 (1882); Wilson v. State, 33 Ark. 557 (1878); Fife v. State, 31 Ark. 455 (1876); Carroll v. State, 28 Ark. 99 (1872).
Affirmed. | [
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Tom Glaze, Justice.
On August 5,1992, James W. Bolt was charged with the crime of theft of property by deception. He was arraigned on August 31, 1992, and he pled not guilty. At the arraignment, the court informed him of his rights, including his right to a trial by jury. Both Bolt and his attorney signed a form which set out those rights. The form further reflects the attorney’s declaration that he believed Bolt was capable of understanding the rights given him and the substance of the proceeding.
Bolt and his attorney appeared for trial on December 9, 1992, and the trial court commenced the proceeding asking the state if it was ready. The state said that it was. The court then asked, “Is the defendant ready to proceed?” Bolt’s attorney said, “We’re ready, Your Honor, and at this time we would formally waive any requirement of a jury trial in this matter. We would proceed for the court to hear the case.” The judge responded, saying, “All right, the record will so reflect.” The trial court then had the witnesses sworn, it tried the case and found Bolt guilty of theft of property. The court sentenced Bolt to three years imprisonment.
Subsequent to trial, Bolt filed a motion for hew trial, and among other things, asserted that he had not entered a waiver of trial by jury. Upon conducting a hearing on Bolt’s motion and denying it, the trial court found Bolt was present when his attorney stood and waived his right to a jury trial. The judge noted that Bolt had assisted his attorney throughout the trial, and that he obviously was intelligent, educated and competent when his important right to a jury trial was waived. Bolt’s sole point on appeal is that the trial court erred in holding Bolt had properly waived his right to a jury trial.
Bolt’s argument is premised upon A.R.Cr.P. Rule 31.2 as it reads in conjunction with A.R.Cr.P. 31.3. Those rules respectively provide as follows:
Should a defendant desire to waive his right to a trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved.
* * *
In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant’s attorney, except that a corporation charged with any crime may waive a jury trial through counsel or authorized corporate officer.
Bolt argues that, under Rule 31.2, the trial court cannot accept a waiver of jury trial from a defendant’s attorney because the defendant must “personally” waive it. Bolt suggests that only in misdemeanor cases involving fines, as described by Rule 31.3, may a defendant’s attorney waive a jury.
To further support his argument, Bolt cites this court’s recent decisions in Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), where the court held that an accused’s right of trial by jury shall not be violated unless that right is waived in the manner provided by law. See also Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991). In Winkle and Calnan, the court reversed the defendants’ convictions and held they were entitled to a jury even though they had not requested a jury, nor had objected before or at trial to having been tried without one. In Calnan, the court said that the law is clear that the only way a defendant may waive the jury trial right is by personally making an express declaration in writing or in open court and that the open court proceedings where the defendant waives his or her right must be preserved. 310 Ark. at 747, 841 S.W.2d at 596.
The present case differs from Calnan and Winkle in that, in those cases, the record failed to show that either the defendants or their attorneys affirmatively waived the defendants’ rights to a jury. Here, Bolt’s counsel stated in open court, on the record, and in Bolt’s presence that Bolt waived a jury trial and specifically asked the trial court to hear the case. Bolt was well aware that he had a right to a jury, and the trial court determined that, while Bolt understood this right, he waived it in compliance with Rule 31.2 and Arkansas’s constitutional law providing for a jury trial and its waiver. See Ark. Const. art. 2, § 7. We agree.
Bolt’s argument is narrowly reduced to whether he personally, not his attorney, must waive his right to a jury. In addition to what we stated above, we reject Bolt’s contention based on the language of Rule 31.2 and our interpretation of similar wording found in our criminal procedure rules dealing with the receiving and acting upon guilty pleas. Rules 24.4 and 24.5 provide in relevant part that the trial court shall not accept a plea of guilty from a defendant without first addressing the defendant personally and in determining the voluntariness of a plea, the court shall also address the defendant personally to determine if any force, threats or promises were used to induce the plea. Under Rule 24.6, the court cannot enter a judgment upon a guilty plea without making inquiry if there is a factual basis for the plea, and in construing the foregoing rules, this court stated that a factual basis can be established only by addressing the accused personally. McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986).
In Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988), this court corrected its misinterpretation of its rules in McDaniel by stating the court had no rule providing that the factual basis for a defendant’s plea must be furnished only by the defendant. The court upheld Furr’s guilty pleas where the trial court, not Furr, recounted the charges and bases of the crimes in the presence of Furr, his counsel, the prosecutor and where the defendant acknowledged his guilt. Significantly, the Furr court added that Furr’s counsel also confirmed in open court and in the presence of the defendant, the truthfulness of the factual bases recited by the court.
In sum, we hold that, while a defendant who desires to waive his right to a jury trial under Rule 31.2 must do so either in writing or in open court, his or her attorney may also make such a waiver so long as the defendant has acknowledged he or she had been informed of the right and the attorney waives the right in open court, on the record and in the defendant’s presence. Here, Bolt indisputably had been informed of his right to a jury, acknowledged it and was present in court when his attorney waived the right in open court on the record. The court’s action was plainly proper, for in a matter of this kind, the defendant must be bound by his attorney’s action. Cf. Waller v. State, 262 Ark. 331, 556 S.W.2d 655 (1977). Accordingly, we affirm the trial court’s ruling and decision.
Dudley and Newbern, JJ., dissent.
We note that a defendant charged with a felony must be present during the trial, but in a misdemeanor case, the trial may be had in the defendant’s absence. Ark. Code Ann. § 16-89-103 (1987). In this respect, Rule 31.3’s language that allows the defendant’s attorney to waive a jury trial is consistent with the law that a defendant’s presence is not required in misdemeanor cases. His plea may likewise be accepted in his absence. See Prince v. State, 267 Ark. 304, 590 S.W.2d 25 (1979).
Justices Dudley, Newbern and Purtle dissented, voicing their opinion that the bright line rule in McDaniel should be followed, and the defendant should establish the factual basis of the crime to which he or she pled guilty. | [
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Tom Glaze, Justice.
David Craig grew a single, large marijuana plant outside his place of business and in plain view. The plant was approximately seven feet tall and six feet wide. Prior to his arrest, Craig had taken some leaves from the plant and was drying them inside his office building.
On September 27,1992, police officers went to Craig’s office, and Craig agreed to speak without an attorney present. Craig offered that he had cultivated the marijuana plant and knew it was unlawful. The officers seized the plant, as well as the small quantity of dried marijuana found in the building. They arrested Craig and cited him to appear in Springdale Municipal Court on charges of misdemeanor possession of marijuana and felony manufacturing of marijuana. Craig was also charged with these same offenses in Washington County Circuit Court and arraigned on October 7,1992. On October 13, Craig appeared pro se in the Springdale Municipal Court and pled guilty to possession of marijuana. He was fined $300, had his driver’s license suspended for six months, and was assessed court costs of $198.25. Craig satisfied this judgment.
On December 14, Craig, appearing with an attorney, made an oral motion to have both charges in circuit court dismissed for violation of the double jeopardy rule. The circuit court dismissed the possession charge to which Craig had pled guilty in municipal court, but denied the motion to dismiss the felony charge of manufacturing. In February 1993, Craig petitioned this court for a Writ of Prohibition No. CR 93-37, which was dismissed without prejudice so that it could be filed as a regular appeal.
On March 8, Craig was convicted by a jury of manufacturing marijuana and was sentenced to pay a fine of $2,000. His primary argument on appeal is the trial court erred in failing to grant his motion to dismiss both circuit court charges.
As mentioned above, when Craig moved in circuit court to dismiss both the misdemeanor possession and felony manufacturing charges, the circuit judge agreed to dismiss the misdemeanor charge because that charge had already resulted in a conviction by guilty plea in municipal court. The judge was correct in this respect because a conviction bars the subsequent prosecution for the same offense. See U.S. v. Dixon, 61 U.S.L.W. 4835, 4837 (992); see also Ark. Code Ann. § 5-1-112(2) (1987). The judge then also ruled that the state could still pursue the manufacturing charge against Craig in circuit court because that felony charge was a separate offense involving a distinct charge relating to marijuana. We conclude the circuit judge was incorrect in this ruling.
Craig relies heavily on Blockburger v. U.S., 284 U.S. 299 (1932), when arguing the double jeopardy clause should bar the state’s subsequent prosecution against him on the manufacturing charge. The Blockburger rule supports his argument. That rule is as follows:
[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
* * *
[A] single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. (Emphasis added.)
In the present case, Craig admitted to officers that he watered, pruned and generally tended the marijuana plant next to his office building. Such actions on his part clearly violate Ark. Code Ann. § 5-64-401 (a) (Supp. 1991), which makes it unlawful to manufacture a controlled substance. Manufacture is defined in relevant part to mean the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin. Ark. Code Ann. § 5-64-101 (m) (Supp. 1991). The term production is also defined to include the manufacture, planting, cultivation, growing, or harvesting of a controlled substance. Ark. Code Ann. § 5-64-101 (r) (Supp. 1991). Additionally, Craig’s act in pinching leaves from the marijuana plant not only violated the manufacturing of marijuana by taking it inside the building to dry it, his act at the same time violated Ark. Code Ann. § 5-64-401(c) (Supp. 1991), which makes it unlawful for any person to possess a controlled substance.
Because Craig’s act violated both the manufacturing and possession of controlled substance statutory provisions, we next determine whether there are two offenses or one by determining whether each statutory provision requires proof of a fact which the other does not. In State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991), this court in discussing the Blockburger test stated that if it reveals that the offenses have identical statutory elements or that one offense is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred.
Here, we conclude Craig’s conviction for the possession offense is a lesser included offense of manufacturing; therefore, the manufacturing offense was barred by the double jeopardy clause. The offense of possession of a controlled substance contains no element that is different from that of manufacturing. While the term “possession” is not defined in the Uniform Controlled Substances Act, that term has been defined as meaning “the act of having or taking control.” Webster’s New Collegiate Dictionary. See also AMI Criminal, 3304 (Possession of a Controlled Substance) (which sets out a bracket paragraph stating two kinds of possession, actual and constructive. Actual possession of a thing is direct physical control over it and constructive possession exists when a person, although not in actual possession of a thing, has the right to control it and intends to do so, either directly or through another person or persons.) In proving the offense of manufacturing, the state must necessarily show the defendant has control of the controlled substance in order to manufacture it. That being so, possession of the substance is necessarily a lesser included of the offense of manufacturing.
In conclusion, we must consider the state’s argument that Craig has failed to prove a double jeopardy bar because Craig did not provide a record showing that the prosecutor’s office was informed of Craig’s appearance in municipal court and of his guilty plea. The state cites § 5-1-115(2) (1987) which provides that a former prosecution is not an affirmative defense when “the former prosecution was procured by the defendant without the knowledge of the appropriate prosecuting official or aggrieved party and with the purpose of avoiding the sentence which might otherwise be imposed.” Further, the state cites a line of cases to support its argument that if a representative of the prosecution is not present at a plea made in municipal court, subsequent prosecution for the same offense in circuit court is not barred by double jeopardy.
The state cites Bradley v. State, 32 Ark. 722 (1878). There, the state proceeded against Bradley for misdemeanor assault before one justice of the peace. Having failed to obtain service on Bradley, the state filed an indictment in circuit court. Bradley subsequently appeared on his own before a different justice of the peace and pled guilty to the assault charge and paid a $5 fine and cost. Finding that the justice of the peace had lost jurisdiction, this court held that “to render the plea of former conviction availing, the court must not only have jurisdiction, but the proceedings must be regular.” Id. at 726. Thus, this court found that the plea by Bradley of former conviction was unavailable as a bar to prosecution in circuit court. Bradley can be distinguished in a number of ways. First, the justice of the peace court had lost jurisdiction of the case, second, the prosecution was for the same offense, and last, Bradley appeared before the justice of the peace only after an indictment from circuit court was filed in an effort to obtain a lesser sentence.
State v. Caldwell, 70 Ark. 74, 66 S.W. 150 (1902), is similar in holding that a “collusive prosecution” is no bar to a subsequent prosecution for the same offense. There, proof was offered that Caldwell’s attorney instigated a hearing before the justice of the peace at a time earlier than the prosecutor was informed that the hearing would be.held. Even though the prosecutor had indicated that he could not attend the hearing before the justice of the peace, this court stated that it was for the jury to determine whether or not the evidence was sufficient to show that the purpose of the hearing before the justice of the peace was to elude prosecution for the same offense in the circuit court, thus allowing the defendant to receive a lighter sentence.
In another case with evidence of collusive prosecution by a justice of the peace, this court stated that under these circumstances, the state is no party in fact but only in name. State v. Ketchum, 113 Ark. 68, 167 S.W. 492 (1914).
As mentioned previously, Craig pled guilty to possession in municipal court, and the offense tried in circuit court was a different offense, manufacturing. Further, the state has failed to show that Craig procured or instigated his prosecution in municipal court. In fact, the record shows that Craig complied with the police officer’s citation, directing him to appear in municipal court. Having no defense to the possession charge, Craig chose to appear pro se and pled guilty on the date he was ordered to appear. Craig’s appearance before the municipal court was discussed at length several times before the circuit court judge. At no time during those discussions did the prosecutor indicate that Craig sought out the municipal court hearing for a collusive purpose. The record reflects only that the prosecuting attorney did not go to arraignments in municipal court, not that he was unaware Craig’s possession charge was pending in that court. In sum, the state’s argument invoking § 5-1-115(2) is meritless.
For the reasons above, we reverse and dismiss.
While not in issue here, we note for clarity that the Arkansas Constitution requires felonies to be charged by information or indictment, and municipal courts are without jurisdiction to try felony cases. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984).
Again, while not in issue, we note that Craig was convicted of a class C felony which prescribes an imprisonment term of not less than three years nor more than ten years and shall be fined an amount not exceeding $10,000. Ark. Code Ann. § 5-64-401 (a) (1)(iii) (Supp. 1991).
The term does not include the preparation or compounding of a controlled substance by an individual for his own use or by practitioners as provided in subsections (1) and (2) of provision 5-64-101 (m). | [
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Tom Glaze, Justice.
Michael Furlough appeals his conviction of aggravated robbery. Because he had four felonies, he was tried and convicted as a habitual offender and received a sentence of forty years imprisonment. He raises two points for reversal.
First, Furlough argues the trial court erred in allowing into evidence two officers’ reports containing Furlough’s confessions to robbing the Hurry Back store in El Dorado and an attempted robbery at Calion, Arkansas. Furlough was charged with the robbery on December 17, 1991, and afterwards he moved for discovery under Ark. R. Crim. P. Rule 17. On March 12, 1992, four days prior to trial, defense counsel first learned from Lt. Carolyn Dykes that she and Sergeant Byron Sarter had read Furlough his rights after his arrest, and each officer had obtained separate oral confessions from Furlough concerning the Hurry Back store robbery and the attempted robbery at Calion. The officers included these confessions in their respective reports and filed them with the El Dorado Police Department where they remained until Furlough’s counsel located them on March 12. Furlough subsequently moved to suppress the confessions, and the trial court ordered a continuance until a hearing could be conducted on Furlough’s motion. A hearing was held on April 23, 1992, when the trial court denied Furlough’s motion and set a new trial for May 14, 1992.
Furlough contends that he never confessed to any robbery and that the trial court should have disallowed introduction of the officers’ reports containing his purported confessions because the state failed to disclose this material pursuant to Discovery Rule 17.
Rule 19.7(a) contains the following list of remedies that the court may employ when a party has failed to comply with the rules of discovery: (1) order such party to permit the discovery or inspection of materials not previously disclosed, (2) grant a continuance, (3) prohibit the party from introducing in evidence the material not disclosed, or (4) enter such order as it deems proper under the circumstances. It is within the trial court’s discretion which sanction to employ, and here the trial court offered Furlough a continuance to deal with the surprise caused by the state’s failure to reveal the officers’ reports containing the confessions. See Reed v. State, 312 Ark. 82, 847 S.W.2d 34 (1993). We have held a continuance may be sufficient to cure the state’s failure to comply with the discovery rule. Id. Here, Furlough fails to show how he was prejudiced. The trial court’s continuance gave Furlough two months to prepare his case after having become aware of the officers’ reports. Accordingly, we find no merit to Furlough’s first argument.
Next, Furlough contends that the trial court erred in failing to grant his motion for mistrial when Lt. Dykes, on direct examination by the state, referred to “other robberies” with which Furlough was not charged. That colloquy follows:
State: All right. What did Mr. Furlough tell you about his involvement in this armed robbery?
Dykes: He told me very little. He denied having committed any robberies. In fact Mr. Furlough became hostile and belligerent as I attempted to interview him concerning the robberies . . .
State: Can you be a little more specific about how he demonstrated this hostility or what kinds of things he was saying to you that demonstrated hostility?
Dykes: I went into detail to explain to Mr. Furlough why he was a suspect in the other robberies that he was not charged with.
Defense Counsel: May we approach the bench?
Court: Yes.
PROCEEDINGS OF SIDE BAR:
Defense Counsel: You’re talking about a bunch of stuff here that he’s not even been charged with. She’s mentioned other robberies three times.
Court: Is that your objection?
Defense Counsel: Yes, I’m objecting to it, and moving for a mistrial.
Court: Well, I think there is a problem with eliciting testimony about other events with which the defendant has not been charged.
State: The only basis at this point is the fact that the confession includes a confession to one of the other robberies. I’ll limit the questions and I’ll be very specific.
Defense Counsel: I would move for a mistrial, Your Honor.
Court: Well, it’s going to be denied.
State: I will limit the testimony just to this particular incident. But in the conféssion there will be testimony that he has confessed to that robbery at the Hurry Back and also to the store in Calion.
Court: Mr. Hoggard [defense counsel], do you wish me to instruct the jury that they’re not to consider other events with which this defendant [is] charged?
Defense Counsel: I would respectfully request that, Your Honor. But I want it noted that I make my exception to the ruling of the Court in not granting a mistrial.
TO OPEN COURT:
Court: Ladies and gentlemen of the jury, Lieutenant Dykes and one other officer have made reference to what has been described as a series of robberies or other robberies. I simply want to remind the jury at this time that this case involves only the specific offense, an incident, that has been described and as alleged in the information. This trial does not concern itself with other previous events and you are not to consider these references in any way with respect to your deliberations as to the specific charges in the case that we have before the Court and the jury today.
You may proceed.
State: Lieutenant Dykes, perhaps I need to ask you a more narrow question. You spoke with him about his participation in this robbery, is that right?
Dykes: That’s correct.
State: And did he give you answers with regard to this robbery?
Dykes: Very few answers. Mr. Furlough spent most of his time in his conversation attempting to, how shall I say, explain to me that he was not capable of having committed those robberies.
State: I want to know about this robbery.
The foregoing colloquy reflects the trial court agreed that Dykes’ references to other robberies were inadmissible and upheld Furlough’s objection by giving a cautionary instruction. Nonetheless, Furlough maintains on appeal that only a mistrial would have corrected the introduction of such objectionable testimony.
As this court has said on numerous occasions, mistrial is a drastic recourse and should be ordered only when the fundamental fairness of the trial itself has been manifestly affected. Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). A mistrial is to be granted only where any possible prejudice cannot be removed by an admonition to the jury. Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). Here, the trial court gave the jury an admonition to limit its concern and deliberations to the offenses alleged in the state’s information and not to consider the references to other robberies. Defense counsel requested such an admonition, and while he continued his request for a mistrial, counsel made no objection to the remarks or cautionary instruction the trial court made in this regard. In view of the trial court’s admonition, we believe the trial court did not abuse its discretion in denying Furlough’s mistrial motion. The trial court’s admonition was particularly appropriate in light of Furlough’s confessions which apprised the jury not only of his admission to having committed the aggravated robbery of Hurry Back, but also of his attempted robbery in Calion, Arkansas. Certainly, Dyke’s references paled in comparison to Furlough’s actual confessions to the robbery with which he was charged.
In sum, we conclude the trial court’s admonition during Officer Dykes’ testimony was sufficient to remove any prejudice caused by the officer’s improper reference to other robberies. Therefore, we affirm.
Although Furlough moved to suppress his confessions because the state failed to provide them in timely fashion, no objection was made to strike the Calion attempted robbery offense because he had not been charged with such an offense. The other robberies alluded to by Dykes dealt with a series of separate robberies. | [
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Per Curiam.
For his motion for reconsideration of this court’s denial of his September 10, 1993 request for writ of certiorari, appellant tenders the affidavit of Betty Voltz, court reporter, which states that she has been unable to prepare the record in this case, but given an additional thirty days, she will do so. Appellant had obtained a court order extending the time to file the transcript in this cause until September 12,1993, which date was the maximum length of time to lodge such transcript with this court. Prior to September 12, 1993, appellant timely filed his motion requesting the court reporter to file the record in this matter, but having stated no reason for the delay, we denied his request.
The court, having now been given the reason for the transcript not having been timely filed, grants appellant’s petition for writ of certiorari and directs Ms. Voltz to complete and file the transcript forthwith.
The court forwards a copy of this per curiam to the Board of Certified Reporter Examiners for any action it may deem necessary under its rules.
Corbin, J., not participating. | [
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Robert H. Dudley, Justice.
Damon Boyd applied for work with Metro Temporaries. Metro is an agency that assigns its applicants to work on a temporary basis for third party companies. Metro assigned Boyd to work four hours for Didier Nurseries. Boyd accepted the assignment and was injured while working on the job. The sole issue on appeal is the method of determining the amount of weekly disability benefits Boyd is entitled to receive under the applicable Workers’ Compensation statute.
The essential facts are that Boyd applied for work with Metro on March 21, 1990. The next day Metro assigned him to work at Fort Smith Plastics, and he received $3.80 per hour from Metro for that work. He worked on that job for approximately thirty hours a week over the next five weeks. On April 25, he suffered a compensable injury. On May 1, he was released to go back to work. Metro offered to reassign him to Fort Smith Plastics, but he refused to do the work. Under his application with Metro, he could refuse to work for a third party, and, even if he accepted an assignment, he was not bound to work any set number of hours. On May 10,1990, Metro assigned him to a job at Didier’s Nursery in Fort Smith. His job was to unload peat moss and his rate of pay from Metro was the same as in the previous job, $3.80 per hour. The Didier job was to last only four hours, and, while unloading peat moss, Boyd injured his knee. Metro, the carrier, and Boyd could not agree on the amount of the weekly permanent partial disability benefit to which Boyd was entitled.
At a worker’s compensation hearing, the parties stipulated to every issue except the amount of weekly disability benefits Boyd was to receive for his permanent partial disability. The administrative law judge considered the hours worked for Metro on both the Fort Smith Plastics and the Didier job assignments and found that Boyd’s benefit rate was $76.17 per week. Metro appealed to the Arkansas Workers’ Compensation Commission. The Commission ruled that Boyd’s “contract of hire in force at the time of the accident” was the four hour job at Didier’s Nursery at the rate of $3.80 per hour, and that, as a result, Boyd was only entitled to the statutory minimum of $20.00 per week. Boyd appealed to the court of appeals. The court of appeals reversed the Commission, and remanded for a determination of appropriate benefits. Boyd v. Metro Temporaries, 41 Ark. App. 12, 846 S. W.2d 668 (1993). We affirm the holding of the court of appeals.
The applicable statutes are as follows:
Ark. Code Ann. § 11-9-518, in part, provides:
Weekly wages as basis for compensation
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment. [Emphasis supplied.]
Ark. Code Ann. § 11-9-519(a) provides that the benefit for total disability shall be two thirds of the average weekly wage. Ark. Code Ann. § 11-9-501 provides the maximum and minimum benefits.
We first interpreted Ark. Code Ann. § 11-9-518(a)(1) and the benefits owing to injured workers who are assigned to temporary jobs in Travelers Ins. Co. v. Perry, 262 Ark. 398, 557 S.W.2d 200 (1977). In that case, Perry made himself available for work at Manpower, Inc., an employment agency similar to Metro in the case at bar, assigned him to work for a third party. Perry was on Manpower’s roll from May 27 through July 2,1975. During that entire time Perry only worked four days at different jobs. He was injured on the last job. The Commission held that Perry was entitled to be compensated for a forty-hour week since he had made himself available to work forty hours a week. The Commission relied on Gill v. Ozark Forest Products, 255 Ark. 951, 504 S.W.2d 357 (1974), in which a timberman’s widow was allowed to collect compensation for a full week even though the claimant frequently did not work a full forty-hour week. We distinguished Gill v. Ozark Forest Products and reversed because Gill was under contract to work forty hours at an agreed rate whenever work was available. We wrote, “In Gill, it was undisputed that the worker had a ‘contract of hire in force ’ which provided for a forty-hour work week at an agreed rate whenever work was available.” Perry, 262 Ark. at 400, 557 S.W.2d at 201 (emphasis supplied). Perry, however, was not bound under a contract of hire to be available for work forty hours a week, and, as a result, we held that he should only be compensated for the hours actually worked. Since Perry had worked only four days at $2.20 per hour he was entitled to only the statutory minimum regardless of whether his wages were averaged over his entire tenure with the employment agency or whether each temporary job was considered separately. We made no holding on whether each temporary job assignment might be considered a separate “contract of hire in force.”
In Ryan v. NAPA, 266 Ark. 802, 586 S.W.2d 6 (1979), we applied Ark. Code Ann. § 11-9-518(a) to a part-time employee and upheld the commission’s computation of a part-time employee’s benefits on a work week of twenty hours. The same statute has been applied repeatedly for part-time, seasonal, and relief employees. See Wright v. Tyson Foods, 28 Ark. App. 261, 773 S.W.2d 110 (1991); Mack Coal v. Hill, 204 Ark. 407, 162 S.W.2d 906 (1942).
The court of appeals more recently considered a case involving an injured worker who was temporarily assigned by an agency to a third party. In that case, TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991), the worker was assigned to a forty hour a week job with pay at the rate of $3.50 per hour. Shortly afterwards, she accepted an assignment to another forty hour a week job which paid $5.50 per hour. She worked on that job “at least three weeks, closer to a month.” The Commission computed her benefits based upon a forty-hour week at $5.50 per hour. On appeal to the court of appeals, TEC argued that the benefit should have been computed by averaging the wages she was paid on both jobs. The average hours worked was apparently not contested. The court of appeals rejected TEC’s argument and held that the Commission’s ruling on the average wage was supported by substantial evidence. The court’s opinion did not discuss the issue of the “contract of hire in force at the time of the accident.” Perhaps the statutory language was not argued by TEC in its brief, but, for whatever reason, it is significant that the issue was omitted from the opinion.
The the next case on the subject is the case at bar. In this case, the court of appeals considered Travelers Ins. Co. v. Perry and TEC v. Underwood and concluded that, under Travelers Ins. Co. v. Perry, the proper standard for determining benefits due the injured worker when he or she is assigned to the job by an agency would be to average the employee’s wages when the employee is working on an assignment of less than a full week at the time of injury, but, under TEC v. Underwood, when an injured worker is working on an assignment of forty hours or more per week the wages should not be averaged, but rather the benefits should be based on the hours and wages for that one week. Boyd v. Metro Temporaries, 41 Ark. App. 12, 15 (1993).
Metro asked this court to review the court of appeals decision and we granted review. In its petition, Metro asserts that all temporarily assigned, injured workers should be treated in the same manner, and whether they later accept assignments of ten hours a week or accept assignments of forty hours a week makes no difference in the “contract of hire in force.” From that premise, Metro argues that the contract either is or is not a “contract of hire in force.” It argues that the statute cannot correctly be construed to provide that there is no “contract of hire in force” when the employee works forty hours a week, but there is such a “contract of hire in force” when the employee works only ten hours a week. Metro further contends that in TEC v. Underwood, the court of appeals held that the wages paid during the forty-hour week in which the worker was injured did not have to be averaged, and that constituted an implied holding the “contract of hire in force and effect at the time” was the contract with the third party. Finally, Metro contends that the court of appeals holding in this case is inconsistent with TEC v. Underwood. Metro’s arguments are meritorious to this point. However, Metro goes further and asks us to overrule the court of appeals decision in this case and to apply the TEC rationale. The result would be that Boyd’s benefit would be based upon his assignment to Didier’s Nursery for four hours at a wage of $3.80, or the minimum statutory benefit. We decline the invitation to overrule the court of appeals in this case.
In support of its argument against averaging of wages, Metro, citing Curtis v. Ermert Funeral Home, 4 Ark. App. 274, 630 S.W.2d 57 (1982), suggests that precedent prohibits an award of compensation based upon the wages received and hours worked at two jobs. We are not persuaded that the cited case prohibits averaging. In that case the claimant worked for two employers, and sustained a compensable injury at one of the jobs. He sought to have the wages from both jobs combined in determining his benefits. The court of appeals held that there was no provision in the statutes authorizing combining incomes from two employers, and that the worker is limited to compensation based upon the wages he was earning under “the contract in force at the time of the accident.” However, the facts in Curtis v. Ermert Funeral Home do not govern this case because Metro is the sole employer under the applicable statute. In Marianna School Dist. v. Vanderburg, 16 Ark. App. 271, 700 S.W.2d 381 (1985), the court of appeals explained the rationale of Curtis v. Ermert Funeral Home, and held that an employee who is working two jobs for the same employer can receive compensation by combining the wages of the two jobs. The court explained:
We find a sound basis for a distinction between the combining of wages earned in concurrent employments with different employers and those earned in concurrent ones with the same employer. The combining of wages from different employers would impose on the employer a liability of which he might not be aware and had not assumed and upon the carrier one for which it was not compensated by premiums. Here the injured worker worked full-time for the same employer and insurance premium computations were based on the waged paid her in both employments.
Vanderburg, 16 Ark. App. at 274, 700 S.W.2d at 383.
In conclusion, Travelers Ins. Co. v. Perry holds that an injured worker like Boyd cannot receive benefits based on a forty-hour week without actually having worked forty hours, unless the worker can prove he or she was bound by contract to work the forty hours if the work were made available. Perry, 262 Ark. 400, 557 S.W.2d at 201. In Ryan v. NAPA, a case involving part-time work, we said that the average weekly wages of the appellant should be computed on the basis of a normal part-time work schedule of twenty hours per week, plus overtime actually worked. Ryan, 266 Ark. at 804, 586 S.W.2d at 7. In Marianna School Dist. v. Vanderburg, the court of appeals held that the statute provides for benefits based upon the combining of wages and hours worked at different jobs, if the different jobs are performed for the same employer. Vanderburg, 16 Ark. App. at 274, 700 S.W.2d at 383. In this case Metro understood that it was the employer because it paid Boyd’s wages, obtained compensation coverage, and stipulated that it was the employer. Metro anticipated assigning Boyd to different jobs, with different hours, and at different wages. Metro assigned Boyd to different jobs pursuant to the contract of hire in force at the time of the accident. Under the cases interpreting the statute, Boyd is entitled to receive benefits based upon averaging the hours worked at the different jobs. Accordingly, we affirm the holding of the court of appeals remanding this case to the Workers’ Compensation Commission for a determination of appropriate relief. We overrule TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991), to the extent it is in conflict with this opinion.
Affirmed. | [
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Per Curiam.
Intervenor Sunland Enterprises, Inc. moves this court for a Rule on the Clerk and advances the argument that the Supplemental Decree in this matter was the final judgment which disposed of all issues regarding all parties, including the issues brought to conclusion by an earlier decree. According to the argument, the record which was tendered in timely fashion with respect to the Supplemental Decree was also effective with respect to the original Decree. We do not agree and rule that the appeal was only perfected for the Supplemental Decree.
The plaintiffs in this matter were homeowners who sued the Cabot Planning Commission to enjoin a developer, Sunland, from road construction that would affect their lots. Sunland intervened. On October 21, 1992, the chancery court in its Decree permanently enjoined the road construction at issue and assessed costs and attorney fees against Sunland. Sunland moved to amend the decree and for a new trial on October 30, 1992. No ruling was made on that motion, and it was deemed denied under Ark. R. App. P. 4(c) on November 29, 1992.
On December 22,1992, a Supplemental Decree was entered for the purpose of supplementing the October 21,1992 decree. In that decree, plaintiffs’ prayer for a writ of mandamus was denied; Sunland’s cross complaint was dismissed (this was also apparently done in the original decree); and prior rulings of the chancery court on motions by the parties were memorialized. The Supplemental Decree states that “the decree filed herein on October 21, 1992 shall remain in full force and effect and is supplemented by the rulings herein which are meant to completely dispose of all issues in litigation and to be a final judgment on all issues.”
Sunland also filed its notice of appeal on December 22,1992, which stated that the appeal was taken from both the October 21, 1992 Decree and the December 22, 1992 Supplemental Decree. An extension for filing the record was timely filed and granted until July 19, 1993.
Sunland tendered the record on July 14, 1993, and it was refused by the clerk of this court as untimely. The motion for rule on the clerk followed.
Sunland fervently contends that the Supplemental Decree was the final judgment under Ark. R. Civ. P. 54(b) and that an appeal from the October Decree would have been futile since all the issues had not been disposed of. While that may well be, the fact that a supplemental decree may have been warranted as a clean-up measure does not absolve an appealing party from the responsibility of filing the transcript relative to the original decree in a timely manner.
Our rule on the timely filing of the record when an extension has been requested is clear:
In no event shall the time be extended more than seven (7) months from the date of the entry of the judgment, decree or order, or from the date on which a timely postjudgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4(c), whichever is later.
Ark. R. App. P. 5(b). Here, the postjudgment motion regarding the October 21, 1992 Decree was deemed denied on November 29,1992. The seven-month period from that date expired on June 29, 1993, and the record was not tendered until July 14, 1993.
The clerk correctly refused to file the record with respect to the October 21,1992 Decree. The record, however, was timely filed regarding the December 22, 1992 Supplemental Decree. Only the issues between the parties embraced in the Supplemental Decree shall be considered on appeal. | [
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Jack Holt Jr.,
Chief Justice. The appellant, Mitchell Jenkins, was charged by information with the offense of DWI 4th Offense, and he initially pled not guilty. Prior to trial, Jenkins filed a “motion in limine to suppress use of prior [DWI] conviction for lack of proper waiver of counsel.” Thereafter, the trial court found that Jenkins had intelligently, knowingly, and voluntarily effected the waiver of counsel.
Later, Jenkins pled guilty to the charge of DWI 4th Offense pursuant to Ark. R. Crim. P. 24.3(b), under the assumption that it allowed him to enter a conditional plea of guilty by preserving his right to seek appellate review of the trial court’s denial of his motion to suppress a prior DWI conviction.
Jenkins was sentenced to three years imprisonment in the Arkansas Department of Correction, a $900.00 fine, $302.55 court costs, three year suspension of driving privileges, and inpatient treatment at the Quapaw House.
On appeal, Jenkins asserts that the trial court erred in finding an effective waiver of counsel. We find that the judgment being appealed is not encompassed within Rule 24.3(b). Consequently, this court is without jurisdiction to hear this appeal.
Arkansas R. Crim. P. 36.1 provides, in pertinent part, that “[e]xcept as provided by Rule 24.3(b) there shall be no appeal from a plea of guilty or nolo contendré [contendere].” Rule 24.3(b) provides as follows:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendré [contendere], reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his pleas.
Jenkins’s motion in limine to suppress the use of a prior conviction as evidence is distinguishable from the suppression of evidence contemplated by Rule 24.3(b). A motion to suppress evidence presupposes that the evidence was illegally obtained. Here, we are simply dealing with the admissibility of evidence, rather than “illegally obtained” evidence. For illustrations of illegally obtained evidence, see Ark. R. Cr. P. Rule 16.2.
In a somewhat analogous case, State v. Russell, 271 Ark. 817, 611 S.W.2d 518 (1981), we addressed the issue of appellate jurisdiction on an interlocutory appeal by the State from a pretrial order denying the admission of a deposition. In Russell, the trial court held that the deposition of the State’s witness who died prior to trial was not admissible and the State brought an interlocutory appeal, pursuant to Ark. R. Cr. P. 16.2(d) and 36.10, contending that the deposition was admissible. We held that the order appealed from dealt only with the admissibility of evidence in the form of a deposition and not with the suppression of evidence and that the pretrial order was, as a result, not appealable.
In this case, too, we are presented with the admissibility of Jenkins’s prior DWI conviction and not with the suppression of evidence as contemplated by Rule 24.3(b).
Appeal dismissed. | [
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Per Curiam.
The appellant, Jackie Ferguson, originally filed a complaint in United States District Court against the appellee, Sunbay Lodge, Ltd. (Sunbay), and John Aulgur and alleged causes of action under Title VII and state law tort claims of assault, battery, outrage, and negligence. Ferguson’s state law tort claims were dismissed by the court and she subsequently voluntarily dismissed her Title VII claim.
Ferguson then filed suit against Sunbay in Garland County Circuit Court and alleged that Sunbay’s former manager sexually harassed her while she was employed with Sunbay. Ferguson claimed that these acts constituted the torts of outrage and negligence, for which Sunbay was liable. The trial court dismissed Ferguson’s suit with prejudice because it was barred by statutes of limitation. Ferguson has attempted to appeal from the trial court’s order and, as a result, Sunbay has moved to have the appeal dismissed pursuant to Ark. R. App. P. 4(c), which provides as follows:
If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additional fees shall be required for such filing. (Emphasis added.)
The sequence of events in this case is as follows:
June 22, 1989 Order of Dismissal
July 3, 1989 Appellant’s motion for new trial
July 17, 1989 Appellee’s response to motion for new trial.
July 20, 1989 Appellant’s notice of appeal.
August 3, 1989 Appellant’s reply to appellee’s response to motion for new trial
September 27, 1989 Order denying motion for new trial
As noted above, Ferguson filed a motion for new trial prior to filing her notice of appeal. According to Rule 4(c), Ferguson’s time for appeal would run either from entry of an order on the motion or on the thirtieth day from filing the motion, whichever came first. The 30 day provision is applicable here as the relevant date initiated by the motion for new trial was August 2,1989, and the order denying the motion for new trial was not filed until September 27, 1989.
Consequently, the 30 day time period in which Ferguson had to file a notice of appeal, pursuant to Ark. R. App. P. 4(a), began to run on August 2, 1989.
Ferguson’s July 20, 1989, notice of appeal, which was filed before the disposition of'her motion for new trial, had no effect. In this case, our rules specifically require that a new notice of appeal must have been filed within the prescribed period, as measured from the expiration of the 30 day period. This was not done; therefore, Sunbay’s motion to dismiss is granted.
Hickman and Purtle, JJ., would grant. | [
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Steele Hays, Justice.
Appellant Betty Mabry and appellee Mary McAfee are stepsisters. Betty Mabry’s father, Darrell Hunt, and Mary McAfee’s mother, Stella, married years ago when the girls were children.
In March 1977, Darrell and Stella Hunt executed complementary wills leaving the entire estate to the survivor with a provision that if the other spouse predeceased, “then to my children, Betty Mabry and Mary McAfee to be divided equally.” Darrell’s will, dated March 10,1977, nominated Stella to execute his will. Stella’s will, dated March 8,1977, nominated Joe Hunt, Darrell’s brother, to serve as executor.
Darrell Hunt died in August of 1978 and on March 19,1979, Stella executed a codicil to her will nominating Mary McAfee to serve as executor, declaring that “my other child, Betty Mabry, shall be excluded from receiving any of my personal property” and bequeathing all personal property to Mary McAfee.
In May 1988, Stella Hunt died and after her will and codicil were admitted to probate Betty Mabry brought this suit in chancery for specific performance of an alleged agreement between Darrell and Stella Hunt culminating in the execution of reciprocal wills which Stella Hunt had altered by codicil.
Ms. Mabry testified that her parents divorced when she was about ten, that she was raised by her mother in Little Rock, but visited her father and stepmother in Briggsville at least twice a year. She said she was present at several discussions between her father and stepmother as to their plans for disposing of their properties, that everything was to be divided between the two girls. After her father died, Stella sold the home place at Briggsville.
Joe Hunt testified about conversations with Darrell and Stella Hunt regarding their plans, that it was Darrell’s desire that the property be divided between Mary and Betty, that Stella told him they had made their wills and their desire was that the property be split evenly between the girls. He said the lands conveyed to Darrell and Stella as husband and wife were ancestral lands which Darrell had inherited from the Hunt estate. Joe’s wife, Mary, testified that Darrell wanted his property to be shared equally between the two girls, that Stella had talked to her a number of times about their agreement that the property would be equally divided, that she wanted it that way at her death, and that they had made wills leaving everything equally to the girls.
The wife of another of Darrell Hunt’s brothers testified to frequent conversations with Stella, that Stella told her she was going to spend whatever she wanted and when she was gone it would be divided equally between Betty and Mary, the last such conversation with Stella having been two weeks before Stella’s death.
When the plaintiff rested the chancellor remarked that the proof failed to establish an agreement by clear and convincing evidence, and while there may have been an intention to divide the estate equally between the children, he had not heard sufficient evidence to establish an agreement between Darrell and Stella Hunt to honor the wishes of each other and to be bound by them. Intentions, he noted, are subject to change, contracts are not.
Ms. Mabry has appealed, urging that the chancellor erred in refusing to enforce a bilateral contract that resulted in the execution of reciprocal wills by Darrell and Stella Hunt. We are not persuaded the chancellor clearly erred and accordingly we affirm the decree.
While we review chancery cases de novo, we recognize the superior position of the chancellor to weigh issues of credibility and therefore we do not reverse unless such findings are clearly against the preponderance of the evidence. Hackworth v. First National Bank of Crossett, 265 Ark. 668, 580 S.W.2d 465 (1979). ARCP Rule 51.
It is generally true that while an agreement to make irrevocable, reciprocal wills can be inferred from relevant circumstances, the fact that the parties have contemporaneously executed separate wills, reciprocal in terms, is not sufficient in itself to establish a binding contract to make such wills. Barksdale v. Carr, 235 Ark. 578, 361 S.W.2d 550 (1962); James v. Rogers, 224 Ark. 116, 271 S.W.2d 930 (1954). The law has traditionally demanded a relatively high standard of proof of such agreements. Evidence of that requirement can be seen in Act 568 of 1981 [Ark. Code Ann. § 28-24-101 (1987)], providing that agreements to make a will can be established only by express provision in writing or in the will itself. However, the act does not purport to affect agreements made prior to June 17,1981, and has no application here.
Appellant concedes that the law places a heavy burden of proof upon a litigant who alleges a binding contract not to revoke or alter a will. Morris v. Cullipher, 299 Ark. 204, 772 S.W.2d 313 (1989); Barksdale v. Carr, supra; James v. Rogers, supra. Even so, appellant maintains the testimony of the four witnesses noted above was sufficient to meet that burden. But we cannot say the chancellor was compelled to accept that testimony, or was clearly wrong in not finding that a binding agreement existed between the Hunts to leave their wills intact. Ms. Mabry and the witnesses called in her behalf were all related by blood or marriage and their testimony did not have that degree of disinterest which would render it obligatory on the fact finder. Gilbert v. Diversified Graphics, 286 Ark. 261, 691 S.W.2d 162 (1985); Bittle v. Smith, 254 Ark. 123, 591 S.W.2d 815 (1973); Skillern v. Baker, 82 Ark. 86, 100 S.W. 764 (1907).
Even if the plaintiffs proof is taken at face value, it would be difficult to say that the existence of a binding agreement not to change the wills was shown by evidence that was clear and convincing beyond a reasonable doubt. Jensen v. Housley, Administrator, 207 Ark. 742, 182 S.W.2d 758 (1944); Walk v. Barrett, 177 Ark. 265, 6 S.W.2d 310 (1928).
Since we cannot say the chancellor clearly erred, the decree is affirmed. | [
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Per Curiam.
Willie B. Gilmer has tendered a petition to this court for a writ of mandamus to the Circuit Court of Jefferson County, Arkansas. Our clerk has refused to file the petition because it was not accompanied by a certified record from the Circuit Court of Jefferson County, to whom the writ would be addressed. Petitioner contends that under Rule 16 of the Rules of the Supreme Court and the Court of Appeals petitions for mandamus, among others, with their exhibits, “are treated as the record,” requiring only the original typewritten copy. Even so, petitioner has not included the judgment of commitment, nor has he provided us with a certified copy of the proceedings in the Jefferson Circuit Court. Without these matters, properly certified, we cannot determine the merits of his allegations.
Accordingly, the motion for a rule on the clerk is denied. | [
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Robert H. Dudley, Justice.
The jury returned a defendant’s verdict in this case involving a car wreck at an intersection. The trial court granted the plaintiffs motion for a new trial. We reverse and dismiss.
In 1982, we amended ARCP Rule 59(a)(6) to state that a trial judge can set aside a jury verdict only when it is “clearly contrary to the preponderance of the evidence. . . .” Clayton v. Wagnon, 276 Ark. 124, 633 S.W,2d 19 (1982). The trial judge cannot substitute his view of the evidence for that of the jury. Bryant v. Sorrells, 293 Ark. 276, 737 S.W.2d 450 (1987). If the trial judge denies the motion for a new trial, we will affirm if there is any substantial evidence to support the verdict. If he grants the motion for a new trial, we will affirm if he did not abuse his discretion in finding that the verdict was clearly against the preponderance of the evidence. Brown v. Wilson, 282 Ark. 450,669 S.W.2d 6 (1984). In this case the trial judge abused his discretion because the jury’s verdict was not clearly against the evidence.
Appellant Scott Schrader, a sixteen-year-old high school student who had gone home for lunch, got into his father’s Chevrolet Malibu to drive back to school. He had not driven that particular car in four weeks, but when he last drove it, the brakes worked satisfactorily. According to appellant, he left home and started down a rather long hill at about 30 or 35 miles per hour in a 30 mile per hour zone. The road curved, and he began to apply his service brakes. They worked satisfactorily, and he was unaware they might later fail. He continued to slow down because there was a stop sign at the intersection at the bottom of the hill. When he was 10 to 15 feet from the stop sign, and going 10 to 15 miles per hour, he began to apply more pressure to the brake pedal. He had both feet on the brake pedal. Suddenly, and without warning, the pedal went to the floor, and the service brakes failed. Appellant, headed in an easterly direction, ran past the stop sign and into the intersection. He testified that, as he entered the intersection, he took evasive action by swerving to the right, but could not keep from running into appellee’s pick-up truck. He stated that his testimony was substantiated by the physical evidence which does show that the far left part of appellant’s front bumper struck appellee’s right door.
Appellee was driving his pickup truck in a southerly direction on the intersecting road. He testified that his speed was about 35 miles per hour in a 40 mile per hour zone. He stated that as he approached the intersection he noticed that appellant, who was going 15 to 20 miles per hour, was excited and trying to do something like apply the brakes, but it was obvious appellant’s car was going to ram appellee’s truck. Appellee swerved into the left lane, and appellant’s car hit the right side of his truck. Appellee did not state whether appellant attempted to swerve his car or take any other evasive action to avoid the wreck. He was asked a question which was designed to elicit such testimony, but it did not do so. The question and answer were:
Q. Did you see the defendant [appellant] do anything to try to avoid this wreck?
A. Er — he appeared to be doing something in the car, I’m not sure if he was — er—if he — if he was just excited or scared or what, but he appeared to be applying the brake.
Appellant put on evidence by an expert mechanic witness who testified that he examined the service brakes on appellant’s car after the accident and found that the master cylinder had blown out the seals on both ends. He stated that on rare occasions a master cylinder without separate pistons, like the one on appellant’s car, can blow out both seals and, when that happens, the service brakes can go out without warning. Further, there would be no leakage or puddling on the surface under the car to warn a driver who is about to enter the car because the leakage is internal. Also, the hydraulic braking system is a pressure system and when the seals are out there is no pressure resistance. It is like “pushing a pencil through a glass of water — there wouldn’t be any resistance there.” Additionally, the appellee did not request an instruction on the duty to maintain brakes in good working order, Ark. Code Ann. § 27-37-501 (1987), or on the speed limit applicable to appellant’s car.
The jury heard the above evidence and the instructions by the trial court and determined that the appellant was not negligent. The trial court granted a new trial because he felt the appellant (1) failed to operate his vehicle in a proper manner, (2) failed to maintain proper control, (3) failed to take evasive action, and (4) failed to react in a1 proper manner. In so ruling, the trial court abused its discretion.
There was no showing that the accident was caused by appellant’s failure to operate his vehicle in a proper manner. Appellant testified that at the top of the hill he was driving 35 miles per hour, and another time he said he was driving 30 miles per hour at that point. The speed limit there was 30 miles per hour. However, he stated he had reduced his speed halfway down the hill to 10 to 20 miles per hour. Appellee stated that appellant was only going 15 to 20 miles per hour, so speed was not a factor which contributed to the accident. There was no suggestion that appellant was out of his lane or violating any of the rules of the road immediately before his brakes failed. There was no instruction on failure to maintain brakes. There was no showing that appellant was at fault in failing to anticipate an abrupt breakdown in his service brake. There was no showing that appellant failed to swerve or take other evasive action.
The appellant only attempted to use his service brakes; he did not attempt to use his emergency brake. At first blush this might seem negligent. However, appellant’s service brake failed when he was 10 to 15 feet from the intersection, and he was traveling at a speed of 10 to 20 miles per hour. At 20 miles per hour, he would be traveling 29.33 feet per second, and at 10 miles per hour 14.67 feet per second. Thus, from the time his service brakes failed and he was applying pressure with both of his feet on the brake pedal, he had less than a second to realize what had happened, react, take his left foot off the service brake pedal, get his left foot on the emergency brake pedal, and apply pressure.
Under these circumstances, the trial judge abused his discretion in holding that the jury verdict was clearly against the preponderance of the evidence.
Appellee asks us to affirm the trial judge’s ruling by applying the standard of strict liability. See Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13 (S.D. 1988). We do not address the argument. Appellee is asking for affirmative relief, as he is asking for a finding of liability against appellant based on strict liability. He did not make such a request at trial. He did not cross-appeal. The jury was instructed, without objection, that a finding of negligence was necessary. Accordingly, we do not consider applying the standard of strict liability in this case.
Reversed and dismissed.
Purtle, J., dissents in part and concurs in part. | [
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Darrell Hickman, Justice.
The appellant was charged with the rape and attempted murder of a two-year-old girl. The jury acquitted him of attempted murder but sentenced him to 40 years for rape. On appeal he contends the trial court erred in not granting his motion for a change of venue and that it was error to allow certain photographs to be admitted into evidence. Additionally, he claims that a state hospital report offered into evidence by the prosecution was hearsay and should not have been admitted. We affirm.
The trial judge denied a motion for a change of venue. The trial occurred a year after the crime. The appellant produced several affidavits which asserted “I do not feel [Cash] should be tried in Cross County.” He also presented the testimony of himself, his grandmother and one other witness that he could not receive a fair trial in Cross County. The state countered with testimony saying Cash could get a fair trial.
A criminal case may be removed to another county whenever it shall appear that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be held in that county. Ark. Code Ann. § 16-88-201 (1987). The decision of a trial court denying a motion to change venue will be upheld unless it is shown the court abused its discretion. O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988). The defendant has the burden of proving a motion to change venue should be granted. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).
The appellant did not have a right to a jury totally ignorant of the crime. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Our review of the voir dire of the jurors in this case shows that, while some had heard of the case or read about it, none of those selected said they could not give the appellant a fair trial. Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989). What the appellant was entitled to and what he got in our judgment was a jury composed of persons who could and did decide the case on the testimony presented in court and not on the basis of news media coverage of the matter. Logan v. State, 299 Ark. 266, 733 S.W.2d 413 (1989).
The record reveals that, in the six months before this trial took place, there was no extraordinary media coverage or local gossip about the crime. Couple that with the voir dire of the jurors and it is plain that the appellant was tried by a fair and impartial jury.
The appellant contends that photographs of the victim and the crime scene should not have been admitted into evidence because they were cumulative, more prejudicial than probative, and intended only to inflame the passions of the jury.
Admissibility of photographs is in the sound discretion of the trial judge and his ruling will not be set aside absent an abuse of discretion. Even inflammatory photos can be admitted if they shed light on any issue or are useful to the jury. Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989). Pictures may also be useful in corroboration of testimony or to show the nature and extent of wounds and the savagery of the attack. Williams v. State, 300 Ark. 84, 776 S.W.2d 359 (1989); Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987).
These photographs were useful for several reasons. First, they were graphic evidence that the child had been raped. They also depicted the bruises on the child and the bloody condition of the bed showing the savagery of the attack. It should be noted that the state was trying to prove both rape and attempted murder. We find no abuse of discretion in entering these photographs into evidence.
The appellant parenthetically argues that the photographs should not have been introduced because he did not contest his guilt but offered the affirmative defense of mental disease or defect. The state still had to prove the appellant engaged in the prohibited conduct. See AMCI 4009. A defendant cannot prevent the state from offering proof simply by conceding a fact. See Williams v. State, supra.
Finally it is argued that the trial court erred in admitting a 1988 state hospital report into evidence. Dr. Paul King, a psychiatrist and a witness for the appellant, had treated Cash in 1983 and diagnosed him as having a borderline personality disorder with suicidal intent. At trial, Dr. King said, “the diagnosis in the state hospital report was drug abuse and antisocial behavior.” He offered his opinion that the appellant was in an alcoholic blackout when he committed this offense. Dr. King said his diagnosis differed from that contained in medical records from the Arkansas State Hospital.
On cross-examination, the prosecutor attempted to introduce the state hospital report into evidence. The appellant objected. The court ruled that the report could be introduced under the hearsay exception in A.R.E. Rule 803(4). Later, on redirect, the appellant used the state hospital report to emphasize the fact that Dr. King had reviewed recent psychiatric reports in forming his opinion.
The trial judge reached the correct result, but used the wrong reasoning. He could have allowed the report into evidence on the ground that the appellant had waived his hearsay objection. See Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989); Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986). '
Affirmed. | [
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David Newbern, Justice.
Randy Burrow has appealed from denial of a motion that he be allowed to introduce evidence of past sexual conduct on the part of his stepdaughter whom he stands accused of raping. Act 197 of 1977 permitted appeal by either the state or the defendant of the court’s action on such a motion. By Act 889 of 1983 the general assembly removed the provision for appeal by the defendant. Burrow argues that the depriviation of his right to interlocutory appeal violates his right to equal protection of the laws. He claims that because Act 889 is unconstitutional his right to an interlocutory appeal is reinstated. We hold Act 889 is not unconstitutional and dismiss the appeal.
Mr. Burrow acknowledges that a number of cases following United States v. Bitty, 208 U.S. 293 (1903), hold that it is not a deprivation of equal protection of the laws to permit an interlocutory appeal by the state but not the defendant in a criminal case. That is so because there is a rational basis for discrimination; if the state ultimately loses it cannot wage an effective appeal of the acquittal, but the defendant can do so with respect to a conviction. Burrow contends, however, that this is not a contest between him and the state but between him and the alleged victim. He cites no authority for that position, and even if we could agree that the alleged victim is the “real party in interest,” we would have no reason to grant this appeal. His argument that he is just as traumatized by the accusation as the alleged victim would be by revelation in open court of her past amounts to no more than an attack on the protective provisions of the “rape-shield law.”
In Dorn v. State, 267 Ark. 365, 590 S.W.2d 297 (1979), we upheld the “rape-shield law,” now codified as Ark. Code Ann. § 16-42-101 (1987), against an equal protection challenge to its provisions designed to protect victims of sex crimes. We have been given no reason to depart from that holding.
Appeal dismissed. | [
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Robert H. Dudley, Justice.
In 1980, the appellant pleaded guilty to first degree murder and aggravated robbery. The murder occurred in the course of the aggravated robbery. He was sentenced for both offenses. The trial court later set aside the conviction for aggravated robbery, the underlying offense. See Ark. Code Ann. § 5-1-110(a)(1) (1987). Appellant now stands convicted only of first degree murder. In a petition for post-conviction relief under A.R.Cr.P. Rule 37, he contends that the trial court, in 1980, failed to establish a factual basis for his plea and failed to establish that his plea was voluntarily or intelligently made. The post-conviction petition was not filed until 1988. The trial court denied relief. We affirm.
Petitions claiming relief pursuant to A.R.Cr.P. Rule 37 must be filed within three (3) years of the date of entry of judgment, unless the ground for relief would render the judgment of conviction absolutely void. A.R.Cr.P. Rule 37.2(c). A ground sufficient to void a judgment of conviction must be one so basic that it renders the judgment a complete nullity, for example, a judgment obtained in a court lacking jurisdiction to try the accused, or a conviction obtained in violation of an accused’s rights against double jeopardy. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). A trial court’s failure to establish a factual basis for a guilty plea is not so basic as to render a judgment of conviction a complete nullity.
Affirmed.
Price, J., not participating. | [
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Per Curiam.
For the reasons set out in Salam v. State, 300 Ark. 630, 781 S.W.2d 30 (1989), we remanded this case so the trial court could conduct an evidentiary hearing concerning whether the petitioner had waived his right to appeal his November 19,1981 conviction for attempted rape. The trial court has conducted its hearing and from the testimony elicited at that hearing, it found the petitioner had requested his counsel to appeal the November 19,1981 conviction, but for no good cause, the appeal was not perfected. The trial court further concluded that the petitioner never waived his right to appeal.
In view of the trial court’s findings and conclusions and the decisions entered by the United States Eighth Circuit Court and the United States Federal District Court of the Eastern District of Arkansas noted in our earlier per curiam, we grant the petitioner’s and state’s joint motion for a belated appeal. Having previously appointed Mr. David Hodges as petitioner’s counsel in this proceeding, we continue that appointment so he may represent petitioner in his appeal. | [
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Per Curiam.
This appeal is dismissed pursuant to ARCP Rule 54(b). The appellants filed suit against Lowrance Brothers and Company, Inc., Commonwealth Savings & Loan Association and others seeking to set aside a foreclosure decree. The chancery court granted summary judgment in favor of Lowrance Brothers, purchasers of land at the foreclosure sale. It is that order from which the appeal is taken.
When more than one claim for relief is presented or multiple parties are involved, an order adjudicating fewer than all the claims or the liability of fewer than all parties does not terminate the action. This appeal is clearly premature because (1) the chancellor has made no ruling regarding Commonwealth, which is still a party to the suit, and (2) the chancellor has not yet decided whether he will set aside the judgment. See Tulio v. Arkansas Blue Cross and Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984).
Appeal dismissed. | [
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Darrell Hickman, Justice.
The questions posed by this case are whether the legislature can cut off a claim of adverse possession before it vests, and is that what occurred in this case? The answer to both questions is yes.
The facts are not disputed. The appellants took possession of certain land in Hot Spring County in 1975. The appellee school district claimed the land under a deed, recorded in 1951, from the federal government. On September 11, 1985, the school district filed an ejectment action in Hot Spring County Circuit Court. The appellant defended, claiming title by adverse possession. Also the court’s jurisdiction was questioned because the appellants raised the defenses of unjust enrichment, laches and equitable estoppel, which are cognizable in equity, not law courts.
The school district filed for summary judgment on the basis of legislation which prohibits claims and defenses of adverse possession when asserted against a school district. The appellants argued those statutes are unconstitutional because they attempt to divest property rights which have vested. The court granted summary judgment in favor of the school district.
The legislation in question is, in our judgment, a clear expression by the legislature that adverse possession claims will be cut off against school property. The provision in question is § 2 of Act 209 of 1981, which reads:
Hereafter no title or right of possession of any public school system property, or any portion thereof, shall or can be acquired by adverse possession or adverse occupancy thereof, and the right of the public school system or of the proper school authorities of any public school system shall not be defeated in any action or proceeding by reason of or because of adverse possession or adverse occupancy of any such public school system property, or any portion thereof, where the party or parties claiming such adverse possession commence legal action after January 1, 1983. This Act is to serve as legal notice to such parties that claims to adverse possession of public school properties commenced after January 1, 1983, shall be unwarranted and ineffective, and such claim shall be dismissed by the appropriate court.
This act is codified at Ark. Code Ann. § 22-1-203 (1987). At the same session the legislature passed Act 354 which reads:
Hereafter no title or right of possession by an incorporated town, second class city, first class city, school district, county or the State to realty may be defeated in any action or proceeding because of adverse possession.
This act is codified at Ark. Code Ann. § 22-1-204 (1987). Both acts became effective in 1981 before the appellants’ claim of adverse possession vested, which was not until some time in 1982.
In Pinkert v. Lamb, 215 Ark. 879, 224 S.W.2d 15 (1949), we held that a statute which defeated a claimant’s right to possession of land six years and ten months into a seven year period of limitation did not mean the claimant had lost a vested right. The statute became effective prior to the running of the seven year period.
Just as in Pinkert, we find the legislation in this case bars claims or defenses of adverse possession against school districts when the right to adverse possession has not yet vested.
The appellants argue that the last sentence of § 22-1-203(b) expresses the intent to not cut off claims until January 1, 1983, a time by which the appellants’ claim had vested. It was not the intention of the legislature by that sentence to extend claims of adverse possession which had not vested at the time the act became effective.
We do not reach two possible questions: whether the appellants’ claim is barred because they did not commence a suit by January 1,1983, and whether this statute can void a vested claim of adverse possession.
Two other questions are raised which we also find meritless. One is whether jurisdiction was proper in the circuit court. The appellants’ general listing of equitable defenses is not sufficient to warrant reversal on this point. Herrick v. Robinson, 267 Ark. 576, 595 S.W.2d 637 (1980).
The other question concerns the court’s reinstatement of the school district’s case after having dismissed it for lack of prosecution 125 days earlier. On appeal, the appellant argues that by the time the court actually filed its order setting aside the dismissal, its action was not timely. The argument is based on the principle enunciated in Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989). We find this argument was not made below and therefore not preserved for appeal.
Affirmed.
Turner, J., not participating. | [
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Tom Glaze, Justice.
Appellant obtained judgment against appellees in the sum of $30,633.79, but the trial court denied appellant’s request for attorney’s fees. On appeal, appellant claims it is entitled to attorney’s fees under Ark. Code Ann. § 16-22-308 (1987), and the trial court erred in holding § 16-22-308, which was enacted on April 1, 1987, did not apply to this case.
We have frequently noted that the basic pleadings and the judgment or decree appealed from are ordinarily essential constituents of the abstract. Davis v. Wingfield, 297 Ark. 57, 759 S.W.2d 219 (1988). Since there is only one transcript, it would be impractical to require all the members of the court to examine it to determine the contents of the lower court’s judgment. Id.
Here, appellant failed to abstract any of the proceedings below, including the judgment and pleadings. In fact, appellant’s original complaint filed in this matter is neither abstracted nor made a part of the transcript. While the parties seem to agree in their arguments that the appellant’s suit was filed before § 16-22-308 was enacted, appellant’s statement of the case reflects it was filed afterwards, August 31, 1988. The August 31, 1988, date probably is in error since appellant’s amended complaint bears that same date. Even so, neither the abstract nor transcript reflects any other date concerning when this action may have been filed.
Because the judgment and pleadings were not abstracted, we affirm pursuant to Rule 9(e)(2). In doing so, we further note that we viewed this matter under provisional Rule 9, which provides for the alternative appendix system. In re Revision of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, 296 Ark. 581, 757 S.W.2d LVIII (1988). Appellant filed no appendix, and as mentioned previously, even the transcript submitted on appeal omits pleadings which are relevant to the issues on appeal.
We affirm.
Price, J., not participating. | [
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Per Curiam.
The petitioner Walter Strode was found guilty by a jury of theft of property on July 19,1988. (For some reason not clear from the record, the judgment was not entered until February 25, 1989.) On August 18, 1989, Michael R. Salamo, the retained attorney who represented the petitioner at trial, filed a timely notice of appeal and designation of record. The record was never lodged on appeal. Petitioner has now lodged a partial record and filed a pro se petition for writ of certiorari in which he requests that the record be brought up for the purposes of a belated appeal. He contends that Salamo abandoned the appeal even though Salamo knew that he was free on appeal bond and desired to perfect an appeal. Petitioner now claims to be indigent. On September 18,1989, our Committee on Professional Conduct suspended for two years Salamo’s license to practice law.
The petition before us is in the nature of a motion for rule on the clerk and request for a writ of certiorari since there was a timely notice of appeal filed in this case. We grant the petition to proceed on appeal because the failure of counsel to perfect an appeal where a defendant requests an appeal amounts to the denial of the defendant’s right to effective assistance of counsel. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). The filing of the notice of appeal in this case clearly indicates that the defendant expressed his desire to appeal. As counsel abandoned his client, his representation was ineffective.
Petitioner has alleged that he is indigent and filed with this court the appropriate affidavit in support of the assertion of indigency. As the state has not taken issue with the claim of indigency, we will appoint counsel to represent the petitioner on appeal. A writ of certiorari to bring up the record shall issue and the clerk is directed to lodge the record when it is received.
A copy of this opinion is being forwarded to the Arkansas Supreme Court Committee on Professional Conduct.
Petition granted. | [
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David Newbern, Justice.
The issue in this appeal is whether the charge brought against the appellant, Michael Johnson, was invalid because of the failure of the officer who brought the charge to meet certain minimum qualifications of the Law Enforcement Standards Act. We hold that, because the personnel file of the officer contained no recommendation by a psychological examiner and no completed fingerprint check as required by law, the charge the officer brought against Johnson was invalid, therefore, the conviction is reversed and the case dismissed.
Johnson was convicted in municipal court of driving while intoxicated. The conviction was appealed to circuit court. At the circuit court de novo trial, Johnson moved to suppress the evidence resulting from his arrest and for dismissal on the basis of failure of compliance with the Law Enforcement Standards Act, Ark. Code Ann. §§ 12-9-101 through 12-9-404 (1987).
Section 12-9-108(a) provides:
A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission of Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.
In its regulation 1002, entitled “Minimum Standards for Employment or Appointment,” the commission has provided:
(1) Verification of minimum employment standards must be contained in the permanent personnel file which is maintained by the employing department.
(2) Every officer employed by a law enforcement unit shall:
(c) Be fingerprinted and a search made of state and national fingerprint files to disclose any criminal record. Procedure is prescribed in Specification S-2, Fingerprint Record Check.
(i) Be examined by a licensed psychiatrist or licensed psychologist, who, after examination, makes recommendations to the employing agency. (See specification S-7.)
Specification S-2, pertinent to the fingerprint requirement, provides:
PROCEDURES: 3. The original copies of all fingerprint record checks and results will be placed in the applicant’s permanent personnel file and will be available for examination at any reasonable time by representatives of the Commission. Record checks will be maintained regardless of the results of such inquiry.
Specification S-7, pertinent to the psychological examination, states:
REQUIREMENT: (1) All applicants will be examined to determine emotional stability.
PROCEDURES: (1) An actual interview and psychometric evaluation will be utilized.
(2) The result of the evaluation will be recorded. A report of the evaluation will be forwarded to the employing agency along with the Confirmation of Psychological Evaluation Form, F-2b. This form will be signed by the examiner designating the applicant as being Recommended or Not Recommended. . . .
The evidence as to whether Johnson was driving under the influence of alcohol at the time he was arrested and charged was stipulated, and it was ample to support a conviction. Other evidence taken at the trial revealed that, at the time he was hired, the personnel records of Officer Branch, who had arrested and charged Johnson by citation, contained no fingerprint report. Testimony of the Kensett police chief indicated that the fact that the fingerprint record was not in the file was not questioned until after this case arose. The chief testified he made some calls to try to locate the records on October 3,1988. The incident in question here occurred September 10,1988. The chief eventually discovered that the records had inadvertently been sent by the FBI to the White County Sheriffs Office rather than the Kensett Police Department which employed Branch.
A psychological examination report dated June 25, 1987, was introduced as an exhibit. No abstracted testimony indicates whether it was in Branch’s personnel file on September 10,1988. The report seemed to be an entirely favorable description of Officer Branch’s personality, and said “[h]e appears to have the capacity to function well as a police officer,” but it contained no direct recommendation, either way, on employment of Branch as a police officer.
Harold Webb, a standards specialist with the Arkansas Commission on Law Enforcement Standards testified that even though the form 2-B containing the psychological report and recommendation had not been forwarded to his agency for purposes of the certification process an officer might still be eligible to make arrests. He stated his opinion, however, that, “If he doesn’t have the paper (Form 2-B) showing he’s recommended on file at his agency and it doesn’t clearly show he was recommended for law enforcement employment, then his arrests would not be valid.”
As we pointed out in Grable v. State, 298 Ark. 498, 769 S.W.2d 9 (1989), we are not concerned with the legality of the arrest because an illegal arrest is not, standing alone, a basis for reversal of a conviction. The real controversy here, as in the Grable case, is whether Officer Branch had authority to charge Johnson with an offense. There is no evidence of any other charge having been made.
In the Grable case we held that there must be strict compliance with the standards for hiring law enforcement officers, and we took the general assembly at its word to the effect that failure of compliance required us to hold an official act by the officer invalid. The state argues here that in Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), which was decided the same day as the Grable case, we took back our statement and held that substantial compliance would be sufficient. We do not read the Mitchell case as being inconsistent with the Grable case. Both required strict compliance.
With respect to the failure of compliance regarding the fingerprint check, the state attempts to distinguish the Grable case by arguing that here the check had been completed but was just lost, whereas in the Grable case the check had only been initiated but not completed. It is argued that for the court to hold there was a lack of compliance in this case would “provide a whole new meaning to the concept of ‘form over substance.’ ”
The stated purpose in requiring completion of the fingerprint check prior to employment of a police officer is to ascertain whether he or she has a criminal record. Here it is clear that there was no compliance with that requirement and Officer Branch was hired “in the dark.” We take seriously the state’s “form over substance” argument, but we cannot understand how the failure in this instance could be regarded as an unimportant or “formal” one. The Kensett Police Department had no knowledge whether the fingerprint check had been completed or what it might have revealed. We cannot regard the requirement in this circumstance as being directory rather than mandatory; it goes to the heart of the purpose of the requirement. See N. Singer, Sutherland Statutory Construction, § 57.12 (4th ed. 1984).
The same is true of the psychological report. Again, the record as abstracted does not show that there was any such report in Officer Branch’s personnel file at the time he charged Johnson. Even if the report introduced as an exhibit had been in the file, however, it would have been insufficient. The point is well illustrated by our opinion in Freeman v. City of DeWitt, 301 Ark. 581, 787 S.W.2d 658 (1990), which we also hand down this date. In that case, there was a psychological report which anyone could read as being unfavorable to the officer in question. Yet it was argued that the existence of the report, despite its lack of a recommendation, favorable or unfavorable, was sufficient. We cannot say that the failure of the report to make a recommenda tion is an inconsequential lapse. Compliance with the simple requirement of a recommendation will prevent courts and other government agencies from having to make professional psychological judgments, for which we and they are so obviously unqualified, based on reports which might otherwise be inconclusive.
Finally, the state argues that, by Act 44 of 1989, the general assembly has made clear its intention that failure to comply with the law enforcement standards is not a basis for invalidating an officer’s acts. Johnson argues application of the Act in his case would violate the constitutional prohibition against ex post facto legislation. As stated in the Freeman case, we do not reach that issue because it was not raised in the trial court.
Reversed and dismissed.
Hays, J., dissenting.
Price, J., not participating. | [
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Tom Glaze, Justice.
The appellant appeals from a letter of caution issued by the Arkansas Supreme Court Committee on Professional Conduct after the Committee found he violated Rule 1.9 of the Model Rules of Professional Conduct. After our de novo review of the record, we affirm. See Sexton v. Arkansas Supreme Court Committee on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989).
Jeffrey Richmond initiated this proceeding by filing a complaint with the Committee alleging that, in June 1982, he hired the appellant to file a divorce suit against Richmond’s wife, Adele. The Richmonds reconciled, and in August 1982, appellant had the suit dismissed.
Sometime later, the Richmonds were divorced, but appellant represented neither of them at the time. In September 1987, however, Adele contacted and hired appellant to represent her in seeking an increase in child support payments from Mr. Richmond. Appellant testified that when he agreed to represent Adele, he had no recollection of having represented Mr. Richmond in the parties’ divorce action in 1982. Apparently, in preparing for the child support hearing, the parties and their respective attorneys met in connection with discovery proceedings in appellant’s office, and neither Mr. Richmond nor his attorney raised the conflict of interest issue concerning appellant’s prior representation of Mr. Richmond. Appellant stated that he was first apprised of his prior representation of Richmond about five minutes before the scheduled hearing on Adele’s petition for increased support. He argues that such last minute tactics were used to force settlement of Adele’s claim or to obtain a delay of the hearing.
Richmond testified that in his initial visit with his attorney, he mentioned that appellant had previously represented him in a prior divorce action against Adele. Richmond’s attorney averred that he learned of this information a day or so before the support hearing, and asked his client to determine whether appellant had actually filed the divorce action in 1982. Mr. Richmond responded on the day of the child support hearing by bringing photocopies of the 1982 complaint the appellant had filed and signed on behalf of Richmond. Richmond’s attorney then confronted appellant with this document and information, but appellant refused to withdraw as Adele’s attorney. The special chancellor assigned to hear Adele’s petition disqualified appellant because of his prior representation of Richmond. Richmond subsequently lodged his complaint with the Committee on Professional Conduct.
In hearing this dispute and making its decision to issue a caution letter to the appellant, the Committee relied upon Rule 1.9(a) which provides as follows:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation;
When considering the facts before us in view of the requirements in Rule 1.9, appellant unquestionably has represented both Mr. Richmond and Adele, as opposing parties in different but related proceedings where their adverse interests were involved, viz., in representing Richmond in his divorce suit against Adele in 1982 and in representing Adele in her child support action against Richmond in 1987. In determining whether a substantially related matter exists thát warrants an attorney’s disqualification, we note the rule set out in 7A C.J.S. Attorney & Client § 160 (1980), which provides as follows:
In order for an attorney to be disqualified from representing another client, the subject matter of the prior and subsequent representation must be substantially related, or there must be a relationship between the subsequent matter and the confidential information previously acquired, or it must appear that the attorney can use, to the detriment of such client, the information and confidences acquired during the existence of their relation as attorney and client. The relationship is sufficiently close to warrant disqualification if it can reasonably be said that, in the course of the former representation, the attorney might have acquired information related to the subject of the subsequent representation.
Here, there is no evidence that appellant actually intended to damage Richmond’s defense in the present support proceeding with information or confidences he had previously acquired from Richmond during their attorney/client relationship. Nevertheless, the appearance exists that such an abuse could occur and for that reason, appellant should have declined to represent Adele when he learned that he had represented Richmond earlier.
As noted in the comment to Rule 1.9, disqualification from subsequent representation is for the protection of clients and can be waived by them. Such a waiver, however, is effective only if there is disclosure of the circumstances, including the lawyer’s intended role in behalf of the new client. In this same vein, Rule 1.9 provides that an attorney who possesses a conflict of interest as described in the Rule cannot represent the other adverse party unless the attorney consults with and obtains a consent from his former client. Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation.
Again, in reviewing the record, appellant undisputedly failed to undertake the responsibility of obtaining Richmond’s consent. While appellant argues Richmond and his attorney waived any right to object to appellant’s representation of Adele, the Committee was certainly justified in believing Richmond’s attorney that he learned only a day or so before the hearing of the possible conflict, and only received documentation of it, on the day of the hearing. Richmond explained his own delay saying he was uncertain that any conflict existed unless the appellant had actually filed a divorce complaint in 1982 — a fact Richmond says he did not know until he obtained photocopies of the complaint at his new attorney’s request. Perhaps, more importantly, the general rule, which is compatible with the consent requirement set out in Rule 1.9, is that there cannot be any waiver in the absence of advice of the existence of, and the legal implications arising from, the potential conflict of interest. See 7A C.J.S. Attorney & Client § 161 (1980). Such advice (or consultation required under Rule 1.9) was not shown to exist here.
In sum, the record reflects no clear and unequivocal waiver, see 7A C.J.S. Attorney & Client § 161 (1980), and by the same token, it clearly reveals the appellant refused to withdraw from representing Adele after having learned he had previously represented Richmond. It is equally clear that Richmond’s consent was not obtained by the appellant, and no doubt, considering Richmond’s expressed dissatisfaction with appellant’s earlier representation, his consent would have not been forthcoming if asked.
For the reasons given above, we affirm the Committee’s decision.
Adele’s surname now is Scaife, but to avoid any confusion, we refer to her given name throughout this opinion. | [
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Per Curiam.
The appellee, Supreme Court Committee on Professional Conduct, moves to dismiss the appellant’s appeal, stating appellant failed to comply with Rules 3(e) and 6(b) of the Rules of Appellate Procedure. In sum, appellee asserts that, on October 25,1989, the appellant filed a notice of appeal containing a statement that he ordered a transcript when, in fact, he failed to order it. Appellee submits with its motion the court reporter’s affidavit, dated January 10, 1990, reflecting the appellant had never requested the transcript. Appellee’s executive director also avers appellant made no request for the transcript. The director further states that, by letter dated November 2, 1989, he had notified the appellant that it was appellant’s responsibility to order the transcript. While at one point in his reply to appellee’s motion, appellant suggests that a misunderstanding may have arisen as to whether he had requested the transcript in a telephone conversation he had with the director on October 23, 1989, appellant clearly states he ordered the transcript on January 15, 1990. This assertion is consistent with the court reporter’s affidavit dated January 10,1990, that no request had been made.
Appellant’s response to appellee’s motion to dismiss deals largely with his claims that he had never received notice of his former client’s complaint filed against him, nor did he receive notice of the appellee’s hearing on that complaint which was conducted before the appellee on September 9,1989. Bearing on appellee’s motion, appellant states that, in his telephone conversation with appellee’s director on October 23,1989, he asked the appellee to certify its entire case file so the file could be docketed with this court as a part of the record in this appeal. He needed the file information, he suggests, to make his constitutional and other arguments pertaining to the appellee’s failure to give him the required legal notice. Appellee in no way denies appellant’s claim that he directed his efforts to have appellee’s case file made a part of the record in this appeal.
In Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1982), we held it was fatal to an appeal when Ark. R. App. P. 3(e) was totally ignored by the appellant. We have, however, recognized that substantial compliance with the rule is sufficient. Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986).
Here, appellant timely filed his notice of appeal, stating he had ordered the transcript. From the pleadings and affidavits before us, appellant did not order the transcript from the reporter on or before filing the notice. See Ark. R. App. P. 6(b). Appellee’s director, by letter dated November 2, 1989, notified appellant that it was his responsibility to order and pay for the transcript. Again, he failed to do either, at least until January 15, 1990, on which date he claims he telephoned the court reporter and requested it. We note that, even if appellant’s January 15th request was made, it was only after the appellee filed its motion to dismiss appellant’s appeal on January 12,1990. We simply do not agree appellant’s actions show that he substantially complied with Rule 3(e). Therefore, we grant appellee’s motion to dismiss the appeal. As a consequence, we deny appellant’s petition for writ of certiorari to complete the record and his motion for extension of time.
Appeal dismissed. | [
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Tom Glaze, Justice.
This case comes to us on appeal from a judgment against Farmers Bank, the primary issue on appeal being the admissibility in evidence of an exculpatory clause in the Bank’s rental agreement for a safety deposit box.
In June 1979, Wanda, Steve T. and Steve L. Perry, appellees, went to the Farmers Bank of Greenwood, appellant, where they had accounts, to obtain a safety deposit box. Appellees were advised the Bank had no boxes available in Greenwood, but some were available at its branch office in Hartford. Appellees were able to secure a box at the Hartford Branch. The boxes were available only to customers of the Bank and no rent was charged. The Bank obtained the signature of Wanda. Perry on the following signature card:
On the night of December 22, 1983, the Hartford Branch office was burglarized and 113 of the 120 deposit boxes were broken into. The contents of appellees’ box were lost, which included currency and coins. Appellant denied responsibility for the loss, and appellees brought this suit, claiming appellant negligently failed to take proper measures to protect the contents of appellees’ safety deposit box.
At trial, the court refused to allow the introduction of the signature card in evidence on the ground that appellant could not contractually eliminate its tort liability. The jury returned a verdict for the appellees in the amount of $20,000, and Farmers Bank has appealed from the judgment entered on the verdict.
As its primary point on appeal, the Bank challenges the trial court’s ruling in excluding the signature card from the jury and asks us to reverse on that basis. Arkansas law, however, clearly supports the trial court’s decision. In fact, this court has never upheld an agreement purporting to release a party from liability for his own negligence before it occurred. See Williams v. U.S., 660 F. Supp. 699 (E.D. Ark. 1987). The rationale behind the numerous decision invalidating so-called releases given before liability arises is based upon the strong public policy of encouraging the exercise of care. Id. When construing such release contracts, this court has said that it is not impossible to
avoid liability for negligence through contract; however, to avoid such liability, the contract must at least clearly set out what negligent liability is to be avoided. Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972). Finally, contracts which exempt a party from liability for negligence are not favored by the law, and they are strictly construed against the party relying on them.
Here, the appellant Bank prepared the signature card, containing exculpatory language, which says, “The undersigned customer holds the Farmers Bank harmless for loss of currency or coin left in the box.” Such language does not expressly exempt the Bank from liability for its own negligence. If it had intended to exempt itself from liability for negligence, the Bank could have more aptly done so in its card or written release. Cf. Gulf Compress Co. v. Harrington, 90 Ark. 256, 119 S.W. 249 (1909) (where written warehouse receipt provided the company was “not responsible for loss by fire . . . ,” and this court held the release did not exempt the company for its negligence, causing fire damage to cotton plaintiff had stored with the company).
In the present case, the record reflects proof that the Bank had been negligent in failing to restore a burglar alarm system that had been inoperative for more than a week prior to, and including, the day burglars entered and stole monies and valuables from the Bank’s vault. The vault stored the lock box which contained appellees’ valuables that were also stolen. During the trial, the Bank attempted to introduce into evidence its signature card — signed by appellee Wanda Perry — with its disclaimer for loss of currency and coins. The trial judge excluded the card, holding the Bank could not “sweep away” its tort liability through the card’s introduction. We believe the trial judge correctly concluded the Bank’s disclaimer failed to contain language that removed the Bank’s liability for negligence. That being so, he was also correct in excluding the disclaimer from evidence because it was irrelevant.
Appellant Bank also objects to the court’s refusal to allow certain testimony from an expert. During the trial, the appellant called Ken Sanders, who was at the time working for another bank, but who has previously worked as a bank examiner. Appellant argues that Sanders testified to a number of matters, but the court, upon objection from appellees, refused to let him testify about security measures exercised by appellant in comparison to branch banks of similar sized communities within the state.
Neither the objection nor the discussion between the trial judge and the attorneys is abstracted with regard to this point. Further, Sanders’ proffered testimony, if any, does not appear in the abstract, as well. Therefore, without going to the record, we cannot determine whether the trial court erred. As we have stated numerous times, we will not go to the single record to determine whether reversible error has occurred. See Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984); First National Bank of Brinkley v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984).
Appellant also sought to introduce testimony of six customers reflecting that they had been told not to keep currency or coins in their safety deposit boxes. Specifically, the proffered testimony was to the effect that the witnesses had been instructed by Connie Ford, the Bank’s branch manager, that the boxes were not provided for the purpose of keeping valuables, but were only for storing important papers and documents. One witness offered testimony that it was “common knowledge of the community” that these boxes were only for important papers. Appellant offered testimony of these witnesses to undergird its efforts to introduce the Bank’s disclaimer signed by appellees and to show the applicable standard of care. Under the circumstances of the cases and in view of our earlier discussion and holding that the Bank’s disclaimer was inadmissible, we agree with the trial court’s ruling that these witnesses’ testimony was irrelevant. As we have said repeatedly, rulings on the relevancy of evidence are discretionary with the trial court, and we do not reverse absent an abuse of discretion. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985); A.R.E. Rule 104.
Appellant also contends the trial court erred in refusing to instruct the jury on the proper duty of care. One instruction classified the Bank as a gratuitous bailee, there being proof that the boxes were provided without charge. But the signature card expressly states that the box is given in consideration of checking or savings accounts held by the bailor and only patrons with accounts at the Bank were given boxes. A bailment for the mutual benefit of the parties is not a gratuitous bailment. See Hinkle v. Perry, 296 Ark. 114, 752 S.W.2d 267 (1988); Warren v. Geater, 206 Ark. 518, 176 S.W.2d 242 (1943).
In addition, appellant wanted an instruction defining negligence in comparison to the standards of similar banks. It was not error to refuse an instruction on this point, as there was no evidence of other standards.
In its next point for reversal, appellant argues the trial court erred when it allowed appellees to impeach a witness with an inadmissible prior inconsistent statement. Appellees had called the branch manager, Connie Ford, who testified that the burglar alarm had been inoperative “for a few days.” The appellees sought to impeach this testimony with a prior inconsistent statement. Ms. Ford had talked to an FBI agent after the burglary and told him that the alarm had been out for a much longer time than a few days prior to the burglary. Appellee read the statement taken by the FBI agent and asked.Ms. Ford if that is what she had told him. The appellee never asked that the statement be admitted into evidence and only read it verbatim, at the suggestion of the court, when the witness could not remember the contents of the statement she had made to the agent.
Appellant’s objection below is not entirely clear, but we interpret the objection as being: 1) appellees had refused to give the statement to appellant earlier when requested and 2) had refused to call the FBI agent as a witness. On appeal, appellant argues that it was 1) hearsay, 2) unauthenticated, and 3) appellant was entitled to see the statement before it was offered into evidence.
The appellees could properly examine the witness about a prior inconsistent statement for impeachment purposes under A.R.E. Rule 613. That rule also provides that the statement or its contents need not be disclosed at that time, but on request shall be shown to opposing counsel. This answers the only objection that was made both below and on appeal. We note that there was never any request by appellee that this be used as substantive evidence under A.R.E. Rule 801(d)(1), nor could it have been so treated in this case. The statement of the agent was hearsay, the statement of Ms. Ford was not. Nevertheless, her statement could have been admissible under A.R.E. Rule 613 for impeachment purposes. See Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). Aside from the evidentiary rule arguments now made by the Bank, we note that none would have been prejudicial error even if one of them had merit, since the F.B.I. report, containing Ms. Ford’s statement, was allowed to be introduced without objection.
Finally, the appellant contends certain errors arose in the selection and voir dire of the jury. Again, we find no merit in appellant’s contentions. First, the appellant argues that because the trial court failed to ask preliminary questions of the prospective jurors there was no showing that the veniremen met the requirements of a juror as set out in Ark. Code Ann. § 16-31-101 (1987), such as being a registered voter and a citizen of the United States. Further, the appellant contends that when faced with only having nineteen prospective jurors, the trial court erred in continuing the trial for a short time to allow the sheriff to try and contact jury members of other panels. We have held that under statute as well as practice in this state, it is too late, after the rendition of a verdict, to raise the ineligibility of a juror, unless it can be shown by the complaining party that diligence was used to ascertain his disqualifications and prevent his selection as a juror. See Ark. State Highway Comm. v. Kennedy, 233 Ark. 844, 349 S.W.2d 133 (1961); Missouri Pacific R.R. Co. v. Bushey, 180 Ark. 19, 20 S.W.2d 614 (1929). Since below, the appellant accepted the jury as “good for the defense” and raised no objection to the method of selection until its motion for a new trial, the appellant has waived his right to question the jury panel.
Next, the appellant alleges that its motion for a new trial should be granted because, during voir dire, one of the jurors failed to reveal that her in-laws were related to the appellees by marriage. See Ark. Code Ann. § 16-31-107 (1987). Pursuant to Ark. Code Ann. § 16-31402(b)(1) (1987), except by the consent of all parties, no person shall serve as a petit juror in any case who is related to any party or attorney in the cause within the fourth degree of consanguinity or affinity.
We have defined affinity as the tie which arises from marriage between the husband and blood relations of the wife and between the wife and the blood relations of the husband. Mitchell v. Goodall, 297 Ark. 332, 761 S.W.2d 919 (1988). Based on this definition, we have held that there can be no affinity between the blood relations of the husband and the blood relations of the wife. Id. Clearly, here the juror would not be disqualified to serve on the jury under § 16-31-107 (1987). In addition, we note that the juror stated that there were no factors that would prevent her from rendering a fair impartial decision based on the law and evidence in this case. We also mention that this same juror revealed in voir dire that her father-in-law was one of the witnesses who was expected to testify in behalf of the appellant. Thus, the trial court did not abuse its discretion in denying the appellant’s motion for a new trial.
Holt, C.J., and Hays and Turner, JJ., dissent. | [
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Per Curiam.
Petitioner, Kyle D. Cherry, by his attorney, Keith Watkins, has filed a motion for rule on the clerk. His attorney admits that he miscalculated the time for filing the transcript. Unless the time has been extended by order of the trial court, the record on appeal shall be filed with the clerk of the Arkansas Supreme Court within 90 days from the filing of the first notice of appeal. Ark. R. App. P. 5(a).
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 (1979). | [
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Robert S, Hargraves, Special Justice.
This is the second appeal of this divorce case. Wilson v. Wilson, 294 Ark. 194, 741 S.W,2d 640 (1987). In that case we remanded on two points. First, we held the chancellor abused his discretion in finding that none of the incentive bonus due appellee from his employer was marital property. Secondly, we remanded to permit both parties to fully develop the record regarding the value of appellee’s corporate stock in Orthopedic Associates, Inc.
On remand the chancellor awarded appellant one-half of the incentive bonus after first deducting the income tax liability assessed against the bonus and the amount of a marital debt owed appellee’s corporate employer. The chancellor also determined the value of appellee’s stock interest in Orthopedic Associates, Inc., to be $20,000, the same amount which he had determined at the first trial.
In this appeal, appellant argues only that the chancellor erred by failing to follow the law of the case as mandated in our earlier decision. We hold the doctrine of the law of the case is not applicable to the factual questions which we remanded to the chancellor and we therefore affirm.
The basic issue before us on this appeal is whether the values found by the chancellor on remand violated the mandate of our decision in the first appeal. When this matter was first before us, this court did not undertake to value the appellant’s interest in appellee’s incentive bonus. We merely decided the bonus to be marital property. Likewise, we did not value the appellee’s stock interest in Orthopedic Associates, Inc. We said that on the basis of the record then before us, we thought it apparent that the stock exceeded a value of $20,000, but the evidence was insufficient for us to place a value on the stock. Consequently, we remanded the case for the chancellor to reconsider those issues in light of our decision.
Unlike the dissent, we do not read our decision in Wilson I to hold it was error for the trial court to rely on the stock purchase agreement in evaluating the worth of the professional association. We said the record before us indicated the stock was worth more than the amount prescribed in the stock purchase agreement, but we were unable to place a fair value on the stock from the evidence in that record.
The quantity and quality of the evidence developed on remand is substantially different from the evidence adduced at the initial hearing.
The doctrine of the law of the case cannot be applied to factual questions which were expressly remanded for determination by the trial court. It is conclusive only where the facts on the second appeal are substantially the same as those involved on the prior appeal. The rule does not apply if there is a material change in the facts. Potter v. Easley, 288 Ark. 133, 703 S.W.2d 442 (1986); Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393 (1906).
From his lengthy and reasoned opinion, it is apparent the chancellor properly construed and applied our reasoning in the first appeal to his findings of fact on remand. Even though we consider chancery appeals de novo, we will not reverse unless the trial court’s factual findings are clearly erroneous. ARCP Rule 52(a); Milligan v. General Oil Co. Inc., 293 Ark. 401, 738 S.W.2d 404 (1987). From our review of the record, we cannot say the chancellor’s determination of the value of both the incentive bonus and corporate stock were clearly erroneous.
Affirmed.
Holt, C.J., Newbern and Glaze, JJ., not participating.
Marcia L. McIvor, Special Justice, dissents in part and concurs in part.
J.R. Buzbee, Special Chief Justice, joins the dissent. | [
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David Newbern, Justice.
This is a land condemnation case which originated in the Madison County Court and was appealed to the Madison County Circuit Court where damages were awarded to X and Fern Dotson and the Dotson Land and Cattle Company (Dotsons), the appellees, against the appellant, Arkansas State Highway Commission. The commission contends it was not a proper party to the action and thus it was error for the court to have entered a judgment against it for damages resulting from the taking. We must reverse and remand the case because we agree the commission was not, and could not have been, a proper party to a county court condemnation. We need not address the commission’s second point, that the evidence presented on the value of the land taken was insufficient, because we assume the issue will not arise if there are further proceedings.
The Dotsons on cross-appeal contend that, should we find the county rather than the commission was the party initiating the proceedings in its own court, our statute permitting it is unconstitutional. This argument was raised by the Dotsons and taken under advisement by the trial judge, however, neither the commission nor the county made any response to the argument. The trial court did not rule on the issue. Where issues have not been fully adjudicated below we will not consider them on appeal. Arkansas Dep’t of Human Serv. v. M.D.M. Corp., 295 Ark. 549, 750 S.W.2d 57 (1988).
The record begins with an order, first dated August 25,1986, and revised as of October 29,1986, of the Madison County Court which is styled “IN THE MATTER OF THE PETITION OF THE ARKANSAS STATE HIGHWAY COMMISSION FOR CHANGES TO STATE HIGHWAY NO. 295 and 295S.” The order granted a perpetual easement over certain described lands, and stated “the lands . . . described [are] hereby condemned and for the use and benefit of the Arkansas State Highway Commission.” The lands described included 3.03 acres belonging to the Dotsons. The order concluded with a provision that any aggrieved landowner should present his claim to the court within one year from the date of service of the order.
The record next contains a Madison County Court order of September 9,1987, styled the same as the order mentioned above, reciting that the Dotsons had filed a petition which was denied because the betterments resulting to their property from the condemnation offset the damages they claimed. As its basis of jurisdiction, the county court order recited statutes now codified as Ark. Code Ann. §§ 14-298-120 and 27-67-212 (1987).
The Dotsons appealed to the circuit court. The commission moved to dismiss on the grounds that it had not been served in the action, that it was a suit against the state, and that the county, not the commission, was liable for the alleged damages. The motion was denied. The case was tried to a jury which awarded the Dotsons $3500 against the commission.
The commission argues that it may call upon the county to condemn land for construction of a state highway pursuant to § 27-67-212, and that this procedure may result in a jury trial in circuit court in accordance with § 14-298-120. The commission notes that it may force the county to comply or make the county pay 50% of the costs of condemnation under Ark. Code Ann. § 27-67-320 (1987).
Section 14-298-120(a) gives county courts the power to open new roads, make changes in old roads, and classify roads. Subsection (a)(3) states “An appropriate order of the county court shall be made and entered therefor.” Subsection (j) provides for appeal to the circuit court if the landowner is not satisfied with the amount awarded by the county court.
Section 27-67-212(a) provides that the commission may “call upon the county court to change or widen, in the manner provided by § 14-298-121, any state highway in the county where the state highway engineer deems it necessary. . . .’’The reference should be to § 14-298-120 which, as we explained in Greig v. Crawford County, 256 Ark. 202, 506 S.W.2d 523 (1974), was passed to correct the notice requirement in § 14-298-121.
While § 14-298-120 gives the county court the power to condemn land on its own motion and upon petition of interested landowners, it does not permit a petition of the commission to be acted on by the county court. The record contains no petition by the commission to the county court. The recitation by the county court order that there was such a petition is apparently a reference to action by the commission to “call upon” the county to act as permitted in § 27-67-212(a). In such instances, the county is the condemning authority, and the commission is not a party. Arkansas State Highway Comm. v. Croom, 225 Ark. 312, 280 S.W.2d 887 (1955); Arkansas State Highway Comm. v. Palmer, 222 Ark. 603, 261 S.W.2d 772 (1953).
There is some indication in the testimony given at the circuit court hearing that the commission drafted the county court order. The Dotsons contend that the commission thus made itself a party to the case by styling it in its name. While it is true that the state will be treated as other suitors when it has brought suit, Arkansas State Highway Comm. v. Roberts, 248 Ark. 1005, 455 S.W.2d 125 (1970), we do not conclude that the commission was the petitioner in this case just because the commission erred in styling the county court order. The very authority cited in the county court order would not permit the commission to be the petitioner.
Conclusion
While it is unfortunate that the Dotsons were apparently misled by the improperly styled county court order into thinking that the commission was a proper party to their appeal, the commission’s motion to be dismissed as a party should have been granted by the circuit court. The judgment against the commission is improper and is therefore reversed and dismissed. The case is remanded to the circuit court for further proceedings consistent with this opinion.
Reversed and remanded.
Holt, C.J., and Purtle and Glaze, JJ., dissenting. | [
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Hart, C. J.,
(after stating the facts). The plaintiff relies for a reversal of the decree upon the ground that the interest on the contení}dated bond issue of $300,000 should be included as part of the cost of constructing the bridge. The chancery court held against the contention of the plaintiff, and the correctness of its decision depends upon the interpretation to be placed upon the act creating the improvement district. Yell and Pope Bridge District -was created 'by act No. 154 of the Legislature of 1925, Acts of 1925, p. 450. Section 6 of the act reads as follows:
“The bridge contemplated herein shall be constructed under the provisions of § 26 of act No. 5 of the extraordinary session of the General Assembly of the State of Arkansas, approved October 10, 1923,. and that the other sections of this act shall be construed as in harmony with the provisions of this section and not conflicting therewith. Provided, however, the total cost of the bridge district .shall not exceed $300,000.”
Section 31 of the act reads as follows:
“In order to hasten the completion of the improvement, the commission is hereby authorized to borrow money, not exceeding $300,000, and to issue bonds therefor, to be sold at not less than par and to bear interest at a rate not exceeding six per cent, per annum, and may pledge all the uncollected assessment, or so much thereof as may be necessary for the payment thereof, except such assessments as may be required to be pledged for the acquisition of the right-of-way and such as may be necessary to create a sinking fund to pay said bonds or to retire same. And said bonds shall be a lien upon the real estate of said district. And the commission shall create a sinking fund from the annual assessments in order that said bonds may be paid at maturity or retired earlier, if possible.”
Other sections of the act provide for the assessment of benefits and a levy and collection of taxes based thereon for the purpose of repaying the cost of constructing the bridge.
It is well settled in this State that the powers of the board of commissioners of an improvement district are derived from the act creating it and, in exercising its powers, the board acts as the agent of the owners of the real property within the limits of the district. This court has uniformly held that, in the construction ancl interpretation of statutes, the intention of the Legislature is to be ascertained and given effect from the language of the act, if that can be done. In doing this, each section is to be read in the light of every other section, and the object and purpose of the act are to be considered. Rayder v. Warrick, 133 Ark. 491, 202 S. W. 831; Summers v. Road Improvement District No. 16, 160 Ark. 371, 254 S. W. 696; Turner v. Ederington, 170 Ark. 1155, 282 S. W. 1000; and Hill v. American Book Co., 171 Ark. 427, 285 S. W. 20.
According to § 6, the total cost of the bridge shall not exceed $300,000. This was the highest sum which might actually become due when the work was done. This does not include interest. Section 11 provides that, in order to hasten the completion of the improvement, the district is authorized to borrow money not exceeding $300,000 and to issue bonds therefor, to be sold at not less than par, and to bear interest at a rate not exceeding six per cent, per annum. The section further provides that the commissioners may pledge the uncollected assessments for the payment thereof. Thus it will be seen that the interest is not a part of the cost of construction, but of collection, when collection of the assessment is made as the law provides. The design of the statute is that the improvement district may pay for the work during its progress or when it is completed, and that it is to be reimbursed at a future date by a levy and collection of a tax based upon an assessment of benefits upon the real property within the district. The improvement district cannot be fully reimbursed unless the bonds bear interest, for they are to be paid out of the tax levied, as just indicated.
Reliance is placed by counsel for the plaintiff upon the decision in Fitzgerald v. Walker, 55 Ark. 148, 17 S. W. 702, but we do not think that that case had any-application to the present one. There the court decided that no assessment could be made against the real property of any improvement district in excess of twenty per cent, of the assessed value as provided in the statute. This construction was obviously correct, because, if the interest did not become a part of the cost of the work within the meaning of the statute, there would be no means pro vided for its payment. This view is in accordance with the holding in Webster v. Ferguson, 95 Ark. 575, 130 S. W. 513. In that case the question was -whether the statement, in the petition of the owners of real property, which limited the cost of the improvement to a certain amount, included interest, and it was held that the statement of the amount in the petition referred to the actual cost of the improvement, exclusive of interest. We are of the opinion that the limitation of $300,000 in § 6 of the act refers to the actual cost of the construction of the bridge to the improvement district when the work is done, and that the interest on the bond .issue for the purpose of hastening the work should not be included as a part of the cost of the bridge referred to in § 6.
It follows that the decree of the chancery court will be affirmed. | [
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Greenhaw, J.
Appellant wras charged in separate informations with the illegal sale of liquor and the illegal possession of liquor for the purpose of sale in Saline county on June 6, 1942, in violation of §§ 12 and 1 (c) respectively of art. VI of Act 108 of 1935, as amended by Act 356 of 1941. By agreement these cases were consolidated for trial, and verdicts were rendered upon ■which judgments were entered finding appellant guilty, and fixing his penalty at a fine of $500 and six months’ imprisonment in the Arkansas penitentiary on each charge. A motion for new trial, including a number of assignments of error, was filed and overruled, from which is this appeal.
According to the evidence, Jack Naylor, a Malvern ■policeman, and C. R. Hope, a Grant county deputy sheriff, were asked by the prosecuting attorney to assist him in catching appellant selling whiskey. Each of these men was given two one-dollar bills with his initials marked thereon, and the serial numbers were taken down.
Naylor, Hope and the prosecuting attorney drove out past appellant’s house on the night of June 6, 1942, the prosecuting attorney getting out of the car and Naylor and Hope returning to appellant’s house, where they stopped. Naylor asked appellant if he had anything to drink, and appellant told him to come inside. Naylor went in alone and purchased a pint of liquor for $1.75, giving appellant two one-dollar bills and receiving from him five nickels.
Later that night appellant’s house was raided at the request of the prosecuting attorney by Officers Blooker and Robbins of the State Police Department and Sheriff Ross McDonald of Saline county. Blooker found the marked bills, along with other bills and change. Two cases of whiskey, from one of which two pints were missing, and a case of gin were found. Blooker stated that he had found two cases of whiskey in appellant’s house when he raided it on May 21. Sheriff McDonald also testified to previous raids on appellant’s house, when considerable whiskey was found there.
Appellant denied making the,sale to Naylor, stating that Naylor obtained this whiskey by reaching and taking it and leaving two one-dollar bills, all without appellant’s consent, and further denied giving him five nickels or any other sum in change. He further testified that he had not made any sales of whiskey for 30 days prior to this occurrence, and that the whiskey found there was for his own personal use. Since appellant concedes that there was sufficient evidence to support valid verdicts and judgments of conviction, we deem it unnecessary to discuss the evidence at length.
Appellant contends that the court erred in permitting Blooker to testify about other occasions when he had raided the premises of defendant for whiskey and had found and confiscated liquor, and that the court likewise erred in permitting Sheriff Ross McDonald to testify about previous raids having been made on the defendant when liquor was found. We are unable to agree with the contention of appellant that the admission of this testimony constituted reversible error. This testimony tended to show the nature of the business in which appellant was then engaged, and was competent for this purpose.
Appellant assigns as error the giving by the court of instructions Nos. 1 and 3. Instruction No. 3 reads as follows: “You are instructed that if you find from the evidence in this case beyond a reasonable doubt that the defendant had in his possession a quantity of intoxicating alcoholic liquor for the purpose of selling the same in Saline county, Arkansas, at any time within one year next before the filing of the information herein, as alleged in said information, then you are told to find the defendant guilty and fix his punishment at a fine of not less than $500 nor more than $1,000, or imprisonment in the state penitentiary for any period not to exceed one year, or both fine and imprisonment.”
Appellant contends that this instruction was erroneous in that the penahy set forth in the instruction is not the penalty provided in the statute involved, and for the further reason that the instruction covered any offense committed within one year, when the evidence showed that he had been tried and either acquitted or convicted of all offenses prior to that charged in the information.
Paragraph (c), § 1 of Act 356 of 1941 provides that the illegal possession of liquor for sale shall be a felony, and upon conviction the accused ‘ ‘ shall be fined not less than $500 nor more than $1,000, or confined in the Arkansas state penitentiary for not less than nor more than 12 months, or punishable by both fine and imprisonment in the Arkansas state penitentiary.”
After a consideration of the context of this section and the language of other sections of this act, we have concluded that it was the intention of the legislature to fix the imprisonment penalty for a violation of this section at not less than one month nor more than 12 months in the Arkansas penitentiary. The units of time with which this section dealt were months, and we have concluded that the expression “not less than nor more than 12 months” was a misprision or clerical error. The other section of this act which deals with the sale of intoxicating liquor under which appellant was also charged provides a fine of not less than $500 nor more than $1,000 or imprisonment in the Arkansas state penitentiary for not less than one month nor more than 12 months. Appellant was given penitentiary sentences of six months under each of these sections. We are unable to see whereby appellant’s rights were in any way prejudiced by instructing that the penitentiary sentence if given should not exceed 12 months.
Furthermore we are unable to say that the instruction of the court was erroneous because it did not limit the findings of the jury to this particular offense, which occurred on June 6, 1942, but stated that if it was found from the evidence that appellant at any-time within one year next before the filing of the information had in his possession intoxicating alcoholic liquor for the purpose of sale in Saline county, Arkansas, he would be guilty.
Appellant did not ask for an instruction limiting the consideration of the jury to this specific instance, nor one instructing the jury that the evidence of other similar offenses would.be considered by them only for the purpose of determining whether appellant was in the liquor business. In the case of Noyes v. State, 161 Ark. 340, 256 S. W. 63, in which a liquor violation was involved and it was shown that appellant was guilty of other similar violations, the court instructed the jury that if they found that the defendant at any time within 12 months next before the filing of the information transported intoxi eating liquors, they should convict him. The objection to the instruction in that case was that it was not made clear that the 12-month period was referred to solely for the purpose of fixing the statute of limitation governing misdemeanors. The court there said: “"We do not think that the instruction is ambiguous. If the defendant, however, thought that the instruction was likely to mislead the jury about the particular time and transaction relied upon for his conviction, he should have asked a specific instruction upon this point, and, not having done so, he is in no attitude to complain on appeal. ’ ’
Appellant in the instant case did not ask for a specific instruction upon this point. No reversible error was committed in giving instruction No. 3.
Instruction No. 1, complained of in assignment of error No. 18, reads as follows: “You are instructed that if you find from the evidence in this case beyond a reasonable doubt that the defendant at any time within one year next before the filing of the information herein did sell intoxicating alcoholic liquor in Saline county, Arkansas, without having an Arkansas State License therefor as alleged in the information herein, then you are told to find the defendant guilty of selling intoxicating liquor without a license and fix his punishment at a fine of not less than $500 nor more than $1,000, or assess his punishment at a period of any time up to one year in the Arkansas penitentiary, or both fine and imprisonment. ’ ’
The penalty for the illegal sale of liquor, with which appellant was charged and which is the basis of this instruction, is provided for in § 3 of act 356 of 1941. This section provides that a defendant, upon conviction of the illegal sale of liquor, shall be deemed guilty of a felony and upon conviction thereof “shall be fined not less than $500 nor more than $1,000, or by imprisonment in the Arkansas penitentiary for not less than one month nor more than 12 months.”
The court, therefore, erred in instructing the jury that if they found the defendant guilty of illegal sale of liquor they could fix his punishment at both fine and imprisonment, and due to this erroneous instruction the jury fixed the punishment at a fine of $500 and imprisonment for a period of six months in the Arkansas penitentiary. This error, however, may be corrected without prejudice to appellant by modifying the judgment so as to eliminate therefrom the part thereof sentencing him to imprisonment in the Arkansas penitentiary for a period of six months. See § 4070, Pope’s Digest.
We have considered all of the assignments of error upon which appellant relies, and fail to find any errors which warrant a reversal.
The judgment of conviction upon the charge of selling liquor is, therefore, modified by eliminating therefrom the provision for a penitentiary sentence, leaving in effect the provision thereof assessing a fine of $500 against appellant, and as thus modified is affirmed. The -judgment of conviction upon the charge of illegal possession of liquor for the purpose of sale is affirmed. | [
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McHaney, J.
Appellant is the widow of Chas. S. Stifft, deceased, and appellees are the executors of his estate. Some time after the death of Mr. Stifft, appellant presented her claim to the probate court of Pulaski County, 'alleging that she was the owner of $21,700 of the bonds of the Arkansas Diamond Corporation, by virtue off a gift thereof from her husband, and that he had sold said bonds for the sum of $14,647.50 and had deposited said sum in the bank of appellee, W. B. Worthen Company, in his own name, and that he had drawn checks for his own use against said account, leaving a balance therein of $9,027.02 at the time of his death. .She prayed that said sum be delivered to her, and that she have judgment against the estate for the remainder of the sale price of the bonds, with 6 per cent, interest from the date of sale, July 26, 1926. She later amended her demand, claiming that there was an additional $1,000 of bonds belonging to her which her husband had sold and converted to his own use, the exact sale price being unknown to the claimant, but which she presumed were sold at the same price, 67% cents on the dollar, and asked judgment for $675 additional. The probate court allowed the claim as a fourth-class claim, and both parties appealed to the circuit court, where the.cause was submitted to the court sitting as a jury, on substantially the following facts:
A large envelope was found in Mr. Stifft’s desk, entirely empty, bearing the indorsement: “Within bonds of Arkansas Diamond Corporation, $22,700, are the property of my wife, .Sophia Leon Stifft. June 16, 1923. Chas.S.Stifft. Witness: L. J. Gribson.” Appellant saw this envelope in Mr. Stifft’s desk with the bonds in it, but just when she saw this, or how many bonds there were in the envelope, is not shown. No bonds were in it at the time of his death, nor is it shown how long it had been since there were any bonds in it. After Mr. Stifft’s death, his safety deposit box in the American Southern Trust Company was opened in the presence of the executors and appellant, and a slip of paper was found therein with the following writing thereon: ‘ ‘ The within bonds of the Arkansas Diamond Corporation are the property of my wife, Sophia Leon Stifft, without liability on her part. The amount of the bonds is $22,700, more or less. Chas. S. Stifft.” This writing- was likewise' dated June 16, 1923. Both writings were in the genuine handwriting of Chas. .S. Stifft. No bonds were found in the safety deposit box. It is not shown that these bonds were ever in the safety deposit box, except as it may be inferred from this writing, and except the testimony of Mrs. Lally, the custodian of the safety deposit vault of the American Southern Trust Company, who stated that Mr. Stifft told her that there were bonds in the box, and that everything in the box belonged to Mrs. Stifft. Appellant and Mr. Stifft each had a key to this box.
Mr. Stifft stated on several different occasions to Mr. and Mrs. Leon, brother and sister-in-law of appellant, and in her presence, that he had given all the stock and bonds he owned in the diamond mines to appellant, and referred to them several times as her property.
On July 25,1923, Mr. Stifft borrowed from appellee, W. B. Worthen Company, $3,500, and deposited as collateral to his note therefor $3,500 of these bonds. These same identical bonds remained in the possession of the W. B. Worthen Company from that date until January 11, 1926, when they were delivered by it to the .Union Trust Company. On December 27, 1923, Mr. Stifft borrowed a sum of money from the Union Trust Company and deposited $10,000 of these same bonds with it as collateral for said loan, and on December '28, 1925,’ he deposited the remainder of said bonds, $8,200, with the Union Trust Company, making a total amount of $18,200 of these bonds then in the hands of the Union Trust Company, where they remained, together with the .$3,500 it received from the W. B. Worthen Company, until June 15, 1926, when the whole amount thereof, $21,700, was shipped by the Union Trust Company to Mr. Samuel W. Reyburn in New York, in completion of.a sale of said bonds by Mr. Stifft to Mr. Reyburn. On July 26, 1926, Mr. Reyburn issued his check in payment of said bonds in the sum of $14,647.50, payable to Chas. S. Stifft, which check was delivered to Mr. Stifft in New York, who sent same direct to the W. B. Worthen Company for deposit and credit to his personal account, which was done, and he thereafter checked against same up to the date of his death. He also collected the interest coupons attached to the bonds, and used the mohey as his own. Mr. Stifft left a will, dated March 30,1926, containing the following provision: “I also give to my said wife, Sophia Leon Stifft, all money which I have to date of my death paid in the American Building’ & Loan Association, also twenty-one thousand seven hundred dollars ($21,700) bonds of the Arkansas Diamond Corporation.”'
Based on these facts, the circuit court found that the evidence did not establish a gift of said bonds by Chas. ' S. Stifft to appellant, and entered a judgment disallowing the claim of appellant, and she has appealed.
Was the court eorxect in finding “that the evidence does not establish a gift of the bonds aforesaid by the said Charles S. Stifft.to the said Sophia Leon Stifft?” This is the question we are called upon to decide. The facts are undisputed.
Our statute, § 4876, C. & M. Digest, throws some light on the question. It is as follows: “Every gift of goods and chattels, and all other conveyances of the same, not on consideration deemed good in law, shall be void as against all creditors and purchasers; and all such gifts, grants and conveyances shall not be void even against the grantor unless possession really and bona fide accompany such gift or conveyance.” It cannot be said, under the above facts, that possession of these bonds did “really and bona fide accompany such gift or conveyance.” Appellant never “really” had the possession of said bonds — only a constructive possession thereof by virtue of having á key to the safety-deposit box wherein they may or may not at one time have been deposited. The only written evidence that they were ever in said box is the memoranda dated June 16, 1923, found in the box after Mr. Stifft’s death. It is shown beyond all controversy that, if they were in there at that time, less than thirty days thereafter, on July 5, he took $3,500 of them out, deposited them as collateral to a loan with W. B. Worthen Company, and never again did they find their way back therein. The s'ame thing is true with reference to the $10,000 of said bonds deposited with the Union Trust Company on December '27, 1923, and the $8,200 thereof deposited with the same company on December 28, 1925. No real possession, no actual possession thereof, was ever had by appellant, and, even though it be conceded that all the bonds were in the box on June 16, 1923, the constructive possession thereof by appellant did not continue long thereafter. ' Gifts inter vivos, or donatio inter vivos, iare gifts between the living, and are perfected and become absolute during the lifetime of the donor and the donee. Hatcher v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507. The elements necessary to constitute a valid gift inter vivos were stated by this court in Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, to the effect that the donor must be of sound mind, must actually deliver the property to the donee, must intend to pass the title immediately, and the donee must accept the gift. It will therefore be seen that a gift inter vivos cannot be made to take effect in the future, as such a transaction would only be a promise or agreement to make a gift, and, 'being without consideration, would be unenforceable, and void, and considerations of blood or love and affection are not sufficient to support such a promise. 12 R. C. L. 930. This court, from Hynson v. Terry, 1 Ark. 83, down to' the present time, in an unbroken line of cases, has held that actual delivery is essential, both at law and in equity, to the validity of a gift, and that without it the title does not pass. Mere delivery of possession is not sufficient, but “ there must be an existing intention accompanying the act of delivery to pass the title, and, if this does not exist, the gift is not complete. McKee v. Hendricks, 165 Ark. 369-383, 264 S. W. 825, 952, and cases cited. In the case of Carter v. Greenway, 152 Ark. 339, 238 S. W. 65, it is said:
“Gifts causa mortis, as well as inter vivos, are based upon the fundamental right every one has of disposing of his property as he wills.. The law leaves the power of disposition complete, but, to guard against fraud and imposition, regulates the methods by which it is aiecomplished. To consummate a gift, whether inter vivos or causa mortis, the property must be actually delivered, and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos, the moment the gift is thus consummated it becomes absolute and irrevocable.”
See also the opinion of Judge Sanborn in Allen-West Com. Co. v. Grumbles (C. C. A.), 129 Fed. 287, where it is said:
“Among the indispensable [conditions, of a valid gift are the intention of the donor to absolutely and irrevocably divest himself of the title, dominion and control of the subject of the gift in praesenti at the very time he undertakes to make the gift (citing eases); the irrevocable transfer of the present title, dominion, and control of the thing given to the donee, so that the donor can exercise no further act of dominion or control over it (citing cases); and the delivery by the donor to the donee of the subject of the gift or of the most effectual means of commanding the dominion of it. This delivery must be an actual one £so far as the subject is capable of it. It must be secimdnm subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject.’ 2 Kent’s Com. 439. If the subject of the gift is a chose in action, such as a bond, a note, or stock in a [corporation, the delivery of the most effectual means of reducing the chose to possession or use, such as the delivery of the bond, or the note, or the certificate of stock, if present and capable of delivery, is indispensable to the completion of the gift.” See also Chambers v. McCreery (C. C. A.), 106 Fed. 364.
Mr. Stifft wholly failed to consummate his intended gift. He did not divest himself of the title, dominion and control of these bonds on June 16, 1923, or at any other time thereafter. He thereafter continued to exercise acts of ownership, dominion and control over them, actually pledged and hypothecated them as his own, collected .the interest coupons attached to them as his own, made them the subject of a specific bequest to appellant in his will dated March 30, 1926, thereby negativing, if not completely repudiating, his former intention to make a gift inter vivos, and finally sold them as his own, collected the money, deposited it to his credit, and checked on it until his death. So, as was said by the court in Chambers v. McCreery, supra, it is “impossible to apply the facts as we find them to be in the case we have now to decide with the law we have just referred to, and thereby'sustain the contention of the complainants below. The ‘ constructive’ delivery insisted on 'by counsel for appellants is inconsistent with the conduct of the alleged donor from the date of the declarations made by him from which the delivery is said to be inferred to the day of his death.”
We must therefore overrule the contention’ of learned counsel for appellant, and the judgment will be affirmed. | [
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Hart, C. J.,
(after stating the facts). Curtner relies for ia reversal of the judgment upon the rule in Hampton Stave Co. v. Gardner (C. C. A.), 154 Fed. 805, where it was. held that, upon a breach by a vendor of a covenant to furnish an abstract of title in a contract which grants a time option to purchase land, the measure of damages is the difference between the contract price and the value of the land, and the issue whether or not the vendee would have bought the land if the vendor had furnished the abstract is speculative and immaterial. Without approving that decision as to option contracts for the sale of land, we are of the opinion that it has no application to the facts of the present casé and is wholly opposed to the rule governing executed contracts of sale, as decided by our own and other courts of last resort.
It was clearly the duty of the plaintiff to use reasonable effort» to lessen any damage that might result from defendant’s breach of its contract in.a case like the-present one, where this could have been done at a trifling expense compared to the whole value -of the land. In Warren v. Stoddard, 105 U. S. 224, 26 L. ed. 1117, the rule was laid down as follows:
“That, where a party is entitled to the benefit'of a contract, and can save himself from a loss arising from the breach of it, at a trifling expense or with reasonable exertions, 'it is- his duty to do it, and he can charge the delinquent with isiuch damages -only as, with reasonable endeavors and expense, he could not prevent.”
The rule as -settled -by the decisions in this State is ■that, where a party is entitled to the benefit of a contract, 'and can save himself from loss arising from a breach thereof at a small expense or with reasonable exertions, it is his duty to do so, and he cam only recover -such damages as he could not thereby prevent. Young v. Berman, 96 Ark. 78, 131 S. W. 62, 34 L. R. A. (N. S.) 977; Western Union Tel. Co. v. Ivy, 102 Ark. 246, 143 S. W. 1078; St. Louis Southwestern Ry. Co. v. Reagan, 79 Ark. 484, 96 S. W. 168, 7 L. R. A. (N. S.) 977; and Lisko v. Uhren, 134 Ark. 430, 204 S. W. 101.
The undisputed evidence shows that Curtner could have procured -a-m abstract -of title to the land in question for the sum -of $65, and we are of the opinion that this was a trifling expense when compared with the whole value of the land, which, at the time of the exchange, was valued by the bank at $8,000, and which Curtner now says the bank told him waisi worth at the time twice that amount.
It follows that the judgment of the circuit court, was correct, and it will therefore be affirmed. | [
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Holt, J.
This litigation grew out of a dispute over the boundary line between two .tracts of land. Appellants own one of these tracts, lot 11, containing approximately 35.88 acres, and the north 10.27 acres of lot 12, supplemental survey in the southwest quarter of section 2, township 15 north, range 11 east; and appellee, G-. W. Faught, owns the other, which is the south part of lot 12 in the southwest quarter of said section, containing approximately 35.27 acres, all in Mississippi county, Arkansas.
Appellees have submitted no brief.
The present suit was filed by appellants against appellees April 16, 1940. They alleged in their complaint, among other things, that in order to establish the correct boundary line between the two tracts of land in question, they and appellee, Gr. W. Fanght, on March 19, 1940, entered into the following written agreement: “This agreement is by and between L. M. Krutz and George Faught, of Blytheville, Arkansas, as follows: In order • to settle all questions about the fence line between the parties to this agreement, as to their respective lands in the southwest quarter of section two, township fifteen north, range eleven east, the. said parties hereby agree to employ the present county surveyor to go upon said lands and establish the correct government division lines, set proper stakes, and such lines shall then be considered and accepted by the parties to this agreement as the true and correct division line between their lands. Such lines when established shall be accepted in lieu of any old fence rows or other points now considered by either party as part of the division -lines. Either party when said survey is made may erect a fence on the line as thus established. Each party to this agreement is to be present or have a representative when the survey is made, and each party hereto agrees to pay one-half of the cost of such survey. Dated this 19th day of March, -1940. Signed: L. M. Krutz. Witness: Fránk C. Douglas,” and pursuant to this agreement the then county surveyor, Mr. Ott, went upon the lands, made a survey, and established the correct boundary line.
It is further alleged that appellee, Faught, refused to abide by the survey made in accordance with the terms of the agreement. Appellants prayed that appellee, Faught, “be restrained from molesting the plaintiffs (appellants here) and their agents and employees in the erection of a fence along the division line established by the county surveyor, Ott; that title to lot 11 aforesaid be quieted in the plaintiffs, etc. ’ ’
Appellee, Lum Manley, disclaimed any interest in the suit, and he passes out of the case.
Appellee, G. W: Faught, filed answer denying the material allegations of the complaint, and in a cross-complaint alleged that he was the owner and entitled to possession of the land in dispute, comprising a small strip across the south end of the eastern boundary line between Mm and appellants of approximately one acre in extent, and prayed for an order enjoining appellants from interfering with Ms occupancy of the land in question, etc.
August 23, 1940, the .cause was submitted to the court on depositions previously taken by appellants. No testimony appears to have been offered by appellee, but on August 23 appellee requested the appointment of a surveyor and master. E. J. Heaton was appointed, but did not serve. February 24, 1941, H. C. Davidson, the then county surveyor, was appointed by the court “to survey out the line in dispute in this suit between the parties, and re-establish the government line running north and south between lots 11 and 12 in the southwest quarter of section 2, township 15 north, range 11 east. Said H. C. Davidson is also appointed as master and he may examine the parties to this suit and their witnesses and make report to this court of the contentions of both plaintiff and defendant herein, etc.” In due course, Mr. Davidson made a survey and filed his report. Exceptions were filed to the report by appellants, which were overruled by the court, and on April 11, 1942, a decree was entered approving the survey as filed by the then county surveyor, H. C. Davidson, as establishing the boundary line. This appeal is from that decree.
As has been noted, the parties to this action on March 19, 1940, entered into a written agreement under the terms of which, among other things, they bound themselves “to employ the present county surveyor to go upon said lands and establish the correct government division lines, set proper stakes, and such lines shall then be considered and accepted by the parties to this agreement as the true and correct division line between their lands. Such lines when established shall be accepted in lieu of any old fence rows or other points now considered by either party as part of the division lines. Either party when said survey is made may erect a fence on the line as thus established.”
Fraud being absent, we are clearly of the view, on the record here, that the parties to this written agreement are bound by its terms. While appellee, Faught, one of the parties, refused to he bound by the agreement after the survey was made because he was dissatisfied with the result, under the law it was beyond his power to repudiate this survey and refuse to be bound by it without the consent of appellant, the other party to this agreement. We find, nothing in the record abstracted here of any repudiation of this agreement on the part of appellant, Krutz.
It is the policy of the law to encourage the settlement of boundary disputes between landowners by agreement. This court, in Miller v. Farmers Bank & Trust Company, 104 Ark. 99, 148 S. W. 513, held (quoting from headnote 5): “It is the policy of the law to encourage agreements between adjacent landowners as to their boundaries, and to give effect thereto when shown to exist.” In that case there was cited with approval the case of Levy v. Maddox, 81 Tex. 210, 16 S. W. 877, and it is there said: “This court has frequently passed on questions of boundary, and as has been frequently cited, ‘these settlements of boundary are common, beneficial, approved, and encouraged by the courts, and ought not to be disturbed, though it was afterward shown that they had been erroneously settled. Convenience, policy, necessity, justice, all unite in favor of such an amicable settlement’.” See, also, McCombs v. Wall, 66 Ark. 336, 50 S. W. 876.
Having reached the conclusion that the parties here are bound by their agreement, and the survey made in accordance with its terms, the decree must be, and is, reversed and the cause remanded with directions to establish as the correct boundary line, the line fixed and established by Mr. Ott’s survey, and for other proceedings consistent with this opinion. | [
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Gteifein Smith, C. J.
The suit as originally designed was to compel W. H. Powell to specifically perform a written contract, and to procure judgment on miscellaneous obligations of Cash and Carry Milling Company Powell is alleged to have agreed to pay. J. E. Whisnant was a joint plaintiff with Shaw, but later filed a stipulation releasing Powell.
Shaw was owner of two lots in Batesville upon which a feed mill was constructed and sold to Powell. The land and buildings were mortgaged to Batesville Federal Savings and Loan Association. Shaw’s residence was included in the security. Copy of a writing dated January 10, 1941, recites sale of the land, “. . . more particularly described on a warranty deed attached to [a copy of the contract.”] As part consideration moving to Shaw for sale of the real property and milling business, inclusive of machinery, etc., Powell agreed to pay the mortgage in monthly installments of $40, beginning with December, 1940. The balance was $2,318.81. Other recited indebtedness was: (a) Two notes held by Bell Lumber Company, one for $325, the other for $150, with stipulated interest, (b) Note to O. W. Pitts & Son for $385. (c) “A balance due on insurance [premium] on the property sold, $46.05.” The contract states that deed to the real property would be deposited with loan papers held by Federal Savings, “. . . with the stipulation that said deed is to be delivered to [Powell] only when the loan to said association is fully paid, and also [when] the other notes enumerated [in the contract have been] paid in like manner.”
July 7, 1941, Wliisnant filed a statement that all amounts claimed from Powell had been 1 ‘fully paid and discharged.” There was a request that his suit be dismissed.
September 4, 1941, Powell moved for dismissal of Shaw’s complaint insofar as it related to demand that the mortgage on Shaw’s home be discharged at once. Receipts showing payment of all other items assumed in the written contract were exhibited to the court.
R. W. Tucker, who filed the complaint for Shaw and Wliisnant, asked for summary judgment against Powell and Whisnant because Powell, according to Whisnant’s declaration, had settled with Whisnant without consulting Whisnant’s attorney, and without the attorney’s knowledge.
Early in September, 1941, Shaw petitioned for appointment of a receiver on the ground that Powell was diverting assets, or was attempting to divert them. There Avas no allegation of insolvency. It does not appear that the court acted on the motion.
In the meantime (June, 1941) Fulton Bag & Cotton Mills, Inc., intervened, alleging that Shaw and Whisnant owed it $70.75, and that the sale of Cash and Carry Milling Company to Powell was consummated in disregard of the Bulk Sales Law. Pope’s Digest, § 6067. Judgment against Shaw and Whisnant was asked. There was also a petition that Powell be made receiver as to property of the milling company coming into his hands, and that judgment be rendered against Powell.
September 15, 1941, Powell filed answer and cross complaint. It was alleged that in addition to the debts Powell assumed, as eAddenced by the written contract, six items aggregating $545.19 were paid by him, although they were primary obligations of Shaw and Whisnant. Six other claims, aggregating $314.30, were outstanding. Total of the twelve items Avas $859.49. In their complaint SliaAv and Whisnant listed twelve accounts amounting to $814.99 they alleged PoAvell assumed. It was also stated that Shaw had been compelled to pay two of the twelve bills, one for $45, the other for $51.50.
It is admitted Shaw and Whisnant were partners. Whisnant rendered services in converting buildings into a milling status, and seemingly thereafter operated the business without interference from Shaw. Whisnant alleged in his complaint that Powell took over the unlisted debts of $814.99, and agreed to pay him $250. Powell testified he did not owe Whisnant anything and did not make a payment to him. Whisnant did not testify.
There is ample evidence in the bill of exceptions, which is incompletely abstracted, to show that Shaw was imposed upon by Whisnant.
Shaw’s explanation of transactions preliminary to the contract with Powell was that he had information Powell was interested in buying the property. He (Shaw) prepared a list of “expenses” he had been out. He then went to Powell and told him that if reimbursed for this outlay, and if Powell would assume all obligations, the deal could be closed. Whisnant was not present. Shaw insists that when he went into Powell’s office, Powell had a list of obligations he (Shaw) had prepared for Whisnant. The list, amounting to $1,172.59, was on Powell’s desk. “I told Powell what I had told Whisnant: that if he (Powell) wanted to pay $1,172.59 in cash . . . and assume all the obligations, I would turn over my interest.”
In consequence of this conversation, says Shaw, Powell later delivered his check for $1,000 and was given thirty days within which to pay the remainder. Shaw also testified that Powell told him he had three thousand bales of cotton, but did not want to sell it at once. It was Powell’s opinion the commodities would advance; that he could sell to better advantage in thirty days, and he preferred to then pay the balance of $172.59. Powell is quoted as having said: “If anything happens [to prevent the sale] I will put up my real estate to take care of [your] real estate loan, clear it, and take care of all other indebtedness. . . . The following day he called me and said, ‘Let’s go [to the Federal Savings office] and see if we can arrange a temporary agreement whereby I can pay you the thousand dollars and let the mortgage stand for thirty days on your land, and then I will take it up’.”
The only evidence abstracted by appellant is an abridgment of what Sháw and Powell testified to; also a brief summation of the testimony of C. D. Metcalf, secretary-treasurer of the savings and loan association. The sale agreement between Shaw and Powell was drawn by Metcalf. In the abstract of Metcalf’s testimony there is the statement that “. . . He (Metcalf) understood it was the expectation of Shaw and Powell that the mortgage would be paid in thirty days.” Reference to the transcript, however, does not justify the conclusion. Met-calf was asked on direct examination if he knew what the intent was “relative to taking up this mortgage or deed of trust.” He replied: ‘‘The understanding is covered by the printed or signed agreement. ’ ’ He was then questioned about his “understanding” of the arrangement, to which there was the response: “I wrote [the contract] and I think I understood it as it was written.” He then stated that Powell had “taken care” of the payments; that he assumed them, and was'meeting the obligation. Shaw, he said, was not relieved of liability. The question was asked, “Didn’t you have an understanding that yon would do that?” The answer was “No, sir.” Met-calf then testified that Shaw and Powell may have had a private understanding between themselves, “but they didn’t say anything to me about it.” On cross examination Metcalf testified he thought it was the “expectation” of Shaw and Powell that the mortgage would be paid or transferred to other property, “but there was no agreement to that effect.”
Shaw’s complaint was dismissed for want of equity. On the cross action Powell secured judgment for $736. Tucker, as attorney for Whisnant, was allowed a fee of $50 because of the unauthorized settlement between Powell and Whisnant. In the decree of December 2,1941, Powell was granted an appeal from the $50 judgment. Shaw’s appeal was granted by this court May 23, 1942. Pope’s Digest, § 2741. Appellee’s direct appeal was not perfected; nor did he cross appeal. He does not urge that allowance of the Tucker fee was improper.
Appellee’s motion to dismiss for want of sufficient abstract (Buie Nine) could be sustained. However, we have preferred to examine the record to determine whether the decree is supported by a preponderance of the evidence — and it is.
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Humphreys, J.
This is an appeal by appellant as sole heir at law, and administratrix of the estate of John Lewis Robbins, deceased, from a .judgment of the probate court of Washington county that lands particularly described in the agreed statement of facts hereinafter set out in full are subject to sale to pay debts.of the deceased before resorting to the only other lands owned by deceased in said county and which are particularly described in said agreed statement of facts.
This judgment was rendered on the 31st day of March, 1942, upon a stipulation of facts by the parties, which stipulation was embodied in the judgment as findings of the court, and which stipulation is as follows:
“Stipulations
“It is agreed and stipulated in open, court by and between Elizabeth Hospital, petitioner, and Jimmie Maxie Carl, administratrix of the estate of John Lewis Robbins, deceased, and Jimmie Maxie Carl, heir at law of said deceased, intervener herein, that said John Lewis Robbins, late a resident of Washington county, Arkansas, died intestate in said county on the 6th day of April, 1940, leaving no widow and no children surviving and leaving as his sole heir at law by declaration of deceased, Jimmie Maxie Carl, intervener.
“Said deceased was the head of a family, at the time of his death, he owned and resided upon and occupied as his homestead the following described tract of land in said county, to-wit:
“ ‘The southeast quarter of the northeast quarter and a tract forty-five rods in width off of the east side of the southwest quarter of the northeast quarter and the northwest quarter of the southeast quarter of section No. 16; also the north half of the northeast quarter of the southeast quarter of said section No. 16, all in township No. 14 north, range No. 31 west of the 5th p. m. containing less than 160 acres and of a value less than $2,500, which tract of real estate will be referred to hereafter as tract No. 1.’
“Said deceased, at the time of his death, owned also the following described tract of land in Washington county, Arkansas, to-wit: ‘Part of the east half of the northwest quarter of section No. 23, township No. 15 north, range No. 32 west of the 5th p. m. bounded as follows: beginning seventeen rods west and fifty rods and thirteen feet south of the northeast corner of said east half of northwest quarter aforesaid and running thence south 105.2 rods; thence north 60.5 degrees east, 17 rods to the east line of said subdivision; thence south 16 rods to the southeast corner of subdivision; thence west 54.72 rods; thence north 37.92 rods; thence west 25.28 rods; thence north 71.3 rods; thence east 63 rods to the point of beginning. Also part of the northeast quarter of the southwest quarter of section No. 23, bounded as follows: beginning at the northeast corner of said subdivision .and running thence west 7.66 chains; thence south 1.76 chains; thence east 7.66 chains; thence north 1.76 chains to the place of beginning, subject to a roadway twenty feet in width off the east end of the last described tract, which tract of real estate will be referred to hereafter as tract No. 2.’
“Said deceased also left $106.70 in money and personal property which has been sold by said administratrix under an order of this court for $253.
“Claims against the estate of said deceased have been filed and allowed by the court in the sum of $598.12 and it is necessary to sell lands of said estate for the payment of debts of deceased.
“Jimmie Maxie Carl was duly appointed as administratrix of the estate of said deceased on the 29th day of April, 1940, by this court, and is now the duly qualified and acting administratrix of said estate.
“The petitioner, Elizabeth Hospital of Prairie Grove, Ark., was one of the creditors of said deceased, and made written demand by registered mail upon the said administratrix for the sale of tract No. 1 of said real estate for the purpose of paying debts of said deceased ; on failure of said administratrix to do so, notice of application to sell said lands to pay debts was published in the form and manner prescribed by law by said creditor and pursuant to the said notice said creditor filed its petition; that thereafter said administratrix filed answer to the petition of said creditor and her application to sell tract No. 2 for the purpose of paying debts, and the said Jimmie Maxie Carl, heir at law, filed an answer and intervention claiming that tract No. 1 was her homestead and that it should not be sold to pay debts until the said tract No. 2 had been sold.
“Said Jimmie Maxie Ga.rl, heir at law of said deceased, at the time of the death of said deceased, was above 21 years of age; was a married woman and living with her husband, and they had been living with said deceased on tract No. 1 of said real estate for more than one month prior to the death of deceased; Jimmie Maxie Carl and her husband owned no real estate and had no other homestead at said time and she claimed and still claims said real estate as her homestead and she and her husband are still living thereon.
“On the 5th day of April, 1940, the said Jimmie Maxie Carl filed a voluntary petition in the district court of the United States, Western District of Arkansas, Fort Smith Division, and on said date she was adjudged a bankrupt ; that in her schedules, she listed no assets and only one creditor, the Farmers & Merchants Bank of Prairie Grove; that thereafter on the 19th day of April, 1940, she filed an amendment do her schedules listing all of above described real estate and claiming tract No. 1 thereof as her homestead and said court set off the same to her as her homestead.
“Said Farmers & Merchants Bank made proof of its claim in said bankruptcy proceeding- based upon a judgment and decree of the chancery court of Washington, county, rendered on April 1, 1932, for $3,373.71 and for foreclosure of mortgage upon debtor’s property which ivas sold for $1,200 under said decree, and Avhich sale Avas approved by said court on May 19, 1932; said judgment never had been revived.
“On August 20, 1940, the trustee in bankruptcy, in consideration of $800, sold to Farmers & Merchants Bank of Prairie Grove, and by deed dated October 29, 1940, conveyed to it, all of the right, title and interest of said bankrupt in and to the tract of land No. 2 hereinbefore described, under an order of the referee in bankruptcy, Avhich deed is recorded in Washington county Deed Record 319 at p. 110.
“Tract No. 1 of said real estate lies wholly outside of any city, town or village and was appraised at $1,750 and tract No; 2 was appraised at $1,000, and this stipulation contains all of the facts upon which said matter shall be tried and decided.”
Immediately following this stipulation the judgment recites and declares as follows: “And said stipulation of facts being all of the evidence considered by the court in the trial of said case, and the court having fully considered the same and being well advised in the premises, finds the law to be: ‘That the lands described in the petition of Elizabeth Hospital, being tract No. 1 above described and which are claimed as the homestead of Jimmie Maxie Carl, intervener, are subject to sale to pay debts of the deceased and should be sold by the administratrix before resorting to tract No. 2 which is the only other lands of said deceased which have been heretofore sold by virtue of an order of the bankruptcy court to pay the individual debt of the heir, Jimmie Maxie Carl, and the prayer of Elizabeth Hospital should be granted and the prayer of the petition of the administratrix and the prayer of the intervener should be denied.
“ ‘Therefore it is ordered' and adjudged by the court that the said administratrix sell a sufficient amount of the lands of said deceased, to-wit: the southeast quarter of the northeast quarter and a tract forty-five rods in width off of the east side of the southwest quarter of the northeast quarter and northwest quarter of southeast quarter; also the north half of northeast quarter of southeast quarter of section No. 16, all in township No. 14 north, range No. 31 west of the 5th p.' m. in Washington county, Arkansas, to pay the debts probated against said estate and from the proceeds of such sale, pay said debts and the costs and expenses of administration.’ ”
The judgment then provides for the manner in which the lands shall be sold.
According to the agreed statement of facts, deceased occupied tract No. 1 as his homestead at the time of his death. He left no widow or minor children. He was survived by Jimmie Maxie Carl, a married' woman over 21 years of age, who, with her husband, had been living with him about a month before he died. Jimmie Maxie Carl inherited his estate by virtue of a declaration of heir-ship previously made by him. She acquired no homestead right in any of the lands owned by her foster father at the time of his death, but inherited the title thereto in fee by inheritance subject to the payment of his debts as there was insufficient personal property to pay them. The day before her foster father died, appellant, Jimmie Maxie Carl, filed a voluntary petition in bankruptcy in the district court of the United States, Western District of Arkansas, Fort Smith Division, and on said date she was adjudged bankrupt. In her schedules she listed no assets and only one creditor, the Farmers & Merchants Bank of Prairie Grove. On the 19th day of April, 1940, she filed an amendment to her schedules listing tract No. 1 and tract No. 2 as assets and in the bankruptcy pro ceedings claimed tract No. 1 as her homestead and the court set off same to her as a homestead, but she, without question, permitted her sole creditor, the Farmers & Merchants Bank of Prairie Grove, to make proof of its claim and' to sell same through the trustee to apply on her individual debt. Tract No. 2 was subsequently sold in the bankruptcy proceedings to apply on her individual debt and the trustee made a deed to tract No. 2 to her sole individual creditor, the Farmers & Merchants Bank of Prairie Grove.
The creditors of deceased were not parties to the bankruptcy proceedings and were not bound in any way by the action of the bankruptcy court in setting off tract No. 1 to appellant as a homestead.
The result of appellant’s voluntary proceedings in bankruptcy amounted to an alienation of tract No. 2 by her in settlement of her individual debt.
The rule of law applicable to the facts found by the probate court in the instant case is that an heir who inherits the lands of a deceased subject to the payment of the debts of the deceased, if the personal property of the deceased is insufficient to pay said debts, the heir may transfer or dispose of the lands subject to the payment of the debts, but that.the lands remaining in the possession of the heir and not alienated by him should be first exhausted in the payment of decedent’s debts.
The principle of law thus announced was applied in the case of Howell v. Duke, 40 Ark. 102. The only material difference between the instant case and the case cited is that in the instant case tract No. 2 was alienated by appellant, who inherited both the tracts subject to the debts of the deceased, whereas, in the case cited, the devisee mortgaged a part of the land, which mortgage was subsequently foreclosed to pay the debt of the heir secured by the mortgage. We think, therefore, the instant case is ruled in principle by the case of Howell v. Duke, supra.
No error appearing, the judgment is affirmed. | [
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Mehaffy, J.
The appellees, plaintiffs below, brought suit in the Johnson Chancery Court to have certain deeds declared void and canceled. They alleged that William N. Russell, on the 18th day of March, 1924, made deeds to certain property to Susie Hardin and Olivia Acord; that, at the time he made said deeds, said Russell was afflicted with Bright’s disease, had been for some time, and was feeble in body and mind and incapacitated to transact any kind of business, and that, while he was in this condition, the defendants took advantage of his feeble and weak condition and induced him to sign the deeds. In other words, they alleged that he was mentally incapacitated, and also alleged undue influence.
The defendant answered, admitting the making of the deeds, but denying all other material allegations of the complaint.
At the trial, proof was introduced on the question of the delivery of the deed. Russell died a few days after the execution of the deed, and tlie chancellor found that it had never been delivered. The facts with reference to the delivery of the deed are substantially as follows: L. J. McMillan testified that Mr. Mayfield did the writing; he wrote the deeds.* When they were drawn, Mayfield had Mrs. Russell to come in. When both deeds were written, Mr. Russell doubled the will up and stuck it back in the envelope, and then got up and signed the deeds.
B. W. Hardin, the husband of Susie Hardin, testified that he was not present when the deeds were made, and that he delivered the deeds to the parties after Mr. Russell’s death. That he was obeying instructions at the time he made the delivery. He said that Mr. Russell told him to tend to his will and tend to his business. The deeds were sent out there to be put in the safe and be locked up. None knew the combination but witness and Mr. Russell. Witness knew what he had done with the deeds, because he put them back in the envelope. Mr. Mayfield brought them out there.- He also testified: “Mr. Russell told me to tend to his will and tend to his business. He told me about the deeds several times.”
Witness put the deeds in the safe, according to Mr. Russell’s directions, and they were there until his death. They were with the will. The seal had not been broken. They were in a large envelope with the indorsement on the back, “This is my will and deeds.”
N. A. Mayfield, justice of the -peace, who wrote the deeds, testified that he drew the deeds under the direction of Mr. Russell, and took Mrs. Russell’s acknowledgment. She could not write, but touched the pen while witness made a cross-mark. “After the deeds were finished Mr. Russell had me lay them back, and called for a piece of paper, and had that addition to the will drawn. He called for an envelope, and. some one went to the store and brought back a long blank envelope, and he took the instrument he had in his hand, those deeds and the addition to his will, and folded them up and put them all in that envelope, and sealed it up. He asked me to write on there, his will and deeds, and I did. He asked me to lake them over there and give them to Mr. Hardin and put them in the safe and lock them up. I took them and delivered them to Mr. Hardin.”
Olivia Aeord testified that the deeds were signed on the 18th day of March, and that Mr. Russell died on the 5th day of April.
There was testimony introduced by both parties as to Mr. Russell’s capacity and also as to undue influence. There was also testimony to show that Mr. Russell could scarcely read or write, and Mrs. Russell could neither read nor write. But this testimony about undue influence, incapacity and the condition -of the parties need not be set out,- because we think the important question, and the one that determines this case, is whether or not the deeds were delivered. It has been repeatedly held that a manual delivery need not be made by the grantor, but the delivery is sufficient if it is manifest that the grantor intended to part with the deed as an effective conveyance, and the question of whether the deed had been delivered is largely one of intention on the part of the grantor. This question of intention is to be determined from the evidence, and unless the finding of the chancellor is against the preponderance of the evidence, his decree will be affirmed.
In this case we do not think the finding of the chancellor is against the preponderance of the evidence. Appellant calls attention to a number of oases,- but we do not think that this case comes within the rule announced by either of them. In one of the cases cited by appellant the court said, quoting from another decision of this court:
“To constitute an instrument an escrow, it is absolutely necessary that the deposit of it should be irrevocable; ‘that is, that when the instrument is placed in the hands of the depository it -should be intended to pass beyond the control of the grantor for all time, and that he should actually lose control of ánd dominion over the instrument; for, in case the deposit is made in further anee of a contract between tlie parties, the contract must be so complete that 'it remains only for the grantee or obligee or another person to perform the required condition, or for the event to happen, to have the instrument take effect according to its import’.” Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147, Ann. Cas. 1915C 385.
In this case it is true that B. W. Hardin, one of the appellants, testified that Russell requested him to deliver the deeds to the grantees after Russell’s death. In explaining how he gave him these instructions, however, this witness said:
‘ ‘ Q. How were you directed ? ’ ’ And he answered: “Mr. Russell told me to attend to'his Vill and attend to his business. Told me time and again. Q. To attend to his business? A. Yes sir. Q. This is the instructions you had? A. Yes sir.”
The instructions that he gave to the justice of the peace who wrote the deed were, not to deliver to the grantees or any person for the g’rantees, but to deliver them to Hardin to be put in the safe. Russell himself put his will and the deeds together in an envelope and sealed them up and directed that they be put in the safe, and we do not think that this showed the intention of the grantor that the papers should pass beyond his control for all time. We do not think it shows that he actually lost control of and dominion over the deed, and if he did not, hen, according to the decisions of this court and the decisions relied on by appellant, there was ho delivery.
Another case referred to and relied on by appellants is the case of Sneathen v. Sneathen, 104 Mo. 201, 16 S. W. 497, 24 Am. St. Rep. 326. In that case, while the court says that the grantor does not have to put it out of his physical power to procure possession of it again, yet it holds that it must be delivered to the third person for the grantee without reservation and with the intention that it shall take effect and from that time operate as a transfer of title.
We do not think that the facts in this case show that the deeds in question were so delivered.
Another case relied oil by appellants is Standiford v. Standiford, 97 Mo. 239, 10 S. W. 837, 3 L. R. A., 299. The court in that case said: “To make a deed effective, there must be a delivery, actual or constructive, to the grantee or to some person for his use during the lifetime of the grantor. Whether a deed has been delivered or not is a mixed question of law and fact, dependent largely upon the intention of the parties. * * * Each case must stand on its own peculiar facts. It may be actual or constructive, by word or act, to the grantee directly or to another for him, and a delivery may sometimes be made without the grantee parting with the custody of the instrument. It*is sufficient if, after the grantor has signed, sealed and acknowledged the deed, he make some disposition of it from which it clearly appears that he intended that the instrument should take effect as a conveyance and pass title.”
In the case last referred to the deed was signed, handed to a third person, and he was directed to file it for record. And when it was suggested that it might not be prudent to do this, the grantor then said, ‘Take the deed and keep it safely.’ And the facts clearly showed that it was his intention that it be delivered-to the grantees.
The next case is Foster v. Mansfield, 37 American Decisions 154, 3 Metc. (Mass.) 412, and in that case the deed was handed to a third person to be delivered to the. grantee at a. future time.
Here the only testimony in any way tending to show that it was the intention of the grantor that these deeds should be delivered is the .statement of Hardin, and in explaining how the grantor instructed him, he shows clearly that he did not instruct him to deliver the deeds.
This court has said: “Manual delivery of a deed by the grantor and a formal acceptance by the grantee is not necessary to constitute a delivery of an instrument in law. The delivery is sufficient if it is manifest that the grantor intended to part with the deed as an effective conveyance. * M. M. Johnson executed this deed and placed it of record, and the original deed remained in the-clerk’s office for sixteen years.,” Lee Hardware Co., Ltd. v. Johnson, 132 Ark. 462, 201 S. W. 289.
■ This court said in a case involving the delivery of a deed: “"While the numerical weight of the testimony is against the appellee, we do not think there is a preponderance of the evidence against the finding of the chancellor in holding that there was not a delivery of the deed with the intent to pass title. We have said that the question -of delivery is generally one of intention, as manifested by acts or words, and that there is no delivery unless there is an intention on the part of the actors in the transaction to deliver the deed in order to pass the title immediately to the land conveyed, and that the g’rantor shall lose dominion over the deed.” Bray v. Bray, 132 Ark. 438, 201 S. W. 281.
As we have already said, we do not think the evidence in this case shows'a delivery of the deed with the intention that the grantor shall not thereafter have any control or dominion over it. It is a question largely of intention to be determined by the evidence, and we think the chancellor ’is finding is supported by a preponderance of the evidence, and the decree is affirmed. | [
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Smith, J.
Road Improvement District No. 3 of Johnson County instituted suit in the circuit court of that county by filing a complaint which contained the following allegations:
“Road Improvement District No. 3 of Johnson County is a road district organized and existing under the general laws of the State of Arkansas, and its purpose and object is to improve and build a road from the town of Lamar, through Lutherville and to the line between Johnson and Pope counties. Said road runs over and through a small tract of land owned by the defendant, G-. T. Cazort, and said defendant refuses to agree upon the amount of damages, if any, he has sustained by reason of said road running over and across his said land.
“Plaintiff further alleges and states that said road, if built across the land owned by said defendant, will take less than one acre of said defendant’s land, and that said land is worlli not more than $25 per acre, and that said defendant will not be damaged otherwise.
“That said Road District No. 3 of Johnson County, Arkansas, has used every effort possible to obtain an agreement, and did obtain an agreement with the said defendant whereby he agreed that said road district could build said road over and across his said real property, but, at this time, he refuses to permit said district to construct said road over his said real property, notwithstanding Hie fact that said road is practically completed over liis said real properly. That the work on said roiad is being retarded by reason of the fact that said defendant refuses to agree or permit said district to construct said road over his said real property.
“Said plaintiff, Road Improvement District No. 3, by B. E. Wilson, J. D. Daniels and J. C. Harris, as commissioners, is desirous that the damages be settled by a trial by a jury in the circuit court.”
There was a prayer that the court fix the amount to be deposited by the said district until the final hearing, and that, upon making this deposit, the commissioners for the district “be permitted to go in and upon said real property owned by said defendant, over which said road has been surveyed, and continue the building of said road.” It was further prayed that, upon the final submission of the cause, a jury be impaneled to assess defendant’s damages. The court made the following order: .
“On this 12th day of July, 1927, came the plaintiffs, and presented the within complaint, seeking to condemn for Road Improvement District No. 3: in Johnson County, Arkansas, the lands therein described, and, after hearing testimony, the court fixes the amount which plaintiff shall deposit with the circuit clerk of Johnson County at the sum of $400, to indemnify- defendant, and, upon the deposit of said sum, the plaintiff, Road Improvement District No. 3, is hereby authorized and empowered to enter upon said lands and construct the improvement, making a public highway across said lands, and the question of damages shall be submitted to a jury of the Johnson Circuit Court.”
The landowner has proceeded by certiorari to quash this order, and alleges that it is invalid, for the reason that the circuit court has attempted to exercise an original jurisdiction vested by the Constitution of the State exclusively in tbe county court. It is insisted that the purpose and effect of the order quoted above is to lay out and establish a public road over the land of the petitioner, and that this is a jurisdiction possessed only by the county court.
It may be conceded that the county court alone possesses this' jurisdiction. City of El Dorado v. Union County, 122 Ark. 184, 182 S. W. 899; Road Imp. Dist. No. 2 v. Winkler, 102 Ark. 553, 145 S. W. 209; Craig v. Greenwood District of Sebastian County, 91 Ark. 274, 121 S. W. 280; Parkview Land Co. v. Road Imp. Dist. No. 1, 92 Ark. 93, 122 S. W. 241; Brumley v. State, 83 Ark. 236, 103 S. W. 615; Board of Dir. v. Redditt, 79 Ark. 154, 95 S. W. 482; Humphreys v. Fort Smith T. L. & P. Co., 71 Ark. 152, 71 S. W. 662; Numes v. Coyle, 148 Ark. 365, 230 S. W. 11; Fulton Ferry & Bridge Co. v. Blackwood, 173 Ark. 645, 293 S. W. 2.
But we think petitioner is mistaken as to the purpose and effect of the order. It must be remembered that this is a proceeding by certiorari, and the validity of the order sought to be quashed must be determined from an inspection of the face of the record itself, and the relief prayed must be denied unless the invalidity of the order so appears. Martin v. Hargrove, 149 Ark. 383, 232 S. W. 596; Hilger v. J. R. Watkins Medical Co., 139 Ark. 400, 214 S. W. 49.
The order of the county court establishing the road improvement district has not been brought before us, and the regularity of the proceedings by which the district was brought into existence must be. presumed. The complaint upon which the order sought to be quashed was made alleges the existence of the district and states the termini of the road to be improved. Its route is alleged to be across the lands of petitioner, and it is further alleged that its construction will require an acre of his land. We must therefore presume, in a proceSding of this character, that, by appropriate and necessary orders, the county court has established the road which the improvement district is proposing to improve. It remains therefore only to consider whether the circuit court had the jurisdiction, under this state of facts, to make the order which petitioner seeks to quash, and which is copied above.
This exact question ivas decided adversely to. petitioner’s contention in the case of Road Dist. No. 6 of Lawrence County v. Hall, 140 Ark. 241, 215 S. W. 262, and it would serve no useful purpose to again review the authorities which led to the conclusion there announced. The case cited affords ample authority for here holding that the circuit court had the jurisdiction to make the preliminary order which was made, and has also jurisdiction to assess and adjudge the damages which petitioner will sustain by reason of the improvement of the proposed road.
It follows therefore that the order complained of is not void; at least it does not appear so to be from an inspection of the record presented for our review, and the writ of certiorari which heretofore issued will be quashed. It is so ordered. | [
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J. Feed Jones, Justice.
On December 9, 1966, the appellants, Dale Scates and Terrell Blaylock, were charged with the crime of burglary in an information filed by the prosecuting attorney of Pulaski County. They were tried and convicted on July 19, 1967, and have appealed.
The facts briefly are these: On June 4, 1966, at approximately 2:15 a.m., the North Little Rock police were advised that a burglary was in progress at the Southern Grill, 18 Railroad Avenue. Upon arrival at the cafe, the police found Terrell Blaylock, one of the appellants, inside the restroom of the cafe, behind the door, with a tire tool on the floor behind him. The owner of the cafe was called and she unlocked the back door. The officers searched the cafe and the appellant, Dale Scates, was found hiding under a raincoat in the kitchen inside the cafe. A window had been broken out about eight feet above ground level over the front door of the cafe and was of sufficient size to allow a man to enter through it. All doors were locked and the broken window was the only means of entrance found. An automobile belonging to appellant Blaylock’s mother was found parked behind the building. The cafe owner testified that nothing inside the cafe was missing or broken into, but _also testified that appellants had no permission to be inside the building.
Appellants were arraigned on January 4, 1967, and were informed of the nature of the charge against them. They entered their pleas of not guilty, waived a jury trial, and the eases were set for a court trial on July 19, 1967. At the trial on July 19, 1967, the court found the appellants guilty of burglary and they were sentenced to two years each in the state penitentiary. On appeal to this court appellants urge the following three points for reversal:
“There is no proof or semblance of proof in the record that the defendants entered the place at 18 and Railroad, North Little -Rock, with the intention to commit a crime.
“The Court should have granted a continuance.
“The Court abused its discretion in refusing to .give the defendants a jury trial.”
As to the first point, we find no merit in appellants ’ contention that there is no proof of the requisite intent to commit a crime. Ark. Stat. Ann. § 41-1001 (Repl. 1964) defines burglary as follows:
“Burglary is the unlawful breaking or entering a house, tenement, railroad car, automobile, airplane, or any other building, although not specially naimed herein, boat, vessel or water craft, by day or night, with the intent to commit any felony or larceny.”
And Ark. Stat. Ann. § 41-1002 (Repl. 1964) provides as follows:
“The manner of breaking or entering is not material, further than it may show the intent of the offender.”
This 'court in the case of Clay v. State, 236 Ark. 398, 366 S. W. 2d 299, said:
“We have held that the offense of burglary is complete' even though the intention to commit a felony is not consumated, Thomas v. State, 107 Ark. 469, 155 S. W. 1165, and eases cited therein. * * * As stated in Duren v. State, 156 Ark. 252, 245 S. W. 823, ‘It is not essential that the state prove by direct evidence an intention to commit a felony, for this fact may be, and generally is, established by proof of circumstances which indicate the intention of the burglar. . .”
In the case at bar, we are of the opinion that a larcenous intent can fairly be inferred where the appellants were discovered, one with a tire tool and the other hiding under a raincoat, at 2:15 a.m. inside a locked cafe containing amusement and vending machines, and when they had no permission or lawful right or reason, to be inside the cafe. We are of the opinion that the correct law and proper conclusion was stated in the words of the trial court, as follows:
“I can assume their intent from their actions of being in the place in the middle of the night without permission, and with a tire tool. The logical conclusion would be that they hadn’t had time to break into those machines, because I understand the officers’ testimony was that somebody gave them a call about them breaking in just about the time they broke in the place, and they hadn’t been in there long enough to do anything.”
Appellants’ second point is based on their contention that a continuance should have been granted because one of the attorneys for appellants was employed only two or three days before the trial and that the prosecuting attorney had not assented to a waiver of trial by jury under Ark. Stat. Ann. § 43-2108 (Repl. 1964), which provides:
“In all criminal cases except where a sentence of death may be imposed, trial by a jury may be waived by the defendant, provided the prosecuting attorney gives his assent to such waiver. Such waiv er and the assent thereto shall be made in ©pen court and entered of record. In the event of such waiver, the trial judge shall pass both upon the law and the facts.”
With this contention we cannot agree. The docket shows that the appellants were represented by counsel at their arraignment on January 4, 1967, some _ six months prior to the trial, and that the appellants waived a jury trial with their counsel present. Although the record does not specifically set out that the prosecuting attorney affirmatively gave his assent, it does show that an assistant prosecuting attorney was present and did not object to the waiver, nor did counsel for appellants object to the absence of the prosecuting attorney’s affirmative assent at that time. Furthermore, the proviso for the prosecuting attorney’s assent is for the benefit of the state, and not the defendant who waives his right to a jury trial. Therefore, any error as a result of the prosecuting attorney’s failure to assent to a defendant’s waiver of his right to a jury trial would be an error against the state and not against the appellants. The prosecuting attorney’s failure to assent to appellants’ waiver of a jury trial does not constitute error prejudicial to the appellants and does not constitute error of such nature that appellants can complain. We have so often held that the granting of a continuance is within the sound discretion of the trial court, that citation of cases is not necessary. We cannot say that the trial court abused its discretion in the case at bar.
Under appellants ’ third point, they contend that the trial court erred in failing to allow appellants to withdraw their waiver of a jury trial. The motion to withdraw the waiver was not made until the date on which the trial was set, and the trial court denied the motion as being too late. We fail to find error in this holding.
While the Arkansas 'Constitution provides in Article 2, Section 7, for the right of trial by jury, it also provides for waiver of this right under the same provision in accordance with Ark. Stat. Ann. § 43-2108, supra. After the defendant’s right to trial by a jury has been duly waived, as in the case at bar, it is within the discretion of the trial court to permit or deny a withdrawal of such waiver.
The authorities are uniformly to the effect that a motion for withdrawal of waiver made after the commencement of the trial is not timely and should not be allowed. Whether the motion is timely when made prior to the actual commencement of the trial, is held to depend upon the facts and circumstances of the individual case. (See annotation in 46 ALB 2d 919 and cases there cited.)
In the case at bar, appellants made their waiver at a time when they were represented by counsel and some six months prior to the date set for trial. When this case came on for trial by the court, Mrs. Myrtle L. Wallace, who owned the cafe which had been burglarized, appeared in behalf of the appellants and recommended that the cases be dismissed. She had previously recommended suspended sentences. On this point Mrs. Wallace testified:
“Q. What are your wishes about the matter? Do you wish to prosecute them?
A. Well, they haven’t harmed me. I don’t want to cause them any trouble. I think they are sorry.”
The appellants in this case were charged with the commission of the crime of burglary “against the peace and dignity of the State of Arkansas,” and not against the peace and dignity of Mrs. Wallace or the owner of the premises burglarized. The criminal laws of this state against burglary were not enacted for the benefit of Mrs. Wallace or any other particular individual or property owner, but such laws were enacted for the protec tion and benefit of the entire community. It was not necessary for the trial court to even hear, or consider at all, the recommendations of Mrs. Wallace in this case, hut since the trial court apparently did consider the recommendations of Mrs. Wallace, the court was justified in taking judicial notice of previous burglary convictions of both of the appellants in considering the recommendations made by Mrs. Wallace.
Appellants did not seek a continuance nor did they attempt to withdraw their waiver of a jury until after the trial court refused to follow the recommendations of Mrs. Wallace on the day previously set for the trial of the case. The record bears out the trial court’s lack of prejudice against appellants because of prior convictions. Both appellants were given minimum sentences of two years in the penitentiary when the statute provides for a maximum of twenty-one years. Ark. Stat. Ann. § 41-1003 (Bepl. 1964).
The judgments are affirmed. | [
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Smith, J.
Appellee was tried -and acquitted under an indictment charging him with the crime of embezzlement. Evidence offered to support the allegations of the indictment was to the following effect: Appellee was the president and managing officer of the John A. Guthrie Mortgage Company, a corporation engaged in the business of selling real estate mortgages, for which service a brokerage fee was charged. A note to the order of the corporation would -be executed and secured 'by a mortgage on land owned by the maker of the note. The corporation would transfer the note and mortgage to the purchaser, and would account to the borrower for the proceeds of the sale, less the brokerage fee. ' Such a note and mortgage were executed to the corporation by James H. Ruth and wife, and the same were sold by the corporation for a sum which netted $990, less the brokerage fee. This money was not paid to Ruth, after demand. Upon receiving this money it was mingled ■with other money belonging to the corporation, and this was done under the direction and with the permission of appellee as managing officer of the corporation, but without the knowledge or consent of Ruth.
The corporation was insolvent, and was unable to pay Ruth the sum of money which had been collected by the corporation for his account. The testimony was conflicting as to whether appellee was" aware of the insolvency of the corporation, and there appears to 'be legally sufficient testimony to support a finding either way upon that question. Appellee testified that he considered the corporation solvent at the time the transaction with Ruth was had, as an audit of the corporation’s affairs had shown the corporation to be solvent.
Over the objection of the State the court gave ail instruction numbered 11-A, which reads as follows:
“You are instructed that, before you can convict the defendant of the charge of embezzlement in this case you must find that the defendant, John A. Guthrie, at the time the money of Ruth was intermingled with the funds of the Guthrie Mortgage Company, if you find it was so intermingled, had personal knowledge of that fact or took some part in the intermingling of said money with the funds of the Guthrie Mortgage Company, and, if you find that the money of Ruth was intermingled with the funds of the Guthrie Mortgage Company with tlie knowledge or by the direction or by permission of the defendant, you must further find, before you can convict him, that, at the time of such intermingling, the defendant, Guthrie, knew that the Guthrie Mortgage Company was insolvent, and unable to pay said money to Ruth out of its funds or assets.”
It is insisted by the State that this instruction is erroneous and resulted in the acquittal of the accused, inasmuch as it imposed upon the State the burden of showing, not only that Ruth’s funds were intermingled with those of the corporation with the knowledge or by the direction of appellee, but that appellee knew, when this was done, that the corporation was insolvent and unable to pay said money to Ruth out of its funds or assets. As other indictments, based on similar transactions, are pending against appellee, in which the same instruction will probably be given, the State has perfected this appeal to have it determined, before other trials are had, whether the instruction is a correct declaration of the law. It is the insistence of the State that, if Ruth’s money was converted to the use of the corporation by appellee or under his direction, without the knowledge or consent of Ruth, it is immaterial that appellee may not have known that the corporation was in fact insolvent when that transaction occurred.
The indictment charged appellee with having converted Ruth’s money to his own use, and it may be first said that the instruction correctly charged the jury that this allegation would be sustained if the testimony showed that Ruth’s money was mingled with that of the corporation under appellee’s order or with his permission.
This subject is extensively discussed in the case of State of Washington v. Thomas, 123 Wash. 299, 212 Pac. 253, 33 A. L. R. 781, and in the annotator’s note to that case. In that case the Supreme Court of Washington quoted with approval the following statement of the law from 14A C. J., page 244:
“Also — at least where the crime charged involves guilty knowledge or criminal intent — it is essential to the criminal liability of an officer or servant of a corporation that he actually and personally do the acts which constitute the offense, or that they be done by his direction or permission.”
The Washington case also quotes approvingly at some length from the case of Milbrath v. State, 138 Wis. 354, 131 Am. St. Rep. 1012, 120 N. W. 252, in which case a corporation took over and converted assets previously held for a client by a partnership which the corporation succeeded. It was there said:
“The evidence is ample-to support the contention that it was put in the corporation safe and mingled with the funds of the insolvent corporation and deposited in its bank account, with the consent and by the act of the defendant conjointly with Wagner. * * * There cannot be much doubt that this constituted a conversion of .the money by the defendant and Wagner. But was the money converted to their own use? One may convert money of another to his own use by paying it out upon his private or personal debt. Guenther v. State, 137 Wis. 183, 118 N. W. 640. If this is true, he can convert the money to his own use by putting it into the treasury and mingling it with the funds of an insolvent corporation which is under his control and management, and of which he is a stockholder and officer in charge. The benefit he receives in the first case by discharge of his personal debt is equal to the whole amount of the money so paid. The benefit which he receives in the second case is not equal to the whole amount of the money so paid. But the extent to which defendant was benefited does not constitute the test. It is paid to his own use in either case. It. is paid into that which is a mere instrumentality created by him under sanction of law, but as. much under his control and as subservient to his will as the furniture of Ms office or the books of account in which he records his. transactions. Under such circumstances there is no room for the legal fiction of separate corporate personality or for distinction between the defendant’s acts as officer of the corporation and Ms acts as an independent natural person. ’ In that case the defendant was charged individually, as here.”
The majority are also of the opinion that the court correctly charged the jury that it was essential that the testimony show and the jury find therefrom that appellee knew the corporation “was insolvent and unable to pay said money to Ruth out of its funds' or assets,” and that this is true because a wrongful intent to convert another’s property, thereby depriving him permanently of it, is an essential ingredient of the crime of embezzlement. If appellee did not know, or was not charged with knowledge of facts from which notice would necessarily be imputed, that the corporation was insolvent, there was no embezzlement of Ruth’s money, as that would be payable to and recoverable by him upon proper demand of the corporation, and appellee must have known that the necessary or probable consequences of mingling Ruth’s funds with those of the corporation would be to deprive Ruth thereof before he would be guilty of the crime of embezzlement, and if he did not have this knowledge, or if it were not necessarily imputed to him by the facts and circumstances shown in the testimony, then he was not guilty of embezzlement, and the instruction so correctly declared the law.
It is therefore the opinion of the majority — in which Mr. Justice Wood and the writer do not concur — that the instruction was a correct declaration of the law under the issues joined, and the judgment of the court below is therefore affirmed. | [
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Paul Ward, Justice.
This is a consolidation of two Workmen Compensation cases, wherein appellee (William Earl Evans) filed a claim against appellant (Jones Furniture Manufacturing Co.) and a claim against appellant (Adams Farm Supply Co.). In each case the insurance carrier is an appellant, but, for brevity, we hereafter refer to the first named appellant as “Jones” and to the other as “Adams”.
The issues presented on appeal arise out of the facts summarized below.
(a) On May 13, 1964, appellee, while in the employment of Jones, was injured. When appellee filed a claim before the Commission Jones agreed to an assessment of 7%% disability to the body as a whole and agreed to pay appellee $33.80 a week for twenty weeks and five days (based on temporary total disability) and for an additional thirty-four weeks (based on permanent partial disability).
(b) On June 16, 1966, appellee filed another claim for additional compensation against Jones, and was awarded a 30% permanent partial disability as a result of his original injury on May 13, 1964.
(c) Also, on June 16, 1966, appellee perfected a claim with the Commission against Adams based on an injury on September 25, 1965 while in the employment of Adams. The Commission awarded ap-pellee compensation based on a 10% partial disability. The awards under (b) and (c) were appealed to, and affirmed by, the circuit court.
On appeal here, appellants urge a reversal on the grounds discussed hereafter.
One. Jones seeks a reversal for two separate reasons: (1) There is no substantial evidence to support the Commission’s finding that appellee suffered a total 30% permanent partial disability as a result of the May 13, 1964 injury, and; (2) The claim filed on June 16,. 1966 is barred by the statute.
(1) Here Jones pointed out that the Commission found appellee suffered a 30% permanent partial disability in 1964 while in his employment and a 10 % disability in 1965 while in the employment of Adams — a total of 40%. Then it is pointed out that the highest degree of disability supported by any medical testimony is only '35%. It is then concluded that these facts (undisputed by appellee) logically and necessarily mean there is no substantial evidence to support the findings of the Commission.
The above conclusion is not supported by decisions of this Court. In Glass v. Edens, 233 Ark. 786; 346 S. W. 2d 683 we said:
‘/The maximum medical rating of disability in this ease was 40%, which was allowed by the referee and affirmed by the Full Commission. Apparently, they also considered only medical evidence and this we consider error. Under the rule as set out in Larson, consideration should have been given, along with the medical, evidence, to the appellant’s age, education, experience, and other matters affecting wage loss.”
To the same effect, see Wilson & Co., Inc. v. John Christman (decided by this Court February 19, 1968) and Arkansas Best Freight System, Inc. v. Walter Brooks decided February 26, 1968).
There is other evidence in the record here which, under the above rule, the Commission had a right and duty to consider in arriving at the extent of appellee’s disability. It is not disputed: that be was injured in 1964, and unable to work for nearly a year; that in 1965 be tried to work for Owosso but was not physically able to do so; that then be went to work for Adams but bad to lay off for a while before he was injured again, that; while he was able to perform strenuous labor in 1964, he was never thereafter able to do so; that he is approaching sixty years of age, is uneducated, and is fitted only to do manual labor. Considering, as we must, that the Commission’s findings have the force and effect of a jury’s finding we are unable to say there is no substantial evidence to support its finding in this instance.
(2) It is next contended by Jones that appellee’s claim was not filed with the Commission within the time proyided by Ark. Stat. Ann. § 81-1318 (b) (Repl. 1960), which reads:
“In cases. where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one year from the date of' the last payment of compensation, or two years from the date of accident, whichever is greater.”
As previously stated, appellee’s claim was filed June 16, 1966. According to Jones’ calculations [which, for the purpose of this opinion, we concede to be true] the last payment due appellee (for the 1964 injury) was June 4, 1965. It is therefore contended by Jones that, under the statute, appellee had to file his claim on or before June 4, 1966. For reasons stated below we do not agree.
It is not disputed that, as a matter of fact, appellee received his last payment on June 17, 1965, which was less than one year before he filed his claim on June 16, 1966, being one day before it was barred under the statute quoted above. Even though, according to appellant’s calculation, the last payment was dme on June 4, 1965, still the due date is not controlling under the statute. The record discloses that the payment made on June 17, 1965, was in fact the first paylment due ap-pellee in 1964 but had been overlooked by appellomt (not by appellee or the Commission) because of an office error. Basically, it would not be right to penalize appellee for something over which he had no control.
The facts in this case distinguish it from the case of Phillips v. Bray, 234 Ark. 190, 351 S. W. 2d 147, where we held the one year limitation could not be extended because of a delayed payment of a doctor’s bill. The reason for so holding was that the doctor’s bill was not presented to or approved by the Commission before the one year had expired — which is not the situation here. In so holding we there said:
“It seems perfectly obvious that the primary purpose of the one year statute of limitations is to give the claimant that much extra time in which to decide whether he has been fully compensated for his injury, and not for the purpose of paying belated medical bills. ’ ’
Two. We find no merit in the contention here made by Adams that there is no substantial evidence to support the Commission’s finding appellee suffered a 10% permanent partial disability as the result of his injury on September 25, 1965, while in the employment of Adams.
Beplying to the above contention we adopt, without repeating, all we have heretofore said about “substantial evidence” in connection with the claim against Jones. In addition, we point out other pertinent facts disclosed by the record.
While in the employment of Adams appellee injured his back when he attempted to lift a 100 pound sack. This happened on Saturday and he tried, but was unable, to resume work on tbe following Monday. He has been unable to work up to tbe time of the bearing before tbe Commission. There is nothing in the record to indicate appellee bad been malingering, but, to tbe contrary, it indicates be has made every reasonable effort to work to support bis family. Also there is substantial medical evidence that appellee’s disability was partially attributable to the injury suffered while working for Adams. Dr. Carruthers testified that, in his opinion, appellee’s injury on September 25, 1965 (while working for Adams) could result in a functional disability of 20%. The doctor further stated that he examined appellee on March 1, 1966 and was of the opinion that it was questionable whether additional treatment would be of further benefit to him.
The Commission, in its findings, referred to and relied upon the facts mentioned above in reaching its decision, and we think it was justified in doing so.
Affirmed.
Foglemak, J., disqualified. | [
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Hart, C. J.,
(after stating the facts). The judgment of the circuit court was correct.
This court has held that the probable profits to a lessee from the cultivation of demised land is not the true measure of his damages resulting from the breach of a covenant for possession, and cannot be considered in determining the amount of such damages. Rose v. Wynn, 42 Ark. 257; Thomas v. Croom, 102 Ark. 108, 143 S. W. 88; and Reeves v. Romines, 132 Ark. 599, 201 S. W. 822, and cases cited. To attempt to measure the general damages by the probable profits to be had from a performance of a contract like the one in question involves too many uncertain factors, such as the fluctuation in the price of labor and the price of the crop, the weather, and other matters affecting the yield. Any estimate of the quantity and value of the crop must necessarily be conjectural, and the uncertainties in the matter make it very difficult to estimate the profits in cultivating a! farm-. Under the allegations of the original complaint, the plaintiff was to furnish the teams and tools, and cultivate the crop and receive a part of it. The amount of profits which he might receive, on account of the conditions mentioned above, could not even be approximated. The crop might be large or small, depending on the cost of labor and the price of the crop lafter it was raised; and, as we have already seen, this might fluctuate greatly. After the court sustained a motion to make the complaint more definite and certain, the plaintiff filed an amended and substituted complaint in which, in varying form, he made substantially the same allegations, as were contained in his original complaint. It is evident from the allegations of his amended and substituted complaint that his measure of damages would necessarily be the profits to be made in raising the crop, since the ■ rent which he was to pay was a part of the crop, and since he was to receive a part of the crop as his compensation for raising it. The allegation that the rental value was fifteen dollars per acre more than he contracted to pay did not add any element of certainty to the contract. After all, the loss of his bargain depended upon the amount of the crop which he might raise and the price he might receive for it.
In the complaint the plaintiff also asked for the recovery of special damages. Now, if his complaint had contained any definite allegation that lie had suffered special damages in any certain amount on account of the expense he had been put to in moving on and off the place and in preparing the land for cultivation, he would, under the authorities above cited, be entitled to recover such amount. He does not allege any certain amount which he suffered in special damages, and would therefore only be entitled to recover nominal damages. His complaint does contain a definite allegation that he and his sons and other members of the family lost sixty days’ work, which was worth $5 per day, but this was not an element of special damages. He should have alleged that he suffered damages in a definite sum on account of the expense he was put to in moving on and off the place and in preparing the land for cultivation. As we have already seen, under the allegations of the complaint he would only be entitled to nominal damages in this respect, and a new trial will not be granted for a failure to assess nominal damages where no question of a permanent right is. involved. The reason is that it is the settled rule of this court not to reverse a judgment unless for prejudicial error, and no prejudice could have resulted to the plaintiff in this action. The court gave him permission to make his complaint more definite and certain either in respect to general damages or special damages alleged to have been suffered by him, and he refused to do so.
Therefore the judgment will be affirmed. | [
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Holt, J.
July 12, 1940, appellees, Andrew Holman and Ed Henson, sued appellant railroad company, to recover damages alleged to have resulted from negligent acts of appellant in causing water to overflow their lands on February 27, 1938, and April 16, 1939. Appellant denied every material allegation in the complaint and in addition pleaded as a defense the three-year statute of limitation (§ 8928, Pope’s Digest) .as a bar to appellees’ claims, and that appellees had filed a similar suit December, 1932, for damages to these same lands growing out of an overflow for the years 1931 and 1932; that these claims were referred to the Bankruptcy Court at St. Louis, Missouri, by agreement and .appellees’ claims denied. A jury awarded Andrew Holman $350 and Ed Henson $300. From the judgment on these verdicts comes this appeal.
The facts stated in their most favorable light to appellees, as we must do, are to the effect that sometime in 1928 appellant dug a number of “borrow pits” along its track and roadbed on its right-of-way opposite appellees’ lands which adjoined appellant’s right-of-way on the north.’ Appellant also constructed ditches and installed culverts and drain pipes at intervals under its track and roadbed to carry off overflow waters from these borrow pits.
According to the testimony of appellees, in February, 1938, and April, 1939, these borrow pits and ditches had grown up in bushes, weeds and other vegetation and the culverts and drain pipes had become filled and closed up with soil and other matter which caused the overflow waters to go upon and damage appellees’ lands. Andrew Holman testified: “A. It is just grown up on the south side and those drain pipes that lay down there and the water can’t go anywhere but shoot out in my field because the ditches are grown up so it can’t go anywhere else,” and on cross-examination: “A. Those ditches need cleaning out and that will keep the water off of my land. Q. What ditches'? A. The railroad ditches, those ditches on the main line don’t take care of the water.”
Appellant earnestly argues that the construction in 1928 of the borrow pits, ditches, culverts .and drain pipes, in question, was original and permanent in character and that any claim for damages resulting therefrom to appellees’ lands, on account of overflow waters, would be barred within three years from the date of construction. Appellees, however, contended below, and contend here on appeal, that the injuries complained of and upon which the jury’s verdicts were based, were of a recurring nature and resulted on account of the failure of appellant in 1938 and 19391 to keep its drain pipes, culverts and borrow pits properly drained.
Causes of this nature must be governed by the particular facts in each case. In Chicago, R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127, L. R. A. 1916E, 1962, the rule is stated in this language: “Upon consideration of the question as to the application of the statute of limitation to these overflow cases, the permanency of the structure or obstruction impeding the flow of water is not the controlling question. Indeed, the question cannot arise unless the obstruction is of a permanent nature, but its permanency does not of itself determine whether the damages, which result from its erection, are original or recurring. If it is of such a construction as that damage must necessarily result, and the certainty, nature and the extent of this damage may be reasonably ascertained and estimated at the time of its construction, then the damage is original and there can be but a single recovery, and the statute of limitation against such cause of action is set in motion on the completion of the obstruction. If it is known merely that damage is probable, or, that even though some damage is certain, the nature and extent of that damage cannot be reasonably known and fairly estimated, but would be only speculative and conjectural, then the statute of limitation is not set in motion until the injury occurs, and there may be as many successive recoveries as there are injuries. There are many cases in our reports on this subject and their difficulty consists in the application of the law to the facts of each case. (Citing a large number of cases.)” See, also, Daniels v. Batesville, 189 Ark. 1127, 76 S. W. 2d 309, and the cases there cited.
It is our view in the instant case that there is sufficient evidence of a substantial nature to go to the jury which showed that the waters were caused to flow over and damage the lands of appellees on account of appellant’s failure to keep the ditches, culverts and drain pipes open in 1938 and 1939 as- alleged in their complaint, and that the damage was a recurring one. This suit having been filed July 12, 1940, is, therefore, not barred by the statute of limitation. Since the damages here are of a recurring nature any claims for damages to the lands in question by appellees in 1932 would be no bar to damages occurring in 1938 and 1939.
Finding no error, the judgment is affirmed. | [
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Hart, C. J.,
(after stating the facts). It is the settled law in this State that if, under the terms of the will, it be doubtful what 'the rights and duties of the trustee are, he can resort to equity for a proper construction and interpretation of the will. For the same reason those interested under its terms in the proper definition and limitation of the trust and enforcement thereof may come to such court for like relief. Booe v. Vinson, 104 Ark. 439, 149 S. W. 524, and Gaines v. Arkansas National Bank, 170 Ark. 679, 280 S. W. 993. Hence the court was right in assuming jurisdiction of the case, and we -also think was right in the interpretation of the will.
The testator first directed the payment of all his just debts and funeral expenses. He next made nominal bequests to his brothers and sisters. Item four is copied in our statement of facts, and is called the residuary clause of the will. The language of the fourth item, “all the rest, residue, remainder of -my estate,” is to foe understood in its usual and technical sense, and covers all the remaining property of the testator, both real and personal. Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, 44 L. R. A. (N. S.) 782, Ann. Cas. 1914D, 712. Thus it will be seen that, under item four of the will, after paying his debts, funeral expenses and specific legacies, the testator gave all the remainder of his property, both real and personal, to his beloved wife, absolutely.
Under item five the provision in favor of the testator’s wife is to be in lieu of dower in his estate. It is contended by the plaintiffs that this means that the wife is to take under the will only that part of the estate that she would receive under the law as dower, and which, under our laws of descents, and distributions, would be, in this case, one-half of the real and personal property absolutely. Crawford & Moses ’ Digest, § 3536.
We do not agree with counsel in this contention. Under the common law the testator will not be presumed to have intended a devise in his will to be a substitute for dower unless the claim of dower would be inconsistent with the will, or so repugnant to its provisions as to disturb and defeat the will. In other words, at common law it is held that, where the testator’s intention was not apparent upon the will, the devise would be presumed to be in addition to dower. Page on Wills, 2 Ed., vol. 1, § 1190, page 1985, and numerous cases cited in a note to 22 A. L. R., at 501.
In the first place, it may be said that item four is not inconsistent with the view that it was the intention of the testator to only give his wife under the will what the law would give her as dower; and we do not believe that item four and item five are repugnant to each other. As we have already seen, when item four is construed with reference to the ordinary meaning of the language used in it, the testator gave his wife all his estate, charged with the payment of his debts, funeral expenses and the specific bequests to his brothers and sisters.
Then it will be asked, what was the meaning of item five ? It will be noted that, under § 3538 of Crawford & Moses’ Digest, if a husband shall devise to his wife any portion of his real estate of which he dies seized, it shall be taken in lieu of dower out of the estate of such deceased husband, unless such testator shall in his will declare otherwise. It will be noted that there is no such provision in our statutes with regard to personal property. The will under consideration bequeaths personal property and also contains a devise of real estate. It has' been held, under statutes like that just referred to above, that a legacy of personal property will not put the widow to her election, as in the case of a devise of real estate, unless expressly made in lieu of dower. Booth v. Stebbins, 47 Miss. 161; Pemberton v. Pemberton, 29 Mo. 408, and other oases cited in a note to 22 A. L. R. 50.
It mil be seen that the object of item five in the will was to require the widow to make her election just as she would be required to do under our statute in case a devise of land in lieu of dower was made in accordance with-the provision of § 3538 of Crawford & Moses’ Digest. It will also be seen that there is no repugnancy whatever between item four and item five of the will, and that the widow’s portion under item four is the remainder of the testator’s property after paying his debts, funeral expenses and the specific legacies provided for in the will. The object of item five was merely to require the widow to elect whether she would take under the will or take dower under the statute.
Another reason for putting' his wife to her election was that the testator did not know how long he mig’ht live or whether he would own much or little at the time of his death. As we have already seen, he wanted his debts to be paid first, and this his widow would be required to do if she took under the will. On the other hand, if she took dower under the law, this would be a legal right given her, and she would be under no obligation whatever to. pay his debts.
. The result of our views is that the decree of the chancellor was correct, and it will be affirmed. | [
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Conley Byrd, Justice.
Appellant Marshall Wade, d/b/a Wade Construction Company, appeals from a judgment in favor of Pioneer Contracting Company, Inc., rendered upon Wade’s alleged nonperformance of his subcontract with Pioneer for the common excavation and low-grade embankment material on a two-mile section of Interstate Highway 55 in Mississippi County, Arkansas. Sections. 2 and 3 of the subcontract, being the two items here involved, provided:
“Section 2. Subcontractor and contractor agree that the items of work to be performed by subcontractor on the above general contract and the prices the subcontractor is to receive are as follows:
ITEM A'PPROX. UNIT DESCRIPTION UNIT TOTAL NO. QTY. PRICE PRICE
SP&103 112,937 CY Common Excavation $ .30 $33,379.90*
SP&105 04,720* CY Embankment Material $ .40 $23,891.60*
Section 3. Subcontractor agrees to complete the above items of work promptly and in such manner that other items of work under the general contract will not be delayed. If such a delay in the completion of the general contract be caused by subcontractor, and such delay shall, result in liquidated or other damages being assessed against contractor on such general contract, the subcontractor agrees to be liable for and to pay such damages for which he is directly responsible and any expense of the contractor incident thereto.”
Wade commenced the job in 1960 and moved most of the dirt yardage involved, except on the north 200 feet thereof, which was held up. because of a culvert or bridge that had not been completed by another subcon tractor. He returned to the job in 1961 and left it in October of that year. The testimony is conflicting as to whether Wade had finished his job when he left in 1961, but a preponderance thereof shows that there remained work to be done on grades, the cutting of median ditches, and the finishing of slopes. Pioneer did not complete its contract with the Highway Department until May 1963. Of course, during the intervening time some deterioration occurred which required additional work by Wade.
It is undisputed that the yardages estimated by the Highway Department prior to construction, set out in Section 2 of the subcontract, were greatly overestimated. The final cross sections show that 104,568 cubic yards of common excavation and 9,301 cubic yards of low-grade embankment were moved in complying with sections 103 and 105 of the Highway Commission specifications.
The matter was referred to a special master, who allowed Wade credits for $3,955.39 in retainage; $1,125 for right-of-way clearing not in the contract; and $1,-115.68 wrongfully withheld by Pioneer for drainage work. In making this computation the master disallowed all moving expense claimed by Wade and the item of $3,260 expended by Wade for removal of mud and dirt placed in Wade’s drainage ditch by the bridge contractor. He computed the items alleged in Pioneer’s cross-complaint as follows:
Section No. Item of Damage Amount
Cutting trench, and riprap excavation $ 5,096.00 9»
Clearing underbrush 908.48 r2
Completion of Wade’s work 16,986.16 O
Deterioration of Pioneer’s portion of job 17,445.42
10% of total overhead 9,905.91 ©
Deterioration of sand 11,065.91 «W
$61,407.48-
Less Wade’s credits 6,196.07
$55,211.41
Since Pioneer’s general contract with the State Highway Commission contained a $150-per-day liquidated damages provision if Pioneer failed to complete the work within 320 working days, Wade contends here that this provision was incorporated into his subcontract by section 3 above. Upon this premise he then contends, citing 22 Am. Jur. 2d Damages % 235 (1965), that a liquidated damages clause substitutes the amount agreed upon as liquidated damages for the actual damages, and that no sum larger or smaller than the amount stipulated in the contract can be awarded.
Based upon this contention, Wade contends that the foregoing items of damages (d), (e) and (f), as determined by the special master and awarded by the chancellor, are delay damages that Pioneer is not entitled to collect, since Wade’s performance did not result in liquidated damages being assessed against Pioneer.
Wade’s basic premise is not supported by section 3 of. the subcontract. The second sentence is cumulative and was apparently inserted to prevent any controversy on Pioneer’s right to recover delay assessments made against it by the Highway Department. See Kentucky Consumers Oil Co. v. General Bonded Warehouse Corp., 299 Ky. 161, 184 S. W. 2d 972 (1945). Therefore we affirm the chancellor as to items (d), (e) and .(f) in the master’s report.
II
With respect to item (b), appellant makes the same contention on delay that is set forth above regarding items (d), (e) and (f). We find this contention without merit for the reasons there stated.
In addition appellant argues that item (b), in the amount of $908.48 for clearing underbrush, comes within section 102 of the Highway Commission specifications. Section 102 is applicable only to clearing the right-of-way of trees and is a matter that is required to be completed before the excavation is undertaken. The proof shows that item (b), $908.48, covered work done by Pioneer in Wade’s absence to clear the right-of-way of weeds and other undergrowth. Therefore we hold that the chancellor properly allowed item (b), in the amount of $908.48 for clearing underbrush, under section 103.5 of the specifications.
Ill
Under item (a) of the damages the court allowed, in toto, the sum of $5,096 for equipment rental in cutting trench to grade, setting trench bottom, and excavation for structural riprap for the period from August 22, 1961 through August 31, 1961. In neither pleadings nor testimony are the equipment rental and labor broken down among these three items. All of Pioneer’s expenses on the three items are listed without allocation.
Appellant contends that where there is evidence as to damage from various causes, a portion of which Wade could not be held responsible for, and no evidence on pro-ration -of the damage resulting from the separate causes, then the proof is too uncertain to permit the allocation to Pioneer of part or all of the proved damages. 25 C. J. S. Damages § 28 (1966).
Appellee agrees with appellant’s theory of the .law but contends that in this instance the theory is not applicable because the excavation for structural riprap was an item to be paid for under item 103.5 of the specifications. Item 103.5 provides as follows:.
“103.5 Basis of Payment. The yardage of ‘Roadway Excavation’ measured as provided above, shall he paid for at the contract unit price per cubic yard bid for ‘Solid Rock Excavation’, ‘Common Excavation’ or .‘Unclassified Excavation’, as the case may be, which price shall be: full compensation for all light clearing and light grubbing; for all excavation; for all drilling and blasting; for formation of embankment; for all compaction where Special Compaction of Earthwork (Section 107) is not specified as a pay item; for all watering and aerating of soil; for trimming of slopes; for disposal of surplus material; for all hauling within the free haul limits; for preparation and completion of subgrades and shoulders of roadway; for final clearing up of the right-of-way; and for all labor, tools, equipment and incidentals necessary to complete the work.” (Emphasis supplied.)
Appellant, on the other hand, contends that the structural riprap is an item to be paid for under “rip-rap.” Section 909.5 of the general contract provides as follows:
“909.5 Basis of Payment. Riprap placed and accepted and measured as provided above, shall be paid for at the contract unit price per cubic yard bid for ‘ Riprap, ’ which price shall be full compensation for furnishing and hauling all material, for all quarrying involved, for necessary excavation and back fill, and for all labor, equipment, tools and incidentals necessary to complete the work.” (Emphasis supplied.)
We agree with appellant that the excavation for structural riprap is an item to be paid for under section 909.5. (We are led to this because common excavation and riprap excavation would not necessarily carry the same price, and section 909.5 specifically points out that the payment for riprap includes the payment for necessary excavation and backfill in connection therewith. Therefore we hold that the chancellor improperly allowed the sum of $5,096 under item (a) of the damages as against appellant.
IV
Included within the $16,986.16 allowed under item (c) is $6,172.50 paid to Harvey Durham for completing a portion of Wade’s subcontract. In this connection Durham testified that as part of his work in finishing Wade’s subcontract he also finished the upgrade portion of the embankment for Pioneer. Pioneer readily concedes that the upgraded portion of the embankment was its responsibility and not Wade’s. Since no allocation of charges was made by Durham between work done for Wade and work done in performing Pioneer’s portion of the upgraded embankment, we hold that the trial court erred in allowing the item of $6,172.50.
Therefore, we reduce item (c) of the damages allowable to Pioneer to the amount of $10,813.66.
V
On the $3,260 Wade expended to clear the bridge contractor’s waste material from the right-of-way, the only basis shown for disallowing this item is the master’s finding that if Wade expended the money therefor his cause of action would be against the bridge subcontractor and not Pioneer. All the evidence shows that Wade did spend $3,260 to remove the waste material from the ditches in addition to the yardage' he moved under his subcontract. It appears to us that such removal would have been necessary in the performance of Wade’s contract and that as between Wade and Pioneer, Wade was entitled to charge the cost thereof against Pioneer.
Therefore, we hold that Wade is entitled to an additional credit of $3,260.
YI
Wade argues that the court erred in determining that he breached his contract. As we view the facts it is definitely established that Wade did not completely perform his contract, and that the work he did was not done promptly within the terms of the contract. It is undisputed that Wade went out of business, having sold his equipment in 1962 before the job was finished.
Therefore, we conclude that the chancellor properly ruled in favor of Pioneer on this issue.
Wade contends that he was entitled to the difference between the actual quantities moved and the estimated quantities contained in his contract. This contention is without merit, for section 2 of the contract clearly provides for payment on a unit price rather than a total consideration.
The figures given under approximate quantities and the extended total price are approximate ones and represent all of the described items between station 350/00 to station 464/00 on the above described general contract, and is exclusive of all upgraded material. | [
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