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Humphreys, J.
On July 30, 1941, appellee brought suit for divorce in the chancery court of Jefferson county against appellant on the ground that he had threatened her with personal violence and imposed upon her many indignities which rendered her condition in -life intolerable and prayed for temporary and permanent alimony, an interest in his personal property and real estate, reasonable attorneys’ fee and court costs. It was alleged in her complaint that appellant had a large sum of money on deposit in the National Bank of Commerce and the Simmons National Bank of Pine Bluff, Arkansas, and prayed that same be impounded and that said banks be enjoined from honoring checks drawn against the deposits until 'the property rights between appellant and appellee be determined by the court.
On the date the complaint was filed, an impounding order was issued directing the banks to hold the deposits intact until further order of the court.
On the 2nd day of August, 1941, the trial court entered an order releasing .$800 of the amount on deposit in the Simmons National Bank belonging to appellant in order that he might continue to operate his theatre in Pine Bluff. On the same date this order was made the court allowed appellee temporary alimony in the sum of $50 per month until final hearing of the case and allowed her attorney an initial fee of $100.
On September 8, 1941, appellant filed an answer denying the material allegations of the complaint, and a cross-complaint for a divorce alleging that appellee constantly quarreled at him, abused him and habitually offered indignities to him which rendered his condition in life intolerable. He also alleged that two days before their marriage they entered into an antenuptial written contract concerning the property of each as follows:
“Antenuptial Agreement and Property Settlement “Know All Men By These Presents:
‘ ‘ That this agreement made and entered into this day and date by and between Y. E. Bonner and Myrtle Gray, both of Pine Bluff, Arkansas, witnesseth:
“That "Whereas, a marriage is intended to be solemized between the parties hereto, and in view of the fact that after their marriage in the absence of any agreement to the contrary, their legal relations and powers as regards property may, by reason of some change in their domicile, or otherwise, be other than those of their present domicile, or other than those which they desire to have apply to their relations, powers and capacities; and in view of the fact each of the contracting parties owns certain real estate at this time, and in view of the further fact it is agreed that the said Y. E. Bonner has approximately five thousand dollars ($5,000).
“No, (now), therefore, each of the parties hereto hereby agrees, covenants and declares it to be his and her desire that during their marriage, each of them shall be and continue completely independent of the other with reference to the enjoyment and disposal of any property, real or personal, which either of them might own at the time of the marriage aforesaid; that is to say, the said V. E. Bonner is to retain control over and be the absolute owner of any or all property belonging to him at the time of the marriage herein contemplated, and the said Myrtle-G-ray is to retain control over and be the absolute owner of any or all property belonging to her at the time of said marriage, and in the same manner as if the said proposed marriage had never been celebrated.
“And the parties hereto expressly agree and covenant to and with each other, that upon the death of either, the survivor shall not have and will not assert any claim, interest, estate or title, under the laws of the state, because of such survivorship, in or to the property, real, personal or mixed, owned by the other contracting party at the time of the solemnization of the marriage herein contemplated; and such survivor hereby relinquishes to their heirs, administrators, executors and assigns of such deceased party, any and all of his or her claim, distributive share, interest, estate or title that he or she would otherwise have as the surviving husband or wife in the property of the other, it being understood and agreed between the parties that this stipulation is to apply only to the property owned by either of them at the time of the marriage herein contemplated; and each agrees, upon demand, to make, execute and deliver to the heirs, administrators, executors and assigns of such deceased party any and all acquittances, assignments, deeds, instruments and receipts that may be necessary to carry out and make effective his or her agreement herein contained.
“It is further understood and mutually agreed by and between the parties hereto that after the proposed marriage is solemnized, as herein contemplated, if they or either' of them is successful in the accumulation of any property, real, personal or mixed, then in that event, such after-acquired property is and shall be the joint property of the parties hereto, and each of them shall own the same, share and share alike, and shall be entitled to the enjoyment and use of the same.
“To the full and proper performance of all the foregoing agreements, covenants and stipulations, the parties here respectively bind themselves, their heirs, executors, administrators and assigns.
“In witness whereof, the parties hereto have hereunto set their hands and seals this 5th day of August, 1940.
“V. E. Bonner,
“Mrs. Myrtle Gray.”
This contract was acknowledged by each before Julian Crawford, a Notary Publie.
Appellant prayed for an absolute divorce.
On October 15, 1941, appellee filed an answer to the cross-complaint denying the material allegations therein and pleaded that the antenuptial agreement was contrary to publie policy and void and that .a postnuptial deed executed by appellant to her when read in connection with the antenuptial agreement amounted to a fraud practiced upon her and prayed for a cancellation of the antenuptial agreement and the postnuptial deed and also prayed that she be granted an interest in appellant’s real and personal property according to the statutes of the State of Arkansas.
Thereafter, appellant filed an amendment to his cross complaint alleging that appellee frequently indulged in clandestine meetings with one Gould Ratliff, and with another man or men whose names are unknown to appellant.
Appellee filed an answer to the amendment denying that she had clandestinely met Ratliff or other men.
The cause was submitted to the trial court upon the pleadings and testimony produced by the- respective parties which resulted in findings orally announced after the testimony had been closed and a decree was rendered November 3, 1941, denying each a divorce on the ground that the evidence showed that both were at fault and to blame and denied the relief prayed for by appellee, asking for a divorce from appellant, and also denied the relief prayed for by appellant in Ms cross-complaint and dismissed tbe complaint and cross-complaint for want of equity; also, canceled the antenuptial agreement on the ground that it was contrary to public policy becaiise it (was entered into by the parties in contemplation of a divorce and was not made solely in contemplation of death and, also, that the postnuptial deed contained restrictions that amounted to a fraud practiced upon appellee by appellant; also allowed $50 per month as permanent alimony and an additional attorney’s fee of $300 and dissolved the temporary injunction issued against the National Bank of Commerce and the Simmons National Bank.
Both parties excepted to the findings and decree of the court and each prayed and was granted an appeal to the Supreme Court.
The record reflects that appellant at the time of his marriage with appellee was 63 years old, had lost his first wife through death, by whom he had several children, and had lived with his second wife for 28 years, from whom he obtained a divorce.
At the time of the marriage appellee was 35 years of age, had living children and had been twice divorced.
Both were intelligent and both had had much matrimonial experience and should have known how to treat each other and how to conduct themselves in order to live a tranquil and harmonious married life. Neither of them seems to have learned much by past matrimonial experiences. Each offered the other indignities during their short married life of about a year, which they should not have done. For example, on one occasion appellee’s son came in with a friend about 10 o’clock at night and awakened appellant, and in retaliation appellant got up, turned the radio on and ran it most of the night to keep them awake. Appellant checked the amount of gasoline appellee used in going from place to place in order to ascertain whether she had told him the truth as to where she had been. He was penurious in his allowances to her to purchase clothing, etc. On the other hand, at times she abused and even cursed him, but she claimed that on those occasions he had greatly provoked her. He demanded that she inform him at all times where she had been or where she was going, and she admits that when she was being pressed along these lines she had told him that she had been across the way to a house that was not entirely reputable, but she said she did this in order to tease him, and he really knew she had not been to the place she stated she had gone. -The evidence reflects that, they had many quarrels during their short married life, and there is evidence tending to show that he not only threatened her but did strike or push her down a stairway. She went to a physician for treatment, but did not inform the physician what had caused the bruises on her body and the injury to her elbow. We do not attach much importance to his charge that she had indudged in clandestine meetings with Ratliff and another man for the reason that both the men denied that she had met them on any occasion and both claimed they only had a casual acquaintanceship with her. Appellant did not think enough of this to make the charge in his original cross-complaint against her to that effect. He did not make the charge until he filed amendment to his cross-complaint to her suit.
Many witnesess testified in the case concerning their married life, and the testimony is voluminous and very conflicting. After a careful reading and analysis of the evidence, we have concluded that the finding of the chancellor to the effect that both were to blame is not contrary to the weight of the evidence. Where married people are equally to blame for separation, neither is entitled to a divorce from the other.
We think, however, that the finding of the chancellor that the antenuptial agreement was made in contemplation of a divorce and not solely in contemplation of death is contrary to a preponderance of the evidence. By reference to the contract itself it will be seen that they “expressly agree and covenant to and with each other, that upon the death of either, the survivor shall not have and will not assert any claim, interest, estate or title, under the laws of the state, because of such survivorship, in or to the property, real, personal or mixed, owned by the other contracting party at the time of the Solemnization of the marriage herein contemplated . . .” The contract further provides that ‘1 survivor hereby relinquishes to the heirs, administrators, executors and assigns of such deceased party, and any and all of his or her claim, distributive share, interest, estate or title that he or she would otherwise have as the surviving husband or wife in the property of the other.” It will also be observed that the contract winds up with this statement: “To the full and proper performance of all the foregoing agreements, covenants and stipulations, the parties hereto respectively bind themselves, their heirs, executors, administrators and assigns.”
It is true that appellant testified that he wanted to protect himself in his property rights in case a divorce should grow out of the marriage contract, but he testified at another time that he told appellee that he wanted her to sign the contract in order to show his children by his first wife that appellee was not marrying him to get his property, but was marrying him for love.
It is admitted by appellee that the contract was read to her and that she read it over carefully two days before she married appellant and that she understood it. There is nothing in the contract itself that indicates it was drawn up and executed in contemplation that a divorce would result after the marriage. We think it was clearly made in good faith and that the marriage was the sole consideration of the contract, and that it should continue in force until death of either party.
In the case of Comstock v. Comstock, 146 Ark. 266, 225 S. W. 621, this court, among other things, said: “Marriage was a sufficient consideration for the ante-nuptial contract. Where such contracts are freely entered into and are not unjust or inequitable, and there is no fraud, they should be liberally construed to effectuate the intention of the parties and should be looked upon with favor and enforced accordingly. . . . Without going into detail, we are convinced, from the face of the contract and the evidence adduced, that, when the per sonal status of the parties, théir ages, their respective families, and their separate properties are considered, the antenuptial agreement was a just and reasonable one. ’ ’
In Schouler on Marriage, Divorce and Separation, Vol. 1, § 498, it is said by the author that: “There is no rule of law nor principle of public policy which prevents husband and wife from thus fixing, by an agreement before marriage, the rights which they shall have in each other’s property, and relinquishing the interests which they would otherwise acquire therein by virtue of the marriage. Thus, they may relinquish their distributive shares in each other’s estates, or the wife may bar her dower or the husband his curtesy. The husband may agree that his wife may retain all her own property to her sole and separate use, and he may settle his own property on her. And the devolution of the property of either or both may be regulated. These objects the law does not regard as contrary to public policy.”
The contract in the instant case was entered into after an inspection of the property owned by each, and we think the record reflects without doubt that it was entered into by the parties in good faith and without fraud being practiced by either upon the other. The contract was not void as being contrary to public policy and should have been upheld by the trial court.
The contract contains the following provision: “It is further understood and mutually agreed by and between the parties hereto that after the proposed marriage is solemnized, as herein contemplated, if they or either of them is successful in the accumulation of any property, real, personal or mixed, then in that event, such after-acquired property is and shall be the joint property of the parties hereto, and each of them shall own the same, share and share alike, and shall be entitled to’ the enjoyment and use of the same.”
The undisputed evidence reflects that after their marriage appellant accumulated during the time they were married $824.12, and under the terms of the contract appellee would be entitled to $412.06. She should have judgment for that amount.
Appellant contends that in view of the terms of the contract the court should not have allowed appellee permanent alimony. We cannot agree with appellant in this respect notwithstanding the terms of the antenuptial agreement. It was and is the duty of appellant to support his wife according to the station in which they live. This duty would not rest upon him if he were entitled to a divorce, but it does rest upon him as long as they are married unless she had abandoned him without just cause. He is.as much to blame as she for the separation,- and it is his bounden duty to support her as long as the bonds of matrimony exist between them. The amount of permanent alimony allowed appellee is reasonable. Appellant makes no point that the attorney’s fee allowed was excessive.
Relative to the postnuptial deed which appellant executed to appellee, we see no justification in the record for canceling same. It is true that it contains a restriction to the effect that appellant shall retain possession of the property and collect the rents therefrom during his lifetime, but that restriction should not void the deed. Appellant had a perfect right to give her the property and place restrictions in the deed if he desired to do so. It was his privilege to convey to her outright or upon conditions.
The decree of the chancery court is affirmed insofar as it denied a divorce to either party and as to the amount of permanent alimony and attorney’s fee.
The decree is reversed insofar as it canceled the antenuptial agreement and the postnuptial deed and the cause is remanded with directions to declare both the' antenuptial contract and the postnuptial deed valid and binding instruments and to enter judgment for appellee for one-half of the amount appellant has earned since* the marriage. | [
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Mehaeey, J.
Plaintiff, a resident of Bentonville, Arkansas, engaged in buying and selling fruit and fruit waste, sold to the appellant, a resident of Pulaski County, Arkansas, under a written contract, a quantity of apple skins and cores approximating 150,000 pounds. The written contract is as follows:
“November 9, 1925.
“Mr. J. W. Blocher,
“Bentonville, Arkansas.
“Dear sir: This will confirm our phone purchase of your own make of skins and cores at $1.36 cwt. f. o. h. Bentonville, shipments to he made on or before May 15, 1926, plus 8 per cent, interest on the amount of each invoice. Interest to begin December 1, 1925; each invoice to carry its own interest. The volume to be approx. 150,000 pounds.
“Cars to be routed Frisco care of Missouri Pacific at Van Burén.
“Jim, I am sending this in duplicate, so you may sign and return one copy for our files.
“Very truly,
“Ozark Fruit Company,
“By'B. C. Bates,
° “'Sole Owner.
“Accepted: J. W. Blocher.”
The appellant does not dispute the contract, the shipment of the goods, nor the price to be paid, nor the quantity. But, in his answer, he alleges that when the goods were purchased they were in good condition, and it was the duty of the plaintiff to so keep and care for same until shipped that they would be in good condition when shipped; that plaintiff permitted water to get into and upon said apple skins and cores and greatly increase the weight and greatly decrease the sugar content and value thereof; that said apple skins and cores, had they been in good condition when shipped to him, would have produced vinegar at the rate of one gallon to every 2 1/3 pounds, or a total of 69,710 gallons, but that, by reason of the excessive moisture and loss of sugar content, they produced only 48,700 gallons, making a loss to defendant of 21,010 gallons of vinegar by reason of said excessive moisture and loss of sugar content; that, by reason of said excessive moisture, defendant was caused to pay excess freight in the sum of $143.24; that, by. reason of said negligence of plaintiff in handling’ said apple skins and cores while in his storage, defendant was damaged in the sum of $778.57, which amount being deducted from the unpaid balance of purchase price left defendant indebted to plaintiff only in the sum of $259.79, which amount defendant admitted he justly owed, and had tendered to plaintiff.
The last paragraph of defendant’s answer was as follows: “Although defendant contends he owes plaintiff only $259.79, in order to meet plaintiff half-way in the attempt to stop this litigation, the defendant here and now offers to confess judgment in favor of plaintiff in the sum of $800, on condition that said offer be accepted before any further costs accrue; otherwise the defendant will insist upon judgment being limited to the $259.79, which is all that he justly owes the plaintiff. ’ ’
There was a verdict and judgment for the plaintiff, and defendant has appealed.
In defendant’s motion for a new trial there are nine assignments of error, but he states in his brief: “We waive the first eight, and rely solely upon the ninth, which was that the court erred in permitting counsel for appellee to read to the jury appellant’s offer to confess judgment for $800.”
We deem it unnecessary to set out the evidence, for the reason that the only question for this court to determine is whether the lower court erred in permitting counsel for appellee to read to the jury appellant’s offer to confess judgment, which was contained in the last paragraph of his answer.
■Section 1343 of Crawford & Moses’ Digest reads as follows:
“After an action for recovery of money is brought the defendant may offer in court to confess judgment for part of the amount claimed or part of the causes, involved in the action. Whereupon, if the plaintiff, being present, refuse to accept such confession of judgment in full of his demands against the defendant in the action, or, having had such notice that the offer would be made, of its amount, and the time of making it, as the court shall deem reasonable, fails to attend, and on the trial does not recover more than was, so offered to be confessed, such plaintiff- shall pay all of the costs of the defendant incurred after the offer.”
Section 1344 of-Crawford & Moses’ Digest is as follows :
“The offer shall not be deemed to be an admission of the cause of action, or amount to which the plaintiff is entitled, -nor be given in evidence upon the trial.”
The statute above quoted expressly provides that the offer to confess judgment, mentioned in § 1343 of Crawford & Moses’ Digest, shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor -be given in evidence upon the trial. The question is, whether the rule announced by •this statute is violated by the attorney for the appellee reading the offer to the jury in his argument.
Appellee contends, first, that it is discretionary with the court to permit pleadings to be taken by the jury to the jury room, and that it is customary to read the complaint and answer to the jury, and that defendant below had notice of this. It is said that the court below simply held that pleadings in a case are to be treated as in evidence and part of the record. It is true that it is customary to read the pleadings to the jury for the purpose of stating the issues.
■Section 1292 -of Crawford & Moses’ Digest provides:
“When the jury has been -sworn, the trial shall proceed in the following order, unless the court shall, for special reasons, otherwise direct: first, the plaintiff must briefly state his claim and the evidence by which he expects to sustain it. Second, the defendant must then briefly state hi.-s defense and the evidence he expects to offer in support of it. Third, the party on whom rests the burden of proof in the whole action must -first produce his evidence. The adverse party will then produce his evidence, ’ ’ etc.
■ We think it- perfectly clear that the statement' in defendant’s answer was not a confession of judgment, and was n.ot an admission that he owed $800. There was an admission that he owed $259.79, with an offer to confess judgment for $800 if accepted. It was not accepted, and it was therefore withdrawn, and was not proper to go before the jury.
Appellee relies on the statement in Corpus Juris, which is as f ollows:
“A statutory offer of judgment differs from an offer set up in the answer which may operate as an admission or confession of judgment and may authorize judgment on the pleadings.”
In the same paragraph, however, relied on and quoted by appellee, it is stated:
“Where the ease goes to trial before expiration of the time for acceptance, and before,any action on the offer by plaintiff, it has been variously held, under, the different applicatory statutes, that the offer becomes ineffectual for any purpose; that the offer may be accepted during the progress of the trial; that, by going to trial before his time to accept has expired, plaintiff in effect elects not to accept; and that the offer cannot be accepted after trial. * * * An acceptance entitling plaintiff to judgment must be made in the manner prescribed by the statute, as by filing or serving a written notice of acceptance, or by an oral acceptance in open court in the presence of defendant.” 34 C. J. 140.
In the paragraph preceding the one cited in appellee’s brief is the following statement:
“Defendant is not bound by an offer to allow judgment for the sum or relief specified unless the offer is accepted within the time limited by statute, or fixed by the'court, where the statute authorizes the court to fix or extend the time within which an offer • of judg ment must "be accepted in order to be binding. If not accepted within the time prescribed, the offer is deemed withdrawn, and cannot be given in evidence or commented on in the presence of the jury, or allowed in any way to affect the judgment, except as to costs, and it is generally expressly so provided by statute.”
The offer to confess judgment made by defendant expressly states that it is defendant’s contention that he only owes $259.79, but, in order to meet the plaintiff half-way in an attempt to stop this litigation, he offers to confess judgment for $800 on condition that said offer be accepted before any further costs accrue. Otherwise, the plaintiff insists upon the judgment being limited to $259.79. This offer was not accepted, and it therefore could not be given in evidence or commented on in the presence of the jury.
Appellee next calls attention to thé case of Maize v. Big Creek Coal Co. (Mo. App.), 203 S. W. 633. The court stated there that the offer of compromise is not like a tender made, perpetually good by a deposit in court, or like one set up in an answer, which is in effect a confession of judgment.
If defendant had simply filed an answer and set up in his answer that he owed the plaintiff $800, then, of course, this answer would have been evidence against him, would have been an admission made by him, but he expressly .states in his. offer to confess judgment that he does not owe $800.
In the case referred to by appellee, the motion was made under a statute providing for an offer to confess judgment. That statute provided, however, that judgment might be rendered upon upon such offer if plaintiff accept the offer and give notice thereof, but that, if the offer is not accepted, it .shiall be deemed to be withdrawn.
The court also stated: “As plaintiff did not see fit to accept the offer, but elected to submit his case to a jury, the offer, by the terms of the statute, was withdrawn, and could in no way afford a basis for a judgment such as plaintiff sought to obtain after he had entered the lists with his adversary and had been unhorsed in the joust.”
Appellee then calls attention to the case of Greene v. Wood-Harmon Co., 173 Mass. 45, 52 N. E. 1070. The court in that case stated the offer of judgment did not affect the case. It was not a pleading, and it was not evidence.
We do not think that either authority supports the contention of appellee.
In speaking of an offer to compromise, the Supreme Court of Utah .said:
“The right of the plaintiff to reject the offer is not, and cannot be, denied. It is a general rule as to all agreements that assent of both parties is necessary, and that the party to whom an offer is made may reject at his pleasure, and thereafter there can be no agreement, unless the offer be renewed. * * * It is a settled rule that an acceptance of any proposition, to be valid and binding, must be unconditional. If a condition be affixed by the party to whom the offer is made, or any modification or change in the offer be required, it constitutes in law a rejection of the offer.”
The court in the same case also .said:
“An offer to compromise is not an admission that anything is actually due. A payment into court is an admission of an indebtedness to the extent of the payment. It is a satisfaction of the debt to the extent of the amount paid.” Orth v. Zion’s Co-Op Mercantile Inst., 5 Utah 419, 16 Pacific 590.
The Court of Appeals of Kentucky, discussing the question of offer to confess judgment, quotes the statute from which ours .seems to have been copied, and then says:
“This expressly provides that the offer to confess judgment .shall not be deemed to be an admission of the cause of action or amount to which the plaintiff is entitled, nor be given in evidence upon the trial. It simply has the effect of making the plaintiff pay all costs incurred after thé offer is made in the manner required in the Code of Practice, provided he fails to recover more than the amount for which defendant offered to confess judgment.” Tyler v. Hamilton, 108 Ky. 120, 55 S. W. 920.
The Circuit 'Court of Appeals of this circuit has said, in discussing our statute:
"Beyond this, if there had been no such statute, this unaccepted offer would have been immaterial upon general principles. It was a mere attempt to buy peace — ■ to compromise the controversy — and for this reason it was neither an admission of liability nor -of the ;truth of any averment of the complaint. It is the policy of the law to favor the settlement of disputes, to foster compromises, and to promote peace. If every offer to buy peace could be used as evidence against him who presents it, many settlements would be prevented, and unnecessary litigation would be produced and prolonged.’' For this reason unaccepted offers to compromise claims or to purchase peace are inadmissible in evidence at the trial of controversies over the claims to which they appertain, and should not be permitted to affect the rights of the parties, or to influence the results of the trials.” Moffit-West Drug Co. v. Byrd, 92 F. 290.
In speaking of the testimony of a witness with reference to his effort to compromise, the court .said:
"These negotiations fell through. Mr. H. Fj. Wal'bridge was permitted to testify to these negotiations, and to produce certain letters passing between him and defendant. They had no relevancy to the issue involved in this case-, and should have been excluded. They contained statements which might have prejudiced the defendant. ’ ’
The court in the same case said:
"The offer was not read to the jury,- and counsel offered it to. contradict hi-s statement that he had never tendered that amount in court. The entire subject was brought out upon cross-examination. The jury must have understood that this was a written offer, and contained the tender of the amount. It was ias effectually before the jury, and just as damaging, as though the written document had been offered in evidence. It was clearly incompetent.” Walbridge v. Barrett, 118 Mich. 433, 76 N. W. 973.
“There was an offer of compromise made by the claim agent of the Missouri Pacific Railroad Company, but the letter also carried with it a denial of liability. We do not think that the mere fact that the Missouri Pacific Railroad Comp.any endeavored to trace the misdirected box of goods and to adjust a claim of loss therefor would create liability bn its part.” Missouri Pacific Railroad Co. v. Stein, 161 Ark. 406, 256 S. W. 373.
While the statement offering to confess judgment for $800 was in the answer instead of a separate plea, we think it was made clear that it was not an admission of indebtedness and that there could not be any dispute about this. This appears from the reading of the paragraph itself, wherein it is expressly stated that he does not owe this amount. And, so far as the record shows, this was merely an effort to buy peace, to settle the lawsuit, and it had no effect, and was incompetent, and was just as damaging when got 'before the jury by reading and commenting 'on by the attorney as if it had been introduced in evidence.
For the errors indicated the case must be reversed, and remanded for a new trial. | [
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Carleton Harris, Chief Justice.
On July 21, 1965, Patricia Burdick, appellant herein, was granted a divorce from appellee, Richard L. Burdick, was given custody of the three minor children, and was awarded $300.00 per month as alimony and child support. In August, 1967, Mr. Burdick filed a petition requesting that he be granted custody of the minor son, Richard Leroy Burdick, Jr., and that the decree be modified by a reduction in the child support payments and elimination of all alimony. Mrs. Burdick filed a response asking that support payments be increased to $500.00 per month. On hearing, the court granted the custody of Richard Bur-dick, Jr., to his father, with the right for the father to leave the boy in the actual custody of an aunt in Okla homa, eliminated alimony, and reduced child support payments to $225.00 per month. At the time of the last hearing, Linda Kay, the eldest child, was 16 years of age, Richard was 15 years of age, and Elizabeth Ann was 4 years of age. From the decree so entered, appellant brings this appeal. It is first asserted by appellant that the evidence does not show such a change of conditions since the original decree as to justify cancellation of alimony and reduction of child support payments.
The proof reflects that appellee is a Major in the United States Army, and is stationed at Fort Walters, Texas, near Mineral Wells. He receives pay and allowances of $1,263.73 per month. At the time of the original divorce, Burdick held the rank of Captain, and received pay and allowances of $1,039.03 per month. Ap-pellee admitted that he had originally agreed to pay the sum of $500.00 per month:
“ * * * I agreed, we both agreed, I said I would give her $500.00 a month so she could stay at home with the baby and we agreed to $300.00 a month child support, no alimony in it, just straight child support is what we agreed on and I paid that money until actually I got in debt to where I couldn’t pay the $500.00 any more, so I paid the $300.00 a month.”
The $300.00 per month was taken care of by an allotment, and Burdick sent four additional checks for $200.00; however, two of these cheeks were not paid because of insufficient funds, and were never made good.
Burdick testified that in April, 1967, he was called by the Juvenile Court at El Dorado, and advised that his son had gotten into trouble, and that the boy wanted to live with his father. Appellee went to El Dorado, and the custody of Richard, Jr., was given to him (temporar ily, by the juvenile court). Young Bichard accompanied his father back to Texas, and entered school in Weather-ford. He came back to El Dorado for a visit during the summer, stayed about three weeks, and returned to his father. The Major testified that he learned he would be sent to Vietnam around Christmas or the first of the year, and he accordingly placed the boy with his sister, Mrs. Mary Sims, at Enid, Oklahoma; Richard, Jr., attends Junior High School in Enid. After obtaining custody of the son, Burdick reduced his allotment to Mrs. Burdick to $200.00, and testified that he sent $100.00 per month to his sister to take care of young Richard. The witness testified that, after deductions of income tax, social security and the allotments, he was left with approximately $700.00 per month. He said that he was paying $100.00 per month for rent, $50.00 to $75.00 per month for gasoline, and $200.00 per month to a bank in Weatherford, having borrowed money to pay accumulated bills. He further stated that his food cost $7.00 to $7.50 a day; he had laundry and uniform expense; still further, he said:
“* * * I have social obligations which, as I told yon earlier, if you don’t go you’re not a flight commander very long. * * * I have nothing in my bank account. In fact, I told you [his attorney] I will pay you with a postdated check. That sounds like a lot of money but at the end of the month I am broke, period.”
Mrs. Burdick is employed in El Dorado, and earns $305.00 per month, with take-home pay of $246.00. She listed expenditures for the months of July, August, September and October (1967), which appear reasonable, and which average $461.25 per month. This does not include the monthly house rental, which is $100.00 per month, and Mrs. Burdick is $800.00 behind in her house rent. This fact was ^verified by Robert E. Hosford, who owns the property which Mrs. Burdick is renting.
As to the boy, she testified that the aunt has no tele phone, and that she is unable to contact her son; that she had been unable to obtain the street address; that her letters had been unanswered. Appellant stated that she and the boy had had friction because he did not wish to abide by her rules and regulations, and that he had gotten into trouble on a charge of shoplifting. She said that she had no objection when he was placed in the temporary custody of his father, and she agreed that the boy probably did not desire to live with her; however, she objected to the provision in the decree placing the actual care of the child with the aunt.
We agree that there has been no change of conditions that would justify reduction of the support money.
It need not be pointed out that general living costs are daily rising, and it is also true that the maintenance and support of the two girls will require greater financial expenditures than were necessary at the time the divorce was granted in 1965. The elder daughter, Linda, is now a junior in high school, and, of course, the younger daughter was only a baby at the time of the divorce. Since the financial situation demands that Mrs. Burdick work outside the home, it is necessary to leave Elizabeth Ann in a nursery, and this item alone amounts to $40.00 per month. Mrs. Burdick pays the G. I. Insurance on her ex-husband out of her own funds, and, as previously stated, her expenditures cannot be said to be extravagant. Certainly, it would not be proper to penalize appellant for obtaining employment, for it would appear that this step was absolutely necessary. Even then, it will be noted that she is eight months behind in her house rent. While she now has only two children to look after financially (as compared to three at the time of the divorce), it is also true that appellee’s pay and allowances have been increased approximately $225.00 per month. It may be true that Major Burdick’s social obligations have increased because of his promotion, but we do not think this fact has lessened his obligation to his children.
As to the custody of the hoy, we are unable to say that the court erred. In the first place, it appears that he would be quite unhappy living with his mother, and she herself testified that she felt that Richard, Jr., did not desire to live with her. The record reveals that, on his last visit to El Dorado in August, the son stayed but little with his mother, preferring to stay with her parents. According to appellant’s testimony, he left his mother’s house when she refused to let him spend the night away from home, and thereafter, did not return.
At the time of the last hearing, young Richard was 15 years of age. While we have said many times that the paramount issue in custody cases is the welfare of the child, we have also said that, in proper cases, the wishes of the child should be given consideration. As long ago as 1906, in Lipsey v. Battle, 80 Ark. 287, 97 S. W. 49, Justice Riddick, speaking for the court, said:
“* * * Courts not only respect the rights and feelings of the parent, but also when the child is of sufficient age they give consideration to its wishes. The child in this case is nearly thirteen years of age. She expressed a decided preference to dwell with her mother. So far as this evidence shows, this mother and child are sincerely attached to each other, and this feeling should not be disregarded, nor the ties of affection sundered, unless the welfare of the child clearly demands that she be separated from her mother. We see nothing in the evidence that requires it.”
This holding has been reiterated many times.
The evidence reveals that Burdick visited his son every other week, and, of course, if he is now overseas, he cannot personally maintain a home for the boy. While the present arrangement cannot be said to be entirely satisfactory, taking into consideration the apparent antipathy of Richard toward his mother, we are unable to say that the Chancellor could have rendered a more suitable order.
In accordance with the views herein expressed, the decree is reversed, with directions to reinstate the order of $300.00 per month alimony and child support; in all other respects, the decree is affirmed.
There is no mention of alimony at all in this decree.
Appellant’s brief refers to the court’s order as $200.00 per month, but the transcript reflects that the order was for $225.00 per month. No brief has been filed by appellee in this case. | [
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Greenhaw, J.
Appellant, a negro, was charged by information with the crime of arson, it being alleged that on June 18, 1941, he unlawfully, willfully and feloniously set fire to and burned a certain barn located on the G. L.. Salmon estate, with the intent of burning and destroying the same. He entered a plea of not guilty, and was convicted and sentenced to two years imprisonment, from which is this appeal.
The building which burned was a cow barn, and contained a large amount of corn, all or most of which was destroyed along with the barn. Appellant and a number of other colored people lived near the scene of the burning. There were a number of other buildings, such as a large mule barn, hay barn and shop, near the cow barn. The fire was discovered between daylight and sunup, after the hostler had milked cows in the building which burned.
There was no evidence whatever that appellant had been in the barn before the fire was discovered. As far as the record reveals, the only person who had been in the barn that morning was the hostler. Only one witness testified that he saw appellant before the fire was discovered. George Harris, colored, testified that he saw Mm in a lane a short distance from the cow barn, but did not see him enter or leave the barn. Appellant and other witnesses who lived in the house with him testified that he was at the house at the time the alarm was given, and they thereafter went to the fire.
There was no evidence that the barn burned as a result of arson, and evidence was wholly lacking to show the corpus delicti. This' court has -repeatedly held that there is no presumption that an unexplained fire is of incendiaiy origin. In the case of Johnson v. State, 198 Ark. 871, 131 S. W. 2d 934, this court said:
“There is no presumption that an unexplained fire is of incendiary origin. On the contrary, the presumption is that such fire was caused by an accident, or, a.t least, that it was not of criminal design. In a prosecution for arson, as in other criminal cases, it is incumbent on the state to prove the corpus delicti, and it is now recognized as the universal rule in the law of arson that in order to establish the corpus delicti it is not only necessary that the state prove the burning of the building (or property) in question, but the evidence must also disclose that it was burned by the willful act of some person criminally responsible for his acts, and not by natural or accidental causes.” (Citing Corpus Juris Secondum, par. 29, 746, 16 Corpus Juris, par. 1514, pp. 735, 736, 737.)
There was no substantial evidence to connect appellant with the burning of this barn, and there was no evidence which showed that the barn was willfully set on fire by anyone.
We have concluded that the evidence in this case does not sustain the verdict of guilty, and the judgment is reversed and the cause is remanded for a new trial. | [
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McHaney, J.
Appellants, American Excelsior Laundry Company and R. Chester List, operate a laundry and dry cleaning business in Pine Bluff, Arkansas, under the trade name of List Laundry & Dry Cleaning Company. On May 21,1932, they entered into a written contract, under the trade name, with appellee,' employing him to solicit and deliver laundry and dry cleaning on their rural route, which included all points in and between the towns therein named and between that territory and Pine Bluff, and agreed to and did furnish the necessary transportation for such purpose. He was paid 15 per .cent, of all laundry and cleaning secured and collected for by Mm in Ms territory. It was to continue in force “so long as it is mutually satisfactory to both parties to continue it.” The final paragraph in the contract provides: “Allen Derrisseaux agrees that he will not at any time within five years after the termination of this agreement engage in the laundry and dry cleaning business in any of the above mentioned cities in any capacity, either for himself or as employee of any other person, and will hot solicit or deliver laundry or dry cleaning in said territory in any manner during said period of time.”
Appellee worked under said contract from its date, May 21, 1932, to August 28, 1941, on which date he quit and engaged in business for himself, soliciting and delivering laundry and dry cleaning over the same route.
Appellants, on October 10, 1941, brought this action to enjoin appellee from soliciting or delivering laundry or dry cleaning in the territory described in said contract and for damages. Appellee answered, admitting the execution of said contract and pleading its breach in certain particulars by appellants. By an amendment to his answer, he alleged that the above quoted provision of the contract was void as being in restraint of trade, no mutuality of obligation and no consideration.
Trial resulted in a decree dismissing the complaint for want of equity. The court held that the above quoted paragraph of the contract “is contrary to public policy, tends to stifle competition and is, therefore, void.” This appeal followed.
For a reversal of this decree appellants rely strongly on Bloom v. Home Ins. Agency, 91 Ark. 367, 121 S. W. 293. There the late judge Frauenthal, for the court, quoted from a Michigan case there cited, the following: “Public policy requires that every man shall be at liberty to work for himself, and shall not be at liberty to deprive himself or the state of his labor, skill or talent by any contract that he enters into. On the other hand, public policy requires that when a man has by skill or by any other means obtained something which he wants to sell, he should be at liberty to sell it in the most advantageous way in the market; and, in order to enable him to sell it advantageously in the market, it is necessary that he should be- able to preclude himself from entering into competition with the purchaser. In such a case the same public policy that enables him to do that does not restrain him from alienating that which he wants to alienate, and therefore enables him to enter into any stipulation, however restrictive it is, provided that restriction, in the judgment of the court, is not unreasonable, having regard to the subject-matter of the contract.” Up River Ice Co. v. Denler, 114 Mich. 296, 72 N. W. 157, 68 Am. St. Rep. 480.
Continuing, the court in the same case said: “Ordinarily, the agreement to refrain from a calling within a given space and for a specified time must accompany a sale of a business property itself. But if the enterprise is disconnected with any plant or tangible property, and is a business with a good will and custom, it is still valid to agree, as a protection to the purchaser thereof, from competition in that line of business, to discontinue such calling, and abstain from such business. ’ ’
There, Bloom sold an established business, an insurance agency, to the Home Insurance Agency and bound himself in writing not to enter into the business of soliciting fire insurance in Pine Bluff for a period of five years. He did so and was properly enjoined. The other cases cited by appellants, including those cited in the Bloom case, were cases involving similar situations to that of Bloom, where one of the parties had sold to the other his business or property and had agreed not to engage in the same business for a limited period, in all of which it -was held that the agreement was valid and the offending party would be enjoined. 'See Hampton v. Caldwell, 95 Ark. 387, 129 S. W. 816; Wakenight v. Spear & Rogers, 147 Ark. 342, 227 S. W. 419; McClure v. Young, 193 Ark. 188, 98 S. W. 2d 877.
Here, appellee, Derrisseaux, did not sell appellants anything. He simply entered their employ where he continued for more than nine years, when he quit and went in business for himself. Perhaps that is the only business he knows. He had the right to quit at any time. The contract did not bind either party to continue the .relationship for any definite period of time, and, as said in Love v. Miami Laundry Co., 118 Fla. 137, 160 So. 32, “Courts are reluctant to uphold contracts whereby an individual restricts his right to earn a living at his chosen calling.” See, also, Witmer v. Arkansas Dailies, Inc., 202 Ark. 470, 151 S. W. 2d 971, and Marshall v. Irby, 203 Ark. 795, 158 S. W. 2d 693.
In the latter case we quoted with approval from Restatement of the Law of Contracts, vol. 2, § 515, p. 988, under the heading “When a Restraint of Trade is Unreasonable.” Two of a number set out are “ (b) imposes undue hardship upon the person restricted, or (c) tends to create, or has for its purpose to create, a monopoly, or to control prices or to limit production artificially.”
We are, therefore, of the opinion that the above quoted paragraph of the contract between the parties is against public policy and void, in that it unduly restricts appellee’s right to earn a living in his calling and did not involve a “transfer of good will or other subject of property.” Marshall v. Irby, supra. So held the learned chancellor, and the decree is accordingly affirmed. | [
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Smith, J.
O. W. Bohannon and his wife and daughter organized a canning’ business, which they incorporated in 1936 under the name of Bohannon Canning Company. The company’s place of business was at No. 104 Cane Hill Street, in the city of Van Burén. About June 1, 1940, one E. L. Peterson came to Van Burén from Springfield, Missouri, where he had resided Before coming to Van Burén. Bohannon and Peterson were friends and had had previous business relations.
On the last-mentioned date these parties entered into a “Contract for Sale of Canning Factory,” the relevant portions of which read as follows:
“This contract and agreement, made and entered into on this 1st day of June, 1940, by and between Bohannon Canning Company, Inc., and O. W. Bohannon and Virginia Lee Bohannon of Van Burén, Arkansas, presi dent and secretary thereof, respectively, party of the first part, and E. L. Peterson of Springfield, Missouri, party of the second part, is as follows, to-wit, witnesseth:
“. . . the party of the first part agrees to sell and does hereby bargain, sell, convey, transfer and deliver unto the party of the second part, . . . the following described personal property, to-wit: Certain canning factory consisting of equipment used for canning spinach (and other vegetables) now constituting the factory of the party of the first part located at 104 Cane Hill Street in the city of Van Burén, Arkansas, said property being more particularly described as follows: . . .” There then follows an enumeration of a large number of articles used in connect-on with the canning business.
It was recited that the consideration for the sale was the sum of $12,500 of which $2,000 was cash in hand paid, and that the party of the second part should take possession of the business on August 1, 1940, at which time $2,000 additional should be paid, and that the balance of $8,500 should be paid “on the basis of five cents per case on products packed in and about said factory by the party of the second part or for him until said remaining sum of $8,500 is paid in full, '. . .” such payments to be made monthly.
It was further recited “that the party of the second part may use Bohannon Canning Company labels so long as he may desire, etc.,” and that “Any canning supplies on hand on August 1, 1940, such as salt, empty cans, corrugated boxes (containers), stitching wire, glue or paste, labels, etc., shall be invoiced by the party of the first part to the party of the second part at f.o.b. Van Burén prices, same being the price already paid for such supplies, and to be paid for by the party of the second part as used, such payments to be made monthly as such supplies are so used, the terms on same to be net.”
It was further provided that the balance of $8,500 should be evidenced by the note of the party of the second part and should be secured “with a chattel mortgage as security therefor on the above described factory equipment. ’ ’
Peterson took charge of the plant and began to operate it, and it was alleged by him in the complaint which forms the basis of this suit that the contract carried with it the sale of the name and good-will of the Bohannon Canning Company, and that under this contract he acquired the right to the exclusive use of the name Bohannon in connection with the canning business and the Bohannon labels, and he alleged that Bohannon violated the contract by continuing the use of the name and of the labels placed upon the canned products, thereby causing confusion and damage to plaintiff, and that this conduct on Bohannon’s part constituted an unfair business practice, and he prayed that the same be enjoined.
A demurrer to this complaint was overruled, after which an answer was filed joining issue on all the material allegations of the complaint. Much and very conflicting testimony was heard, after which the complaint was dismissed as being without equity, and from that decree is this appeal.
Peterson testified that Bohannon stated that he intended to retire from the canning business, and that at Bohannon’s suggestion he reincorporated the business after taking charge of it, under the name of Bohannon Canning Company, Inc., but that instead of retiring from the business, as he had agreed, Bohannon filed an appropriate certificate with the Secretary of State changing the name of the Bohannon Canning Company to O. W. Bohannon, Inc.
It was alleged that this action constituted unfair competition, which should be enjoined, but the chief insistence is that Peterson bought the Bohannon Canning Company as a going concern and thereby acquired the good-will value of its name and the sole right to the use of that name on products canned.
It was shown that confusion resulted from the reincorporation and change of names and that mail and mail orders were on frequent occasions delivered to one corporation which were intended for the other.
Briefs of opposing counsel manifest extensive research, but apparently the case chiefly relied upon for the reversal of tlie decree is our own case of Terry v. Cooper, 171 Ark. 722, 286 S. W. 806, 48 A. L. R. 1254. It was there held that the sale by one corporation to another of all of its assets of every kind and description included the trade-name as a part of the assets sold, and that an injunction would lie to restrain the use by the corporation (which had sold all its assets) of its former corporate tended to confusion and to enable such corporation- or name, when the continued use of the corporate name firm to obtain, by reason of the similarity of names, the business of the purchasing corporation or firm.
We reaffirm that holding; but it does not apply here, for the reason that Bohannon did not sell all the assets of the Bohannon Canning Company, and certainly did not sell the gpod-will and corporate name of that company. This is conclusively shown by the fact that the mortgage given to secure the unpaid purchase money employed the same description of the property sold as was employed in the contract of sale, and the mortgage was given to the Bohannon Canning Company. Certainly Peterson did not intend to give a mortgage to a corporation which he had just purchased to secure the payment of a balance of purchase money for that corporation. To do so would be to give a mortgage to himself or to a corporation which he owned. Peterson did not operate as the Bohannon 'Canning Company, but reincorporated as the Bohannon Canning Company, Inc.
Moreover, the contract of sale did not recite that Peterson had purchased the good-will of the Bohannon Canning Company, nor did it recite that he had purchased all the assets of that corporation, as did the contract in the Terry case, supra. It did recite that Peterson had purchased a “Certain canning factory consisting of equipment used for canning spinach (and other vegetables)” located at 104 Cane Hill Street in the city of Van Burén, and the property purchased was there then “more particularly described as follows:” and there follows an enumeration of the property purchased, which did not include the good-will of the Bohannon Canning-Company. Had Peterson purchased all the assets of the Bohannon Canning Company he would have acquired, as part of its assets, its good-will and the right to use its name; but, as has been said, he did not do so. Peterson did not proceed to use the name of the Bohannon Canning Company, but reincorporated under the name of Bohannon Canning Company, Inc.
• We are confirmed in the view that Peterson did not purchase the name and good-will of the Bohannon Canning Company by the testimony recited, and additional testimony to the following effect. The Bohannon Canning Company had on hand a large amount of property belonging to it which Peterson admittedly did not buy. It had from twelve to twenty thousand dollars worth of supplies, consisting of cans, labels, boxes, salt, etc., and had on hand $150,000 worth of canned merchandise, most of which was stored in the'canning factory at 104 Cane Hill Street. Bohannon testified that it was understood and agreed that he should have the right to dispose of this property, and the contract did not attempt to restrict that right. It was stipulated in the contract that “It is further agreed and understood that the party of the second part may use Bohannon ’Canning Company labels so long as he may desire. ” This is a meaningless stipulation if Peterson had acquired the sole right to use these labels. The undisputed testimony is to the effect that the Bohannon Canning Company had on hand when the contract of sale was executed $6,000 worth of labels, and $150,000 worth of canned goods on which to use them.
Now, it was recited that Peterson might purchase these supplies at an agreed price, but the right to purchase these supplies was optional, and not obligatory, and he declined to purchase any of the cans. Peterson did purchase and pay for some of the labels, but Bohannon explained that it was agreed that Peterson should have this right “so long as he (Peterson) may desire,” and the contract so provides, but that Peterson, whose initials are E. L., prepared a label of his own after Peterson got started, and that Peterson began to work out his own label, using the initials E. L. and the first four letters of his surname, making “Elpete” his label.
There was confusion, but the confusion appears to have largely, arisen from Peterson’s failure to use his own labels and bis permissive use of the labels of the Bohannon Canning Company. Bohannon explained that this permissive use was given for the reason that he wanted to assist Peterson to begin operations without extensive capital outlay. The men were friends and each sold the other his canned products, and Bohannon sold such of the supplies of the Bohannon Canning Company as Peterson cared to buy.
We think it clear, and we find the fact to be, that each of these parties intended to continue in business and that neither would operate as Bohannon Canning Company, and neither did so. Bohannon did use letterheads and billheads on hand on which the name Bohannon Canning Company was printed, but in each instance of such use he had crossed out the words “Canning Company” and with a red rubber stamp stamped the letters “O. W.” before the name “Bohannon” and the abbreviation “Inc.” after the name “Bohannon,” so that the letterheads and billheads always read “0. W. Bohannon, Inc. ’ ’
This, we think, under the facts recited, did not constitute a violation of any contractual or common-law right of Peterson, and the decree, dismissing the complaint of Peterson as being without equity, is affirmed. | [
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Carleton Harris, Chief Justice.
This is a Workmen’s Compensation case. Carl D. Hopper, appellee herein, was, on December 22, 1965, an employee of West Tree Service, Inc., and was working with a tree-trimming crew near Bentonville, Arkansas, engaged in trimming trees and brush along a telephone company right-of-way. The crew consisted of five persons, including claimant and the foreman, Lee Perry. After eating lunch together, and before returning to work, Perry took a .22 rifle from the truck the men were using in performing the work, and fired it at a tin can; the rifle was then handed to J. C. Jones, an employee, who also fired it, and handed it to appellee. When Hopper fired the rifle, the breech lock slipped, and a shell exploded, causing injury to, and eventual loss of sight of appel- lee’s right eye. Hopper filed a claim for compensation, which was denied by the referee. This finding was appealed to the full commission, which affirmed the decision of the referee, finding that the accident did not arise out of appellee’s employment. On appeal to the Benton County Circuit Court, the commission was reversed, the court finding that the injury did arise out of the employment. From this judgment, appellants, West Tree 'Service and Tri-State Insurance Company, bring this appeal. For reversal, it is simply asserted that the commission’s holding that the injury did not arise out of the employment is sustained by substantial evidence, and the ’Circuit Court, therefore, erred in reversing that finding.
On the aforementioned date, the crew had returned to the job site after having lunch, and Perry took the rifle from the truck (where he had placed it two or three days before) for the purpose of aligning the sights, if this adjustment were needed. He fired the rifle one time. According to Perry, Hopper asked if the others could shoot, and the foreman consented for this to be done. As previously stated, he passed the rifle to one of the crewmen, Jones, who fired it, and Jones then handed it to Hopper, who, upon firing it, received the injury. Hopper denied that he had asked to shoot the rifle, stating that he neither said that he wanted to shoot it or didn’t want to shoot it; however, admittedly, he was not directed to fire it, and he agreed that he could have turned down the invitation to shoot if he had so desired. Most of the workmen testified that the suggestion for firing the gun came from Perry, and they said he gave each man a shell to be used, but it is apparent from the evidence given by the workers that the matter of shooting the rifle was a voluntary act on the part of these employees; i. e., they did not feel that they were being ordered, or compelled, to discharge the firearm. The crew ordinarily took approximately thirty minutes for lunch; on this particular day, that time had been exceeded, but the foreman had not ordered the men back to work. The rifle was the personal property of Perry, and there is no contention by appellee that it had previously been used in any manner by the members of the crew, either.»for recreation, or while engaged in trimming trees and bushes along the telephone company right-of-way.
In reversing the commission, the trial court held:
“The Court further finds that the injury arose out of the regular course of employment in that it would only be natural to expect young men working in the out-of-doors trimming trees to engage in normal recreation during rest periods, which are common and incident to out-of-doors living, including the firing of a .22 rifle.
“The Court further finds that the rifle belonged to the foreman of the claimant and that claimant was encouraged to participate in this form of rest, recreation and relaxation during the rest period and that such rest, recreation and relaxation during the rest period was of benefit to the employer.”
We do not agree. There is nothing in the record to suggest that the company should have expected these employees to shoot at tin cans with a .22 rifle during either a work period or during a lunch break. It might also be pointed out that the evidence is conclusive that this activity had never been engaged in previously. Ap-pellee cites the case of Southern Cotton Oil Division v. Childress, 237 Ark. 909, 377 S. W. 2d 167, which was a case involving the death of an employee while engaging in “horseplay” with a fellow employee. Strictly speaking, this is not a horseplay case, but if it be so considered, there are important distinctions between the two. In the first place, the work had commenced when the horseplay started between Childress and the other employee. In the next place, the instrument that caused the fatal injury was an air hose which was used in the employment. Still further, these employees had previously, on five or six occasions, engaged in these friend ly; “scuffles.” It is at once apparent that these circumstances, pertinent to recovery in the Childress case, are not here present, and it might also he added that no fellow employee caused Hopper to receive the injury since the firing of the weapon was a voluntary act on his part.
Appellee seems to depend, in large measure, upon the fact that the foreman was present, participating in, perhaps encouraging, but, at least, acquiescing in the act that precipitated this claim. Let it first he said that we attach no more significance to the fact that the foreman owned the rifle, and first commenced using it, than if it had been one of the other employees. Certainly, the firing of the rifle was not connected in any manner with the work of the crew or the foreman, nor did it in any manner advance the interests, or inure to the benefit, of the "West Tree Service 'Company. Of course, an employer is charged with the knowledge of his representative concerning matters within the scope of employment of the employer’s representative. In Texarkana Telephone Company v. Pemberton, 86 Ark. 329, 111 S. W. 257, this court said:
“Notice to the wire chief (he being a vice-principal) of the dangerous condition of the wires [the telephone lines] was notice to the company.”
As stated in 35 Am. Jur., Master and Servant, §, 364, p. 789:
“ * * * The employer, also, is charged with the knowledge of such representative concerning the condition of the employer’s plant, his appliances, etc., at least so far as that knowledge was gained in the course of employment and the representative is not acting adversely in such way as to rebut any presumption of divulgence to the employer.”
However, the decisive and controlling point in this litigation is how we answer the question, “Did Hopper’s injury arise out of his employment?” The answer is definitely, “No.” Numerous cases are cited by appellants involving injuries to employees sustained from firearms, and where claims for compensation were filed. In these cases, benefits were denied because of the fact that the accident bore no relationship whatever to the nature of the employment. In the Mississippi case of Earnest v. Interstate Life and Accident Insurance Company, 119 So. 2d 782, the appellant was employed by a life and accident insurance company to solicit and sell insurance policies. Earnest drove to the home of a prospect for the purpose of taking him to a doctor for a medical examination (pursuant to selling a policy). The prospect requested appellant to wait until he could shave. While waiting, appellant observed the prospect’s son, with whom he had previously discussed a policy of insurance, working near the barn. He walked a short distance toward the son, then returned to his car, picked up his shotgun, and lifted the gun from the auto, for the admitted purpose of shooting a crow. After taking about four steps toward the son, the gun accidently discharged, and struck Earnest in the left ankle, as a result of which the lower part of the leg had to be amputated. The Workmen’s Compensation Commission denied coverage, and on appeal, the Mississippi Supreme Court affirmed, stating:
“An injury arises out of the employment when there is- a causal connection between it and the job. 58 Am. Jur., Workmen’s Compensation, Sec. 211; Brookhaven Steam Laundry v. Watts, 1952, 214 Miss. 569, 55 So. 2d 381, 59 So. 2d 294. Claimant was not required to carry the gun. Its possession by him when it discharged was not connected with his employment. The injury did not arise out of the employment. * * *
“Earnest admitted he carried the gun for his own personal pleasure, and it had no connection with his job. The risk was unrelated to the employment* * *.”
In the instant litigation, the aligning of the sights and firing of the rifle were entirely alien to the employment.
Onr own case of Woodmansee v. Frank Lyon Company, 223 Ark. 222, 265 S. W. 2d 521, is somewhat pertinent to the case at hand. There, Woodmansee, a high-ranking employee, and some furniture salesmen for the company went on a duck hunt, and Woodmansee was injured. The background is set out in the court’s opinion:
“Sometime during November, 1951, a duck hunt for the salesmen was proposed in lieu of one of the regular Saturday morning sales meetings. It is not clear whether appellant or the president of the Company originated this proposal but at any rate it was made with the consent of all concerned. O. A. Mallett, a vice president, said appellant first mentioned the hunt and appellant says he thinks Mr. Lyon did, although he was not positive. In all events appellant brought the matter up in one of the meetings and Saturday, December 1, 1951, was selected by all present as a convenient date for the hunt. While, as above stated, salesmen were required to attend the regular Saturday morning sales meetings yet it seems to be agreed that no salesman’s job would have been materially affected if he had declined to go on the duck hunt. It is not seriously denied by anyone that such an outing by the salesmen would have some tendency to build up their morale.
“Just before leaving one of the salesmen decided that he could not make the trip because of illness, but appellant and the other four salesmen went in cars belonging to appellant and to Mr. O. A. Mallett. While appellant was engaged in hunting ducks he stumbled and fell, causing, as he contends, a serious injury to his back.”
After a rather lengthy discussion, and the citing of numerous decisions, this court said:
“ (a)' Even though it was desirable on the part of appellant and the company that the salesmen should all go on the -duck hunt, yet it can not be said that they were required to go, and it is not contended that the company required appellant to go. The Commission was justified in finding that appellant himself proposed the trip, and it also appears that all of the salesmen were enthusiastically in favor of it.
“(b) So far as the record reflects this is the first time that appellant and the salesmen , had ever hunted ducks on the company’s land. It can not be argued therefore that this recreational activity was a part of their employment or that it was a plan or system of recreation to be habitually indulged in. * * *
“In view of what has been said we affirm the judgment of the trial court which in turn affirmed the findings of the Commission.”
In the case before us, to paraphrase Woodmcmsee, it is undisputed that Hopper was not required to fire the rifle, and, in fact, this is not even contended. The commission was justified in finding that this wás a voluntary act on his part. The record reflects that this is the first time that this activity was engaged in, and it cannot be successfully argued that it was a part of the employment or that it was a plan or system of recreation to be consistently indulged in.
It is evident, from what has been said, that we are of the view that the court erred in reversing the commission.
Accordingly, the judgment of the Benton County Circuit Court is reversed, and the cause is remanded to that court with directions to reinstate the order of the commission. | [
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McHaney, J.
Appellant is engaged in the life insurance business, being the manager of the Gfuardian Life Insurance 'Company. He employed appellee, Jenkins, as an agent to solicit applications for life insurance for said company as .a subagent under him. He required said Jenkins to give a bond, conditioned as follows:
“If the agent shall faithfully discharge the duties as agent of the company, under present appointment or any future appointment, or in any other capacity in which he may hereafter be employed by the company, and shall, upon demand, pay over and account for all moneys and other property belonging to the manager or to the company, including any advances or other indebtedness, and shall at all times have and keep the manager and company harmless from any loss or damage growing out of collections made by the agent or his agents, or out of any misconduct or violation of any of the terms of said contract, then this obligation shall be null and void; otherwise to remain in full force and virtue. And it is expressly understood and agreed that the duties and emoluments of the agent may be altered or varied, or he may be reappointed, or be employed in any other capacity from time to time without notice to us or any of us.”
This bond was executed by Jenkins as principal and appellee, McCord, as surety. This arrangement began in the early part of 1924 and continued until the fall of that year, when Jenkins ceased working for appellant. Appellant -brought this suit against appellees to recover the sum of $220.98, being the amount of moneys advanced appellee, Jenkins, from time to time, less commissions earned. Appellee admitted that he had been advanced the sum of $270 by appellant, but claimed that the commissions earned by him on policies written amounted to $275.36, which was more than sufficient to cover the advances made. The only controversy with reference to the account appears to arise because of notes taken for the Frank Schonebeck policy, on which the commission, if paid, would amount to $164.20, and the Elgin L. Byrnes policy, the commission on which amounted to $22.44, for both of which notes appear to have been given. With reference to the Byrnes policy, appellant charged appellee with $22.44, and on August 11, 1924, credited his account by note from Byrnes in the sum of $22.44. This appears to be a cross entry, and by reason thereof appellee has not been credited with any commission on this policy. "We are unable to tell from the evidence whether this note was paid, and, if so, we do not find any further credit in appellee’s account for the commission thereon.
With reference to the Schonebeck notes, none of them were ever paid, and appellant charged in his account against appellee $36.95 as the net amount paid the company for the time the policy was in force. However, it dismissed this item from its account, and is not claiming that it has the right to charge appellee therewith.
We do not'think appellee is entitled to any commission on the Schonebeck policy, as the notes were never paid. The contract between them plainly provides that a commission is to be paid only on premiums actually collected and accounted for in cash, paragraph eight of the contract being as follows: “The principal will pay the ag'ent, in full compensation for all his services, commissions as shown by the following schedule, on premiums actually collected and accounted for. in cash by him, to the principal, during the continuance of this appointment, on policies issued upon applications effected by the agent in said territory. ’ ’
While it is true that the Schonebeck notes were taken by reason of the authority of appellant, yet this did not have the effect to change the commission agreement, as above set out. True, he was authorized to write the Schonebeck application for a policy, and to accept notes for the premium, but nowhere in the evidence dp we find that appellant agreed that such notes should be treated as cash and that appellee’s commission should'be paid, regardless of whether the notes were collected. This being true, we are of the opinion that the written provision in the contract of employment providing for the payment of commissions, is controlling, and that appellee, Jenkins, would not be entitled to a commission until such notes were actually paid.
The court therefore erred in giving instructions Nos. 1, 2 and 3 at the request of appellee. For the errors indicated the judgment will be reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
On May 17, 1926, appellant instituted suit in the chancery court of Union County, alleging ownership of the north half of the northwest quarter 'of section 19, township 17 south, range 16 west, in said county, and seeking the cancellation of all title instruments, together with the record thereof, held by appel-lees to said land, and for an accounting of rents and profits thereon from appellee, W. E. Jackson, who had control and possession of said land.
Both appellant and appellees claim title from the same source. Appellant claims title by inheritance from her father and by quitclaim deed from her sisters and brothers to their undivided interests which they also inherited from him. Appellees claim title to the land through anesne conveyances from appellant’s father, who executed and delivered a mortgage deed on said land to W. A. Barksdale, which was subsequently sold under the power in the mortgage deed and purchased by Barksdale.
Appellant based her action upon the ground that the land in question was her father’s homestead at the time he executed the mortgage deed therefor to W. A. Barksdale, and that her mother did not join in the execution thereof, as required by the homestead act of 1887.
Appellees interposed the defenses, first, that appellant’s mother died before the delivery of the mortgage to ¡Barksdale; second, that the mortgage and proceedings therein were validated by the curative act of 1923; third, that appellant was barred by the two-year and seven-year statutes of limitation and by laches.
The cause was submitted to the court upon the issues joined and the testimony adduced by both appellant and ¡appellees, which resulted in a decree that appellant’s complaint be dismissed for the want of equity, because of laches, and quieting title to said land in appellees, W. E. Jackson and'Susan Jackson, from which decree an appeal has been duly prosecuted to this court.
The facts disclosed by the record are, in substance, as follows: J. W. Shaw, the father of appellant, owned and resided on the land in question with his family until the fall otf 1903, at which time he took a part of his personal property and household goods and went to live with his daughter in Louisiana, on account of the Parnell feud which disturbed Union County. He left a part of his property cn his homestead, with the expectation of returning when the feud should abate. While living with his married daughter in Louisiana, Shaw returned to Union County and borrowed $150- from W. A. Barks-dale, a neighbor, which he agreed to secaré by a deed of trust on his homestead. After borrowing the money he returned to Louisiana. According to the testimony of Barksdale, the mortgagee, 'Shaw, took the unsigned mortgage deed back with him for the purpose of executing it. According to the testimony of W. H. Wilson, Barksdale sent the mortgage by him to 'Shaw for execution after he returned to Louisiana. The mortgage deed was dated January 8, 1904, but was not signed by Mrs. Shaw, the mother of appellant. 'She died on January 26, 1904, and was brought back to the neighborhood of the homestead to be buried. Mr. Shaw did not return with the corpse, on account of illness himself. He was confined to his bed with the measles. .W. A. Barksdale testified that the mortgage deed was sent back and received by him at the. time Mrs. 'Shaw was buried. He testified that it was brought to him by W. H. Wilson. W. H. Wilson remembered taking* the mortgage deed to Louisiana, but had no recollection of how or when it was returned to W. A. Barksdale. On October 16, 1904, Shaw was shot and killed on his homestead, bo which he had returned. The small children went to live with their married brothers and sisters after their father’s death. After the death of her father and mother, and while appellant was about two years of age, W. J. Pendleton, the trustee named in the mortgage, purchased same, at a sale under power contained in the mortgage, the date being June 22, 1905. The trustee executed a deed to W. A. Barksdale under the mortgage foreclosure, on December 6, 1906. Appellees and their predecessors in title remained in possession and control of the land after receiving the trustee’s deed under the mortgage foreclosure, and have continuously paid the taxes thereon. Appellant’s brothers and sisters conveyed their interest in said real estate to her by quitclaim deed in 1922. On October 2, 1923, appellant became twenty-one years of age, and instituted this suit within three years thereafter. We deem it unnecessary to a determination of the cause to more-fully state the facts.
The testimony detailed above reflects that the mortgage deed upon which appellees rely as the basis of their title was not delivered to W. A. Barksdale until after the death of 'Sariah Jane Shaw, the mother of appel lant. Although Barksdale and Wilson disagree as to the time the mortgage deed was delivered, yet the testimony uf both reflects that it was not executed by Shaw at the time he came back to Arkansas to borrow the money. It was not signed and acknowledged until after Shaw returned to Louisiana. He either took it back to Louisiana himself for execution, or Wilson took it down there to him for the purpose of execution, at the instance of Barksdale. Mrs. Shaw did not sign and acknowledge the mortgage, presumably on account of her last illness. Barksdale testified positively when it was delivered to him. Wilson had no recollection of how or when it was returned to Barksdale. Under the circumstances, the positive testimony >of Barksdale should govern as to the date and delivery of the mortgage. Not having been delivered until after the death of Mrs. Shaw, its validity was not affected by the homestead act of 1887. It became a valid conveyance from the date of delivery without her signature. This court said, in the case of Graham v. Suddeth, 97 Ark. 283, 133 S. W. 1033, that: “A deed is defined to be a written instrument, signed, sealed and delivered; and it is essential to the validity of the deed that there should be a delivery of the instrument.” And also stated in the case of McDonald Land Co. v. Shapleigh Hardware Co., 163 Ark. 524, 260 S. W. 447, that: “In pursuance of the agreement between the grantor and the grantees, that these deeds should be executed for the consideration as above mentioned, the deeds were signed by Mrs. Bob McDonald at Paragould, Arkansas, January 28, 1922, and taken by her to her husband, who was then at Havana, Cuba, where he signed and acknowledged the deeds, February 11, 1922, and on that day mailed the same to the respective grantees. These facts constitute in law a delivery to and acceptance of the deeds by the grantees on the 11th day of February, 1922.” In consequence of this view of the law and the evidence, it is unnecessary to determine the other issues in the case.
No error appearing, the decree is affirmed. | [
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Wood, J.
On .April 13, 1922, the Prudential Insurance Company of America, hereafter called company, issued two insurance policies to Edwin M. Telle, each in the sum of $5,000, insuring his life in favor of the Alexander Refining Company, Inc. Each of the policies contained the following provision:
“Change of beneficiary. If the right to change the beneficiary has been reserved, and if the insured shall have attained, to majority according to the laws of the State in which insured resides, the insured may, at any time while this policy is in force, by written notice to the company at its home office, change the beneficiary or beneficiaries under this policy, such change to be subject to the rights of any previous assignee and to become effective only when a provision to that effect is indorsed or attached to the policy by the company, whereupon all rights of the former beneficiar}'- or beneficiaries shall cease.”
The right to change the beneficiary was not reserved in either one of the. policies. On October 14, 1925, the company, at the request of Telle and of the beneficiary named in the policies, exchanged the beneficiary named by substituting the “executors, administrators or assigns” of the assured, instead of the beneficiary originally named. Telle 'Obtained a loan on the policies in the sum of $638. In a financial statement made December 18,1926, by E. M. Telle to the Exchange Bank & írust Company of El Dorado, Arkansas among other things, is the following: “Life insurance carried for $15,000. Beneficiary, wife.”
On January 11, 1927, Telle executed his last will and testament, which, among other things, provides':
“I have made my beloved wifé, Bernice Phillips Telle, the beneficiary of three life insurance policies of $5,000 each (giving the date and number of the policies). All of these policies are in the Prudential Insurance Company of America. ■ There is a loan of about $1,200 to be deducted from the total of $15,000. -T request that from the proceeds she shall pay the National Bank of Commerce of El Dorado $7,500, due March 5, 1927. This is the amount that they have loaned Mrs. Telle on her house, No. 825 West Main Street, El Dorado, Arkansas. She loaned this amount to me, which I used in my business. * * * I appoint Mr. N. L. Webster of El Dorado, Arkansas, as agent to wind up the business. I regret exceedingly that some heavy investments in the year 1926 proved to be unprofitable and so depleted my cash balance to such an extent that I am unable to continue in business any longer. There will be a loss to the creditors, because the property will not sell at a forced sale for the actual cost price.”
On the 12th day of January, 1927, Telle committed suicide at the Marion Hotel, Little Rock, Arkansas, while the policies of insurance named in the will were in full force and effect. On the 18th of January, 1927, the will of Telle was duly probated, and letters testamentary were issued on January 19, 1927, to N. L. Webster, the executor named in the will. Proof of death was sub mitted to the company, and it admitted liability on the two policies in the sum of $9,435.46. Webster demanded payment of the amount due under the policies as executor of the estate of Telle. Mrs. Bernice Telle, the widow, demanded payment to her of the amount due under the policies.
On April '26,1927, the company instituted this action in the Union Chancery Court, naming* the executor and Mrs. Telle as defendants. It admitted its liability under the policies and its willingness to pay the same to the person legally entitled thereto, and tendered into court the sum, of $9,435.46, and prayed that Webster and Mrs. Telle be required to interplead for the funds in order that their respective rights be determined and that the company might pay the sum due under the policies to the person adjudged by the court to be entitled thereto.
N. L. Webster and Mrs. Telle each filed an' inter-plea for the funds. Webster alleged that he was entitled to the funds under the will, in which he was named executor, and under the policies, by the terms of which the sums due under same were to be paid to him as executor. Mrs. Telle alleged that she was entitled to the funds as the beneficiary under the terms of the will, naming her as the sole beneficiary, and under the terms of the policies on the ground, as she alleged, that Telle, during* his lifetime, had assigned and delivered the policies to her as security for certain money she had loaned him, and which was due at the time of his death. She further alleged that Telle, during his lifetime, by written declaration and by the solemn declaration made in his will on the day before his death, had made her the beneficiary in the policies. She alleged that any reasonable method adopted by her husband to make her the beneficiary under the policies would legally change the beneficial interest to her, and that she was entitled to recover both as equitable assignee and as substituted beneficiary.
Webster replied to the interplea of Mrs. Telle, denying its allegations.
It was conceded :by the executor and Mrs. Telle that the sum of $9,435.46 was due under the policies, and this amount was paid by the company into the registry of the court, and the company was discharged from further liability under the policies. The action progressed between the interpleaders, the executor and Mrs. Telle, as to which of them was entitled to the fund in court. The cause was heard upon the pleadings and exhibits, the depositions of witnesses and an agreed statement of facts, and the court found in favor of Mrs. Telle, and rendered a judgment accordingly in the sum of $9,435.46, with interest; from which judgment N. L. Webster, the executor, duly prosecutes this appeal.
Learned counsel for the appellant, in their excellent brief, say: “There are but two issues involved in this appeal. The first issue is: Was there a change of beneficiary in the two life insurance policies in favor of appellee, prior to the death of Edwin M. Telle, the assured? The second issue is: Was there a debt owing by the assured at the time of his death to the appellee, and was there an assignment of the insurance policies to secure that debt?”
'The conclusion we have reached on the first issue as stated by counsel makes it unnecessary to set out all of the testimony adduced on the second issue. The original beneficiary named in the policies was the Alexander Refining Company, Inc., which, at that time, was the employer of the assured, Edwin M. Telle.'
The policies contain, among others, the following provision: “If there be no beneficiary .living' at the death of the insured, the amount of insurance payable shall be paid to the executors, administrators or assigns of the insured, unless otherwise provided in the policy. The right to change the beneficiary has not been reserved by the insured. ” Notwithstanding this provision of the policies, that “the right to change the beneficiary has not been reserved by the insured,” it will be observed that the parties to the insurance contracts, to-wit, the insurance company, the Alexander Refining Company, ’ the beneficiary, and Edwin M. Telle, the insured, on October 14, 1925, agreed to change, and on October 19, 1925, did change the beneficiary from the refining company to “the executors, administrators or assigns of the insured.” In making the change the provisions of the policies in regard to the change of beneficiary as set out above were followed. The parties therefore to the contracts of insurance seem to have treated the provisions of the policies with reference to change of beneficiary, where there was a change, as binding. Therefore, if it could he said that there had been a change in the beneficiary of the policies from the executors, administrator or assigns of the insured to the appellee, Mrs. Bernice Phillips Telle, then we would be inclined to follow the provisions of the contracts of insurance as construed by the parties themselves in order to effectuate such change. For the law is that, “when the parties to a contract have given it a particular construction, such construction will generally be adopted by the court in giving effect to its provisions, and the subsequent acts of the parties showing the construction they have put upon the agreement themselves are to be looked to by the court, and, in some cases, may be controlling.” 9 Cyc. 588; 6 R. C. L. 862. But, as we construe the “change of beneficiary” clauses in these insurance contracts, there has been no change of beneficiary since the change was made from the refining' company to that of “executors, administrators or assigns of the insured.” • The beneficiary in the policies at the time of Telle’s death, if there had been no assignment of the policies, was his executor, the appellant. But, if the policies had been assigned bjr Telle to his wife, then the beneficiary was his assignee, Bernice Phillips Telle, the appellee.
This brings us to the question — and, as we view it, the only question — necessary to be decided in the case, to-wit, whether or not the beneficial interest under the policies -had been assigned by the assured, Edwin M. Telle, to his wife, Bernice Phillips Telle. The provision in the policies of insurance with reference to the assignment of such policies is as follows: “Any assignment of this policy must he in writing, and the company shall not be deemed to have knowledge of such assignment unless the original or a duplicate thereof is filed at the. home office of the company. The company will not assume any responsibility for the validity of an assignment.” This provision of the policies was not complied with by the assured, and the appellant therefor^ contends that there was no assignment of the policies. But the appellee contends that she was the assignee under the policies under an oral and equitable assignment thereof.
The competent testimony on this issue is substantially as follows: The appellee testified that the policies had been in her possession ever since three or four days before she executed a mortgage to the National Bank of Commerce, on January 5, 1926, at which time she examined each of the policies, and they are the policies which were delivered to her. She kept the policies a few days, hut did not have any place to lock them up. She next saw the policies of insurance after her husband’s death. The mortgage she referred to secured a loan by her from the National Bank of Commerce at El Dorado, Arkansas, in the sum of $7,500, due six months from date. ' The property contained in the mortgage constituted her individual property. She did not get the $7,500 for which the mortgage was executed, but her husband took the money and used it in carrying on his business. The insurance policies were delivered to her by Mr. Webster, after her husband’s death, wrapped in his will, in a package sent to her from Little Rock, Arkansas, and addressed to her, and when she opened it there were these two policies and the will. No part of the $7,500 which she loaned her husband in 1926, which was borrowed from the National Bank of Commerce of El Dorado, and for which he gave a mortgage on her El Dorado home property, had ever been paid to her.
The appellant, Webster, testified that the two life insurance policies were delivered to him by the coroner of Pulaski County, in a bundle with other papers. He delivered the insurance policies and all the papers 'in the package to Mrs. Telle, personally. He did this for the reason that there was a note left by Mr. Telle instructing that these papers be delivered to her.
The declaration in the financial statement made to the Exchange Bank & Trust Company by Telle, to the effect that he carried life insurance for his wife as bene-, ficiary in the sum of $15,000, and also the statement in his will to the effect that his wife was the beneficiary of three life insurance policies in the sum of $5,000 each, have already been set forth. We are convinced that the above testimony is amply sufficient to justify a finding that, as between Telle and his wife, Telle had assigned the insurance policies to her. It was unquestionably the intention of Telle that the amounts due under these policies at the time of his death should be paid to his wife, the appellee. The evidence is susceptible of no other conclusion. True, Telle did not use in his will and in his financial statement the technical word “assign” in referring to the beneficial interest under the policies, but his meaning is clear that he intended that his wife should have the amount of the policies and that he had already made this provision for her. The testimony of Mrs. Telle shows that the policies had been delivered to her prior to Telle’s death.
Now, the creditors of Telle had no interest whatever in his insurance policies as long as Telle was alive, because, as long as he was living, he had the right to assign the policies to whomsoever he desired, provided the assignment did not involve an illegal, fraudulent, or-wager transaction. His life insurance policies were choses in action, which he had the perfect right to assign for a money consideration, or to give away. As was said in New York Mutual Life Insurance Company v. Armstrong, 117 U. S. 591, 6 S. Ct. 877, 29 L. ed. 997: “A policy of life insurance without restrictive words is assignable by the assured for a valuable consideration equally with any other chose in action, where the assignment is not made to cover a mere speculative risk and thus evade the law against wager policies.” And in Page v. Metropolitan Life Insurance Co., 98 Ark. 340, 135 S'. W. 911, we said: “A life policy is a chose in action, a species of property, which the holder may have perfectly good and innocent reasons for wishing to dispose of. * * .* The insured had the same right to give.as he had to transfer the policy for a valuable consideration.” See also Matlock v. Bledsoe, 77 Ark. 60, 90 S. W. 848.
There is nothing in this whole record to indicate any fraud in the assignment by Telle of the policies in controversy to his wife. On the contrary, the provision he thus made for her by the assignment of his policies, under the circumstances which surrounded him, was exceedingly commendable. The amount of the policies which he maintained and which he assigned to her was certainly not indicative of any fraudulent purppse to deplete his estate to. the injury of his creditors, but rather only to protect the one who was nearest and dearest to him, and who had rendered him every financial and other assistance in her power, and who, above all others, had an insurable interest in his life. Although there was no written assignment of the policies in controversy by Telle to Mrs. Telle, yet, as we have seen, there was an oral, and therefore an equitable, assignment of such policies. In Citizens’ Bank v. Moore, 134 Ark. 554, 204 S. W. 619, we said: “We think the direction for a change in the beneficiary for the purpose of effecting an assignment thereof, together with the delivery of the original policy, constituted an equitable assignment, though not formally made in writing. Parol assignments of insurance policies, when accompanied by deliv ery, are sustained as equitable assignments thereof (Citing eases).” 'That doctrine is applicable to the facts of this record.
But learned counsel for appellant contend that, under the written provisions of the policies set out above with reference to assignments, the policies could not be orally assigned. The language of this provision of the policies shows that it was made for the benefit of the company and not for the benefit of the beneficiary named, or for the assured, his executors, administrators or assigns.
In Cooley’s Briefs on Insurance, vol. 2, page 1812, it is said:
“ Though it is true in a general sense that, in order to effectuate an assignment of a policy, or any part of it, the terms and conditions imposed by the policy to accomplish that purpose must be complied with (Metro. Life Ins. Co. v. Zgliczenski, 94 N. J. Eq. 300, 119 A. 29), it is nevertheless a general rule that, where a company makes no objection to an assignment on account of a failure to comply with its rules in relation thereto, and the assignment is otherwise valid as. between the parties in interest, no objection can be raised by any of them on account of such formal deficiencies.”
To support the text the following cases are cited: Conway v. Supreme Council Catholic Knights of America, 131 Cal. 437, 63 Pac. 727; Diffenbach v. New York Life Ins. Co., 61 Md. 370; Hewlett v. Home for Insurables, 74 Md. 350, 24 Atl. 324, 17 L. R. A. 447; Brierly v. Equitable Aid Union, 170 Mass. 218, 48 N. E. 1090, 64 Am. St. Rep. 297; Burgess v. New York Life Ins. Co. (Tex. Civ. App.), 53 S. W. 602; Kendall v. Morrison, 33 Tex. Civ. App. 345, 77 S. W. 31. See also New York Life Ins. Co. v. Rosenheim, 56 Mo. App. 27, “where the decision was placed rather on the ground of estoppel.”
It is the established doctrine of this court that provisions in a policy of insurance made for the benefit of the insurer may be waived by such insurer. Ætna Life Ins. Co. v. Duncan, 165 Ark. 395-407, 264 S. W. 835. We are aware of the doctrine announced by this court to the effect that the change of -beneficiary in a benefit certificate issued by a fraternal or mutual benefit society cannot be made by the insured unless there is substantial compliance with the by-laws and regulations of the society. Wilkes v. Hicks, 124 Ark. 192, 186 S. W. 830; Robinson v. Robinson, 121 Ark. 276, 181 S. W. 300; Sovereign Camp W. O. W. v. Israel, 117 Ark. 121, 173 S. W. 855; Caruth v. Clawson, 97 Ark. 50, 133 S. W. 178. Counsel for appellant invoke the doctrine of the above ’ cases to sustain their contention that there was no assignment of the policies in the case at bar because the assignment was not in writing, as the policies require. 'But the doctrine of these cases has no application to ordinary life insurance contracts or policies issued by standard old-line life insurance companies. While the benefit certificates of fraternal and mutual benefit associations insuring the lives of their members are contracts of insurance upon which such societies or associations are liable to the holders and beneficiaries of such certificates, nevertheless the character of the contracts is wholly different from those of old-line -standard life insurance companies. The fraternal, mutual benefit associations are what their names imply. Their policyholders are the only members of the society. The'-obligations of their -policies are discharged by assessments upon their members, -and all -of the members -are mutually and reciprocally interested in the conduct and management of the society according to the constitution and b-y-laws which they have framed and adopted for the government and conduct of the association to which they belong.
Mr. Niblack, speaking of mutual benefit societies, says : “A society may provide that its contract of insurance may be assigned and transferred only with the consent of the society indorsed thereon. * * * The right of the contracting parties to thus prohibit an assignment of the certificate without the consent of the society cannot be .seriously doubted, and, in view of the restricted nature of the mutual benefit insurance, the propriety, if not the necessity, of such a condition is equally clear. The personal character of each holder of a certificate and the interest he may have in the life of the person thereby insured are essential elements in the contract of mutual indemnity.” Niblack, Accident Ins. & Benefit Societies, page 329, § 169. See also Vance on Insurance, page 400, where the author, after setting forth the relation existing between mutual benefit societies and their members, says.: “From this .statement of the relation between the mutual association and its members it is apparent that the contractual relation strikingly differs from that existing between regular insurance companies and their policyholders.”
In Robinson v. Robinson, supra, speaking of the rights of the members and policyholders to change the beneficiary, we said: “Manifestly, however, such a transaction requires some formalities for the protection of the company, the member, and the beneficiary, and these formalities must be-substantially complied with before the change of beneficiary becomes effective.”
The doctrine of Wilks v. Hicks, supra, and the other cases supra relied on by counsel for appellant, cannot be extended or applied to policies of insurance like those under review here. The rule applicable here is that announced by Mr. Cooley and the cases cited by him, and is forcefully stated by the Court of Appeals of Maryland in Diffenback v. New York Life Ins. Co., supra, as follows:
“Claiming, as the appellants do, under an assignment of policies of life insurance, the validity of which the insurance companies have not denied, but have paid the amounts .secured .by them into court for payment to whoever may be entitled, the legality of the transaction does not arise, as we think. The proceeds must be disposed of according to the equities of the complainants and defendants, respectively.”
As was said by Judge Mansfield, speaking for tbe court in McDonald v. Humphries, 56 Ark. 63, 19 S. W. 234: ‘ ‘ Tbe company, having paid the money into court, was released from liability to either of the parties, and had no further interest in the litigation. The question which remained for the decision of the court involved only a proper disposition of the fund as between the plaintiff and the other defendant.”
The assignment of the policies by Telle to his wife ipso facto made her, as his assignee, the beneficiary of those policies under their very terms. Thereafter, and at the time of his death, Telle had no interest therein, and of course the executor of his estate and the creditors had none, because they had only such rights as Telle himself had at the time of his death. In reaching the conclusion that the appellee, Mrs. Telle, was the assignee of Telle, and therefore the beneficiary of the policies, we have considered only the competent testimony in the record, or such only as the trial court should have considered under the rule announced in Latham v. First National Bank of Fort Smith, 92 Ark. 321, 122 S. W. 992, and Cox v. Smith, 99 Ark. 218, 138 S. W. 938, and Martin v. Manning, 124 Ark. 84, 186 S. W. 302. The appellee was a competent witness in her behalf, and she could testify to facts relevant to her rights, so long as she did not testify to transactions with or statements of the testator. As to these, to be sure, her testimony was incompetent. Constitution 1874, § 2 of the Schedule; Wilson v. Edwards, 79 Ark. 69, 94 S. W. 327; Carter v. Younger, 123 Ark. 266, 185 S. W. 435 ; Free v. Maxwell, 138 Ark. 489, 212 S. W. 325; § 4144, C. & M. Digest.
Under the above rule of the Constitution and statute, the testimony of the appellee, that she was in possession of the policies prior to the death of Telle, was competent and relevant. This testimony, in connection with the declarations made in the financial statement of Telle and in Ms will, to the effect that he had made his beloved wife, Bernice Phillips Telle, beneficiary in the policies, and the testimony of appellant himself, to the effect that he had delivered the policies to Mrs. Telle in accordance with directions contained in a letter written to him by Telle on the day the latter died, proved that the appellee was the beneficiary of the policies.
We do not concur in the statement of counsel for appellant that the declarations of Telle, above mentioned, in his financial statement and in his will, were the result of a disturbed and disordered mind. On the contrary, it occurs to us that these declarations but stated a truth in fact and in law. It was conceded by the appellant that Telle was an intelligent business man. As such, he must have known that, under the terms of the policies in controversy, he could not have made Mrs. Telle a .beneficiary merely by appointment, but that the only way she could be made beneficiary would be to assign the policies to her, which he had done. True, as before stated, he did not use the technical term “assignee,” but he did state that he had made her the beneficiary in the policies, which, in the light of the policies themselves, necessarily meant that he had assigned the policies to her. The only reasonable conclusion to be drawn from all this testimony is that Telle knew that he had assigned the policies to his wife, and that he was holding the same for her at the time of his death. There is no merit whatever in appellant’s contention that the appellee, in view of the above testimony, was but a pledgee of the insurance policies' instead of absolute owner thereof. There is nothing in the testimony to justify the conclusion that Telle; at the time he declared that his wife was the beneficiary in the policies, intended thereby to constitute her only a pledgee for the payment of his debts. On the contrary, we are convinced that, when he had declared that she was the beneficiary and gave her possession of the policies, he intended, by this act of assignment in parol, to constitute her the beneficiary and absolute owner of such policies. There is no competent testimony in the record tending to show that Telle had reserved any right to himself to revoke the parol contract of gift or assignment to his wife of the policies in controversy, and he never, up to the time of his death, asserted any such right. Therefore, at the death of Telle the rights of the appellee to the proceeds of the policies became fixed and binding- upon the executor of the estate, and neither he, nor any creditor through him, has a right to assert to the contrary.
The decree of the trial court so holding is correct, and it is therefore affirmed. | [
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Smith, J.
This is the second appeal in this case. The opinion in the former appeal appears in 203 Ark. 596, 157 S. W. 2d 761. It was there held that the purported bill of exceptions was not filed within the time and in the manner required by law, and as no error appeared upon the face of the record the judgment was affirmed.
It was alleged in the original complaint in this case that plaintiff’s intestate sustained an injury which caused his death while employed by the railway company, and suit was brought to recover damages therefor.
After the affirmance of the judgment, for the reason just stated, a motion was filed in the court below where the cause had been tried to vacate the judgment upon the ground that the court had no jurisdiction of the cause of action, and that the judgment was, therefore, void. Upon the hearing of this motion testimony was offered to the effect that the injured servant resided in Lonoke county, and was injured in that county, yet liis administratrix brought suit in Prairie county. It is alleged that under these facts the court was without jurisdiction to try the case, and the insistence is that the judgment should be vacated as having been rendered by a court having no jurisdiction of the subject-matter of the action.
Under the facts stated, the Prairie Circuit Court was without jurisdiction of the subject-matter. Fort Smith Gas Co v. Kincannon, Judge, 202 Ark. 216, 150 S. W. 2d 968; Terminal Oil Co. v. Gautney, Judge, 202 Ark. 748, 152 S. W. 2d 309; Kornegay v. Auten, Judge, 203 Ark. 687, 158 S. W. 2d 473.
When these facts were made to appear, the plaintiff should have been non-suited and the cause of action dismissed. But these facts were neither alleged nor admitted in the pleadings, and testimony was required to establish their existence.
Assuming that such facts were shown by the testimony at the original trial, a bill of exceptions would, nevertheless, be necessary to bring them into the record. In the absence of a bill of exceptions, it must be presumed — and the presumption is conclusive — that, if competent testimony could have been offered which would have sustained the judgment, such testimony was offered. A great many cases have announced and applied this rule of practice, and, among others, the following: Young v. Vincent, 94 Ark. 115, 125 S. W. 658; London v. McGehee, Trustee, 126 Ark. 469, 191 S. W. 10; Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151, 229 S. W. 25; Dixie Life & Accident Ins. Co. v. Leach, 197 Ark. 1072, 126 S. W. 2d 926.
In the case of Young v. Vincent, supra, Justice Hart said: “No bill of exceptions was filed or brought into the record. Where the record does not contain the evidence adduced at the trial, ‘every intendment is indulged in favor of the action of the trial court, and this court will presume that every fact susceptible of proof that could have aided appellee’s case was fully established. The salutary rule of law is that every judgment of a court of competent jurisdiction is per sumed to be right unless the party aggrieved will make it appear affirmatively that it was erroneous. ’ McKinney v. Demby, 44 Ark. 74; Hempstead County v. Phillips, 79 Ark. 263, 95 S. W. 133, and cases cited. ’ ’ •
In the case of London v. McGehee, Trustee, supra, Justice Wood said: “The uniform holding of this court is that where the record shows that the cause was heard upon oral testimony and that testimony has not been brought into the record by the bill of exceptions, this court will presume, on appeal, in favor of the finding and judgment of the trial court that every fact necessary to sustain the judgment was proved where evidence adduced at the proper time would have justified the court’s ruling. Railway v. Amos, 54 Ark. 159, 15 S. W. 362; Tucker v. Hawkins, 72 Ark. 21, 77 S. W. 902; K. C., Ft. S. & M. Ry. Co. v. Joslin, 74 Ark. 551, 86 S. W. 435; Hempstead County v. Phillips, 79 Ark. 263, 95 S. W. 133; Jonesboro, L. C. & E. Ry. Co. v. Chicogo Portrait Co., 81 Ark. 327, 99 S. W. 75.”
Numerous other cases have applied the same rule.
It follows, therefore, that the judgment here appealed from must be affirmed, and it is so ordered. | [
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George Rose Smith, Justice.
In 1965 the appellee obtained a divorce from the appellant. The decree awarded custody of the couple’s four children to the ap-pellee and directed the appellant to support the children by making weekly payments of $12.50 for each child during its minority.
In 1967 the appellant, upon his own initiative, began paying only half the amount fixed by the decree. Jn response to a citation requiring him to show cause why he should not be punished for contempt, the appellant filed a petition denying that he was the father of the two younger children and asking that the original decree be modified to relieve him from the duty of supporting those two children. This appeal is from an order which in effect sustained a demurrer to that petition, for its failure to state a cause of action, and dismissed it.
The court was right. The petition for a modification of the decree after the expiration of the term was based upon the wife’s asserted fraud on the court. Ark. Stat. Ann. § 29-506 (4) (Repl. 1962). The petition stated that more than a year before the birth of the third child the husband underwent an operation for sterilization. Owing to the subsequent birth of two children he believed at first that the operation had failed. Shortly before filing his petition for modification of the decree he assertedly learned that the operation had really been successful, so that he could not have been the father of the two younger children. For that reason he asked to be relieved of their support.
The petition was demurrable. Actionable fraud on the court, under the statute, must relate to some extrinsic matter and must be something more than false or fraudulent acts or testimony relating to the original cause of action, the truth of which was or might have been in issue.
Several decisions on the point were reviewed in Alexander v. Alexander, 217 Ark. 230, 229 S. W. 2d 234 (1950), a case decidedly similar to this one. There the divorce decree directed the husband to support a child whom the couple had adopted. The details of obtaining the adoption order had been left to the wife. Later on the husband sought a modification of the support order, asserting a fraud on the court in that the adoption proceeding was void. The husband accordingly alleged that the child was not his either by blood or by adoption, so that he should be exempt from the burden of its support. We rejected that contention, holding that the petition for modification of the support order did not assert an actionable extrinsic fraud on the court. The principle of that decision governs the case at bar.
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Conley Byrd, Justice.
Georgia-Pacific Corporation appeals from a determination by the circuit court affirming the Workmen’s Compensation Commission’s decision that the Commission’s order of April 23, 1965, did not constitute a “FINAL SETTLEMENT” with appellee Lindall H. Norsworthy within the terms of Ark. Stat. Ann. § 81-1319(1) (Repl. 1960).
The record shows that Norsworthy sustained a com-pensable injury on May 29, 1963, for which he received compensation and medical benefits without objection from Georgia-Pacific until August 1, 1963. At that time his doctors released him for light work with an estimated permanent partial disability of 7%% to the body as a whole. Norsworthy did not accept the 7%% but instead employed present counsel and applied for additional total temporary disability and medical treatment. Following an operation Dr. Hundley reported on August 17,1964, that Norsworthy was able to resume his regular work and that his residual permanent partial disability was 20% of the body as a whole.
Because of a difference of opinion on the issues of when the healing period ended and the amount of permanent partial disability, Georgia-Pacific had the matter set for a hearing on April 28, 1965. Prior to that hearing Georgia-Pacific on April 20, 1965, wrote as follows to the Secretary of the Commission:
“Dear Mr. Cowne:
‘‘ The above captioned case, which is set for hearing before the full Commission on Wednesday, April 28, 1965, at 2:30 p.m., has been settled by mutual agreement between the parties on the following basis:
PERMANENT PARTIAL DISABILITY: Computed at 20% resulting in 90 weeks at $35.00 per week or $3,150.00, less a credit due employer of $1,-365.00 for compensation paid claimant after healing period ended on June 15, 1964, resulting in a net payment to claimant of $1,785.00. ADDITIONAL ATTORNEY’S FEES: Maximum attorney’s fees based on amount of compensation controverted over 7%% and additional medical expenses, less certain credits for fees paid on compensation paid claimant subsequent to the end of the healing period, resulting in a net additional attorney’s fee of $177.38.
“We respectfully request that the full Commission enter its order approving the final settlement of this case on the above basis.”
Mr. Cowne, Secretary of the Commission, replied:
“Dear Mr. Asher:
“I have your letter dated April 20, 1965, in which you advise that the above case which is set for a hearing before the Full Commission on Wednesday, April 28, 1965, at 2:30 p.m. has been settled by mutual agreement and request the Full Commission to enter an order approving the settlement based on the agreement in your letter.
“In view of your letter, this is to advise that we are cancelling the hearing scheduled in the above case for April 28, 1965, and are removing this case from our hearing docket at this time.
“Before we submit this case to the Full Commission for an order and so that our records might be complete, we are by copy of this letter requesting Attorney J. V. Spencer, Jr., to please confirm the agreement as set out in your letter of April 20, 1965.
“As soon as we have heard from Attorney J. V. Spencer, Jr. this matter will be submitted to the Full Commission for an order to be entered.”
After receiving copies of both letters Mr. J. V. Spencer, Norsworthy’s counsel, wrote the Commission:
“Dear Mr. Cowne:
“Pursuant to your letter of April 21, 1965, to Mr. Gerald E. Asher of Georgia-Pacific Corporation, a copy of which was forwarded to this office, this is to advise that the agreement outlined in Mr. Asher’s letter of April 20, 1965, is satisfactory with us and with Mr. Norsworthy, and we hereby request that the full Commission enter its order approving this settlement. ’ ’
On April 23, 1965, the 'Commission entered the following order:
‘ ‘ The parties hereto have entered into an agreement as set forth in Mr. Asher’s letter of April 20, 1965, addressed to Secretary Cowne and confirmed by Mr. Spencer in his letter dated April 22, 1965, addressed to Secretary Cowne.
“Based upon the agreement the Commission herewith finds that claimant’s healing period ended June 15, 1964; that as a result of instant injury claimant has sustained a 20% permanent partial disability to the body as a whole which is compensation for a period of 90 weeks producing a sum of $3,-150.00; however, respondent has paid claimant the sum of $1,365.00 to apply on his permanent partial disability leaving the sum of $1,785.00 due claimant. Claimant’s attorney is entitled to a net additional attorney fee of $177.38.
“It is, therefore, the order of this Commission that respondent continue payment of compensation to claimant at the weekly rate of $35.00 until the remaining balance of $1,785.00 has been paid. Respondent shall also pay to Mr. J. V. Spencer, Jr. the sum of $177.38 as attorney’s fees.”
The present controversy arose when claim was made on Georgia-Pacific in August, 1966, for payment of services rendered to Norsworthy by Hundley Orthopedic Clinic and Hickerson Brace Company. The provisions of the Compensation Act dealing with settlements are Ark. Stat. Ann. §§ 81-1320 (a) and 81-1319(1) (Repl. 1960). They provide:
“81-1320. Contracts waiving \rights void. — (a) Waiver of compensation. No agreement by an employee to waive his right to compensation shall be valid, and no contract, regulation, or device whatsoever, shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this act [§§ 81-1301 — 81-1349,] except as specifically provided elsewhere in this act.”
“81-1319. Payment of compensation. — . . . (1) Joint petition. Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition. ’ ’
The rule-making power of the Commission in Ark. Stat. Ann. § 81-1342(f) (Repl. 1960) provides:
“(f) Administration of act. For the purpose of administering the provisions of this act [§§ 81-1301 —81-1349] the Commission is authorized (1) to make such rules and regulations as may be found necessary; (2) to appoint and fix the compensation of temporary technical assistants and medical and legal advisers and to appoint and to fix the compensation of clerical assistants and other officers and employees; and (3) to make such expenditures (including those for personal service, rent, books, periodicals, office equipment and supplies, and for printing and binding) as may be necessary. All expenditures of the Commission in the administration of this act shall be allowed and paid from the Workmen’s Compensation Fund, upon the presentation of itemized vouchers therefor approved by the Commission.”
Pursuant to this authority the Commission promulgated its Rule 19 which provides:
“The Commission strongly discourages use of the Joint Petition as a means of settling cases except in unusual circumstances. No Joint Petition will be approved unless such Petition sets forth the nature of the unusual circumstances and unless such unusual circumstances are proved at a hearing. Such Joint Petition must set forth in detail the reasons its approval will he in the claimant’s best interest as required by Section 19 (1) of the Workmen’s Compensation Act.
“Joint Petition settlements under Section 19 (1) of the Workmen’s Compensation Act will be heard by the Full Commission at its offices in the Justice Building, Little Rock, Arkansas, unless the Commission determines it will be to the best interest of the parties to designate a referee to conduct said hearing for the Full Commission.
“It shall be necessary for the claimant to appear and testify at any hearing. Petitions shall be signed by all parties, including the claimant, and must be verified.
“Under certain circumstances, the Commission may designate referee to hold such hearing at a location convenient to the parties or may direct the taking .of a claimant’s testimony by deposition or interrogatories.
“In all Joint Petitions where the claimant is represented by an attorney, the amount of agreed attorney’s fee shall be set out in the petition. No attorney’s fee shall be approved if it exceeds the limitations provided for in Section 32 of the Act.”
Since Georgia-Pacific made no attempt to comply with Rule 19, above, we hold that the Commission was justified in finding that its order of April 23, 1965, was not a final settlement within the meaning of Ark. Stat. Ann. § 81-1319(1), supra.
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Conley Byrd, Justice.
This personal injury action arising out of the death of Chester L. Tritt was brought by appellee, Lanell G. Tritt, Administratrix, for the benefit of herself as wife and next of lrin, against appellant, Burnham-Ray Company, Inc., the local Ford dealer, for breach of an implied warranty of fitness of a 1963 Ford pickup truck. Burnham-Ray filed a third party action against appellant, Ford Motor Company. From a $40,000 judgment in favor of the administratrix against Burnham-Ray Company, and a judgment against Ford Motor Company in favor of Burnham-Ray Company, both Ford and Burnham-Ray appeal, contending (1) that there was no substantial evidence that a manufacturing defect was a proximate cause of the accident; (2) that the provisions in the “Dealer Warranty” precluded a suit for personal injuries; (3) that there was a waiver or estoppel as to breach of a warranty other than the express warranty; (4) that the accident resulted from subsequent acts and omissions and intervening causes; and (5) that the contract between Burnham-Ray and Ford precluded the judgment against Ford.
The allegation with reference to the defect was:
“There is an implied warranty of fitness extending from the defendant to the deceased. This warranty was breached because the vehicle sold to the deceased had a defective axle and/or right rear wheel which resulted in the collapse of the wheel and proximately caused the death of Mr. Tritt.”
Decedent purchased the truck in December 1962. From the beginning, he had a problem with vibration. Burnham-Ray made numerous warranty repairs to the truck, including replacement of the rear axle housing and a new drive shaft. At the time of the fatal accident in March of 1964 at 11:00 p.m., the vehicle had 16,000 miles on it.
Harold Sorey was following some fifty to seventy feet behind the pickup at the time of the accident. The pickup was zigzagging or fishtailing back and forth after it rounded an “S” curve. It then ran off the pavement with the two left wheels, came back on the pavement, ran off the pavement with the right two wheels, came back on the pavement, turned sideways and turned over. Sorey said he saw the right rear wheel break down before the truck turned over.
Dr. Paul Cushman, retired professor of mechanical engineering of the University of Oklahoma and chief engineer of the L & S Roller Bearing Company, testified that he was consulted about a wheel that had been destroyed in the accident. After studying the wheel and learning something about the history of the truck he was asked:
“Q. Now, Dr. Cushman, what was there about the wheel that caused you to want to examine the axle?
A. Well, I knew something about the history of the truck besides what I had seen examining the wheel.
Q. But outside the history of the truck, just the physical evidence of the wheel itself?
A. I will point to several of these rivet holes of having apparently broken down one or two at a time, and the three on this side not being displaced and two of them being practically not displaced at all. Well, because of that I thought that there was evidence of vibration, that vibration had taken place there and gradually—
MR. LINDSEY: We object to that on the grounds that he is giving a conclusion without any basis or foundation for it.
WITNESS: You have to estimate some of these things.
MR. LINDSEY: But he is taking into consideration what he has been told about the vehicle, and we object.
THE COURT: Now his testimony should be confined to what he learned from the pieces themselves.
MR. ROBINSON:
Q. Now, that is what I am asking you, Dr. Cush-man, if from the examinations' of the wheel itself, did you draw these conclusions?
A. From that alone, I couldn’t, but I would say that there were suspicions that there was vibration. ’ ’
Dr. ¡Cushman stated definitely that the right rear axle was defectively manufactured and that the defect would cause a vibration that would be transmitted to the wheel. Due to objections by appellant’s counsel, Dr. Cushman was prevented from testifying as to what effect the defective axle and vibration would have on the wheel. The proffer of proof was that:
“If permitted by the Court to do so, Dr. Cushman would have further testified that the wobble caused by this defective axle could have caused and would have caused the eventual breakdown of the wheel, that it would have caused the rivets to fail and they would have failed progressively and the wheel would have broken down.”
The wheel introduced into evidence consisted of a rim and a spider. The spider (the part of the wheel that is bolted to the hub of the truck) was attached to the rim at four points by the use of three rivets at each point. As introduced the spider was broken loose from the rim at three of the four points. Opposite the point remaining intact, the outside of the rim was crimped or bent toward the inside of the vehicle as if it- had received a horizontal impact in that direction.
Thus it is seen that from the record there is no direct evidence of any manufacturing defect in the wheel, nor is there evidence to show that the defective axle was the proximate cause or could have been the proximate cause of the wheel's collapse.
It is well settled in the law that before a party can be held liable in damages for a wrong, the person claiming the damages must show that the wrong was the proximate cause of the damages suffered. Garner v. Missouri Pac. Railroad Co., Thompson, Trustee, 210 Ark. 214, 195 S. W. 2d 39 (1946).
Appellee argues, however, that if a wheel that is not defective will not collapse when the vehicle is being driven under normal conditions, a fortiori, a wheel that does collapse must be, in some respect, defective. This is, in effect, an attempt to apply the res ipsa loquitur doctrine. That doctrine is not applicable. Ford Motor Co. v. Fish, 232 Ark. 270, 335 S. W. 2d 713 (1960). This is a much different situation than that involved in Vandermark v. Ford Motor Co., 37 Cal. Rptr. 896, 391 P. 2d 168 (1964), upon which appellee relies, for there the alleged defective brake mechanism was destroyed in the accident. Furthermore, Judge Traynor there pointed out facts showing that the brake mechanism at the time of the injury was in the same condition as when it left the factory. Here we have a wheel used from December of 1962 to March of 1964 with some 16,000 miles of use, and the record is devoid of any proof relative to the use of the vehicle which might affect the condition of the wheel. Under such circumstances, it is almost imperative that expert testimony be used to show that a defect in the wheel was a manufacturing defect.
Therefore, we hold that there was insufficient evidence to show any manufacturing defect in the wheel or that the defect in the axle was a proximate cause of the collapse of the wheel. This of course calls for a reversal of this case; but since the reversal is for a lack of proof of causation, a matter which may be supplied by expert testimony, we are remanding same for a new trial. Continental Geophysical Co. v. Adair, 243 Ark. 589, 420 S. W. 2d 836 (1967).
In view of the possibility of a new trial, we point out that the issues with respect to waiver or estoppel as to any breach of warranty are, under the facts in this case, issues that were properly submitted to the jury. It is certainly not a question of law on review, for one seldom waives or is estopped with respect to a defect of which he had no knowledge. Furthermore, we think that whether the accident resulted from subsequent actions and omissions and intervening causes was also a fact question.
The issues between Ford Motor Company and Burn-ham-Ray Company have to do with the warranty which provides:
“Ford Motor Company has warranted to the Dealer who, pursuant to his sales agreement with the Com pany, hereby, on his own behalf, warrants to the owner each part of this Ford vehicle to he free under normal use and service from defects in material and workmanship for a period of 24 months from the date of delivery to the original retail purchaser or until it has been driven 24,000 miles, whichever comes first. This warranty shall be fulfilled by the Dealer t(or if the owner of the vehicle is traveling or has become a resident of a different locality by any authorized Ford dealer) replacing or repairing at his place of business, free of charge including related labor, any such defective part.
“This warranty is expressly in lieu of any other express or implied warranty, including any implied warranty of merchantability or fitness, and of any other obligation on the part of the Dealer.”
The waiver of the implied warranty of merchantability or fitness certainly does not protect Burnham-Ray from liability, for to do so would be unconscionable under the Uniform Commercial Code within the meaning of Ark. Stat. Ann. § 85-2-719 (3) (Add. 1961), which provides:
“ (3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”
As between Ford and .Bumham-Ray, however, Ford takes the position that the phrase ‘ ‘ consumer goods, ’ ’ as used in the above statute, must take the definition given to consumer goods in the U. C. C., Ark. Stat. Ann. § 85-9-109(1), (4) (Add. 1961), which provides:
“Goods are
(1) “consumer goods” if they are used or bought for use primarily for personal, family or household purposes;
# * *
(4) “inventory” if they are held by a person who holds them for sale or lease or to be furnished under contracts of service or if he has so furnished them, or if they are raw materials, work in process or materials used or consumed in a business. Inventory of a person is not to be classified as his equipment. ’ ’
Since § 85-9-109(1) also contains a definition for inventory, Ford argues that as between it and the dealer the automobile was inventory with the dealer and that the unconscionable clause does not apply. We do not agree, for as we read § 85-2-719(3), the first sentence— i. e., “ Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable” —is not limited by the second sentence to consumers.
The composition and assembly of the modern automobile is such that as between a manufacturer and a dealer there is relatively little difference between the position of the dealer to the manufacturer as to consequential damages for latent defects and the position of the ordinary purchaser to the dealer. As to whether a waiver of the implied warranty of merchantability or fitness is unconscionable, a fact question is presented where it is shown that the defect is latent and such that the automobile dealer is not charged with notice or knowledge of the defect and with notice or knowledge that it could result in consequential injuries or damages. Nothing could be more unconscionable than to hold the dealer, a mere conduit between the manufacturer and the ultimate consumer, liable for consequential damages on breach of an implied warranty for a fault or defect caused by the automobile manufacturer of which the dealer had no notice or knowledge. The defect, as shown by the record here, was obviously one which a reasonable inspection would not have disclosed, and under the cir cumstances we hold that the uneonscionability of the exclusion of the implied warranty between the dealer and Ford was a fact issue.
Reversed and remanded.
FoglemaN, J., concurs. | [
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Hart, C. J.,
(after stating the facts). Hnder §27, art. 19, of our Constitution, a municipal corporation can not construct a local improvement by assessment of benefits on real property until and unless a majority in value of the owners of real property within the proposed district have consented thereto. We have many times held that this section of the Constitution is mandatory and jurisdictional, and that no improvement districts can be established within the limits of a municipal corporation without complying with its provisions.
In the case at bar the chancellor, in determining whether or not a majority in value of real property within the proposed district had signed the second petition provided by the statute for the establishment of said district, refused to take into consideration the assessed value of the ¡right-of-way of a railroad company which had a part of its main track and of its sidetrack within the limits of the district. If the chancellor was correct in his interpretation of law as applied to the facts of the present case, the decree should be affirmed. On the other hand, if the right-of-way included in the limits of the boundaries of the district is to be counted as a part of the property shown by the last county assessment, then, under the undisputed facts, a majority in value of the owners of real property within the district did not sign a petition for the establishment of the district, and the city council had no power to establish the district, and the chancery court erred in not so holding.
The question thus raised by the appeal depends upon the construction to be placed upon § 5653 of Crawford & Moses’ Digest, formerly § 5717 of Kirby’s Digest, when read and considered in the light of our previous decisions construing it. The section reads as follows:
“In ascertaining whether the petition for improvement of any kind is signed by a majority of the owners in value of the real property in the district adjoining the property to be affected, the council shall take and be governed by the valuation placed upon the property as shown'by the last county assessment on file in'the county clerk’s office.”
This section o.f the statute has been held valid and to be a reasonable and proper method of procedure in determining the value of the real property in an'improvement district in a municipal corporation, to be used as a basis for finding whether or not the consent of a majority of the owers in. value of real property in such districts has been obtained. Kansas City, Pittsburg & Gulf Ry. v. Waterworks Imp. Dist. No. 1 of Siloam Springs, 68 Ark. 376, 59 S. W. 248; Imp. Dist. No. 1 of Clarendon v. St. Louis Southwestern Ry. Co., 99 Ark. 508, 139 S. W. 308; City of Malvern v. Nunn, 127 Ark. 418, 192 S. W. 909; Walton v. Light Imp. Dist. No. 1, 144 Ark. 249, 222 S. W. 1056; and Hill v. Walthour, 166 Ark. 277, 266 S. W. 85.
In Craig v. Russellville Waterworks Imp. Dist., 84 Ark. 390, 105 S. W. 867, it was said that the constitutional limitation in question created a vested property right in owners of real estate in cities and towns, and that the only way the constitutional guaranty can be fulfilled is by the enactment of reasonable statutes of procedure to obtain the consent of a majority in value and a forum to determine whether such consent has been obtained. It is plain from all our previous decisions that the constitutional requirement cannot be taken away under the gmise of enacting a method of procedure.
In the case first cited it was expressly held that our Constitution and statutes make all real estate situated within a proposed district in a municipal corporation the subject of local assessments, and that under our statutes rights-of-Avay of railroads, depot ground, etc., are real estate, and are to be assessed as such. In that case it was also held that under our revenue laws the right-of-way and roadbed of railroads should be valued as units or by the entire lines by a State board appointed for that purpose, and that, when their assessments are certified to the various counties, as provided by statute, they become a part of the county assessment from which values for. local assessments are taken.
Our later cases have recognized that a railroad must be regarded, for purposes of taxation, as a unit, and that the track of the railroad is but one track from one end of it to the other, and, except in its use as. one track, is of little value.
It is true, as contended by counsel for the defendants, that, in some of the cases cited, this court has held-that church property and other property exempt from general taxation should not be counted in determining whether or not a majority in value of the owners of real property within a proposed municipal improvement district have consented to the establishment thereof, unless such church property has been placed upon the taxbooks of the county by the proper officers. In doing so, however, the court has called attention to the fact that it is the duty of the assessing officers to list this property upon tht> taxbooks and place a valuation upon it for tax purposes. In City of Malvern v. Nunn, 127 Ark. 418, 192 S. W. 909, the court upheld the decision of the chancellor excluding school property because it had not been included in the last assessment roll. So it will be observed that church and school property, although exempt under our Constitution from general taxation, are subject to local assessments, and our statutes require the assessor to list churches, sehoolhouses and other property, exempt from general taxation, and the value thereof. Crawford & Moses’ Digest, § 9935.
Our statutes also authorize the listing and valuation aud entering upon the assessment book of any such exempt property when it has been omitted at the regular time for making the assessment of real property subject to taxation. Crawford & Moses’ Digest, § 9936. Hence the court expressly said that such property has a voice in the organization of the district according to its value fixed by the assessment roll. The court properly held that, if the assessing officer failed to do his duty for any particular year, it would not abrogate the statute nor prevent its application to the formation of improvement districts in cities and towns during that year. If he failed to do his duty, interested parties might require him to do so in order that the property might be counted in forming the district. If he did not do his duty, the statute would apply to the assessment, and the omitted property could not be counted or considered in determining whether a majority in value of the ’Owners of real property had petitioned for the formation of the district. The case would be the same as if the officer had failed to assess a particular lot or lots belonging to a private individual or corporation. In such a case the failure of thé assessor to do his duty would not have the effect to prevent the statute from applying. The property could not be considered because it was not included in the assessment roll.
So, in the case ¡at bar, if the State board had failed to assess or certify to the proper officer of Garland County the assessment of the right-of-way and roadbed of the Chicago, Rock Island & Pacific Railway Company in Garland County, it would not be reasonable to contend that this omission should ’suspend the operation of the statute or affect the interpretation of it. The railroad property simply would not be considered in determining whether a majority in value of owners of real property in the district had petitioned for the improvement.
The case would be quite different, however, if the statute under consideration had not provided for the inclusion of such property in the assessment roll. Under our statute, the right-of-way and roadbed of railroads are treated as real estate for taxation purposes, and,, along with churches and schoolhouses, are subject to local assessments in municipal improvement districts. Hence a statute which provided for the exclusion of such property from the assessment roll to be considered by a municipal council in determining whether or not a majority in value of the owners of real property in a proposed municipal district 'would not be valid. The reason is that such a statute would disregard a plain provision of the Constitution, and would cease to be a statute providing a method of procedure to obtain the consent of real owners in forming a municipal improvement district and a basis by which to determine whether such consent has been obtained. The Constitution requires all property in the district to bo considered in determining such consent, and a statute which, by its terms, omitted any class or species of property, would be in conflict with the provision of the Constitution. It is one tiling- to hold a statute valid -when it provides for the inclusion of all property in-the assessment roll and the council should follow its provisions in the formation of municipal improvement districts, although the assessing officer has omitted a particular part of such property, and on that account it cannot be considered because not included in the assessment roll, and quite another thing to hold that a statute itself would be considered constitutional which, by its own terms, provided for the exclusion from the assessment roll of some class or species of property. In other words, if the plan or procedure provided by the statute contemplates the inclusion in the assessment roll of all the real property in the district, such a statute is reasonable and valid, ¡although, in a particular case, property has been omitted from the assessment roll for that year, for the reason that such omission is not the result of the statute, but is the fault of the assessing officer. In such cases the Legislature has even provided for the inclusion in the assessment roll of such omitted property. If the Legislature should pass a statute which, by its own terms, omitted property in a municipal improvement district,, it is plain that the statute itself contemplated ¡a violation of the provision of the Constitution looking to the formation of municipal improvement districts, and for that reason the statute could not stand.
In this connection it may be stated that the decision of the chancellor was especially based upon the decision in Hill v. Walthour, 166 Ark. 277, 266 S. W. 85. In that case it was held that a lot of irregular shape and size, which lies partly in and partly out of the district, should not be considered by the council in determining whether there was a majority in value of real property owners in the district favoring the improvement. The object of the statute under consideration is to secure equality and uniformity in ascertaining whether a majority in value of the owners of real property wish the improvement. This can best be accomplished by taking the estimate of value placed upon the property by officers whose duty it is to assess property for taxation. Otherwise, the value of property being so much a matter of opinion, it would never be the same in any given case. The valuation of the property in different districts in the same city would vary greatly, and even property in the same area would be valued differently in different improvement districts. To illustrate, if two districts are formed at the same time with the same boundaries-for the establishment of a street improvement district and a sewer district, if the testimony of witnesses should be used to fix the value of the property, it might be that the value of the property would be materially different in the two districts. If the value of the property as shown by the last assessment roll is to be determinative, then it is evident that the assessments will be equal and uniform in the two districts.
The case last cited referred to the fact that the formation of an improvement district is the voluntary act of the owners of real property, and they, in fixing the boundaries of the district, could put in or leave out a particular piece of property, and not place it partly in and partly out of the district. It was further stated that, if the inclusion of a certain area could not be done, such an exceptional condition would not and ought not to affect the general rule.
In the matter of the right-of-way and roadbed of a railroad, the situation is essentially different.. As we have already seen, the right-of-way and roadbed of a railway company is to be considered for tax purposes as a unit, and the track and roadbed of the railroad are but one from one end to the other, and that part of it which could be in a municipal improvement district is, in the very nature of things, only a very small part of its length. Such property, on that account, has always been assessed by a State board instead of by county assessors. In this way only could equality and uniformity in taxation of such property be effected. Because a railroad must be regarded as a unit for tlie purposes of taxation, it is taxed upon a mileage basis.
In the present case the State board taxed the property upon a mileage basis, and certified it to the proper officer of Garland County, to be used in making the assessment for county purposes there. The method adopted in ascertaining the assessed value of the railroad property in the improvement district is the only one that could be adopted. No element of uncertainty in fixing the value arises. The Value is fixed by the State board, and the only element of uncertainty which could arise -would be in measuring the length of the track and right-of-way in the district, and this would be negligible in all cases. It is easy to measure the length of the track in the contemplated district and thereby ascertain definitely the length of the track. The State board assessed the roadbed according to mileage, and it is easy to calculate what proportionate part of the mileage assessment should be borne by the railroad for trackage less than a mile in length. No element of estimating the vialue enters into the case, as when a part of a lot is in and a part out of the district, and the whole of a lot is assessed as one unity.
We think this holding is in accord with the principles decided in Walton v. Commissioners of Light Imp. Dist., 144 Ark. 249, 222 S. W. 1056. In that case it was held that, in determining whether the required majority had been obtained for the establishment of a light improvement district in the city of Benton, the value of real property of railroad companies -within the district must be considered. In discussing the question the court said:
“Had the railroad company desired this improvement and, by proper authorization, had signed the petition for it, we think, without question, it would have been proper for the value of its property, as shown by the last county assessment on file in the county clerk’s office, to be taken into account, because, within the meaning of the statute, the assessment made by the Tax Commission is a part of the county assessment. And. if this be true, it must also be true that the value of the railroad property should be taken into account in determining whether the requisite majority in value had been obtained by those who petitioned for the establishment of the improvement district. ’ ’
It is sought to differentiate that case from this in the fact that the whole of the city of Benton was included in the improvement district, and that the assessment of the State board showed the exact mileage and valuation of the right-of-way and roadbed in the city of Benton. It is true that only a part of the area of the city is in the improvement district in the present case, but, if we should hold that railroad property could not be included, although assessed for taxation by the State board, such holding would result in excluding .railroad property in improvement districts where the whole area of the town or city was not included within the district. In other words, the effect of such a holding would be to exclude from the consideration of the council in determining whether there -was a majority in value of real property owners within a proposed municipal improvement district, a valuable class of property, although it had been assessed in the manner provided by law. This would violate the plain terms of the Constitution, and could not be done without rendering the statute invalid.
The result of our views is that we think that, when a State board has assessed the right-of-way and roadbed of a railroad company in accordance with law. and has certified that value down to the proper county authorities, such assessment becomes a part of the assessment roll within the provisions of the statute in question, and should be considered by the council in determining whether a majority in value of the owners of real property have petitioned for the improvement.
Finally, it is insisted that the assessment of the State board was not proved by the best evidence. It is claimed that the county clerk should have certified the assessment of the State board of the railroad in question as part of the county assessment roll. This is true, and should be the course pursued in general. In the case at bar, however, the county clerk admitted that the assessment of the railroad property was left out by him, and was on file in his office. This was tantamount to a refusal by him to certify the assessment as part of the county assessment roll, and let in secondary evidence to prove the assessment. The secretary of the State board was introduced as a witness, and made a certificate showing the assessment which was made by the State board, and also testified that this 'assessment- was filed with the county clerk, where the law required it to be filed. According to the testimony of the county clerk himself, when the mileage assessment made by the State board of the railway property in question was considered with reference to the amount of main track and sidetrack proved to be in the district, a total valuation of $7,928.40 should be added to the assessment roll. It is only claimed that property owners owning real property in the district of the assessed value of $41,550 have signed the petition. The county assessment roll showed property within the district of the total value of $78,200. If we add to this, as we must do, the assessed value of the railroad property in the district, which was $7,928.40, we have a total of $86,128.40. Thus it will be seen that a majority in value of the owners of real property within the district did not petition for the improvement.
It follows that the chancellor erred in holding that a majority in value of the owners of real property in the proposed street improvement district signed the petition and in dismissing the complaint of the plaintiffs for want of equity. Therefore the decree will be reversed, and the case will be remanded with directions to grant the prayer of the complaint, and for further proceedings in accordance with the principles of equity and not- inconsistent with this opinion. It is so ordered. | [
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Kirby, J.
Appellant prosecutes this appeal to reverse the judgment against it for appellee for $50 damages for the alleged negligent killing of Ms bird dog by one of its trains.
The testimony shows that on August 9, 1925, about 6 o’clock in the afternoon, one of appellant’s eastbound passenger trains ran over and killed appellee’s setter dog on its track, about the middle of a 300-foot trestle beyond Earle. ’She was purchased at two months old for $35; was a thoroughbred registered dog, well trained, and a good hunter. Some of her puppies had sold for as much as $25 and $30 each. Appellee stated she was worth $250.
Raymond Vernon, a 14-year-old boy, found the dog on the track after the train passed. It was cut kalif in two. Saw the dogs on the trestle before the train came along. Heard the train whistling, and saw it stop. The dogs went to the edge of the trestle, looked over, and then went back to the center of the track. The cowcatcher struck one of the dogs, and the wheels ran over •it. The train stopped just ¡after it struck the dog, and was almost stopped when it struck the dog.
The engineer testified that he was running toward Memphis, at 6 o’clock in the daylight, and first saw the dogs 400 or 500 feet away. Could not see it sooner on account of the curve in the track. Saw a white object, and could not tell what it was; thought it was paper, for several seconds, until it moved. He immediately applied the brakes and the emergency, sanded the track, blew the whistle, and stopped the train as soon as possible. When the engine stopped, one pair of wheels, the pilot wheels, had run over' the dog and cut it in two. It was lying’ between the rails, between the first and second trucks. Thinks the dogs were lying down when he first noticed the objects on the track. Was keeping a lookout when he came around the curve. One of the dogs dodged and got away. This train did not stop at the station, and was making about 10 miles an hour when it passed the station, and the speed limit at the curve is 50 miles an hour. The trestle is hardly a mile east of Earle.
The fireman stated he was looking ahead at the time. First saw an ofiject on the track 300 feet away or more; could not toll what it was. Shortly saw it move, and started to call the engineer, but he had already discovered the dog, and began to apply the brakes and blow the whistle continuously. Did all he could to stop the train. Witness thought, in fact, he had stopped short of the dog, and ran out on the trestle to get the dog off the track.
Morrison stated it was three-fourths of a mile from the station to where the dog was killed, and about 300 or 400 feet east of the city limits. An object could be seen west from where the dog was killed about one-fourth of a mile. That the curve to the east of the station was not abrupt, only about 30 degrees, and that the trainmen could have seen the dog a quarter of a mile, coming from the east.
• The court refused appellant’s request for a directed verdict and some of its other instructions.
It is insisted by appellant that the court erred in not directing a verdict in its favor and that the uncontradicted evidence shows that the trainmen were keeping a lookout, and did everything possible to stop the train and avoid injury to the dog- after it was discovered on the tracks.
It does appear that proper care was exercised in bringing the train to a stop after the animal was. discovered on the trestle, and that the effort to prevent the injury to the dog was well nigh successful, having failed. by about only six feet.
It cannot be said, however, that the testimony of appellant’s witnesses, as to having kept the proper look out, was uncontradicted, since appellee testified that the curve in the track, which the engineer said prevented his sooner discovering the' dog, was not an abrupt curve and that the dog could have been seen for a quarter of a mile, if a lookout had been kept, notwithstanding the curve.
Certainly, had it 'been discovered sooner, the train could have been stopped and the injury prevented by the efforts made by the trainmen. The testimony of the trainmen, not being- uncontradicted, did not overcome the prima facie case of negligence made by showing that the dog was struck and killed on the trestle by the moving-train, and the court did not err in refusing to direct the verdict in favor of the railroad company.
Neither was error committed in refusing- to give appellaliit’s requested instrudtion, “that you have no right to arbitrarily disregard the testimony of the engineer and fireman in this ¡case. ’ ’ The court told the jury that its verdict must be based upon the evidence and not upon surmise or conjecture, and, in two instructions, “You have no right to arbitrarily disregard the statements or testimony of any witness,” which was a sufficient statement of the law, free from singling out any particular witness.
The majority finding- no prejudicial error in the record, and the evidence being sufficient to support the verdict, the judgment is affirmed. | [
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Humphreys, J.
This is an appeal from a judgment for $281.13 with six per cent, interest per annum from May 20, 1926, in favor of appellee against appellant for the balance of the purchase money due on a gasoline pump, tank and other equipment, which appellee sold appellant on July 15,1924, for $350, under a written contract containing a vendor’s lien, and containing the following guaranty: “We guarantee all our products to be and remain free from defects in material and workmanship for the period of one year from date of shipment.”
Appellant filed an answer, denying liability, on the ground that the outfit was defective in material and workmanship, and, for that reason, worthless.
The pumping outfit was used by appellant for about eight months, but it did not give entire satisfaction. There were defects in it which could not be remedied, and appellant finally quit using it and refused to malte farther payments on it, according to his evidence, because appellee did not fix'it. According to the testimony of appellee’s attorney, appellant promised to pay the deferred payments from time to time, but failed to do so.
According- to the undisputed facts, the outfit was sold to appellant by appellee on a credit for $462.80, in the year 1922. Appellant used it for about six months without having paid anything except the freight. He. then went into bankruptcy, and appellee intervened in the bankruptcy proceeding- and recovered same. After appellant was discharged in the bankruptcy proceeding he repurchased the outfit at a reduction of $H2.80 from the original price, under the written contract containing the guaranty clause heretofore referred to. On July 15, 1924, the day he repurchased the outfit, he paid $25 on the purchase price, and in September following paid $25 additional, and in October following $25 more. Appellant testified that he made payments in expectation that appellee would repair the outfit so that it could be used.
The claim for the balance of the purchase money was put in the hands of attorneys for collection. They corresponded with appellant in an effort to collect same, and on April 26,1926, received the following letter from appellant:
“In reply to y.our letter, I am sorry that I can’t send you the money at once. Our collections are simply rotten. The farmers have nothing to sell, therefore we get nothing, but the first or the second we will send this to you. That is railroad pay-day, and I think I will be able to settle this matter. ’ ’
The court instructed a verdict for appellee,- and properly so, because appellant waived his right to rely upon the defects in the outfit under his guaranty by writing the letter to appellee’s attorney of date April 26, 19-26, in which he made an absolute promise to pay the balance of the purchase money, irrespective of any defects he had complained of prior to that time.
No error appearing, the judgment is affirmed. | [
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John A. Fogleman, Justice.
Appellant contends that reversible error was committed in the trial court’s granting appellee a summary judgment. The action was brought by appellee, a finance company, to recover from appellant, a used car dealer, on the latter’s endorsement and guaranty upon a number of past due notes given by purchasers of automobiles. Appellant alleged that these notes were void because given as a part of a scheme and plan of appellee to violate the Arkansas usury laws. After appellant had answered a request for admissions made by appellee, appellee took a discovery deposition of appellant. Appellant had previously taken the discovery deposition of John Y. Baltz, president of appellee company. Upon the record so made, appel-lee’s motion for summary judgment was granted upon the ground that the defense of usury is not available to appellant by reason of his participation in what he had alleged to be the plan to violate the usury laws.
We do not agree with the trial judge. In considering a motion for summary judgment, the evidence and all reasonable inferences which may be drawn therefrom must be considered in the light most favorable to the party against whom the judgment would go. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89; Deltic Farm & Timber Co. v. Manning, 239 Ark. 264, 389 S. W. 2d 435; Akridge v. Park Bowling Center, Inc., 240 Ark. 538, 401 S. W. 2d 204. A summary judgment may not be granted if there is any genuine issue as to any material fact. Westinghouse Credit Corporation v. First National Bank of Green Forest, 241 Ark. 287, 407 S. W. 2d 388. The burden rested on appellee to show the absence of any genuine or justiciable fact issue and to establish that appellant had no defense when the facts on the record considered were viewed in the light most favorable to appellant. Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646; Van Dalsen v. Inman, 238 Ark. 237 379 S. W. 2d 261; Kratz v. Mills, 240 Ark. 872, 402 S. W. 2d 661.
Viewing the record as we must, we find material fact issues. The notes in question were given over a period of several months’ dealings between the parties. It was admitted that appellant made a sale of an automobile to each of the makers of said notes, after having reached an agreement as to the base price to be paid therefor, independent of any voice or control of the finance company. Thereafter, the notes were delivered to appellant made on forms it furnished to the dealer. They were payable to appellant, but he executed an unconditional guaranty on each note, along with his transfer of all his interest in the vehicle sold. Appellee was under no obligation to buy or accept any particular note from appellant. The dealer did not deal with any other finance company and recommended appellee to his customers. There is a conflict in the testimony as to whether appellee had ever refused any note offered by appellant. Appellant testified that the finance company never turned down a financing arrangement offered, but he admitted that they did, on occasion, say that too much money was involved on certain transactions. Baltz was sure that they did refuse to discount some notes. Some of the notes accepted were signed in blank at the office of appellant and taken by appellant or his authorized agent to appellee’s office where an officer of the finance company filled it in, adding to the price appellee was to receive for the vehicle a “discount” previously agreed upon and the amount of any insurance premium. Some of the notes were taken to the finance company by the customer, either alone or in company with appellant or his agent. Appellant states that the notes were all filled out at the office of the finance company, but Baltz testified that some of them were filled in when brought to him by the dealer who figured the discount and interest. Baltz was certain that some notes were brought in with the amount already filled in, without any previous arrangements for the purchase of the note by appellee. At any rate, the purchaser decided the term of each note which was payable in monthly installments. After the price and term were negotiated, the dealer usually called the finance company which advised the amount of the monthly payment. Neither party made any credit investigations. According to Baltz, repossessed automobiles were delivered to the dealer, who repaired and sold them and turned the proceeds over to appellee together with reimbursement for any loss. Evers stated that one of the vehicles repossessed was sold by appellee.
The parties disagree as to the amount of this “discount. ’ ’ Appellant says that there was a stated rate, but Baltz testified that it varied. Baltz states that they told Evers the amount in each case and the option to accept or reject was up to Evers. Baltz says that they merely purchased the notes for collection and depended entirely on the dealer’s endorsement.
Under this evidence, a trier of the facts might well determine that these transactions really constituted loans by appellee to appellant, and if the discount was greater than ten per cent, per annum, were void for usury. In such a case, we find the following statement from Restatement of The Law of Contracts, § 532, to be applicable:
“The sale of a pecuniary obligation of a third person at a discount greater than the rate of interest legally permissible is not usurious, but if the seller assumes responsibility for the payment of the obligation, the transaction, if intended as a device for a loan, is usurious.”
Even if these transactions are found upon trial not to constitute loans to appellant, the trial court might well find that the parties were engaged in a common scheme or design to obtain usurious contracts from appellant’s customers, and were equally cognizant of the illegality thereof. If so, neither would have any right of recovery against the other. Womack v. Maner, 227 Ark. 786, 301 S. W. 2d 438, 60 ALR 2d 1271.
Perhaps other questions of law or fact, or both, may be involved on trial of this case, but, as illustrated here-inabove, there clearly was no basis for a summary judgment in favor of appellee.
The decree is reversed and the cause remanded for further proceedings.
Harris, C. J., dissents. | [
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Smith, J.
Appellants alleged that the State Highway Department is undertaking to construct a bridge across the Red River at Pulton, and that they are the owners of both banks of the river at the proposed location. That the General Assembly, at its 1925 session, passed an act No. 136 (Acts 1925, page 384) authorizing the Highway Department to construct a bridge across Red River at this particular location, and limited the total cost of the bridge, including the lands which would have to be condemned and acquired for that purpose, and all other expenses, to the sum of $500,000. That the Highway Department is ignoring this act, and now proposes to construct a bridge at approximately the same location, and has obtained orders of the county' courts of the counties in which the proposed bridge is to be located, authorizing a change of route, and that the bridge which the Highway Department now proposes to construct will cost approximately $750,000, and is undertaking to do so under the authority of act No. 104, passed at the 1927 session of the General Assembly (Acts 1927, page 282).
It is alleged in appellant’s complaint that the Highway Department has no authority to proceed under the 1927 act, and that it is without' authority to proceed with the construction of the bridge now proposed, or to condemn appellants’ lands for that purpose, for the reason that the total cost will exceed the limit of cost authorized by the act of 1925.
It appears from the answer filed in the case and the testimony heard in the court below, that the bridge in question supplies a link in one of the principal highways in the State, and the testimony shows that the bridge will be largely used in interstate travel. It.was ascertained by the State Highway Commission that a bridge could be constructed under the 1925 act at a cost not exceeding $500,000, but it was also ascertained by the Commission that such a bridge would not be adequate to accommodate the anticipated future travel over it. Accordingly, the plans were revised and the route slightly changed, and the Highway Commission now proposes to build a larger and -more substantial bridge than could be built under the act of 1925. This suit was brought to determine whether the Highway Commission has this authority.
Opposing counsel agree that the act of 1927 does not repeal the act of 1925, and we concur in that view. It does not attempt to do so expressly, and there is no such repugnancy between the two acts that it must be said that a repeal is implied. See Cordell v. Kent, 174 Ark. 503, 295 S. W. 404, and cases there cited. But it is insisted that, if the act of 1925 is a valid and subsisting statute, the Highway Commission must proceed under it, and cannot exercise the discretion which would otherwise exist to proceed under the act of 1927.
The act of 1925 was upheld as a valid statute in the ease of Fulton Ferry & Bridge Co. v. Blackwood, 173 Ark. 645, 293 S. W. 2, and the Commission might proceed under its authority to erect the bridge, but, if this were done, a bridge could not be constructed the total cost of which would exceed $500,000, as the act contains that limitation. It has been ascertained, however, that a suitable bridge— one which will not only accommodate the present travel, but the anticipated travel of the future — cannot be constructed at a cost of $500,000. The question for decision therefore is whether a suitable bridge may not be constructed under the act of 1927.
We think this authority was conferred by act 104 of the Acts of 1927. This act was construed and upheld in the case of Conner v. Blackwood, ante, p. 139, decided January 30, 1928, it being there held that the act conferred a discretionary authority upon the State Highway Commission-to build bridges as a part of the State Highway system, and that bonds might be issued to pay the cost thereof, the bonds to be paid by tolls collected from the users of the bridge, the collection of which is to cease when the bonded indebtedness had been discharged.
The purpose of the act of 1925 was to secure a bridge across the Red River at Fulton, but the act of 1927 also confers authority to build such a bridge if the Commission elects so to do, and the agency to perform this duty is the same under both acts — the State Highway Department. It is not to be assumed that the Department will build a bridge under both acts, and the pleadings contain no such allegation. But we think a bridge might be constructed under either act. Under the act of 1925 the cost could not exceed $500,000, while the act of 1927 contains no such limitation. The Department has determined, in the exercise of the discretion conferred by the act of 1927, to build a bridge the cost of which will exceed $500,000, and the court below found that in so doing the Department was “proceeding within and according to law,” and upon that finding dismissed appellants’ complaint as being without equity.
As we concur in the finding of the court below, the decree must be affirmed, and it is so ordered. . | [
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Conley Byrd, Justice.
Appellants, Potlatch Forests, Inc., and Hartford Accident & Indemnity Company, appeal from a circuit court order that set aside an order of the Workmen’s Compensation Commission denying Carl Burks compensation benefits for a hernia he experienced, because he failed to meet the five requirements laid down in Ark. Stat. Ann. § 81-1313(e) (Repl. 1960). That section provides:
“(e) Hernia: In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:
(,1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the eiriployer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight (48) hours after such occurrence; ...”
The facts giving rise to the claim are that on December 22, 1966, while appellee was operating a cut-off saw at appellant Potlatch Forests’ plant, a board struck appellee in the stomach just above the belt line. Appellee was knocked backwards a step or two and suffered severe pain in his abdominal region. After resting for a few minutes, he then continued to work until quitting time. Appellee slept very well that night but was still bothered by pain the next morning, Friday, December 23, and although suffering he worked all day.
Appellant’s plant closed down Friday, December 23, for the Christmas holidays. On Saturday, December 24, appellee was still suffering and attempted to contact his physician, but was unable to do so. Appellee spent most of this day lying down, as he had found that alleviated the pain.
On Sunday, December 25, appellee still had pain and spent most of the day reclining, which gave him some relief from the pain. -He again tried to reach his phvsi- cian, but without success. At no time did appellee call any of the other physicians in Warren.
On Monday, December 26, appellee still felt pain and had to lie down most of the day. He was again unable to contact his physician.
On Tuesday, December 27, appellee went back to work, but the pain became so severe that by 9:30 a.m. he was forced to stop working. He then sat down and elevated his feet and by this means got some relief. Ap-pellee also notified his foreman, Mr. Greenwood, that he had injured himself and would have to discontinue work and see a physician. On Tuesday afternoon ap-pellee attempted to reach his physician but was unable to do so.
On Wednesday, December 28, Dr. Jaimes W. Marsh, who had been out of town since December 23, returned to Warren. Dr. Marsh examined appellee and diagnosed the trouble as an inguinal hernia.
The evidence also shows that appellee had a hernia on his right side when he went to work for Potlatch in 1936; that subsequently he had a hernia on his left side in 1960, which was repaired; and that the present hernia was just above the one he had in 1960.
When the testimony is viewed in the strongest light in favor of the Commission’s finding, as we must do, Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810 (1958), we find that there was substantial evidence to support the Commission’s denial of relief to appellee.
Appellee, to support the circuit court’s decision overruling the Commission, relies upon The Crossett Co. v. Childers, 234 Ark. 320, 351 S. W. 2d 841 (1961); Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929 (1963); and Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380 (1943).
In the Crossett case, testimony showed that on February 9 a heavy wrench came in contact with Childers’ stomach; that although he observed a small lump in the hernia area that night, it did not occur to him he might have a hernia; and that subsequently on February 12 there was a leakage of chlorine gas at the plant which caused Childers to cough steadily for twenty minutes or more. It was at that time that a big swelling came out and Childers was forced to cease working. We there held that the occurrence on February 12 was sufficient evidence to support the Commission’s conclusion that the hernia occurred as a result of the working conditions on that date.
Nor do we find anything in the Williams or Prince eases to sustain appellee’s position. An estoppel was involved in both of those cases. In the Williams case the employee suffered an injury causing a cessation of his work which was promptly reported to the employer and which the employer’s doctor was unable to diagnose as a hernia within the 48-hour period. In the Prince case, claimant promptly reported his injuries to the employer, but because of the employer’s heavy work schedule he continued to work, át the employer’s specific request and with the aid of others furnished by the employer, beyond the 48-hour deadline for attendance by a physician. The estoppel present in those two cases is not present here.
Reversed and remanded. | [
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Smith, J.
Appellee owns two lots at the' southwest corner of Markham and Johnson streets in the city of Little Rock. In March, 1937, after she had acquired one of the lots and shortly before she acquired the other, the city passed ordinance No. 5420 (a zoning ordinance). At the time she acquired these properties there was a residence on each of the lots. A map attached to the zoning ordinance placed the property in the “B” one-family district, the effect of which classification was to forbid the use of the property for business or commercial purposes.
Appellee applied for a permit to construct a store building on the property, which was denied as a violation of the ordinance. A petition for a reclassification was filed, and referred to the city planning commission, which first approved, but later denied, the petition. On an appeal to the city council the petition was again denied, whereupon appellee filed this suit praying the relief which the council had denied.
After hearing much testimony the court made the following findings:
“The court, being well and sufficiently advised, doth find that the city of Little Rock failed to comply with the requirements of § 4 of act 108 of the Acts of 1929. Therefore, ordinance No. 5420 of the city of Little Rock, known as ‘The Zoning Ordinance,’ is void.
“The court further finds that the business district known as ‘Stifft’s Station,’ adjacent to the property of the plaintiff, was rightfully established; that it is a growing business district, and that by reason of the growth of said district, plaintiff’s property has beco.he undesirable for residence purposes; that there is a demand for an expansion of said business district 5 that the use of plaintiff’s property when a store building is erected thereon will not be hurtful in its use to adjacent property except as such proximity necessarily makes the locality less desirable for residence purposes; that, therefore, plaintiff has the right to use said property for business purposes and that any attempt on the part of the defendants to restrict the growth of the business district or to prevent the plaintiff from using her property for business purposes is unlawful and arbitrary and discriminatory.
“It is, therefore, considered, ordered, adjudged and decreed that the defendants, city of Little Rock and R. A. Boyce, city engineer of the city of Little Bock, Arkansas, be and they are hereby permanently enjoined from interfering with the construction, operation and use of a store building on lots 1 and 2, block 3, O'. S. 'Stifft’s addition to the city of Little Bock, Arkansas, and its officers, agents and employees, are permanently enjoined from prosecuting plaintiff or any of her employees or tenants from erecting or occupying the said store building.”
The effect of these findings would be to invalidate the entire ordinance under the holding in the case of Benton v. Phillips, 191 Ark. 961, 88 S. W. 2d 828, it being there held that compliance with act 108 of the Acts of 1929 was essential to the validity of such an ordinance. But we do not concur in that part of the court’s finding. We do think, however, that other findings of fact made by the court are abundantly supported by the testimony, and are certainly not contrary to the preponderance of the evidence.
Our leading case on the subject, and one which we have since consistently followed, is that of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883. That case upheld the power of cities to pass zoning ordinances imposing reasonable regulations of buildings, but it was there said: “As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the rights of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.”
Moreover, we are of the opinion that the testimony does not show that the property here in question was zoned as residential property on the map attached to the ordinance when it was passed. The city clerk, Mr. H. C. Graham, testified that the map had been prepared and various districts shown by crayon colors; that after the city engineer returned him the map, it has stayed in his office and the public had access to it; that the crayon markings were not permanent and could be erased; that the city engineer had a map of the original district, but it was not physically attached to the ordinance, but accompanied it when it was introduced in the council; that he had never certified a copy of the map to the circuit clerk for the reason that he had only the original.
The testimony on the part of appellee is to the effect that she desired to purchase lot No. 2 for the purpose of erecting a store building thereon, but before purchasing the lot she, in company with the agent of the owner having the property for sale, examined the map, and saw that the lot was zoned as business — and not as residential —property. To make this fact entirely certain the agent had the.city engineer write a letter reading as follows:
“Department of Public Works
“ J. E. McCook, Jr., City Engineer
“May 26, 3937.
“Mr. E. A. McCaskill,
‘ ‘McCaskill, Inc.,
“Exchange Bank Bldg.,
“City.
“Dear 'Sir:
“As per your request, be advised that lots 1 and 2, block 3, C. S. Stifft’s addition, in accordance with the new zoning ordinance, being ordinance 5420, is zoned for light commercial use, which permits use of this property for retail stores, office buildings, filling stations, etc.
“I trust that this is the information which you desire.
“Yours very truly,
“ J. E. McCook, Jr.,
“City Engineer.”
If the lot No. 2 was zoned as business property on the map when the ordinance was passed, its character as such would not be changed by alterations of the map made subsequent to the passage of the ordinance. We prefer, however, to predicate our opinion upon the finding of the court below that “plaintiff’s property has become undesirable for residence purposes; and that there is a demand for an expansion of said business district. . . . ”
If this finding is sustained by the testimony — and we think it is — then a permit should be granted, although the property may have been zoned as residential — and not as business — property when the ordinance was passed.
The power of the courts to review the action of the city council in the classification of property was expressly declared in the Pfeifer case, supra, and the existence of that power was reaffirmed in the cases of City of Little Rock v. Sun Building Co., 199 Ark. 333, 134 S. W. 2d 583, and McKinney v. City of Little Rock, 201 Ark. 618, 146 S. W. 2d 167.
The holding that the classification of a particular lot is arbitrary does not affect the validity of the ordinance as to other property the classification of which was not arbitrary. Equally so is this true where property zoned as residential property has ceased to be such.
It was held in the case last cited that the finding of the court upon an application for reclassification of property would not be disturbed where that finding was not contrary to the preponderance of the evidence. Here, the finding of the court is not contrary to the preponderance of the evidence, but is in accordance with it, and the decree will, therefore, be affirmed. | [
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John A. Fogleman, Justice.
This is a suit by the former wife of J. A. Gibson II against his present spouse seeking to recover damages for alienation of his affections. It was filed July 23, 1964. In Gibson v. Gibson, No. 5-3904, 240 Ark. 827, 402 S. W. 2d 647, it was held that the five-year statute of limitations was applicable in this case. Upon remand, appellee filed a motion to dismiss upon the ground that the cause of action was barred by this statute of limitations. This appeal is from the order of the trial court granting that motion.
The gist of an action such as this is loss of consortium, which includes the husband’s society, companionship, love and affection, and aid. Weber v. Weber, 113 Ark. 471, 169 S. W. 318; Watson v. Davidson, 141 Ark. 591, 217 S. W. 777; Hammond v. Peden, 224 Ark. 1053, 278 S. W. 2d 96. The cause of action accrues when this loss occurs without reference to. the date of the words or acts causing the loss. Miller v. Miller, 165 Md. 425, 169 Atl. 426 (1933).
Appellant alleged in her complaint that appellee engaged in acts of enticement and inducement directed toward J. A. Gibson II between January 1958 and June 1962, for the purpose of alienating his affections, resulting in abandonment of appellant, the institution of a suit for divorce by him, and the dissolution of the bonds of matrimony between them on June 29, 1962. A specific allegation is made with reference to conduct of appellee between August 3 and August 8, 1959, said by appellant to have been adulterous.
Prior to the filing of the motion appellant had admitted, in response to a request by appellee, that her former husband ceased to occupy the marital bed with her sometime in June 1958. She said, however that he neither left nor deserted their home then, but continued to reside with her for some period thereafter. She also admitted that he instituted a divorce suit on January 29, 1959, but stated that she felt and believed that a reconciliation could and would be effected, until the alleged acts in August 1959. She also stated that a divorce decree granted her husband December 18, 1960, was reversed and ultimately a divorce was granted her. In response to an additional request for admissions, appellant admitted that Gibson left the marital bed on or about June 13, 1958, but that she had no knowledge at that time that he intended to permanently abandon the home. She stated that he was in the home on numerous occasions, taking meals and occupying a bed until August 1959. She reiterated her belief that there was a possibility and hope of reconciliation until the August 1959 occurrences.
Hearing was held upon objections of appellee to these responses and a motion by her to require that ap pellant’s complaint be made more definite and certain. The court overruled the motion and ordered the taking of a discovery deposition of appellant. In this deposition appellant stated that she had not slept in the same bed with her former husband since June 12, 1958, and that they had not cohabitated as husband and wife since that date. She admitted that he had not kissed her since that time, but said that up until his marriage to ap-pellee, the meals he had eaten at their home were too nuimerous to count and named specifically Christmas and birthdays of children as special occasions. She testified that while they had not occupied the same bed at the same time, G-ibson had slept in their bed and she had seen him asleep in bed with the children at the home both day and night. She did not recall having seen him with his clothes off on any of these occasions. According to her testimony when Gibson, took a suitcase and left home on June 13, 1958, he said he was leaving because he had to get away for a while to think. She further stated that since that date they had discussed the possibility of his return to live with her as his wife, that he had asked permission to come to the home where she was residing many times, that she had tried to persuade him to come back and that he had actually come to the house many times, but not to live with her as his wife. She claimed to have first learned of adultery in August 1959. She said that she hoped and believed a reconciliation was possible until August of 1959 and actually until Mr. Gibson married appellee.
The plea of the statute of limitations must be raised by answer or demurrer. It can be raised by demurrer only when the pleading to which the demurrer is taken clearly shows that the cause of action is barred. Herpin. v. Webb, 221 Ark. 798, 256 S. W. 2d 44. Where the bar of the statute of limitation does not appear upon the face of a complaint, the issue cannot be raised by demurrer. Cranna v. Long, 225 Ark. 153, 279 S. W. 2d 828. It cannot be raised by demurrer unless the complaint shows not only that sufficient time has elapsed to bar the ac tion, but that there are no facts or grounds for avoidance of the statute. State v. McIlroy, 196 Ark. 63, 116 S. W. 2d 601; Rogers v. Ogburn, 116 Ark. 233, 172 S. W. 867. For example, it was held that a complaint to cancel a contract for fraud, which did not indicate when the plaintiff discovered the fraud, did not show on its face that the cause of action was barred by limitations. Driesbach v. Beckham, 178 Ark. 816, 12 S. W. 2d 408. If appellee’s motion to dismiss was considered as a demurrer, it should have been overruled as there is nothing in this complaint which shows that the cause of action was barred.
Generally, where the facts in a complaint do not show the action is barred by the statute of limitations, the defense must be raised by answer. Sanders v. Flenniken, 172 Ark. 454, 289 S. W. 485. In a proper case, however, a motion for summary judgment should be granted where it is clearly established that a claim is barred by the statute of limitations. Norwood v. Allen, 240 Ark. 232, 398 S. W. 2d 684. Since a discovery deposition was considered at the hearing of the motion and since appellant’s attorney considered that the proceeding was one for summary judgment when the discovery deposition was taken, it seems that the trial court must have considered appellees motion to dismiss as a motion for summary judgment. But the dismissal of appellant’s complaint whs error because we find that there is a genuine issue of fact as to the time when this alleged cause of action .accrued. According the weight of authority, the statute of limitations begins to run when the loss of affections or loss of consortium is sustained. It begins when alienation is fully accomplished, i. e., when love and affection are finally lost.. See, Annot., 173 ALR, 772, 774. The law presumes that there is always a possibility of reconciliation of husband and wife and this the law encourages. Amellin v. Leone, 114 Conn. 478, 159 Atl. 293 (1932). The mere fact that the spouses separated prior to the acts complained of does not constitute a defense in such actions where they are still married, as there might he a reconciliation. Michael v. Dunkle, 84 Ind. 544, 43 Am. St. Rep. 100 (1882). Since, even after a separation or estrangement, there is a possibility of reconciliation, an action will lie for conduct which prevents a reconciliation. Cooley on Torts, 4th Ed. % 167, p. 8. The actionable offense may consist of conduct which prevents a reconciliation. Cooley on Torts, 4th Ed. § 170, p. 22. A canse of action will not be defeated because a wife was estranged from her husband at the time of illicit relations with the husband, as the marriage relation and rights exist until the parties are separated by death or divorce. Rott v. Goehring, 33 N. D. 413, 157 N. W. 294, Anno. Cas. 1918 A. 643 (1916). See, also, Miller v. Pearce, 86 Vt. 322, 85 Atl. 620 (1912), 43 LRA (n. s.) 332 (1913). One spouse has the right to the possibility of regaining the conjugal society and affection of the other and a third person has no right to intermeddle between them even though they are estranged. 27 Am. Jur. 127, Husband & Wife, § 524.
This court has previously indicated that these marital rights do not survive divorce, by approving an instruction that acts and relationship after divorce of a husband and wife should not be considered as contributing to the alienation of affections. Hardy v. Raines, 228 Ark. 648, 310 S. W. 2d 494. It was said there that testimony as to such acts might, under the circumstances, be considered only as an aid to a determination of relationships prior to the divorce.
Inasmuch as the parties were divorced within five years next preceding the filing of this action, we cannot say that the cause of action is barred as a matter of law. Rather, the jury should determine as a question of fact when appellant lost her conjugal rights, including the right to regain the conjugal society and affection of her husband through reconciliation. We think that under the facts now before the court that this must have been sometime between the separation June 13, 1958, and the granting of the divorce to appellant, but other facts will likely be developed from which, a jury can make a proper determination.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Byrd, J., dissents. | [
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Hart, C. J.
On May 24, 1926, the appellees brought suit in equity against the appellants to cancel a deed by appellant road district to appellee Ferguson, and also to redeem the lands embraced in the complaint from the t)ax sale, if it should be held that the sale was valid. The suit was defended on the ground that the sale was valid and that the appellees’ time for redemption had expired.
The facts necessary to a decision of the issues raised by the appeal may be briefly stated as follows: Road Improvement District No. 9 of Grant County, Arkansas, was duly organized under the provisions of what is commonly called the Alexander Road Law. A. L. Ferguson had been the former owner of the lands involved in this suit, and had sold them to J. R. Kern. The lands were forfeited for the nonpayment of the road taxes for the years 1922 and 1923, while J. R. Kern owned them. Kern failed to pay the purchase price of the lands, and reconveyed them to A. L. Ferguson. The improvement district commissioners foreclosed in -equity the lien of the road district, and the lands were struck off to it at the foreclosure sale for the nonpayment of the road taxes for the years 1922 and 1923. On April 8, 1924, the lands were redeemed by A. L. Ferguson for the taxes for the year 1923. On December 19, 1925, a deed was executed by the commissioner who conducted the foreclosure sale to the commissioners of the road improvement district. On January 11, 1926, the road improvement commissioners executed a quitclaim deed to said lands to J. S, Walker. Other facts will be stated or referred to in the opinion.
The chancellor was of the opinion that the appellees were entitled to redeem said lands, and were allowed to do so upon the payment, within thirty days, of the delinquent road taxes found to be due. A decree was accordingly entered of record permitting’ the appellees to redeem said lands in accordance with the finding of the chancellor, and to reverse that decree the appellants have duly prosecuted this appeal.
The principles of law applicable to cases of this sort and numerous decisions announcing them are cited and reviewed in Northern Road Improvement District v. Meyerman, 169 Ark. 383, 275 S. W. 762, and no useful purpose could'be served by again extensively reviewing these principles. Where lands are sold at a tax sale and are struck off to a private purchaser, the sale for the delinquent taxes constitutes a contract between the purchaser and the State, or the instrumentality of the State, the obligation of which cannot be impaired by subsequent legislation extending the period of the right to redeem. ' Hence this court has held that the right to redeem in such cases from a tax sale is governed by the statute in existence at the time the sale is made, and no subsequent statute extending the period of time for the right to redeem is constitutional.
The title acquired by the State, or an instrumentality thereof, at a tax sale is not the same as that vesting in a private purchaser, since the object of the purchase is not the acquisition of the property, but rather the collection of the taxes. 37 Cyc. 1355, and Commissioners v. Lucas, 93 U. S. 108, 23 L. ed. 822. Hence the rule that a statute extending the time to redeem from a tax sale is not constitutionally applicable to sales made before its enactment is subject to an exception where the State or one of its instrumental subdivisions was the purchaser.
The Legislature may bind the State and its assignee by an act extending the time of redemption from tax sales, because, as to the State, the grant of additional time to landowners to redeem is with its ¡consent, and, las respects subsequent assignees of the title acquired by tbe State, they, of course, take subject to the conditions imposed by the existing statute. Case-note to 1 A. L. R. 145, 38 A. L. R. at 229; State v. Smith, 36 Minn. 456, 32 N. W. 174; Adhin v. Pillen, 136 Mich. 682, 100 N. W. 176; Pace v. Wight, 25 N. M. 276, 181 Pac. 430; Warner v. Pile, 105 Kan. 724, 185 Pac. 1041.
As we have already seen, the road district in question was organized under the general laws of the State, 'and the statute applicable at the time the lands were struck off to the district at the foreclosure sale for the nonpayment of the road taxes for the year 1922 was act No. 223 of the Acts of 1921, page 296, amending § 5440 of Crawford & Moses’ Digest. Under this act the period of redemption was two years, and it is claimed by counsel for the appellants that this act ¡applies. The record shows that the lands were struck off to the district and that it executed a quitclaim deed to J. S. Walker on January 11, 1926. This deed carried only such title as the road improvement district had at the time it was executed. St. Louis Refrigerator & Wooden Gutter Co. v. Langley, 66 Ark. 48, 51 S. W. 68. Thus it will be seen that the right of appellees to redeem depends upon whether or not the statute of 1925 extending the time to redeem the property sold for delinquent taxes in road improvement districts applies. See Acts of 1925, page 1033. Section 1 of that act reads, as follows:
“That the time for the redemption of any land or real property situated in any road improvement district in this State, on which default has been made in the payment of any annual assessment or installment upon the assessed benefits or betterments, shall be and is hereby extended for a period of three years, in addition to the period of redemption heretofore fixed by law for the redemption of lands for the nonpayment of such annual assessment in any and all improvement districts. ’ ’
Under the principles of law above announced, it cannot be questioned that it was competent to extend the time for redemption for property sold for the nonpay ment of road taxes, so far as the rights of the State or its instrumentalities are concerned. This brings us, then, to the question of whether or not the Legislature has expressed an intention to that effect in 1925. It will he noted that the language of the act is very explicit. It provides that the time for the redemption of any land situated in any road improvement district in the State on which default has been made in the payment of any annual assessment shall be and is hereby extended for a period of three years, in addition to the period of time heretofore fixed for the redemption of such land. The Legislature could not have more plainly manifested its intention to extend the period of redemption for a period of three years longer than that already given to the landowners. Under the statute in existence at the time the sale was made, in 1923, the landowner had a period of two years. ,Add to this three years, and this gave him five years within which to redeem his land. The period of redemption had not expired at the time this suit was brought. The purchaser from the road district stood in its shoes, under the principles of law ■above announced, and J. S. Walker, having purchased after the passage of the act of 1925 extending the period of redemption, acquired no greater rights than the road improvement district had. Hence the chancellor correctly held that the appellee- had a right to redeem, and the decree of the chancery court will therefore he affirmed. | [
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Humphreys, J.
Appellee sued appellant for a balance of $4,924.09 alleged to be due Mm by it for baskets and crates delivered to Dierks Lines Growers’ Association, an alleged subsidiary corporation, sponsored by appellant for tbe purpose of encouraging tbe growing of frMts, vegetables and other agricultural products. The baskets and crates were used by tbe Dierks Lines Growers’ Association for tbe shipment of tomatoes and cantaloupes.
Appellant filed an answer, denying liability on tbe account.
The cause was submitted upon tbe pleadings, tbe testimony introduced by tbe respective parties and tbe instructions of tbe court, which resulted in a yerdiot and consequent judgment against appellant for $3,852.07, from which is this appeal.
Appellee recovered tbe judgment appealed from upon tbe theory that, in purchasing tbe baskets and crates, tbe Dierks Lines Growers’ Association was tbe agent in fact for appellant. Appellant contends for a reversal of tbe judgment upon tbe alleged ground that there is no evidence in tbe record tending to show tbe agency. After tbe baskets and crates bad been delivered and used, appellee sent a telegram to appellant calling its attention to tbe account for which this suit wtas afterwards brought. He received a telegram in response as follows:
“Kansas City, Mo., 10:05 a. m. Deo. 13, 1926. “Horatio Basket Co., Horatio, Ark.
“Your account being looked after by Southerland, and he is out of city; will be back in two or three days, and immediately upon his return matter will have prompt attention.
“11:25 a. m. Dierks Lumber & Coal Co.”
Li response to telegrams or letters, appellee received the following telegrams and letter:
“Kansas City, Mo., 2:43 p.m., Dec. 22,1926. “Horatio Basket Co., Horatio, Ark.
‘ ‘ On your bill recently rendered you stated interest due as per agreement. We were not familiar with any agreement as to interest, and were compelled to refer to Murrah, and have not heard from him as yet.
“3:45 p.m. B. Southerland. ’ ’
“Kansas City, Mo., 9:32 a.m., Jan. 12, 1927. “Horatio Basket Co., Horatio, Ark.
“Please refer to our wire of yesterday. Mr. Southerland is out of town; however plans to be down at Horatio to see Mr. Kull early part of next week.
“10:30 a. m. Dierks Lumber & Coal Co.”
“Kansas City, Mo., 11:53 a. m., Jan. 20,1927. “Horatio Basket Co., Horatio, Ark.
“Southerland confined home account illness; feels will be able get down next Tuesday sure. He has complete charge of this matter. We are very anxious get Ibis straightened up, but it will be necessary for him personally handle it, as he is. familiar with all details.
“1:23 p.m. Dierks Lumber & Coal Co.”
“Dierks Lumber & Coal Company Manufacturers of Yellow Pine & Hardwood Lumber 1006 Grand Avenue.
“Kansas City, Mo., Jan. 27, 1927. “Horatio Basket Co., Horatio, Ark.
* ‘ Gentlemen: We havé your wire of January 20 and 21. The writer is now dictating from his home and‘is ill, for which you, of course, don’t give a damn. I am confident of that because you say in your wire you wouldn’t be out anything if I die, but I think that I will make the grade and you will be that much ahead at least.
“For your information, I have charge of this matter and will be down there and straighten it out as soon as I get well enough.
“You may be sure that your kindly solicitude as to my death is going to greatly hasten my recovery.
“Yours very truly,
“Dierks Lumber & Coal Coal Co.
“By R. Southerland.”
These telegrams and letter purported to come from appellant or R. Southerland, the one mentioned in the messages as the party looking after the account in question. Neither ¡appellant nor Southerland denied the authenticity of the telegrams and letter. Appellant objected to the introduction of the telegrams and letter upon the ground that the telegrams were signed by typewriter and the name “R. Southerland” by stamp. The office from which the telegrams were sent is beyond the jurisdiction of the court. The rule with reference to the introduction of telegrams is laid down in Ruling Case Law, vol. 10, page 1151, § 354, ¡and is as follows:
“A telegram delivered by the transmitting company is admissible in evidence where the original and the office from which it is sent are beyond the jurisdiction of the court. The authenticity of telegrams may be found from the fact that the alleged sender does not deny that he sent them, and that he knew their contents, ¡and acted in accordance with instructions contained in them.”
The letter introduced was written on the letterhead of appellant, and bore its typewritten signature, “By R. Southerland,” in stamp. The letter was received by mail in due course. The office in which it was written is out of the jurisdiction of the court.
Under the principle quoted in this opinion from Ruling Case Law, the ¡authenticity of the telegrams and letter were sufficiently established to be admitted in evi deuce. When the telegrams and letter are read together they practically admit initial liability on the part of appellant. Nowhere in the telegrams or the letter is it intimated that the account was an independent obligation of the Dierks Lines Growers’ Association. It is clearly inferable from the contents of the telegrams and letter that appellant knew all about the account. If appellant did not want to be bound by the contents of the telegrams and letter, it should have introduced proof to the effect that they were not authorized. Appellant also objected to the introduction of certain correspondence, in the nature of telegrams and letters, 'between June R. Morrell, an attorney in whose hands the account was placed for collection, and R. Southerland, for the same reason that it objected to the introduction o.f the other telegrams and letter. We think this correspondence was admissible, as the other telegrams designated R. Southerland as appellant’s agent for the adjustment of the account in question.
Appellant also objected to the introduction of an adjustment by appellant of an account between the Dierks Lines Growers’ Association with A. P. Steel, trustee for the 'Cannon estate. According to the testimony of A. P. Steel, appellant deducted one account from the other and paid the difference. We think this was admissible as a circumstance tending to show that appellant was backing the Dierks Lines Growers’ Association.
There is ample evidence of a substantial nature in the record to support the verdict and judgment. The court did not err in refusing to give appellant’s instruction for a directed verdict.
Appellant also contends for a reversal of the judgment because the court gave appellee’s requested instruction No. 2, which is as follows:
“If you find from a preponderance of the evidence that the Dierks Lines Growers’ Association purchased the merchandise in question for the Dierks Lumber & Coal Company without authority from the said Dierks Lumber & Coal Company to do so, yet if you find that the Dierks Lumber & Coal Company later ratified the act of the Dierks Lines Growers’ Association, then your verdict should be for the plaintiff as lagainst the Dierks Lumber-& Coal Company.”
The objection made to the instruction is that it assumes that the Dierks Lines Growers’ Association purchased the merchandise in question for the Dierks Lumber & Coal Company, and submitted to the jury only the question as to whether or not the purchase was made with or without authority from appellant. The instruction does submit the issue of authority to the jury, but only as preliminary to the issue of ratification. It does not assume that the Dierks Lines Growers ’ Association purchased the merchandise with authority from appellant.
No error appearing, the judgment is affirmed. | [
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John A. Fogleman, Justice.
This appeal requires that we determine whether the Chancery Court or Probate Court of Bradley County has jurisdiction of the sale of certain lands of decedent, H. E. Taylor, Sr., who died intestate, a resident of that county, on June 16, 1964. Taylor left as survivors: his widow, Beulah W. Taylor Doss; the appellee, a son by a previous marriage; and a minor daughter, of whom the widow is guardian. The widow was also appointed administra-trix. She filed her inventory, listing the real estate involved, on August 28, 1964. On December 3, 1965, the probate court made statutory allowances to the widow and minor child. It also made an ‘ ‘ Order of Partial Distribution.” That order recited that there were no unpaid claims pending against the estate and that the real property was already vested in the heirs subject to the widow’s dower of one-third for life. The order closed with this sentence:
“The possession of said property is not susceptible of partition in kind and the personal representative, or any interested person should file a proper petition in this court to seek the sale of said property for the purpose of distribution.”
Nothing in the record indicates that appellant has ever filed a final account as administratrix.
On March 22, 1967, appellee filed a petition for partition in the chancery court, alleging that the real estate was not susceptible to division in kind. He prayed that the property be partitioned or sold and the proceeds of sale divided among the parties according to their respective interests after the payment of attorney’s fee and costs. Appellant demurred to this petition individually, as administratrix and as guardian. The grounds of demurrer included contentions that there was another action pending between the same parties for the same cause and that the chancery court had no jurisdiction of the subject matter.
On June 2, 1967, appellant, as administratrix, filed a petition in probate court for the sale of this real prop erty. Appellee demurred to this petition on the ground that the petition for partition was pending in the chancery court. On June 12, 1967, appellee amended hjs petition for partition, seeking an accounting for the rents collected by appellant as administratrix. On the same day, the chancery court passed appellant’s demurrer “to be heard after the consolidation iof the petition to sell land filed by the Administratrix ** * .” No motion to transfer this petition or to consolidate the petitions had been filed by either party, but the probate court, on the same day, over the objections of the appellant, transferred and removed appellant’s petition for sale and the demurrer thereto to the chancery court and consolidated it with the partition proceeding. The next day appellant filed a motion to dismiss the suit on the ground that the court did not have subject matter jurisdiction of the property of which partition was sought. On June 14th, the probate court entered its order finding that the ad-ministratrix possessed the property and had collected rents, paid taxes, and kept the property insured under the authority of the order of partial distribution. The chancery court, on the same day, consolidated the probate proceedings with the chancery proceedings for final adjudication, overruled appellant’s demurrer and motion to dismiss, both being considered as a demurrer to the record as it then stood. Appellant elected to stand on her demurrers, so the chancery court entered a decree ordering sale of the lands for partition but directing that further proceedings be withheld pending disposition of this appeal. The partition decree contained findings that the administration had not been closed^ that the personal representative had been, and then was, in possession of the real estate for tne purpose of collecting rentals and preserving the property, and that the property was not susceptible to division in kind without great prejudice to the owners. The decree provided for sale upon three months’ credit. It b^arred the diower of appellant. Fixing of attorney’s fees, assessment of costs and expenses of sale, distribution of proceeds and accounting for rents were all continued pending the sale.
It is clear beyond doubt that tbe probate court bad exclusive jurisdiction lof tbe accounting by appellant as administratrix. In Phillips v. Phillips, 143 Ark. 240, 220 S. W. 52, an action in chancery to construe a will, it was held that tbe chancery court should have refused to entertain any jurisdiction to state accounts between an executor and certain legatees and devisees while tbe administration of tbe estate was still pending, there having been no final settlement of tbe accounts of tbe executor and no allegations or proof of fraud in the settlement of bis accounts. It was clearly said that these matters were exclusively within tbe jurisdiction of the probate court. Under the direct bolding in tbe cited case, tbe Probate Court of Bradley ¡County had original and exclusive jurisdiction of tbe affairs of tbe Taylor estate relating to th© accounts and settlements of tbe admin-istratrix, and tbe chancery court erred in taking jurisdiction of tbe accounting.
In considering tbe jurisdiction of the chancery court for the purpose of partition, we must determine just what jurisdiction each of the courts could exercise over this, property. There can be no doubt that when lands are released to the heirs early in a probate proceeding and there is no reason for the exercise of probate jurisdiction over them, the pendency of the probate proceedings does not preclude the maintenance of a partition suit in chancery. Boyd v. Bradley, 239 Ark. 120, 388 S. W. 2d 107. While the court there only mentions specifically that there was no claim that the lands were needed for payment of debts in treating of the exercise of probate jurisdiction, there was no indication that the lands in that case were needed for any probate purpose. One of the authorities cited there was Ark. Stat. Ann. § 62-2401 (Supp. 1963). It had previously been said in Cranna v. Long, 225 Ark. 153, 279 S. W. 2d 828, another of the authorities cited in the Boyd case, that real property was an asset in the hands of a personal representative only when needed to pay debts or expenses of administration under § 94, Act 140 of 1949, then Ark. Stat. Ann. § 62-2401. It was recognized in the Cranna case that, if Ark. Stat. Ann. § 62-2714 (for the sale, mortgage or lease of real estate) had been invoked, the status of the real property as an asset of the estate might have been changed. Since that decision, however, § 62-2401 has been amended by Act 424 of 1961 to provide that real property of decedent shall be an asset in the hands of the personal representative when the court finds that it should be sold for any purpose enumerated in § 127 of Act 140 (§ 62-2704). Thus, since the passage of the 1961 Act, title to the real estate of an intestate vests in his heirs at law upon his death, subject to the widow’s dower and sale for the payment of debts, the preservation or protection of the assets of the estate, the distribution of the estate, or any other purpose in the best interest of the estate. Ark. Stat. Ann. §§ 62-2401, 62-2704 (Supp. 1967).
Under § 62-2714, the probate court is authorized to order sale of real estate upon petition of an administrator. In determining what property shall be sold for distribution of an estate or for any other purpose in the best interest of the estate of an intestate, there is no priority as between real and personal property, and it is no longer necessary that one class of property be exhausted before resort is had to the other for these purposes. Ark. Stat. Ann. § 62-2701 (Supp. 1967). When real property has become an asset in the hands of an administrator, or when the court finds it necessary for the preservation of the property, for protection of the rights and interests of persons having interests therein or for the benefit of the estate, the personal representative may collect rents, pay taxes, make repairs, maintain and preserve the property, protect it by insurance, and maintain or defend an action for possession or to determine or protect the title, until the property is sold or delivered to the distributees or until the estate is settled. Ark. Stat. Ann. § 62-2401 (Supp. 1967).
The provisions of the probate court’s order of partial distribution clearly constitute a finding that the real estate should be sold for distribution. This finding is supported by the probate court’s order of June 14, 1962, declaring that the appellant, as administratrix, was and had been in possession of the property under the authority of that order. Consequently, the real property in question has been an asset in the hands of appellant, as administratrix, at least since the date of the order of partial distribution. Clearly, the probate court had, by these steps, assumed jurisdiction over these lands and the sale thereof.
In case of concurrent jurisdiction in different tribunals, the first exercising jurisdiction rightfully acquires control to the exclusion of, and without the interference of, the other. State v. Devers, 34 Ark. 188; Town of Salem v. Colley, 70 Ark. 71, 66 S. W. 195; Taylor v. Nelson, 184 Ark. 1005, 44 S. W. 2d 357; Jones v. Garratt, 199 Ark. 737, 135 S. W. 2d 859; Schirmer v. Cockrill, 223 Ark. 817, 269 S. W. 2d 300. In applying this principle to the present case, it seems clear that the two courts would have concurrent jurisdiction to sell the real estate: the chancery court for partition; the probate court for distribution or any other purpose in the best interest of the estate.
A close parallel is found in cases involving assignment of dower. Probate jurisdiction is given by Ark. Stat. Ann. § 62-704 et seq. Yet these statutes do not deprive the chancery court of its inherent jurisdiction. Johnson v. Johnson, 84 Ark. 307, 105 S. W. 869. The jurisdiction of the probate and chancery courts to assign dower in both real estate and personalty is concurrent. Shields v. Shields, 183 Ark. 44, 34 S. W. 2d 1068; Brennan v. McCarthy, 213 Ark. 286, 210 S. W. 2d 791. In the Shields case, an administrator had made and reported a partial assignment of a dower in personalty and undertook to state the balance due the widow thereon in his final settlement. It was held that the approval of the report was an assumption of jurisdiction by the probate court and the action of the chancery court in attempting to assign dower in the personal property on the petition of the widow was held to be an erroneous interference with the exercise of the concurrent probate jurisdiction. The chancery decree was reversed and the cause remanded with directions to dismiss the complaint and remit the parties to their remedies in probate.
It has also been held that proceedings for the assignment of dower in a probate court were not abated by the filing of a suit in equity by an heir seeking partition sale of lands of the decedent, on authority of the Shields case. Marsh v. Marsh, 230 Ark. 59, 320 S. W. 2d 754.
The exercise of jurisdiction of the chancery court is not prevented by reason of the widow’s unassigned dower under our present partition statute which authorizes partition of lands held as assigned or unassigned dower. Ark. Stat. Ann. § 34-1801 (Supp. 1967); Smith v. Smith, 235 Ark. 932, 362 S. W. 2d 719. Although the suit in the cited case was brought by the -widow, no reason is seen why. the same right is not given an heir by the inclusion of any persons having any interest in such lands among those who can petition for partition. In Goodlett v. Goodlett, 209 Ark. 297, 190 S. W. 2d 14, it was held that where a divorced wife was awarded an undivided one-third interest for life in certain real estate, with the remainder in the husband, there was such a tenancy in common as would authorize a partition suit by the husband. On the other hand, the widow claiming dower in real estate is a distributee in probate. Ark. Stat. Ann. § 62-2003 (Supp. 1967).
There are some differences in procedures in the proceedings in the two courts. For instance, the probate sale can only be after an appraisement is made. Ark. Stat. Ann. § 62-2716 (Supp. 1967). No appraisal is required in a partition' sale. Tbe probate sale may be at public or private sale. A public sale may not be for less than three-fourths of the appraised value and a private one for not less than the appraised value. The court may specify other reservations, restrictions, terms, and conditions. No probate sale may be held more than six months after the order therefor -without a new appraisal within thirty days preceding the sale. Ark. Stat. Ann. § 62-2717. None of these safeguards surround a partition sale. A probate sale may be upon credit for not to exceed 75% of the purchase price for not more than one year. Ark Stat. Ann. § 62-2707. The court making the order of sale for partition determines the terms and conditions of sale and the credit to be given. It seems that both are basically for sale of the real estate and distribution of the proceeds, however, so that the jurisdiction is concurrent.
The probate court assumed jurisdiction first, so the chancery court has erroneously undertaken to exercise jurisdiction. The decree of the chancery court is reversed and the cause is remanded with directions to dismiss the petition for partition and remit the parties to their remedies in the probate court.
The same statements are quoted and followed in Calmese v. Weinstein, 234 Ark. 237, 351 S. W. 2d 437, decided November 27, 1961, but the decree appealed from was rendered before the passage of the Act to which reference is later made. | [
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John A. Fogleman, Justice.
Appellant insurance company seeks reversal of an adverse judgment in a suit by one of its insured for an automobile collision loss. The only dispute between the parties was the amount to which appellee was entitled under the policy. Appellant states three points for reversal, to wit:
I. The jury’s verdict was contrary to the law and to the evidence.
II. The trial court committed reversible error in giving instruction no. four.
III. The trial court committed reversible error in refusing to grant a mistrial for the improper remarks of counsel for plaintiff in his opening statement.
I.
The gist of appellant’s argument on this point is that there was no definite proof of the value of the Rambler automobile at the time of the purchase or at the time immediately preceding the accident and that the person testifying as to the salvage value of the automobile was not qualified to do so. The dealer who sold the automobile to appellee was the only witness called by appellee on the question of values. He had been a Rambler dealer for 10 years. He sold the vehicle to ap-pellee about May 23, 1965. He could not recall the date when appellee’s car was wrecked, but it was brought into his place of business and had remained there. This dealer stated that he was familiar with the vehicle, that he believed that he was acquainted with its fair, reasonable market value immediately before the wreck and that he made an inspection of the car to determine its salvage value. He testified that the salvage value was about $350.00' and that the market value before the collision was approximately $2,350.00 or $2,400.00. He considered the vehicle to be a total loss. He estimated that the total cost of repair would be about $1,650.00, but that the vehicle could not be restored to the condition it was in immediately before the wreck. On cross-examination he stated that the list price of the automobile was $2,400.00 or $2,500.00 and that the actual sales price was probably less than, but close to, that amount. He could not give the date of the wreck, but could only say that it was in November 1965. His estimate of repairs was made in April 1966.
Appellant now complains that there was no definite proof of the value, either before or after the collision, since the dealer was not qualified to testify about salvage values and since he prefaced his statements of value with the words “about” and “approximately.” Because of this, appellant claims that appellee’s recovery was limited to the cost of repairs. Appellant made no objection to the testimony of this witness in this regard, however, and he is not now in any position to raise these questions. Sandidge v. Sandidge, 212 Ark. 608, 206 S. W. 2d 755. Absolute certainty should not be required of a witness on values. The use of the qualifying words by the witness in stating values does not make his testimony legally insufficient to support a verdict. See St. Paul Fire & Marine Ins. Co. v. Martin, 204 Ark. XVIII, 165 S. W. 2d 606.
Appellant urges that its witness Crabtree was a highly qualified appraiser and that his testimony, contrary to that of the dealer, established that the vehicle could have been repaired for a total of $547.48. The testimony presented fact issues for the jury. The credibility of these witnesses and the weight to be given their testimony were matters which have been resolved against appellant by the verdict.
II.
Appellant asserts that the trial court erred in giving an instruction to the jury describing the measure of damages as the difference in the fair market value of appellee’s automobile immediately before and immediately after the collision, but permitting consideration of the reasonable costs of repairs. This contention is based upon a limitation of liability in the policy which reads:
“The limit of the company’s liability for loss shall not exceed the actual cash value of the property, or if the loss is of a part thereof the actual cash value of such part, at time of loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, nor with respect to an owned automobile described in this policy, the applicable limit of liability stated in the declarations.”
Appellant made only a general objection to the giving of the instruction and offered no instruction. Since appellant made no specific objection pointing out the defect in the instruction and did not offer an instruction containing the limitation on recovery which it now contends should have been incorporated, we can only consider whether the instruction given was inherently wrong. Laflin v. Brooks, 180 Ark. 1167, 22 S. W. 2d 169; Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629; St. Louis San Francisco Ry. Co. v. Friddle, 237 Ark. 695, 375 S. W. 2d 373. The instruction was not inherently wrong. An instruction is inherently erroneous only when it could not be correct under any circumstances. Abel of Arkansas, Inc. v. Richards, 236 Ark. 281, 365 S. W. 2d 705. Where an alternative limit on the liability of an insurance company is the actual cash value of an automobile, the instruction given is correct. Southern Farm Bureau Ins. Co. v. Gaither, 238 Ark. 50, 378 S. W. 2d 211; Resolute Ins. Co. v. Mize, 221 Ark. 705, 255 S. W. 2d 682.
III.
In his opening statement, the attorney for appellee stated that the jury would have to allow the appellee the full amount prayed for in the complaint to enable ap-pellee to recover attorney’s fees and a statutory penalty. Motion for mistrial was made and denied after the trial judge admonished the jury not to consider the remarks. We need not consider whether there was error in the failure of the court to grant a mistrial because of the improper statement. Appellee sought a $2,000.00 recovery in his complaint, but during the trial -reduced this amount to $1,950.00. The jury returned a verdict for $1,750.00. It is obvious that appellant was not prejudiced. We will not reverse for error where it is evident that it did not affect the verdict. Lamden v. St. Louis Southwestern Ry. Co., 115 Ark. 238,170 S. W. 1001; U. S. Express Co. v. Rea & Co., 121 Ark. 284, 181 S. W. 888; Williams v. Newkirk, 121 Ark. 439, 181 S. W. 304; Street v. Shull, 187 Ark. 180, 58 S. W. 2d 932; Van Houten v. Better Health Ins. Ass’n of America, 238 Ark. 815, 384 S. W. 2d 465.
Since we find no prejudicial error, the judgment is affirmed. | [
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Smith, J.
Appellant was found guilty of voluntary manslaughter and given a sentence of four years in the penitentiary upon his trial under an information charging him with the crime of murder in the first degree, alleged to have been committed by shooting one Newt Chandler. The shooting was admitted and self-defense was pleaded.
The testimony was voluminous and sharply conflicting in many essential respects, but that offered by the state is sufficient to sustain the verdict of the jury, indeed, it would sustain a higher sentence. It is to the following effect. An automobile driven by appellant collided with another driven by one Overholt. A fight ensued, and Overholt was badly beaten. Chandler, the deceased, and his father, were seated in an upstairs room in a building in the city of Fayetteville' situated across the street from the scene of the fight, and they witnessed it, and they went to the scene of the fight for the purpose, as stated by deceased’s father, of stopping it. The deceased said to appellant: “Burton, you haven’t got any business beating that old man up.” "When appellant-said: “It is none of your d-business,” and began striking deceased. Deceased and appellant clinched, and during the struggle appellant shot deceased. According to the testimony offered in behalf of appellant, the de ceased took up the fight where Overholt left off, and attempted to take appellant’s pistol from him, and in the struggle for its possession' the pistol was fired, without any intention of firing it, and the deceased was killed. Appellant was a deputy sheriff, and at the time of the collision of his ear with that of Overholt he was taking two prisoners to the municipal court. These issues of facts were submitted to the jury under appropriate and correct instructions.
For the reversal of this judgment it is insisted that the verdict is contrary to the law and the evidence, and that appellant was not given the benefit of the reasonable doubt raised by the testimony. These assignments of error are answered when we say that it was the province of the jury to weigh the testimony and to decide what testimony should be believed, and that offered by the state is sufficient to support the verdict.
It is assigned as error that the trial court erred “in admitting in evidence the alleged extra-judicial confession of the defendant, and in failing to instruct the jury that it should not be considered unless found to be freely and voluntarily made.”
The statement referred to as an extra-judicial confession was one which appellant had signed shortly after having been arrested and placed in jail. We find nothing in this statement substantially conflicting with the testimony given by appellant at his trial. But, even so, the statement was introduced without objection.
We have frequently defined the practice where it is contended that a confession offered in evidence was not freely made. This practice is for the court to hear, as a preliminary matter, in the absence of the jury, testimony as to the circumstances under which the confession was made, and to exclude it from the jury if it were not freely made. If, however, thére is an issue of fact as to whether the confession were freely made, that question should be submitted to the jury after having heard the testimony as to the circumstances under which it Avas made, and the jury should be told to disregard the confession if it Avere found not to Iiraw been voluntarily made. That was not done here, nor was it requested that it should be. No instruction on this question was given, but none was asked. One may not complain of the inaction of the court who does not request the court to act. It is the duty of one who wishes the court to submit an issue to the jury to ask an instruction which does so. See, Brashears v. State, 203 Ark. 600, 160 S. W. 2d 505.
The action of the court in excluding the testimony of Harrison Leach and Johnnie Pennell is assigned as error. Deceased’s father was asked on his cross-examination if his son were not of a pugnacious nature, and the answer was “No.” The father was then asked if his son did not shoot one Harrison Leach. The father answered that when his son was 15 years old he had shot at Leach to scare him. Leach and Pennell were called to prove that this was not a boyish prank, but the court excluded that testimony.
The only error in this respect was in permitting the introduction of any testimony in relation to the incident; but appellant is in no position to complain, as he was the offending party who injected that question into the case. It would have been proper to show that deceased was of a violent and turbulent disposition; but this could only have been done by proof of his general reputation to that effect, and not by proof of specific acts of violence having no relation to the offense charged. It was held in the case of Shuffield v. State, 120 Ark. 458, 179 S. W. 650, that neither good nor bad character can be proved by specific acts or deeds. See, also, White v. State, 164 Ark. 517, 262 S. W. 338.
Error is assigned in permitting the prosecuting attorney to ask appellant on his cross-examination if he had not been arrested and required to give bond “for shooting a man at Lincoln.” It was said in the case of Parnell v. State, 163 Ark. 316, 260 S. W. 30, that: “The next assignment relates to the ruling of the court in permitting the prosecuting attorney to interrogate appellant, on cross-examination, concerning arrests on other charges. This was done over the objection of appellant, and exceptions were duly saved. We have frequently held that it is improper to permit a witness to he interrogated concerning mere accusations, or indictments for crime. There are so many of those decisions that it is unnecessary to cite any of them in support of this statement of the law.”
While the admission of this testimony last referred to was error, it was invited error. In support of his good character, appellant had voluntarily stated that he had never been arrested. Having made that statement, it was not error to permit the state to show by the cross-examination of appellant himself that the statement was not true.
The testimony supports the verdict, and as no error appears the judgment must be affirmed, and it is so ordered. | [
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McHaney, J.
Appellee is a citizen, resident and taxpayer of Little Rock, Arkansas. He is a barber and operates a barber shop at 2202 South Maple street, Little Rock, charging 25 cents for a haircut and 20 cents for a shave. Appellants are members of the State Board of Barber Examiners, by authority of act No. 313 of 1937.
Appellee brought this action against appellants to enjoin them from establishing and promulgating a minimum price to be charged by barbers in Little Rock at 40 cents for a haircut and 20 cents for a shave, which he alleged they were about to do, under the provisions of act No. 432 of 1941, in violation of the Constitutions of this state and of the United States. He further alleged that said act 432 is unconstitutional and void, especially § 3 thereof. A temporary restraining order was granted. Appellants demurred on the grounds of lack of jurisdiction of the court and failure of the complaint to state a cause of action. The demurrer was overruled. Appellants declined to plead further and a decree was entered making the temporary order permanent. This appeal followed.
The business or profession of the barber is an ancient and honorable one. The New International En-cyclopaedia says: ‘ ‘ The office is of great antiquity and is referred to by the prophet Ezekiel: ‘And thou, son of man, take thee a barber’s razor, and cause it to pass upon thine head and upon thy beard.’ From ancient monuments and papyri we know that the Egyptians shaved both the beard and the head. In all eastern countries including China, the shaving of the whole or part of the head continues to be performed by barbers. The barber shops of Athens and Rome were great meeting places for idlers and gossips, and in provincial towns they continue to serve such purpose up to the present day.” Barbers once practiced elementary medicine and surgery and were known as barber surgeons and the red band around the barber pole with a basin at the bottom still are insignia of this ancient practice, the reel band representing’ the bandage used to stop the bleeding incident to the operation and the basin to catch the blood. The barber is celebrated in song and story, and at least two operas were built about him — the Barber of Bagdad and the Barber of Seville — the latter being perhaps the most tuneful opera ever composed, and the part of Figaro, the barber in it, has been sung by many of the great singers of modern times.
Act 432 of 1941 became a law without the Governor’s signature. No significance is to be attached to this fact, except he too may have thought the Legislature had exceeded its powers. After declaring that it is found to be a fact that the public health and safety cannot be protected under the present law, referring’ to act 313 of 1937, and that the present schedule of prices for barber services is the result of unfair and uneconomic trading practices, it is said in § 1, that: “The purpose of this act is the protection of the public safety, health, welfare and general prosperity, and the provisions herein contained for the establishment of minimum prices for barber services, minimum commissions or wages of barbers, and opening and closing hours for barber shops are hereby expressly declared, as a matter of legislative determination, to be the only means by which in this instance the public safety, health, welfare and general prosperity can be adequately and effectively protected.”
Section 3 provides that the Board of Barber Examiners shall be empowered to establish minimum price schedules for barber work, minimum commissions to be paid to barbers for their services, and opening and closing hours for barber shops in cities of the first or second class or incorporated towns in the manner and with the limitations therein provided. We do not set out these provisions as they are too long to copy and we do not deem them pertinent here. Power is conferred on the Board to adopt and enforce all rules and orders necessary to carry out the provisions of the act. Section 5. By § 10, a violation of the act or any rule, subpoena or order of the Board is made a misdemeanor punishable by fine or imprisonment or both. Broad powers are con ferred on the Board in the granting, suspension and revocation of licenses to barbers in § 11.
What we said at the beginning of this opinion about the business or profession of the barber was said for the purpose of emphasizing the fact that it is one of common right, subject to proper regulation under the police power, and, as we said in State, ex rel. Attorney General v. Gus Blass Co., 193 Ark. 1159, 105 S. W. 2d 853, “ Statutes limiting and regulating occupations which before were of common right can find no excuse except as they relate to the public and are for its benefit.” Act 313 of 1937, digested as § 12069, et seq. of Pope’s Digest, being an act to regulate the practice of barbering, etc., was sustained as a valid exercise of legislative powers in Beaty v. Humphrey, State Auditor, 195 Ark. 1008, 115 S. W. 2d 559. Act 198 of 1939, ‘similar in all respects to the act now under consideration, a price fixing act, was attacked in the lower court on the grounds that it never became a law1, because improperly passed, and, if not so, that it deprived the plaintiff of his civil liberties and property in violation of his constitutional rights. The attack was sustained in the lower court on both grounds. On appeal it was conceded that the act was improperly enacted and never became a law, and this court sustained the lower court on this ground, not passing on the other. McDougal v. Davis, 201 Ark. 1185, 143 S. W. 2d 571.
One of the contentions made in the case of Beaty v. Humphrey, Auditor, was that said act 313 constituted an unnecessary duplication of state agencies having power to prescribe sanitary regulations, in that the State Board of Health already prescribed such regulations. This contention is mentioned to emphasize the fact there is full, ample and plenary power, already vested in appellants and in the State Board of Health, to safeguard the public health by prescribing sanitary and other regulations of barber shops.
That portion of § 1 of said act 432, above quoted, where the Legislature declared that the purpose of the act is the protection of the public health, safety, etc., is the declaration of a non-existent fact. The fact that the Legislature so declared the purpose of the act does not make it so, if, in fact, the declared purpose has no substantial connection with the real purpose of the act. The real and only purposes of the act were to confer power. on appellants to establish (1) minimum price schedules for barbers; (2) minimum commissions to be paid to barbers for their services; and (3) opening and closing hours for barber shops. Now just what connection these three purposes have with the “protection of the public safety, health, welfare and general prosperity,” or with either of them, is difficult to perceive. How can the price a barber charges for a haircut or shave, or the commission the owner pays the barbers, or the hour the shop opens or closes affect the public safety, health, welfare or prosperity? Such connection is visionary and not real. In line with what we have just said, Am. Jur., vol. 11, p. 1077, it is said: “The mere assertion by the Legislature that a statute relates to the public health, safety, or welfare does not in itself bring that statute within the police power of a state, for there must always be an obvious and real connection between the actual provisions of the police regulations and its avowed purpose and the regulation adopted must be reasonably adapted to accomplish the end sought to be attained. A statute or ordinance which has no real, substantial, or rational relation to the public safety, health, moral, or general welfaré is a palpable invasion of rights secured by fundamental law and cannot be sustained as a legitimate exercise of the police power. One application of the familiar rule that the validity of an act is to be determined by its practical operation and effect, and not by its title or declared purpose, is that a constitutional right cannot be abridged by legislation under the guise of police regulations. The exercise of the power must have a substantial basis and cannot be made a mere pretext for legislation that does not fall within it. The Legislature has no power, under the guise of police regulations, arbitrarily to invade the personal rights and liberty of the individual citizen, to interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations, or to invade prop erty rights. ”
Tlie state of Louisiana has an act similar to our act now under consideration. In Board of Barber Examiners v. Parker, 190 La. 214, 182 So. 485, the court first held the act invalid by a four-to-three decision. On rehearing, by a five-to-two decision, the act was sustained. Chief Justice 0 ’Niell filed a dissenting- opinion, from which Judge McKinney of the Supreme Court of Tennessee quoted with approval in State v. Greeson, 174 Tenn. 178, 124 S. W. 2d 253, as follows: “The only question in these cases is whether a statute authorizing a public board to fix the minimum fees that a barber may charge for his services really tends to protect the public health. It does not dispute that the barber’s trade is one which may endanger the public health, and which is therefore subject to regulation by the Legislature. But I do not see how an act of the Legislature prescribing the minimum fees— or delegating- to a public board the authority to prescribe the minimum fees — that a barber may charge for his services can protect, or have a tendency to protect, the public health. The only appropriate way in which the Legislature can protect the public health or promote the public welfare, in that respect, is to establish sanitary requirements and regulations, to maintain cleanliness in the barber shops, and to guard against unhealthy barbers, to prescribe qualifications and standards of efficiency, and to enforce them by means of examinations, or by requiring- terms of apprenticeship. If a barber complies with all of the requirements of efficiency, and all of the sanitary regulations, as laid down by the Board of Health or by the Board of Barber Examiners, it cannot possibly endanger the public health or the public welfare.”
It was there (Tennessee case) further said: “This class of legislation, that is, fixing prices, is new and likely resulted from the decision of the Supreme Court of the United States in Nebbia v. New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A. L. R. 1469, decided March 5, 1934, in which the court sustained a statute fixing the price of milk in New York. A dissenting opinion was filed in that case, concurred in by four members of the court. The various acts fixing prices to be charged by barbers, to which our attention has been directed, were passed since the decision in the Nebbia case.” The following are some of the cases where the courts have held similar legislation invalid, in addition to the Tennessee case: Duncan v. City of Des Moines, 222 Ia. 218, 268 N. W. 547; State, ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394; Mobile v. Rouse, 233 Ala. 622, 173 So. 266, 111 A. L. R. 349; Hollingsworth v. State Board of Barber Examiners, 217 Ind. 373, 28 N. E. 2d 64. The decisions in all these cases are based on the fact that the statutes of those states are not regulatory, but are mere price fixing statutes, or a delegation of the power to fix prices to a board, which have no real or substantial relation to the public safety, health, welfare or prosperity, and are thus distinguishable from the Nebbia case. In the Tennessee case, the further observation is made: “If the act in question is valid, then the Legislature can directly, or through a board, fix the fees that physicians and dentists may charge for their services; the prices that hotels, restaurants and lunch counters may charge for food; the prices of meats, packing house and canning factory products; and so on ad finitum until the liberty of the individual and the right to contract is destroyed.” We agree with the principles announced in this case and the other cases above cited as also others that might be cited.
Appellants rely on the case of Nebbia v. New York, supra; West Coast Hotel Co. v. Parrish, 300 U. S. 379, 57 S. Ct. 578, 81 L. Ed. 707, 108 A. L. R. 1330; Board of Barber Examiners v. Parker, supra; and a few other price fixing cases. The West Coast Hotel case overruled, by -a five-to-four decision, the former case of Adkins v. Children’s Hospital, 261 U. S. 525, 43 S. Ct. 394, 67 L. Ed. 785, 24 A. L. R. 1238. In the West Coast Hotel case it was held that a statute of the state of Washington, which authorized the fixing of reasonable minimum wages for women and minors in any industry ór occupation in that state was not invalid as being in violation of the due process clause of the Federal Constitution. We cannot agree that said case is controlling here, nor can we agree with the reasoning in the Louisiana barber price fixing case, or the other cases cited so holding, some of which are State v. McMaster, 204 Minn. 438, 283 N. W. 767; Ex parte Herrin, 67 Okla. Cr. 104, 93 Pac. 2d 21; Arnold v. Board of Barbers, 45 N. M. 57, 109 Pac. 2d 779.
We, therefore, conclude that said act 432 of 1941 is unconstitutional and void, as we think it is in violation of § 1 of the 14th Amendment to the Constitution of the United States providing: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”; but if not, then it is certainly in violation of §§ 2, 18, 19 and 29 of article II of the Constitution of this state.
The decree is accordingly affirmed. | [
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McHaney, J.
Appellee is tlie named beneficiary in a health and accident policy issued by appellants to her husband, Mack E. Drake. The policy was for $2,000 and insured him against loss of life, limb, sight or time resulting from purely accidental means and against loss of time from disease. One of its provisions was: “If the member shall, through accidental means, sustain bodily injuries as described in the insuring clause, which shall, independently and exclusively of disease and all other causes, immediately, continuously and wholly disable the member from the date of the accident or within ten days therefrom and result in any of the following specific losses within ninety days from the date of such accident, the brotherhood will pay the following amounts, to-wit:
“For loss of Life — The principal sum, and in addition, the monthly benefit for the period between date of accident and date of death. ’ ’
Another provision of the policy, relating to notice is: “(4) Written notice of injury or of sickness on which claim may be based must be given to the brotherhood within twenty days after the date of the accident causing such injury or within ten days after the commencement of disability from such sickness. ... (5) Such notice given by or on behalf of the member or beneficiary, as the case may be, to the brotherhood at its home office in Cleveland, Ohio, or to any authorized representative of the brotherhood, with particulars sufficient to identify the member, shall be deemed to be notice to the Brotherhood. Failure to give notice within the time provided in this certificate shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible. ”
Based on said policy, appellee brought this action to recover the principal sum and alleged that on January 15, 1941, her husband, the said Mack E. Drake, while performing his duties as a conductor for the St. Louis-Southwestern Railroad Company, was struck by moving freight cars, through purely accidental means, which, independently and exclusively of disease and all other causes, immediately, continuously and wholly disabled him within the meaning of part one of the policy from the date of the accident, or within ten days therefrom, and resulted in his death on February 14, 1941.
She prayed judgment for $2,000 on account of the death of insured, $80 as monthly benefit from date of accident to death, and $100 additional death benefit by reason of part three of the policy, or a total of $2,180. The answer was a general denial, but by amendment, it admitted appellee was entitled to receive $13.33 as compensation for loss of time due to illness, which amount was tendered.
Trial resulted in a verdict and judgment for $2,100 against appellant, from which is this appeal.
Under the undisputed facts presented by this record, appellee was confronted by two insurmountable obstacles the existence of either of which prevented a recovery by her, and entitled appellants to an instructed verdict in their favor. One is the failure to give the written notice of the alleged accidental injury suffered by deceased within the time required by the policy. The other is that deceased was not disabled as defined in the clause above quoted “from the date of the accident nor within ten days therefrom.”
As to the first proposition, it is claimed that Mr. Drake was struck and injured by moving ears on the night of January 15, 1941, at about 1:30 a. m. No one saw the accident, but we assume for the purpose of this opinion, that the evidence as to his having received an accidental injury at that time was sufficient to take the question to the jury. But it is undisputed that shortly thereafter he left on his run as conductor of a freight train and performed all his duties as such to the satisfaction of his employer, and that he continued to make all his runs and to perform all his duties until February 3, his last run being completed on February 2. One of the brakemen of the last run Drake made, G-. B. Fountain, testified that he was able on that trip, from Pine Bluff to Jonesboro and return, to perform all his duties as conductor in the regular and usual manner, looking after the placing or setting out of cars. The railroad records showed that from January 15 to February 2, 1941, he made ten round trips out on the .road, working eighteen, days. On February 7,1941, he mailed a card to appellants postmarked that date, intended as a claim for disability in which he gave his name, address and lodge number. In answer to the question “Was disability due to accident?” he answered “No.” The questions following, calling for “date of accident” and “nature of injury,” were left blank. All other questions on the card were left blank and unanswered, including one relating to whether disability was due to illness, except the questions, “When did you’quit work?” the answer being, “2 months 2 date 7:30 a. m. ” and some others, not material here.
The policy requires notice of accident to be given within twenty days after the accident and none was given within that time. It is further provided that: “Failure to give notice within the time provided . . . shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.” We do not think this clause helps appellee for two reasons : (1) that he worked for 18 days continuously from the date of the alleged accident, during which time he could have given the notice, and (2) he did actually give notice of disability not due to accident and must have been because of illness, although he failed to say so, as the policy covered only disability for accident and for illness. In said notice he very definitely, stated that his disability was not due to accident; therefore, it must have been for illness. So, appellee wholly failed to show that it was not reasonably possible to give such notice and that same was given as soon as was reasonably possible. In Business Men’s Assurance Co. v. Selvidge, 187 Ark. 1040, 63 S. W. 2d 640, we said: “It is well settled that stipulations as to giving notice in policies of this character are reasonable and valid, and that where a written notice is required an oral notice is not sufficient. Also, that these provisions are for the purpose of giving opportunity for an early investigation of claim and injury. ’ ’
As to the second proposition, the policy provides, as above quoted, that if the member shall suffer bodily injuries through accident, “which shall . . . immediately, continuously and wholly disable the member from the date of the accident or within ten days therefrom and result in any of the following specific losses, etc.” Again assuming an accidental injury which he himself denied in writing, it is perfectly obvious and undisputed that Mr. Drake was neither immediately, continuously nor wholly disabled “from the date of the accident nor within ten days therefrom,” and, therefore, if his death on February 14 was the result of the alleged accident, it was not covered by the clear and unambiguous language of the policy. He was not disabled, as provided, either from the date of the accident nor within ten days thereof, but, on the contrary, as stated above, he went out right away on his run and worked every day from January 15 to February 2, both inclusive. It is difficult to understand how a man can be totally and permanently disabled, and yet perform all the material and substantial duties of liis work. In this respect, this case differs from Mut. Ben. Health & Acc. Assoc, v. Bird, 185 Ark. 445, 47 S. W. 2d 812, and other'cases cited and relied on by appellee. .
For either or both reasons, the learned trial court should have directed a verdict for appellant. Not having done so, the judgment is reversed and, as the case, appears to have been fully developed, it will be dismissed, except that since appellant admitted it owed appellee $13.33, judgment for this amount will be awarded here. | [
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Donald L. Corbin, Justice.
In this worker’s compensation case, appellants appeal the decision of the Court of Appeals affirming the decision of the Workers’ Compensation Commission holding that appellants were responsible for the payment of the remarriage lump sum benefits under Ark. Code Ann. § 11-9-527(d)(1) (1987). City of Fort Smith v. Tate, 38 Ark. App. 172, 832 S.W.2d 262 (1992). Appellants filed a petition for review with this court on June 12, 1992, which was granted on June 29, 1992. On review, wé affirm the decision of the Court of Appeals. Since we find it difficult to improve on the well-reasoned opinion of the Court of Appeals, we adopt their opinion almost verbatim.
Appellee, William Tate, was killed in January of 1981 during the course of his employment with the Fort Smith Police Department. He was survived by his wife, Anita, and two minor children. The claim was accepted as compensable and appellants began paying death benefits. At the time of Tate’s death, the maximum liability of an employer or its carrier in weekly benefits was $50,000.00. Appellants reached payment of the maximum amount in August of 1988. The Death and Permanent Total Disability Trust Fund (Fund) then began making the weekly benefit payment, as required by Ark. Code Ann. § 11-9-502(b)(2) (1987). On June 8, 1990, Anita remarried and requested the 104-week lump sum award provided pursuant to section 1 l-9-527(d)(l). It is the availability of this lump sum award that is at issue in this case.
At the hearing before the administrative law judge, appellants contended that the Fund was liable for the lump sum payment. Relying on Death & Permanent Total Disability Trust Fund v. Tyson Foods, Inc., 304 Ark. 359, 801 S.W.2d 653 (1991), the administrative law judge concluded that appellants were responsible for payment of the lump sum benefit. In Tyson Foods, Inc., we addressed whether Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976) (now codified at Ark. Code Ann. § 11-9-502(b)(1) and (2) (1987)), and Ark. Stat. Ann. § 81-1315(d) (Repl. 1976) (now codified at Ark. Code Ann. § 1 l-9-527(d)(l) (1987)), allowed an employer or its insurance carrier to credit the 104-week lump sum payment made pursuant to section 81-1315(d) against its statutory liability for “weekly benefits” pursuant to section 81-1310(c)(2). We said:
Section 81-1310(c)(2) clearly places a maximum amount upon “weekly benefits” for death and permanent total disability for which an employer or his insurance carrier is liable; significantly, however, the section does not provide for the inclusion of any other benefits in computing the maximum amount for which the employer or his insurance carrier is liable.
[A] dependent widow is entitled to weekly benefits until death or remarriage. Upon her remarriage, a widow’s weekly benefits terminate, and she receives a lump sum benefit equal to 104 weeks of the compensation to which she was entitled before marriage.
[T]he lump sum payment is not a weekly benefit. Therefore, [the employer or his insurance carrier] is not entitled to credit the lump sum payment against its maximum statutory liability.
Id. at 361-62, 801 S.W.2d at 655.
On appeal before the full Commission, appellants raised a new argument, contending that Anita was not qualified for the lump sum benefit because of the “limiting language” found in section 1 l-9-527(d)(l). That provision states:
In the event the widow remarries before full and complete payment to her of the benefits provided in subsection (c) of this section, there shall be paid to her a lump sum equal to compensation for one hundred four (104) weeks, subject to the limitation set out in §§ 11-9-501-11-9-506.
(Emphasis added.) Subsection (c), to which this provision refers, sets out the amounts the beneficiaries are entitled to receive. It refers back to Ark. Code Ann. §§ 11-9-501 to -506 (1987). Section 11-9-502 specifically provided at the time of Tate’s death that the employer’s liability for weekly benefits ceased at $50,000.00 and that the Fund thereafter became liable for benefits.
Appellants base their contention that the Commission erred in finding them responsible for the lump sum benefit on the “before full and complete payment” language in section 11-9- 527(d)(1). Under section 11-9-502, a widow’s entitlement to benefits will never end unless she dies or remarries, but the employer’s liability does cease at $50,000.00. Appellants argue that since the only type of benefit that can be fully and completely paid is the employer’s maximum liability for weekly benefits, the widow must remarry before the employer or carrier pays the full $50,000.00 in order to qualify for the lump sum benefit.
In a well-reasoned opinion, the Commission observed that the “full and complete payment” phrase does create uncertainty when considered in light of the unlimited nature of the benefits provided in section 1 l-9-527(c), but rejected appellants’ contention that Anita was not qualified for the lump sum benefit. Based on the reasoning discussed below, the Commission determined Anita was entitled to receive the lump sum benefit and that appellants were responsible for payment of the benefit.
As did the Commission and the Court of Appeals, we find it helpful to review the history of this provision and related provisions. The provision containing the language in question was part of the original Workers’ Compensation law that was passed in 1939. See Act of 319 of 1939, §§ 15(b) and 15(d). Under this act, a widow’s weekly benefits were limited to a total sum of $7,000.00. Initiated Act No. 4 of 1948 increased this amount to $8,000.00. Initiated Act No. 1 of 1956 again increased the limit, setting it at $12,500.00. Therefore, as originally enacted, a widow’s entitlement to weekly benefits was limited and “full and complete payment” of a widow’s weekly benefits was possible prior to either her remarriage or death.
In 1968 the legislature eliminated the statutory limitation on the total amount of death benefits payable to the dependents of a deceased employee. In 1973, a new provision was added, limiting the employer’s liability to the first $50,000.00 in weekly benefits and making the Fund liable for the weekly benefits in excess of $50,000.00. Although these new provisions were enacted, changing the nature of a widow’s benefits from limited to unlimited, the “full and complete payment” language was left in the provision regarding the lump sum benefit.
The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988). Statutes relating to the same subject should be read in a harmonious manner if possible. All statutes on the same subject are in pari materia and must be construed together and made to stand if capable of being reconciled. Id. Provisions of our Workers’ Compensation Act are to be construed liberally in favor of the claimant. Id. In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the matter. Hanford Produce Co. v. Clemons, 242 Ark. 240, 412 S.W.2d 828 (1967).
As pointed out by the Commission, the statutory history of the provisions in question reflects an effort to balance the need to limit the total liability of employers and carriers against the need to adequately compensate employees and their dependents. The delimitation of benefits in 1968 and the establishment of the Fund in 1973 reflects the goal of adequately compensating the widow and dependents of a deceased employee. The obvious purpose of the lump sum benefit provision upon remarriage is to lessen the disincentive to remarry that would be inherent in a flat cutoff of dependency benefits. See 2 Arthur Larson, The Law of Workmen’s Compensation § 64.42 (1992). This disincentive for marriage does not cease to exist when the employer reaches his maximum liability in weekly benefits; it continues indefinitely because the widow continues to receive benefits from the Fund. Therefore, the need for the reduction of the disincentive, in the form of a lump sum payment, is still needed even after the employer reaches his maximum liability.
Significant also is the fact that the limit on an employer or its carrier’s liability under section 11-9-502 applies only to weekly benefits. The employer or its carrier is still responsible for any benefits in addition to weekly compensation to which the claimant is entitled. See, e.g., Tyson, 304 Ark. 359, 801 S.W.2d 653. It is therefore not inconsistent with the limitations on liability'found in section 11-9-502 to require the employer or its carrier to pay the lump sum benefit.
The Commission noted that although its interpretation of the statute does leave the “full and complete payment” language without meaning under the current statutory scheme, the interpretation proposed by appellants would create a ground for termination of a widow’s entitlement to receive the lump sum benefit upon remarriage that it is not evident from the language of the statute. Such a construction would be in favor of the employer and therefore violate the requirement that we liberally construe workers’ compensation law in favor of the claimant. See Ashby, 294 Ark. 412, 743 S.W.2d 798.
We agree with the Commission’s finding that allowing the widow to receive the lump sum payment at the time she is remarried, regardless of whether the employer or its carrier has reached its maximum liability in weekly benefits, is the only interpretation of the statute that is consistent with the plain language of the statute, the history of the provisions in question, and the purposes underlying these provisions. It appears that the “full and complete payment” language was inadvertently left in from a time when it had some relevance and, in light of the delimitation on a widow’s weekly benefits, it is now meaningless surplusage. Although a statute should be construed to give meaning and effect to every word therein if possible, Locke v. Cook, 245 Ark. 787, 434 S.W.2d 598 (1968), unnecessary or contradictory clauses in acts will be deleted and disregarded in order to give effect to the clear legislative intent. See Cherry v. Leonard, 189 Ark. 869, 75 S.W.2d 401 (1934), and cases cited therein.
The decision of the Commission that appellee’s widow is entitled to lump sum remarriage benefit and that appellants are liable for payment of that benefit and the Court of Appeals’ decision are affirmed.
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John I. Purtle, Justice.
In our opinion of December 8, 1980, we affirmed the order of the trial court. On petition for rehearing we reverse and remand. Inasmuch as the December 8, 1980, opinion was been published, we will restate the facts.
This appeal is from an order of the Pope County Probate Court allowing the appellee (widow) to take against the will of decedent, Carl J. Stokes. Appellants argue that several Arkansas statutes and a part of the Arkansas Constitution are. invalid because they violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. We agree with the contention of the appellants.
January 4, 1975, decedent, Carl J. Stokes, executed a will in which he bequeathed 30 acres of land and personal property to Charlene Wilson. The residue of his property was bequeathed to his two adult children. He married Charlene Wilson shortly after executing the will. During the marriage between Charlene and the decedent they disposed of the 30 acres mentioned in the will. Carl J. Stokes did not execute another will after the marriage to Charlene, appellee herein. He died on January 15, 1979, leaving appellee as his widow and Ronald E. Stokes and Nancy Stokes Cornwell, appellants, as the beneficiaries under the will of January 4, 1975. Appellants were his only children and were the named beneficiaries in the will which was admitted to probate on January 17, 1979- Ronald E. Stokes was appointed executor of the will.
April 27, 1979, appellee filed an election pursuant to Ark. Stat. Ann. § 60-501 (Repl. 1971) to take against the will. November 1, 1979, the executor conveyed certain real properties to James R. Ford and his associates. On the same day Ford and associates mortgaged the property to the Bank of Ozark. November 6, 1979, appellee filed a petition for assignment of dower in the property sold to Ford as well as other property. Ford and associates and the Bank of Ozark were made parties to the petition. Appellants amended their response to the petition of the widow by alleging Ark. Stat. Ann. §§ 60-501 - 60-507, §§ 61-202 - 61-233, §§ 62-701 - 62-727, §§ 62-2501 - 2502, and Art. 9 § 6 Constitution of Arkansas were unconstitutional inasmuch as they violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. They further alleged these statutes violated the Fifth Amendment to the United States Constitution and were arbitrary and discriminatory as they were gender based thereby failing to provide due process and equal protection to a husband. By order dated April 15, 1980, the probate court assigned dower and granted statutory allowances to appellee.
Appellants appeal from the order granting the petition by the widow to take against the will. They argue that the statutes allowing the widow to take against the will are unconstitutional. They also argue that the appellants have standing to bring this action.
We first consider the question of whether the appellants had standing to seek the relief they sought. We will consider standing only as it relates to Ronald E. Stokes and Nancy Stokes Cornwell because the interest of the other appellants flow out of any right the children of Carl J. Stokes may have in this matter. There is no question but that appellants must have suffered injury or belong to a class which is prejudiced by a statute or constitutional provision before they have standing to challenge its validity. According to Arkansas law of descent and distribution, the property of a decedent becomes vested in the heirs or legatees at the time of his death. There is no question that the decedent’s two children would eventually have an interest in the property, as they are the only heirs at law of Carl J. Stokes. However, the dispute is whether they have a present standing to bring this action. It is obvious that they have a direct monetary interest in the outcome of this lawsuit. If the widow cannot take against the will, then the appellants will divide Carl J. Stokes’ estate. Obviously, the estate is considerably reduced if the widow is allowed to take against the will as directed by the probate court. It is ap parent that by the widow taking against the will the interest of the surviving heirs is diminished. We do not think the claim of the children of Carl Stokes rests upon the legal rights of another. Each of the two children of the decedent will stand an immediate monetary loss if the probate court is upheld. Therefore, we find appellants do have standing to bring this action. Barrows v. Jackson, 346 U.S. 249 (1953); Eisenstadt v. Baird, 40 U.S. 438 (1972).
We now consider the Arkansas laws relating to the right of a widow to take against the will. We will consider here only the provisions of the law which are in issue and were argued in the briefs. We will not consider the validity of other laws which are based on gender. The dissent in the original opinion, which is now the majority opinion, pointed out that other statutes would fall when the time came. The time is here.
The United States Supreme Court has clearly indicated it will stike down all gender based laws which do not serve a legitimate governmental purpose and are reasonably designed to accomplish that purpose. Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102 (1979); Wengler v. Druggist Mutual Insurance Company, 446 U.S. 142 (1980); Califano v. Goldfarb, 430 U.S. 199 (1977); Califano v. Westcott, 443 U.S. 76 (1979); Stanton v. Stanton, 421 U.S. 7 (1975); Trimble v. Gordon, 430 U.S. 762 (1977).
The first statute to be considered will be Ark. Stat. Ann. § 60-501 which reads as follows:
When a married man dies testate as to all or any part of his estate, or when a married woman dies leaving as her Last Will and Testament one executed prior to her marriage, the surviving spouse shall have the right to take against the will; and in the event of such election the rights of the surviving spouse in the estate of the deceased spouse shall be limitd to the following:
(a) The surviving spouse, if a woman, shall receive dower in the deceased husband’s real estate and personal property as if he had died intestate, which dower shall be additional to her homstead rights and statutory allowances;
(b) The surviving spouse, if a man, shall receive a curtesy interest in the real and personal property of the deceased spouse to the same extent as if she had died intestate.
(c) But if after the assignment of dower or curtesy, as the case may be, and the payment of all statutory allowances, taxes and debts, and the satisfaction of all testamentary gifts and devises, there shall remain some residue of the deceased spouse’s estate which is not disposed of by will, then, provided the deceased spouse shall have been survived by no natural or adopted child (or the descendants of any natural or adopted child), and by no parent, brother, sister, grandparent, uncle, aunt, great grandparent, great uncle or great aunt (or the lineal descendants of any of them), the surviving spouse will take by inheritance such undisposed of residue.
There is no question but that § 60-501 is gender based. The question then is whether the statute serves an important governmental function and if so is the statute geared to achieve that objective. Decedent could not, while he was married, dispose of any of his real property nor could he do so by will as to the interest of appellee. On the other hand, the wife (widow) was free to dispose of any or all of her interest in real property at any time she decided to do so. We do not believe this statute meets the test and hereby declare Ark. Stat. Ann. § 60-501 unconstitutional.
We think the rationale of Orr v. Orr, supra, is applicable in the present situation. We have applied Orr in cases where we have ruled certain statutory provisions relating to divorce unconstitutional. Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979). In Hatcher we ruled Ark. Stat. Ann. § 34-1210 unconstitutional because it was gender based. We think that Ark. Stat. Ann. § 60-501 has the same infirmities as Ark. Stat. Ann. § 34-1210.
The second statute which appellant claims is unconstitutional is Ark. Stat. Ann. § 61-201. This statute simply gives the widow a dower right of one third of the lands which her husband was seized that the time of his death. For the reasons previously stated this statute is also unconstitutional. This statute gives the widow a dower in not only the lands which her husband was seized at the time of his death but any lands held by him at any time during the marriage. It has the same defect as those previously mentioned and is declared unconstitutional. Ark. Stat. Ann. § 61-202 gives the widow the right to one third of the personal property which her husband owned at the time of his death. There is no complementary statute which allows a husband to take this type of property against a will. We cannot see any governmental function in this statute. It, too, must be declared unconstituitonal. We also are asked to consider Ark. Stat. Ann. § 61-203- This is an attempt to broaden the grants in the above statutes by allowing the widow to take dower in bonds, bills, notes, accounts and evidence of debt which her husband owned at the time of his death. It has the same defects as the other statutes. Ark. Stat. Ann. § 61-207 has the same infirmity as mentioned above in § 61-201. This statute gives the wife dower interest in property which her husband may have disposed of during the marriage without her consent. Again, the husband has no equal rights. In fact, he has no rights against the wife’s conveyances. Ark. Stat. Ann. § 61-208 is simply another way of saying that the widow has rights in her husband’s property. It is merely an expansion of rights previously conferred by other statutes. Having the same infirmities as the other, it must fail as an unconstitutional statute. Ark. Stat. Ann. § 61-210 gives a widow dower interest in property which was mortgaged by the husband before the marriage. This right was against everybody except the mortgagee. In any event, it is gender based and is hereby declared unconstitutional.
We next consider Ark. Stat. Ann. § 62-2501. This statute provides for certain benefits to widows and minor children. We hold this statute invalid as it relates to the rights conferred upon a widow. There are no rights provided for a surviving husband. The statute involves both homestead and dower. Therefore, we hold only the dower provisions of this statute unconstitutional. Since homestead and minor children rights are not involved in the action before us, we do not make a decision relating to the rights granted these people under the above statute.
Finally, we consider the argument that Art. 9 § 6 of the Constitution of the State of Arkansas is unconstitutional. We recognize that the above provision is gender based. However, in keeping with precedent, we do not decide the validity of this provision of the constitution because homestead is not involved in the case before us.
Reversed and remanded with directions to proceed in a manner not inconsistent with this opinion. | [
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Donald L. Corbin, Justice.
On August 23,1990, a cooler was found floating in Lake Norfork, Baxter County, Arkansas. It contained cement and the torso of a white female severed at the upper thighs and lower back. The Arkansas State Police and the Baxter County Police conducted an investigation which led them to believe the torso as that of Lou Alice Brenk. Appellant, Herbert Fred Brenk, who was Lou Alice Brenk’s husband was a suspect. On September 10, 1990, Albert Roork, Chief of Police for the City of Salem, who was aware of the investigation and that appellant was a suspect had a warrant issued for appellant’s arrest for an unpaid DWI fine from 1988. Before arresting appellant on the warrant, Chief Roork contacted, David Lafferty of the Baxter County Police who was involved with the investigation of the discovery of the cooler, to make sure that his arrest of appellant would not interfere with their investigation. Officer Lafferty relayed this message to Bill Beach, who was also investigating the discovery of the torso. Investigator Beach told Officer Lafferty to tell Chief Roork to arrest appellant if he had a valid arrest, but not to do so on behalf of the Baxter County Police. Officer Lafferty relayed this message to Chief Roork. Chief Roork arrested appellant at the home of Lonnie Hodges. At the time of his arrest, appellant had a blood alcohol content of .08. Appellant was on probation in Fulton County for theft/shoplifting at the time of his arrest. A condition of appellant’s probation was that he not use or have in his possession any intoxicating beverages. Since appellant’s blood alcohol content violated a condition of his probation, Chief Roork notified appellant’s probation officer, Billy Benton, and Mr. Benton filed a petition to revoke appellant’s probation. Mr. Benton advised appellant that he would need an attorney for the revocation hearing. Appellant requested that his attorney, Tom Garner, be present for the hearing. Mr. Benton informed the sheriffs department that Mr. Brenk wanted an attorney. On September 12,1990, the Sheriff of Fulton County, Paul Martin, informed Tom Garner that appellant wanted to talk to him.
On September 11, 1990, the torso was identified as that of Lou Alice Brenk and suspicion settled on appellant, her husband, as the prime suspect. On September 12,1990, the Baxter County Police, Bill Beach, Lieutenant Frame, and Sergeant Alman, interviewed appellant at the Fulton County Jail, where he was still being held for failure to pay his DWI fine and pending a hearing on the petition to revoke probation. At that time, appellant consented to talk to the Baxter County officers about the disappearance of his wife, Lou Alice. Appellant answered several questions, but indicated he would like an attorney when the officers questioned him about his ownership of the cooler in which Lou Alice’s remains were found, at which point the interview ceased.
Appellant was charged with capital murder in connection with the death of Lou Alice Brenk on September 13,1990, anda warrant was issued for his arrest that same day. Appellant’s counsel also entered their appearance on September 13, 1990, and formally requested that he not be interviewed without their permission. A jury trial was held June 17 through July 1,1991, at which appellant was found guilty of capital murder and sentenced to death by lethal injection by a jury in connection with the death of his wife Lou Alice Brenk. Appellant appeals his conviction on eleven (11) grounds. Our jurisdiction is proper under Ark. Sup. Ct. R. 29(l)(b).
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR DIRECTED VERDICT
We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence and address it first since the double jeopardy clause precludes a second trial when a conviction in a prior trial is reversed solely for lack of evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). We must decide this issue on appeal even though the case is being reversed and remanded on other grounds. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). “In considering the issue, we disregard other possible trial errors.” Id. at 301, 761 S.W.2d at 897.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Lukach, 310 Ark. 119, 835 S.W.2d 852. In determining the sufficiency of the evidence, we. need only ascertain that evidence most favorable to appellee and it is permissible to consider only that testimony which supports the verdict of guilty. Id.; Moore, 297 Ark. 296, 761 S.W.2d 894.
At trial, evidence was introduced that appellant owned the cooler in which the remains of his wife were found. Appellant had access to the saw which was determined to have been used to cut up Mrs. Brenk’s body. Two people who had been in jail with appellant testified at trial. One of these people, Ted Ullman, testified that appellant admitted to killing his wife and the other, William Lemmons, testified that appellant said that if he had it to do over again he’d make sure he put the portion of his wife’s body that was found with the other portions so he wouldn’t get caught. Several witnesses testified that they asked appellant about Lou Alice’s whereabouts at the time the coroner testified she was already dead and he told them differing stories about where she was. Appellant told some people that Lou Alice had gone to visit her daughter and others that she had left him for another man, but her daughter never saw Lou Alice and reported Lou Alice missing after it became clear that no one in the family knew where Lou Alice was. In his interview with the police of September 12,1990, appellant said his wife left him on August 24 and he saw her again on August 31 when she returned, gave him some money and took all her clothes. Appellant also told the police that on September 9, he received a note from Lou Alice at their trailer telling him they were through and she wanted a divorce. Appellant also told the police that Lou Alice had taken the rest of her things at that time. Lying about Lou Alice’s whereabouts at a time when she was clearly dead indicates a consciousness of guilt on the part of appellant and attempts to cover up a crime are admissible. See Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982); Flowers v. State, 30 Ark. App. 204, 785 S.W.2d 242 (1990). This constitutes substantial evidence from which the jury could have concluded appellant murdered his wife, Lou Alice Brenk.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS HIS SEPTEMBER 12, 1990, STATEMENT
Appellant claims the statement he made to the Baxter County Police on September 12, 1990, is inadmissible for two reasons. First, appellant claims his arrest by Chief Roork on failure to pay a DWI fine was pretextual and the statement obtained from him by the Baxter County Police, on September 12, 1990, while he was in the Fulton County Jail on that charge was the “fruit of the poisonous tree” and was inadmissible. Second, appellant had been advised by his probation officer, Billy Benton, that he would need counsel for his revocation hearing and had requested counsel for that purpose. Appellant argues that this request invoked both his Fifth and Sixth Amendment rights to counsel, prohibiting the use of any in custodial statement made by him after that request without the presence of counsel. We disagree with both of appellant’s contentions.
Pretext is a matter of the arresting officer’s intent, which must be determined by the circumstances of the arrest. Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). Here, Chief Roork testified at a pretrial hearing that he arrested appellant because he knew appellant was being investigated, knew appellant owed almost $500.00 on a DWI, and was aware appellant had been selling things and had turned off his electric service. Therefore, Chief Roork testified that he was afraid appellant would flee the area and the city would be unable to collect its fine. Chief Roork testified that appellant could have gotten out of jail by paying the fine and posting a bond for his revocation hearing. Credibility of the witness is a matter for the trier of fact and such determinations will not be disturbed on appeal when there is substantial evidence to support the factfinder’s conclusion. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). Additionally, there is no indication in the record that Chief Roork or the Salem City Police attempted to question appellant about the disappearance of his wife, the cooler, or any other related matter. The Baxter County Police, who were investigating the cooler, specifically told Chief Roork not to arrest appellant on their behalf, but to arrest him if he had a valid warrant. Also, it was not until one day after appellant’s arrest for failure to pay his DWI fine that the torso was identified as that of Lou Alice Brenk and not until two days after his arrest for the DWI charge that appellant was questioned by the Baxter County Police. On these facts, we do not find the arrest was clearly pretextual.
Appellant also contends his request to his probation officer for counsel to represent him at his revocation hearing invoked his Fifth Amendment right to counsel such that any statement he made without the presence of counsel should not be used at trial. In the recent case McNeil v. Wisconsin, _ U.S. _, 111 S. Ct. 2204 (1991), the Supreme Court held an accused’s invocation of his Sixth Amendment right to counsel during a judicial proceeding does not constitute an invocation of the right to counsel derived by Miranda v. Arizona, 384 U.S. 436 (1966), from the Fifth Amendment’s guarantee against compelled self-incrimination. As in the McNeil case, appellant invoked his Sixth Amendment right to counsel for a judicial proceeding unrelated to the present charge, but did not make any indication that he only wished to deal with the police through counsel and, therefore, did not invoke his Fifth Amendment right to counsel. The Sixth Amendment right to counsel is case specific. Appellant’s request for counsel to represent him at the revocation hearing applied only to the revocation matter and not to any other potential charges. Since appellant did not invoke his Fifth Amendment right to counsel by indicating that he wished to deal with the police only through counsel, the Edwards rule which appellant cites does not apply. Edwards v. Arizona, 451 U.S. 477 (1981). We find appellant’s September 12, 1990, statement was properly admitted under McNeil. McNeil, _ U.S __, 111 S. Ct. 2204. The interview properly ceased at the point appellant indicated he did not wish to communicate with the police without the assistance of counsel.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTIONS TO SUPPRESS EVIDENCE WHICH WAS SEIZED PURSUANT TO VARIOUS SEARCH WARRANTS
Appellant objects to the introduction of evidence seized pursuant to three search warrants, which he claims are invalid. Appellant claims there were insufficient facts presented to any of the magistrates to establish reasonable cause for the issuance of any of the warrants, the warrant issued by Judge Judith Bearden was defective because she did not have authority to issue warrants in Baxter County, and the search by the police of appellant’s trailer, van, the 1974 Buick and adjacent block building on October 9, 1990, was an unauthorized nighttime search. Lastly, appellant contends all the evidence seized from any of the searches was a result of his pretextual and illegal arrest and should be suppressed as “fruit of the poisonous tree.”
We have already determined that appellant’s arrest on the DWI fine was not pretextual. Therefore, we need only address appellant’s other arguments.
Appellant claims there were insufficient facts presented to any of the magistrates to establish reasonable cause for the issuance of any of the warrants. We find there was probable cause established to search appellant’s home, trailer, and vehicles. The affidavit attached to each search warrant was identical. They each established the remains were about three weeks old, had been identified as Lou Alice Brenk, appellant had told several people he wished to kill his wife during the past two years, and appellant had been telling different stories about Lou Alice’s whereabouts for approximately the time period from which the body part was found to the present. Appellant had also said that he “wanted to throw his wife over the bridge” and that she was so heavy and big he needed help to “get her down to a size so he could handle.”
The task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the [judge] had a “substantial basis for . . . concluding]” that probable cause existed.
Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Clearly, a crime was committed and it is logical that if appellant killed his wife, cut her up, put her torso in a cooler filled with cement and tossed it into the lake, evidence of this crime would probably be found where he was living, on property he owned, and in the vehicles he drove. This certainly is a substantial basis for concluding there was probable cause to issue a search warrant for appellant’s home, property, and vehicles.
Appellant also contends the warrants are invalid because they fail to indicate a specific time the criminal activity took place. The affidavit does indicate that the torso was found August 23,1990, and had been exposed to postmortem decomposition for a period of time not exceeding three (3) weeks. We think this is a sufficient indication of the time when the crime was committed.
Appellant’s only challenge to the search warrant issued by Judge Jim Short on September 11, 1990, was that the affidavit failed to establish probable cause, failed to establish the time during which the criminal activity occurred, and failed to establish that evidence of the crime would be found in appellant’s white frame house in Salem, Arkansas. As we have discussed above, the affidavit attached to the warrant was sufficient to establish probable cause, establish the time during which the criminal activity occurred, and establish that evidence of the crime would likely be found in appellant’s house.
Appellant contends the warrant issued by Judge Bearden on September 11, 1990, was invalid because Judge Bearden was a Municipal Judge of Marion County without a written exchange agreement pursuant to Ark. Code Ann. § 16-17-206 (Supp. 1991) valid in Baxter County and, therefore, had no jurisdiction to issue a search warrant in Baxter County. Appellant’s construction would have us limit the ability of a judge to issue a warrant to affect only property in the county in which the judge has jurisdiction. Section 16-17-206 is not applicable. The statute which controls a judicial officer’s ability to issue a search warrant is Ark. Code Ann. § 16-82-201 (1987). It provides in pertinent part: “A search warrant may be issued by any judicial officer of this state only upon affidavit sworn to before a judicial officer which establishes the grounds for its issuance.” Ark. Code Ann. § 16-82-201(a). The applicable statute does not give any indication that the jurisdiction of a judicial officer in issuing search warrants is limited to the county in which the judicial officer was elected or appointed. In fact, it expressly provides that a search warrant may be issued by any judicial officer. We refuse to find that judicial officers are limited to issuing search warrants only in the counties in which they were elected or appointed and, therefore, find that the search warrant issued by Judge Bearden was valid.
Appellant next contends that the evidence seized as a result of the search warrant issued by Judge Crain on October 8, 1990, should be excluded because the warrant did not authorize a nighttime search and a nighttime search was conducted. Appellant is correct that the search warrant executed by Judge Crain did not authorize a nighttime search. However, we have said that as long as a search is begun before 8:00 p.m. and is concluded as soon thereafter as feasible, the search does not violate the ban against nighttime searches. Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977). This search was initially begun on October 8, 1990, at 5:15 p.m. and terminated at 8:00 p.m. The warrant was extended by Judge Crain to October 9, 1990, and a search was begun at 3:15 p.m. until 5:15 p.m., a break was taken and the search recommenced at 8:00 p.m. and lasted until 9:50 p.m. This does not violate our prohibition against nighttime searches. The original search on October 9, 1990, was begun at 3:15 p.m. and the additional search was commenced at 8:00 p.m. This was a continuation of the earlier search, it was not a new search. Since the initial search on October 9,1990, was begun before 8:00 p.m. and ended as soon thereafter as feasible, 9:50 p.m., the ban against nighttime searches was not violated.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION IN LIMINE TO EXCLUDE TESTIMONY CONCERNING VARIOUS LUMINOL TEST RESULTS
Appellant claims it was error for the trial court to admit the results of luminol testing under the relevancy approach of the Uniform Rules of Evidence we adopted in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). This relevancy approach was expressly adopted by this court after the conclusion of appellant’s trial. The trial court denied appellant’s pretrial motion to exclude the results of the luminol testing done by the state’s expert witness, Donald Smith, finding it admissible under the Frye standard as a scientifically recognized test for a number of years. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). While the evidence may well be admissible under the Frye standard, “ [t] his court has never adopted the Frye standard even though we signaled it as ‘see’ in a per curiam opinion. See Dumond, v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).” Prater, 307 Ark. 180, 185, 820 S.W.2d 429, 431. Instead, we recently adopted the more liberal standard based upon the relevancy approach of the Uniform Rules of Evidence. Id.
Under Prater, the trial court is required to
conduct a preliminary inquiry which must focus on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case. [Citation omitted.]
Under this relevancy approach, reliability is the critical element. . . . The relevancy approach, unlike the Frye standard, permits, but does not require, a referendum by the relevant scientific community to determine the reliability of the technique. Many times that factor alone will determine the issue. On the other hand, courts may look to a number of other factors which bear upon reliability. These include the novelty of the new technique, its relationship to more established modes of scientific analysis, the existence of specialized literature dealing with the technique, the qualifications and professional stature of expert witnesses, and the non-judicial uses to which the scientific techniques are put. [Citation omitted.]
The frequency of erroneous results produced by a novel scientific technique is an important component of reliability. . . .
... [as is] proof of the use of the correct protocol during the specific test.
After assessing the reliability of the evidence, the trial court must also weigh any danger that the evidence might confuse or mislead the jury. . . .
This Rule 702 determination of whether the evidence might confuse or mislead the jury is separate from a Rule 403 weighing. Under the relevancy approach, the proponent of the evidence must first prove that it is reliable and will not confuse or mislead the jury. If the court rules that it is admissible under Rule 702, the opponent of the evidence might then object to it on the basis that its probative value is outweighed by unfair prejudice, or it is a waste of time, or it is needless presentation of cumulative evidence. A.R.E. Rule 403.
The third general consideration under the Rule 702 relevancy analysis is whether the proposed expert testimony is sufficiently tied to the facts of the case to aid the trier of fact in resolving the dispute. The proponent of the evidence must show the trial court precisely how the expert’s testimony is relevant and helpful to the case. Failure to make this proof is a sufficient ground to exclude the evidence.
Prater, 307 Ark. at 186-190, 820 S.W.2d at 431-34.
We have not previously decided whether the results of luminol testing can be admitted at trial. The issue was raised in Larimore v. State, 309 Ark. 414, 833 S.W.2d 362 (1992), but we did not address it because we could not determine from the briefs which part of the luminol testing had been admitted at trial or why this was alleged to be error. The issue has been sufficiently presented to us in the instant case for our consideration.
Luminol testing was done of appellant’s trailer, his car, his van, and the block building behind his trailer. The luminol testing was conducted by Donald Smith, criminalist for the Arkansas State Crime Lab. Appellant filed a motion in limine to prohibit introduction of the results of the luminol testing. This motion was denied and appellant renewed his objection to this evidence at the time it was admitted. Several photographs showing the results of the tests on these areas were admitted at trial and Mr. Smith testified in detail about the results of the luminol tests he conducted, indicating on drawings of the building, trailer and car where he obtained positive reactions.
We find the admission of this evidence was error. As the state’s witness, Donald Smith, and appellant’s witness at the hearing on the motion in limine, Robert Briner, both testified, and as appellee concedes in its brief, luminol is only a preliminary test which indicates the possible presence of blood. Evidence presented at the hearing on the motion in limine established that luminol testing is unable to indicate the definite presence of blood, much less determine whether any possible blood present is human or animal. Luminol testing is done by spraying a luminol reagent on the item or in the area to be tested. Luminol reacts with certain metals and vegetable matter as well as blood, animal and human to give off a light blue luminesce similar to a luminescent watch dial. It is impossible to tell without follow up testing which of the possible reactants is causing the reaction. Further testing is necessary to determine whether what caused the reaction is actually blood and whether, if blood, it is animal or human blood. Luminol testing, without any additional testing, is unreliable to indicate the presence of human blood. Additionally, luminol is not time specific. That is, a reaction will occur even many years after a reacting substance has been in place, so it is impossible to tell how long the substance that is causing the reaction has been in place.
In this case, very little additional testing was done to determine whether the substances causing the luminol reaction were human blood since a minute amount of blood was actually found. The only samples which could be found and which tested positive for human blood consisted of a small speck of blood found on the back of a kitchen drawer, and an area of blood about one millimeter square found on the inside of one of appellant’s pairs of jeans. The blood samples were so small that the testing could only establish that the sample tested was human blood and could not establish the blood type of the samples or connect the samples in any way with the victim, Lou Alice Brenk, or appellant. A bedsheet found in the bedroom of appellant’s trailer tested positive for the presence of blood, but the results of the test used to establish whether blood is human were negative. Given the lack of follow-up testing, the results of the luminol test, which are presumptive only, had no probative value and did nothing to establish the likelihood of the presence of Lou Alice Brenk’s blood, or even human blood, in the trailer, the block building, appellant’s car, or on any of the other items tested where followup testing was not able to confirm the presence of human blood, much less blood of the same blood type as Lou Alice Brenk. State v. Moody, 573 A.2d 716 (Conn. 1990). Since we have determined that luminol tests done without follow-up procedures are unreliable to prove the presence of human blood or that the substance causing the reaction was related to the alleged crime, we find it was error for the trial court to admit the evidence of luminol testing done by Mr. Smith where there was no follow-up testing done to establish that the substance causing the luminol reaction was, in fact, human blood related to the alleged crime. See Moody, 573 A.2d 716 (Conn. 1990); see also Lee v. State, 545 N.E.2d 1085 (Ind. 1989); cf. Commonwealth v. Yesilciman, 550 N.E.2d 378 (Mass. 1990).
Additionally Don Smith was allowed to testify that in his opinion the results of the luminol testing were caused by blood, the luminol pictures and testimony by Mr. Smith gave the impression of a bloodbath and cleanup occurring in the trailer and block building behind the trailer that was highly prejudicial. Mr. Smith testified that although he was not aware of any literature dealing with establishing the substance causing the luminol to react based on the type of reaction, he felt he was able to do so. There is no indication in the record that personal observation of the results of the luminol testing is a reliable or accepted way to establish that the reaction was caused by blood and not one of the other substances which react with luminol. We think it was error to allow the photos into evidence and to allow Mr. Smith to testify about the other areas where reactions occurred, but photos were not introduced, and to allow Mr. Smith to testify that he thought that the reactions indicated the presence of blood without adequate follow-up testing having been done to establish that what caused the reactions was, in fact, blood. This was likely to be misleading and confusing to the jury such that even the cross-examination establishing that what caused the reaction in the photos and the areas where no photos were introduced was only possibly blood cannot cure the prejudice that certainly resulted.
THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR TO MAKE IMPROPER REMARKS IN HIS CLOSING STATEMENT REGARDING THE DEFENDANT’S BURDEN OF PROOF
The trial court has a wide latitude of discretion in controlling the argument of counsel. Powell v. State, 270 Ark. 236, 605 S.W.2d 2 (1980). Appellant argued in closing that the identification method used by the state to determine the torso found in the cooler was that of Lou Alice Brenk was unreliable. It was not an abuse of discretion for the trial court to allow the prosecutor to argue, in reply, that appellant had the opportunity, not the obligation, to get an expert to dispute the findings of the state’s expert.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO EXCLUDE TESTIMONY OF JACKIE BRENK
Appellant made a pre-trial motion to exclude the testimony of his ex-wife, Jackie Brenk, who had divorced him in 1985. The trial court allowed her to testify. At trial, Jackie Brenk testified that appellant had threatened her when they were married, had tried to kill her, and had told her he would kill her, cut her body to pieces, and scatter the pieces from Mammoth Springs, Arkansas, to Louisiana so that no one would ever find her. Jackie Brenk testified appellant threatened her several times in the late 1970’s and early 1980’s. Appellant argues this testimony should have been excluded because it was evidence of prior bad acts of the defendant and did not fall under Ark. R. Evid. 404(b). While appellant’s threats against his ex-wife are undoubtedly “prior bad acts,” they are admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Given the similarity of the circumstances of Lou Alice Brenk’s death and the specific threats made by appellant to Jackie Brenk, although several years earlier, these threats were admissible to show appellant’s “intent, plan, and identity.” See Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert denied, 484 U.S. 872 (1987); Lee v. State, 545 N.E.2d 1085 (Ind. 1989).
THE TRIAL COURT ERRED IN DENYING APPELLANT’S OBJECTION TO THE TESTIMONY OF KATHLEEN EATON
Appellant next contends that testimony by Kathleen Eaton that she saw Lou Alice Brenk come into the post office “beat up” should also have been excluded as a prior act of misconduct. Kathleen Eaton did not testify that appellant had beaten Lou Alice. Ms. Eaton simply testified that she knew there was trouble between Lou Alice and Herbert Brenk and that one day Lou Alice came into the post office and she was “beat up.” Ms. Eaton’s testimony does not imply that appellant caused Lou Alice to be beaten, therefore it is not excludable as a prior bad act under Ark. R. Evid. 404(b) as appellant contends. Also, several other witnesses testified, without objection, that they had observed Lou Alice Brenk with bruises and black eyes. Since essentially the same evidence was admitted without objection, any potential error in allowing Ms. Eaton to testify to essentially the same facts was harmless. Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986).
THE TRIAL COURT ERRED IN DENYING APPELLANT’S OBJECTION TO HEARSAY EVIDENCE
Appellant contends it was error for the trial court to allow Dr. Rose to testify as to what his colleagues said regarding the number of points needed for an identification because it is hearsay. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c) (1987). The alleged hearsay appellant objects to occurred when Dr. Rose was asked “[w]hy did you pick 14 as a point of identification?” Dr. Rose’s response was:
Well, colleagues that do the same kind of work in forensic osteology, one in discussing techniques said that he liked —
One colleague says that he likes to have eight points similarity, another colleagues [sic] says 10 points similarity. I myself have never developed a magic, sort of magic, number, if you will. But I always make sure that you see these two previous numbers that I’ve been told my colleagues use, and these are major anatomical features, all 14 of these are. These are very large portions of the bone. And it was at that point that I was satisfied.
As is clear from the question and Dr. Rose’s answer, Dr. Rose was simply explaining why he used 14 identification points and not that his other colleagues actually use eight (8) or ten (10) identification points. See Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Since this testimony was not hearsay, it was not inadmissible hearsay as appellant claims.
THE TRIAL COURT ERRED IN FAILING TO EXCLUDE TESTIMONY OF TWO SURPRISE WITNESSES
Appellant objects to the introduction of the testimony of two witnesses, William Lemmons and Ted Ullman, both of whom were incarcerated with appellant and who testified about incriminating statements made by appellant while he was in jail awaiting trial. These witnesses came forward during the trial and the trial court granted a five-day continuance for the defense to interview the newly discovered witnesses. Appellant claims the testimony of these witnesses should not have been allowed because appellant had based his entire case around the fact that no confession existed and was not able to prepare for this testimony or restructure his case. Since a new trial has been granted on other grounds, this argument is moot. Appellant will have had plenty of time to restructure his case for a new trial and to change his defense, if necessary, before his new trial begins.
THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE COMPARISONS OF A LOST X-RAY
Appellant contends that Dr. Rose should not have been allowed to testify regarding the use of an original X-ray of Lou Alice Brenk which he used to make comparisons to the torso in order to make an identification. The original X-ray was lost, but Dr. Rose had made slides of the original which were used at trial. The following exchange occurred at trial:
[PROSECUTION]: For the record, Your Honor, the defense having rested, I would, at this point raise the issue with respect to earlier objections about the issues related to the X-rays and the evidence that was introduced through Dr. Rose. There were certain objections made that were based on the apparent misplacing of the one original X-ray after the identification process by Dr. Rose. Part of Wednesday’s delay in the proceedings was to make sure that the defense, which were furnished with Dr. Rose’s slides at the conclusion of the testimony on Tuesday, had an opportunity to submit those slides to Dr. Kearns, their identified expert, and have him review those slides and make a determination, based on that, as to whether to have him testify as an expert, and any issues that he would see in that. I would note that defense has now rested, and they’ve chosen not to call Dr. Kearns. Furthermore, I would note for the record that I have called Dr. Kearns and received, through him, his stated opinion that the examination by Dr. Rose and Ms. Murray appeared to him valid and well based from the evidence, that the slides were clear and gave an adequate basis for a determination of the identification that they made. That he saw no points of disagreement with their findings, and that he said, of course, he would like to have seen the original X-ray, but it was not necessary, in any sense, to reach the conclusion that Dr. Rose and Ms. Murray reached. Furthermore, he said that he thought that the original X-ray would have only provided him a better basis to confirm the identification, and would not have been, in any way, helpful to challenge the identification made by Dr. Rose and Dr. [sic] Murray. I think that’s a fair and accurate summary of Dr. Kearns’s statement to me, and in the absence of him being called as a defense witness, I would submit that the issues raised initially by the defense with regard to questions about the X-rays, the one missing X-ray and the use of the slides, I think have been effectively withdrawn. If there is still a significant question on the defense’s part, I would submit that we jointly subpoena Dr. Kearns and let him address the evidence in testimony.
THE COURT: Says the defense?
[DEFENSE]: Your Honor, part of what [the prosecution] said is true. To my knowledge, Dr. Kearns would not, he didn’t say could not, dispute the findings of Dr. Rose and Ms. Murray. We were told that he would like to see the original X-rays and he would make an opinion. He didn’t know if it would make any difference if he did see the original X-rays.
THE COURT: If the defense intends, for purposes of an appeal, to pursue the issue about the X-ray not being presented and about you not being able to prepare an adequate defense, then I want Dr. Kearns to come testify in this case. Apparently [the prosecution] understood Dr. Kearns one way, and you’re suggesting that you understood Dr. Kearns another way.
[DEFENSE]: I believe what [the prosecution] said is basically what I got, just more elaborate. I don’t know. It could have been a longer conversation.
THE COURT: If there’s any substantial dispute or objection being made, then I think it would be appropriate to try to get Dr. Kearns here first thing Monday morning. I’m going to leave it up to defense. What’s your response? Do you want Dr. Kearns here on Monday?
[DEFENSE]: No, we don’t.
Appellant waived his right to object to the loss of the original X-ray by not calling Dr. Kearns, or anyone else, to testify that the original was necessary for identification or that Dr. Rose and Ms. Murray’s identification could not be disputed without the original.
THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO HEARSAY TESTIMONY BY LOY CHESHIRE
Appellant contends it was error for the trial court to allow Loy Cheshire to testify that Lou Alice Brenk was crying and when he asked her “Lou, what’s the matter, Honey?” she had said to him “ [h] e’s going to kill me, Dink.” The trial court allowed this as a present sense impression showing Lou Alice’s fear. Trial courts have a wide latitude of discretion in the admission of evidence. We do not reverse absent an abuse of that discretion. We do not find that the trial court abused its discretion in this instance. This statement falls under Ark. R. Evid. 803(3), which states:
A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
CONCLUSION
We find the trial court erred in admitting the results of the luminol testing done by Donald Smith in the absence of follow-up testing to confirm the substances causing the reaction were human blood related to the victim or the crime. On all other grounds, we affirm. Therefore, we reverse and remand for proceedings consistent with this opinion.
Hays and Brown, JJ., dissent. | [
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Robert H. Dudley, Justice.
Trumann is a city of the first class that has the mayor-council form of government. The council is composed of ten aldermen. In 1992, five of the aldermen voted in favor of an appropriation ordinance for the city’s fiscal year, and five voted against it. The mayor broke the tie by casting his vote in favor of the ordinance and declared that the ordinance was adopted. Appellant, L.D. Gibson, filed this suit for declaratory judgment and sought to have the mayor’s vote declared void, the ordinance declared invalid, and an injunction against any expenditures pursuant to the ordinance. The chancellor ruled that the mayor’s vote was authorized by statute and that the ordinance was therefore validly adopted. We affirm the ruling.
Act 1 of 1875 was a comprehensive act providing for the establishment of municipal governments within this State. Sec tion 51 of Act 1, in the material part, provided: “The Mayor shall be ex-officio President of the Council and shall preside at its meetings during the term for which he shall have been elected, and in case of a tie he shall have the casting vote.” In 1981, the General Assembly passed an act which provides for a mayor’s vote at times other than a tie. In the material part it provides that the mayor “shall have a vote when the Mayor’s vote is needed to pass any ordinance, by-law, resolution, order or motion.” Ark. Code Ann. § 14-43-501 (b)(1)(B) (1987).
In order to pass any type of ordinance, a majority of the “whole number of members elected to the council” is required. Ark. Code Ann. § 14-55-203 (1987). The parties agree this language would include the mayor since he is an ex officio member of the council. However, in order to pass an ordinance for the appropriation of money “the concurrence of a majority of the aldermen of any municipal corporation” is required. Ark. Code Ann. § 15-55-204 (1987) (emphasis added). The appellant seizes upon the difference in the language of the two statutes and contends that since the mayor is not an alderman, he cannot vote on appropriation ordinances and that the General Assembly, by the 1981 amendment, did not intend to give the mayor a vote as an alderman on appropriation ordinances.
The primary goal in the interpretation of statutes is to determine and then give effect to the intent of the General Assembly. Sanders v. State, 310 Ark. 630, 839 S.W.2d 518 (1992). In interpreting statutes we give words their usual and ordinary meaning. Bob Cole Bail Bonds, Inc. v. Howard, 307 Ark. 242, 819 S.W.2d 684 (1991). Under the 1875 act the mayor was limited to voting “in case of a tie.” The 1981 act, codified as Ark. Code Ann. § 14-43-501 (b)(1)(B) (1987), expanded the occasions on which the mayor can vote to “when the Mayor’s vote is needed” to pass “¿my” type of ordinance. (Emphasis added.) By giving the words of the 1981 act their usual and ordinary meaning, it becomes obvious that the General Assembly intended for the 1981 act, Ark. Code Ann. § 14-43-501 (b)(1)(B) (1987), to amend section 51 of Act 1 of 1875 to allow the mayor to vote whenever his vote is needed to pass any type of ordinance. Section 1 of the 1981 act expressly provides that it amends “Arkansas Statute 19-1910 (4th to 7 th sentences in part of Section 51 of Act 1 of 1875),” and section 2 of the same act repeals “all laws and parts of laws in conflict with this Act.” It is without question that the General Assembly had the authority to amend its earlier act and to repeal any laws in conflict with the new act.
The appellant argues that even though the 1981 act, Ark. Code Ann. § 14-43-501, amends Section 51 of Act 1 of 1875, it does not expressly repeal Ark. Code Ann. § 15-55-204 (1987), which requires a “majority of the aldermen” to pass an appropriation ordinance. Again, we must give the words their ordinarily and usually accepted meaning. The 1981 act allows the mayor to vote whenever his vote is needed to pass any type of ordinance. The words “when the Mayor’s vote is needed” are not limited and would apply any time the mayor’s vote is needed, and likewise, the words “any ordinance” are not limited and would apply to any type of ordinance, including an appropriations ordinance. We have no hesitancy in holding that the 1981 act repealed that part of the 1875 act that required a majority of the “aldermen.”
The appellant contends that the foregoing construction of the 1981 act is inconsistent with our case of Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984). In that case we were not deciding whether a 1981 statute could amend a section of an 1875 statute. Rather, we were construing the language of Amendment 7 to the Constitution of Arkansas. The amendment provides in part: “No measure approved by a vote of the people shall be amended or repealed ... by any City Council, except upon a yea and nay vote on roll call of two-thirds of all the members elected to . . . the City Council.” (Emphasis added.)
In Younts we construed the amendment to mean just what it says, a vote of two-thirds of all the members elected to the city council is necessary to amend a measure approved by a vote of the people. In this case we are not construing that amendment or that language, but rather whether the 1981 statute was intended to amend a section of the 1875 statute and to repeal by implication another part.
In sum, the 1875 act provided, “in case of a tie he shall have the casting vote.” The 1981 amendment provides the mayor “shall have a vote when the Mayor’s vote is needed to pass any ordinance.” The chancellor correctly ruled that the mayor could break the five-to-five tie vote to pass the appropriation ordinance.
Affirmed. | [
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Robert H. Dudley, Justice.
Appellant was arrested for tampering with physical evidence and possession of a controlled substance. He twice confessed to both felonies and was charged and convicted of both crimes. He appeals and argues that the trial court made two erroneous rulings. We affirm the convictions as there was no reversible error.
Appellant first argues that the trial court erred in refusing to grant a mistrial following a comment by the prosecutor. We do not reach the issue because the appellant did not make an objection that would apprise the trial court of the argument he now makes. We have consistently held that an objection below must be sufficiently specific to inform the trial judge of the error complained of on appeal. Terry v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).
Appellant next argues that the trial court erred in refusing to suppress both of his confessions because he was under the influence of cocaine and was unable to make a knowing and intelligent waiver of his Miranda rights. A court may properly conclude that the accused has waived his Miranda rights only if the “totality of the circumstances” reflects he possessed the requisite level of comprehension. Moran v. Burbine, 475 U.S. 412 (1986). Whether an accused had sufficient capacity to waive his constitutional rights, or was too incapacitated due to drugs or alcohol to make an intelligent waiver, is a question of fact for the trial court. McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988); Baker v. State, 289 Ark. 430, 711 S.W.2d 816 (1986); Abdullah v. State, 281 Ark. 239, 663 S.W.2d 166 (1984); Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). While we make an independent determination based on the totality of the circumstances, we will not reverse the trial court unless its determination is clearly erroneous. Graham v. State, 277 Ark. 465, 642 S.W.2d 880 (1982).
The arresting police officer testified that at the time of appellant’s first confession, appellant was unsteady on his feet, slurred some of his words, and appeared to be somewhat intoxicated and possibly high on cocaine, but that he was coherent, understood the process, and understood his constitutional rights and his waiver of them. Another officer testified that appellant did not appear to be under the influence of drugs and was coherent at the time he gave the first confession. Appellant disputed the State’s proof and testified at the suppression hearing that he was so high that he could not. comprehend his rights or the consequences of waiving them. It is noteworthy that, on cross-examination, appellant testified that he could recall the contents of his pockets from the time of the first confession. He testified that he had a matchbox with a razor blade in it, a cigarette lighter, and sixty-five cents in change.
The evidence presented by the State was sufficient to support a finding that appellant was not seriously incapacitated and could understand and appreciate both the nature of his constitutional rights and the consequences of waiving those rights. Under the totality of the circumstances, we cannot say the trial court’s finding that appellant knowingly and intelligently waived his rights was clearly erroneous. Accordingly, we affirm. | [
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Steele Hays, Justice.
The sole issue in these two interlocutory appeals is whether the trial court erred in denying appellant’s motion under Ark. Stat. Ann. § 41-1810.2 (Repl. 1977) to admit allegations of prior sexual conduct by the prosecutrices in the appellant’s trials on two rape charges. The two alleged rapes involve a separate set of facts and separate prosecutrices. From adverse rulings by the court in each cause, the appellant brings this consolidated appeal since the legal issues are identical.
Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) operates as an absolute bar to the admission of allegations of the prosecutrix’s prior sexual conduct. But, § 41-1810.1 notwithstanding, Ark. Stat. Ann. § 41-1810.2 provides for a pretrial hearing in which the defendant to a rape charge may proffer relevant testimony concerning the prosecutrix’s prior sexual conduct and the court may rule such evidence admissible at trial “[i]f, following the hearing, the Court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature . . . .” Ark. Stat. Ann. § 4l-1810.2(b).
Since what is “relevant to a fact in issue” will vary in each case, it is not possible to articulate a firm rule to be applied in all cases. And as this court recently said in Kemp v. State, 270 Ark. 835, 606 S.W. 2d 573 (1980):
Weighing the inflammatory nature of evidence against the probative value lies within the sound discretion of the trial court, and its actions will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. Kemp, at 839.
Although no rule can be applied categorically to all cases, in making a determination in this case it is necessary to review recent decisions applying Ark. Stat. Ann. §41-1810.2.
In Brown v. State, 264 Ark. 944, 581 S.W. 2d 549 (1979) the defendant raised the defense of consent to the charge of rape. In the § 41-1810.2(b) hearing, the prosecutrix testified that she had previously had sexual relations with the defendant. The defendant testified that the circumstances of the incident were that the prosecutrix had invited him to her apartment and that she had met him at the door dressed only in a nightgown. In Brown, this court said:
The proffered evidence of the prior relationship of the parties as described by the prosecutrix certainly tends to make the appellant’s defense of consent more probable in view of the invitation from the prosecutrix and her mode of dress at the time she let him into her abode. Consequently, we conclude that the trial court erred in excluding the testimony. Brown, at 945.
In Bobo & Forrest v. State, 267 Ark. 1, 589 S.W. 2d 5 (1979), consent was again raised. In the context of that case, it was held: 1) that proffered evidence of the prosecutrix’s prior sexual relations with a third party should not be admitted; 2) that the prosecutrix could, however, be questioned on cross examination as to incidents of sexual activity with the third party which allegedly occurred in close proximity in time and location to the alleged rape; and 3) that the prosecutrix could be questioned on cross examination as to prior sexual relations with the defendants.
In Marion v. State, 267 Ark. 345, 590 S.W. 2d (1979), this court began a new line of cases in which the issue of consent was not raised; but rather the defense was, as here, that the alleged incident of rape simply did not occur. In Marion, the defendant offered evidence that the filing of the rape charge was an act of vindictiveness following a fight between the prosecutrix and the defendant. Testimony was adduced that the prosecutrix had vowed to “get even” with the defendant.
In Marion, this court ruled that the trial court properly excluded evidence of the prosecutrix’s general reputation as a prostitute, and that she had two children born out of wedlock. But we ruled that the prosecutrix could be cross examined concerning prior sexual relations with the defendant:
Certainly upon sufficient proffer as here, the victim’s bias, prejudice or ulterior motive for filing the charge is relevant or germane to the question of whether the alleged act of sexual intercourse actually occurred and the probative value outweighs its inflammatory or prejudicial nature. Marion, at 348.
However, this court also offered a caveat in Marion, quoting from a Wisconsin case:
The offer of proof need not be stated with complete precision or in unnecessary detail, but it should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt . . . [and] it ought to enable a reviewing court to act with reasonable confidence that the evidentiary hypothesis can be sustained and is not merely an enthusiastic advocate’s assumption. Id., at 348.
In the first of the two cases before us, CR 79-2095, the defendant testified that he had dated the prosecutrix and had had frequent sexual relations with her. He testified that he had broken up with the prosecutrix two months before the alleged rape and had not seen her since that time.
The prosecutrix testified that although she had known the defendant for several years she had never dated him, had never had sexual relations with him, and that he had never been to her residence. At the hearing in this matter, defense counsel stated: “We - did not get into why they broke up in February but they did. ... I think it’s going to be up to the jury to determine.” In cases where consent is not an issue, there must be something beyond the mere allegation of prior sexual activity between the prosecutrix and defendant, even if proven true, to make such evidence relevant to the prosecution for rape.
The evidentiary hypothesis being offered by the defense to support the reception of this evidence is not clear. Certainly, we cannot say the trial court has clearly abused its discretion in excluding this evidence. Kemp v. State, above.
In the second case, CR 80-0505, the defense witnesses testified that some days before the alleged rape, the prosecutrix had engaged in sexually suggestive play with the defendant’s nephew. However, as Bobo & Forrest, above, indicates, sexual conduct between the prosecutrix and a third party is not admissible unless it occurred in such close proximity of time and location to the alleged rape that it bears on the issue of consent or other material element of the offense.
Further, the defense alleged that this episode between the defendant’s nephew and the prosecutrix touched off a physical altercation between the prosecutrix and the defendant’s sister, and this was the motivation behind the charge of rape. However, unlike Marion, in the present case there was no testimony that the prosecutrix vowed to “get even,” or in any other way threatened the defendant or his sister. The record is devoid of any evidence that the prosecutrix bore animosity against the defendant from the incident which would support an inference that the charge of rape was purely vindictive.
As in the first instance, we are unable to say that the trial court clearly abused its discretion in excluding the proffered testimony. We therefore must affirm both causes. Kemp v. State, supra.
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John I. Purtle, Justice.
The chancellor set aside a deed from Harry Thomas to James H. Todd, deceased, as an action done for the purpose of defeating a judgment creditor’s claim.
On appeal it is argued (1) that the court erred in finding that a Missouri divorce decree was a valid judgment in Arkansas; (2) that the court erred in failing to hold the quitclaim deed was a disclaimer; and (3) that the court erred in setting aside the quitclaim deed as a means of defeating the registered foreign judgment because there was no evidence of fraud.
We are unable to agree with appellant on any of the three arguments and affirm the trial court.
Appellee obtained a decree of divorce from Harry Thomas on May 19, 1975, in Toni County, Missouri. The decree granted appellee the sum of $25,000 as maintenance in gross plus $5,000 representing support for the period of one year. The decree also allowed a $500 attorney’s fee and the costs of the action. This instrument was registered in the Faulkner County Chancery Court on January 16, 1976. Thereafter, a writ of execution was issued by the Faulkner Chancery Court and an automobile in the possession of Harry Thomas was attached. James H. Todd claimed ownership of the vehicle thereby excluding it from the writ of execution on the foreign judgment.
Lena Crisel died on July 3, 1976, and left a will dated May 6, 1976, in which she left Harry Thomas a life estate in a house and three lots in Mayflower, Arkansas. On July 20, 1976, Harry Thomas executed a quitclaim deed to James H. Todd, the remainderman, for the recited consideration of $1,-000. The will of Lena Crisel was admitted to probate on August 1, 1976. On June 20, 1977, appellee filed suit against Thomas and Todd to set aside the deed from Thomas to Todd. On July 2, 1979, Todd died, and the action was revived against his estate. At the trial appellee testified that the writ of execution issued on the foreign judgment occurred during the life of Lena Crisel and that James H. Todd knew about the judgment and garnishment because he claimed ownership of the vehicle being driven by Thomas at that time. Based upon these facts the court entered a decree on April 2, 1980, ordering the deed from Thomas to Todd be set aside and held for naught. This appeal follows.
A judgment is defined in Ark. Stat. Ann. § 29-101 (Repl. 1979) as the final determination of the rights of the parties in an action. Further, Ark. Stat. Ann. § 29-115 (Repl. 1979) requires that all judgments or decrees rendered by the courts for debts, damages, costs, and execution, shall be computed, as near as possible, in dollars and cents. Ark. Stat. Ann. § 29-116 (Repl. 1979) requires that a judgment be entered upon the order book.
The record does not disclose that Harry Thomas ever contested the validity of the judgment when it was registered in the Faulkner Chancery Court. Therefore, a collateral attack at this time is too late. In any event, we have no hesitancy in stating that the Missouri decree amounted to a judgment and is entitled to full faith and credit in Arkansas. Therefore, the judgment became a lien which attached to any interest in real estate which Harry Thomas held or subsequently acquired in Faulkner County, Arkansas. The only manner in which a foreign judgment may be defeated is to prove there was fraud in the procurement of the judgment or lack of jurisdiction in the court rendering it. Neither argument was even presented here. For a full discussion on this point see Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W. 2d 549 (1974).
Secondly, the appellant argues that the deed executed by Thomas to Todd amounted to a disclaimer pursuant to Ark. Stat. Ann. § 62-3202 (Supp. 1979). Lena Crisel left Harry Thomas a life estate. Her will was dated May 6, 1976, and she died on July 3, 1976. The life estate granted to Harry Thomas was conditioned upon his acceptance of said estate. James H. Todd was to receive the entire property upon the death of Thomas or upon his failure to take the life estate. It is obvious Harry Thomas did not follow the statute if he in tended to file a disclaimer. Even had he intended to file a disclaimer, he would have been barred from doing so, upon the facts in this case, pursuant to Ark. Stat. Ann. § 62-3208 (Supp. 1979) which denies the right to disclaim if the beneficiary is insolvent at the time of the event giving rise to the right to disclaim. In the present case a writ of execution was returned unsatisfied against Harry Thomas shortly before the death of Lena Crisel. After her death, and before the probate of her will, Thomas executed a quitclaim deed to James H. Todd. This action not only cannot be construed as a disclaimer but to the contra could be considered as an acceptance of the estate. Whatever estate Harry Thomas had was effective on the date of the death of Lena Crisel. Webb v. Webb, 111 Ark. 54, 163 S.W. 1167 (1914). Likewise, the judgment which had previously been registered in Faulkner County became a lien upon the property deeded to Todd. The execution of the quitclaim deed to Todd, who had prior knowledge of the judgment and the insolvency of the grantor, had no effect on the claim of the appellee. The judgment lien would have attached to Thomas’ interest in the lands whether or not the chancellor set the deed aside.
Finally, appellant argues the court erred in finding the deed from Thomas to Todd was executed for the purpose of defeating satisfaction of the foreign judgment because there was no evidence of fraud. It is not necessary that actual fraud be alleged or proven under circumstances such as exist in the present case. Although it is apparent Thomas desired to get the property out of his name prior to the probate of the will of Lena Crisel, his effort to do so was useless. An additional fact to be considered in this case was that even after the quitclaim deed Thomas continued to reside on the property. Therefore, we hold that specific acts of intentional fraud were not required to be alleged or proven in order to hold the deed from Thomas to Todd ineffective as to the appellee. Her rights were not affected by this transaction.
Affirmed.
Hickman, J., not participating. | [
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Robert H. Dudley, Justice.
The single issue is whether payment at retirement for unused annual leave should be included as part of the average annual salary when computing the amount of a retirement pension for a State Police officer.
At his retirement from the State Police, the appellee, Arthur Halsell, had accrued annual leave for which he was paid a lump sum termination payment. The Director of the State Police advised appellee that this termination payment was not salary and would not be included in computing retirement benefits. The appellees then filed suit against appellants, the Board of Trustees of the State Police Retirement System, asking for declaratory judgment. The trial court ruled that the lump sum termination payment made to appellee should be included in his final average salary in computing his retirement pay. That decision is erroneous and is reversed.
The pension payable to a retiring State Police officer is based upon set percentages of his final average salary. Final average salary is defined by Ark. Stat. Ann. § 42-451 (B) (/) (Repl. 1977) as:
. . . the average of the annual salaries paid a member for the three (3) years of credited service rendered by him immediately preceding his last termination of employment with the Department, provided that the final average salary shall not exceed that of the highest permanent rank.
The appellant has computed the compensation paid to appellee for services rendered over the past three years. The appellee is asking that the termination benefit, which is equal to one month’s unused leave, be added to the three years’ salary. In other words, use 37 months to compute three years. The statute contemplates using the past 36 months’ salary in computing “the average of annual salaries paid a member for the three years of credited service.”
Ark. Stat. Ann. § 13-349 (A) (Repl. 1979) clarifies the legislative intent, as follows:
* * * Provided that the remuneration paid to an employee of the State may exceed the maximum annual salary as authorized by the General Assembly as follows, and the following shall not be construed as payment for services or as salary as contemplated by Section 4 of Article 16 of the Constitution of the State of Arkansas'.
(1) Overtime payments as authorized by law;
(2) Payment of a lump sum to a terminating employee',
(3) Payment for overlapping pay periods at the end of a fiscal year as defined or authorized by law.
[Emphasis added.]
The language in the statute is clear that the lump sum termination benefit should not be considered as salary. Therefore, it should not be added to the appellee’s average salary for the purpose of computing his retirement pension.
An objective of the General Assembly in prohibiting the termination pay from being counted as part of the average annual salary is to prevent a distinction in retirement benefits from one State Police officer who took a vacation as opposed to one who did not take a vacation.
The appellee argues that he has a vested right to have his termination payment included in his retirement pension, since it had been done in the past, and this was a factor in his continued employment.
Appellee has not acquired such a vested right. He had been employed by the State Police since 1947, and the lump sum termination pay statute, Ark. Stat. Ann. § 13-349 (L), was enacted in 1973. There is no proof in the record of the State Police retirement policy or practice before 1973, and we do not speculate on either what the policy was or whether it was a factor in his continued employment. Hence, no vested right was acquired before 1973.
A former member of the retirement board, Tommy Goodwin, testified that since 1975 four or five officers had the lump sum termination benefit added to their annual salary for computing retirement pay. However, since 1973 the statute has prohibited counting the lump sum termination benefit as salary. Appellee cannot gain a vested retirement right from an unauthorized administrative procedure which is contrary to a statute. Therefore, no vested right was acquired after 1973.
Reversed.
Adkisson, C.J., and Holt, J., dissent. | [
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John A. Fogleman, Chief Justice.
Appellant Kozy Kitchen was found guilty of rape, carnal abuse in the first degree and carnal abuse in the third degree. His conviction was reversed by this court on November 13, 1978, because of error in the summoning of the jury. Kitchen v. State, 264 Ark. 579, 572 S.W. 2d 839. Thereafter, venue was changed from Jackson County to Lawrence County. After a jury trial on January 27, 1979, appellant was sentenced to a total of 49 years imprisonment pursuant to the jury’s verdict finding him guilty on all three charges. Appellant asserts the following points for reversal:
I
THE LOWER COURT ERRED IN DENYING THE DEFENDANT’S MOTION FOR PSYCHIATRIC EXAMINATION OF PROSECUTION WITNESS.
II
THE LOWER COURT ERRED IN DENYING THE DEFENDANT’S MOTION IN LIMINE TO SUPPRESS TESTIMONY.
III
THE LOWER COURT ERRED BY INTER JECTING ITSELF INTO THE TRIAL TO SUCH A DEGREE THAT IT PREJUDICED THE APPELLANT.
IV
THE VERDICT OF THE JURY WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.
V
THE LOWER COURT ERRED IN SEVERAL RULINGS ON THE EVIDENCE WHICH SINGULARLY AND CONSIDERED AS A WHOLE AFFECTED SUBSTANTIAL RIGHTS OF THE DEFENDANT.
We find reversible error.
We will first treat appellant’s last point, because we find reversible error o'n one ruling on the admissibility of evidence which, as we see it, affected a substantial right of appellant.
V
The principle witnesses against appellant were his wife, Daisy, and her three daughters, the alleged victims of the sexual crimes with which appellant was charged. The credibility of these witnesses was probably the most important issue in the case. Appellant called Richard Allen, an attorney, who was the deputy prosecuting attorney who had participated in appellant’s first trial and who had conversed with Daisy Kitchen and at least one of her three, daughters. Appellant’s counsel examined Allen about occasions when Mrs. Kitchen had brought the girls to his office and wanted to change the stories they had earlier told accusing Kitchen of the crimes with which he was charged. These stories had been told under oath in the juvenile court when Arkansas Social Services had brought a proceeding to take custody of the three girls. Appellant also brought out on direct examination that Allen had explained the penalties of perjury to Mrs. Kitchen and whichever of her daughters were present when he was told they wanted to change their testimony. On cross-examination, the state’s attorney elicited testimony that he had heard Mrs. Kitchen and the three girls testify during the trial, in several hearings in Newport, and in the hearing in the Juvenile Court of Jackson County. The state then elicited from Allen the statement that these four witnesses had told essentially the same story each time they had testified under oath. Appellant’s counsel objected on the ground that the state was trying to rehabilitate its witnesses by use of prior consistent statements. The objection was well taken. The prior consistent statements were hearsay. Ark. Stat. Ann. § 28-1001, Rule 801 (c) (Repl. 1979). They could be admissible as an exception to the hearsay rule if they were offered to rebut an express or implied charge of recent fabrication or improper influence or motive. Ark. Stat. Ann. § 28-1001, Rule 801 (d) (1) (ii). These is no doubt about appellant’s efforts to show that these witnesses had fabricated their accusations and that their motives were improper. Still, there is nothing to indicate that there could have been any fabrication subsequent to the juvenile court hearing or that the motive of these witnesses was any different at the time of the second trial than it had been at any of the previous hearings. A highly regarded authority has taken the position that, where the attack on the witness is by inconsistent statements, the proof of a consistent statement is admissible only if it was made before the plan or contrivance to give false testimony was formed. According to this authority, the fabrication is not required to be recent as related to the trial, but it is necessary that the contrivance be more recent than the consistent statement. We have followed this interpretation in our first , decision on the point after the adoption of the Arkansas Uniform Rules of Evidence. In Brown v. State, 262 Ark. 298, 556 S.W. 2d 418, we held at the word “recent,” describing the fabrication is a relative term meaning that the challenged testimony was fabricated to meet the exigencies of the case (not the trial). Under the Brown interpretation, the prior consistent statements of these witnesses were not admissible because the motive for fabrication was as great when the first statement was made as when the testimony was given. See George v. State, 270 Ark. 335, 604 S.W. 2d 940 (1980). We cannot say that the error did not affect a substantial right of appellant because the testimony of these witnesses was essential to his conviction and the evidence to corroborate them was, to say the least, slight. We will consider all other contentions made by appellant under the broad coverage of this point and under the other points stated by appellant we consider likely to arise on a retrial.
Appellant contends that testimony that he ejaculated into the mouths of the girls was irrelevant because this testimony was not necessary to show the essential element of the crimes — penetration of a body cavity of the victim by a penis. We note that appellant made no objection to that testimony by two of the girls. Although appellant says that under Ark. Stat. Ann. § 28-1001, Rule 103 (d) (Repl. 1979), we may take notice of errors in admission of evidence if they affect substantial rights, even though they were not called to the attention of the trial court, we do not. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).
The relevance is not outweighed by the inflammatory nature of the testimony by reason of the explanation given by the witnesses for the conduct of appellant. They testified similarly. According to them, appellant expressed the desire to adopt the daughters of his wife “as his blood kin” or “through his bloodline,” not by legal means, and wanted to change the Wilson nature, which he did not like, to the Kitchen nature. Mrs. Kitchen explained that this meant that each of the children had to take his sperm in her mouth and swallow it in order to be a Kitchen, and that this explanation was made to each of the children. All this testimony was relevant to the issues. We will treat this matter further when we consider appellant’s point II.
Appellant says that the court erred in permitting Daisy Kitchen to testify about whippings of her and the three minor girls. His objection was that the testimony was not relevant, but if relevant, its probative value was outweighed by its inflammatory nature.
The matter of the whippings was brought out on cross-examination of Daisy Kitchen. Appellant’s counsel had examined this witness about her statements that her ac cusations were not true, her love for appellant, her having written letters to him after he was imprisoned professing her love for him, her fear of appellant, appellant’s desire that a baby born to them be brought up by his first wife, her delay in reporting the sexual offenses and her visits to appellant at Cummins Prison. After extensive examination along these lines, appellant’s counsel questioned her about a letter, which she said she had written at appellant’s dictation and, when asked why she had written it, explained that it was because of her fear that appellant’s friends would kill her if she did not. Thereafter, appellant’s counsel presented her with another letter she had written expressing affection and she read it to the jury at his request. In this letter, Mrs. Kitchen had said that she was “so scared” of appellant before their baby was born and that his whippings were not like the kind she had had when she was a little girl. It also contained a statement that he had caused the girls to whip one another and to whip her. Appellant offered this letter in evidence. Another letter was introduced in which Mrs. Kitchen had asked appellant to forgive her for the terrible lies she had told and had had the girls tell, about his having engaged in sexual activity with them. Appellant’s counsel, after having the witness confirm that she had testified that she did not love appellant and was afraid of him, obtained an admission from her that she had engaged in sexual intercouse with appellant in the Jackson County jail. When asked why, she stated that she was afraid not to do what he told her to because of his previous threats and something else that had happened.
On redirect examination, Mrs. Kitchen was asked to explain the statement in her letter to appellant about whippings. She then told about appellant making the girls strip naked and whip each other for something they had done or failed to do or for failure to answer questions as he desired them to. She also told of his having whipped her with a belt or shoe and of making her stip naked, except for her panties, while she was pregnant, and causing the children to whip her on her hands and knees and making her go up and down the hall, while the children chased and whipped her. She was then asked why she had written the letters and responded by saying that it was because of her fear of the whippings and knowledge of what would happen if she did not and because appellant had told her that if she did anything to cause him to go to prison, he would make sure that she went, too.
Appellant opened up the subject of the whippings at his own risk. Parker v. State, 265 Ark. 315, 578 S.W. 2d 606. The basic function of redirect examination is to enable a witness to explain and clarify any relevant matters in this testimony that have been weakened by cross-examination and to rebut the discrediting effect of any damaging statements or admission elicited on cross-examination. We have said that a witness should be allowed a full opportunity to explain matters brought out on cross-examination, to rebut any discrediting effect they may have had or to correct any wrong impression that may have been created. Allen v. State, 260 Ark. 466, 541 S.W. 2d 675. Certainly the letters were statements that tended to discredit Mrs. Kitchen’s testimony. There was no abuse of the trial court’s discretion in permitting this redirect examination.
Appellant called as witnesses several persons he now identifies as inmates of Cummins Prison. He says that he attempted to have these witnesses testify about statements made by the prosecution witnesses and that the state’s objection on the ground of hearsay was sustained. We cannot say that there was error on this question because the abstract of the record reveals no proffer of the testimony of any of the witnesses.
I
On December 27, 1978, appellant filed a motion to require a psychiatric examination of the four principal witnesses against him. The step-daughters of appellant were 15, 13 and 11 years of age at the time of the trial. He alleged that they were pathological liars, mentally incompetent, and therefore incompetent to testify. He also alleged that the daughters were so dominated by their mother that they were incapable of telling the truth. He supported the motion with an affidavit, which we do not consider because it is not abstracted. The motion was heard and denied on February 8, 1979.
Insofar as it is pertinent to our inquiry, appellant was justified in taking the position that without the testimony of these witnesses, there could have been no conviction and that the corroborating evidence was slight. Appellant correctly perceives that the common law tests of competency of a witness in a criminal case in Arkansas have been clearly established. They are: the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; an understanding of the consequences of false swearing; and the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact-finder a reasonable statement of what was seen, felt or heard. Batchelor v. State, 217 Ark. 340, 230 S.W. 2d 23; Keith v. State, 218 Ark. 174, 235 S.W. 2d 539; Reynolds v. State, 220 Ark. 188, 246 S.W. 2d 724; Harris v. State, 238 Ark. 780, 284 S.W. 2d 177; Allen v. State, 253 Ark. 732, 488 S.W. 2d 712. The question of competency is a matter lying within the sound discretion of the trial judge and, in the absence of clear abuse of discretion, or manifest error, its exercise is not reviewable on appeal. Hamblin v. State, 268 Ark. 497, 597 S.W. 2d 589; Harvey v. State, 261 Ark. 47, 545 S.W. 2d 912; Williams v. State, 257 Ark. 8, 513 S.W. 2d 793; White v. Mitchell, 263 Ark. 787, 568 S.W. 2d 216; Keith v. State, supra; Allen v. State, supra; Crosby v. State, 93 Ark. 156, 124 S.W. 781.
In determining the competency of a witness, the court must begin with the presumption that every person is competent to be a witness except as provided in the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001, Rule 601 (Repl. 1979). There is no exception applicable under the circumstances presented here. The qualification of a person to be a witness is a preliminary question to be detemined by the trial court. Ark. Stat. Ann. § 28-1001, Rule 104 (a) (Repl. 1919). Error may not be predicated upon a ruling admitting evidence unless a substantial right of the objecting party is affected. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979). To uphold appellant’s argument on this point, we must find that a substantial right of appellant has been affected. Thus, appellant has the burden of showing that he has a substantial right which was affected by a clear abuse of the trial court’s discretion in admitting the testimony of those four witnesses without prior psychiatric examination.
We take the position that the fact that the testimony of an alleged victim in a trial on a charge of sexual offense will be without corroboration, or will be only slightly corroborated, does not compel a psychiatric examination or evaluation of a witness considering her competency to testify, in the absence of a statutory requirement, although there is respectable authority supporting a contrary view. We also adopt the position that the question whether there should be a psychiatric examination as an aid to the trial judge in exercising his discretion is a matter which itself should lie within the sound judicial discretion of the trial judge, at least when he is otherwise satisfied as to the competency of the witnesses. We believe this to be not only the majority view but the better view of this matter. State v. Klueber, 81 S.D. 223, 132 N.W. 2d 847 (1965); State v. Manning, 162 Conn. 112, 291 A. 2d 750 (1971); Ballard v. Superior Court, 64 Cal. 2d 159, 49 Cal. Rptr. 302, 410 R 2d 838, 18 ALR 3d 1416 (1966); State v. Miller, 35 Wis. 2d 454, 151 N.W. 2d 157 (1967); Wilk v. State, 217 So. 2d 610 (Fla. Dist. Ct. App., 1969). See also, Annot, 18 ALR 3d 1433 (1968). This rule has been applied, appropriately we feel, where the witness, a relatively young girl who was allegedly the victim in a rape charge, was subject to attacks on her crediiblity. McDonald v. State, 307 A. 2d 796 (Del. 1973).
Although we do not consider the case of Mangrum v. State, 227 Ark. 381, 229 S.W. 2d 80, relied upon by appellant, to be in point on the issue before us, it is more nearly supportive of the position we take than of appellant’s arguments. The opportunity of the trial judge to observe the proposed witness, his manner, his capacity, his intelligence, and his understanding of the obligations of the oath are important factors in deciding the question of competency. Keith v. State, supra; Mangrum v. State, supra.
Appellant obviously recognized his burden of showing that these four witnesses against him were not competent to testify by seeking to require that they be psychiatrically examined. There are no statutory provisions either requiring or providing for any such examination.
Viewing the matter as we do, we turn to the question whether the trial judge abused his discretion in denying the motion for a psychiatric examination of the witnesses in this case. Appellant offered the testimony of David Simmons, an attorney employed by the Northeast Arkansas Legal Services in Newport; Richard Allen, Deputy Prosecuting Attorney for Jackson County, when appellant was first tried; Mrs. Daisy Kitchen; the 15-year-old daughter, to whom we will refer as A; the 13-year-old daughter to whom we will refer as B; and the 11-year-old daughter, to whom we will refer as C. We put little emphasis on the fact that each of the four witnesses, on some occasion and some of them on several occasions, had made inconsistent statements, some of which were inconsistent with appellant’s guilt. The inconsistency of these statements was a matter going to their credibility as witnesses and inconsistent statements made prior to the second trial, whenever made, were admissible in evidence for impeachment purposes. Scifres v. State, 228 Ark. 486, 308 S.W. 2d 815; Baysinger v. State, 261 Ark. 605, 550 S.W. 2d 445. The only conditions for their admission were met by affording the witness and the state the opportunity to explain or deny them. The interests of justice did not recognize exclusion of the inconsistent statements. Ark. Stat. Ann. § 28-1001, Rule 613 (b) (Repl. 1979).
David Simmons had represented Mrs. Kitchen in a proceeding in juvenile court when Arkansas Social Services was attempting to take custody of her three daughters. He testified that she had come to his office about two or three weeks prior to appellant’s first trial and had asked him what would happen if the statements she had made in juvenile court were not true. He said that he had advised her that the state might seek perjury charges and that she might be sent to prison and thereby lose custody of her children. According to Simmons, Mrs. Kitchen was only concerned about the effect changing her story might have on losing her children. Simmons said he also talked with A, who told him that her earlier testimony that appellant had committed certain acts of oral sex were not true. A appeared to Simmons to be upset and nervous all during the time she was in his office. Neither the mother nor the daughter was under oath at the time.
Richard Allen said that he had talked with Mrs. Kitchen while he was preparing for the first trial and that she had told him that the accusations she had made against appellant were false. All three daughters were present. Mrs. Kitchen and the girls indicated that the accusations they had made against appellant were untrue and that they had made up their story about appellant. Allen said that he explained to them the possible consequences of changing the story they had given up until that time and that he felt that it was his duty to explain to Mrs. Kitchen that if she lied under oath in juvenile court, she could be prosecuted for, and was guilty of, perjury. Allen said that he had probably informed the mother and her daughters of the statutory penalty for perjury. Allen said that he had had a second conversation with this group after he had sent them to Little Rock and had received a report of their visit there which indicated that Mrs. Kitchen had been lying on the occasion of the first conversation with him. This conversation also took place before appellant’s first trial on the charges. Allen said that when he showed these witnesses the results of the report, they admitted that what they had said all along was the truth.
Mrs. Kitchen testified that she had made statements that the accusations against her husband were untrue and that she had written a letter to him saying that she had lied about his having had sex with the girls. She said that she was told to tell Simmons that the accusations were untrue by appellant who said that this would help him. She did not think she had told Allen that the accusations were untrue but she remembered that he had told her about the penalty for perjury. She said that she had written the letters to appellant because he had said this would help him, because he had said “they” would kill him, and she did not want him killed. Another reason she gave for writing the letters was to stop appellant from fussing at her about coming to see him at the penitentiary. She said that she was afraid appellant would kill her if he were released but that she had gone to the penitentiary to see him five or six times.
A testified that she lied in school, sometimes pretty regularly, and that she lied to her parents to keep from getting in trouble. She remembered having told Allen that the accusations against appellant were false, but did not remember having told Simmons this. She said that between the time of appellant’s arrest and his first trial, she had talked with her mother about how she was going to testify and that her mother told her what to say. A did not remember whether she had told a lie in appellant’s first trial, and did not remember whether her mother had told her to say certain things so the mother would not go to prison. She admitted having visited with appellant when he was in Cummins prison, but did not know whether she had told people there that he had not done anything. Upon cross-examination by the court, this witness said that she knew that one would be punished for not telling the truth, particularly when under oath. She said that she had told the truth when the case was first tried and that she was now telling the truth.
B was qualified by the court as a competent witness as to her ability to know the difference between a lie and the truth and her knowledge that one would be punished for lying. She recalled that she was under oath when she had first testified against appellant at his first trial and said that her testimony then was true. She admitted that she had gone to Allen’s office and told him the accusations against appellant were untrue, but said that she had lied to Allen. She said that she would not tell a lie to keep her mother from going to prison.
C said that she knew the difference between a lie and the truth, that it was wrong to tell lies, and that one would be punished for telling lies. She remembered going to Allen’s office and telling him that the things she had said about appellant were not true, but she did not remember going there with her mother and telling him that appellant did not do anything to her and her sisters. She later said she remembered going to Allen’s office but did not remember whether she had said anything herself. She said that she had told a lie in school, had told a lie to her mother, but would not tell a lie to keep her mother from going to prison. She said that her testimony in appellant’s first trial was the truth and that the testimony she would give in the second trial also would be the truth.
The trial judge could readily have found from this testimony that all of these witnesses recognized the obligations imposed by an oath to tell the truth, that whatever inconsistent statements they may have made were not made under oath, that appellant’s arguments that they were pathological liars and mentally incompetent were either exaggerated or unfounded, and that a psychiatric evaluation was unnecessary. We find no abuse of the trial court’s discretion.
II
Appellant’s motion in limine to suppress testimony asked the court to suppress any testimony relating to any type of sexual activity involving appellant and any of the prosecution witnesses if the activity did not involve the penetration of any body cavity of any of the alleged victims. This motion was submitted to the court on argument only. It was also denied at the pretrial hearing just preceding the trial. In his brief, appellant gives examples of the sort of testimony he sought to suppress. The first as that of the witnesses relating to appellant’s ejaculation in their mouths. Other examples were testimony of one of the girls about her mother licking sperm off her vagina after appellant had rubbed his penis on it, and that concerning whippings administered by appellant. It does not appear that these specific items of testimony were mentioned in the motion. Yet, in appellant’s argument of the motion, appellant only pointed out that one of the girls had testified, at the first trial, that appellant’s penis had not “gone in” and that another had said that appellant had put his penis on her vagina and rubbed her. In neither the motion nor in defense counsel’s argument was there any other specification of the testimony that appellant wanted suppressed. Appellant asserts that this testimony had no probative value on the elements of the crime, and that it was inflammatory and of a prejudicial nature. The objection advanced in appellant’s argument in the trial court was that the testimony was irrelevant.
We might well dispose of this point on the basis that appellant has cited no authority and has not made a convincing argument on this point. See Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606. It also appears that appellant has broadened the scope of his objection on appeal. We have treated the question pertaining to whippings under another point appellant has asserted. The argument relating to the actions of Mrs. Kitchen with reference to sperm on her daughter’s vagina does not appear to be within the scope of appellant’s motion. It is true that the offense with which appellant was charged required penetration of a body cavity with a penis. We simply cannot follow appellant’s argument that evidence pertaining to ejaculation was not of probative value on the question of penetration, which, as he points out, was an important element in each of the three charges against him. All elements of the charges were put in issue by appellant’s plea of not guilty. Relevant evidence is evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. Stat. Ann. § 28-1001, Rule 401. It should require no elaboration to illustrate the relevance of this testimony. Appellant argues, in effect, however, that the testimony should have been excluded because the danger of unfair prejudice to him outweighed its probative value. Ark. Stat. Ann. § 28-1001, Rule 403. This called for a balancing test by the trial court. The test calls for the exercise of a sound judicial discretion by the trial court, which will not be disturbed by this court in the absence of clear abuse. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342. We find no abuse of discretion in this regard.
We should also point out that there is no reversible error in the denial of a motion in limine where the motion is vague and indefinite. Bridges v. City of Richardson, 349 S.W. 2d 644 (Tex. Civ. App. 1961). It is properly used to prohibit mention of some specific matter, perhaps of an inflammatory nature, until its admissibility has been shown out of the hearing of the jury. Lewis v. Buena Vista Mutual Insurance Association, 183 N.W. 2d 198 (Iowa, 1971).
Furthermore, as to those matters specified in appellant’s motion in limine, appellant is in no position to claim prejudice. B testified that appellant put his penis in her mouth on two occasions. She did not mention any occasion on which his “penis did not go in.” Furthermore, she said that he had ejaculated in her mouth on both occasions. She made no reference to any of her testimony at the first trial. Although appellant’s abstract does not reveal it, the state has called our attention to the fact that this testimony was first brought out on appellant’s cross-examination with reference to B’s testimony at the first trial. The identical situation exists as to the anticipated testimony of C that appellant rubbed his penis on her vagina.
Ill
It is not possible for us to deal with this point as appellant would have us do for several reasons. Appellant says that the point must be considered by looking at the total transcript of the trial. This we will not do. Time and again we have pointed out the impossibility of seven judges reading the transcript of a trial. Tucker v. Haskins, 243 Ark. 826, 422 S.W. 2d 696. The record on appeal is confined to that which is abstracted. Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6. The mere scattering of transcript references throughout appellant’s argument is not a substitute for a proper abstract. No longer can the appellant in a criminal case depend upon the Attorney General to abstract the record or supply deficiencies. See Rule 11 (f), Rules of Supreme Court and Court of Appeals, Vol. 3 A, Ark. Stat. Ann. (Repl. 1979). Only in cases in which the sentence is life imprisonment or death do we review the record for prejudicial error. See Bly v. State, 263 Ark. 138, 562 S.W. 2d 605; Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73; Ark. Stat. Ann. § 43-2725 (Repl. 1977); Rule 36.24, Arkansas Rules of Criminal Procedure, Vol. 4A, Ark. Stat. Ann. (Repl. 1977). Even then we search only for rulings on objections and motions which were adverse to the appellant. See Shepherd v. State, 270 Ark. 457, 605 S.W. 2d 414 (1980); Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 935; Jenkins v. State, 222 Ark. 511, 261 S.W. 2d 784.
Even though appellant recites an example or two of the conduct of the trial judge of which he now complains, none of them are such as to call for reversal and appellant frankly states that no one specific comment of the trial judge directed to defense counsel or to the testimony should cause reversal. We certainly agree with appellant that the trial judge should manifest impartiality in the conduct of a trial and refrain from impatient remarks or comments which tend to result prejudicially to a litigant or to influence the minds of the jury. Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 100 S.W. 2d 676. We also recognize that it is improper for a trial judge to needlessly inject himself into a trial. See St. Louis Southwestern Ry. Co. v. Aydelott, 128 Ark. 479, 194 S.W. 873. On the other hand, the judge is not merely the chairman of the trial, who must remain mute until a party calls upon him to make a ruling; instead, he has some responsibility for the proper conduct of the trial and the achievement of justice. Jordan v. Guinn, 253 Ark. 315, 485 S.W. 2d 715. It is the duty of the trial judge to see not only that the trial proceeds in accordance with law but that it proceeds efficiently and effectively and in keeping with the ends of justice. He should be free to shut off long-winded and irrelevant testimony or questioning and to confine counsel to the actual issues in the case. Fuller v. State, 217 Ark. 679, 232 S.W. 2d 988. It is the responsibility of the trial judge to maintain an appropriate balance in the performance of his role impartially and a clear transgression of the proper bounds must be demonstrated before an appellate court is justified in reversing a judgment because of the trial judge’s interjecting himself into the trial.
Not only has appellant failed to demonstrate impropriety on the part of the trial judge, the issue is first raised on appeal. Appellant has not called our attention to any objection or motion for mistrial made in the trial court. In the absence of either, or of any corrective action, we do not consider an assertion of error such as this. Kimble v. State, 246 Ark. 407, 438 S.W. 2d 705; Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93.
IV
Appellant recognizes that it is well settled that the verdict of a jury will not be disturbed on appeal, unless we can say there was no substantial evidence to support it. See Pope v. State, 262 Ark. 476, 557 S.W. 2d 887. Appellant points out that his wife and her three daughters had each admitted statements denying the truth of the accusations against him, that there was no corroboration by medical evidence of any sperm or physical evidence, that the crimes had not been reported for a matter of weeks, and that some of these witnesses had visited appellant in prison and some of them had written letters expressing affection for appellant. These arguments were undoubtedly addressed to the jury and appropriately so. Appellant says that the extent of the inconsistencies and the total lack of corroboration of these witnesses require that this court rule that the verdict was not supported by the weight of the evidence. We are not concerned with the prepondernace of the evidence; that was a concern of the jury. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938. We do consider that there was substantial evidence to support the verdict. No corroboration of the testimony of the victims was required. Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320; Nowlin v. State, 253 Ark. 57, 484 S.W. 2d 339;Rogers v. State, 237 Ark. 437, 373 S.W. 2d 705; Stevens v. State, 231 Ark. 734, 332 S.W. 2d 482; Hawkins v. State, 223 Ark. 519, 267 S.W. 2d 1. The testimony of the three girls was corroborated by their mother. The matters emphasized by appellant bear upon the credibility of the witnesses. Rose v. State, 122 Ark. 509, 184 S.W. 60. This was a matter for the jury’s consideration. Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370; Kitchen v. State, 264 Ark. 579, 572 S.W. 2d 839. This court is bound by the jury’s conclusion on the credibility of witnesses. Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32. It does not matter that a witness is uncorroborated and that testimony to impeach him has been introduced. Blumenthal v. State, 134 Ark. 605, 135 Ark. 617, 204 S.W. 602. We have no right to disregard the testimony of a witness after the jury has given it full credence, at least where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370.
The judgment is reversed and the cause remanded. | [
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Steele Hays, Justice.
Three points are raised by this appeal: whether a distributorship agreement between appellant Dr. Pepper Co. of Paragould, Inc. (Dr. Pepper) and appellee Don Frantz (Frantz) is subject to the Arkansas Franchise Practices Act; whether Dr. Pepper’s termination of the distributorship was without good cause and in violation of statutory provisions; and whether the evidence supports damages of $100,000 awarded to Frantz. Answering those questions in the affirmative, we affirm.
On November 17,1986, Frantz and Dr. Pepper entered into a contract entitled “Distributorship Agreement,” appointing Frantz to distribute exclusively throughout some eleven Arkansas counties the beverage products franchised by Dr. Pepper. Frantz agreed to carry Dr. Pepper’s entire line of products on its trucks, to refrain from selling any beverages similar to the products of Dr. Pepper, to comply with all policies of Dr. Pepper, including dress code, standards of merchandizing and the like. Frantz was to distribute beverage to retail outlets throughout the territory assigned to him at prices set by Frantz and to distribute at retail through coin-operated vending machines. No provision in the agreement obligated Frantz to maintain a particular place of business, a focal point of this dispute.
Frantz operated four trucks and two vans and rented warehouse space in Little Rock. Later, in 1989, Frantz constructed a warehouse, investing about $100,000 in the property. A representative of Dr. Pepper looked at the site and thought it “a good idea and a good investment.” Frantz maintained regular hours, keeping the doors open until six or seven p.m. Frantz distributed approximately one thousand five hundred cases of beverage each week, primarily to retail outlets but some sales were made to customers at the warehouse where products were on display.
In December 1988 Dr. Pepper wrote to Frantz stating that its products were being distributed in less than a third of the outlets of his territory, whereas he was obligated to secure and maintain regular distribution in a minimum of 65% of the outlets. Frantz was given until March 31, 1989, to correct the deficiency.
In September 1989 Frantz received a letter from Dr. Pepper informing him that because Dr. Pepper had recently acquired the 7-Up Bottling Company of Little Rock and Mountain Valley Water of Central Arkansas, “we must exercise our option to terminate your distributor agreement, effective immediately” upon thirty days notice.
Frantz brought this action against Dr. Pepper alleging the termination of the distributorship was in violation of the Arkansas Franchise Practices Act. The case was tried, Dr. Pepper moved for a directed verdict at the end of the plaintiff’s proof and again at the close. Both motions were denied and the jury returned a verdict for Frantz for $100,000. Dr. Pepper then moved for a judgment notwithstanding the verdict. That, too, was denied and this appeal followed.
I
The Circuit Court Erred In Finding That There Was A Legally Sufficient Evidentiary Basis For The Jury’s Finding That Frantz Was A Franchisee As That Term Is Defined By The Arkansas Franchise Act
A trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict of the jury, and the moving party is entitled to judgment as a matter of law. Dedman v. Porch, 293 Ark. 571, 739 S.W.2d 685 (1987). On appeal from the denial of a motion for a judgment notwithstanding the verdict we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf the judgment was entered. McCuistion v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980).
The Arkansas Franchise Practices Act [Act 355 of 1977, Ark. Code Ann. §§ 4-72-201 — 210 (1987)] provides remedies for persons whose rights as franchisees have been terminated without good cause. A franchise is defined by the act as
a written or oral agreement for a definite or indefinite period, in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristic within an exclusive or nonexclusive territory, or to sell or distribute goods or services within an exclusive or nonexclusive territory, at wholesale, retail, by lease agreement, or otherwise.
Ark. Code Ann. § 4-72-202(1).
The act applies only to a franchise
entered into, renewed, or transferred after March 4, 1977, the performance of which contemplates or requires the franchise to establish or maintain a place of business within the State of Arkansas.
Ark. Code Ann. § 4-72-203.
“Place of business” is defined as
a fixed geographical location at which the franchisee displays for sale and sells the franchisor’s goods or offers for sale and sells the franchisor’s services.
Ark. Code Ann. § 4-72-202(6).
From the foregoing excerpts, Dr. Pepper argues that the act applies only to agreements “the performance of which contemplates or requires the franchise to establish or maintain a place of business in Arkansas,” that is to say, “a fixed geographical location at which the franchisee displays for sale and sells the franchisor’s goods.” See § 4-72-202(6).
Dr. Pepper relies on Bridgman v. Cornwell Quality Tools Co., 831 F.2d 174 (8th Cir. 1987), George R. Darche Associates v. Beatrice Foods Co., 538 F. Supp. (D.N.J.), affirmed 676 F.2d 685 (3rd Cir. 1981) and Carlo C. Celardi v. Miller Brewing Co., 421 F. Supp. 233 (D.N.J. 1976). But those cases are neither controlling nor persuasive, given material differences. Bridgman operated entirely from a van and made no pretense of selling from a fixed location where Cornwell’s products were displayed. The trial court found that neither Bridgman’s van nor his home constituted a place of business and the appeals court deferred to those factual findings.
The Darche case has marked differences from the case before us. Darche maintained no inventory and had no authority to set prices, whereas Frantz determined the price. Darche was, in effect, simply a soliciting agent and all orders were considered simply “an .offer to purchase until accepted by [Beatrice].” Products were delivered directly to the purchaser by the manufacturer and not by the soliciting agent. Darche undertook no duty to promote sales.
The Celardi case involved a dispute between a New Jersey beer distributor, Celardi, and Miller Brewing Company. Celardi sued Miller alleging a breach of its distributorship in violation of New Jersey’s Franchise Practices Act. This act, like ours, applies only to franchises the performance of which contemplates or requires the franchisee to establish or maintain a place of business with the State of New Jersey. But, unlike our act, the New Jersey act requires a minimum level of gross sales attributable to the goods of the franchisor. More important, § 56:10 -3(f) of that act specifically excludes “a warehouse, a place of storage, a residence or a vehicle” from the definition of “place of business.” Miller argued the exclusion of warehouses, etc., was indicative of a legislative intent to exclude alcoholic beverages from the coverage of the franchise act. The court rejected the contention that § 56:10 -3(f) was intended to exclude particular industries or substantial operations like Celari’s from the protection of the act in these terms:
This is especially so when one considers the strong public policy in favor of protection expressed by the act. See Shell Oil Co. v. Marinello, 63 N.J. 402, 409, 307 A.2d 598, 602 (1973), cert. denied, 415 U.S. 920 (1974).
Nor do we read the Celardi case as the appellant does to support the view that the issue of what is contemplated in terms of performance is resolved “solely by reference to the contract.” Whether that is implicit in the opinion is at best debatable; it is not, however, explicit, and if the opinion seems to focus largely on the provisions of the agreement, that is doubtless influenced by the fact that the question before the court was whether a preliminary injunction should issue anticipatory to a trial.
Thus, Dr. Pepper posits the issue to be decided as not whether Frantz actually established a place of business in Arkansas where products of Dr. Pepper were displayed and sold-a premise not easily sustainable in view of the testimony and the verdict- but whether the agreement required that Frantz would display and sell Dr. Pepper products from a fixed location, or contemplated that he would do so.
We readily concede the agreement contains no specific provision relative to a fixed location, but that hardly ends the matter. The words “contemplates or requires” are modifiers of the word “performance” and they introduce a wider scope to our inquiry. Since they are paired in the disjunctive, and “contemplates” is the more encompassing of the two, that connotes greater latitude in how duties might be interpreted under the agreement. Nothing in the agreement prohibits Frantz from selling at a fixed location and, indeed, one might ask how he could be expected to supply a minimum of 65 % of the retail outlets in eleven counties, including Pulaski and Jefferson, with a fleet of six vehicles handling 1,500 cases per week, without maintaining a facility of some kind. True, the agreement makes no mention of such and certainly does not require a place where goods are displayed and sold, but neither does it prohibit such a place. Frantz testified to the presence of both and we find nothing in the record suggesting that what he evidently contemplated in the performance of the agreement was ever challenged by Dr. Pepper, the author of the agreement.
In resolving to affirm, we are influenced not only by the language in our statutes, but by the fact that the legislature designed the act for the protection of the public and aired its purpose in the emergency clause:
. . .that some franchisors have, without good cause and to the great prejudice and harm of the citizens of the State of Arkansas, cancelled existing franchise agreements and that other such cancellations are threatened; and that only by the immediate passage of this Act can this situation be remedied and it is therefore necessary in the public interest to define the relationship and responsibilities of franchisors and franchisees in connection with franchise agreements.
One abuse the act was intended to remedy is wrongful terminations. See 62B Am. Jur. 2d Private Franchise Contracts § 292 (1990). Such contracts should be liberally construed to carry out the legislative goal. Id. § 304. In Bush v. National School Studios, Inc., 407 N.W.2d 883 (Wisc. 1987), the Supreme Court of Wisconsin gave a liberal construction to its newly adopted franchise act:
In determining whether a dealership exists within the scope of a state franchise regulation, courts should not focus solely on identifying the tell-tale trappings of the traditional franchise; rather, courts should consider the overriding principle of whether the business’ status is dependent upon the relationship with the grantor for its economic livelihood. If such dependency does exist, the business would be extremely vulnerable if terminated without good cause and adequate notice.
We conclude that the trial court did not err in denying the motion for judgment notwithstanding the verdict.
II
The Circuit Court Erred In Finding That There Was A Legally Sufficient Evidentiary Basis For The Jury’s Finding That Frantz Sustained Damages In the Amount of $100,000
Dr. Pepper contends that recovery of damages may not rest on speculation or conjecture, Duncan v. Foster, 271 Ark. 591, 609 S.W.2d 62 (1980), and must be proven with reasonable certainty, Traylor v. Huntsmen, 253 Ark. 704, 488 S.W.2d 30 (1972). Frantz’s proof of damages was provided by Dr. Ralph Scott, an economist, who placed a value of between $89,000 and $164,000 on the franchise Frantz assertedly held in central Arkansas. Dr. Pepper faults that testimony on the ground that Frantz still has the capacity to generate income and was in fact still operating; and moreover that, Frantz’s losses were overstated inasmuch as Dr. Scott included in his calculations moneys generated from products being sold by Frantz not supplied by Dr. Pepper. Finally Dr. Pepper points out that Dr. Scott valued the enterprise as of the end of 1988, when more than 90% of Frantz’s sales were attributable to Dr. Pepper, which testimony ignored the operation for the three quarters of 1989 leading up to termination. Dr. Pepper urges that this analysis was too remote to support the award.
Appellee’s response to the omission of Frantz’s experience in 1989 is that such inclusion would have increased the amount of damages sustained, and further that testimony by Frantz was he had invested $100,000 in the acquisition of a warehouse and was damaged well in excess of $100,000 by the breach. We note, too, that Scott did some downward revision in his estimates in view of Frantz’s testimony that a portion of his sales were from products other than Dr. Pepper.
We cannot say the appellant has shown us that the proof of damages was too speculative to go to the jury. The jury instructions are not abstracted, which limits our understanding of the issue and increases our dependence on the trial court. Moreover, we have recognized some latitude in this area and have not insisted on exactness of proof. Lancaster v. Schilling Motors, Inc. 299 Ark. 365, 772 S.W.2d 349 (1989). If it is reasonably certain that some loss has occurred it is enough they can be stated only proximately. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985).
Ill
The Circuit Court Erred In Finding That There’Was A Legally Sufficient Evidentiary Basis For The Jury’s Finding That Frantz Was Terminated Without Good Cause, Without Statutory Notice, And Without An Opportunity To Cure His Deficiencies
Dr. Pepper contends there is no substantial evidence that Dr. Pepper terminated Frantz without good cause. “Good cause” is defined under the Franchise Act as including the failure by the franchisee to comply substantially with the requirements imposed under the agreement. Dr. Pepper submits it produced overwhelming evidence of good cause to terminate. But that issue was clearly one for the jury, considering there was evidence from which the jury could readily find that termination was attributable to Dr. Pepper having acquired 7-Up Bottling Company rather than from the actions of Dr. Frantz.
For the reasons stated, the judgment is affirmed.
Whether the construction of the agreement and applicability of the statutes should have been decided by the trial court, have not been raised by either party. See Duvall v. Massachusetts Indemnity & Life Insurance Co., 295 Ark. 413, 748 S.W.2d 650 (1988). | [
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Kenneth R. Mourton, Special Justice.
This case involves the issue whether Arkansas’ imposition of a gross receipts tax violates the Equal Protection Clause of the Fourteenth Amendment. We hold that no such violation occurred even though the tax applied to cable television operators and subscribers while remaining silent as to satellite subscribers and operators. The chancellor’s order denying and dismissing the equal protection claim is affirmed. A finding of the statute’s constitutional validity allows us to dismiss the Supremacy Clause issue.
On March 21, 1987, the Arkansas General Assembly adopted Act 188 of 1987 [Act 188], effective July 1, 1987, amending the previous statute, concerning the Arkansas gross receipts tax. Act 188 added cable television to the list of services that had state and local sales taxes imposed on them. It did not, however, apply to other forms of mass media, particularly scrambled satellite television services. The appellants filed a class action on May 28, 1987, requesting that Act 188 be declared an illegal exaction discriminating among mass media.
Appellants are Daniel L. Medlock, a cable subscriber, Community Communications Company, the Arkansas Cable Television Association, Inc. on behalf of themselves and all other similarly situated taxpayers subjected to the television services sales tax. The appellees are James C. Pledger, the Commissioner of Revenues, Timothy J. Leathers and various state, county, and city officials, Pulaski County, the City of Benton, and all similarly situated counties and cities. The City of Fayetteville intervened. Appellants claimed a variety of their constitutional rights had been violated: freedom of speech; freedom of the press; equal privileges and immunities; freedom of equal protection of the laws and protection under the Supremacy Clause. These allegations centered primarily on the claim of discrimination against cable television under the First Amendment. This court origi nally held that the First Amendment required similar taxation of cable and satellite providers. The U.S. Supreme Court found that imposing the fee upon cable alone did not impede cable’s free speech ability to act as a check on government nor did it target a small group of speakers or discriminate on content and was therefore constitutionally permissible. Leathers v. Medlock, _ U.S. __, 111 S. Ct. 1438 (1991). We originally found that cable and satellite businesses were similarly situated because they ended in substantially the same result — video programming. Medlock v. Pledger, 301 Ark. 483, 785 S.W.2d 202 (1990), aff'd in part, rev’d in part, Leathers v. Medlock, _ U.S. __, 111 S. Ct. 1438 (1991). The case has been remanded to us for consideration of the issue that we did not originally reach: whether the Equal Protection Clause required similar taxation of cable and satellite providers. We allowed the parties to address the Supremacy Clause issue during this remand.
The chancery court found in favor of appellees and determined Act 188 was not an illegal exaction. After the chancellor’s decision, Act 188 was amended by Act 769 of 1989, effective July 1,1989, to include “ [s] ervice of cable television, community antenna television, and any and all other distribution of television, video, or radio services . . . .” Ark. Code Ann. § 26-52-301 (3)(D)(i) (Repl. 1992).
I.
The Fourteenth Amendment of the U.S. Constitution provides, “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. In previous equal protection cases this court has determined that tax legislation often survives the rational basis test. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). The court stated, “[u]nder the rationality standard of review, we must presume the legislation is constitutional, i.e. that it is rationally related to achieving a legitimate governmental objective.” Id. at 213, 655 S.W.2d at 463. Awareness of local needs and usages of funds helps the legislature form equitable distributions of tax burdens. Such knowledge and familiarity with community conditions have traditionally allowed courts to tolerate legislatively created classifications. See generally Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983) (stating that legislatures have extremely broad latitude in creating classifications and distinctions in tax statutes); New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 (1938) (holding that state legislatures may identify or designate a particular class to be the object of a tax so long as the state does not violate the class’ rights to equal protection of the laws); Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32 (1928) (explaining that flexibility is granted to states to classify for taxation purposes); Citizens’ Tel. Co. v. Fuller, 229 U.S. 322, aff'd, 229 U.S. 335 (1913) (reviewing numerous decisions where state legislatures were allowed to discriminate among different persons in taxation statutes).
“Inherent in the power to tax is the power to discriminate in taxation.” Leathers, _ U.S. at _, 111 S. Ct. at 1446. Courts should defer to local legislative determinations as to the desirability of imposing discriminatory measures. City of New Orleans v. Dukes, 427 U.S. 297 (1976). A court will not strike down a classification merely because it is underinclusive. The law must be “purely arbitrary” in its classification; thus the only classification not allowed in taxing is invidious discrimination. Id. If a taxation statute discriminates in favor of one class it is not determined to be arbitrary so long as the discrimination is based upon a reasonable distinction, and if there is any hypothesized set of facts to uphold a rational basis. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Appellants argue that hypothesizing a rational basis, as in Streight, should be beyond the power of this court. We view hypothesizing a rational basis the same as conceiving a rational basis; a practice that is available to the courts without question. We point to the language of Streight and conclude that any rational basis for a taxation statute may be developed at any time.
In any event, the judiciary is allowed to hypothesize and . . . reach a conceivable basis for the exemp tions which [it] concludefs] are rational, reasonably distinctive and not arbitrary. It causes us to defer to legislative purpose because there is a rational basis for the tax ....
Before it is said that such hypothesizing is far afield, we re-emphasize that our role is not to discover the actual basis for the legislation. Our task is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose.
Streight, 280 Ark. at 214-15, 655 S.W.2d at 464.
This court will give great deference to the General Assembly in the legislation of taxation where the clear intent of the statute is to raise revenue and not to discriminate among similarly situated individuals. In a similar equal protection case involving the media, Justice Rehnquist stated, “[w]e have shown the greatest deference to state legislatures in devising their taxing schemes.” Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 599 (1983) (Rehnquist, J., dissenting). Even without such deference Act 188 will survive the rational basis test when we apply the intervenor’s argument. Arkansas, primarily a rural state, may classify between satellite and cable because the state needs satellite television transmission in those geographic areas where cable services are not feasible. We acknowledge other conceivable rational bases for the arguments that were addressed at oral argument but we are not compelled to discuss them here. One conceivable rational basis is enough to pass the test.
In searching for any rational basis, we ask whether the created classification has a conceivable reasonable relationship to the governmental action. Madden v. Kentucky, 309 U.S. 83 (1940). Under the rational basis test, a reasonable purpose of the legislation need not be determined at the time of passage of the statute. Because broad discretion to classify has long been recognized in taxation, New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 (1938), “the Fourteenth Amendment was not intended to compel the State [s] to adopt an iron rule of equal taxation.” Bell’s Gap R.R. Co. v. Pennsylvania, 134 U.S. 232, 237 (1890).
Because of this presumption of a tax’s constitutionality, the party challenging the tax has the burden of showing that no conceivable basis could ever support it. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911); Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). We originally determined cable and satellite to be “the purveyors of a particular medium.” Medlock v. Pledger, 301 Ark. 483, 487, 785 S.W.2d 202, 204 (1990). That “particular medium,” video programming, is the end result of both cable and satellite. Because of the characteristics of television programming the process can be divided into several classes based on transmission techniques. Cable, both basic and premium, depends upon a sophisticated transmission system requiring substantial investments by cable companies. Satellite, however, merely requires installing a satellite dish by the user, as does an antenna user installing an antenna. The sophisticated transmission system is not needed. Descrambled satellite is only different from satellite in that it requires special programrij|ing at the programming location which is usually out of state. Even though the end result of the video programming is similar, satellite and cable providers transmit their signals to viewers in different ways; therefore, a distinguishable classification at the initial stage of programming exists.
II.
Counsel for appellants, in their briefs and at oral argument, displayed a misconception of the purpose and strength of Special Justices. Although we trust this misconception is not widespread, we are compelled to address it in hopes of avoiding confusion in the future. Special Justices are an intricate and necessary part of our judicial system and shall continue to enjoy the distinguished positions they have traditionally possessed throughout our history. To say that any law created by Special Justices is some type of “special law” which does not need the public’s compliance is a fallacy.
This court has numerous opinions authored by Special Justices. Due to the doctrine of stare decisis these cases have been upheld and applied to similar fact patterns. Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918, cert. denied, 112 S. Ct. 617 (1991) involved four Special Justices while the Court in Streight, 280 Ark. 206, 655 S.W.2d 459, was comprised entirely of Special Justices. In Streight the issue involved retirement income tax exemptions of government employees. The Justices all recused themselves because the outcome of that case affected their financial interests. Had the safety valve of Special Justices not been present, the case may well have never been litigated. Bosworth involved equal protection arguments on a state sales tax on telephone communication services. The decision, although written by a Special Justice, was a unanimous decision of the court. Both cases have been cited by this court and upheld even in situations where no Special Justices served.
When justices of this court find it necessary to disqualify themselves from participating in a case it is imperative that there be some safety valve that will allow the parties to continue before the court; Special Justices serve this purpose. To argue that the Special Justices are not true justices is absurd and only serves to create a myth that laws can be distinguished on varying levels of importance. For these reasons we conclude that any opinion of this court involving one or more Special Justices shall bear the same precedential value as any other.
III.
This court does not intend to favor or advocate particular lawyering tactics. We are obliged, however, to note that when counselors file briefs and appear before the court certain expectations exist. A party’s argument is judged through the combination of briefs and oral arguments. There is a fundamental unfairness in not adequately and fully presenting one’s position in the brief and waiting until oral argument to clarify it. Litigants are entitled to know all arguments so that they may prepare adequate responses. Requiring presentation of, arguments in briefs enhances quicker resolution and more complete discussion of the issues.
Because both parties conceded the appropriate standard of review, the essential remaining issue in this case was whether the facts fit within the rational basis test. Appellees, therefore, should have submitted a more concise brief presenting conceivable bases for the statute. It is not the job of the court, but rather of attorneys to present arguments to bolster their positions. Counsel representing appellees did not advance any possible rational bases and initially replied ambiguously when questioned by the bench at oral argument. Upon further questioning, however, he provided his examples of rational bases for Act 188’s different treatment of cable and satellite. He also stated that it was a “hearing tactic” to not disclose the purpose or basis in the brief but to disclose at oral argument. We are concerned with such techniques because we often make determinations based on the disclosure in briefs and argument. These actions do not afford the opposing party any fair opportunity to respond.
Ark. Sup. Ct. R. 18(j) provides that “[i]f a case outside the brief is to be cited, the citation must be furnished opposing counsel in advance as soon as possible.” This requirement and the other guidelines of Rule 18 are for the purpose of having arguments where all parties are fully prepared. Because we will not permit counsel, absent necessity or special permission, to read from books, counsel should make all responsible efforts to disclose their basic positions prior to arguments. Although the outcome of this case was not substantially affected by the actions of counsel, we find it appropriate that counsel should fully disclose and develop their respective positions in the briefs.
IV.
Appellants argue that Act 188 conflicts with and is preempted by the Federal Cable Communications Policy Act of 1984 [Cable Act], codified as 47 U.S.C. §§ 521 to 559,611 (1988 & Supp. 1990). We find this issue is without merit. .Appellants argue that Act 188, by taxing cable without taxing satellite unduly discriminated against cable and thus violated the federal cable act. Appellants also state that Congress was trying to create a national policy that would deal with the problems that arise when state and local governments discriminatorily impose general taxes. There is, however, no actual conflict between the Cable Act and Act 188. When Congress defined “franchise fee” in the Cable Act, it recognized that general taxes could be imposed on cable. 47 U.S.C. § 542(g)(2)(A) (1988). Because we have determined that Act 188 was not unduly discriminatory, the Supremacy Clause issue is without merit.
Article VI, Clause 2 provides, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the . . . laws of any state to the contrary notwithstanding.” U.S. Const, art. VI, cl. 2. As Section 542(g)(2)(A) provides, “the term ‘franchise fee’ does not include . . . any tax ... of general applicability” and may be imposed on cable services so long as it is not “unduly discriminatory.”
In the 1941 case of Hines v. Davidowitz, the U.S. Supreme Court warned about preemption cases; “[b]ut none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). In Goldstein v. California, 412 U.S. 546 (1973) the Court, in deciding whether a state law would be preempted, asked whether the state law stood as an obstacle to the accomplishment of Congress’ objectives or purposes. This test was expanded in Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984), where the Court based preemption on four factors: whether Congress expressed a clear intent to preempt state law; whether Congress occupies the field so as to leave no room for the states to supplement; whether compliance with both the state and federal laws is impossible; and whether the state law stands as an obstacle to Congress’ objective or purpose. Id.
When Congress passed the Cable Act, it intended to create a national policy governing cable communications while at the same time providing guidelines for state and local authority to regulate cable systems. 47 U.S.C. § 521(1), (3) (1988). Once Congress left the door open for state and local governments to regulate, it did not intend to preempt any legitimate state legislation; nor did it totally occupy the field of cable communications. It is possible to comply with both state and federal laws, likewise, the state statute does not stand as an obstacle to Congress’ purpose. Act 188 fits within the area of discretion left by the Cable Act to allow state and local communities to regulate and tax cable services as they choose. We therefore dismiss the preemption issue.
Affirmed.
Dudley, J. not participating.
The Honorable Lee A. Munson, Chancellor, First Division, Pulaski County Chancery Court presided.
Chancellor Munson entered an Opinion on March 10, 1989, and an Order and Judgment on March 13, 1989.
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Donald L. Corbin, Judge.
This is an appeal by three of five alleged dependents of Edward Charles Bankston, deceased, from a decision of the Arkansas Workers’ Compensation Commission denying them dependency benefits. The appellee employer, Prime West Corporation, stipulated that Edward Charles Bankston suffered a compensable injury which resulted in his death on August 11, 1978. The three remaining appellants are Kajuanna Bankston, Dameon Bankston and Kelli Edwina Bankston.
We think it important to first reiterate the standard of review in workers’ compensation cases. This court on appeal is required to review the evidence in the light most favorable to the findings of the Commission and give the testimony its strongest probative value in favor of the order of the Arkansas Workers’ Compensation Commission. The issue on appeal is not whether this Court would have reached the same results as the Commission on this record or whether the testimony would have supported a finding contrary to the one made; the question here is whether the evidence supports the findings which the Commission made. Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487 (1968). When the Commission makes a finding of fact, that finding carries the weight of a jury conclusion. Taylor v. Plastics Research and Development Corp., 245 Ark. 638, 433 S.W. 2d 830 (1968). The decision of the Commission must stand if supported by substantial evidence. American Can Co. v. McConnell, 266 Ark. 741, 587 S.W. 2d 583 (1979).
I.
We will first consider the appeal in behalf of Kajuanna Bankston. The Full Commission adopted and affirmed the opinion of the Administrative Law Judge that Kajuanna Bankston was not a child of Edward Bankston, deceased, within the meaning of Ark. Stat. Ann. § 81-1302 (j) (Repl. 1976) and that she was not “wholly and actually dependent upon” the decedent within the meaning of Ark. Stat. Ann. § 81-1315 (c) (Repl. 1976).
Debra Faye Bankston, the mother of Kajuanna Bankston, testified that she and the decedent were married on October 13, 1972 and were never divorced. She testified that the decedent left her in June of 1973 and he never again lived with them nor supported them. Debra Faye Bankston testified that Jimmy Williams was the father of Kajuanna Bankston and that Kajuanna was born approximately one month before she married the decedent. Debra Bankston began receiving assistance from the Jefferson County Social Services Office for Kajuanna on October 23, 1973- The Jefferson County Social Services’ records reflected that the father of Kajuanna was Jimmy Williams.
Appellant Kajuanna Bankston argues that she could be classified as either a “stepchild” or “foster child” within Ark. Stat. Ann. § 81-1302(j). We disagree. This child was born before the marriage of her mother to the decedent and it was clearly established that the decedent was not the natural father of the child. Further, the decedent had not lived with nor supported the appellant or her mother since his removal from the matrimonial home in June of 1973. Kajuanna did not sustain her burden of proof to establish that the decedent was not in any manner a “stepchild” or “foster child” within Ark. Stat. Ann. § 81-1302(j) and failed to sustain her burden of proof to establish that she was “wholly and actually dependent” upon the decedent within the meaning of Ark. Stat. Ann. § 81-1315(c).
II.
Appellant Dameon Bankston appeals the decision of the Commission, which held: (1) he was not a child of Edward Bankston, deceased, within the meaning of Ark. Stat. Ann. § 81-1302(j) and (2) he was not “wholly and actually dependent upon” Edward Bankston, deceased, within the meaning of Ark. Stat. Ann. § 81-1315(c).
Dameon Bankston was born on July 6, 1977. As previously stated, Debra Faye Bankston, mother of Dameon Bankston, had married the decedent in October of 1972 but had not lived with him since June of 1973.
Debra Faye Bankston testified that she had engaged in sexual intercourse with the decedent and a man named Willie Bailey in the latter part of September of 1976. She could not state under oath who was the father of Dameon. Mrs. Bankston had named Willie Bailey as the father of Dameon to the Social Services Office and to an insurance adjustor who was investigating this claim. Regardless of Mrs. Bankston’s reasons or motives for naming Willie Bailey as the father of Dameon to these parties, we do not believe this testimony should deprive Dameon of his legitimacy. A parent’s testimony is incompetent when it is employed to bastardize a child which is presumed legitimate by one of the strongest presumptions found in the law. Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (1920); Kennedy v. State, 117 Ark. 113, 173 S.W. 842 (1915); Thomas v. Barnett, 228 Ark. 658, 310 S.W. 2d 248 (1958).
The presumption of legitimacy of children born during wedlock of two persons has common law and statutory basis in Arkansas. The statutory basis is found in Ark. Stat. Ann. § 61-141(a). In Spratlin v. Evans, 260 Ark. 49, 538 S.W. 2d 527 (1976), the Court stated:
We are met . . . with the common law presumption, long valid in this State, that a child born to a legally married woman is the legitimate child of the husband and the presumption is one of the strongest presumptions known to the law. It is only rebuttable by the strongest type of evidence such as conclusive evidence of impotency of the husband, or nonaccess between the parties at the time of conception. The moral and social reasons for retaining this common law presumption in domestic relations and in the property laws relating to descent and distribution are too obvious and well known to justify comment, and our decisions on this point are so numerous and uniform we deem it unnecessary to cite them.
We find that Dameon Bankston is the legitimate child of the decedent.
The next issue is whether Dameon was wholly and actually dependent upon the decedent. The Arkansas Supreme Court dealt with this issue in Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W. 2d 268 (1979). The basic facts in the Roach case are: Glen and Willadean Cole were married in 1965. Their daughter was born in 1966. In June, 1975, Glen left his wife and child in Rector, Arkansas, and moved to Memphis, Tennessee, where he married another woman without having divorced his wife. Willadean knew that her husband was in Memphis, but she supported herself and her daughter and made no attempt to obtain anything from her husband. Glen was accidentally killed in the course of his employment on May 18, 1976. The Court quoted Larson’s summary of the rule applicable under statutes requiring actual dependency as:
Proof of bare legal obligation to support, unaccompanied by either actual support or reasonable expectation of support, is ordinarily not enough to satisfy the requirement of actual dependency. Larson, Workmen’s Compensation Law, § 63 (1976).
The Court, in the Roach case, stated that the mother had elected to attempt to support herself and made no effort during her husband’s 11-month absence preceding his death to enforce whatever legal right to support she may have had. Thus, the Commission could find that she failed, in the language of the amended statute, to “establish in fact some dependency” on her husband at the time of his death. On the other hand, the Court in Roach, supra, noted that the Commission could also find, with respect to a 10-year-old child who was being supported by her mother, that the same lapse of 11 months without legal action on the mother’s part did not demonstrate in Larson’s language that there was no longer any “reasonable expectation of support” on the part of the father. (Emphasis supplied.) The facts in the present case are distinguishable from those in the Roach case. Debra Bankston and the decedent were married in October of 1972. Edward Bankston left in June of 1973 and did not again permanently reside with Debra Bankston. He did not provide support for her from June, 1973, to his death, nor did he provide support for Dameon Bankston from the date of Dameon’s birth to the date of the decedent’s death. Dameon was supported by Willie Bailey. In Doyle’s Concrete Finishers v. Moppin, 268 Ark. 167, 594 S.W. 2d 243 (1980), the Court stated that:
when the widow and the child, as here, are not living with the employee at the time of his death, ‘there must be some showing of actual dependency.’ Dependency is a ‘fact question to be determined in light of surrounding circumstances.’ Consequently, dependency of a child is no longer a conclusive presumption.
There is substantial evidence to support the finding of the Commission that Dameon Bankston was not wholly and actually dependent upon Edward Charles Bankston. The source of Dameon’s support was from a person other than the decedent. The case of Continental Ins. Co. v. Richard, 268 Ark. 671, 596 S0W. 2d 332 (Ark. App. 1980) can be distinguished from the instant case because there was undisputed testimony that the decedent in the Continental case regularly contributed to the support of his child. Appellant Dameon, having the burden of proving by a preponderance of the evidence that there existed at the time of the employee’s death either (1) actual support or (2) a reasonable expectation of support, has failed to sustain his burden of proof and for that reason we would affirm the decision of the Commission in denying dependency benefits to him.
III.
Two. issues are raised by appellant Kelli Edwina Bankston’s appeal: (1) is Kelli a “child” of Edward Charles Bankston, deceased, within the meaning of Ark. Stat. Ann. § 81-1302(j) and (2) was she “wholly and actually dependent upon” the decedent within the meaning of Ark. Stat. Ann. § 81-1315(c).
During the course of the trial the Administrative Law Judge stated:
As far as I’m concerned, Mrs. Coleman has established by a preponderance of the evidence that Mr. Bankston was the father of this child.
However, in his opinion, he stated that the appellant had failed to prove by a preponderance of the evidence that Kelli E. Bankston was a child of Edward C. Bankston, deceased, within the meaning of the Arkansas Workers’ Compensation Act. Ark. Stat. Ann. § 81-1302Q provides:
“child” means a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child.
A decision of the United States Supreme Court in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972), held that no distinction as to entitlement to workers’ compensation benefits can be drawn between legitimate and illegitimate children. The reason is that such a distinction violates the equal protection clause of the Fourteenth Amendment. See also, 2 Larson, Workmen’s Compensation Law, § 62.22. We find that Kelli Edwina Bankston was a child within the meaning of the Arkansas Workers’ Compensation Act.
The next question is whether Kelli Edwina Bankston was wholly and actually dependent on support from the decedent. The extent of our inquiry is limited to the determination of whether there is any substantial evidence to support the Commission’s findings. Even if the preponderance of the evidence would indicate a different result, we will affirm the Commission if reasonable minds could reach the conclusion reached by the Commission. Or conversely, we will not reverse the Commission’s finding that the claimant failed to meet his burden of proof unless fair-minded men could not have arrived at a finding adverse to the claimant. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979). No evidence was produced by the appellee to contradict the tesitmony of Juanita Coleman, mother of the appellant Kelli Edwina Banston, and other witnesses called in behalf of the appellant. Juanita Coleman testified that she had known the decedent for seven and one half years and had lived with him from May of 1977 to the time of his death on August 11, 1978. She had sexual relations with him prior to May, 1977, and on a permanent basis after he moved in with her. The decedent gave her $100.00 per week and paid all of the bills. He traded in an automobile and acquired a different one in the name of Juanita Coleman. The decedent used this automobile to travel to and from work. His clothes were in her home at the time of his death. He had acknowledged to many people that Kelli was his child. Other witnesses called in behalf of the appellant testified as to the continuing relationship of the decedent to Juanita Coleman and his support of her. We hold, under the peculiar facts of this case, that the clear and undisputed proof of the support of Juanita Coleman by the decedent raises a reasonable expectation that Kelli Edwina Bankston would also be supported by the decedent.
There being no substantial evidence to support the finding of the Commission that Kelli Edwina Bankston was not wholly and actually dependent upon the decedent for support, we reverse.
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David Newbern, Judge.
The parties were divorced in 1977, and custody of their two sons was awarded to the appellee. In 1979 the appellant petitioned for change of custody with respect to Jeffrey, the younger of the children, whose age was 11 at the time of the hearing on the petition. The appellant asked that the alimony which had been awarded to the appellee be abated because she had begun earning sufficient income to support herself. In a counter petition, as amended, the appellee denied that circumstances had changed so as to provide a basis for a change in custody, and she asked that she be allowed to remain in the appellant’s mobile home, where she and the children had been allowed to dwell pursuant to the decree. The initial decree had provided she was to remain in the mobile home until the nearby house being constructed for her was completed, but in any event no longer than three years from the date of the decree.
The appellee further requested an increase in child support, alleging that the original award of $40 per week was no longer adequate. She also asked that her alimony not be abated because her income was not sufficient to support herself and the children. She requested further that the appellant be held in contempt for his violation of the court’s order that he not harass her.
The chancellor held a hearing and entered an order stating that, (1) the petition seeking change of custody and abatement of alimony would be dismissed because evidence of changed circumstances was insufficient, (2) the appellant was in contempt and sentenced to a $1,000 fine and 30 days in jail, with all but $100 of the fine and 24 hours of the jail term suspended, because of his harassing acts toward the appellee, (3) the child support payments for the two children would be increased to $60 per week, and (4) the appellee’s request she be allowed to remain in the mobile home was denied.
The appellant has appealed the denial of the change of custody, the increase in child support, and the court’s refusal to abate the alimony.
1. Change of custody.
The appellant first sets out sections 1 and 3 of Acts of Arkansas (1979), No. 278, which recognized the need to abolish the consideration of the sex of a party seeking custody of a child and recognized the difficulty divorced fathers have had in obtaining custody of their children despite the fact they may have been more qualified than divorced mothers. If we were dealing in this case with the initial decree and being asked to consider evidence that the assignment of custody had been based upon the gender of the parties, Act 278 would be relevant. However, here we are concerned with a question of change in custody. We will consider, of course, the best interests of the child, Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978); Kirby v. Kirby, 189 Ark. 937, 75 S.W. 2d 817 (1934); and Perkins v. Perkins, 266 Ark. 597, 589 S.W. 2d 588 (Ark. App., 1979), and whether the chancellor’s determina tion of that issue was clearly erroneous or clearly against the preponderance of the evidence. A. R. Civ. P. 52.
About the only change in circumstances to which the appellant refers as a basis for alleging the chancellor erred is the fact that the appellant has become remarried (for the second time since his divorce from the appellee) to a woman who is a full-time homemaker, and that he lives in a comfortable house where there is a room for Jeffrey. The appellant’s wife of six months testified that she loved Jeffrey and would like to have him in their home. The appellant testified-of his love for his son and his concern over an apparent learning disability for which he had sought treatment for Jeffrey.
In response to this argument, the chancellor referred to the misconduct of the appellant for which he had been found in contempt and stated he was completely unconvinced the appellant had “this child’s best interest at heart.”
Given the best interests guideline and the requirement that we find changed circumstances in that context, we cannot disagree with the chancellor or say that his decision was clearly erroneous. Certainly, the circumstances in which the child was placed when the decree was rendered are the same ones in which he continues to live today. There was evidence before the chancellor that the appellant had been arrested for public drunkenness and had been involved in disturbances of the peace in addition to his harassing conduct toward the appellee. Thus, despite the appellant’s changed circumstances with respect to his home life, we cannot gainsay the chancellor’s conclusion that circumstances as they affect Jeffrey have not changed or indeed that his interest would be better served if he were to live with his father.
A subsidiary raised by the appellant is the refusal of the trial court to give any weight to Jeffrey’s testimony that he would prefer to live with his father. A number of our supreme court’s decisions have approved the practice of considering the wishes of children, some of them quite young, with respect to custodial preference. DeCroo v. DeCroo, 266 Ark. 275, 583 S.W. 2d 80 (1979); Carr v. Hall, 235 Ark. 874, 363 S.W. 2d 223 (1963) (rev’d on rehearing on other grounds); Dill v. Dill, 209 Ark. 445, 191 S.W. 2d 829 (1945). Although the DeCroo opinion said the testimony of a 13 year old was not “entirely without weight,” we find no case denying the chancellor the discretion to decline to give weight to such testimony. Here, the chancellor permitted Jeffrey to testify but stated beforehand that he did not intend to give the testimony any weight.
Problems at school had led Jeffrey’s mother to seek help at Southeast Mental Health Center. An employee of the Center testified that Jeffrey’s intelligence was “marginal” and that he was “very anxious, immature, and impulsive” when he was initially examined at the Center. Through medication and group therapy, he has improved, but he requires “continuous supervision.”
Even if the chancellor’s predetermination with respect to the credibility or weight to be given Jeffrey’s testimony was questionable, we can hardly say his discretion was abused in view of the testimony of the representative of the Center and the evidence which so emphatically convinced the chancellor the appellant was a person given to misconduct which could affect Jeffrey.
2. Increase in child support.
At the time of the hearing, the appellee’s remaining tenure in the appellant’s mobile home was drawing to a close, and, as noted above, she sought a change from the original decree so that she might be allowed to remain there until the children were grown. The home which had been under construction had burned. The appellee testified that on the night it burned, she received a telephone call from a person whose voice she identified as that of the appellant telling her to look out her back window. She did so and saw her construction project in flames. The appellant denied having made the call or having had anything to do with the fire.
In deciding to increase the appellant’s child support payments from $40 to $60 per week, the chancellor commented he was not certain the appellant had nothing to do with that fire. The chancellor declined to honor the request of the appellee that she be allowed to remain in the mobile home, and he based the change in support payments upon the fact that the appellee was about to be required to move from the appellant’s mobile home and would need additional funds for dwelling space.
Here again, the applicable standard to be applied is that of “changed circumstances.” The circumstances of the appellee and the children were about to change, and we cannot say the chancellor’s order in this respect was clearly erroneous, Rule 52, supra, or that the chancellor abused his discretion. Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979); Collie v. Collie, 242 Ark. 297, 413 S.W. 2d 42 (1967).
3. Alimony.
Ark. Stat. Ann. § 34-1213 (Supp. 1979), provides that alimony may be altered upon application under such circumstances “as may be proper.” Our supreme court has required changed circumstances as the predicate for any such alteration. Drummond v. Drummond, 267 Ark. 449, 590 S.W. 2d 658 (1979); Hurley v. Hurley, 255 Ark. 68, 498 S.W. 2d 887 (1973). While we cannot close our eyes to the reality of and the policy served by the remarriage of the appellant and the additional expenses he has undertaken, that factor is not compelling. Hurley v. Hurley, supra. Nor are we compelled by the evidence that the appellee at the time of the hearing had two part-time jobs from which she earned $375 per month. It is clear to us as it must have been to the chancellor that the appellee is not “self-sustaining”, Davis v. Davis, 241 Ark. 171, 406 S.W. 2d 704 (1966), and that the appellant’s income has not been so substantially reduced that he is no longer able to pay alimony to the appellee.
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David Newbern, Judge.
This is a city annexation case. The decision in the lower court approved the annexation. In addition to the appellants’ points for reversal, we will discuss the appellees’ contention that the appellants have no standing in the case. We find that one of the appellants has sufficient standing to raise the asserted errors, but we disagree with the appellants’ assertions of error, and thus, the lower court’s judgment is affirmed.
The annexation was brought about by a petition circulated by persons who owned property adjoining the city of Conway. The appellants appeared personally before the county court to make their remonstrance known. The county judge approved the annexation of all of the property originally sought to be annexed but later amended his order, apparently for the purpose of excluding properties owned by these appellants from that to be annexed. The county judge failed to exclude some two acres belonging to appellant A.J. Pratt and the property of appellant Joe Padgett.
The matter was then appealed to the circuit court which completed the task of excluding the property owned by Pratt but did not exclude that belonging to Padgett.
1. Standing.
The appellees contend that the appellants have no standing to appeal the circuit court judgment because none of them, with the exception of appellant Joe Padgett, owned property in the area to be annexed, and Padgett did not participate in the circuit court trial. Perkins v. Holman, 43 Ark. 219 (1884). If it were true that none of the appellants owned property in the area to be annexed or in the city to which it is to be annexed, this might have been a valid point. However, it is admitted that Padgett owns property in the area to be annexed. The fact that Padgett did not participate in the circuit court proceedings does not convince us that he was not a litigant there. His name was on the pleading, and the circuit court judgment purported to affect him as well as the other appellants. The appellees cite no authority holding that failure to participate makes one who appears there as a matter of record any less entitled to appeal the result. Having found that one of the appellants has standing to pursue this appeal, we proceed to the points raised by them.
2. Premature order.
The appellants’ first contention is that Ark. Stat. Ann., § 19-303 (Repl. 1980), prevents any further action from being taken for a period of 30 days after the county court has entered its order granting the annexation petition, and that here the 30 days had not elapsed before the city of Conway passed an ordinance accepting the annexation.
The appellees respond, and we agree, that the sole purpose of that statute is to give to remonstrants an opportunity to appeal the county court order to the circuit court. In Barnwell v. Town of Gravette, 87 Ark. 430, 112 S.W. 973 (1908), our supreme court said:
Thirty days are allowed for a notice of complaint against such annexation; and where such complaint has been heard and dismissed, then thirty days must elapse before the order of annexation shall be made. This thirty days after the dismissal of the complaint is evidently in order to allow the remonstrants to appeal. There can be no other purpose for it in the legislative scheme.
While § 19-303 was not cited there, and we cannot be entirely certain the court was writing about the 30-day period prescribed in that particular statute, we believe the principle espoused in that annexation case applies in this one. We can find no prejudice which occurred to these appellants because the ordinance was passed some two days before the period elapsed. The appellants were in no way prevented from taking their appeal to the circuit court. The statute gives the right to protest the annexation in circuit court during the 30-day period to “any person interested.” Again, we cannot see how these appellants have been prejudiced by failure to follow the statute even though it might be surmised that some other “person interested” might somehow have been deprived of his or her right to protest the annexation.
3. Validity of the annexation petition.
Under this point, the appellants contend that the lower court erred in finding that the majority of the property owners in the annexed area signed and agreed with the petition for annexation and that the signers owned a majority of the acreage affected. The contention seems to be that the trial court should have disqualified many of the petition signers. The appellees meet the argument by stating explanatory and contradictory facts surrounding the signatures of the signers whose qualifications are questioned by the appellants.
This argument is no more than a rehashing of the facts which were decided by the trial court. We decline an invitation to make these factual determinations as that is, of course, not our duty. Much of the testimony heard by the trial court went directly to the qualifications of the petitioners, and we find no reason to reverse the determination that there were sufficient valid signatures. The appellants’ brief has merely argued facts without even suggesting a reason for us to reverse the trial judge’s findings.
4. Technical failures.
In their final point, the appellants urge that a number of errors occurred in the annexation process acknowledging that many of their allegations have to do with questions to be answered in “the sound discretion of the court as the trier of fact.” We agree that all of the items mentioned in this point, e.g., allegations of misrepresentation used to obtain signatures to the petition and alteration of the plat considered by the trial court in a way that misled the court and the signers of the petition are factual determinations. For that reason and because no authorities whatever are cited under this point, we decline to consider these allegations. The appellants have not demonstrated that there is no substantial evidence in the record to support the trial court’s findings or that those findings were clearly erroneous or clearly against the preponderance of the evidence. A. R. Civ. P. 52.
Affirmed. | [
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Robert H. Dudley, Justice.
The chancellor cancelled the oil and gas leases to some of the vertical geological formations of a drilling unit. The defendant production companies appeal from the chancellor’s finding that they have abandoned some of the formations, and the plaintiffs cross-appeal from the finding that the defendants have not totally abandoned the leases.
We cannot reach the merits of the case and must affirm the final order on both direct and cross-appeal for failure of the parties to comply with Rule 9(d) of the Rules of the Supreme Court and Court of Appeals. There is no abstract, by either the appellants or the cross-appellants, of the complaint, the cross-complaint, or either of the answers. An abstract of those pleadings would be helpful. There is no abstract of the chancellor’s findings of fact or of the final order, and these are essential in order to understand this case. Equally critical are certain exhibits which are not abstracted or copied. The testimony of the witnesses about the exhibits is abstracted, but, without the exhibits, much of the testimony about the issues is meaningless.
It is necessary for a party to abstract the essential portions of the proceedings relied upon for appeal purposes. Otherwise, all seven members of the court would have to pass, from office to office, the one transcript and the one set of exhibits in order to examine and understand the case, and, with the number of cases submitted, that is impossible. We have no alternative other than to do as we have done in other comparable cases and affirm the decree of the chancellor. See Hunter v. Williams, 308 Ark. 276, 823 S.W.2d 894 (1992); Meyers Gen. Agency v. Lavender, 301 Ark. 503, 785 S.W.2d 28 (1990); Cash v. Holder, 293 Ark. 537, 739 S.W.2d 538 (1987); Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986).
Accordingly, we affirm pursuant to Rule 9(d).
Holt, C. J. and Brown, J., not participating.
Special Chief Justice Wright and Special Justice Ross concur. | [
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Darrell Hickman, Justice.
Cleveland Parker’s conviction for aggravated robbery must be reversed because the trial court failed to grant a continuance.
Parker’s case was set to be tried before a jury November 5, 1979- His attorney also represented William Compton whose criminal case was later set for the same day. Parker’s attorney was certain that at the time the Compton case was set the court told him that the Parker case would be rescheduled.
Shortly before trial date, the Compton case was passed. On the Friday afternoon before Monday, November 5th, Parker’s attorney was called and told the Parker case would be tried as originally scheduled.
Parker’s lawyer filed a motion for continuance the first thing Monday morning. He said that (1) he had been informed that the Parker case would not be tried that day; (2) he was unable to prepare for the case over the weekend because he had not been able to locate any of the witnesses; and, (3) he had not even located the accused until Sunday afternoon.
The court called as a witness the “case coordinator.” She testified that the docket reflected that the Parker case was set for November 5 th and that she had not changed it or notified Parker’s lawyer that the case would be reset. On cross-examination she admitted that the handwriting on the docket regarding both cases was not hers but apparently that of another court employee.
Parker’s attorney took the witness stand and said that he did not object when the Comptom case was set for trial the same day as the Parker case but that he had pointed out to the court that the Compton case would take about a week to try and the Parker case should be reset. He said the court informed him that the Parker case would be rescheduled. Consequently, Parker’s lawyer testified that he did not prepare for the case and did not know it would go to trial on November 5 th until he was notified on the previous Friday afternoon.
The court never commented one way or the other but asked Parker’s lawyer if he could get ready in thirty minutes since a jury was waiting. Parker’s lawyer said he would do the best he could.
There is no doubt that Parker’s lawyer acted in good faith. In addition to granting a thirty minute delay, the trial court remarked:
I think what we’ll do is go ahead and try the case and see how it goes and I will keep in mind that I might, depending on the circumstances, grant a new trial. If the verdict should go against the defendant. . . .
At the conclusion of the trial, Parker’s attorney renewed the motion for a continuance and the judge denied it without comment.
The law in regard to a continuance was stated in Russell v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977), where the court stated:
The matter of continuances is addressed to the sound judicial discretion of the trial court, and its action will not be reversed on appeal in the absence of such a clear abuse of that discretion as to amount to a de?tial of justice. [Emphasis added.]
We believe in this case that the defendant did not obtain a fair trial. He was denied an opportunity to present his case and this denial resulted neither from actions of his own nor through the negligence or intentional misconduct of his attorney which might be attributable to him. Two key witnesses were unable to be located in time and their testimony was critical to his defense.
There is no doubt that there was a mix-up which could not be solely attributed to Parker’s counsel. In fact, the counsel’s testimony was not denied. The court was in a perfect position to comment that the facts were not as Parker’s attorney represented them. It failed to do so. In any event, a criminal trial is not such a casual thing that when such a mix-up occurs, a trial can proceed without regard to whether one can be given a fair opportunity to present his case.
Parker’s counsel also argues that the evidence was insufficient to warrant a finding of guilt for aggravated robbery. The victim said that Parker put his hand in his pocket and asked for money; she thought he had a gun and she was scared. That was sufficient evidence to support a finding of aggravated robbery. The situation is unlike the case where the defendant had his hand in his shirt, the victim did not think he had a gun and was not scared. See Fairchild v. State, 269 Ark. 273, 600 S.W. 2d 16 (1980).
Reversed and remanded.
Fogleman, C.J., and Stroud, J., dissent.
Mays, J., not participating. | [
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Marian F. Penix, Judge.
Herbert Boren and Lois Boren, appellees, operate a service station in Eudora, Arkansas. On March 12, 1975, appellant’s agent, Ray Reese, called on the Borens and took their application for a major medical insurance policy. Two days later, on March 14, Lois Boren slipped on ice, severely injuring her back. Ray Reese advised Lois Boren she was covered under the policy because her injury was accidental. Subsequently, she underwent surgery and other treatment for her injured back. The insurance company issued the policy dated March 28, 1975. The agent informed the insurance company the policy was to have been dated March 12, 1975. The policy was reissued with March 12, 1975 as the effective date but a rider was attached. The rider excluded coverage of “any injury to or disorder of the spine, its muscles, ligaments, discs or nerve roots of the insured’s dependent Lois.” The company attached the exclusion rider because of information obtained by the company that Lois Boren had previously received treatment for her back and had not disclosed that treatment on the application. The Borens refused to sign the rider. The Company returned the three premiums which had been paid and denied the coverage.
The Borens filed suit to recover medical expenses, the statutory penalty, attorneys fees and the costs of the litigation. The original complaint prayed for $5,000.00. This complaint was amended to request $4,698,46 less any setoffs paid by appellant and less any deductible amounts for a statutory penalty, attorney’s fees, and costs. The insurance company denied liability and affirmatively pled the policy was not in effect at the time of the alleged injury and further that the Borens had misrepresented Lois Boren’s physical condition on the application. The jury returned a verdict for $4,542.46. This amount is the total medical expenses less the premium. The trial court then reduced the jury verdict by the applicable deductibles to the amount of 83,855.97 and awarded the Borens the statutory penalty of $462.72 and an attorney’s fee in the amount of $1,250.00 plus interest from the date of judgment.
The insurance company (hereinafter referred to as “Time”) appeals. Time alleges a verdict should have been directed for Time because of the Borens’ misrepresentation in the application.
The Agent, Ray Reese, testified the policy was dated March 28, 1975 when it was first issued. He informed Time it was his and the Borens’ intent the policy be dated March 12, 1975. The policy date was revised to March 12 and the exclusion rider was attachd. Reese testified the Borens answered in the negative to all ten question about treatment for previous illnesses or impairments except for one question about eye surgery on Herbert Boren. Lois Boren testified she did not remember answering any specific questions about previous treatment on her back, spine, or muscle disorders when the application was being taken. She said she didn’t mention having been treated by Dr. Alfons Altenberg, an orthopedic surgeon in Monroe, Louisiana the year before the accident, because her back was not bothering her at the time she made the application. The year before the accident her neck was “catching”. She sought treatment from Dr. Altenberg. He prescribed valium and advised her to wear a brace or corset for a sprained back. She continued to work, but after using the brace a week or so, discontinued wearing it. She testified she did not recall Time offering her an option of having the policy issuéd with a special rider excluding coverage for her back or having the premium refunded. She also testified Time notified her that her injury was a result of an illness and not the result of an accident.
Reese testified the day he took the application at the Borens’ station, Lois Boren was not having back trouble. He said she was on her feet on concrete waiting on customers.
Dr. Altenberg testified Lois Boren had some early degenerative arthritis, but it was primarily in her neck area and did not relate to her back. He also testified most persons with the conditions of Lois Boren in 1974 would recover to a normal state.
James Allen Brindowski testified for Time. He testified his job is to decide whether an applicant for insurance is an insurable risk. He said if Time had received Dr. Altenberg’s report on Lois Boren, it would have issued the policy with a rider excluding coverage of her back. However, he did not begin working for Time until 1977 and was unable to testify as to the underwriting policy of Time prior to 1977.
Dr. William J. Weaver testified for Time. Dr. Weaver has treated Lois Boren for several years. He testified she had complained to him about a stomach ulcer and about a chronic backache.
We find no error in the trial Court’s denial of Time of a directed verdict. The trial judge refused to direct a verdict saying . . . “Whether or not she fell and hurt her back would not be material to any alleged back trouble she had of some other nature. I’m trying to say that the fall, a fall is not to be expected as a part of a recurring illness of a back trouble. That’s a new trauma not connected with any illness she might have had to her back.” We find no error in the court’s determination the materiality of the risk was a question of fact for the jury.
The testimony is undisputed the parties intended the policy to be effectively immediately. Therefore, the only question is whether there is substantial evidence to support the jury verdict which determined the company was liable. In order to avoid liability, Time had the burden of proving there was a misrepresentation which was fraudulently or material to the risk assumed or that they would not have issued the policy had the facts been known. We find there to be substantial evidence to support the jury verdict which evidences the failure of Time to meet its burden of proof.
Ark. Stat. Ann. § 66-3208 provides:
Misrepresentation, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy unless: (a) fraudulent; or (b) material either to the acceptance of the risk or to the hazard assumed by the insurer; or (c) the insurer in good faith would either not have issued the policy or contract —, or would not have provided coverage, with respect to the hazard resulting in the loss, if the true facts had been known to the insurer as required by the application for the policy or contract or otherwise.
See also, National Old Line Ins. Co. v. People, 256 Ark. 137, 506 S.W. 2d 128 (1974).
In Old Republic Insurance Company v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829 (1969), the Supreme Court stated:
The materiality to risk of a fact misrepresented, omitted or concealed is a question of fact so long as the matter is debatable, and is a question of law only when so obvious that a contrary inference is not permissible.
The jury decided that any omission by Lois Boren of treatment for a sprained back a year before the back injury in question was not material to her recovery for an injury resulting from the accidental slip and fall on the ice.
There is no evidence in the record to reflect that Lois Boren had any back problem or condition at the time the insurance application was made. The evidence was Lois Boren worked several hours a day, seven days a week on her feet selling gas and bait. The case went to the jury and all of the issues were found in favor of the Borens.
In considering the question of the sufficiency of the evidence, evidence must be viewed in the light most favorable to the appellee and all reasonable inferences must be drawn in its favor — only the evidence favorable to the appellee is to be considered. Swink and Co., Inc. v. McEntee and McGinly, Inc., 266 Ark. 279, 584 S.W. 2d 393 (1979).
Time relies upon Findley, Administratrix v. Time Insurance Company, 269 Ark. 257, 599 S.W. 2d 736 (1980). In that case, an applicant had answered in the negative questions dealing with the regularity and problems experienced with her menstrual cycle. The applicant had in truth been experiencing heavy vaginal bleeding every two weeks for some time. This case is distinguishable from the present case. In Findley, the applicant was experiencing problems at the time she made the application. In the present case, Lois Boren had at one time sprained her back. She was feeling no ill effects and felt she had recovered from the sprain at the time of the application.
Nor do we find evidence Time would not have issued the policy to the Borens had all the facts been known. James Allen Brindowski testified the policy would not have been issued had Time received the report from Dr. Altenberg. On cross-examination however, he admitted he did not begin working at Time until 1977 and he had no knowledge of the underwriting policy in 1975. There is no evidence in the record to support Time’s contention the policy would not have been issued. See, Countryside Casualty Co. v. Orr, 523 F. 2d 870 (8th Cir. 1975).
We find sufficient facts existing from which a jury could make findings as to Time’s liability. We find sufficient facts existing from which a jury could find any misrepresentation by Lois Boren was not material to her right to recover under the policy. Therefore, we affirm the decision with regards to liability.
Time’s second allegation of error is in the Court’s award of statutory penalty and attorney’s fees. Time argues the Borens did not recover the amount prayed for in their amended complaint, this amount being $4,698.46.
The Borens originally sued for $5,000.00 plus the statutory penalty and other proper relief. This was amended to request $4,4698.46 less any setoffs paid by Time and less any applicable deductible amounts. The award finally given by the trial court was $3,855.97. This amount was arrived at by applying the deductibles and setoffs. The question becomes, did the appellees receive the full amount for which they prayed? What is the full amount for which appellees sued?
Ark. Stat. Ann. § 66-3238 provides:
Suits against insurers — Damages and attorney fees on loss claims. — In all cases where loss occurs and the . . . insurance company . . . liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such . . . corporation . . . shall be liable to pay the holder of such policy, ... in addition to the amount of such loss, twelve percent (12%) damages of such loss, together with all reasonable attorney’s fees . . .
The Supreme Court has held that before the statutory penalty may be imposed the plaintiff must receive the full amount for which she sued. The statute which allows the 12% penalty must be strictly construed. The exact amount sued for must be awarded before this penalty may be added to the plaintiffs recovery. Farm Bureau Insurance Co. v. Paladino, 264 Ark. 311, 571 S.W. 2d 86 (1978); Collum v. Farmers Union Mutual Insurance Co., 256 Ark. 376, 508 S.W. 2d 316 (1974).
The Borens prayed for the amount of Lois Boren’s medical bills and requested this be reduced by whatever setoffs and deductibles were applicable. This was done. The jury’s verdict of $4,542.46 is the medical bills less the $156.00 premium due for the quarter in which the accident occurred. The judge reduced the jury verdict by the deductibles. In his decree, the judge states “By agreement of the parties hereto, after the premium and the deductible amounts are deducted, the normal payment under the policy in question would be $3,855.97.” There is no dispute as to the applicable deductibles and setoffs. The appellees received exactly what they requested. While the request was vague, no effort was made by the appellant to have the appellees clarify their pleading. We find no error in the award of the statutory penalty and a reasonable attorney’s fee.
The appellees’ attorney is awarded an additional fee of $250 for services rendered on appeal plus the costs expended for the appeal.
Affirmed. | [
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John F. Stroud, Justice.
Appellant was convicted of theft of property and two counts of robbery. As we find no merit to the three points of error urged in his appeal, we affirm the conviction.
David Sims and C. D. Burnett were robbed at gunpoint on the night of October 25, 1978, by two men wearing ski masks in Murray Park adjacent to the Arkansas River in Little Rock. After taking their billfolds and ordering the two to run into some nearby woods, the gunmen left, one in the vehicle in which they arrived and the other in Mr. Burnett’s 1970 dark blue Malibu Chevrolet. Neither of the victims was able to give much of a description of the gunmen, although both testified that they could tell from the eye holes in the ski mask that the one who ordered them to run into the woods was a black man. The only other description of that gunman was that he wore wire-framed glasses with tinted lenses, was armed with a .38 revolver and seemed to be quite at ease during the robbery. In a voice line-up both victims identified appellant, a Little Rock policeman, as the person who had ordered them into the woods. Mr. Burnett testified he was 90% certain, but Mr. Sims stated he was positive appellant was the man. Appellant was tried before the court, sitting as a jury, on September 4, 1979- Both victims testified that the gunman’s vehicle was a large car, a luxury model, that was light blue in color. Although victim Burnett first reported that the vehicle was a Cadillac, when he next saw the rear of an Oldsmobile 98 he informed the police that he had made a mistake and that the car was an Oldsmobile. Other testimony indicated that appellant owned a light blue 1976 Oldsmobile 98, which the victims had identified prior to trial as the assailant’s vehicle.
Trooper Larry Gentry of the Arkansas State Police testified that on October 26, 1978, he was instructed to set up a roadblock near Pine Bluff to check passing vehicles in connection with the investigation of a bank robbery earlier that day in Wilmar, Arkansas. The first car he stopped at the roadblock was a vehicle occupied by appellant and a man named Walker, who appellant said was the owner of the automobile. Testimony revealed that the vehicle of Mr. Burnett taken at the time of the robbery was found abandoned near Wilmar a few days after the bank robbery. Special Agent Donald Jarrett of the F.B.I. testified that on October 28th he participated in the search of an automobile belonging to Danny Walker, at which time several items were recovered that had been in Mr. Burnett’s vehicle when it was stolen. Appellant testified that he was somewhere else at the time of the robbery of Burnett and Sims, and also presented several alibi witnesses, but he did admit on cross-examination that he had been convicted of robbing the bank at Wilmar on October 26, 1978, and that he left the bank in a dark blue 1970 or 1972 Malibu. He was found guilty in this case of theft of property and two counts of aggravated robbery. For the robberies he received two twenty-year sentences, to run concurrently, and for theft of property he received a five-year sentence, to run consecutively to the others. Urging three points for reversal, appellant brings this appeal.
Appellant first contends that the evidence adduced at trial is insufficient to sustain his conviction. The thrust of appellant’s argument here is that the only admissible evidence linking him to the crime was the voice identifications made by the two victims, which appellant claims are insufficient, standing alone, to support his conviction. It is well-settled that on appeal in criminal cases the evidence must be viewed in the light most favorable to appellee and the judgment affirmed if there is any substantial evidence to support the finding of the trier of fact. Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979); Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975); Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973). Substantial evidence is that which is more than a scintilla and must do more than create a suspicion of the existence of the fact to be established; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980); Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W. 2d 21 (1979).
Contrary to appellant’s contention, there was considerable evidence other than the voice identifications which tended to connect him with the crime. For example, the description of the automobile driven by the gunmen matched the automobile owned by appellant and subsequently identified by Sims and Burnett. Further, appellant was shown to be involved with Danny Walker, from whose automobile several items of property belonging to victim Burnett were recovered. Also, appellant admitted that he left the bank at Wilmar in a vehicle matching the description of Burnett’s, and it was undisputed that Burnett’s vehicle was found abandoned near Wilmar shortly after the bank robbery. There was more, but these facts are more than sufficiently substantial to support the conviction.
Appellant next contends that the trial court erred in allowing into evidence the items recovered from Walker’s car. Those items were seized pursuant to a search warrant and then identified by Burnett as those things which were in his automobile when it was stolen. Appellant’s argument is that the items were irrelevant and, hence, inadmissible, because no evidence was presentedly positively showing that the automobile searched by the F.B.I. and its owner were the same vehicle and person appellant was seen with at the roadblock. Ark. Stat. Ann. § 28-1001, Rule 401 (Repl. 1979), provides:
‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Generally, save a few exceptions not applicable herein, all relevant evidence is admissible. Ark. Stat. Ann. § 28-1001, Rule 402 (Repl. 1979). We do not agree with appellant’s contention that this evidence was irrelevant, as there was ample testimony tending to connect appellant with the missing items and the vehicle from which they were recovered. While this evidence is of a circumstantial nature, it is nonetheless relevant pursuant to Rule 401.
Finally, appellant contends that he was prejudiced by the trial court allowing the prosecutor to lead various witnesses for the State throughout the trial, but he failed to abstract any of the alleged leading questions or his objections to them. A review of the record, including that set out in appellee’s supplemental abstract, indicates that the prosecutor was allowed to ask some leading questions during the trial, but the particular questions which appellant now apparently attacks were largely propounded on redirect examination, where the prosecutor incorporated the witnesses’ earlier testimony in formulating his questions. We cannot say the trial court abused its discretion in allowing the form of these questions. Finding no error, we affirm the judgment of the trial court.
Affirmed. | [
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John A. Fogleman, Chief Justice.
Bobby Joe Mitchell was convicted of first degree murder in Ashley County, Arkansas, in March of 1969. That conviction was based on a plea of guilty and Mitchell was sentenced to life imprisonment. After Mitchell’s conviction he served a sentence in the Wisconsin State Prison. During that time he inquired of the Ashley Circuit Court regarding an appeal. In 1975, when he was in the Arkansas penitentiary serving the sentence in this case, he filed a pro se petition for post-conviction relief. The circuit court denied the petition without an evidentiary hearing. In an unpublished opinion issued June 19, 1978, we reversed the trial court and ordered an evidentiary hearing on Mitchell’s allegations that he had ineffective assistance of counsel and that his plea of guilty was not voluntary. A hearing was held in July, 1978. A record of the original proceedings of 1969 was not made a part of this record. The circuit court held that appellant was not entitled to relief from the plea of guilty entered by him on a charge of first degree murder, which, at that time might, at the discretion of a jury, be punished by imposition of the death penalty. There is no doubt that Mitchell entered his plea of guilty after consulting with his appointed counsel and upon advice from them. We will not reverse the findings of the trial judge unless they are clearly against the preponderance of the evidence.
Appellant has misdirected the focus of his argument for reversal of the circuit court’s denial of relief from his plea of guilty. He directs his attention for the most part to the question of the voluntariness of a confession made by him, saying that it was coerced by the sheriff and his deputies and that he was deprived of his right to the assistance of counsel when he was making this statement and being interrogated. The courts are not concerned with the question of deprivation of counsel during interrogation or the voluntariness of the statement Mitchell made. The only concern of the courts is whether counsel was so incompetent as to render the guilty plea involuntary and unintelligent. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657.
A guilty plea represents a break in the chain of events which has preceded it in the criminal process. In this connection, the United States Supreme Court, in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 46 L.Ed. 2d 235 (1973), said:
*** And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel in retrospect may not have correctly appraised the constitutional significance of certain historical facts, McMann, [McMann v. Richardson, 397 U.S. 759, 25 L.Ed. 2d 763, 90 S.Ct. 1441], it is likewise not sufficient that he show that if counsel had pursued a certain factual inquiry such a pursuit would have uncovered a possible constitutional infirmity in the proceedings.
See also, Clark v. State, supra.
In Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L.Ed. 2d 747 (1970), McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L.Ed. 2d 763 (1970) and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed. 2d 785 (1970), sometimes called the Brady trilogy, the United States Supreme Court refused to address the merits of claimed constitutional deprivations that occurred prior to a guilty plea, concluding in each case that the issue involved was not the merits of the constitutional claims as such, but rather whether the guilty plea had been entered intelligently and voluntarily with the advice of comptent counsel. Toilet v. Henderson, supra.
The very situation with which we are confronted was addressed by the United States Supreme Court in McMann v. Richardson, supra. That court stated the issue thus:
The issue *** arises in those situations involving the counseled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession that might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to minimize the penalty that might be imposed. After conviction on such a plea, is. a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this.
The matter of the defendant who deems his confession crucial to the state’s case against him but nevertheless enters a plea of guilty is treated extensively in McMann. The critical issues to be considered on application for post-conviction relief are clearly pointed out in the opinion in that case.
*** His [defendant’s] later petition for collateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, either under the then applicable law or under the law later announced, his plea was an unintelligent and voidable act. The Constitution, however, does not render pleas of guilty so vulnerable.
As we said in Brady v. United States, ante, at 756-757 the decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant’s guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of fact on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court’s judgment might be on given facts.
That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant’s lawyer withstand retrospective examination in a post-conviction hearing. Courts continue to have serious differences among themselves on the admissibility of evidence, both with respect to the proper standard by which the facts are to be judged and with respect to the application of that standard to particular facts. That this Court might hold a defendant’s confession inadmissible in evidence, possibly by a divided vote, hardly justifies a conclusion that the defendant’s attorney was incompetent or ineffective when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty.
In our view a defendant’s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant’s confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases. On the one hand, uncertainty is inherent in predicting court decisions; but on the other hand defendants facing felony charges are entitled to the effective assistance of competent counsel. Beyond this we think the matter, for the most part, should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.
IV
We hold, therefore, that a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus. ***
*** As we have previously set out, a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. ***
*** The defendant who pleads guilty is in a different posture. He is convicted on his counseled admission in open court that he committed the crime charged against him.
*** It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.
It is clear from McMann that neither erroneous advice by counsel nor mistaken judgment is a basis for setting aside Mitchell’s plea of guilty. The question is not whether, in retrospect, counsel’s advice was right or wrong. The most that can be required is that the advice given was within the range of competence demanded of attorneys in criminal cases. It also seems from McMann, that, in order to be entitled to post-conviction relief, Mitchell must demonstrate gross error on the part of counsel when he recommended that the defendant plead guilty instead of going to trial . . . .”, or, otherwise stated, “allege and prove serious dereliction on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.”
Appellant had the burden of showing, in the trial court, that his counsel was incompetent which cannot be met by showing mere errors, omissions, mistakes, improvident strategy or bad tactics. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1. There is a presumption that the attorneys were competent, and the burden of overcoming that presumption was on appellant. Davis v. State, 267 Ark. 507, 592 S.W. 2d 118 (1980); Deason v. State, 263 Ark. 56, 562 S.W. 2d 79, cert. den. 439 U.S. 839, 99 S.Ct. 126, 58 L.Ed. 2d 136 (1978). Where there has been a guilty plea after advice of counsel, the burden upon the accused seeking to set the plea aside is the same as in other cases, i.e., to show that the attorney has by his acts or omissions made the proceedings a farce or mockery or that the representation was so patently lacking in competency and adequacy that it is the court’s duty to correct it. Davis v. State, supra; Deason v. State, supra.
Turning now to the record, as abstracted, we cannot say that the circuit judge’s holding was against the preponderance of the evidence. Mitchell was arrested on March 2, 1969, the day the crime with which he was charged was committed. The attorney, Johnson, met with him at 7:00 p.m. on March 3, 1969. The confession was given at 8:00 or 8:30 p.m. on March 3, 1969. On March 6, Johnson was appointed by the court as counsel for Mitchell. Thomas Cashion, a more experienced lawyer, was appointed to assist in Mitchell’s defense. On March 21, 1969, Mitchell was arraigned and entered his plea of guilty. A jury fixed the degree of the crime and set the punishment at life imprisonment, as then required by statute.
In his testimony at the post-conviction hearing, appellant testified that:
His counsel denied him the right to plead not guilty; his lawyer told him that if he did not plead guilty, he would be found guilty anyway and go to the electric chair. He asked for counsel when they first brought him to jail and they brought him one the same day. Johnson talked to Mitchell and was sitting beside him at a table while his confession was being taped, but the attorney got up and left in the middle of it, even though Mitchell had asked him to remain present while Mitchell gave it. Counsel advised him that the best thing for him was to give a confession, whether it was right or wrong. The confession was given after he was beaten all night. He had been told that, if he did not give the confession, he would be electrocuted anyway because a white man was killed. He never told the court because his attorney told him not to talk to anybody but the attorney. He told Cashion about it in the courtroom. He asked Cashion to cross-examine a witness, but Cashion told him to shut up. He asked his attorney to let him testify, but the attorney said it would be best if he did not get on the stand. He did stand up in the courtroom when the judge read the charges and pleaded guilty. He did not say anything to the judge about the voluntariness of his confession held in the judge’s chambers. The record of that hearing (which had been read to him while he was on the witness stand) spoke for itself.
Johnson testified that:
He talked to Mitchell on the evening of March 3. Mitchell did not say anything about having been beaten, or any coercion. Mitchell quite freely and openly, in a repentant sort of way told Johnson what had happened, saying that he was very sorry he had done it. Johnson advised Mitchell of his right to trial by jury, his right to plead not guilty and to have a court appointed attorney — either Johnson or someone else. After Johnson had advised Mitchell of his rights, Johnson opened the door and Mitchell told Furlow that he was ready to make a statement. Johnson left before the statement was completed because he did not consider himself Mitchell’s attorney and only came to advise him of his rights. After he was appointed, Johnson went to talk to Mitchell and to Cashion, who had also been appointed. Johnson prepared a motion for a bill of particulars. The state made its entire file available to Johnson. From the evidence contained therein and from what Mitchell had told him, Johnson concluded that it would be in Mitchell’s best interest to try to save his life. Mitchell agreed, said he did not want to go to the electric chair and admitted having committed the crime. Mitchell was totally sane and never asked to be sent to the state hospital, all the attorneys hoped for was to get a jury to accept the prosecuting attorney’s recommendation of a life sentence. At Mitchell’s request, Johnson wrote a letter to a woman with whom Mitchell had been living, advising her that Mitchell had decided to plead guilty, and that the prosecuting attorney had agreed not to ask for the death penalty and expressing the opinion that, based upon the great amount of evidence the state had against Mitchell, he had made a wise decision, and that, if he pleaded not guilty a jury might sentence Mitchell to death in the electric chair. Mitchell did not, at any time, say that he desired to make any other plea. If he had desired to do so, a different plea would have been made.
Cashion testified:
He had practiced law since 1935 and had a lot of experience in criminal trials. He had been appointed counsel in at least eight cases which involved capital felonies and five of his clients did go to the electric chair. He was more experienced in this type of case than any other lawyer in and around southeast Arkansas. The first thing he did after being appointed was to call Johnson and a decision was made to seek a bill of particulars. When it was received, it contained the names of 22 witnesses. The sheriff showed the attorneys pictures that would be introduced at the trial. After he got the bill of particulars and the saw the sheriff s file, he thought the state had a good case and thought Mitchell’s life was in jeopardy. The prosecuting attorney indicated that he would seek the death penalty. In discussions with Mitchell on two occasions, the attorneys went “over it all” and explained the alternatives. They explained the good and the bad. Mitchell made the final decision. The attorneys did not feel like gambling with his life. Mitchell never mentioned that anyone in the sheriff s department had beaten or mistreated him. Mitchell never complained, during the in camera proceeding, that he had been mistreated. Cashion had all the testimony available and had gone over it.
Of course, all conflicts and credibility questions must be resolved against Mitchell on appellate review. Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32; Chapters v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979).
The state’s response to appellant’s motion for a bill of particulars was comprehensive. It disclosed:
Both Oliver Leach and Marvin Gaston would testify that Mitchell had asked him if he was interested in “pulling a job.” Elgin Conley, would testify that at 5:00 a.m., on Sunday, March 2, he had seen the victim, Price, at the Esso Service Center in Crossett. He observed a black male he later identified as Mitchell at the concession stand there, wearing a cap, which he later identified, after it had been recovered from Mitchell’s home. Houston Davidson would testify that he found the cap. Larry Stephenson would testify he found the body of Price, the victim, .at about 5:45 a.m., went next door and called the police, and returned and stood guard over the body until the police arrived. John Lewis, a policeman, would testify as to pictures he had taken of the body and the bullet holes in it. Bill Jones, the coroner, would testify that he took two .22 caliber bullets from the body of Price and gave them to the police. Larry Stephens, Otis Henley and Teddy Hickman, police officers, searched the scene of the killing and found three spent .22 caliber empty shells and one shell near the body. Benny Pierce would testify that he was the owner of the service station and the employer of Price, that a sum of money was taken from a drawer, that two cartons of cigarettes were missing and that Price had been a faithful and honest employee for eight years. Kenneth Burnes, a policeman, found the money, apparently $72.15 in change, taken from the Esso station at Mitchell’s home, wrapped in a bath towel, placed in a brown paper sack and stuffed under some diapers in a chest of drawers. John Lewis, a fireman for the city of Crossett, aiding the police in a search of the Mitchell home, recovered the two cartons of cigarettes at the Mitchell home between the mattresses in Mitchell’s bed. Officers Thomas, George and Webb found a .22 caliber rifle that had been stolen from Charles Posey two weeks prior to the shooting of Price, under the house of Artis Rollins, Mitchell’s brother-in-law, who would testify that he crawled under the house and got the gun for the police, but knew nothing about the gun, the robbery, or the murder. Houston Davis found two .22 caliber shells which were the same type and brand as those used in the killing in the Mitchell home. Teddy Hickman and Otto Griffin took the rifle, shells and other bullets to State Police Headquarters for comparison. Captain Paul McDonald of the State Police would probably be the officer who would testify as to comparison of bullets found in the body with those fired from the rifle and the markings of the caps found near the body with those on two caps fired from the rifle.
Although petitioner alleged in his petition for post-conviction relief that his premises were entered and searched without a search warrant and without his consent, no evidence was introduced pertaining to that ground, and it was not otherwise mentioned. Nothing short of conjecture would justify any inference that the items of evidence were taken in a warrantless search of Mitchell’s home.
Even if the confession in this case was involuntary, the period intervening between the time it was made and the plea of guilty entered upon advice of counsel, without any intervening coercion or improper state action, would normally be taken to make the connection between the confession and the plea of guilty so attenuated as to dissipate the taint of the “involuntary” confession. See Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed. 2d 785 (1970). luParker, the Supreme Court of the United States held, as it did in McMann, that counsel’s mistake as to the admissibility of a confession in advising a defendant to plead guilty when faced with a possible death penalty under a statute later held unconstitutional, was not a basis for setting aside the plea of guilty, in spite of the fact that chances of acquittal without the confession might be good and the advice to plead guilty based upon the fact that, given the confession, the evidence was so strong that it was to his advantage to plead guilty. If the plea of Mitchell was knowingly and voluntarily entered, it is not open to attack on the ground that counsel misjudged the admissibility of his confession.
The fact that appellant was motivated by a fear of the imposition of the death penalty, even when the statute providing for it was later held unconstitutional, is not sufficient basis for setting aside a plea of guilty upon advice of competent counsel which was otherwise voluntarily and knowingly entered. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed. 2d 747 (1970). See also, Jones v. State, 267 Ark. 79, 589 S.W. 2d 16 (1979). Actually, it seems from Brady that fear of the death penalty is a perfectly valid basis for a voluntary and intelligent plea of guilty, regardless whether the plea results from the certainty or the probability of a lesser penalty. See also, Parker v. North Carolina, supra. In Brady, the court used this pertinent language:
*** For some people, their breach of a State’s law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State’s responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State’s evidence at trial that he must take the stand or face certain conviction.
The court in Brady also pointed out that well over three-fourths of the criminal convictions in this country rest on pleas of guilty, and that, undoubtedly, a great many of them were motivated, at least in part, by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to a judge or jury.
We cannot say that the trial court’s finding that Mitchell’s appointed counsel were effective and that the allegations in the motion for post-conviction relief had failed was against the preponderance of the evidence.
The judgment is affirmed.
In connection with the latter argument he emphasizes the fact that counsel was selected by a deputy sheriff. | [
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Tom Glaze, Justice.
Appellant, South County Inc., was formed in July 1985, to develop the South County Project. The South County Project was to be a mixed-use development in Greenwood, Arkansas. Appellant alleges that the appellees, First Western Loan Company and John Hampton, an officer of First Western, represented in January 1986, that they would provide the financing for the development. Appellant argues that relying on this representation, it expended a lot of time and money to further the development of the project. In July of 1986, the appellees advised the appellant that they would not fund the development of the project. Appellant was unable to obtain other financing, and the project failed. The appellees contend that they never issued a loan commitment and contend that First Western’s role was to help assemble the loan package and take the package to potential investors.
In July of 1988, appellant filed suit against the appellees alleging a tort action for negligent misrepresentation and constructive fraud. Appellant also alleged a cause of action for breach of contract against First Western. Appellant sought recovery for its damages as well as punitive damages. Uerling & Associates, a creditor of the appellant, filed a motion to intervene and a complaint in intervention on November 4, 1988. In this motion, Uerling contended that the appellant was indebted to it for engineering and surveying services conducted on the project in the amount of $46,210.69. On November 8, 1988, Uerling’s motion was granted without objection.
The appellees subsequently filed a motion for summary judgment. The trial court granted a partial summary judgment on October 9, 1991, on the tort causes of action and claim for punitive damages against appellees First Western and John Hampton. This completely eliminated appellee John Hampton from the lawsuit but left alive the appellant’s contract cause of action against First Western. In the order granting partial summary judgment, the trial judge stated that under ARCP Rule 54(b) there was no just reason for delay of the appeal of this decision. However, no mention was made of Uerling’s complaint in intervention. Appellant took a voluntary dismissal without prejudice of the breach of contract action against First Western, which was filed on October 31, 1991. Again, there was no dismissal of Uerling’s complaint in intervention.
Appellant appeals from the trial court’s granting of the appellees’ motion for a summary judgment on the tort cause of action.
Appellees first question whether appellant has complied with ARCP Rule 54(b). If appellees are correct, this court does not have jurisdiction and is prevented from reaching the merits of the appeal. We find the appellees’ contention has merit, therefore we must dismiss this appeal.
In its attempt to comply with Rule 54(b), the trial court made the following a part of its order granting appellees’ partial summary judgment:
The Plaintiff represents to the Court and the Court so finds that the granting of Partial Summary Judgment on the issues of negligent misrepresentation, constructive fraud and punitive damages substantially limits the claim of the Plaintiffs against First Western Loan Company and completely eliminates the separate Defendant, John Taylor Hampton, from the litigation of this cause of action. Because of the expense of litigation required to be expended by the Plaintiff, including expert witness fees, and since the Plaintiff has represented to the Court that an appeal of the Partial Summary Judgment against John Taylor Hampton will be appealed in any event, to prevent piecemeal appeals and duplicative litigation if this decision is reversed on appeal, this Court finds, pursuant to Arkansas Rules of Civil Procedure, Rule 54 (b) that there is no just reason for delay of the appeal of this decision. The Court expressly directs entry of the Summary Judgment as stated hereinabove and the Court further expressly authorizes and determines that it would be in the best interest of all parties that an appeal to this judgment be permitted by the Plaintiff and Defendants for the efficient administration of justice and to prevent duplicative trials and appeals.
The trial judge’s assessment makes no mention of the intervenor-Uerling’s claim. Nor does the record reflect what has happened to that claim. We have held that it is not enough to dismiss some of the parties, the trial court’s order must cover all the parties and all the claims in order to be an appealable order. Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992). In Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984), this court found the trial court failed to grant a summary judgment in the whole case, and therefore the court was in no position to predict what evidence will be presented at trial relevant to all claims for relief sought by the appellants. The Fratesi court concluded that if it allowed the interlocutory appeal on one issue and subsequent errors occurred during the trial on the remaining issues, the case could be appealed a second time, resulting in two appeals where one would suffice. Here, Uerling’s claim is still pending below, and another appeal involving that matter could possibly be required regardless of how we decide appellant’s present appeal. Of even more importance, it appears the trial judge never considered Uerling’s claim when finding some likelihood of hardship or injustice existed which would be alleviated by an immediate appeal. See Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987). As we said in Hutchinson, our role on appeal is not to reweigh the equities or reassess the facts, but to make sure that the conclusions derived from those weighings and assessments are judiciously sound and supported by the record. While we commend the trial court’s efforts to present a record and order with specific facts to support its permitting a Rule 54(b) appeal, we conclude the trial court’s order falls short because it altogether omits any reference to or consideration of the Uerling claim.
Brown, J., dissents and would decide the case on the merits.
Some mention of Uerling’s claim and its status was offered in oral argument, but because such matters are not a part of the record, we cannot consider them in this appeal. | [
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Jack Holt, Jr., Justice.
This appeal is from a decision of the Child Care Facility Review Board (a division of the Arkansas Department of Human Services, hereinafter “the Board”) revoking My Kids Day Care’s (“My Kids”) license for one year. My Kids appealed to the circuit court which affirmed the Board’s decision. Because this case involves the interpretation of an administrative agency’s rules and regulations, our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(c). As we find no error, we affirm the actions of the Board and the circuit court.
FACTS
Betty McKinley is owner and operator of My Kids Day Care in Rogers, Arkansas. The Board initially granted My Kids a provisional start-up child care license on July 16, 1986; the facility received a regular license in February 1987. For the first two years of operation, My Kids was monitored by child care specialists with the Department of Human Services. Although My Kids was found out of compliance in areas such as staff to children ratios and overcapacity, Mrs. McKinley corrected the infractions in a timely manner.
On February 7, 1989, the day care facility was extensively damaged by a fire, allegedly started by arson. After the fire, My Kids was granted a six month provisional license.
Mrs. Elaine Jenkins, Child Care Licensing Specialist for the Department of Human Services, made regular visits to monitor the day care after the fire and to check on the status of the repairs. In August of 1989, My Kids again received a provisional license. This license was to be valid through February 28, 1990.
In October 1989, Mrs. Jenkins reviewed the facility and noted several areas of noncompliance with regulations. These infractions were conveyed to Mrs. McKinley so that she could correct them prior to the next visit.
Mrs. Jenkins made multiple monitoring visits to My Kids during the first few months of 1990 to determine if Mrs. McKinley had cured the problems. During that time, My Kids was cited ten times for not complying with the Board’s rules and regulations. The most flagrant violations were in the areas of child capacity and staff/child ratios. Mrs. Jenkins told Mrs. McKinley that she needed documentation in order for the Board to complete its evaluation. Information needed included the policy on hiring and discharge of staff, procedures for reporting child abuse, health cards on staff, written record of all tornado drills, and health inspection records. Additionally, Mrs. Jenkins informed Mrs. McKinley that the facility needed to provide at least ten hours of training for all staff, smoke detectors, eliminate physical punishment for children under age three, and post the hot line number for reporting child abuse. As well, the swing set needed to be reanchored, boards, pipes, etc., needed to be removed, and baby beds needed to be replaced.
As a result of these allegations, the Board conducted an informal administrative hearing, took testimony of interested parties, and revoked My Kids’ license. After this hearing, the Board made the following findings of fact:
1. Failure to maintain the required staff to child ratios and lack of supervision;
2. Use of physical punishment for children under three and the use of discipline which is not appropriate to the child’s level of understanding;
3. Failure to comply with child care discipline standards;
4. Failure to maintain current child records;
5. Failure to provide well-balanced meals and nutritious snacks;
6. Failure to insure a safe outdoor play area;
7. Failure to provide adequate and approved sleeping arrangements for children;
8. Failure to provide towels for hand washing;
9. Failure to practice emergency drills with all children;
10. Failure to properly store hazardous items;
11. Failure to comply with the limit on the number of children the facility may serve. Capacity placed on the center by the Child Care Facility Board as authorized by Ark. Code Ann. § 20-78-210 (1987).
My Kids appealed the Board’s decision to the circuit court which remanded this matter to the Board for additional evidence concerning the Department of Human Services’s investigation regarding the use of physical punishment and evidence concerning violations that had occurred prior to February 1990.
At both Board hearings, Mrs. Jenkins noted that the child/ staff ratio and child capacity were repeatedly out of compliance. She testified that she never received the information she requested and the infractions were not corrected. The facility was licensed for six infants and eighteen preschoolers. On virtually all of her visits since the fire, Mrs. Jenkins had found the facility out of compliance because of overcapacity and insufficient staff. According to Mrs. Jenkins’ testimony, the facility was also out of compliance in other areas. For example, there were never towels in the rest room. A child was found napping on the carpet with a playpen frame around him — there was no bottom in the play pen. Medicines were in an unlocked medicine cabinet in the bathroom. Ms. Ratha Turpin, child care licensing supervisor, had accompanied Ms. Jenkins on one of her visits to My Kids and confirmed Ms. Jenkins’ testimony. Mr. J. R. Davenport, Child Care Licensing Specialist with the Department of Human Services, also confirmed Ms. Jenkins’ testimony.
Testimony also indicated that My Kids had not followed other regulations regarding day care. For example, Thelva Bolen, a former employee of My Kids, testified that she had seen Mrs. McKinley punish the children, including the infants, with a fly swatter. Ms. Bolen also testified that the children did not get milk with their meals nor were they always served snacks. However, she did mention that she had on occasion seen the children served cookies and carrot sticks for snacks.
Another former employee, Ms. Lela Davis, echoed Ms. Bolen’s testimony. Ms. Davis mentioned that there was not a program of activities for the children other than regular television watching.
Nevertheless, Ms. Aileen Leo, a part-time employee of My Kids and a parent of a My Kids’ attendant, testified that her child was well cared for by the center. Stipulations were made that other parents would testify that their children had not been spanked and were well cared for by My Kids.
After the second hearing before the Board, My Kids’ license was again revoked for one year. On appeal, the circuit court affirmed the Board’s administrative decision.
Although presented as twelve separate issues, the appellant’s argument comes down to four concerns: did the Child Care Facility Review Board make its decision to revoke: (1) capriciously and arbitrarily; (2) without substantial evidence; (3) in reliance on an unconstitutionally vague administrative regulation; (4) without proper notice to My Kids in violation of due process? As we answer all these in the negative, the circuit court’s decision to affirm the Board’s decision is affirmed.
On appeal, My Kids asserts that we should reverse the Board’s decision because it was made arbitrarily and capriciously as to the center’s alleged failure to maintain required staff to child ratios, to properly store hazardous items, and to comply with the maximum limit on the number of children in the center.
An administrative decision should be reversed as arbitrary and capricious only when it is not supportable on any rational basis. Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). An administrative decision is not to be deemed arbitrary or capricious simply because the reviewing court would have acted differently. See Woodyard v. Arkansas Diversified Ins. Co., 268 Ark. 94, 594 S.W.2d 13 (1980). The appellant has the burden of proving that the proof before the administrative tribunal was so nearly undisputed that fairminded persons could not reach its conclusion. “The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made.” Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983).
My Kids contends that the decision to revoke because of improper child/staff ratios and overcapacity is arbitrary and capricious because Ms. Jenkins had previously found the center out of compliance and had nevertheless always renewed the license. However, these arguments have no merit because on prior occasions, Mrs. Jenkins had informed Mrs. McKinley of the infractions, and they had been promptly corrected. My Kids’ infractions after the fire in 1989 were never corrected, according to Mrs. Jenkins.
My Kids contends that the Board acted capriciously and arbitrarily in revoking due to the center’s failure to properly store hazardous materials because Mrs. McKinley was allegedly told four years earlier that the center didn’t have to follow the regulation that stated that medicine must be kept under lock and key. Obviously the Board did not find this testimony persuasive; this does not render the decision arbitrary.
My Kids also contends that the decision to revoke was not based on substantial evidence. Substantial evidence means such valid, legal and persuasive evidence that a reasonable trier of fact might accept as adequate to support the conclusion reached by the agency. The appellant bears the burden of demonstrating that the proof before the agency was so clearly undisputed that fairminded individuals could not have reached the agency’s conclusion. Partlow v. Ark. State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980). My Kids argues that there was not substantial evidence to support the Board’s finding that: physical punishment was used on children under three years, child records were not maintained, nutritious meals and snacks were not served, a safe outdoor play area was not provided, adequate and approved sleeping arrangements were not provided, towels for hand washing weren’t provided, and no emergency drills were performed.
However, there was substantial evidence to support these findings. Former employees testified that nutritious meals and snacks were not consistently served and that the children slept on the floor or on mats that were not cleaned regularly. The child care specialists testified that they consistently found a lack of child records on emergency drills, no towels for hand washing, and a dangerous swingset in the play area. Although My Kids argues that these witnesses were not credible, credibility is for the Board to determine. We will not substitute our judgment for that of the Board’s absent an abuse of discretion. See Beverly Enterprises v. Ark. Health Services, 308 Ark. 221, 824 S.W.2d 363 (1992).
Finally, My Kids argues that the Board’s decision should be reversed because it was based on an unconstitutionally vague regulation, and because the day care was denied due process of law because of insufficient notice of process.
Confusion on this issue arises, however, because My Kids complains of the vagueness of Minimum Licensing Requirement for Child Care Centers, Section 301, when in fact the argument contained in its brief concerns Section 102. My Kids quotes from Section 102 in its brief, yet neither Section 102 or 301 is abstracted. The state abstracted and defends Section 301 which does not appear to be in issue.
Normally, we will not consider arguments the bases of which are not abstracted. Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985); Sup. Ct. R. 9(e)(2). However, this court can take judicial notice of regulations of state agencies which are published. Register v. Oaklawn Jockey Club, Inc., 306 Ark. 318, 811 S.W.2d 315. See also Webb v. Bishop, 242 Ark. 320, 413 S.W.2d 862 (1967). The Minimum Licensing Requirements for Child Care Centers are available to the public in the Secretary of State’s office. Although Section 102 was not abstracted by My Kids, we will, under the circumstances, take judicial notice of this regulation and consider its argument.
To avoid being vague under due process standards, a statute or regulation “must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” Thompson v. Ark. Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984). My Kids contends that the regulation is vague because the language of the regulation does not clearly define “substantial compliance.” Section 102 states:
The following requirements contain references to two types of standards, using the words “shall” and “should.” The use of the word “shall” indicates that the terms of the statement are required for a facility to be in substantial compliance. The use of the word “should” indicates that the statement is recommended but not required for substantial compliance.
In determining the recommendation for a licensing or church-operated exemption, the facility shall be reviewed by a Child Care Licensing Specialist to determine that the facility is in substantial compliance with the requirements. Substantial Compliance means there is no omission of the essential standards necessary to protect the health, safety, and welfare of the children and that all standards will be met within a reasonable timeframe agreed upon by the Child Care Licensing Specialist and the facility. Those essential standards which shall be met 100% are those which relate to: fire, health, safety, nutrition, staff/child ratio, and space. Arkansas Stat. Ann. 83-921 states that licensing standards shall not include those of a religious or curriculum nature so long as the health, safety and welfare of the child is not endangered.
The Child Care Licensing Specialist shall review all areas of the requirements and consider noncompliance items based on the frequency, degree, severity, number and nature of noncompliance in making the licensing recommendation.
My Kids asserts that Section 102 is vague because it is not clear exactly which compliance requirements are to be governed by a 100% standard. Specifically, it claims that the substantial compliance section in Section 102 is indefinite as it relates to maintaining staff to child ratios at the day care center. Clearly, however, Section 102 of the Minimum Licensing Requirements for Day Care Facilities indicates that in the area of staff to child ratios, substantial compliance is deemed to be 100 % compliance. This is not vague. It seems that the confusion in this regulation arises when the term “substantial compliance” is applied to an area that is not defined as 100 %. However, My Kids has not raised that issue. Besides, appellant has standing only to challenge sections that directly affect it. See Thompson v. Arkansas Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984).
Although My Kids complains of Section 301, it never indicates in its brief that this regulation is vague in any way, so we will not consider the constitutionality of this requirement.
My Kids also claims that it was not given adequate notice that one of its infractions included failure to comply with the Board’s discipline standards. However, examination of the Department of Human Services notice and attachments indicates that use of physical punishment for children is one of the indicated infractions. The notice is sufficient.
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Donald L. Corbin, Justice.
Appellant, Ricky Franklin, was charged with thirty-two (32) counts of burglary (Class B felonies), two (2) counts of theft of property (Class C felonies), and twenty-two (22) counts of theft of property (Class A misdemeanors), in Cleburne County in connection with three series of burglaries occurring in that county in December 1990, February 1991, and July 1-2, 1991. A jury trial was held on February 27, February 28, and March 2, 1992. At the trial, a directed verdict was granted on twenty-seven (27) of the counts, including all the charges concerning burglary and theft of property alleged to have occurred in December and February and one of the burglary charges alleged to have occurred in July. The remaining twenty-eight (28) charges, sixteen (16) counts of burglary (Class B felonies), two (2) counts of theft of property (Class C felonies), and ten (10) counts of theft of property (Class A misdemeanors), were submitted to the jury, which found appellant guilty on all charges. Appellant was sentenced to twenty years and a $10,000.00 fine on each Class B felony, ten years and a $5,000.00 fine on each Class C felony, and one year and a $1,000.00 fine on each Class A misdemeanor. The court ruled that the sentences on the sixteen (16) burglaries (Class B felonies) would run consecutively and the sentences on the theft of property charges would run concurrently with the sentences on the burglary charges, resulting in a sentence of three hundred and twenty (320) years in the Arkansas Department of Correction. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(b) (1987).
On appeal, appellant argues the evidence was insufficient to support the verdict for five (5) of the charges, there was insufficient corroboration of accomplice testimony to support the verdict as to all the charges, and a sentence of three hundred and twenty (320) years constitutes cruel and unusual punishment and is disproportionate to the crimes of which appellant was convicted.
THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE RELATING TO THE BURGLARY AND THEFT OF PROPERTY OF GLENDA TURLEY PRINTS, THE BURGLARY OF SYNERGY GAS, THE BURGLARY OF SHEAR PERFECTION, AND THE BURGLARY OF J & B TIRE DO NOT SUPPORT THE JURY VERDICT BECAUSE THERE WAS NO EVIDENCE TO SHOW COMMISSION OF A CRIME OR TO CONNECT APPELLANT TO COMMISSION OF A CRIME AT THESE LOCATIONS.
Appellant claims there was insufficient evidence to prove commission of a crime at Glenda Turley Prints, Synergy Gas, Shear Perfection, or J & B Tire or to connect him to commission of a crime at Glenda Turley Prints, Synergy Gas, Shear Perfection, or J & B Tire. In reviewing the sufficiency of the evidence on appeal, this court looks at the evidence in the light most favorable to the appellee and affirms the judgment if there is any substantial evidence to support the jury’s verdict. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In determining whether there is substantial evidence to support the jury’s verdict, it is permissible to consider only the testimony that tends to support the verdict of guilt. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). Testimony regarding other charges, which were charged in the same information, may be considered especially if the offenses were all part of a common scheme or plan and were ultimately part of the same transaction. Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980).
“A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201 (1987). A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a) (Supp. 1991).
The following evidence was introduced a trial and is relevant to all five counts. A statement of one of the alleged accomplices, Jimmy Mayfield, was admitted at trial. In the statement, Mr. Mayfield said he, Rick Franklin, and Carl Rader broke into “the bowling alley, a row of businesses by the bowling alley, a catfish place where we got something to eat, and the electric company where we peeled the safe.” Mr. Mayfield testified that he stole a Remington microscreen razor from one of the businesses and a sword letter opener from another. Mr. Mayfield and Mr. Rader both testified at trial that they committed a series of burglaries and thefts with appellant on July 1-2, 1991. They both testified appellant put the items they stole and the things they used in the burglaries on July 2, 1991, in the ceiling of their motel room, Room 20, at the Arkansas Inn, when they realized the police were outside. Officer Baugh testified that appellant, Brenda Franklin, Mr. Mayfield, and Mr. Rader were picked up at Room 20 of the Arkansas Inn and questioned on July 2,1991. Mr. Mayfield and Mr. Rader testified they went back to the Arkansas Inn with appellant on July 11, 1991, to retrieve the items they had left in the ceiling. They testified they tried to get in through the window, but someone was staying in the room and scared them off. Butch Wilson testified he was staying in Room 20 at the Arkansas Inn on July 11 when he was awakened by someone tampering with the window. Mr. Wilson got up and pulled back the curtain, he said he saw three men in masks at the window and they ran off when they saw him. Mr. Wilson called the motel manager and the police. The police searched the room and found many items in the ceiling, including tools, masks, gloves, a pair of tennis shoes, and several items taken from the businesses burglarized on July 2, 1991, including a Remington microscreen razor and a sword letter opener. On July 16, 1991, Mr. Mayfield and Mr. Rader were arrested trying to rent a room at the Arkansas Inn. Mr. Mayfield testified that they had come back to the Arkansas Inn, at appellant’s direction, to recover the items left in Room 20. Both Mr. Mayfield and Mr. Rader identified items recovered from the ceiling as items used in the burglaries and thefts they committed with appellant. Additionally, Randy Sherrill, who was in a jail cell with appellant, testified that appellant told him he had committed a string of burglaries on Highway 25 North.
Appellant contends there is insufficient evidence to prove commission of a crime at Glenda Turley Prints, burglary and theft, or to connect appellant to commission of a crime, burglary and theft, at Glenda Turley Prints. In addition to the evidence that is relevant to all charges, Shannon King of Glenda Turley Prints testified that on the morning of July 2, 1991, the change drawer was missing from its usual location and was found in the employee break room with about twenty dollars missing. She also testified that Glenda Turley Prints was located in the immediate area of other businesses that had been burglarized the same night. This constitutes substantial evidence from which the jury could have determined Glenda Turley Prints was the victim of burglary and theft on July 2, 1991, and appellant was one of the perpetrators.
Appellant next contends there was insufficient evidence to prove commission of a crime, burglary, at Synergy Gas or to connect him to commission of a crime, burglary, at Synergy Gas. In addition to the evidence that is relevant to all charges, Jackie Huff, branch manager for Synergy Gas, testified that on July 2, 1991, his branch at 1130 Highway 25 North was broken into, a safe at that location was “damaged to the point of no repair,” and the business was ransacked, but no money was taken. There was also evidence that a string of businesses on Highway 25 were all the victims of burglary or theft, or both, discovered on July 2, 1991. This constitutes substantial evidence from which the jury could have concluded a burglary occurred at Synergy Gas and appellant was one of the perpetrators.
Appellant claims there is no evidence a crime, burglary, was committed at Shear Perfection or that he was involved in a crime, burglary, committed at Shear Perfection. In addition to the evidence relevant to all charges, Mr. Hipps, the owner of the building where Shear Perfection is located, testified that the door to Shear Perfection was open and it had pry marks on it on the morning of July 2, 1991, but he didn’t know if anything was taken. Mr. Hipps also owns the Carpet Barn which is located in the same building as Sheer Perfection. The door to the Carpet Barn was also pried open and there were some rolls of coins taken from the Carpet Barn. This constitutes substantial evidence from which the jury could have concluded a burglary occurred at Shear Perfection and appellant was one of the perpetrators.
Appellant contends there is no evidence a crime, burglary, was committed at J & B Tire and there was no evidence to link appellant with any crime, burglary, occurring at J & B Tire. In addition to the evidence that is relevant to all charges, Tim Rockwell, who works at J & B Tire, testified that on July 2,1991, there were signs of forced entry into the building and the cash register drawer had been tampered with, but nothing had apparently been taken. This is sufficient to establish a burglary had taken place and appellant was a perpetrator.
THERE IS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT BECAUSE THERE WAS INSUFFICIENT CORROBORATION OF THE TESTIMONY OF THE ACCOMPLICES.
The testimony of an accomplice, standing alone is insufficient to support a felony conviction. Ark. Code Ann. § 16-89-111 (e) (1987); Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). Accomplice testimony must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Id. The corroborating evidence must be sufficient, standing alone, to establish the commission of the offense and to connect the defendant with it. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). But, the corroboration need not be substantial enough in and of itself to sustain a conviction. Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983). The corroborating evidence may be circumstantial, as long as it is substantial. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). Also, when the testimony of an accomplice is corroborated as to particular material facts, the factfinder can infer the accomplice spoke the truth as to all. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245, cert. denied, 105 S. Ct. 162 (1984); Olles & Anderson v. State, 260 Ark. 571, 542 S.W.2d 755 (1976).
Here, there was corroborating evidence in that the items stolen from the businesses were found in the motel room. Mr. Wilson corroborated Mr. Mayfield’s account of the July 11, 1991, attempt to retrieve the items hidden in the ceiling of Room 20 at the Arkansas Inn. Mr. Mayfield testified he stole a Remington microscreen razor at one of the businesses. Mr. Logan testified an electric razor was taken from his business, Logan’s Builders Supply, and identified the razor recovered from the motel ceiling as the one taken from Logan’s Builders Supply. Mr. Mayfield testified they ate at one of the businesses and, William R. Brown, Jr., owner-manager of Mr. B’s Catfish, testified that on July 2, 1991, he discovered someone had broken into his restaurant during the night and had made food on the grill and taken money from the cash register and a purse left in the restaurant. This corroborating evidence is sufficient to allow the jury to believe all of Mr. Mayfield’s testimony.
Evidence other than accomplice testimony also establishes crimes were committed and connects appellant to the crimes. The business owners and employees of the various businesses testified that on the morning of July 2, 1991, they discovered that their businesses had been broken into and, in most instances, items taken. Randy Sherrill testified appellant admitting having committed the crimes. Appellant was detained and questioned on July 2, 1991, leaving the room where the items used in commission of the crimes and items taken from the businesses were found in the ceiling.
APPELLANT’S SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT AND IS DISPROPORTIONATE TO THE CRIMES OF WHICH HE WAS CONVICTED.
Appellant did not preserve this issue for appeal. At the sentencing, appellant said: “defendant would request that the sentences be imposed concurrently. We feel like those sentences are excessive, given the proof in the case.” This was prior to the court deciding whether the sentences should be served concurrently or consecutively. No objection was made to the court’s ruling that some of the sentences should be served consecutively, resulting in a total sentence of 320 years. Nor was the court apprised that appellant considered imposition of a sentence of 320 years for conviction of 28 charges of burglary and theft of property cruel and unusual punishment. We do not consider arguments raised for the first time on appeal. Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990).
Affirmed. | [
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Frank Holt, Justice.
The sole issue on appeal is the sufficiency of the evidence to support appellant’s conviction for manslaughter resulting in a 7 year sentence. The appellant argues that the evidence of his guilt is circumstantial in nature and insubstantial because it is impossible to determine whether the victim’s death from a gunshot wound was the result of his reckless conduct or whether it was an accident. Ark. Star. Ann. § 41-1504 (1) (c) (Repl. 1977) defines manslaughter in pertinent part:
A person commits manslaughter if ... he recklessly causes the death of another person.
Ark. Stat. Ann. § 41-203 (3) (Repl. 1977) defines recklessly:
A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
We have often stated the rules in regard to circumstantial evidence that where circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis but the guilt of the accused. Hurst v. State, 251 Ark. 40, 470 S.W. 2d 815 (1971); Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695 (1969). The question whether circumstantial evidence excludes every reasonable hypothesis other than the guilt of the accused is usually one for the jury. Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974); Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979). The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent it can from direct evidence. It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law and the test is whether there was substantial evidence to support the verdict when viewing the evidence in the light most favorable to the state. Upton v. State, 257 Ark. 424, 516 S.W. 2d 904 (1974); and Abbott v. State, supra.
Appellant and Gary Fuller, a friend, went to the home of the victim, who had a son by the appellant. Fuller testified that while he was talking to a woman on the phone, an argument broke out between the victim and the appellant; they began to “tussle” near a couch, “like a wrestling match;” he heard a sound like a blow from a fist; a gun was on the coffee table when they came in the house; appellant and the victim both were holding the gun while they were “tussling;” when he heard a shot, he turned around and saw the victim lying on the floor, the gun beside her; appellant became hysterical, running around the room; he dressed his infant son, wrapped the victim in a blanket, and with this witness’ assistance, drove the victim to the hospital. The woman, who was talking on the phone with Fuller, testified that during their telephone conversation, she heard voices in the background and a woman’s voice saying, “Don’t hit me anymore”, a man calling her foul names, the sound of glass breaking, and a baby crying. The victim died during surgery as a result of a “contact wound” from a gunshot; i.e., one that occurs when there is contact of the entire muzzle of the gun with the skin. Besides the fatal wound, there was a mild superficial contusion of the inner surface of the upper lip. The blood alcohol test was negative.
The state also introduced evidence that when appellant returned from the hospital to the scene with a detective, the gun was not there and was never found. On the way home, appellant remarked he hoped the gun had not been stolen during his absence, which appears to have been 1 to 2 hours. Once inside the locked house, appellant stated the television was also missing. The house was in disarray — broken glass scattered about and the arm of the couch was broken. The officers found a bullet hole in the couch and a pawn ticket for a television set dated a few days prior.
The appellant’s version of the incident was that he went by the victim’s house with Fuller to see the victim and their 17 month old son. He had loaned her a gun to protect herself; she had it out when they arrived; when he went into the bathroom, he warned her to put the gun away because “somebody’s going to get hurt”; a few seconds later, as he was coming from the bathroom, he heard the gun discharge; he saw the weapon on the floor; the victim was slumped on the couch, and she fell to the floor; the disarray of the room was a result of his panic in trying to get her to the hospital; he admitted that the previous day the victim had sworn out a warrant against him for stealing her car; however, she told him the night of the shooting she had withdrawn it. He denied there was any ill feeling between them and neither had he subjected her to any physical violence.
The evidence is not based alone on circumstantial evidence. In fact all of the evidence is of a direct nature except as to whether the fatal gunshot resulted from a struggle over the gun or, according to appellant’s theory, the victim accidentally shot herself. Appellant went to the victim’s home the day after she had sworn out a warrant for his arrest. There was testimony of a tussle, his calling her foul names, a blow being struck, her saying “don’t hit me anymore”, and a contusion being found on her inner lip. The house showed signs of a struggle. The gun was never found and appellant’s theory, that it was stolen along with a television during his short absence from the scene, was discredited by an officer who found the pawn receipt for the television. Appellant’s version and the state’s version of the alleged offense were in conflict, which presented a fact issue for the jury to resolve. We are of the view that the jury could reasonably infer from the direct and circumstantial evidence, when viewed most favorably to the state, that the state’s version of appellant’s guilt sufficiently excluded any other reasonable hypothesis and is amply substantial.
Affirmed.
Purtle, J., not participating. | [
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Darrell FIickman, Justice.
This is an appeal from an order revoking a suspended sentence entered by the Sebastian County Circuit Court.
Ray Jackson Queen had several convictions in the Sebastian County Circuit Court which resulted in suspended prison sentences. The prosecuting attorney, alleging several instances of misconduct by Queen, filed a petition to revoke those sentences.
After a hearing, the court concluded that two suspended sentences should be revoked, one in 1974 for ten years and one entered in 1976 for five years. The revoked sentences were to run concurrently.
On appeal Queen alleges five errors. First, he challenges the legality of the suspended sentences. Second, he argues that inadmissible evidence was used against him. Third, he contends that his misconduct did not warrant revocation. Fourth, he argues that the revoked sentences were excessive for his misconduct and, finally, that the trial court failed to give a written reason for the revocation. We find that one revoked sentence was improper and the other was excessive and we modify the sentence. We find no other errors.
The petition to revoke alleged that Queen had at least five suspended sentences. Three separate cases dated back to 1970 when Queen was placed on probation. Court orders in 1974 changed these probation orders to suspended sentences. Queen had a conviction for assault with intent to kill in 1976 with a partial suspended sentence. At the conclusion of the hearing in the present case, the trial judge stated that he would only consider two suspended sentences, the ten-year suspended sentence in connection with a burglary conviction that dated back to 1970 and the five-year suspended sentence imposed in 1976 in connection with the assault charge.
In 1970 Queen pled guilty to burglary and was sentenced to five years’ statutory “probation.” This probationary period was revoked in 1974 and Queen was sentenced to ten years imprisonment with the sentence suspended. This was clearly improper according to Maddox v. State, 247 Ark. 553, 446 S.W. 2d 210 (1969) aad Cantrell v. State, 258 Ark. 833, 529 S.W. 2d 136 (1975). In those cases we dealt with “court probation” as imposed by the Sebastian County Circuit Court and we held in both that where the plea of guilty was accepted, a later revocation could not exceed the probation period. Here, the plea was accepted and the term of probation was five years. Consequently, a later suspended sentence for ten years was improper.
The other sentence revoked is one imposed in 1976 after the criminal code was adopted. On February 26, 1976, Queen entered a nolo contendere plea to assault with intent to kill. According to the docket sheets and commitment order the court sentenced Queen to five years imprisonment with three years suspended — not five as the judge supposed. Undoubtedly the court was confused because there were so many cases before it, but the documents show that only three years were suspended and not five. The State virtually concedes this. Since the court originally imposed a five-year sentence and suspended three years of that sentence, it could only revoke the three-year suspended sentence. McGee v. State, 271 Ark. 611, 609 S.W. 2d 73 (1980). Consequently, judgment in this case will be modified so that Queen is ordered to serve only three years imprisonment.
The appellant also makes the argument that this three-year suspended sentence was illegal because it was imposed consecutive to another ten-year sentence that was illegal. That argument is irrelevant because it was not ordered revoked after the ten years had run; it was ordered revoked during the five-year term originally imposed.
Queen argues that evidence used against him was obtained in an unlawful search. The police received a call that there had been a shooting and proceeded to the area of the shooting. After inquiry they came upon a vehicle in the yard of a residence. Several people were getting into the vehicle or were standing around it. All had been drinking. According to one officer three people were in the car and Queen was one of those people. The people were “huddled” together. The police officers asked them to get out and found a loaded shotgun in the front floorboard. On the porch of a nearby residence they found three shotgun shells which they seized. According to the testimony the safety was off on the shotgun and the gun was ready to fire. It appeared that the three people in the car were trying to hide the gun. The seizure of these articles did not violate the constitutional prohibition against unreasonable search and seizure. The exclusionary rule, as it is applied in most cases, does not apply to every criminal proceeding. United States v. Winsett, 518 F. 2d 51 (9th Cir. 1975); Harris v. State, 270 Ark. 634, 606 S.W. 2d 93 (Ark. App., 1980). We recently held that it does not apply to a revocation proceeding. Lockett v. State, 271 Ark. 860, 611 S.W. 2d 500 (1981).
The evidence of misconduct consisted of a conviction for driving while intoxicated and carrying a prohibited weapon in January, 1980. A month later Queen was found to be publicly drunk in a car that was driving the wrong way on a one-way street. According to officers this car attempted to elude the officers when they pursued it. There was evidence Queen was again intoxicated and involved in disorderly conduct in the shotgun incident. Ark. Stat. Ann. § 41-1208 (4) (Repl. 1971) provides:
If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.
In Queen’s case, the suspended orders read in part:
1. You must not violate any law, federal, state or local. If arrested or questioned by law enforcement officers you are to report the matter without delay to the Probation Office, Third Floor, County Court House, Fort Smith, Arkansas, in person or by letter, giving full details of the event.
2. You must not associate with persons who have criminal records, or who are known as bad characters.
3. You are to stay out of beer joints or other places or parts of town where the wrong kind of people may be found.
We cannot say the court was clearly wrong in its findings.
The final argument that the trial judge failed to make written findings must fail for want of an objection. Lockett v. State, supra. The judgment is modified.
Affirmed as modified. | [
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David Newbern, Justice.
This is a paternity and child support case in which the Chancellor determined the appellant, Billy Joe Barnes, to be the natural father of Jordan Barnes and required him to pay $51 weekly child support and overdue support owed in the amount of $ 1,700. Barnes raises ten issues on appeal. We find no grounds for reversal and affirm the judgment.
Barnes was married to the child’s mother, the appellee, Anna M. Barnes, now Anna Barnes Hicks, until they divorced in January of 1989. Two children were born during the marriage. Hicks testified that on December 24,1989, Barnes returned from Oklahoma with their children who had been visiting their grandparents. Hicks stated Barnes stayed at her home that night so he could open presents with the children on Christmas morning. Hicks testified she and Barnes had sexual intercourse at approximately 2:00 a.m. Christmas morning. After the incident, Hicks realized she was pregnant, and the child was delivered on September 14,1990, approximately nine months from the alleged date of conception. Hicks claimed Barnes was the child’s father and stated he was the only man with whom she was sexually involved for a month and a half before and after she became pregnant.
Hicks admitted having sexual intercourse with two other men, Richard Piggott and Bob Smith, after she divorced Barnes. She testified she stopped seeing Piggott in September of 1989, and she used birth control the entire time they dated. Hicks stated she did not remember the exact dates when she had sexual intercourse with Smith. Smith later testified he had been sexually active with Hicks in 1990 and 1991. He testified, however, that he had had a vasectomy in June of 1984, implying he could not have been Jordan’s father.
In January of 1991, Hicks filed a paternity suit in the Juvenile Division of Pulaski County Chancery Court, claiming Barnes was Jordan’s father. The parties agreed prior to trial that a blood test would be administered to determine paternity. The agreement also provided the test would be admissible at trial. The test, which was later admitted over Barnes’s objections, showed a 99.59% probability that he was the child’s father. Based on the results of the blood test, coupled with Hicks’s testimony regard ing access during the probably period of conception, the Chancellor determined Barnes to be Jordan’s natural father.
/. Subject matter jurisdiction
Barnes relies on Ark. Code Ann. § 9-10-101 (a)(2) (Repl. 1991) and argues the Juvenile Division of Chancery Court was without subject matter jurisdiction, and the paternity case should have been transferred to Chancery Court. He contends the Pulaski County Chancery Court had exclusive jurisdiction over the case. Section 9-10-101 (a) (2) states that a chancery court has exclusive jurisdiction of paternity matters arising during the pendency of original equity proceedings. The proper interpretation of this section of the statutes is that exclusive jurisdiction will lie in a chancery court when a paternity matter arises during the pendency of an action already within its jurisdiction. This provision is simply inapplicable to the facts of this case.
The more relevant provision is Ark. Code Ann. § 9-10-101(a)(1) (Repl. 1991) which provides that a chancery court exercises concurrent jurisdiction with the juvenile division of chancery court in paternity cases. Furthermore, Ark. Code Ann. § 16-13-304(b) (Supp. 1991) states, “Notwithstanding the provisions of the Arkansas Juvenile Code of 1989, or any other enactment which might be interpreted otherwise, the chancery court or any division of chancery court shall have jurisdiction for all cases and matters relating to paternity.” (Emphasis added). The Juvenile Court is a division of Chancery Court, each exercising concurrent jurisdiction over paternity cases. Ark. Code Ann. § 16-13-602 (Supp. 1991); Schuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990).
2. Transfer of paternity case
Barnes’s second point relates to the transfer of his paternity case among several Chancery and Juvenile Court Judges in the Sixth Judicial District. Barnes argues the intra-district exchange violated our holding in Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992).
The case was originally filed in the Juvenile Division of Pulaski County Chancery Court with Chancellor Joyce Williams Warren presiding and set for trial on Friday, September 27, 1991. Because the Juvenile Judges had a backlog of pending paternity cases, the other Sixth District Chancellors were assisting them in deciding these cases. Although the cases were technically not reassigned, the Chancellors assisted the Juvenile Judges by hearing their cases on Fridays on a rotation basis. The Barnes case was originally scheduled to be heard by one of the six rotating Chancellors, but due to scheduling conflicts, the case was sent back to Chancellor Warren’s Court where it had been filed originally.
In the Lee case, three judges in the Twentieth District entered into an exchange agreement which created within the District three divisions each of chancery, circuit, and juvenile courts. The practical effect of the agreement was that a criminal case could be heard by a duly elected chancery judge. In granting a writ of mandamus to prohibit this action, we held Ark. Code Ann. § 16-14-403 (1987), which addresses the exchange of districts among circuit and chancery judges within a district. The exchange contemplated by the statute was inter-district, as opposed to intra-district.
We recognize that the exchange of paternity cases among the Sixth District Juvenile and Chancery Courts was intra-district in nature. The exchange was, however, expressly authorized by statute. Arkansas Code Ann. § 16-13-1403(b)(2) (Supp. 1991) provides:
The circuit judges and chancery judges subject to this subsection [Sixth District] may by agreement, hold either of the circuit or chancery courts and may hear and try matters pending in any of those courts or may hear or try matters in the same court at the same time. The judges subject to this subsection may adopt such rules as they deem appropriate for the assignment of cases in the circuit and chancery courts of their district.
We therefore find the Lee case distinguishable. There is a substantial difference between an agreement which allows a chancellor to preside over a criminal case and an agreement which allows a chancellor to preside over a paternity case which is clearly within the jurisdiction of a chancery court.
3. Separation of powers
Barnes contends the General Assembly violated the separation of powers doctrine, Ark. Const, art, 4, § 2, by enacting Ark. Code Ann. § 9-10-108 (Supp. 1991) which governs the admissibility of blood tests in paternity cases. He relies on State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), and Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), in arguing that Section 9-10-108 impermissibly conflicts with this Court’s established Rules of Evidence. The Chancellor held Barnes essentially waived his right to raise this constitutional issue because he and his former attorney agreed that the blood test would be admissible. In response to this ruling, Barnes testified his former attorney had not informed him that the test would be admitted in evidence.
The record supports the Chancellor’s conclusion that by agreeing that the test would be admissible, Barnes voluntarily abandoned the right to later argue the test was inadmissible because the statute under which it was performed was unconstitutional. See generally Bethel v. Bethel, 268 Ark. 409, 597 S.W.2d 576 (1980) (stating waiver is “the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall be forever deprived of its benefits”). The agreement which was signed by Barnes’ counsel specifically stated the blood test would be admissible in evidence. It shows the test was requested by Barnes who signed a form authorizing the test to be administered.
Although Barnes testified he was not informed of the details and effect of the agreement, a client is bound by the actions of his attorney upon matters concerning which the attorney is employed or held out to be the spokesman of the client. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). General rules of agency law apply to the attorney-client relationship. McCullock v. Johnson, 307 Ark. 9, 816 S.W.2d 886 (1991); Peterson v. Worthen Bank & Trust, 296 Ark. 201, 753 S.W.2d 278 (1988); White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W.2d 672 (1931).
4. Sufficiency of the evidence
Barnes argues in his fourth point that there was insufficient evidence to establish paternity. To support his argument, Barnes cites testimony from other witnesses who indicated they had a sexual relationship with Hicks.
In a paternity proceeding brought against a living putative father, the mother’s burden of proof is a mere preponderance of the evidence, as the proceeding is civil in nature. McFadden v. Griffith, 278 Ark. 460, 647 S.W.2d 432 (1983). The statute, Ark. Code Ann. § 9-10-108(c)(2)(B) (1987), in effect at the time this cause of action arose, provided:
If the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the defendant is the natural father of the child and after corroborating testimony of the mother in regard to access during the probable period of conception, such shall constitute a prima facie case of establishment of paternity and the burden of proof shall shift to the defendant to rebut such proof.
The blood test showing a 99.59% probability that Barnes was the natural father, coupled with Hicks’s testimony regarding access during the probable period of conception, gave rise to a statutory presumption of paternity. Although Hicks admitted having sexual relationships with other men, the events she admitted did not occur during the probable period of conception. The Chancellor found insufficient evidence to rebut the presumption of paternity, and we cannot say this decision was clearly erroneous. Ark. R. Civ. P. 52(a) (1992).
5. Continuance
Barnes claims the Chancellor erred' by failing to grant his motion for continuance based on four reasons. For purposes of simplicity, the issues relating to the continuance will be discussed under one heading.
Barnes argues a continuance should have been granted because opposing counsel failed to respond to several discovery requests. First, he alleges Hicks’s counsel failed to provide a copy of the blood test which was later introduced in response to a direct question asked in interrogation. Hicks’s counsel admitted that, through oversight, he had failed to attach the blood test to his responses, but he stated Barnes had previously been furnished a copy of the test. Barnes admitted receiving a copy of the paternity test prior to trial.
The Chancellor refused to continue the case, but allowed Barnes time to compare his copy of the blood test with the copy Hicks intended to introduce in evidence. After examining the blood test which was admitted, Barnes did not indicate how it was different from the copy which had been furnished to him. When a party cannot demonstrate how he was prejudiced by the denial of a continuance, we will not reverse. Jones v. State, 308 Ark. 555, 826 S.W.2d 233 (1992). Because Barnes was allowed to compare his furnished copy of the blood test with the test which was later introduced, and presumably the copies were identical, he cannot demonstrate sufficient prejudice from the Chancellor’s failure to grant the continuance.
The second argument is that the Chancellor erred by not granting a continuance because opposing counsel failed to list the names and addresses of the expert witnesses who would testify in response to discovery requests. This argument is meritless as no expert witnesses testified at trial. The paternity test conducted by Roche Biomedical Laboratories, which had been furnished to Barnes prior to trial, was introduced through the affidavit of Dr. Lloyd Osborne who supervised the test. Barnes and his counsel were aware of Dr. Osborne as his name appeared on the copy of the report which had been furnished to them. Dr. Osborne did not testify at the trial.
Barnes next contends a continuance should have been granted to allow him time to cross-examine the expert witness who actually performed the blood test. Barnes made the request to cross-examine the expert who lived out-of-state only six business days before trial. The Chancellor rules six days was not a reasonable period of time to have someone before the Court to testify from out-of-state, and Barnes’s motion for continuance was denied.
The law regarding cross-examining expert witnesses who perform blood tests in paternity cases which was in effect at the time this cause of action arose provided:
A written report of the test results by the duly qualified expert performing the test, or by a duly qualified expert under whose supervision and direction the test and analysis have been performed, certified by an affidavit duly subscribed and sworn to him before a notary public, may be introduced in evidence in illegitimacy actions without calling the expert as a witness. If either party shall desire to question the expert certifying the results, the party shall have the expert subpoenaed within a reasonable time prior to trial. Ark. Code Ann. § 9-10-108(b)(2)(A) (1987).
We cannot say the Chancellor was incorrect in finding that Barnes failed to request the expert witness’s appearance within a reasonable time prior to trial. Although Barnes argues he did not know the expert’s name who performed the test, the report clearly indicated the test was supervised by Dr. Osborne and also provided the address of Roche Biomedical Laboratories in North Carolina. In light of Barnes’s failure to comply with Section 9-10-108(b)(2)(A), we cannot say the Chancellor abused her direction by failing to grant the continuance. It is the challenging party’s responsibility to have the expert subpoenaed within a reasonable time prior to trial. One cannot complain if the inability to confront or cross-examine witnesses is brought about by one’s own inattention to the code requirements. Roe v. State, 304 Ark. 673, 804 S.W.2d 708 (1991).
Barnes’s last argument under this heading is that the Chancellor erred by failing to grant a continuance to allow him to obtain Hicks’s medical records from her obstetrician, Dr. Kemp Skokos. Barnes claims these records would conclusively prove he was not the father of the child. The Chancellor refused to grant the continuance because the subpoena duces tecum served on Dr. Skokos was not properly served. The first subpoena directing Dr. Skokos to appear at trial and bring Hicks’s medical records was served by Barnes. Because Barnes was a party to the case, he could not properly serve the subpoena. Ark. R. Civ. P. 45(c) (1992). The second subpoena served on Dr. Skokos was served by Barnes’s current wife the day of trial. This second subpoena was not served at least two days prior to trial, and therefore, service was untimely. Ark. R. Civ. P. 45(d) (1992). In these circumstances, we cannot say the Chancellor abused her discretion by failing to grant the continuance.
6. A.R.E. 903
Barnes argues the blood test should not have been admitted because Hicks presented no evidence regarding the authentication requirements in North Carolina, where the test was performed, as required by Ark. R. Evid. 903 (1992). Rule 903 provides, “The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing [emphasis supplied].” Barnes claims that, before an out-of-state writing is admitted, the proponent must offer proof regarding the authentication requirements in the originating state. He argues Rule 903 creates a condition precedent for admissibility of an out-of-state paternity test.
The Rule provides a subscribing witness’s testimony to authenticate a writing will be unnecessary unless required by the laws of the originating jurisdiction. The burden of showing that the laws of the originating state require testimony from a subscribing witness for proper authentication lies with the party challenging the document. Barnes has not shown that North Carolina law requires a subscribing witness’s testimony. We also note that as the paternity test was required to be notarized under 9-10-108(b)(2)(A), it was a self-authenticating document. Ark. R. Evid. 902(8) (1992). Hicks was not required to produce any extrinsic evidence of authenticity as a condition precedent to admissibility. See Monark Boat Co. v. Fischer, 292 Ark. 544, 732 S.W.2d 123 (1987).
7. Notice
Barnes alleges the Chancellor erred in finding the Attorney General was not timely notified that a constitutional question would be raised in the proceedings as required by Ark. Code Ann. § 16-111-106(b) (1987). Barnes had failed to offer any citation of authority or any convincing argument supporting this point, and we will not consider it on appeal. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
8. Telephone bill
The eighth issue relates to the Chancellor’s refusal to allow Barnes’s telephone bill to be admitted under Ark. R. Evid. 803(24) (1992). The telephone bill would allegedly show that Barnes made a phone call to his fiance from his home at approximately 10:00 p.m. on Christmas Eve. Barnes argued this evidence would contradict Hicks’s testimony that he was at her home at the time she alleged. As Barnes could not offer a sufficient foundation to establish the telephone bill as a business record under Ark. R. Evid. 803(6) (1992), he argued it should be admitted under the catch-all exception found in Ark. R. Evid. 803(24) (1992).
The Chancellor ruled the telephone bill should be admitted, if at all, under the business records exception to the hearsay rule and refused to allow its submission under 803(24).
We have recognized that the common-law exceptions to the hearsay rule are based either upon necessity or upon some compelling reason for attaching more than average credibility to hearsay. Any new exception, such as 803(24), must have circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions. Hill v. Brown, 283 Ark. 185, 672 S.W.2d 330 (1984). In determining trustworthiness under the residual hearsay exception in 803(24), the Chancellor must determine that (1) the statement is offered as evidence of a material fact, (2) the statement is more probative on the point for which it is offered than any other evidence the proponent can procure through reasonable efforts, and (3) the general purposes of the rules and the interests of justice will best be served by admission of the statements into evidence. Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). The residual hearsay exception was intended to be used very rarely, and only in exceptional circumstances. Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989).
Barnes failed to offer any evidence that the telephone bill had “circumstantial guarantees of trustworthiness” as required for admissibility under Rule 803(24). In these circumstances, we cannot say the Chancellor abused her discretion by refusing to allow the bill to be admitted under the residual hearsay exception. Barnes also failed to comply with Rule 803(24) by not notifying Hicks that the bill would be introduced under the Rule. A statement may not be introduced under 803(24) unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it.
9. Child support amount
Barnes argues the Chancellor erred in setting the support amount at $51 per week. The Chancellor was presented with evidence that Barnes earned $300 per week, and that he was required by court order to pay $88 in child support for hisTwo children born during his marriage to Hicks. The Chancellor subtracted the $88 support amount from income to arrive at a weekly take home pay of $212. She then applied the child support chart amount for one dependent and awarded $51 in support for Jordan. Barnes argues that instead of applying the chart amount required for one dependent, the Chancellor should have set support based on three dependents. By applying the chart in this manner, Barnes would only be required to pay $110 per week in support, whereas he is now required to pay $139 per week.
The child support chart should be applied to the child who is before the court. The result of applying the chart as Barnes suggests would be that the amount of support for the one child before the court is diluted. The chart is structured so that the amount of support per child decreases in proportion to the number of added dependents. See Waldon v. Waldon, 34 Ark. App. 118, 806 S.W.2d 387 (1991).
In adopting the chart, we specifically provided that weekly pay would be determined after deduction for “Presently paid support for other dependents by Court order.” In re: Child support Enforcement Guidelines, 301 Ark. 627, 784 S.W.2d 589 (1990). We find no abuse of discretion.
10. Retroactive support
Barnes’s final point is that the Chancellor incorrectly awarded past due child support in the amount of $1700. The Chancellor determined this amount by multiplying the minimum support amount which can be awarded under the chart ($25) by 68 weeks (the period from the child’s date of birth to the date of judgment). Barnes argues this award was erroneous because there was not testimony presented on the needs of the child or his ability to pay.
In making the decision regarding retroactive support, the Chancellor recognized there was no evidence regarding Barnes’s weekly take home pay during the relevant timé period. Therefore, the Chancellor simply set the support at the minimum level required of an unemployed person. We find no error or abuse of discretion.
Affirmed. | [
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Per Curiam.
Appellant, Richard G. Eckl, by his attorney, Michael Knollmeyer has filed a motion for rule on the clerk. His attorney admits that the record was tendered late.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In re: Belated Appeals in Criminal Cases, 265 Ark. 965; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Robert L. Brown, Justice.
The sole issue in this appeal is whether the trial court erred in refusing to transfer five charges against the appellant Laquince Termel Hogan from circuit court to juvenile court. These charges involved the delivery of crack cocaine, the delivery of marijuana, and the possession of crack cocaine with intent to deliver. We find no error in the court’s decision, and we affirm.
On December 17, 1991, Hogan was charged as an adult in circuit court with two delivery-of-marijuana offenses and two delivery-of-crack cocaine offenses arising out of events in September and December of that same year. Hogan at the time of the alleged offenses was seventeen, his date of birth being January 19, 1974. Arrest warrants were also issued on December 17, 1991, and served on Hogan at his high school. Following his arrest at the school, Hogan was charged with possession of crack cocaine with intent to deliver.
Hogan filed a motion to transfer all charges to juvenile court on January 29, 1992, on the basis that even though he was now eighteen, he had been seventeen at the time the alleged offenses were committed. Two hearings were held, one on February 4, 1992, and one on May 12, 1992. At the first hearing, Arkansas State Police Captain Hayes McWhirtor testified that when Hogan was arrested at school, he had eight or nine rocks of crack cocaine in his possession. At the second hearing, the trial court denied the motion and said that it was doing so because Hogan “had crack cocaine on him at school,” and that that fact distinguished this case from Blevins v. State, 308 Ark. 613, 826, S.W.2d 265 (1992). In Blevins, we granted a transfer of a sixteen-year-old’s case to juvenile jurisdiction where possession with intent to deliver crack cocaine was charged but no violence accompanied the charges.
Juvenile transfer matters are governed by Ark. Code Ann. § 9-27-318(e) (Repl. 1991), which includes these factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts;
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
We have held that it is not necessary to give equal weight to each factor in juvenile transfer cases and further that proof need not be introduced against the juvenile on each factor. Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).
There was testimony at the juvenile transfer hearing in Hogan’s favor, such as no prior record, a 3.0 grade point average at school, school leadership and sports participation, plans to attend college, and the absence of violence employed in the alleged crimes. On the other hand, multiple drug charges are involved in this case, and one charge, according to Captain McWhirtor, involved possession of eight or nine rocks of crack cocaine while Hogan was on school grounds attending classes. There is, too, the fact- that Hogan is now eighteen and almost nineteen. In a 1991 juvenile transfer case, this court had the following to say regarding an appellant who had turned eighteen:
The appellant was seventeen years and seven months old at the time of the crimes, and has now reached his eighteenth birthday. A person who has reached his eighteenth birthday cannot be committed to a youth services center. Ark. Code Ann. §§ 9-27-331(a)(1) and 9-28-209(a)(1) (Supp. 1991).
Bright v. State, 307 Ark. 250, 252, 819 S.W.2d 7, 8 (1991). In Bright, we considered that circumstance to be an important factor in denying the transfer.
The fact that no commitment under juvenile jurisdiction could result from a transfer due to Hogan’s age and the fact there are multiple charges of a serious nature, one of which involves possession of a significant amount of crack cocaine on school grounds, compel us to conclude that the trial court’s decision was not clearly erroneous. See Walker v. State, 304 Ark. 402-A, 805 S.W.2d 80 (1991) (Supplemental Opinion).
Affirmed. | [
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Per Curiam.
Appellant, Phillip G. Kellett, by his attorney has filed for a rule on the clerk.
His attorney, Harold W. Madden, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
In this case, the court was required to issue an order on counsel, James P. Massie, to appear before us on Monday, November 2, 1992, and show cause why he should not be held in contempt. In sum, Mr. Massie failed to file a brief due on August 2, 1992, and failed to respond to the clerk’s letter explaining why. In fact, no brief or response had been filed at the time the court’s show cause per curiam was issued on October 19, 1992.
Mr. Massie appeared before us on November 2, 1992, and pled guilty. He filed his brief with the court on November 18, 1992.
Based on the record before us, Mr. Massie is held in contempt of this court and fined $250.00. | [
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P. A. Hollingsworth, Justice.
This is an original action in the Supreme Court of Arkansas for a Writ of Mandamus ordering the Board of Apportionment of the State of Arkansas, and its individual members, to redistrict the legislature so that each county would have at least one representative. Each of the petitioners attempted to file nominating petitions with the Secretary of State to become independent candidates for the Arkansas House of Representatives for his resident county only. Each petition was filed prior to the deadline. All of the petitions were refused. This action is brought by petition pursuant to Ark. Const, amend. 45, § 2. The respondents contend that the petition was not timely filed and that it fails to state a cause of action according to the equal protection clause of the fourteenth amendment of the Constitution of the United States.
We believe that the petition must be denied for the below stated reasons.
Upon consideration of the respondents’ first contention that the petition was not timely filed, we have determined that the petition was late. Ark. Const, amend. 45, § 5 gives this Court original jurisdiction only if the application for revision of the apportionment is filed thirty days after the report for apportionment is filed by the Board of Apportionment with the Seretary of State. We have upheld this time limitation, reasoning that it was necessary to give the reapportionment plan a degree of stability and finality. Bizzell v. White, Governor, 274 Ark. 511, 625 S.W.2d 528 (1982).
The report from the Board was filed July 13, 1981. The petitioners filed their petition on April 26, 1984, two and a half years after the report was filed. The petitioners contend that the filing limitation applies only if the petition seeks to revise the apportionment. Rockefeller v. Smith, 246 Ark. 819, 440 S.W.2d 580 (1969). The petitioners argue that the petition in this case is not requesting a revision but rather seeks to order the Board to comply with the amendment by allocating one representative district to each county. However, this argument is erroneous. The petition is requesting a revision of the 1981 reapportionment report. The duty of the Board has been satisfied. Since the petition was not filed within the thirty day time limit, the petition is late according to the language of the amendment.
Respondents assert that the petitioners do not have a cause of action under amendment 45, section 2. We agree. That section states in pertinent part that "the House of Representatives shall consist of 100 members and each county existing at the time of any apportionment shall have at least one representative . . .” This section has previously been held unconstitutional insofar as the boundary lines of the representative districts are concerned. Yancey v. Faubus, 238 F. Supp. 290 (D.C. Ark. 1965). We have also held "county boundary lines may be traversed in the formation of legislative and senatorial districts.” Wells v. White, Governor, 274 Ark. 197, 623 S.W.2d 187 (1981). The underpinning of these decisions was the principle of one man, one vote and the equal protection clause of the fourteenth amendment to the Constitution of the United States. Reynolds v. Sims, 377 U.S. 533 (1964).
A review of apportionment cases is of some value. In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court held that the constitutionality of a state’s apportionment of its legislature presented a justiciable issue under the equal protection clause of the fourteenth amendment. The following year, the Court invalidated Georgia’s county unit method of electing its governor, holding that under the equal protection clause every voter is entitled to a vote equal in weight to the vote of every other voter in a statewide primary. Gray v. Sanders, 372 U.S. 368 (1963). In Wesberry v. Sanders, 376 U.S. 1 (1964), a case involving congressional apportionment, the Court, acting under U.S. Const, art. I, § 2, declared that the rule of “one man, one vote” is a fundamental idea of democratic government. The holding in Wesberry was that congressional districts must be drawn so as to be approximately equal in population. The next line of cases dealt with the apportionment of state legislatures. In Reynolds v. Sims, 377 U.S. 533 (1964), the first of six state apportionment cases decided on the same day, the Court reinforced the area of justiciability established in Baker v. Carr. The equal protection clause was applied to state legislatures and the Court held that representatives of both chambers must be apportioned by population. Although the Court stated that some divergence in one or both houses would be permissible “incident to the effectuation of a rational state policy,” it was specifically stated that “considerations of area alone provide an insufficient justification for deviations from the equal-population principle.”
The Court mentioned only one factor that might justify minor departures from roughly equal weighting of votes by stating, “A consideration that appears to be of more substance in justifying some deviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political subdivisions. ’ ’ However, this desire to give some voice to each of a state’s political subdivisions seems justified only when they have responsibilities in carrying out state policies and programs.
In Mahan v. Howell, 410 U.S. 815 (1973), the Court upheld a reapportionment plan of the Virginia House of Delegates which followed the county lines with the exception of one. Even though the Court held it was proper for the reapportionment board to consider county lines, the high court pointed out that the primary consideration is the numerical equality of the districts.
The petitioners here believe that the one man, one vote principle is being revised by the Court in recent years and more authority is being returned to the counties. They cite the most recent case, Brown v. Thomson, 103 S.Ct. 2690 (1983), as evidence of the Court’s shift away from the one man, one vote principle toward upholding county lines. In that case, the Court upheld a Wyoming reapportionment plan which was based on the county lines. We think otherwise. The court based its decision on the state constitution, the state’s history, and legislative apportionment history. Wyoming has always apportioned according to the boundary lines. Wyoming counties have been important state administrative vehicles.
Arkansas counties do not hold the position in the state government that Wyoming has given to its counties. The legislature has not been apportioned according to county lines since 1965. Even though the constitutional amendment has a provision for which each county should have at least one representative, that provision has been determined to be unconstitutional. The situation in Arkansas is not analogous to that in Wyoming.
The precise issue in Brown was whether the equal protection clause has been violated by allocating a legislative seat to a county which had a population lower than the average population of the other districts. The Court said it has not, due to the state’s consistent application of this method of apportionment, and the creation of the district did not create the deviations in population equality in the other districts. The Court stated the deviations are the result of a consistent and non-discriminatory application of a legitimate state policy. This reasoning is consistent with the decision in Reynolds.
We also note the dissent in Brown v. Thompson that states the holding today is “extraordinarily narrow,” and “empty of likely precedential value.”
The population of Arkansas counties is varied. Some counties have a relatively small population, whereas Pulaski County is heavily populated. The Board of Apportionment must apportion the legislative districts according to population. To be in compliance with the equal protection clause of the Fourteenth Amendment and Reynolds v. Sims, the districts must be of as nearly equal population as is possible. In order to achieve equal population in the legislative districts, it is necessary to cross the county lines. Wells, supra. Therefore, we must deny the petition.
Writ denied.
Hickman, J., concurs. | [
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Per Curiam.
This case is similar to and controlled by the opinion in Terry Lovell, et al v. State, 283 Ark. 425, 678 S.W.2d 318 (1984). The judgment is accordingly affirmed. | [
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John I. Purtle, Justice.
The Jackson County Chancery Court dismissed Andy Doyle’s complaint against Jackson County National Bank based upon the bank’s financing a crop for Rickey Gardner who sub-rented from Doyle. On appeal Doyle argues the court erred in holding that he did not have a landlord’s lien which attached to the proceeds of the loan commitment to Gardner. We agree with the chancellor.
Appellant cash rented a farm and agreed to sub-rent a portion of it to Gardner for the sum of $18,750. The rentals were for crop year 1982. The appellee bank agreed to finance Gardner’s farming operation in the amount of $75,000. Appellee bank advanced to appellant, from Gardner’s loan funds, the amount of $9,375. Subsequently, Gardner asked the bank to advance the balance of the rent to appellant. The appellee bank insisted on waiting until the crops were harvested before it would consider paying the other half of the rent due from Gardner. The 1982 crop was short. After applying all crop proceeds and insurance indemnity payments, Gardner’s loan was still not satisfied and the bank refused to pay the appellant. The bank did not notify the appellant that the balance of Gardner’s rent would not be paid.
In order to understand this case we have to look to the history of the relationship between Doyle and Gardner. The appellant rented these same lands for the 1981 crop year. He also sub-rented the same portion to Gardner. The original lease between the land owner [Parsley] and appellant provided for rental payments to be made on March 1 and December 1. The oral agreement between Gardner and appellant provides that the final rent payment for the year was to be made on December 1, 1982. Gardner had arranged a loan for his 1981 crop from the Farmers Home Administration. His 1981 loan was not satisfied in full. The FmHA agreed to subordinate its past due account to the 1982 crop loan by appellee. The FmHA required Gardner and Doyle to execute a pro forma lease in order to comply with its rules and regulations. The written pro forma lease did not have a rent due date. The 1981 pro forma lease between Doyle and Gardner was for a peroid of 3 years. This agreement required cash rent to be paid by Gardner in October and November of 1981.
The bank reduced its lending commitment to Gardner by about $7,500. Appellant tried to get the bank to pay the balance of the rent due from Gardner during the fall of 1982. They failed or refused to do so and appellant filed suit against the bank and Gardner on June 13, 1983.
Doyle claimed a landlord’s lien in the amount of $9,375, the second installment of the annual rent. The trial court held that the complaint was not timely filed and dismissed it.
Appellant’s claim was founded upon theory that he held a valid landlord’s lien. In presenting his claim he relies on Ark. Stat. Ann. § 51-201 (Repl. 1971) which reads as follows:
Every landlord shall have a lien upon the crop grown upon the demised premises in any year for rent that shall accrue for such year, and such lien shall continue for six (6) months after such rent shall become due and payable, and no longer.
In defense the bank claimed that appellant was not a landlord but in the event he was determined to'be a landlord that the claim was not timely filed. Appellee bank further argued that appellarit had no right to collect from Gardner until appellant had paid Parsley.
In view of the fact that appellant relies upon the landlord’s lien statute we find that his complaint was untimely. Admittedly, the pro forma lease did not contain specific dates for payment of the rent. The undisputed testimony was that the oral agreement between Doyle and Gardner required the last rent payment to be paid by December 1, 1982. The statute relied upon continues the lien for a period of six months after the rent becomes due and payable, and no longer. We certainly cannot say that the trial court’s finding that the suit was not commenced within six months from the date the last rent was due was clearly erroneous.
Appellant also argues that as the primary renter he had the right to collect from Gardner and the bank from the proceeds from Gardner’s crops. A lessee does have the right to collect from a sub-tenant after the lessee has made payments to the landlord. Arkansas Stat. Ann. § 50-521 (Repl. 1971). This particular issue was decided in King v. Wilkerson, 149 Ark. 670, 235 S.W. 803 (1921). Although the statute under consideration in King was Crawford and Moses digest section 6894, the same statute is now part of Ark. Stat. Ann. § 50-521. Doyle had not paid Parsley the second half of Gardner’s rent when he filed suit. In any event appellant obtained a judgment against Gardner and there was no appeal. Therefore, if the appellant stood in the shoes of the landlord he was too late. If he sought to collect as a tenant from a sub-tenant pursuant to Ark. Stat. Ann. § 50-521, he had not met the requirements and had no right to file the suit.
Affirmed.
Hays, J.; and Hollingsworth, J. dissent. | [
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Steele Hays, Justice.
We granted the petition of Cullen and Sandra Harris to review the decision of the Court of Appeals [See Harris and Harris v. State, 12 Ark. App. 181, 672 S.W.2d 905 (1984)], to decide whether an appellant who has challenged the sufficiency of the evidence, along with other assignments of error, is entitled to have that issued decided when the case is reversed and remanded on other grounds. The Court of Appeals declined to address the sufficiency argument since the case was reversed for procedural errors. That position was reaffirmed by a supplemental opinion denying appellants’ petition for rehearing. (12 Ark. App. at 189). We take a different view from the Court of Appeals, and, accordingly, we reverse.
Appellants, Cullen and Sandra Harris, were tried and convicted of manufacturing a controlled substance. They argued five points for reversal before the Court of Appeals, which found two reversible errors: 1) Failure of the trial court to grant a continuance to appellants when the state produced a witness for an out-of-court identification of one of the appellants, contrary to information supplied to the defense in pre-trial discovery; 2) refusal by the trial court to grant a mistrial when the prosecutor argued outside the record.
In their petition for rehearing, appellants contended that under Burks v. United States, 437 U.S. 1 (1978), the Arkansas Court of Appeals should have considered their challenge to the sufficiency of the evidence prior to considering other allegations of error.
In Burks the United States Supreme Court reconsidered its position with respect to a retrial when a case was reversed because of insufficiency of the evidence. The Court held the double jeopardy clause precluded a second trial when conviction in a prior trial was reversed solely for lack of evidence. For the purpose of determining whether the double jeopardy clause precluded a second trial after the reversal of a conviction, a reversal based on the insufficiency of the evidence was to be distinguished from a reversal for trial error. The court found that in holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. Thus, it would defeat the purpose of the double jeopardy clause if the prosecution were afforded a second opportunity to supply evidence it had failed to muster in the first trial. We find under Burks the general rule would, as appellants submit, require a review of the sufficiency of the evidence prior to the consideration of trial errors.
Initially we point out that under Burks the sufficiency of the evidence should be reviewed even if other arguments are raised. The essence of the reasoning in Burks is based on the premise the prosecution has had one fair opportunity to offer whatever proof it could assemble and should not be given a "second bite at the apple.” Because of unfortuitous errors by the trial court and the defendant’s right to object to those errors, the defendant should not be precluded from a review of the sufficiency or, in the alternative, forced to gamble entirely on the sufficiency issue by electing to forego all other objections. For an appellate court to avoid the argument by reversing on other grounds would ignore the protection intended by the double jeopardy clause as interpreted in Burks. We find no cases in disagreement with this conclusion, and see United States v. Palzer, 731 F.2d 1848 (11th Cir. 1984).
The one distinction from the above cases raised in appel lan ts ’ argumen t is tha t the s ufficiency review bri ngs up consideration of admissible evidence. The only reason this distinction has arisen is because the Court of Appeals did not consider the sufficiency question first and since evidentiary error was found, it is clear when considering the sufficiency of the evidence we would be including a consideration of otherwise inadmissible evidence. Disregarding other possible trial errors to review the sufficiency first does not present this dilemma. Were we not to make such a review, the alternative is to avoid the sufficiency argument by remanding for retrial on the other grounds. But unless the reasons for a new trial are defeated by reviewing the sufficiency first, including the inadmissible evidence, generally the review should be granted. That is what Burks requires.
The reasons for retrial, as opposed to dismissal on reversible error, were stated in Burks. The opinion notes the distinction between trial error and evidentiary insufficiency, the former not barring retrial under the double jeopardy clause:
["Trial error does not constitute a decision to the effect that the government has failed to prove its case and implies nothing with respect to guilt or innocence of the defendant.”] Rather it is a determination that á defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g. incorrect receipt or rejection of evidence, incorrect instructions or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. Burks at 15.
The Burks court points out if acquittal is granted on the sufficiency argument the prosecution cannot complain of prejudice for it has been given one fair opportunity to offer whatever proof it could assemble. Id. at 16.
Although trial error does not constitute a decision that the state has failed to prosecute its case, neither does it preclude such a finding. The basis for retrial when there has been trial error would not be defeated by a decision to consider the sufficiency, including any erroneously admitted evidence, before considering reversal on other grounds. The defendant is not prejudiced by that method. He has as strong an interest in being acquitted by a review of the sufficiency as he does in having a new trial free from error. Neither is the prosecution prejudiced by such a determination, as it has had at least a fair opportunity to offer whatever proof it could assemble. It is not prejudiced by its reliance on the trial court’s erroneous ruling as the reviewing court would include that evidence in its deliberation. The review should be granted, therefore, because it is consistent with the rationale of Burks: ‘‘The double jeopardy clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.” Burks at 11. ‘‘[T]he purposes of the clause' would be negated were we to afford the government an opportunity for the proverbial ‘second bite at the apple.’ ” Id at 17.
Turning to the case before us, we approach sufficiency of the evidence in the light most favorable to the appellee and the judgment is affirmed if there is a finding of substantial evidence to support the verdict. Substantial evidence, must do more than create a suspicion of the existence of the fact to be established and must be of sufficient force and character as to compel a conclusion one way or the other with reasonable and material certainty. It must induce the mind to pass beyond a suspicion or conjecture. Coleman v. State, 285 Ark. 359, -S.W.2d-(1984).
A summary of the evidence includes these facts: In February, 1982, when an owner of a self-storage rental unit detected chemical odors, the police investigated and confiscated a van stored in the unit. In the van were most of the chemicals and equipment used in the manufacture of metamphetamine, a controlled substance, and a trace of metamphetamine was found in three containers. An expired vehicle registration in the name of Sandra and Cullen Harris was found in the van. The record is not entirely clear, but either one or two fingerprints of Cullen Harris were found on two different articles in the van. No fingerprints of Sandra Harris were found but there was evidence that she had ordered costly chemicals from a chemical supply house, and she was identified as having been with an individual who made several purchases from another chemical company. While these circumstances might create suspicions the appellants were involved in the manufacturing process, the evidence does not compel the conclusion that appellants were manufacturing metamphetamine.
The only significant connection between the Harrises and the manufacturing of the metamphetamine was their ownership of the van, but other circumstances render even that proof doubtful as to its probative value. Had the van been found under other circumstances it might be possible to reach a more definitive conclusion, but there are too many indications that others had access to the van, thus casting doubts on the appellants’ access and control of the vehicle: the van’s registration had expired almost a year earlier, the storage unit was rented in someone else’s name; the owners of the rental units could not identify the appellants as having had anything to do with the rental procedure and during the several months of storage they had never seen appellants at the storage unit; of approximately one hundred items in the van tested for fingerprints, only one and possibly two prints were identified as those of Cullen Harris; none were found belonging to Sandra Harris and of many other prints found there was at least one other set and possibly as many as ten prints belonging to other individuals; a box top from one of the chemical supply houses found in the van had an invoice number stamped on it which was traced to an order made by a Bill Jenkins and which was to be picked up by a J.T. Thompson.
Aside from the fact that others had access to the van, appellants’ connection with any of the manufacturing apparatus and its operation was not shown. Other than the expired vehicle registration, Cullen Harris’ only connection with the manufacturing process was one or two fingerprints on articles in the van, and it was not shown that those articles were used in the manufacturing process.
Evidence of Sandra Harris’ connection is even less convincing. None of her fingerprints were found on any of the tested items in the van, and the other evidence produced by the state failed to establish any relationship to the manufacturer. Although a Sandra Harris was shown to have purchased chemicals from a supply house, there was no proof that it was the appellant, Sandra Harris. In any case, the chemicals purchased were not tied in any way to the manufacturing process — neither by the chemist’s testimony concerning the necessary ingredients nor by any of the chemicals found in the van. The fact that she was with someone who purchased chemicals is lacking in probative value, as the chemicals and equipment purchased were not .identified as any of those found in the van.
The connection of the appellants with the manufacturing process itself is further attenuated by the testimony of the state’s chemical expert that there was no way to determine from the traces of the chemical residue how long it had been since the manufacturing process had taken place. He testified the process would take several days to complete and required a large room, much bigger than the space inside the van or the storage unit itself because of the necessary ventilation. From the chemist’s testimony it appears impossible the process could ever have been accomplished inside the van or even in the storage building, and therefore, the time and place of manufacture were left to speculation, with no connection made to the appellants.
This case is not unlike Pollardy. State, 264 Ark. 753, 574 S.W.2d 656 (1978) where the defendant had been convicted of manufacturing marijuana by growing it in fields. There were a number of circumstances that tended to point to Pollard’s involvement, but nothing to show a legally sufficient connection. We said, “Certainly, there is plenty of evidence that something may have been going on of a suspicious nature. However, when we apply the law to the facts in this case, where is the evidence . . . that Pollard planted or cultivated this marijuana on the island? It is simply not there.” That description of the proof is equally applicable to this case. The equipment found indicated it had been used for the manufacture of metamphetamine but at some location other than the van. The expired registration indicated the appellants were the owners of the van, but all other evidence pointed to individuals other than the appellants as being involved in the manufacturing process. Nothing else of substance was produced to show appellants’ involvement. The evidence of guilt does not meet the test of substantial evidence.
The case is reversed and dismissed. | [
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George Rose Smith, Justice.
When a plaintiff brings suit upon a claim arising from a certain transaction, may the defendant successfully assert a setoff that arose from a different transaction and was barred by limitations when the plaintiff’s cause of action accrued? The trial judge construed the controlling statute to mean that such a setoff cannot be allowed in reduction of the plaintiff’s claim. We disagree. Our jurisdiction is under Rule 29 (1) (c).
In 1981 the appellee as plaintiff filed his complaint to recover $7,207.20 as the purchase price of logs he sold to the defendant-appellant in 1979. The defendant’s answer denied the plaintiff’s claim and asserted a $5,000 setoff arising from the defendant’s sale of a core chipper to the plaintiff in 1972, a claim apparently barred by limitations. On the plaintiff’s motion for summary judgment the trial judge disallowed the setoff, entered judgment for the plaintiff for $6,537.06 upon a finding that defendant admitted liability in that amount, and refused to allow prejudgment interest. The defendant appeals as to the setoff; the plaintiff cross-appeals as to the interest..
First, the setoff. In our view, the answer to the question posed in our first paragraph is discoverable from the language and legislative history of the statute, now compiled as Ark. Stat. Ann. § 37-233 (Repl. 1962). The original statute was enacted in 1838 as Section 33 of Chapter 91 of the Revised Statutes. The preceding 32 sections of that chapter had covered most aspects of the law of limitations, but had not mentioned setoffs. Section 33 treated that subject, as follows:
The provision of this act shall be deemed and taken to apply to the case of any debt or simple contract alleged by way of set-off, on the part of any defendant, either by plea, notice, or otherwise.
Under the Civil Code of 1868, § 117, a counterclaim was defined and had to arise from the same transaction that was the basis for the plaintiff’s claim. That restriction was removed by Act 267 of 1917, which provided that a counterclaim could be any cause of action, in contract or tort, in favor of the defendant against the plaintiff. Ark. Stat. Ann. § 27-1123 (Repl. 1962); Huggins v. Smith, 141 Ark. 87, 216 S.W. 1, 16 A.L.R. 323 (1919); Coats v. Miller, 134 Ark. 311, 203 S.W. 701 (1918). As to the statute of limitations, however, the distinction based on whether the counterclaim or setoff arose from the same transaction as that giving rise to the plaintiff’s demand was not made clear until our decision in Missouri & North Ark. Ry. v. Bridwell, 178 Ark. 37, 9 S.W. 2d 781 (1928). There we drew a clear distinction:
If a counterclaim or set-off is interposed as a defense merely, and no affirmative relief is asked, and when it grows out of the transaction which is the basis of plaintiff’s cause of action, there is no reason why this defense might not be available as long as plaintiff’s cause of action exists.
^ ^ ^ ^
Where, however, a counterclaim or set-off has no connection with plaintiff’s cause of action, but is an independent claim against the plaintiff, it will be barred as a defense and not available to the defendant if the right of action on such counterclaim was already barred before plaintiff’s cause of action accrued.
It was with this background of case law that the legislature saw fit, by Act 398 of 1939, to amend the original section of the Revised Statutes in two respects. First, the existing language was enlarged to encompass not merely contractual debts but also “any demand,” without restriction. That change is not material to the case at bar, which involves two matters of contract.
But, second, the legislature added this additional proviso to the ancient statute governing the assertion of setoffs: “[Provided however that any demand, right or cause of action, regardless of how same may have arisen [emphasis supplied], may be asserted by way of set-off in any action to the extent of the plaintiff’s demand.” Ark. Stat. Ann. § 37-233. The necessary intent of the italicized clause was to set aside the distinction made in the Bridwell case, supra, for otherwise the clause would have no effect whatever. The appellee suggests that the purpose of the amendment was to make it clear that for a setoff to be claimed (if timely brought), it need not have arisen from the same transaction as the plaintiff’s demand. But that has been the law ever since the 1917 amendment to the Civil Code and in fact has been carried forward in Civil Procedure Rule 13 (a) and (b). We must give the 1939 proviso some meaning, for in the language of Karl N. Llewellyn which we have quoted in an earlier case: “If a statute is to make sense, it must be read in the light of some assumed purpose. A statute merely declaring a rule, with no purpose or objective, is nonsense.” Davis v. Johnston, 251 Ark. 1078, 479 S.W.2d 525 (1972). Since the 1989 proviso had no visible effect except to allow any demand to be asserted as a defensive setoff, regardless of whether it arose from the same transaction as that relied on by the plaintiff, we hold that the trial court was mistaken in its disallowance of the $5,000 setoff by summary judgment. The merits of that claim may be decided on remand.
Second, by cross appeal the appellee seeks an allowance of prejudgment interest. Although as plaintiff the appellee originally sought to recover $7,207.20, he reduced his demand to conform to the defendant’s answer to an interrogatory, admitting that it owes $6,537.06 as the balance due on its purchase of logs from the plaintiff. Insomuch as the precise extent of the defendant’s liability seems to have been readily determinable, the appellee is apparently entitled to interest from the date on which suit was brought. Loomis v. Loomis, 221 Ark. 743, 255 S.W.2d 671 (1953). That matter, however, will also be open on remand.
Reversed on direct and cross appeal and remanded. | [
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David Newbern, Justice.
This is a wrongful death case, thus our jurisdiction arises under Arkansas Supreme Court and Court of Appeals Rule 29(1 )(o).
The question is whether the determination of an issue in a previously decided insurance coverage case involving these parties is preclusive of an issue in this wrongful death action. The trial judge held there was no such preclusion, and we affirm.
Dudley Roane shot and killed Hershel Smith. Smith’s estate filed this wrongful death claim against Roane. Thereafter, Roane’s insurer, Fireman’s Insurance Company, sought a declaratory judgment against Roane to the effect its policy issued in favor of Roane did not cover any liability he might have arising from the incident. Smith’s estate was also a named defendant.
In the declaratory judgment action, the question was whether a coverage exclusion clause applied. The clause provided that if the insured intended or expected the injury to result from his act, there would be no coverage. The jury, in response to a specific interrogatory, found that Roane neither intended to shoot Smith nor expected injury to result to Smith from his act. Thus the defendant, Roane, prevailed in the action, as it was determined his insurance policy covered his possible liability to Smith’s estate. Roane thereafter died, and the wrongful death action proceeded against Roane’s estate, resulting in a judgment in favor of Roane’s estate.
In the wrongful death action, Smith’s administratrices moved for a partial summary judgment to prevent Roane’s estate from claiming justification or self-defense. The motion was based on argument that Roane’s estate could not raise that defense because it had already been determined that Roane did not intend or expect the injury to occur to Smith and thus his estate could not claim justification or self-defense because inherent in such a position is intent or expectation that Smith would be injured by Roane’s act.
This is not a matter of res judicata which, through doctrines of merger or bar, precludes relitigation of a cause of action. The first cause of action was one in contract seeking a declaration the insurer was not contractually bound to defend Roane or his estate. The second cause of action is that of Smith’s estate against Roane’s estate for wrongful death. We are dealing here with a matter of collateral estoppel or, as the Restatement of Judgments would say in preferable terminology, we are concerned with “issue preclusion” rather than extinguishment of a claim. Restatement (Second) of Judgments § 27 (1982).
Section 27 of the Restatement requires that an “issue” have been litigated in the previous case to be binding in the second case. There is a temptation to speak here in terms of determination of “evidentiary facts” as opposed to “ultimate facts” or “mediate datum” as opposed to “ultimate facts” as do some great opinions in this area of the law. See, e.g., The Evergreens v. Nunan, 141 F.2d 927 (2nd Cir. 1944). We prefer to do as the Restatement comment j. to § 27 suggests, however, and say simply the issue determined in the first case was just not the same as that determined in the second.
The danger in allowing the determination that Roane did not intend or expect the firing of his pistol to injure Smith to preclude him from defending the wrongful death action on the basis of justification is apparent when it is considered that Roane had been physically attacked by someone other than Smith who was a member of a group of persons including Smith. Roane was intoxicated and had been sleeping or trying to sleep in his pickup truck when he was attacked and had his nose bloodied and his glasses knocked off. Roane could have fired his pistol at someone other than Smith, or he could have been firing at no one, j list hoping to scare away his real or perceived antangonists. The point here is that we are not to engage in speculation. The appellants’ burden is to demonstrate that the precise issue on which they claim the court and other parties are bound and which is precluded from being raised was decided in the previous case. JeToCo Corporation v. Hailey Sales Company, 268 Ark. 340, 596 S.W.2d 703 (1980). The appellants have not successfully done so.
That the issue sought to be precluded in the second case is not the same as that of intent or expectation of injury decided in the first case is illustrated by an instruction given by the trial court. The instruction was:
No person shall be civilly liable for actions or omissions by such persons when intended to protect themselves or others from personal injuries during the course of a felony.
The appellants urge this instruction was obviated, and should not have been given, because the intent of Roane not to injure Smith had been determined. However, the intent referred to in the instruction is the intent to protect oneself or others from injury, a very different question from that of intent or expectation of injury caused by one’s act.
The law of the effect of prior adjudiciation seems never to present easy questions. Law professors have trouble thinking of questions as difficult as the one presented here, as they only occur in real life. Both parties presented excellent briefs deserving of our compliments.
Affirmed. | [
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George Rose Smith, Justice.
Under the Youthful Offender Alternative Service Act of 1975, a felony conviction of a person under 26 years of age may be expunged. Ark. Stat. Ann. §§ 43-2339 et seq. (Repl. 1977). The only question here is whether, when such a person later commits another felony, the expunged conviction may be used to enhance his sentence as an habitual offender. Our jurisdiction is under Rule 29 (1) (c). We agree with the circuit court’s ruling that the expunged conviction may be considered.
In February, 1980, the appellant, Don Gosnell, was convicted of two felonies and was sentenced to concurrent three-year sentences under the youthful offender act. In January, 1982, he successfully completed the rehabilitation program, and his convictions were expunged. In 1983, however, he committed a third felony, for which he was convicted in the case at bar, in January, 1984. The trial judge, sitting without a jury, considered the two expunged convictions in sentencing Gosnell as an habitual offender.
Broadly speaking, the statute gives a youthful offender an opportunity to mend his ways and return to free society without the disadvantages of a criminal conviction. Three provisions in the statute are pertinent to the question now before us:
A person who has had two or more previous felony convictions is not an “Eligible Offender” under this Act, and the fact that a felony conviction has been “expunged” shall not render the person an “Eligible Offender.” [§ 43-2340 (f).]
“Expunge” means an entry upon the official records . . . that such records shall be sealed, sequestered, treated as confidential and only available to law enforcement and judicial officials; and further signifying that the defendant was completely exonerated of any criminal purpose and said disposition shall not affect any civil right or liberties of said defendant. The term “expunge” shall not mean the physical destruction of any official records of law enforcement agencies or judicial officials. [§ 43-2340 (g)-]
Upon the expungement of such record, as to that conviction, the person whose record was expunged may thereafter state in any application for employment, license, civil right, or privilege, or in appearance as a witness that he has not been convicted of the offense for which he was convicted and sentenced or placed on probation under the provisions of this Act. [§ 43-2344.]
We think it clear that an expungement does not exempt a youthful offender from responsibility for that offense under the habitual criminal laws. The first section we have quoted carries that implication, for it provides that a youth who has had two or more previous felony convictions is not even eligible for the benefits of the statute and that one who commits a crime after one expungement cannot again qualify for similar clemency.
More important, it is a familiar rule, rooted in common sense, that the legislature’s affirmative statement of the effect of a statute is an implied denial of its having some other effect. The Latin maxim is expressio unius est exclusio alterius. Cook v. Ark.-Mo. Power Corp., 209 Ark. 750, 192 S.W.2d 210 (1946).
The rule applies here. The statute in question provides that (a) an expunged conviction shall not affect any civil rights or liberties of the defendant and (b) he may state in any application for employment, license, civil right, or privilege or in any appearance as a witness that he has not been convicted of the offense. Ark. Stat. Ann. §§ 43-2340 (g) and -2344 (Repl. 1977). It does not state that he is free to commit more felonies without accountability as an habitual criminal.
There is good reason to follow the basic rule of statutory interpretation in this instance. Every benefit extended by this statute is of the type to encourage the offender’s progress toward rehabilitation. That is, a reformed convict should be encouraged to apply for a job, to assert his civil rights, as by registering to vote or running for office, and to discharge a good citizen’s duty to appear as a witness without fear of unnecessary embarrassment. But there is no reason either to encourage him to commit another crime or to believe that the legislature intended to do so. The trial judge was right in refusing to read into the statute a provision that is simply not there and that would actually be contrary to the over-all legislative intent.
Affirmed.
Hickman, Purtle, and Hollingsworth, dissent. | [
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ErauEnthal, J.
The plaintiff below, J. J. T. Kendrick, instituted this suit on October 1, 1907, in the Cleveland Chancery Court for the purpose of confirming a sale of real estate made under and by virtue of a power of sale contained in a mortgage executed to him by W. J. Morgan, one of the defendants; and also to cancel a deed executed by said mortgagor to his two sons, George and Frank Morgan, the other defendants herein. On January 24, 1896, W. J. Morgan for a valuable consideration executed to the plaintiff his note for $563.95 due January 1, 1897, and bearing ten per cent, interest per annum from date until paid, and on the same day to .secure the payment of said note executed to plaintiff a mortgage on the -land in controversy. The mortgage was duly filed for record in April, 1896. The plaintiff alleged that payments were made by the maker on the note as follows: January 15, 1901, one dollar; July 7, 1902, two dollars; and that on June 11, 1906, the plaintiff indorsed a memorandum of said payments on the margin of the record of said mortgage, which was then duly attested. In May, 1906, the plaintiff sold the land under the power of sale contained in the mortgage; and in making said sale he complied with the terms of said mortgage and all requirements of the law. The plaintiff became the-purchaser at that sale, and, although the period for redemption had expired, he did not execute a deed to himself under the sale for the reason that he did not think he had that power. He credited the amount of the bid upon the note; and on November-1, 1906, instituted a suit in the Cleveland Circuit Court against the defendant, W. J. Morgan, for the balance of said note. In. that suit said Morgan denied making the above payments and pleaded the statute of limitation. Upon a trial and verdict of a jury a judgment was rendered in that case in favor of the plaintiff and against the defendant W. J. Morgan for the sum of $639.23 as the balance due on said note. On April 3, 1905, W. J. Morgan conveyed the said mortgaged land to his said two sons for the alleged consideration of $400; and this deed was filed for record on June 19, 1906. The plaintiff seeks to set aside said deed on the ground of fraud.
The defendants in their answer denied all allegations of payments and of fraud, and claimed that by reason of the failure to indorse the alleged payments on the margin of the record of the mortgage until after the note appeared to be barred by limitation and until after the execution of said deed the mortgage was invalid as to the defendants, George and Frank Morgan.
The chancellor found that the note was not barred by limitation; that the mortgage sale of the land was regular in all re spects; that the alleged conveyance made by the mortgagor to the other defendants was fraudulent. He entered a decree, cancelling said deed and confirming the sale under the mortgage and quieting the title in plaintiff; and directed a commissioner of the court to execute a deed to plaintiff for the land.
In accordance with the pleadings the chancellor in said decree also reformed the description of a small portion of the land. From this decree the defendants have appealed to this court.
The sole defense in this suit is made by the defendants George and Frank Morgan, who claim an unincumbered title to the land by virtue of the conveyance from their father. Neither in the answer of the defendant W. J. Morgan, nor in the brief of appellants, is it contended that the said note secured by the mortgage is barred by the statute of limitation. The evidence sustains the finding of the chancellor that payments were made thereon by the maker as above set forth, and that on that account the note was not barred. That issue was also determined by the judgment of the Cleveland Circuit Court in the above mentioned suit founded upon said note. As is said in the case of National Surety Co. v. Coates, 83 Ark. 545, “a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery can not be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question or fact, once so determined, must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.” 12 Cyc. 1215.
The judgment of the Cleveland Circuit Court involved the question as to whether said note was barred, and it therefore became conclusive against the defendant W. J. Morgan and prima facie evidence against the other defendants; and with the other testimony in the case fully sustains the finding of the chancellor that the note was not barred.
But the defendants, who are the grantees in said deed, contend that on April 3, 1905, when they obtained said deed, the plaintiff had not made any indorsement of the payments on the margin of the record of said mortgage; and that therefore their rights could not be affected by the payments. Section 5399 of Kirby’s Digest provides: “In suits to foreclose or enforce mortgages or deeds of trust, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given. Provided, when any payment is made on any such existing indebtedness before the same is barred by the statute of limitation, such payment shall not operate to revive said debt to extend the operations of the statute of limitation with reference thereto, so far as the same affects the rights of third parties, unless the mortgagee, trustee or beneficiary shall, prior to the expiration of the period of the statute of limitation, indorse a memorandum of such payment with date thereof on the margin of the record where such instrument is recorded, which indorsement shall be attested and 'dated by the clerk.”
The effect of that statute, as to strangers to the transaction, is that when the debt secured by a mortgage is apparently barred by limitation, and no payments which would stay the limitation is indorsed on the margin of the record of the mortgage, it becomes as to such third parties an unrecorded mortgage; and like an unrecorded mortgage it constitutes no lien upon the mortgaged property, as against such third party, notwithstanding he has actual knowledge of the execution of such mortgage. Jacoway v. Gault, 20 Ark. 190; Jarratt v. McDaniel, 32 Ark. 598; Neal v. Speigle, 33 Ark. 63; Ford v. Burks, 37 Ark. 91; Dodd v. Parker, 40 Ark. 536; Martin v. Ogden, 41 Ark. 186; Wright v. Graham, 42 Ark. 140; Hill v. Gregory, 64 Ark. 317.
But an unrecorded mortgage is still good and binding between the parties. It constitutes a valid lien on the property, except as to the legal rights of third parties. Conner v. Abbott, 35 Ark. 365; Applewhite v. Harrell Mill Co., 49 Ark. 279; Hampton v. State, 67 Ark. 266; Rhea v. Planters’ Mutual Ins. Assn., 77 Ark. 57.
The mortgagor can not defeat the binding lien of an unrecorded mortgage by placing the title to the property in another for his benefit, nor by giving the property away. As is said in the case of Leonhard v. Flood, 68 Ark. 162: “As to one holding the property by a conveyance entirely voluntary, it would be presumed that the conveyance was made subject to the mortgage.” The conveyance therefore by a mortgagor to a third party with the fraudulent purpose of defeating the mortgage, and without an actual and bona fide consideration, would not relieve the property of the lien of a valid mortgage, although unrecorded. Leonhard v. Flood, supra.
Now, in this case it appears that the father conveyed to his two sons the mortgaged land. The deed was executed in April, 1905, but the evidence tends to prove that it was still retained by the father and undelivered; and after the mortgagee proceeded to make sale of the land under the mortgage in May, 1906, the father placed the deed on record on June 19, 1906. The two sons were young men who were members of the father’s family, and the evidence does not show that they had any property. They knew of the mortgage which their father had executed to the plaintiff on the land, and knew that it was unpaid. The deed recites that the consideration of $400 was paid for the land, but the defendants testified that as a matter of fact it was not paid. They claim that they had executed a note therefor, but they and their father testified that they had never seen the note since its execution, and did not know when it matured; and this testimony was given three years after its alleged execution. The note was not paid, and was not produced; and finally the father stated in his testimony: “If they pay me for it, it is all right; and if they never pay for it, it is all right, of course.” No other person testified to seeing the deed prior to the date it was filed for record; and no other person testified as to the note. It was claimed that “about $50” was paid along on the note, but no statement is made as to when or in what manner such alleged payments were made. The circumstances thus surrounding this deed and the alleged transaction between father and sons are sufficient to arouse suspicion and to throw doubt upon them as legitimate contracts. The circumstances of this case and the relation of the parties make out a prima facie case of fraud which impeaches the consideration of the deed, which has not been overcome by any testimony in the case. Leonhard v. Flood, 68 Ark. 162; Wilks v. Vaughan, 73 Ark. 174; McConnell v. Hopkins, 86 Ark. 225; 20 Cyc. 439.
The chancellor made a finding that this alleged conveyance by the father, W. J. Morgan, to his sons was not bona fide, but was colorable and fraudulent. The evidence sustains the finding of the chancellor and the conclusion that the deed was in truth and in effect a voluntary conveyance. It therefore follows that this deed did not relieve the land of the valid lien which existed on the land by virtue of said mortgage, and that the conveyance from W. J. Morgan to his sons, George and Frank, is subject to said mortgage. And, inasmuch as the land has been sold under said mortgage and the period for redemption has expired, said deed should be removed as a cloud from the title to said land.
The land was sold in accordance with law and the provisions of the mortgage, and it therefore vested in the purchaser an equitable title, although no deed was made. Daniel v. Garner, 71 Ark. 484. The chancellor was therefore right in quieting the title to the land in the plaintiff and directing a deed to be made to him. Kirby’s Digest, § 6318.
Finding no error in the decree of the Cleveland Chancery Court, it is in all things affirmed. | [
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Hart, J.
M. C. Townley, Geo. C. Peters and E. L. Pierce, partners under their firm name of Michark Manufacturing Company filed their complaint in the Crittenden Chancery Court against W. M. Sidle to enjoin him from further injuring or attempting to destroy a temporary dam they had erected on the real estate described in the complaint. The complaint was filed on the 10th day of March, 1908, and in substance alleges that the Pierce-Williams Company, a Michigan corporation, had purchased from the defendant and other landowners all the timber on the lands described in the complaint, and had received deeds therefor; that the Pierce-Williams Company had conveyed by deed all its right and interest to the plaintiffs. The deeds, omitting the formal parts, contain, arhong others, the following covenant: “We further grant to the said Pierce-Williams Company and to their successors and assigns the free right of ingress and egress to and from said land over any other land owned by us or either of us (except land in cultivation) for the purpose of removing said timber or the products thereof to the railroad to the St. Louis & San Francisco Railroad Company, or for the purpose of operating a logging or manufacturing business on said land.” That, pursuant to the terms of said timber contract, plaintiffs had cut about 300,000 feet of cypress logs. That they had constructed in a slough or watercourse upon said lands a temporary dam for the purpose of enabling them to float said logs to a point where they could be conveniently removed and loaded upon the cars. That on the 29th day of February, 1908, the defendant cut and' destroyed said dam, thereby disabling plaintiff from further floating said logs. That defendant has threatened to again cut said dam if it is rebuilt. and that unless he is restrained from so doing he will completely demolish and destroy said dam.
A temporary injunction was granted restraining defendant from further interference with the dam.
The defendant admitted cutting the dam, but interposed as set out by his counsel in his abstract the following defenses, viz:
First. That the dams in question were a nuisance, both of a public and private nature.
Second. That the plaintiffs had no right, by contract or otherwise, to erect said dams or maintain them. That said dams were not temporary dams as alleged, but were intended to stand either permanently or long enough to inflict irreparable injury upon defendant.
Third. That the dams flowed the water back upon him and rendered his lands unfit for cultivation.
Upon final hearing of the cause, the chancellor found the issues in favor of the plaintiffs; and a decree was entered perpetually restraining defendant from destroying or attempting to destroy the temporary dams of the plaintiffs on the real estate described in the complaint and set forth in the decree.
The defendant has appealed.
By the terms of the deeds the title to the timber on the lands in controversy became vested in the plaintiffs. In express terms, they were given the free right of ingress and egress for the purpose of removing said timber or the products thereof. The only exception made to this grant was that they should not for this purpose use the cultivated lands. The clause in the deed above quoted, we think, gave plaintiffs the right to float the logs out upon the watercourses upon the lands, as well as to haul them away by land. The only restriction would be that they must not injure the defendant in so doing.
It is claimed by the defendant that the dam caused the water to rise in the slough, and that it was thus backed over his adjoining lands, overflowing those in cultivation and preventing him from clearing other land; for which he already made a contract.
On the other hand, the plaintiffs claim that the dam was so constructed that it could only raise the water five inches, and that when it rose higher than five inches it would flow over and around the edges of the dam. They claim that it was necessary for them to raise the water in the slough five inches in order that they might at all times have sufficient water to float the logs. They adduced testimony tending to establish their contention, and to show that they had carefully measured the stage of the water before and after the dam was constructed, and that after the dam was constructed the water was never raised more than five inches; that the opening left at the ends was sufficient to carry away all water in times of flood in excess of that. Their evidence also tended to show that they had examined the lands of the defendant after the erection of the dam, and that the water had not been raised sufficient to overflow or to injure them.
The evidence for the defendant contradicted their testimony, but the chancellor found the issue in this respect in favor of the plaintiffs, and we can not say that his findings are against the weight of the evidence.
It has been so often held that a chancellor’s finding of fact will be sustained on appeal unless against the preponderance of the evidence that a citation of any adjudicated cases on that point is not necessary. No useful purpose could be served in setting out in detail the evidence on the facts. It is sufficient to say that we have carefully examined it.
We find no prejudicial error in the record, and the decree is affirmed. | [
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Wood, J.,
(after stating the facts). First. The landlord and tenant both testified that the articles of supplies sued for on’ the account were furnished to enable the,tenant to make the crop. The supplies were furnished for that purpose. That is all the statute contemplates. The fact, if proved, that the tenant could or could not have made the crop without other supplies than those furnished by appellees would not tend to show that they had not furnished supplies to enable the tenant to make the crop, or that the supplies furnished by them were unnecessary.
The court did not err in refusing to permit the witness to answer the questions propounded.
Second. After Burrus refused to permit appellees to apply the cotton on their account against him for supplies, appellees had no longer the right to retain possession of the property.
And after Burrus had delivered the cotton to appellant at appellees’ gin the remedy of appellees to have their lien declared and 'enforced was by specific attachment of the cotton in the hands of appellant as prescribed in sections 5040 and 5041, Kirby’s Digest. Upham v. Dodd, 24 Ark. 545; Reavis v. Barnes, 36 Ark. 575; Knox v. Hellums, 38 Ark. 413.
The conduct of Burrus in refusing to allow appellees to apply the cotton on his account for supplies with them, and his delivery of the cotton to appellant, constituted grounds for attachment under sections supra.
Appellees brought suit in the justice’s court, alleging the facts constituting their lien, but without asking for the writ of attachment to seize the property. The attachment was only an incident to the suit, and was a method prescribed for impounding the property. It could have been issued after the suit was begun in the justice’s court or afterwards in the circuit court on appeal.
But appellant brought suit in the circuit court against appellees, before their lien expired, to replevy the cotton, and thus the cotton was impounded in the hands of appellant through the process of the circuit court, to which court the cause that had originated in the justice’s court had gone up on appeal. The consolidation of the causes brought the issue before the court as to whether appellees were entitled to judgment for their claim, and also as to whether they were entitled to the possession of the property. Appellant has urged no objection to the consolidation here.
The facts constituting appellees’ claim and lien were alleged and proved. The court might have rendered judgment in their favor, and then directed execution to be levied on the cotton if ' still in the hands of appellant.
The appellant having taken possession of the cotton under bond, the court did not err in rendering judgment against appellant for the cotton or its value in the sum of $100. This sum did not exceed the amount for which appellees were entitled to judgment against Burrus.
While the proceedings were irregular, they were not prejudicial, and the instruction given at the request of appellees was not prejudicial error. All parties in interest were before the court.
The court had jurisdiction, and no other result, in justice, under the law and evidence, could have been attained. Appellant could not recover possession of the property from appellees without tendering the amount due them, for the lien of appellees was superior to that of appellant. Tomlinson v. Greenfield, 31 Ark. 557; Buck v. Lee, 36 Ark. 525. See also Pape v. Steward, 69 Ark. 306; Noe v. Layton, 69 Ark. 551, as to innocent purchaser of tenants’ crops.
We find no evidence in the record to warrant the giving of the prayers of appellant for instructions. The judgment is correct.
Affirmed. | [
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Hart, J.
The Moran Bolt & Nut Manufacturing Company brought suit in the circuit court of Sebastian County for the Greenwood District to enforce a lien for materials furnished to Mike Kelley in the construction of the Midland Valley Railroad. On appeal this court held:
“The judgment in this case was correct in form in fixing a lien on all the property of appellant railroad in the State of Arkansas, but it was erroneous in allowing that lien to be made up of material furnished and used in the construction of appellant’s road in the Indian Territory.” Midland Valley Rd. Co. v. Moran Bolt & Nut Mfg. Co., 80 Ark. 399.
Upon a new trial of the cause, the circuit court sitting as a jury found that $1,794.21 for the material furnished by plaintiff entered into the construction of the road in the State of Arkansas ; that $913.35 had been paid upon the same, leaving a balance of $880.86, for which plaintiff was entitled to a lien on defendant’s road; and from that judgment this appeal is taken.
It -is earnestly insisted by counsel for the defendant that the testimony shows that materials of the value of $1,517.58 and no more were used in the construction of defendant’s railroad in the State of Arkansas; and that, after deducting the credits of $913.35, the judgment of the court should have been for $604.23 instead of $880.86.
It has always been the settled rule in this State that the findings of the circuit court sitting as a jury are equally as conclusive in this court as the verdict of a jury. The rule has been recognized and followed so often as to render a citation of authorities unnecessary.
Mike Kelley, the sub-contractor, in his testimony says that all the shipments of material consigned to him at Montreal, Arkansas, were used'in the construction of the road in the State of Arkansas. He undertakes to give the date and amount of each shipment, and in the aggregate they amount to $1,794.21. While his testimony is considerably weakened by cross-examination, and is contradicted by that of the engineer for the railroad company, who made an estimate of the amount that was so used, we cannot say that there was no evidence to support the finding of the court.
Counsel for appellant also urges that the court erred in not sustaining its plea of the statute of limitations. ITe contends that each order was a separate contract, and that the lien accrued as each separate order was furnished.
In the case of the Kiser Lumber Co. v. Mosely, 56 Ark., p. 547, in discussing the time in Which the lien should be filed in cases where there was no specific agreement as to the amount to be furnished or the time within which they were to be furnished, and where there was reasonable expectation that further material would be required, the court said: “In such a case, if the materials were furnished at short intervals, and were appropriate to the condition and progress of the building, a presumption would arise that it was understood from the beginning that the ‘material man was to furnish the same’ for the construction of the building as the same should be required; and the account therefor should be considered as one continuous account and one demand; and the last item thereof would be ‘the date from which the limitations of the time of filing should be taken.’ ”
We think the evidence in this case was sufficient to bring the case within the principles there announced. There was a continuous dealing under the contract. The materials were furnished from time to time on bank account. There was, during the entire time that the materials were being furnished, a reasonable expectation that more would be required for use in the construction of the railroad, and that the plaintiff would be called upon to furnish the same. Hence the court was warranted in finding that the various orders for materials constituted a running account, and was therefore one entire demand, which accrued only when the last item was furnished. Phillips on Mechanics’ Liens (3d Ed.), § 325; Jones on Liens (2d Ed.), vol. 2, § § 1435 and 1436, and cases cited.
Finding no prejudicial error in the record, the judgment will be affirmed. | [
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FrauenThal, J.
The defendant, Frank Maloney, was convicted of the crime of uttering a forged writing, and sentenced to the penitentiary for a term of two years; and from the judgment of conviction he prosecutes this appeal. The indictment upon which he was tried, with the caption omitted, was as follows:
“The grand jury of Ouachita County, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant, Frank Maloney, of the crime of uttering a forged writing, committed as follows, towit:
“The said defendant, on the 9th day of' April, 1909, in Ouachita County, Arkansas, did unlawfully, wilfully and feloniously utter and publish as true to Spence Wooley a certain forged and counterfeit writing on paper purporting to be a check on the Bank & Trust Company of Walnut Ridge, Arkansas, in words and figures as follows, towit: ‘Walnut Ridge, Ark., April 8, 1909, No. 614. Bank & Trust Company: Pay to the order of George Collins $6.17, six seventeen (6.17) dollars, C. B. McDonald.’
“The said forged writing being then and there passed, uttered and published by the said Frank Maloney to the said Spence Wooley, with intent then and there feloniously to obtain possession of money, the property of said Spence Wooley, he, the said Frank Maloney, then and there well knowing the said paper to be forged and counterfeited; against the peace and dignity of the State of Arkansas.”
The evidence tended to establish the following facts: On April 9, 1909, the defendant, in company with a person' named Harris, entered the restaurant of one Spence Wooley in the city of Camden, Arkansas, and ordered supper. After finishing the meal, he gave to Spence Wooley the written instrument or check set out in the above indictment, and requested him to cash same, and to take therefrom the amount necessary to pay foi the supper. Not having sufficient money to cash same, Wooley carried it to Mr. Harper and requested him to cash it, which he declined to do. He then showed the check to a policeman, who suggested that he see if the party had the money at the bank. Wooley then returned to defendant, and told him that he was unable to get the check cashed. The defendant then stated that he only had fifteen cents, and asked his companion, Harris, for some money, who did not have it. About that time the policeman appeared and arrested the defendant. Wooley was not acquainted with defendant, nor with his companion, and had not seen either of them before. The cashier of the First National Bank of Walnut Ridge testified that his said bank became the sue cessor of the Bank & Trust Company of Walnut Ridge, Arkansas, in February, 1909, a short time before the alleged commission of this offense, and that the balances of deposits due all parties, as appeared on the books of the Bank & Trust Company, were transferred to the books of the First National Bank; and that his said bank had no deposit in the name of C. B. McDonald, and had no customer by that name. There was no other testimony relative to C. B. McDonald, the alleged drawer of the check, or as to his alleged signature; and no testimony whatever to as to George Collins, the alleged payee in the check.
It would appear from the testimony that there had been an examining trial of the defendant before a justice of the peace, and at that trial the party called Harris had been a witness. At the trial of the defendant in the circuit court the policeman, W. N. Ketchum, testified, over the objection of the defendant duly saved, that he had taken from the possession of Harris on said April 9th a little book, which book had been exhibited to the cashier of said First National Bank, and who stated that it was the kind used by the Bank & Trust Company. Over the objection of the defendant this witness, Ketchum, also .testified that at the examining trial of defendant the party Harris testified that defendant signed a check while sitting in a hotel in Camden. •There was no testimony as to where the person Harris was' at the time of the trial in the circuit court. There was no testimony that any inquiry had been made for him or any effort to obtain his presence at the trial.
The defendant filed a motion in arrest of judgment on the ground that the indictment does not allege facts sufficient to constitute an offense. The crime of uttering a forged writing consists in offering to another a forged instrument with a knowledge of the falsity of the writing and with intent to defraud. Those essential elements of the crime are well charged in ■ the indictment. To constitute the offense, it is not necessary that the writing should have been actually received as genuine by the party to whom the same is offered, or that the attempt to defraud be successful; the uttering is complete if the forged instrument is offered as genuine, or declared or asserted, either directly or indirectly, by words or by actions as good. Wharton’s Criminal Daw (10th Ed.) § 708; 5,Ency. of Evidence, 865; Elsey v. State, 47 Ark. 572; People v. Caton, 25 Mich. 390; State v. Horner, 48 Mo. 520; Smith v. State, 20 Neb. 285; 13 Am. & Eng. Ency. Law (2nd Ed.) 1102; 19 Cyc. 1388; Holloway v. State, 90 Ark. 123.
The instrument set out in the indictment was capable of working a legal injury. Although not indorsed by the alleged payee in the instrument, it had legal efficacy. The gravamen of the offense is t'he guilty intent which accompanies the attempt to defraud. As said by Mr. Bishop: “Since the offense of uttering is an attempt, it is complete when the forged instrument is offered; an acceptance of it is unnecessary, while yet it does not take away or - diminish the crime.” 2 Bish. New Crim. Eaw, § 605. If one, with intent to defraud, offers a forged instrument to another which is capable of injury, he has committed this offense, although t'he person to whom it is offered might not accept it without a written assignment. But in the' instrument set out in the indictment one might obtain a right or an equitable title without a written assignment. Smith v. State, 20 Neb. 284; Lawless v. State, 114 Wis. 189; Brazil v. State, 117 Ga. 32. And the check could be transferred without a written assignment thereof so as to malee the transferee the true owner thereof. Heartman v. Franks, 36 Ark. 501; Lanigan v. North, 69 Ark. 62.
It is urged by the defendant that there is not sufficient evidence to sustain the verdict, for the reason that it is not proved that the name of C. B. McDonald, affixed to the check as the alleged drawer, was a forgery. In a prosecution for uttering a forged writing, before there can be a conviction, the State must prove that the instrument offered was forged, and that the defendant knew it was forged. It is true that no witness testified that this was not the signature of C. B. McDonald; but if C. B. McDonald was a fictitious person, and such name was signed to the instrument, then it would be a forged writing. “To constitute forgery the name alleged to be forged need not be that of any person in existence. It may be wholly fictitious.” 13 Am. & Eng. Ency. Eaw (2nd Ed.) 1088. It is for the jury to determine under the evidence whether the person whose name appears signed to t'he instrument is a real or fictitious person. If they should find upon evidence that the name was of a fictitious person, then the inference arises that the person who utters and publishes such instrument as true either forged the same or knew it to be forged. Williams v. State, 126 Ala. 50; Brewer v. State, 32 Tex. Crim. Rep. 74; Davis v. State, 34 Tex. Crim. Rep. 117; State v. Vineyard, 16 Mont. 138.
And it is competent to show that the person whose name is affixed to a check as drawer is fictitious by the evidence of the proper officer of a bank upon which such check is drawn that no person bearing such name kept or had an account with such bank or was a customer of such bank. 2 Greenleaf on Evidence, § 109; Barnwell v. State, 1 Tex. Cr. Appeals, 745; Williams v. State, 126 Ala. 50.
But in the case at bar the official of the bank did not testify that the name of C. B. McDonald did not appear on the books of the Bank & Trust Company, the bank upon which the check was drawn, or that that bank never had such a customer. The witness, C. W. White, testified that he was cashier of the First National Bank, which had succeeded the Bank -& Trust Company ; and while he also testified that the names of all depositors of the Bank & Trust Company with balances were transferred to the books of the First National Bank, and that the name of C. B. McDonald did not appear on these latter books, still this would not necessarily prove that such a person had not been a depositor of the Bank & Trust Company, for there may have been such a customer of that company, who, though not having a balance to his credit, may have issued this check, either in ignorance of the exact condition of his account or by way of overdraft. Nor was there any testimony introduced that diligent inquiry or search had been made for such person in that community and within the territory in which the Bank & Trust Company had business relations, and that such person was not known, in order to show that the name was of a fictitious person.
It therefore follows that the above testimony of the cashier was not sufficient to show that the name affixed to this check was fictitious, and thereby to raise the inference that it was •forged and so known by the defendant who uttered it.
At the trial of the cause the court permitted the witness W. N. Ketc'hum to testify that at the examining trial of the defendant a party by the name of Harris was a witness, and that said Harris testified in the presence of defendant that the defendant signed a check in the hotel in the city of Camden; and also to other statements of Harris made at the examining trial tending to incriminate the defendant. Now, this testimony was admissible only on one of two grounds:
(1) On the ground that this was a damaging statement made in the presence of the defendant, and because he did not then and there deny the same, his silence can be used as evidence against him. But, as is said in the case of Bloomer v. State, 75 Ark. 297, “to render such evidence competent, it must be shown that the accused heard the remark, and that the circumstances in proof naturally called for a reply on his part.” The statements made by Harris were in the course of giving testimony in court. The circumstances 'did not call upon the defendant to deny them and there in the presence of the court make a reply; and under the statute of our State he was not even required to afterwards take the stand as a witness and deny the statements. This testimony was not therefore under the circumstances of this case admissible on fhe ground that the statements were made in the hearing of the defendant without reply or denial from him.
(2) And this testimony was not admissible on the ground that it was proof of the testimony of an absent witness given on a former trial. Before such testimony can be heard, a sufficient foundation must be laid for its admission. It must be first shown that such absent witness is dead, beyond the jurisdiction of the court, or upon diligent inquiry cannot be found. Pope v. State, 22 Ark. 372; Shackelford v. State, 33 Ark. 539; Green v. State, 38 Ark. 305; Vaughan v. State, 58 Ark. 353; Harwood v. State, 63 Ark. 130. The record in this case fails wholly to show that the whereabouts of Harris were unknown, or that he was out of the jurisdiction of the court, or that any inquiry whatever had been made for him. It follows, therefore, that this evidence as to the testimony and statements made by the party Harris was inadmissible. That its admission was highly prejudicial follows from the character of this alleged testimony by which the essential element of the charge against the defendant would be established. By this incompetent testimony the State attempted to prove that the defendant himself wrote the check, and himself forged the name of C. B. McDonald thereto; and which he thereafter uttered. The admission of this evidence was therefore erroneous.
The judgment of the Ouachita Circuit Court herein is reversed, and this cause is remanded for a new trial. '
Battle, J., absent, and not participating. | [
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Wood, J.,
(after stating the facts.) We will consider the questions in the order presented in the motion for new trial.
1. It was not error to exclude the offered testimony of the messenger boy that he was told by Hennessy that Sockwell was stopping at the Hotel Main. It was not shown that it was the duty of the boy in charge of the “hotel ’phone switch-board” to give information of the persons stopping at the hotel. Even had it been shown that appellee was at the hotel, the offered evidence did not tend to prove that it was the duty of the ’phone boy to receive messages sent to the patrons of the hotel, or to give any information concerning them. The offered testimony was pure hearsay.
2. The testimony of appellee that his father had given him forty acres of land, and that he had not visited his father more because he was financially unable to do so, was not prejudicial error. The connection in which this evidence was elicited shows that its purpose was not to show appellee’s poverty or financial condition, as appellant contends, but to show the state of feeling, the affection, that existed between father and son.
3. There was no error in refusing to allow the witness Stannard to testify as to the proper or usual method of attempting to find an addressee when no further address was given than the name and town. This witness testified “that there was a city directory in appellant’s office in Fort Smith, much worn by use, which contained the name and address of plaintiff.” It could not be said, in view of this evidence, that the name and address of appellee were unknown to appellant. It shows that his name and address were at hand in the directory. But, instead of consulting this, appellant proposed to show what was the usual custom, and that it followed that custom. In view of the above evidence, no matter if there was such a custom as appellant offered to prove, it was palpable negligence on the part of appellant to follow the custom, instead of taking the positive information in its possession. Any evidence which tended to show that appellant failed to consult and follow this certain information, but instead resorted to some other method less definite, would necessarily show negligence on the part of appellant.
4. In view of the fact that appellant showed that it had the name and address of appellee at the time the message to him was received at Fort Smith, it was not-error for the court to refuse the prayers of appellant to have the question submitted to the jury as to whether the sender of the telegram had given such correct address as would enable .appellant by the exercise of ordinary care to deliver the message. It follows that prayers of appellant numbered 1, 2, 3 and 4 on the subject of the negligence of the sender and prayers numbered 5 and 6 on the subject of the custom of delivering telegrams were properly refused. It follows also that prayers numbered 2 and 3 given at appellee’s request were more favorable to appellant than was warranted by the undisputed evidence. Appellant can not therefore complain of these. Appellant having the name and the correct address of the addressee of the message, as its own evidence shows, was in no position to claim that appellee was negligent in not giving a more definite address. Appellant failed to exercise ordinary care to ascertain where the addressee could be found, which it might have easily done by consulting the city directory in its hands.
5. Appellant contends that the first instruction given at the instance of appellee is erroneous in ‘assuming that plaintiff had a known residence at Fort Smith at the time of this occurrence.” The instructions left to the jury to determine from a preponderance of the evidence as to whether or not appellee had a known residence in the city of Fort Smith, which was really more favorable to appellant than it had the right to ask on this question, for the undisputed evidence of appellee is that in April, 1905, “he came to Fort Smith and entered the service of the street car company, with whom he has ever since remained.”
Appellant also contends that the instructions assume that appellee had suffered some mental anguish on account of his inability to be with his father, when that was a question for the jury. The evidence was that the relations between appellee and his father “were those of affectionate father and son.” It was not prejudicial error to assume that an affectionate son would suffer mental anguish by being deprived of the opportunity of being with his father in his last illness.
The contention here that there was no evidence to show when appellee’s father died, and therefore no evidence to show that appellee would or could have reached him before his death had the message been promptly delivered, is borne out by the record. But one of the grounds for which a verdict may be vacated and a new trial granted is as follows: “The verdict is not sustained by sufficient evidence.” Sec. 6215, Kirby’s Digest, subdiv. “sixth.” The motion for new trial contains no such ground. Had the attention of the trial court been called specifically to this in the motion for new trial, we would then be in position to say that the court had erred in overruling the. motion. But on review here we reverse only for errors in the rulings of the lower court. Therefore it must be held that the failure of the appellant in its motion for a new trial to object to the sufficiency of the evidence to support the verdict was a ■ waiver of such ground there and here. The trial court was not given the opportunity to set aside the verdict on the ground that there was no evidence to sustain it. Moving for new trial waives all exceptions taken at the trial and not incorporated in the motion. 1 Crawford’s Digest, “Appeal and Errors,” p. 122, IVb, where the cases are collated. Therefore appellant cannot succeed upon his contention, raised here for the first time, that the evidence does not sustain the verdict.
Opinion delivered October 18, 1909.
Finding no reversible error, the judgment is affirmed. | [
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McCurroch, C. J.
This case involves the construction of an act of the General Assembly of 1905, entitled “An act to regulate water, gas and electric companies in cities'of the first and second class,” the first two sections of which, read as follows :
“Section 1. That all persons, partnerships or corporations owning or operating any company or enterprise for the furnishing of water, gas or electricity to the general public, in cities of the first and second class, in the State of Arkansas, in case they furnish meters to their patrons for the purpose of measuring such water, gas or electricity (and in cities of the first class such meters shall he furnished upon demand without charge), are hereby required to supply printed tables to their patrons semiannually, on the first day of January and July of each year, which said tables shall show the price charged per thousand units for such water, gas or electricity.
“Section 2. That all such wafer, gas or electric companies shall base their charges for such commodities upon the reading of said meters, and shall charge for same as per printed tables supplied patrons, and bills or statements rendered patrons shall show the number of units charged for.”
The third section of the act prescribes a penalty against a company violating its provisions. Acts 1905, p. 701.
This controversy between appellant company and appellee, a resident of the city of Little Rock, arises over the attempt of the former to impose on the latter, before connecting his residence with the lighting plant so as to furnish it with electric current, a contract binding the latter to the following stipulation: “It is expressly understood and agreed that a minimum monthly charge of $1.11 for each separate month shall be paid, covering readiness to serve expense; but if the quantity of electricty consumed each month shall amount to said sum, no readiness to serve charge will be made.”
Counsel for appellant contend that the act in question does not attempt to regulate charges for service, and that under a proper construction of its provisions the company is entitled, if it sees fit, to make an uniform minimum monthly charge against customers, sufficient to compensate it for its outlay and expense in keeping its machinery and appliances in readiness to adequately supply them with light at any moment. On the other hand, counsel for appellee contend that the act limits the charges to the actual readings of the meter, and that no charge can be made except for the quantity of current actually consumed, according to the rates fixed for all customers.
The act is in derogation of the right of freedom of contract, and should be strictly construed. Watkins v. Griffith, 59 Ark. 344; St. Louis & S. F. Rd. Co. v. Cooksey, 70 Ark. 481.
The first section is somewhat ambiguous, and the most that can be made out of it is that, in cities of the first class, com panies or concerns operating the business of furnishing water, gas or electricity to the public must furnish meters to patrons free of charge, and publish, in the manner prescribed, tables of prices charged per thousand units. The second section provides in substance that charges for such commodities shall be based on readings of the meters, and shall be in accordance with the published tables.
A close analysis of the statute does not discover any attempt to regulate charges further than to require publicity and uniformity. The manifest design of the act is to provide, means whereby the consumer may be informed as to the exact charge for service, and to require uniformity of charges against all customers using like quantities of the commodity. Nowhere does this statute attempt to say that persons using different, quantities of the commodity in a given time must be charged the same price per thousand units, nor that a minimum charge per month for service may not be imposed.. The Legislature did not intend to compel the company to put in a meter and hold itself, in readiness to serve those who use none of the commodity to be supplied, and the language of.the act does not warrant the construction that the fixing of the minimum charge was to be forbidden. If that had been intended, it could have been clearly expressed. So it matters not whether it be termed a “readiness-to-serv-e charge,” or a “minimum rate charge,” it amounts to the same thing, and is not forbidden by the language of the statute. The fact that the chage for meters is expressly forbidden negatives, under the maxim expressio unius est exclusio alterius, any intention to forbid any other charge uniformly made against all patrons using the same quantity of the commodity.
A regulation of the charges for such service should be just to the company as well as to all patrons, so as to allow compensation to the former and reasonable, uniform rates to the latter, according to the amount of the commodity consumed. One class of patrons should not be favored at the expense of another. And we do not hold that a regulation of charges, based exclusively on the number of units of the commodity consumed, and confined to a fixed charge for each given number of units consumed, would not be sustained if found to be just to the company and all its patrons. The Legislature has not, we think, attempted to do that.
The decree is reversed, and the cause remanded with directions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.
Battle, J., absent and not participating.
Wood, J., dissenting. | [
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Wood, J.,
(after stating the facts). The appellant contends that, notwithstanding a family relationship may have existed between him and the appellee, he was entitled to recover if the facts show an implied agreement to pay him for his services, and he contends that the conduct of the parties, as shown by the evidence, raises an implied agreement, which rebuts the presumption that his services were gratuitous. He further contends that instruction number 1 takes away from the consideration of the jury any evidence of an implied agreement. There is really no evidence of any implied agreement in the record. The agreement, according to the testimony of both appellant and appellee, was express, and the effect of it was that appellee should receive appellant into his household as a member of. his family, and that if appellant remained until he reached his majority he should receive a horse, bridle and saddle and eighty acres of land. After this, when the parties differed about some work, and agreed to sever the quasi family relationship before appellant reached his majority, the agreement was that appellee should pay appellant one hundred dollars in cash for the services already rendered, which appellant accepted; and thereupon left appellee’s home, thus abandoning the contract as to horse, bridle and saddle and the eighty acres of land. These facts are established by the uncontroverted evidence, and the court therefore did not err in giving instruction number 1, even if it was meant by it to ignore any implied contract. But instruction number three, given at the request of appellant, did submit to the jury the question as to whether there was an implied contract to pay for appellant’s services. Taking the two instructions together, their purport was to tell the jury to find for appellant if they believed from the evidence that there was either an express or implied contract to pay for his services. Instruction number three given at the request of appellant gives him the benefit of an implied agreement if there was one, and was more favorable to him than the evidence warranted.
There was really no evidence to' justify the court in submitting to the jury the questions of the right of appellant to recover upon a “quantum meruitfor the uncontroverted evidence shows an express contract for services which had been fully executed. The appellant had done the work, and had received the one hundred dollars, in addition to the necessaries and other valuable consideration given him by appellee. There is no allegation of fraud against appellee in dealing with appellant, and there is no evidence that the amount paid by appellee for the services of appellant was not reasonable under all the circumstances of his employment. Certainly, there was no evidence to show that the amount in necessaries and money received in consideration for his services was so unreasonable as to be evidence of fraud or undue advantage. Appellant did not even ask that such question be submitted to the jury. An infant is bound by the terms of his contract for services which he has executed without dissent, provided such contract, under all the circumstances of his employment, is reasonable, or not so unreasonable as to be evidence of fraud or undue advantage. Judge Cooley, in Spicer v. Earl, 41 Mich. 191, quoting an earlier case, used the following language: “It is essential to the protection of infants that 'they should be bound by contracts of this kind after they have been executed; and this idea of protection lies at the basis of the whole law of infancy. Should the law recognize the right of repudiation in such cases, no man could furnish an infant with the necessaries of life in compensation for his services without the risk of a lawsuit; and the minor, though able and willing to earn his support, would often be deprived of the opportunity, and driven perhaps to vagrancy and crime.” Wilhelm v. Hardman, 13 Md. 140; Hobbs v. Godlove, 17 Ind. 359; 22 Cyc. p. 648.
In view of these principles, which are applicable to the facts of this record, there was no error in.any of the rulings of the court prejudicial to the rights of appellant, and the judgment is therefore affirmed. | [
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Hart, J.,
(after stating the facts). I. Counsel for appellant first challenges the jurisdiction of the State courts. He insists that, as all the cars were to be used for interstate shipments, the count below was without jurisdiction; and that, under the Hepburn amendment to the Interstate Commerce Act, the forum in which appellee should have sought reparation was either the Interstate Commerce Commission, or the United States courts of competent jurisdiction. His chief reliance in support of his contention is based upon the decision of the Supreme Court of the United States in the case of the Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, as applied to the provisions of the Interstate Commerce Act. We do not consider that case applicable to the question now under discussion. In the Abilene Cotton Oil Company case the shipper sought reparation in the State court, and his cause of action was based upon the unreasonableness of an established freight rate. The court held that he could not maintain an action at law in such case prior to a finding by the Interstate Commerce Commission that the rates were unreasonable. In that case it was insisted by the shipper that section 22 of the act of Congress to regulate commerce, viz: “Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in adition to such remedies,” gave the court jurisdiction. In reference thereto Mr. Justice White, who delivered the opinion of the court, said:
“This clause, however, cannot be construed as continuing in shippers a common-law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself. The clause is concerned alone with rights recognized in or duties imposed by the act, and the manifest purpose of the provision in question was to make plain the intention that any specific remedy given by the act should be regarded as cumulative, when other appropriate - common-law or statutory remedies existed for the redress of the particular grievance or wrong dealt with in the act.”
The court held that the shipper must seek redress primarily through the Interstate Commerce Commission, where the unreasonableness of an established freight rate was involved, because in that way only could uniformity of rates be preserved. That was the sole .ground of the decision, as is emphasized by the later decision of the Southern Ry. Co. v. Tift, 206 U. S. 428, where it was held that, after a freight rate has been found, upon testimony,-by the commission to be unreasonable, the testimony and finding of the commission may be made the basis of a decree in a United States circuit court, sitting in equity, enjoining the carrier from enforcing such unreasonable rate.
In the case of Danciger v. Wells Fargo & Co., 154 Fed. 379, which was a suit by a shipper against a carrier to require it to receive .and transport property tendered for shipment, the court held it to be one to compel the performance of a duty imposed on it by law, and to be within the jurisdiction of the courts. In disposing of the question the court used this language:
“A further contention made by the defendant is that the court of exclusive original jurisdiction in this controversy is the Interstate Commerce Commission, and that this court has no jurisdiction in the first instance to afford to complainants the relief here sought; and much reliance is placed by the defendants on the case of Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553. From a reading of that case, I do not consider it applicable to the state of facts here presented. If the controversy here was as to whether the defendants were charging excessive or unreasonable rates for the shipments tendered by complainants, the case relied upon would to my mind be in point; but as the ground of relief sought by complainants in the case at bar is the performance by defendants of a duty imposed upon them by law, which they wholly neglect and refuse to perform, I think such question is one for the determination of the courts.”
In the case of Chicago, R. I. & P. Ry. Co. v. Clements, (Tex. Civ. App.) 115 S. W. 664, the court held: “The liability of connecting carriers for breach of their common-law or con tractual duty in respect to property received for shipment is not regulated or affected by the interstate commerce act, though the shipment is an interstate one, and therefore an action against them for injuries to the property caused by negligence and delay in transportation, being based on a breach of such duty, and not on any infraction of said act, is properly brought in a State court.”
This, too, is the construction placed upon the act by the Interstate Commerce Commission. In the case of Richmond Elevator Co. v. Pere Marquette Rd. Co., 10 I. C. R. 636, it is said: “The act to regulate commerce contains no provision which expressly or by proper implication gives this commission jurisdiction in cases merely showing delay or negligence in the receipt, forwarding or delivery of property offered for transportation, and this necessarily includes failure on the part of the carrier to furnish cars for the movement of freight within a reasonable time.” To the same effect see Smeltzer v. St. L. & S. F. Rd. Co., 158 Fed. 649, by Rogers, Dist. Judge; Southern Pac. Co. v. Crenshaw Bros. (Ga. App.), 63 S. E. 865, by Mr. Justice Powell.
The case now under consideration involves the liability of the carrier to the shipper for an alleged breach of its common-law or contractual duty for its failure to furnish cars, and does not involve any infraction of the provisions of the interstate commerce act; and we are of the opinion that the suit was properly brought in the State court. This view, we think, is the logical result to be deduced from the reasoning of the authorities cited supra, and from the opinion of this court in the case of Halliday Milling Co. v. La. & N. W. Rd. Co., 80 Ark. 536. Hence the court properly overruled the demurrer to the jurisdiction of the court.
II. Counsel for appellant urges that the court below erred in not sustaining appellant’s motion to transfer the cause to the United States court for the Western District of Arkansas. Assuming that the case was removable, the petition was not filed in time. “A petition for removal of a cause to a Federal court which is filed after the time allowed by the statutes of this State for filing of answers to complaints is too late.” Kansas City So. Ry. Co. v. McGinty, 76 Ark. 356, and cases cited.
The time to file a petition for removal is not extended by an extension of the time to answer. Moon on Removal of Causes, § 156 and cases cited. In the case of Ruby Canyon Gold Min. Co. v. Hunter, 60 Fed. 305, the court said that the act of Congress is imperative, and requires the petition to be filed within the time fixed by the statute (where the statute fixes it), or within the time fixed by the rule of court (where the rule of court fixes it), and not within any time that a defendant may obtain by stipulation with the plaintiff, or by order of court.”
It follows then that, the petition for removal not having been filed within the time fixed by statute for filing answer, the court was right in denying it.
III. Appellant alleged in one paragraph of its answer that appellee associated itself with others in forming a pool or trust for the sale of coal, and that it sold all its coal through the Mc-Alester Fuel Company, which was a member of the pool or trust, and that such agreement was an illegal combination in violation of the statutes of the State of Arkansas and of the United States. Appellant further alleged that all the profits that appellee made or could have made, had appellant furnished it cars, were made on account of it being a member of the pool or trust to regulate and control the price of coal.
Appellee filed a motion to strike out that paragraph of appellant’s answer, which motion was sustained by the court. Counsel for appellant predicates error in the action of the court in that regard. To sustain his contention, counsel has cited the case of Continental Wall Paper Co. v. Voight & Sons Company, 212 U. S. 227, 29 S. C. Rep. 280. In that case the court held (quoting headnotes):
“1. A recovery upon an account for goods sold and delivered by a corporation created to effectuate a combination of wall paper manufacturers, intended and having the effect directly to restrain and monopolize trade and commerce, in violation of the antitrust act of July 2, 1890 (26 Stat, at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), cannot be had where the account is made up, within the knowledge of both buyer and seller, with direct reference to, and in execution of, the agreements which constitute the illegal combination.
“2. Defendants in an action for goods sold and delivered are entitled to judgment on a demurrer admitting the allega tions of a defense set up by thé answer, which in substance disclose that plaintiff is the selling agent of a combination of wall paper manufacturers which offends against the anti-trust- act of July 2, 1890; that, in carrying out such combination, defendants were virtually compelled to sign a jobber’s agreement, which, in effect, bound them to buy from' the plaintiff all the wall paper needed in their business at certain fixed prices, and not to sell at lower prices or upon better terms than those at which plaintiff itself sells to dealers other than jobbers; that the goods in question were ordered pursuant to such agreement and at the prices fixed; that such prices were unreasonable; and that all the transactions between the parties were in furtherance of the illegal combination.”
The grounds of the decision in that case are based upon a state of facts essentially different from those presented by the record in the present case. 'There both parties to the suit were parties to the illegal agreement, and it was held that the courts will refuse to render any assistance in carrying out an illegal agreement on the ground of public policy; and that in no other way could the public be protected. In the instant case appellant was not a member of the pool, and the contract made by it with appellee, an alleged'member of the pool, was collateral to the unlawful combination, and not tainted thereby. Neither the common law nor contractual duty of appellant to furnish cars was in any way connected with the illegal combination, and they are therefore unaffected thereby. The rule is that an otherwise legal contract is not affected by another collateral contract, which might be illegal. This distinction is made plain by the decision in the case of Chicago Wall Paper Mills v. General Paper Co., 147 Fed. 491. The facts in that case were that a number of wall paper companies combined together to arbitrarily fix the prices of wall paper and to control the sale of the same. The General Paper Company was a member of the combination, and became the exclusive sales agent of the other members, with the exclusive power to determine the extent of the output, and to arbitrarily fix the prices. It sold a large quantity of wall paper to the Chicago Wall Paiper Company, and, not being able to obtain payment, brought suit to recover the purchase price of the goods. The same defense was interposed in that case as in the present one. The court held that “a contract for the sale of merchandise is not rendered illegal by the fact that the selling corporation is a trust or monopoly organized in violation of law, either Federal or State, the contract of sale being collateral and having no direct relation to the unlawful scheme or combination.”
This distinction was also recognized in the case of Connolly v. Union Sewer Pipe Co., 184 U. S. 540, the court holding that “a violation of the Sherman Anti-Trust Act of July 2, 1890, by the formationn of a combination in restraint of trade, by which a penalty is incurred under the statute, does not preclude the company thus illegally formed from recovering on collateral contracts for the purchase price of goods.”
IV. On the measure of damages the court gave the following instruction: “6. If you find for the plaintiff under the instructions given you in this case, then you are to determine what damage, if any, it has suffered by reason of the failure of the defendant company to furnish cars for the disposition of its coal. If you find plaintiff could and would have sold its coal from its mines at a profit to itself, and was prevented by the wrongful act of the defendant from making such sale and earning such profits, then the defendant must compensate it in damages for the amount of the profit or'gain which this prevented it from making. In arriving at such amount, you should consider the nature of its business, the condition of the coal, the kind of coal that it produced, the quantity of coal that it produced, its opportunity for selling and the market price at which it could have sold; and the price or prices at which the coal produced by it should and would have been sold, less the cost of producing and marketing such coal, including the royalties to be paid 'thereon, would be the measure of its recovery. And in this connection I charge you that the cost of production above referred to must be measured and computed on the bases of a reasonable car supply.”
Counsel for appellant assigns as error the action of the court in giving this instruction. The general principles applicable to the subject are stated in the case of Central Coal & Coke Co. v. Hartman, 49 C. C. A. 244, as follows:
“Now, the anticipated profits of a business are generally so dependent upon numerous and uncertain contingencies that their amount is not susceptible of proof, with any reasonable degree of certainty; hence the general rule that the expected profits of a commercial business are too remote, speculative and uncertain to warrant a judgment for their loss (citing cases). There is a notable exception to this general rule. It is that the loss of profits from the destruction or interruption of an established business may be recovered where the plaintiff makes it reasonably certain by competent proof what the amount of his loss actually was. The reason for this exception is that the owner of a long-established business generally has it in his power to prove the amount of capital he has invested, the market rate of interest thereon, the amount of the monthly and yearly expenses of operating his business, and the monthly and yearly income he derives from it for a long time before and for the time during the interruption of which he complains. * * * One, however, who would avail himself of this exception to the general rule must bring his proof within the reason which warrants the exception. He who is prevented from embarking in a new business can recover no .profits because there are no provable data of past business from which the fact that anticipated profits would have been realized can be legally deduced.”
In the case of Baxley v. Tallassee & M. R. Co. (Ala.) 29 So. 451, in discussing the measure of damages in an action by a shipper against a carrier for breach of contract to furnish cars, the court recognized this .exception to the general rule, and said: “The special circumstances which we have hypothesized, taken in connection with notice to defendant of them, take the case out of the general rule of damages obtaining in cases of failure by common carrier to carry and deliver, and bring it within the special rule formulated above, on the theory that such damages were within contemplation of the parties.”
The exception to the general rule was recognized and applied by this court in the case of Border City Ice & Coal Co. v. Adams, 69 Ark. 219. See also Goebel v. Hough, 26 Minn. 252.
In the case of Atlantic Coast Line R. Co. v. Geraty, 166 Fed. 10, the court held (syllabus) : “Where a carrier, having facilities for furnishing shippers of vegetables refrigerator cars in which to transport the same, which cars the carrier did not own as a part of its equipment, had led the plaintiff and other vegetable growers in the region to expect that, if they raised vegetables, refrigerator cars necessary for their transportation would be obtainable, plaintiff was entitled to recover damages sustained by the carrier’s refusal to furnish refrigerator cars for the transportation of plaintiff’s cabbages on reasonable demand.”
In the case under consideration appellee had an established business, and had been encouraged by appellant to open its mine. Appellant had entered into an agreement to furnish cars to appellee, and bound appellee not to enter into a contract with another line of railway for shipment of its coal. Appellant knew that certain fixed charges had to be met, whether-the mine ran or was idle. It knew that the only practical way to mine the coal was, at the close of each day’s work, to “shoot down” and separate from the main bed of coal a sufficient amount of coal to keep the employees busy throughout the succeeding day, loading it on the mining cars to be hoisted to the tipple and there be emptied into the railroad cars; that it is not practical to store the coal, but that the mining and transportation must be carried on together.
Tested by the principles announced above, in connection with the special circumstances adduced in evidence and the notice appellant had of these circumstances, we are of the opinion that the net profits of operating the mine as damages for a breach of the contract may fairly be said to have been in contemplation of the parties when the contract for furnishing cars for the shipment of appellee’s coal was entered into.
V. Appellee, in making its case, was allowed to introduce evidence to the effect that there was no congestion of traffic on the line of appellant or connecting carriers during the time for which appellant is charged with failure to furnish cars, and that during such period the car service on such connecting lines was good. One of the defenses interposed by appellant was that during such period there was an unprecedented demand for cars, and it adduced evidence tending to show that there was a congestion of traffic on all the connecting lines of appellant. Appellee should not have anticipated its defense, but should have presented testimony in rebuttal to contradict that of appellant: The order of the introduction of the testimony, however, was a matter in the discretion of the court, and we cannot say that the action of the court was prejudicial to the rights of appellant. Butler v. State, 83 Ark. 272.
VI. Objection is also made to the admission of testimony on the part of appellee with reference to the effect the failure to furnish cars would have upon the mine as to expense of maintenance and also as to the cost of mining the coal. This evidence was admissible in arriving at the net profits.
Objection was also made to the introduction of certain letters of the officials of the railroad. These letters were competent in so far as they tended to show that the officers of the railroad knew that appellant did not have sufficient cars to meet the Ordinary demands of the shippers.
VII. The court gave the following instructions: “4. You are further instructed that the fact that connecting lines have failed and refused to return promptly the cars of the defendant is no valid legal excuse or defense in this case absolving the defendant from its obligation to furnish with reasonable promptness and diligence sufficient cars for the transportation of plaintiff’s coal.”
“5. You are instructed that, in order for the Midland Valley Railroad Company to avail itself of a defense that it could not furnish plaintiff cars because there was a great congestion of traffic, it must appear to your mind by a preponderance of evidence that there was such an unprecedented and extraordinary amount of freight offered for transportation as that it could not have been reasonably anticipated by the defendant company. And you are further instructed in this connection that it is the duty of the defendant company to keep in touch with natural conditions and with the usual natural developments of the country.”
Counsel assigns as error the action- of the court in giving the fourth instruction just quoted. A majority of the judges think that under the rule announced in the case of St. Louis S. W. Ry. Co. v. State, 85 Ark. 311, and in St. Louis S. W. Ry. Co. v. Phoenix Cotton Oil Co., 88 Ark. 594, the giving of this instruction was error. A supplemental opinion on this point has been written by Chief Justice McCulloch. The writer of this opinion thinks no prejudice resulted from the giving of that instruction. The court in its fifth instruction, just quoted, cor rectly instructed the jury on appellant’s defense of there being an unprecedented demand for cars. Appellant by its own contract agreed to send its cars off its own line. In the case of St. Louis S. W. Ry. Co. v. State, supra, the court said: “Until appellant carrier shows reasonable rules and regulations for the interchange of cars, it can not avail itself of those rules of interchange as causing and excusing its default to the public, for the rules here shown have proved unreasonable and inefficient before this default occurred.”
So, in the present case the writer thinks that the uncontradicted testimony showed that the rules and regulations had proved inefficient for the purpose for which they were designed before the default herein complained of occurred.
Other assignments of error are urged upon us; but, inasmuch as we have reversed the case for the error already indicated, we have deemed it proper to pass upon only such other assignments of error as seem to us from the present state of the record will necessarily arise on a new trial of the case.
As the majority of the judges are of the opinion that the giving of the fourth instruction above quoted was prejudicial to appellant, the judgment is reversed and the cause remanded. | [
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Robert L. Brown, Justice.
Appellant Denver Mitchell, Jr. appeals his conviction for first degree murder and his sentence of life imprisonment on grounds of insufficiency of the evidence and an improper instruction on capital felony murder. We hold that the evidence to convict was substantial and that the instruction given was appropriate. Accordingly, we affirm.
The facts in this case come mainly from Mitchell’s testimony at trial and a statement which he gave to the Illinois State Police. The victim, Willard Williamson, who was age 74, offered a ride to Mitchell, a hitchhiker, outside of Amarillo, Texas in August 1990. En route to Arkansas, they stopped in Russellville where Williamson cashed a traveler’s check at an Exxon Tiger Mart Station between 3:00 p.m. and 7:00 p.m. on August 18,1990. The two men then drove to Paragould where they stopped at Dan’s Duck Inn. The proprietors of that Inn, Danny and Phyllis Langston, testified that this occurred on Saturday night, August 18, 1990, prior to the closing time which was 11:00 p.m. They refused to serve the men beer and told them that the restaurant was about to close and recommended another establishment. Danny Langston also recalled telling Mitchell where he could catch a bus. A patron of Dan’s Duck Inn remembered Mitchell and Williamson being there on that Saturday night and also remembered the conversation between Langston and Mitchell about the bus. Mitchell does not dispute the fact that he and Williamson patronized Dan’s Duck Inn, but he testified that this occurred a day earlier — on Friday night, August 17, 1990.
Mitchell testified that he and Williamson went down to a deserted area near a railroad trestle outside of Paragould and drank more beer and whiskey. At some point, both men got into the bed of the truck and continued drinking. Williamson had a tire tool with him. Hearing a noise, Mitchell turned around and testified that he saw Williamson masturbating. Williamson reached for him and Mitchell pushed him away, whereupon Williamson, again according to the appellant, swung at him with the tire tool. Mitchell did admit that he struck Williamson, but the extent of the beating was in dispute. Mitchell did tell Illinois State Police Sergeant Kenneth Kaupas in January 1992 that he told his cousin that he beat a man in Arkansas “pretty bad.” In that statement he admitted to kicking Williamson in the face. The appellant added that if Williamson died as a result of this, he “didn’t mean to do it.” He said that it “just got out of control.” Mitchell, by his own admission, left Williamson on the ground, took his pickup truck, and fled to Illinois.
Earlier in the day on Saturday, August 18, 1990, two teenage boys ■— Lee Ward, age 13, and Ed Rogers, age 15, — reported to Paragould Police Officer Fred Poindexter that they had been down by the railroad trestle and had seen a “biker” carry a dead lady across the trestle. The report was made at about 5:00 p.m. Police officers investigated that night between 8:45 p.m. and 10:00 p.m., and nothing was discovered by the officers based on this information. Ward and Rogers later testified that their story was a prank.
On Sunday morning, August 19, 1990, Williamson was found at about 5:00 a.m. by police officers out by the railroad trestle on the northeast side of Paragould. His pants were down, and his penis was visible. Three beer cans and a tire tool were also found in the area. Williamson was still alive, though severely beaten. He was taken to a hospital where he later died from his injuries. Dr. Violette Hnilica, a forensic pathologist, who was formerly associate medical examiner in Arkansas, did the autopsy and later testified by deposition that Williamson died from blunt force injuries to the head that could have been caused by kicking or stomping or by a tire tool.
Lee Ward was interrogated by Paragould Police Officer Charlie Beall after Williamson died and confirmed to that police officer that Ed Rogers had beaten and choked Williamson, taken his wallet, left him with his pants down and penis exposed, and that this had made Ward physically ill. Ed Rogers also told Paragould police officers that he had hit a man once or twice with a rock down by the railroad trestle and that afterwards the man was not moving. Ed Rogers was charged with Williamson’s murder.
Mitchell was subsequently arrested in Illinois in January 1992 and gave a statement to Illinois State Police Sergeant Kenneth Kaupas that he beat Williamson after Williamson made sexual advances to him and then took his truck and left him in the field. He added that he did not intend to kill Williamson and that Williamson was alive when he left him. Mitchell was charged with capital felony murder in Arkansas and returned to the state for trial.
One week before trial, Lee Ward recanted his statement implicating Ed Rogers in the murder and said that his statement had been coerced by Officer Charlie Beall. He gave testimony to that effect at trial. Ed Rogers also testified and denied any involvement in the murder or that he saw an old man by the railroad trestle. Mitchell’s defense, on the other hand, in addition to urging that he was provoked by Williamson’s sexual advance was that Ed Rogers beat the victim after Mitchell fled the scene. Though the record is silent on this point, the murder charge against Ed Rogers apparently was dropped.
The jury was instructed on capital felony murder with robbery as the underlying felony and returned a verdict of first degree murder with life imprisonment.
Mitchell’s primary argument on appeal is that there was insufficient evidence presented to sustain the conviction. We note, initially, on this point that though Mitchell argues error in the trial judge’s denial of his motion for directed verdict following the State’s case, he waived that motion by presenting subsequent evidence as part of his defense. Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992). Mitchell, however, did renew his motion after all evidence had been presented, and it is that motion we will consider in this appeal.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). In an appeal from a denial of a motion for directed verdict, we look to see whether there is substantial evidence to support the verdict. Friar v. State, supra; Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Substantial evidence is evidence of sufficient force to compel a conclusion one way or the other, forcing the mind to pass beyond suspicion or conjecture. Id. On appeal, this court reviews the evidence in the light most favorable to the appellee. Friar v. State, supra; Higgs v. State, 313 Ark. 272, 854 S.W.2d 328 (1993).
In the case at bar, the evidence when viewed in the light most favorable to the State is clearly substantial. Mitchell testified at trial that he was with Williamson in Paragould, albeit on Friday night, August 17, 1990, and that they were drinking beer and whiskey. He stated that he beat Williamson, left him on the ground, and absconded with his truck. In an earlier statement to Illinois State Police Sergeant Kenneth Kaupas he admitted that he had told a cousin that he beat the man “pretty bad” and further admitted to that officer that he had kicked Williamson in the head. The former associate medical examiner, Dr. Violette Hnilica, concluded that Williamson died from blows to the head. Three witnesses at trial placed Mitchell and Williamson in Paragould on Saturday night, August 18, 1990, and a third witness placed them in Russellville earlier that same day. The jury also had an opportunity to assess Mitchell’s credibility as he gave testimony in his defense and the credibility of Ed Rogers and Lee Ward. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993); McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979). This evidence, taken in toto, readily sustains a conviction for first degree murder.
The appellant next contends that the jury was improperly instructed on capital felony murder in that there was no proof to support the underlying felony of robbery. This argument has no merit.
The capital felony murder instruction given was as follows:
First, that Denver Mitchell, Junior committed the crime of robbery and, second, that in the course of and in furtherance of that crime or in immediate flight therefrom, Denver Mitchell, Junior caused the death of Willard Williamson under circumstances manifesting an extreme indifference to the value of human life.
As a part of the charge of capital murder, the State contends that the death of Willard Williamson occurred during the commission of the crime of robbery by Denver Mitchell, Junior or in immediate flight therefrom.
This instruction corresponds with the definition of capital felony murder contained in the statute. See Ark. Code Ann. § 5-10-101 (1987).
Mitchell’s contention is that there was no correlation between his beating Williamson and the taking of the truck and that the law requires that the murder be “in furtherance of the felony, or in immediate flight therefrom.” Stated simply, he advances the argument that there is nothing in this case suggesting that he beat Williamson for the purpose of taking his truck.
We give the appellant’s point little credence. If there is some evidentiary basis for a jury instruction, giving the same is appropriate. Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991). We have further held that where a murder and robbery occur in close proximity to one another in time and place, the jury is justified in finding the murder and robbery to be one continuous transaction. Owens v. State, 313 Ark. 520, 856 S.W.2d 288 (1993). Those, without question, are the circumstances in the case before us. Mitchell admitted hitting Williamson, taking his truck, and fleeing to Illinois. The jury reasonably could have concluded from this that Mitchell murdered Williamson in order to steal his truck. The predicate evidence for the capital felony murder instruction existed, and the jury was properly instructed.
The record in this case has been examined under Ark. Sup. Ct. R. 4-3 (h), since life imprisonment is the punishment imposed. We find no error warranting reversal.
Affirmed. | [
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Per Curiam.
Appellant, Larry Dale Baxter, by his attorney, has filed for a rule on the clerk.
His attorney, A. Wayne Davis, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Robert L. Brown, Justice.
This case is an appeal from a summary judgment in favor of the appellee, Colonial Insurance Company. The appellant, Melvin Ricky Daniels, raises several issues of material facts which, he contends, remain to be decided. We disagree that the circuit court erred in rendering summary judgment, and we affirm.
On July 21,1988, the appellant’s wife, Sherri Daniels, went to the Colonial offices in Camden at the appellant’s request to purchase car insurance. Colonial’s agent, M.H. Woodring, assisted her in completing an application that was two pages long. On the first page of the application the appellant was shown as owner of the automobile. On the same page, both Sherri Daniels and the appellant were listed as “drivers in household.” Each was further shown as “living with spouse.”
On the second page of the application there was a heading which read “COVERAGE REJECTION STATEMENTS — MUST BE SIGNED BY NAMED INSURED IF COVERAGE NOT PURCHASED.” Below that was a paragraph entitled “UNDERINSURED MOTORIST BODILY INJURY COVERAGE REJECTION STATEMENT.” This paragraph stated that underinsured motorist coverage had been explained to the applicant and that the applicant had rejected it. Sherri Daniels signed at the end of that rejection paragraph as applicant. Sherri Daniels’s and Mr. Woodring’s signatures also appear at the end of the application, with Sherri Daniels again designated as the applicant.
Colonial prepared a Declarations Page, which set forth the policy coverages as requested by Sherri Daniels and designated the appellant as the named insured. Underinsured motorist coverage was not included. The policy itself included the following under “Definitions:”
2. You and your mean the policyholder named in the Declarations and spouse if living in the household.
The appellant renewed the policy on the same terms as originally issued once every two months over the next two years, or 12 times. At no time after the application date did the appellant ask that underinsured motorist coverage be added. Nor was an additional premium paid for that coverage.
On July 20, 1990, while operating his 1986 Nissan pick-up truck in Ouachita County, the appellant was involved in an automobile accident with a third party. The medical expense resulting from appellant’s injuries exceeded $50,000.00. The third party was responsible for the accident and had maximum coverage of $25,000.00, which was paid. The appellant thereafter sought to collect the remaining $25,000.00 from Colonial under his alleged underinsured motorist coverage. Colonial refused to pay the $25,000.00 on the basis that the appellant through a named insured, Sherri Daniels, had expressly waived the coverage.
On June 6,1991, the appellant filed a declaratory judgment action against Colonial, contending that he was entitled to $25,000.00 as underinsured motorist benefits and that Colonial had refused his demand. As part of discovery, the appellant answered Colonial’s interrogatories and stated that his “estranged wife” had filled out the application for insurance on July 21,1988. He admitted in those same answers that he asked her to obtain insurance for his vehicle, but he denied that he authorized her to waive any insurance. The appellant also stated that he had never received the Declarations Page which informed him about what coverage he had or the policy itself. He admitted that he had received a copy of the insurance application, which was attached as Exhibit “A” to his interrogatory responses.
Colonial answered and moved for summary judgment on several bases, including the fact that Sherri Daniels was an insured who could reject the underinsured motorist coverage. The appellant also moved for summary judgment and urged that he was the sole named insured and had never waived underinsured motorist coverage as required by the application.
The circuit court awarded summary judgment to Colonial and found that the appellant authorized Sherri Daniels, his wife, to buy car insurance for him; the appellant received a copy of the application completed by his wife; the appellant was not charged for underinsured motorist coverage; and the policy did not provide such coverage. The court concluded that Sherri Daniels was an insured under the policy who had the right to reject the underinsured motorist coverage.
For his first point, the appellant argues that various material questions of fact remain to be decided rendering summary judgment inappropriate. He also contends that Sherri Daniels was not the named insured and, thus, could not reject coverage.
We have recently summarized our standards for summary judgment review:
In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Nixon v. H & C Elec. Co., 307 Ark. 154, 818 S.W.2d 251 (1991). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Lovell v. St. Paul Fire & Marine Ins. Co., 310 Ark. 791, 839 S.W.2d 222 (1992); Harvison v. Charles E. Davis & Assoc., 310 Ark. 104, 835 S.W.2d 284 (1992); Reagan v. City of Piggott, 305 Ark. 77, 805 S.W.2d 636 (1991). Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to material fact and when the moving party is entitled to summary judgment as a matter of law. Ark. R. Civ. P. 56(c); Short v. Little Rock Dodge, Inc., 297 Ark. 104, 759 S.W.2d 553 (1988); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Forrest City Mach. Works v. Mosbacher, 312 Ark. 578, 583, 851 S.W.2d 443 (1993); Higginbottom v. Waugh, 313 Ark. 558, 856 S.W.2d 7 (1993).
We agree with the circuit court that Sherri Daniels was a named insured who could reject the coverage at issue as stated in the application. The appellant contends that because he is listed on the Declarations Page as the named insured, he is the only named insured who could waive coverage. The application in this case, however, did not identify a named insured but identified both the appellant and Sherri Daniels as “drivers in the household” and as living with their spouses, the clear reason being to specify drivers who would be covered. In addition, the Definitions section of the policy stated that “You and your mean the policyholder named in the Declarations and spouse if living in the same household.”
A distinguished treatise has this to say about insureds under automobile policies:
Every contract of insurance specifies an insured. In addition, policies of automobile liability insurance generally define certain other persons, commonly described by class, as additional or other insureds.
12 Couch on Insurance 2d (Rev. ed. 1981), § 45:267, pp. 581-582. We are required to construe the words of insurance policies in their plain and ordinary sense. Duvall v. Massachusetts Indem. & Life Ins. Co., 295 Ark. 412, 748 S.W.2d 650 (1988). Focusing on the plain meaning of the language of the appellant’s application and policy, it is clear that Sherri Daniels was an insured who was named.
The appellant contends that by denoting Sherri Daniels’s status on the date of the application as “estranged” in his answers to interrogatories, this creates a fact question surrounding her marital status and living arrangements. But the word “estranged” has different levels of meaning and does not necessarily equate to divorce, separation, or life in a different household. Moreover, Colonial presented the application and policy as proof of Sherri Daniels’s status. Once Colonial made a prima facie case, the appellant was required to meet proof with proof to create an issue of fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985). The mere use of the word “estranged” falls far short of what is required to prove that Sherri Daniels was not a named insured. Without countervailing proof that the appellant and Sherri Daniels were not drivers living in the same household, Colonial’s evidence must stand. And as a named insured, Sherri Daniels was well within her rights to reject any coverage offered to her.
The appellant also claims that the circuit court erred in refusing to grant his motion for summary judgment. This court has stated repeatedly that the denial of a motion for summary judgment is not subject to review or appeal. See, e.g., McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991); Hastings v. Planters and Stockmen Bank, 307 Ark. 34, 818 S.W.2d 239 (1991).
Affirmed. | [
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Tom Glaze, Justice.
On January 21,1992, Henry Lockhart was eventually stopped and arrested following a pursuit through the City of Camden by police officers. During the pursuit, Lockhart ran his vehicle through a roadblock and was seen throwing a green, leafy substance out the car’s window. The car finally came to a halt in someone’s yard, and Lockhart took off on foot but was subsequently apprehended by the police. In inventorying the car, the police found a green, leafy substance in its floorboard and seat. An electronic weight scale was also located in the car’s back seat. On April 28, 1992, Lockhart was charged with possession of a controlled substance (marijuana) with intent to deliver. The state also sought extended imprisonment of Lockhart under Arkansas’s Habitual Offender Law.
On October 6, 1992, the state amended its information to add a second count charging Lockhart with possession of drug paraphernalia (items used in weighing, measuring, and testing controlled substances). Immediately before the trial started on October 8, 1992, Lockhart moved to dismiss the state’s second count because he only learned of that charge two days prior to trial, and he was not prepared to try both counts. The trial court denied Lockhart’s motion to dismiss, and instead severed the second count so it could be tried later, since Lockhart did not have sufficient notice. Lockhart stated he was not seeking severance because he might want to dispose of both counts at the same time. He then asked for a continuance, which was denied by the court.
The trial proceeded only on the state’s first count against Lockhart. When the state’s fifth witness, Officer Gary Vaughn, commenced testifying from a crime lab analysis report that reflected the green, leafy substance found in Lockhart’s possession was marijuana, Lockhart objected on the basis that the officer’s recitation would be inadmissible hearsay. Lockhart contended that the state furnished the crime lab report to him only six days prior to trial, and that the state’s delay effectively denied him the right to confront and cross-examine the analyst who prepared the report. The prosecutor responded that Ark. Code Ann. § 12-12-313 allowed such a report to be introduced “on its own” provided defense counsel failed to give ten days notice to the state to have the chemist who prepared the report present at trial. Lockhart countered saying he could not comply with the ten-day requirement in § 12-12-313 because the state informed him of the report only six days before trial.
After hearing Lockhart’s and the prosecutor’s arguments, the trial court ruled it would permit the report to be introduced because the court believed Lockhart’s counsel knew or should have known that he had the right to have the chemist present if he wanted him. The trial court stated that it believed Lockhart merely wished to delay the case, otherwise, it would grant a one-day continuance and send for the chemist to testify the next day. Finally the trial court faulted the state for failing to bring the report matter up earlier, but concluded it believed Lockhart’s objection was frivolous, and no real question existed as to whether the substance was marijuana, as was stated in the lab report. Lockhart’s counsel denied that his motion was for delay purposes, and he also denied that the substance in issue was marijuana.
The jury convicted Lockhart on the possession with intent charge and sentenced him to twenty years imprisonment. On appeal, he contends the trial court erred (1) in allowing the crime lab report into evidence and (2) in severing the drug paraphernaliá count instead of dismissing it or alternatively in failing to grant a continuance so he could prepare and defend himself against both counts in this case.
Lockhart’s first argument requires our construction of § 12-12-313 which permits a chemist’s crime lab report to be admitted into evidence for the truth of the findings and statements in it if the chemist attested to those findings. Nard v. State, 304 Ark. 159, 801 S.W.2d 159 (1990). If such a report fails to meet the prerequisites of the statute, it is considered inadmissible hearsay under Rule 803(8)(iii) of the Uniform Rules of Evidence. Id. However, even when the state’s report meets the statutory requirements and the state intends to introduce the report as an exception to the hearsay rule, a defendant may, under provision (d)(2) of the statute, still require the chemist’s presence for the purpose of cross-examination, if the defendant requests the chemist’s presence at least ten days prior to trial.
Our court has never been confronted with the situation where, under § 12-12-313, the state’s tardiness had caused a defendant’s inability to comply with the statute’s ten-day notice requirement. The court of appeals, however, had such a situation in Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992). There, the state never intended to introduce a crime lab report until the defendant, Hendrix, testified on the third day of trial. Because Hendrix denied having used or dealt in drugs, the state called Officer Martin to testify that he had found Hendrix in possession of cocaine, and obtained a crime lab report corroborating that the substance Hendrix possessed was cocaine. Hendrix objected to the introduction of the analyst’s report, but the state argued Hendrix had failed to make a pretrial demand for the analyst to be present at the proceeding; therefore, he waived his right to cross-examine the analyst. The state relied upon our case of Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990), wherein the court stated that a defendant, who fails to give the ten-day notice to the state under § 12-12-313, waives his or her right to confrontation. The court of appeals, however, correctly distinguished Hendrix’s situation from the one in Johnson. It stated that the rule in Johnson necessarily contemplated that the defendant knew or should have known prior to trial that the state intended to introduce the lab report, and in that event, the defendant must follow the procedure set out in the statute. The court stated Hendrix had no such prior knowledge, and in emphasizing this distinction, recounted as follows:
The statute [§ 12-12-313], however, contains no procedure for the assertion of these rights when the existence and intended use of such a report first becomes known to the accused after the trial has commenced. Here, the state admits that it had no intention of using evidence of the stop made by Officer Newton until after appellant had testified. Nor was it disputed that appellant did not know of that intent until the third day of trial. While the procedural rule requiring pretrial notice of demand for the right of cross-examination of a laboratory employee is generally a reasonable one, there can be no reasonable basis for enforcing such a rule where it is not possible for the accused to comply.
Nor do we find merit in the state’s argument that, because appellant could have asked for a continuance to enable him to obtain the presence of the witness, his failure to do so constituted a waiver of the right to demand that presence. Because the statute does not contain a reasonable procedure for asserting the right of confrontation when that right arises after the trial has begun, the assertion of that right when it does arise is all that is required of the accused and casts upon the state the burden of either producing the witness for cross-examination or requesting a continuance in order to produce him. In other words, in the absence of an applicable statute or rule, the burden of producing a prosecution witness for cross-examination does not rest upon the accused, but rather upon the state. (Emphasis added.)
We believe the court of appeals’s construction of § 12-12-313, and particularly of provision (d)(2), is sound. However, the factual situation here differs from the one in Hendrix and our application of the rationale in Hendrix leads us to a different result.
In the present case, unlike in Hendrix, Lockhart indisputably knew six days prior to trial that the state intended to use the crime lab report. But, as Lockhart’s counsel candidly admits, he merely intended to rely on the ten-day notice rule and, in doing so, consciously chose not to ask the state to have the analyst present at trial. Instead, defense counsel waited until the parties selected a jury and the state had nearly tried its entire case before he objected to the absence of the report’s author. We agree with the Hendrix court’s rationale that the state has the burden of producing the chemist or in obtaining a continuance when the state has caused the defendant to be unable to comply with the statute’s ten-day notice prerequisite. Nevertheless, Lockhart was, at the very least, required to inform the state that he desired to have the analyst present at trial so the state would know it had the burden to produce the analyst as a witness.
Here, if the state had been informed of Lockhart’s desire to cross-examine the chemist after Lockhart received the report, the state still had six days, clearly ample time, to subpoena the chemist for the October 8th trial or to request a continuance. Lockhart offers no other suggestion of prejudice in this case except the analyst’s absence at trial and Lockhart’s corresponding loss of his right to cross-examine — a right Lockhart may have been afforded if he had only informed the state of his request. Because he neither asked the state to have the analyst present at trial nor showed such a request would have availed him anything, we hold Lockhart waived his rights under § 12-12-313.
We next turn to Lockhart’s argument that the trial court erred by denying his motions to dismiss or alternatively for a continuance regarding the paraphernalia count the state brought against Lockhart only two days before trial. Lockhart first moved the second count should be dismissed which the trial court denied. However, the trial court ruled that it would sever count two because Lockhart was not given sufficient notice thereby acknowledging he was unprepared to try both charges. Lockhart responded stating he did not want a severance and reiterated he was entitled to dismissal, but if no dismissal, a continuance because “he might want to ‘disclose’ all of his cases at the same time.”
Under A.R.Cr.P. Rule 21.1, two or more offenses may be joined by the state in one information with each offense stated in a separate count, when the offenses (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the conduct or on a series of acts connected together or constituting parts of a single scheme or plan. However, it should be pointed out that joinder is not required of a prosecutor, nor is there any assurance that such joinder will always withstand a motion for severance. See Commentary to Article VI of the Rules of Criminal Procedure. Here, the record reflects the possession of marijuana with intent to deliver and the paraphernalia offenses are of similar character and they arose from a single scheme or plan. In fact, both the marijuana and the paraphernalia were found in the car Lockhart was driving when he was arrested.
Although the state wás permitted under Rule 21.1 to join the two' related counts against Lockhart, the trial court, under A.R.Cr.P. Rule 21.1, had the authority to sever those two offenses before trial if a severance could be obtained on motion of the defendant or the prosecution. Lockhart clearly rejected any idea that the offenses should be severed, although he also never requested they be joined. The prosecutor, however, never objected to the trial court’s ruling to sever the paraphernalia count, and undoubtedly if the prosecutor had moved to sever the counts, the court would have granted his motion for two reasons. First, under A.R.Cr.P. Rule 22.2(b)(i), a prosecuting attorney is entitled to a severance if, before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. Here, the trial court found Lockhart had not received sufficient notice that the state would file the paraphernalia charge, thereby acknowledging Lockhart’s lack of preparedness to defend against that charge. Second, Lockhart never asked the two offenses be joined for trial, and it was otherwise only permissive, not mandatory, for the prosecutor to join the offenses in the first place.
In sum, we hold that, based on the motions and arguments presented the trial court, the trial court was well within its discretion to sever the state’s paraphernalia count and to deny Lockhart’s motions to dismiss or to continue.
Lockhart made several arguments below why the crime lab report should be excluded, but the one argued on appeal concerns Ark. Code Ann. § 12-12-303 (Supp. 1991), which under certain conditions permits reports by the State Crime Laboratory to be introduced without the presence of the chemists preparing the reports.
We note that Lockhart did say “he might want to ‘disclose’ all of his cases at the same time,” but his requests to the trial court were that it grant dismissal or a continuance, not a joinder. | [
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Robert L. Brown, Justice.
The appellant, Nylon Vick, was convicted of rape and kidnapping in 1993. He had previously been convicted of the same charges in 1988, and we affirmed those convictions. Vick v. State, 299 Ark. 25, 770 S.W.2d 653 (1989). He subsequently filed a pro se petition for a writ of habeas corpus in federal court which was ultimately granted on grounds of ineffective counsel and a new trial was conducted in 1993 which resulted in renewed convictions.
The appellant now appeals his 1993 convictions on two grounds: (1) the trial court erred by allowing into evidence the transcript of the testimony of Lillie Oliver, a witness at the previous trial who did not appear at the 1993 trial; and (2) the trial court abused its discretion by denying appellant’s motion for a mistrial because of testimony concerning the victim’s character. Neither of these arguments has merit, and we affirm.
On June 22,1988, the victim who was a college student was selling books door-to-door in Little Rock for a company named Southwestern Company. At trial, she testified that on that date, she entered the home of the appellant to sell him books. During her presentation, Vick left the living room and returned with a pistol in his hand. He restrained the victim for a period of three days, forced her to use drugs, and raped her orally, anally, and vaginally. The rapes occurred repeatedly. She attempted to escape once and was captured and dragged back into the house. On the third day, she escaped successfully, ran to a nearby house, and contacted the police. She identified Vick from a photo spread at the Little Rock Police Department.
On retrial, the jury found Vick guilty of two counts of rape. He was sentenced to two terms of life in prison to be served consecutively. He was also found guilty of kidnapping and sentenced to an additional term of thirty years.
I. FORMER TESTIMONY OF UNAVAILABLE WITNESS
The appellant initially contends that the trial court abused its discretion by allowing the State to read to the jury the testimony of a purportedly unavailable witness, Lillie Oliver, given at the previous trial. In support of this contention, the appellant posits a two-prong argument. First, he argues that the State failed to make a good faith effort to locate Lillie Oliver by reasonable means as required by Ark. R. Evid. 804(a)(5). Secondly, he argues that it was improper to admit the former Oliver testimony because the federal district court granted a writ of habeas corpus based on ineffective counsel at the first trial, which casts doubt on defense counsel’s cross-examination of Oliver. Thus, under his theory, the former testimony of Ms. Oliver was not sufficiently developed to constitute a hearsay exception under Ark. R. Evid. 804(b)(1). Finally, he argues that his right to confront a witness under the Sixth Amendment was denied him.
A witness is unavailable when absent from the trial and the proponent of the statement has been unable to procure the attendance or testimony by process or other reasonable means. Ark. R. Evid. 804(a)(5); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993). The party offering the testimony has the burden of proving the witness unavailable. Register v. State, supra; Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Also, the party seeking to introduce the prior testimony of an unavailable witness must show that a good faith effort has been made to procure the attendance of the missing witness. Register v. State, supra; Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992).
If a witness is unavailable, it is clear under our Rules of Evidence that former transcribed testimony of that witness may be presented at a second trial:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Ark. R. Evid. 804(b)(1).
At a pre-trial hearing, Durthey Bishop, an investigator for the office of the prosecuting attorney, described his work to locate Ms. Oliver in detail. He stated that he began the search in December of 1992 with a subpoena which listed Ms. Oliver’s home address and telephone number. He checked the address and found that her house had been torn down. He then obtained a subpoena to research Ms. Oliver’s past telephone records and found that her telephone had been disconnected. Bishop then contacted gas, electricity, and water utilities. He sought information indicating shut-off dates for old services and reconnect dates for new services. Nothing new was discovered. Bishop checked these records twice to be sure of their accuracy.
Additionally, Bishop asked about Ms. Oliver in her old neighborhood in Little Rock. Again, he was unsuccessful in obtaining information leading to Ms. Oliver’s whereabouts. He also contacted Social Services to determine whether Ms. Oliver had received any type of support. This inquiry also was unrevealing. At the suggestion of Social Services, Bishop initiated a search of local nursing homes. During the pretrial hearing, he admitted that he had only contacted one nursing home but had made plans to contact several more in the area. He also stated that another caseworker had begun to check each nursing home. Bishop next reviewed criminal records. Though some criminal information was uncovered for a Lillie Oliver, he concluded that the person was not the Lillie Oliver in question due to an age discrepancy.
The appellant counters this testimony with the argument that his check of criminal records divulged a Lillie Oliver which the State was unable to locate. Based on this finding, appellant asserts that the State has not demonstrated a good faith effort to find Oliver. The appellant argues too that the State’s failure to check each nursing home in Pulaski County is yet another demonstration of its lack of good faith.
We disagree. The State exerted considerable effort in its search for Oliver, and the search was thorough. A good faith effort to procure Oliver’s presence for trial was certainly illustrated by Bishop’s testimony, even though each nursing home in Pulaski County was not visited and a “Lillian Oliver” listed in the criminal records was ultimately not found. We have no difficulty in affirming the trial court’s finding of unavailability under Ark. R. Evid. 804(a)(5).
Nor should Ms. Oliver’s testimony be barred for lack of opportunity to develop her testimony at the first trial under Ark. R. Evid. 804(b)(1) or as a violation of the appellant’s right to confront witnesses under the Sixth Amendment. Mancusi v. Stubbs, 408 U.S. 204 (1972).
The essence of Ms. Oliver’s testimony at the previous trial with pertinent cross-examination follows:
OLIVER: Well, I was standing on the edge of my yard talking with one of those sanitary boys that works for the Sanitary Department, and this girl come running up. She was frightened to death. To me she was.
And she grabbed me, and she asked me could I help her. And I asked her what’s the matter? I said, “No.” I said, “I cannot help you.” I said, “You just keep running.” I said, “Run on around there.” I said, “I can’t help you.” I said, “What is it?” She said there was a man after her to kill her. I said, “Well, honey, run right around that other house,” and she did.
Cross-examination then proceeded as follows:
DEFENSE COUNSEL: Mrs. Oliver, I just have one question. Did you see anybody running after her?
OLIVER: Well, I never seen nobody.
DEFENSE COUNSEL: Okay.
OLIVER: I did not.
DEFENSE COUNSEL: Okay, you stood out there sometime after she passed you?
OLIVER: Well, a few minutes later, because I was so weak that I couldn’t stand too much longer.
DEFENSE COUNSEL: And, okay, you were with a garbage man?
OLIVER: Yes, but he was getting ready to pull off, then, at that time.
DEFENSE COUNSEL: Okay.
OLIVER: Uh huh (Meaning yes).
After the preceding testimony was read into the record, counsel for the appellant proffered questions to the judge which he would have asked had Ms. Oliver been present at the trial:
If the live witness were here, I would refer to Defense Exhibit No. 1 (a photograph of the area where the appellant and Ms. Oliver lived) and ask where she lived in that (sic) to give the jury a better idea of where her house was and what her viewing position was, and if it conflicted, in fact, with the path that this lady was supposed to have run.
We first observe that the appellant clearly had the opportunity to cross-examine Ms. Oliver at the first trial under the hearsay exception for former testimony set out at Ark. R. Evid. 804(b)(1). Moreover, we do not agree that defense counsel’s cross-examination of Ms. Oliver, albeit brief, warrants a reversal in this case. Our conclusion is bolstered by the questions proffered by counsel at the second trial which he contends he would have asked had she been present. The questions about location of the houses and Ms. Oliver’s ability to see the victim’s path of escape do not appear to develop Ms. Oliver’s testimony appreciably more than the questions asked. Hence, we are unpersuaded that those questions are crucial to establishing the reliability of Oliver’s testimony. At best, the proffered questions appear to be of marginal benefit to the appellant’s cause. In sum, we conclude that the cross-examination was sufficient to afford the trier of fact a reasonable basis to evaluate the truth of Ms. Oliver’s statements. See Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993).
We turn next to the Confrontation Clause argument, which is related to the hearsay argument. The federal district court made no specific finding that defense counsel was ineffective in cross-examining Lillie Oliver at the first trial. In 1972, the United States Supreme Court decided a similar issue in Mancusi v. Stubbs, supra. There, the Court held that when a witness is unavailable and a party seeks to introduce former testimony of that witness as evidence in a new trial, such testimony meets the requirements of the Confrontation Clause if that prior testimony bears “indicia of reliability.” As in the instant case, in Mancusi the first conviction of the defendant was reversed because of ineffective assistance of counsel. However, in making that determination, the habeas court did not focus on the cross-examination of witnesses. Defense counsel was presumed ineffective because the time between appointment of counsel and the trial date was so short — four days. The Mancusi Court concluded that because the habeas court had not addressed itself to the effectiveness of the examination of the unavailable witness, the mere finding of ineffectiveness due to the brevity of preparation time did not determine the reliability of the former testimony.
Likewise, in the habeas corpus review in the case before us, the premise for ineffectiveness was prior counsel’s deficient investigation and preparation prior to trial. No specific finding was made that the cross-examination of Lillie Oliver was deficient or inadequate. As in Mancusi, we cannot say that the finding of ineffectiveness in trial preparation by the federal district court casts doubt on the reliability of Ms. Oliver’s testimony. Nor do we conclude that the cross-examination itself rendered her testimony unreliable. We note on this point that reliability may be determined by the fact that the declaration to be admitted falls within a firmly rooted hearsay exception. Bourjailly v. United States, 483 U.S. 171 (1987); Bussard v. State, supra. Here, Ms. Oliver’s testimony falls within such an exception as former recorded testimony. There was no error in the admission of Ms. Oliver’s former testimony.
II. CHARACTER TESTIMONY
For his second point, the appellant contends that the trial court should have granted a mistrial when three witnesses gave testimony describing the victim’s character in violation of Ark. R. Evid. 404(2).
A motion for mistrial is only appropriate where the error is beyond repair and cannot be corrected by any curative relief. Sullinger v. State, 310 Ark. 691, 840 S.W.2d 797 (1992); Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992). The trial court has wide discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of discretion or manifest prejudice to the complaining party. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).
The first testimony complained of was given by DeShonda Davis:
After we all looked out, well, see, my mom and my stepdad, they didn’t believe us, because they figured that (the victim) wouldn’t be with anyone, you know, like him.
Following this statement, Vick objected and moved for a mistrial. The trial court correctly denied this motion since any error occasioned by this statement was plainly not beyond repair. Sullinger v. State, supra. The appellant then requested an admonishment. The court obliged and correctly admonished the jury to disregard the statement.
The second statement was given by Sandra Smith who stated about the victim: “She was a real nice young lady.” The appellant again moved for a mistrial which was denied. However, in this instance the appellant failed to request an admonition, and none was given. This statement by Smith hardly warranted the drastic remedy of a mistrial declaration. Moreover, because the appellant failed to request curative relief, the trial court did not err in failing to admonish the jury. Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988). It is clearly the appellant’s obligation to ask for a curative instruction, and the failure to do so will not inure to his benefit on appeal. Sullinger v. State, supra; Jurney v. State, 298 Ark. 91, 766 S.W.2d 1 (1989).
The third and final remarks complained of were made by Sally Morris, who stated:
[T]hey recruit college students, and they sell us on being above average, you know.
They didn’t take the average student.
Following these remarks, Vick failed either to object and request an admonishment or to move for a mistrial. Accordingly, any argument regarding this statement is not preserved for appeal. Davasher v. State, supra.
Nor do we give credence to the appellant’s contention that the cumulative effect of these statements was prejudicial. We have entertained an argument of cumulative error in rare and egregious cases. See, e.g., Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993). This is not such a case. No prejudice aggregated under these facts to require a reversal.
The record has been reviewed in this case for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and none has been found.
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Tom Glaze, Justice.
This case arises from a dispute between Reverend G. Edward West, an itinerant elder and member of the African Methodist Episcopal (AME) Church, and Bishop Henry Allen Belin, who presided over the Twelfth Episcopal District (Arkansas and Oklahoma) of the AME Church. The AME Church is a hierarchical church with the power of the church reposed in its bishops with the highest judicial body being the Judicial Council. The church’s organizational structure and authority of its various governmental divisions are contained in its Book of Discipline.
On June 6, 1990, West brought suit in Sebastian County Chancery Court against Bishop Belin, alleging Belin had violated AME Church doctrine as interpreted by the Judicial Council and the neutral principles of law by (1) threatening to remove West from all offices he holds in the church and (2) collecting, receiving or obtaining monies not provided for in the General Budget of the AME Church. On June 6, Chancery Judge Don Langston issued an ex parte temporary restraining order (TRO), finding he had jurisdiction and prohibiting Belin from removing West from any office and from obtaining monies as charged in West’s verified complaint. This TRO was served on Belin on June 27, 1990. On July 17, 1990, Belin moved to dismiss West’s action stating (1) the court had no jurisdiction since AME is a hierarchical church, (2) West had failed to exhaust his remedies within the ecclesiastical courts of the AME Church, and (3) the AME Church was a necessary party and had not been named or served.
West next took action on August 8,1990, by filing a petition citing Belin to show cause why he should not be held in contempt for violating the court’s June 6 TRO. In his petition, West alleged that, on December 13, 1989, the AME Judicial Council had issued its Declaratory Decision whereby persons (bishops) taking actions that violate the General Budget of the AME Church may subject those persons “to charges and/or civil lawsuit.” West further asserted Belin violated the Council’s Declaratory Decision and the court’s TRO by receiving offerings taken at annual church conferences. Belin again responded, stating the chancery court had no jurisdiction over religious tribunals or their decisions.
Chancellor Langston held a hearing on West’s petition on December 11, 1990, and Belin appeared only through counsel. The chancellor again found he had jurisdiction of the cause, found Belin was in contempt of the court’s June 6 TRO, sentenced Belin to thirty days in the detention center, fined him $1,000.00, but gave Belin forty days within which he could appear and purge himself of any contempt. Judge Langston directed that if Belin failed to respond, a body attachment order would issue for his arrest and incarceration. Belin failed to respond to the judge’s admonition, so an order was required and subsequently signed by Chancery Judge John YanWinkle and issued on August 28,1991. We note that at this stage of the litigation below, Belin either elected not to appeal the chancery court TRO or contempt order or he failed to lodge a timely appeal from them. However, on December 23,1991, Judge VanWinkle made another attempt to encourage Belin to respond to court directives by issuing another order directing him to surrender, and if he failed, Belin would be assessed $100.00 per day until he did surrender. Belin appealed that December 23 order, but through new counsel, he also filed a motion on April 15,1992, requesting the court to vacate its earlier December 11, 1990 contempt order.
While Chancery Judge Charles Garner (the third chancellor involved in the proceeding) denied Belin’s April 15,1992 motion to vacate the December 11 order, he later held a hearing to dissolve the court’s June 6 TRO, and after hearing evidence and argument, entered an order dated July 21,1992, which not only set aside the TRO, but also “all proceedings, pleadings, motions, findings and orders.” Judge Garner held he had no subject matter jurisdiction because the parties’ dispute involved religious doctrines and practices over which civil courts have no authority, and West had failed to pursue remedies available within the AME Church. Relying upon the July 21 order, Belin subsequently asked the chancery judge to dismiss any pending appeals and to refund the $5,000.00 supersedeas bond he had posted in connection with, those appeals. The judge granted Belin’s requests, and West appeals from the lower court’s July 21, 1992 order.
For reversal, West contends the trial court erred in dismissing his suit for lack of subject matter jurisdiction. He argues the chancery judges had initially determined chancery court had jurisdiction when issuing the TRO, the December 11,1990 order finding Belin in contempt and the August 28, 1991 order directing Belin to be arrested and incarcerated. Because Belin failed to lodge a timely appeal from these orders, West concludes Judge Garner was procedurally barred by law of the case from raising the jurisdiction issue in the later July 24,1992 proceeding.
We first mention Potter v. Easley, 288 Ark. 133, 703 S.W.2d 442 (1986), upon which West relies. There, this court stated that the doctrine of the law of the case requires us to adhere to our decision on the first appeal even though we might think it to have been wrong. Potter hardly applies here since no appeal had been taken from any of the three above-described orders. Other cases cited by West also involve situations where a prior appeal had been lodged and decided and are similarly inapposite to the facts before us now. In short, West offers us no cases where the doctrine of law of the case has been applied by this court when no appeal was involved.
While we find no merit in West’s law-of-the-case argument, the question still looms as to whether Judge Garner had the power to set aside all orders previously issued by the chancery court, including the three mentioned hereinabove which had been entered for more than ninety days and from which no appeal was taken. We have held frequently that the trial court loses the power to act under ARCP Rule 60(b) after ninety days from the filing of the judgment, decree or order with the clerk. City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989); Diebold and First Nat’l Bank of Wynne v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987).
Clearly, this court has held that a trial court retains jurisdiction to modify or vacate an injunction beyond the time limit placed on other types of orders or decrees. Carter v. Colson, 228 Ark. 629, 309 S.W.2d 328 (1958); Haberman v. Van Zandvoord, 1 Ark. App. 203, 614 S.W.2d 242 (1981). Thus, Judge Garner possessed authority to vacate the chancery court’s June 6,1990 TRO even though it had been entered for more than ninety days. See ARCP Rule 65(c). He heard the case on its merits and determined the proof did not support injunctive relief against Belin, and accordingly, he dissolved the court’s TRO. In this respect, we note that, while the grant or denial of injunctive relief is within the jurisdiction of chancery court, the findings and conclusions of law made at the preliminary hearing, at which the TRO was granted, are not binding at the trial on the merits. Patterson v. Masem, 774 F.2d 251 (8th Cir. 1985). Because West challenges the lower court’s decision based upon law of the case and not on its merits, we affirm that part of Chancellor Garner’s decision that the evidence presented failed to support continuing injunctive relief.
Finally, we must still consider whether Judge Garner had the power to set aside the chancery court’s December 11, 1990 contempt order and August 28, 1991 body attachment order. Undisputedly, both orders were well outside ninety days from their having been filed, and Belin appealed neither order.
We are first met with the general rule that a judgment entered without jurisdiction of the person or the subject matter or in excess of the court’s power is void and may be collaterally impeached. Wood v. Goodson, Judge, 253 Ark. 196, 485 S.W.2d 213 (1972). In Wood, this court granted a writ of certiorari and held the Miller County Circuit Court had no power to prohibit the news media from publishing that which transpires in open court and ruled an order prohibiting Wood from publishing a trial verdict was void. This court also vacated contempt orders against Wood holding in effect that Wood could not be held in contempt for disregarding a void order.
The case at hand is unlike Wood. As discussed earlier, because this cause involved West’s request for injunctive relief, Chancellors Langston, VanWinkle and Garner retained jurisdiction throughout these proceedings until it could be decided whether chancery court had jurisdiction to grant the injunctive relief requested by West. In other words, this case is not one where the court is wholly without jurisdiction to grant the relief sought. See Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986); Brown v. Kennedy Well Works, Inc., 302 Ark. 213, 788 S.W.2d 948 (1990).
A court having equity powers may be given jurisdiction to decide its own jurisdiction as any other court may be given such power. However, if a court has equity powers, it may have the additional authority to preserve the status quo by way of an injunction, so that its jurisdiction to decide its own jurisdiction is preserved. See Prof. Don B. Dobbs, Law of Remedies § 2.7 (1973). The case of United States v. United Mine Workers, 330 U.S. 258 (1947), illustrates this principle quite well. There, the government was operating coal mines during difficulties associated with World War II. It had a contract with the Mine Workers Union, headed by John L. Lewis. Lewis took the position that the union could terminate the contract, and that if a new contract of his liking was not signed, he would call a strike. The government sought a declaratory judgment to the effect that the union could not terminate the existing contract, and it obtained a temporary restraining order to prevent Lewis from calling or supporting a strike. Lewis and his union violated the TRO and later were cited for contempt of court for doing so. Lewis and the union defended on the ground that the court lacked any jurisdiction to issue any injunction in the case, that its order was void and therefore obedience was not required and disobedience could not be punished. Lewis relied on the Norris-LaGuardia Act, which virtually eliminated federal court jurisdiction to issue any restraining order in any case involving or growing out of any labor dispute. The Supreme Court rejected Lewis’s defenses and upheld the fines imposed by the lower court upon finding Lewis in contempt. One of the Court’s grounds for upholding the lower court’s contempt orders was that “the District Court unquestionably had the power to issue a restraining order for the purpose of preserving existing conditions pending upon its own jurisdiction.” In other words, since the district court had the power to decide its own jurisdiction, it also had the power to make its decision effective, or at least to keep the way open for a meaningful decision. See Dobbs, Law of Remedies § 2.7 at page 87; see also Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940).
As mentioned above, Chancellor Langston assumed jurisdiction of West’s complaint and issued a TRO to prevent Belin from violating AME Church Doctrine by threatening removal of West from office and from obtaining monies not provided in the church’s General Budget. While the general rule is that religious controversies are not a proper subject for inquiry by civil courts, and that ecclesiastical decisions of church tribunals are binding on a civil court, Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), where the controversy involves issues of ownership in church property, the state has an obvious and legitimate interest in providing a forum in which these disputes can be peacefully resolved, so long as the resolution by the court does not involve consideration of any doctrinal matters. Jones v. Wolf, 443 U.S. 595 (1979). If the property issue can be resolved by an approach based on neutral principles of law, the constitutional principles of the First and Fourteenth Amendments regarding separation of church and state are not violated. Id. See also Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986); Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988).
In his complaint and petition, West related factual allegations that Belin had improperly obtained monies in violation of AME Church Doctrine as interpreted by the Judicial Council and that neutral principles of law had been violated as well. In addition, he alleged administrative remedies had been pursued within the church and his remedy was now at law in the civil courts.
In sum, we hold that Chancellor Langston had the power to issue the June 6 TRO for the purpose of preserving existing conditions until the court decided its own jurisdiction in this matter. Accordingly, the court’s contempt order issued as a result of Belin’s violation of that TRO is valid. Judge Garner simply had no power to set aside the contempt orders that Belin never properly challenged. Although given every opportunity by the chancery judges to present his case and to purge himself of any contempt, Belin ignored the pending proceeding with impunity. He was wrong to do so. Any relief to Belin from the chancery court’s contempt and body attachment orders must result from the chancery court’s discretion not to enforce the dictates of those orders since Judge Garner was without authority to set them aside.
From the foregoing, we affirm in part and reverse and remand in part.
Brown, J., concurs in part and dissents in part.
Belin appealed the chancellor’s denial of the motion to vacate.
When Carter was decided, the controlling law was that a trial court had no authority to receive a judgment after the court’s term had expired. The term of court was later changed to ninety days and is now incorporated in ARCP Rule 60(b). See City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989).
The AME Book of Discipline provides under the duties of the Judicial Council the following:
h. Members . . . are hereby required to seek a final determination of any dispute arising between said members and the church and/or any department thereof by exhausting all legal remedies provided in the Discipline before civil proceedings are engaged in by the said member in his/her own behalf or any one similarly situated. | [
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Steele Hays, Justice.
This is an appeal by Jim Pyle from a judgment of conviction on counts of possession and delivery of a controlled substance and possession of drug paraphernalia. Cumulative sentences of eighty years imprisonment were imposed. Our jurisdiction attaches pursuant to Rule 29(1)(b).
On June 1,1990, Pyle’s residence at 803 Lawrence Drive in Jonesboro was searched pursuant to a search warrant executed on May 31. Cocaine, marijuana, cash, and drug paraphernalia were seized. The events leading to the application for the warrant began on May 24 when Donna Bogard, a Drug Task Force Officer, and a confidential informant met with a man named Robert Atkerson to buy drugs. They met near Pyle’s home. Bogard and the informant wore concealed microphones. When Bogard gave Atkerson money to buy the drugs, she asked who the dealer was. When Atkerson refused to say, the informant suggested, “We’ll just say J.P.” Atkerson said, “That’ll work. The Boss. Sometimes I call him Bruce.” Bogard watched Atkerson drive in the direction of Pyle’s home and turn into a driveway at the end of the street. The residence is at the west end of a dead end street. Bogard did not see whether Atkerson actually went into the Pyle residence but did see him turn into the driveway. Atkerson later returned with drugs, which Bogard bought. No attempt was made to get a search warrant at this time.
On May 30 and 31 the confidential informant made three phone calls to Pyle. Police officers were in the room with the informant and recorded the calls. The informant told Pyle he needed “that product.” There was no agreement made to sell anything, only a discussion in which Pyle discouraged the informant from coming to his house. Pyle indicated the informant should call back later to see if Atkerson had returned.
At 5:10 p.m. on May 31 Bogard again purchased cocaine from Atkerson. After she gave Atkerson the money, he said he had to hurry and get the money back to his source. Three minutes later, two other police officers, Officer Thomas and Officer Grigsby, who were conducting a surveillance near Pyle’s house, saw Atkerson approach the house and enter through the garage. The officers took pictures of Atkerson and another man outside the house.
On May 31 Officer Thomas applied for a search warrant. His affidavit generally recounted these events, stating that Atkerson had sold drugs to Bogard on May 24 and 31, had identified his source as “J.P.” both times, and that the informant knew “J.P.” to be Jim Pyle, Jr. Further, that Bogard was able to determine that Atkerson went to Pyle’s house on the 24th and that Thomas and Grigsby saw him enter the house soon after he sold the drugs to Bogard on the 31 st. It stated the officers had observed Atkerson speaking to a “person known to be Jim Pyle” in front of Pyle’s house.
Officer Thomas testified at the probable cause hearing that Atkerson had said on the 24th that he was “going to J.P.’s house.” He testified that Atkerson told Bogard on the 31st that he was taking the drug money “back to J.P.” Bogard also testified that Atkerson had referred to his source as “J.P.”
Jim Pyle moved to suppress the evidence seized under the warrant. He alleged the affidavit and testimony before the magistrate contained false statements and material omissions. His motion was denied, the evidence was admitted and at trial the jury convicted Pyle on all counts. On appeal, he brings six points for reversal.
I
Jim Pyle argues the search warrant was obtained by an affidavit and testimony containing “knowing and reckless false, material statements and structured, material omissions.” He contends his Fourth Amendment rights were violated and the evidence seized pursuant to the warrant should be suppressed.
The established standard of review in such cases requires that we consider the totality of the circumstances to determine if the trial court’s decision was clearly against the preponderance of the evidence. Coleman v. State, 308 Ark. 631, 826 S.W.2d 273 (1992); State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991). We consider the facts in the light most favorable to the appellee. Ryan v. State, 303 Ark. 595, 601, 798 S.W.2d 679, 683 (1990).
The general rule for the application of the Fourth Amendment exclusionary rule to evidence seized under an invalid warrant is set out in United States v. Leon, 468 U.S. 897 (1984). In Leon, the Court fashioned a good faith exception to the requirement of a valid warrant, that suppression of evidence would not be appropriate when a law enforcement officer acted in good faith reliance on a facially valid warrant. Id. at 922. The Court also stated that the good faith exception would not apply when the issuing magistrate is misled by an affiant who either knows the information given is false or has acted in reckless disregard of its truth or falsity. Id. at 923.
Franks v. Delaware provides the test for determining whether a warrant alleged to have such defects falls outside the Leon good faith exception. 438 U.S. 154 (1978). Under Franks, a warrant should be invalidated if a defendant shows by a preponderance of the evidence that: (1) the affidavit contained a false statement which was made knowingly, intentionally, or recklessly by the affiant and (2) the false statement was necessary to a finding of probable cause. Id. at 155-56. If those findings are made, the false material is excised and the remainder of the affidavit is examined to determine if probable cause exists. If the truthful portion of the affidavit makes a sufficient showing of probable cause, the warrant will not be invalidated. Id. We examine Pyle’s arguments in light of Franks.
First, Pyle argues that Officer Thomas falsely stated at the probable cause hearing that at the first drug transaction on May 24 Atkerson identified his source as “J.P.,” when in fact it was the confidential informant who used the term “J.P.” in referring to the source. Thomas conceded at the suppression hearing that Atkerson had not directly referred to his source as “J.P.” and had merely confirmed the reference by responding, “That’ll work.” Even so, we find no basis for a conclusion that Thomas had any intent to mislead the magistrate. Whether it was the informant or Atkerson. who first referred to the source as “J.P.” matters little, so long as Atkerson, the go-between, agreed that “J.P.” was an appropriate reference. It was Atkerson who knew the identity of his supplier and by confirming that cognomen, he effectively identified his source as “J.P.”. We find no indication that Thomas doubted the essential accuracy of his statements to the magistrate. In Franks v. Delaware, the United States Supreme Court stated that “every fact in an affidavit [need not necessarily be] correct... [but must be] truthful in the sense that the information put forth is believed or appropriately accepted by the affiant as true.” 438 U.S. at 165-66.
Pyle also complains that Thomas told the magistrate that Atkerson again named his source as “J.P.” at the second transaction on May 31. Before the magistrate Thomas testified that Atkerson advised Investigator Bogard that “he had to take the money back to ‘J.P.,’ ” when in fact Atkerson said only that he had to take the money back to “his source”. But we are not persuaded that this inaccuracy rises to the level of a knowing or reckless falsehood as defined in Franks and Leon. The trial court, viewing these events as a whole, could accept Thomas’s statement as a reasonable inference. Atkerson had agreed on May 24 that his source could be called “J.P.” and told Bogard on May 31 that he had to take the money back to his source. There were circumstances indicating the same supplier was involved in both transactions and on both occasions Atkerson was observed going toward or into Pyle’s house. Also, the record shows that Bogard had been privy to some undercover phone calls to Pyle which connected Pyle with Atkerson. In light of these circumstances, Thomas’s perception of these events was not unreasonable, and the trial court concluded that his statement, although technically inaccurate, was not made with an intent to deceive.
Officer Thomas also told the magistrate that the informant knew “J.P.” to be Jim Pyle. Pyle asserts there is no specific statement or testimony in the record where the confidential informant directly states that “J.P.” means appellant Jim Pyle. The state cites a conversation between the informant and Investigator Bogard where the informant refers to J.P., and then gives Bogard directions to Pyle’s residence. The state also refers to a taped conversation between the informant and Pyle. Again, the trial court could reasonably infer that Thomas’s testimony was based on his knowledge of these transactions, and not the result of an intent to deceive the magistrate.
Next, Pyle labels as false Officer Thomas’s statements that he saw Pyle talking to Atkerson at the Pyle residence after the drug transaction on May 31 and took photographs of the two. At the suppression hearing Thomas acknowledged this mistake, explaining that when he identified Pyle he was relying on the knowledge of Officer Grigsby, who was conducting the surveillance with him on May 31. The state argues that “this is the type of hearsay contemplated by Franks v. Delaware.” The Court recognized in Franks that an affidavit may be based upon hearsay and reiterated its reluctance to extend the rule of exclusion beyond “those instances of deliberate misstatements and those of reckless disregard.” 438 U.S. at 167, 170. The trial court obviously reasoned that in relying on Investigator Grigsby, Thomas was not making a deliberate or reckless misstatement.
As to the photographs, Pyle offers no evidence that Thomas knew at the time of the probable cause hearing that Pyle was not the man photographed or that Thomas had reason to doubt the identity of the man in the picture at the time he testified before the magistrate. Under Franks, the burden of showing that an affiant knowingly and recklessly included a false statement is upon the challenger of the affidavit. Franks, 438 U.S. at 171. While it has been shown that a false statement was made, Pyle fails to meet the burden of showing that Thomas acted knowingly or recklessly.
Under Franks, if false or erroneous statements meet the standard of knowing deception or reckless disregard, the next step is to extract such statements, examine the remainder, and determine if probable cause exists. 438 U.S. at 156. What remains in this case is the two drug transactions in the same locale, Atkerson’s affirmance of “J.P.” as his source, his statement at the second transaction that he was taking the money back to his source, and Thomas’s observation of Atkerson entering Pyle’s house minutes later. These factors readily equate with probable cause. See Illinois v. Rodriguez, 119 S. Ct. 2793, 2799 (1990).
Additionally, Pyle cites several “material and significant omissions” which should have been disclosed to the magistrate at the probable cause hearing. He insists the magistrate should have been told that Atkerson used the name “Bruce” in referring to the source and that Pyle refused to sell drugs to the confidential informant in the taped conversations. We do not regard these as material omissions. Whether Atkerson chose to refer to his source as “J.P.”, or “Boss” or “Bruce” hardly matters, so long as the same individual is being referred to.
Pyle relies on Harris v. State, in which a number of technical errors, taken together, were found sufficient to invalidate a warrant. 264 Ark. 391, 572 S.W.2d 389 (1978). The errors in Harris were apparent on the face of the warrant and the trial judge, in denying the motion to suppress, conceded that the errors amounted to a total disregard for the rules of criminal procedure. See Harris at 392, 572 S.W.2d at 390. Pyle does not allege that these omissions violated any rules, nor does he show how their existence could be attributed to anything other than mere laxity. The omissions involve factors that might be argued at trial, e.g. such things as Pyle’s refusal to sell drugs on other occasions and the presence of other people at his home on the date of the first drug sale. Given the circumstances as a whole, it was not implausible for the trial court to conclude that the omissions were not significant or material in a probable cause context.
Neither Franks nor Leon specifically mentions omissions, but the standards they articulate require a knowing intent to deceive, or a reckless disregard of truth. Applying that standard, it would seem that matters omitted must be material circumstances which contradict or dispel the incriminating factors in the affidavit. Leon states that the good faith standard does not preclude inquiry into the knowing or reckless falsity of the affidavit itself. Therefore, such omissions would need to render what is in the affidavit effectively false because of their nondisclosure. See Franks, 462 U.S. at 171. Such things as refusal to sell cocaine on other occasions, failure to return phone calls, and the presence of other people at the house, do not convert the factors discussed above into deception by negation.
We conclude that the alleged misstatements do not meet the test provided by Franks to invalidate the warrant, and, even if it were otherwise, probable cause is present in the remainder of the warrant.
II
Jim Pyle contends the Court allowed the state to impeach a defense witness by presenting extrinsic evidence on a collateral matter. On cross-examination, the prosecutor asked Ms. Bysshe Stovall, Pyle’s live-in girlfriend, about a vial and a straw with powdery residue found in her purse. She denied knowing these items were there, explaining that she had lent her purse to a friend. The state called a police officer to testify that he had taken the articles from her purse during the search. Pyle cites the well-established rule of law that a witness may not be impeached on a collateral matter by using extrinsic evidence. See Sutton v. State, 311 Ark. 435, 442, 844 S.W.2d 350 (1993); Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1990). Thus, the question is whether the evidence meets the definition of “collateral.”
Our cases provide definitions of noncollateral matters relevant to this analysis. A matter is not collateral if the cross-examining party would be entitled to prove the issue as part of the case in chief, or if the evidence is relevant to show bias, knowledge, or interest. See Kellensworth v. State, 275 Ark. 252, 255, 631 S.W.2d 1, 2 (1982). Wigmore states that a matter is not collateral if it can be shown for a purpose independent of the contradiction. 3A Wigmore § 1003 at 961. Pyle was charged with possession of drug paraphernalia. To prove this charge the state may show constructive possession, in that illegal items were found in a place subject to the accused’s joint control with another. See Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). The paraphernalia was seized during the search of the residence shared by Pyle and his girlfriend. He contends that neither of them was charged with possession of this particular paraphernalia. However, Count VI of the information alleges possession of paraphernalia, including vials. The evidence is independently provable under the above definition arid is not collateral.
This evidence could also be probative of knowledge by the witness. Ark. R. Evid. 404(b) (1992). Wigmore defines knowledge as what is said by the witness concerning the main event to which he or she is testifying. 3 A Wigmore § 1005 at 972. Ms. Stovall testified that she did not know that drugs or paraphernalia were on the premises. Confronting her with paraphernalia found in her purse would be probative of her awareness that it was there.
Ill
Pyle next contends his Sixth Amendment rights were violated when the court allowed the state to play undercover tapes containing statements by Robert Atkerson without calling Atkerson as a witness. Three cases dealing with the general rule that a defendant has a right to cross-examine his accusers are cited. See Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990); Cogburn v. State, 292 Ark. 564, 723 S.W.2d 807 (1987). These cases do not specifically address the issue presented and we assume appellant is directing us to the policy underlying the hearsay rule. The state responds that because the taped out-of-court statement is that of a co-cónspirator, it is not hearsay. See Ark. R. Evid. 801(d)(2)(v).
Pyle was charged with conspiracy to deliver cocaine. Under our case law, a co-conspirator’s testimony can be deemed competent even without such a charge, but the alleged co-conspirator must be connected to the conspiracy by evidence independent of the statement. See Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980); Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). Because such statements derive exemption from the hearsay rule under the definition of “admission by a party opponent,” they must in effect be vicarious admissions. See Ark. R. Evid. 801 (d)(1)(v); Patterson, 267 Ark. at 441, 591 S.W.2d at 360. We have held that, where an actual criminal act is performed by an alleged accomplice, the accomplice’s statements made during the transactions are admissible as a statement of a co-conspirator. Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978). It is undisputed that Atkerson sold cocaine to Officer Bogard on May 24 and May 31, and the taped conversations were part of these transactions. Nor were the statements the only link between Atkerson and the conspiracy. Pyle, after all, was the one who sold the cocaine. Atkerson pled guilty. The issue was whether Pyle was the source. Given these facts, the statements fall within the co-conspirator category.
Further, the trial court followed the procedure set out in United States v. Bell, 573 F.2d 1040 (8th Cir. 1978), and adopted by this court. See Patterson, 267 Ark. at 443, 591 S.W.2d 360 (1979). The trial court first heard the tapes and testimony, conditionally admitted the evidence, and advised the jury before denying the defendant’s motion to strike. This is exactly the procedure set out in Patterson. Id. at 443, 591 S.W.2d at 360.
Pyle also makes a sweeping contention that AMCI 201 is unconstitutional under the due process clause with no explanation as to how due process is violated. We find no merit in the argument. AMCI 201 tells the jury it must find the existence of a conspiracy beyond a reasonable doubt before it can consider any statement allegedly made in furtherance of a conspiracy. The Commentary to AMCI 201 explains that a trial judge has the discretion to admit evidence which is dependent upon a condition of fact, and that it is “better practice” to give a limiting instruction as the evidence is received.” Arkansas Model Crimi nal Instructions 201 (1979) (commentary page 11). Pyle maintains that AMCI 201 allows a jury to decide whether evidence is admissible. We disagree. AMCI 201 facilitates the procedure set out in United States v. Bell by telling the jury in effect what is required by United States v. Bell. This is essentially stated in dicta in Patterson v. State, which was decided before AMCI 201 was adopted. See 267 Ark. 443, 591 S.W.2d at 360. In Patterson, we said the same thing as the commentary to AMCI 201 — the better practice is to give this instruction in handling the testimony of alleged co-conspirators.
Another argument is that the state should not have used Atkerson’s out-of-court statements without calling him as its witness. Pyle cites Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983). In Roberts, the state’s witness had made a prior inconsistent statement that was plainly hearsay. The state was allowed to present this statement through another witness, and on appeal the tactic was seen as an improper attempt to get before the jury evidence that was otherwise inadmissible. Roberts, 278 Ark. at 552, 648 S.W.2d at 46. However, if Atkerson’s statements are viewed as a statement of a co-conspirator, and not as a prior inconsistent statement, they are not hearsay and are otherwise admissible. We regard the cases as distinguishable.
IV
Pyle next contends the trial court abused its discretion in allowing a rebuttal witness (Gary Heflin) to show prior bad acts, to prove an element which should have been presented in the case-in-chief, and to violate pretrial discovery because the witness was not disclosed to the defense prior to trial. The answer lies in whether Heflin was properly a rebuttal witness. If so, the state was not required to disclose him before trial. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990); Weaver v. State, 290 Ark. 556, 720 S.W.2d 905 (1986). Also, the scope of his testimony in that event is given wide latitude, and it will not be restricted merely because it could have been presented on direct. Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).
The definition of rebuttal evidence found in Birchett v. State is instructive. We wrote that genuine rebuttal evidence “consists of evidence offered in reply to new matters.” Id. at 20. We said that evidence can still be categorized as genuine rebuttal evidence even if it overlaps with the evidence in chief. However, the evidence must be responsive to that which is presented by the defense. Id. at 19. Here, Pyle testified he had no prior knowledge of cocaine being in his house and that he had never sold drugs. Heflin testified that he had traded auto parts with Pyle in exchange for cocaine in the past and had used cocaine with Pyle. Since the defense was lack of knowledge, Heflin’s testimony was proper both as rebuttal and as evidence of prior acts for the purpose of showing knowledge under Ark. R. Evid. 404(b).
V
Jim Pyle contends because the evidence is insufficient to convict him a directed verdict should have been granted. In reviewing the substantiality of the evidence, we examine the evidence in the light most favorable to the appellee, and sustain the verdict if the evidence is substantial. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). Evidence is substantial if it is strong enough to compel a conclusion either way. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Pyle merely recounts the testimony offered in his defense, rather than addressing the substantiality of the state’s evidence. We find ample evidence which, if believed, would prove the elements of the case. Pyle was charged with delivery and possession of cocaine, possession of drug paraphernalia, and possession of marijuana. To convict him of delivery, the state had to prove that he actually or constructively transferred cocaine for value to another person. Ark. Code Ann. § 5-64-101(f) (Supp. 1991). The state’s proof included taped conversations between Pyle and the confidential informant in which Atkerson and the “product” were discussed. Atkerson was observed going into Pyle’s house immediately after Atkerson sold cocaine to Officer Bogard and had told them he was taking the money back to his source. When the house was searched, drugs and paraphernalia were found, and then marked money for the drug buy was found on Pyle. Pyle does not attack the sufficiency of this evidence, he merely prefers his own. Looking at the evidence in the light most favorable to appellee, we are satisfied it was more than adequate.
To convict one of possession of cocaine, marijuana, and paraphernalia, the state had to show that the defendant exercised control or dominion over it. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). It is undisputed that no drugs or paraphernalia were found on Pyle’s person. However, our cases have held that constructive possession is sufficient- that is, when illegal items are found in an area subject to a defendant’s control. Id. The state established that drugs and paraphernalia were found in Pyle’s home. His witnesses testified that these items belonged to other people and that others had free run of the house. When contraband is found in a place under a defendant’s dominion and control a jury may infer constructive possession, but if joint control is established, proof of knowledge of the contraband is required. See Cary v. State, 259 Ark. 510, 517, 534 S.W.2d 230 (1976); Parette v. State, 301 Ark. 607, 616, 786 S.W.2d 817 (1990). Pyle owned and lived in the house where the items were found. There was proof from which the jury could find that Pyle had dominion and control over the house, and to infer constructive possession.
Since Pyle shared the house with Ms. Stovall, a showing of knowledge is required under our cases. See Plotts, 297 Ark. 72, 759 S.W.2d at 794 (1988). Pyle testified he did not know the items were in his house. However, given the fact that drugs and paraphernalia were found in the bathroom of the master bedroom, that the phone calls discussing Atkerson and “that product” could be interpreted as implicating his involvement, a jury could reach this conclusion without speculation or conjecture. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). Evidence is substantial if a reasonable inference can be made from the facts, when viewed in the light most favorable to the state. Cary, 259 Ark. at 510, 534 S.W.2d at 230.
VI
The final argument is that $4,000.00 in cash seized at Pyle’s home should have been suppressed as the fruit of an illegal search, and was irrelevant to the case. The legality of the search warrant is discussed at length under Point I and warrants no further attention here. The remaining questions are (1) whether the trial court abused its discretion in admitting this proof over an A.R.E. 401 relevance objection or (2) in balancing the probative value versus prejudice under A.R.E. 403. Our cases reflect that the trial court’s discretion in determining relevance is broad, and subject to reversal only if such discretion is abused. Qualls v. State, 306 Ark. 283, 812 S.W.2d 681 (1991); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990); White v. Clark Equipment Co., 262 Ark. 158, 553 S.W.2d 280 (1977). In Walker, we stated that evidence need only have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Id. at 221, S.W.2d. In Qualls, we held that a picture of the defendant with large sums of money in a room where he had conducted drug transactions was relevant to show that he sold drugs. Id. at 285, 812 S.W.2d at 683-83. Given the broad discretion of the trial court and the nature of the charges, we think Qualls is controlling and the trial court’s discretion was not abused.
For the reasons stated, the judgment is affirmed. | [
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Jack Holt, Jr., Chief Justice.
This case involves a consideration of the Arkansas implied consent law, codified at Ark. Code Ann. §§ 5-65-202, 5-65-205 (Supp. 1991), and the effectiveness of a. waiver of trial by jury. We hold that the appellant effectively waived his right to trial by jury and that his assessments of our implied consent law and a police implied-consent admonition form are of no moment.
The appellant, Mickie Gean Johnson, was arrested by State Trooper Mark Meadows on July 26, 1991, for driving while intoxicated, fleeing, and violation of the implied consent law. He was tried in the Prairie Grove Municipal Court in January 1992 and was found guilty of DWI and violation of the implied consent law. The court found him not guilty on the charge of fleeing. Following a de novo bench trial before the Washington County Circuit Court in July 1992, Johnson was again found guilty of DWI and violation of the implied consent law. The appellant raises three issues for reversal.
I. WAIVER OF TRIAL BY JURY
Johnson’s first point addresses essentially the same question that we recently considered in Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993), where we found that an attorney’s waiver of his client’s right to a jury trial, made in open court and in the presence of the defendant, satisfied the requirement of Ark. R. Crim. P. 31.2 that such a waiver be made “personally.” Johnson contends that the trial court erred in not granting him a trial by jury. He asserts that the circuit court failed to obtain a valid waiver of his right to a jury trial because it did not address him personally and elicit a knowing, intelligent, and voluntary waiver. We disagree.
Johnson’s argument is based primarily upon two recent DWI cases which we considered in Bolt: 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), in which we declared that, under the Arkansas Constitution and the Arkansas Rules of Criminal Procedure, a criminal defendant is entitled to receive a trial by jury unless the right is waived in the manner provided by law.
As we noted in Calnan v. State, supra, the “manner prescribed by law” for waiver in a criminal trial is set forth in Rules 31.2 and 31.3 of the Arkansas Rules of Criminal Procedure. Rule 31.2 provides that:
Should a defendant desire to waive his right to 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.
Rule 31.3 states that “In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant’s attorney. . . .”
The two cases cited by Johnson, although superficially similar to the present set of circumstances, bear marked differences, as we noted in comparing the corresponding situation in Bolt. In Calnan, the appellant was tried in Rogers Municipal Court and found guilty of DWI, disorderly conduct, violation of the implied consent law, and speeding. She appealed to the circuit court and, in a de novo bench trial, was found guilty of all charges except speeding. No mention was made of a trial by jury by either party or the court. On appeal, Calnan asserted that she had not waived her right to a jury trial, and this court agreed, noting that a waiver is an “intentional relinquishment of a known right,” 310 Ark. at 748, 841 S.W.2d at 595, and that, under the rules of criminal procedure, the only way a waiver of a jury trial can be effected is “by personally making an express declaration in writing or in open court,” 310 Ark. at 747, 841 S.W.2d at 595, the proceedings of which must be preserved.
In Winkle v. State, supra, the defendant faced a more serious charge — DWI, third offense, in addition to driving on a suspended license and hindering apprehension or prosecution — but, like the defendant in Calnan, neither he nor his attorney asked for a jury trial or offered any objection to the bench proceedings. Citing Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991), we stated that, under the state constitution and rules of criminal procedure, a defendant is entitled to be tried by a jury without making such a motion. Further, we emphasized that a waiver of a jury trial is constitutionally permissible only when it is made in accordance with the provisions of the rules of criminal procedure.
The record in the case now before this court, unlike the transcripts in Calnan and Winkle, is far from silent on the question of waiver. In fact, it is quite similar to the record in Bolt, which reflects that the defendant’s attorney, in open court and in his client’s presence, formally waived “any requirement of a jury trial in this matter.” See 314 Ark. at 387, 862 S.W.2d at 841.
At the beginning of Johnson’s bench trial, the circuit court acknowledged the appellant’s presence, calling him by his full name. During the defense counsel’s closing argument, the following exchange occurred:
THE COURT:. . . As I understand it, the defendant in this particular case has waived his right to a jury trial.
MR. NORWOOD: That’s correct, Your Honor.
THE COURT: Is that not correct?
MR. NORWOOD: Yes, we have a bench trial, yes.
THE COURT: Well, I just wanted to be certain about that.
MR. NORWOOD: Oh, no, there’s no problem with that, Judge.
THE COURT: Okay, fine. You may proceed.
MR. NORWOOD: What I’m saying is even if we had had a jury —
THE COURT: I understand . . . your argument. I just wanted to make it clear for the purpose of the record that you waived your right to a jury trial in this case, the case we’re trying here today.
MR. NORWOOD: Right.
The distinction between the Calnan and Winkle cases and Johnson’s situation — and the analogy with Bolt — is clear. Where nothing was said one way or the other about waiver during the trials in the earlier cases, defense counsel in the present matter affirmed “in open court” (as Ark. R. Crim. P.31.2 puts it) that Johnson’s right to trial by jury had been waived. Moreover, like the attorney in Bolt, defense counsel here, in the presence of the appellant, explicitly submitted the case to the court for a bench trial. Under the circumstances of the present case, Johnson was bound by his attorney’s action.
II. IMPLIED CONSENT LAW
The appellant argues in his second point for reversal that the Arkansas implied consent law — and specifically Ark. Code Ann. § 5-65-205 (Supp. 1991)— is facially unconstitutional because it removes from the jury’s province the ability to determine whether the arresting officer had reasonable cause to believe the defendant had been driving while intoxicated. In closing argument, Johnson’s attorney asserted that if his client had been tried by a jury, the implied consent law would have violated his right to trial by jury because the trial court, rather than the jury, would have determined whether the appellant had been guilty of refusing to submit to a chemical test.
The statutory section at issue provides:
If the judge determines that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood, and the person refused to submit to the test upon the request of the law enforcement officer, the judge shall order the Office of Driver Services to [suspend or revoke the operator’s license].
Ark. Code Ann. § 5-65-205(c) (Supp. 1991).
The trial court declared the constitutional issue moot because “the defendant has specifically waived his right to a jury trial.” Johnson’s contention is based on a hypothetical proposition: had there had been a jury trial, the appellant’s rights would have been jeopardized. But it is well established that this court does not answer academic questions. Neely v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986); Crittenden County v. Williford, 283 Ark. 296-A, 679 S.W.2d 795 (1984), supp. op. on den. of reh’g; Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). Nor does the Supreme Court issue advisory opinions. Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988).
Moreover, Johnson’s attorney waited until his closing argument to address the issue of the constitutionality of the implied consent law. Failure to object at the first opportunity to do so waives any right to raise the point on appeal. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).
III. IMPLIED-CONSENT ADMONITION FORM
Finally, Johnson urges that the trial court erred in refusing to dismiss the charge of refusing to submit to a chemical test on the basis that he was inadequately informed of the consequences of refusing to take the test. The language of Ark. Code Ann. § 5-65-205(c) (Supp. 1991), quoted above, states that “the judge shall (emphasis added) order the Office of Driver Services” to suspend or revoke the motor vehicle operator’s license upon a judicial determination that the law enforcement officer had reasonable cause to believe that the arrested driver was DWI or while there was 0.10% of alcohol in the driver’s blood and the driver refused to submit to a chemical test.
The consent form which Johnson signed contained the following notice:
If I have reasonable grounds for believing you have been driving or have been in actual control of a motor vehicle while intoxicated or while impaired by alcohol or a controlled substance, I can request that you take a chemical test of my choosing to determine your blood alcohol and/or controlled substance content.
If you refuse this test and a court later determines that I had proper cause to require you to take the test, then your driver’s license may be suspended for six months or more. (Emphasis added.)
The arresting officer, Mark Meadows, testified that he read the rights and consent form to Johnson, who signed the line indicating his refusal to take a chemical test. Johnson himself stated at trial that he had read the form and believed that the phrase “may be suspended” meant that “at least I had a chance of still keeping my license.” He said that “I thought you didn’t have to take the test, then you could go to court and argue about it.”
Johnson cites two cases from other jurisdictions involving consent-form variants on statutory language. In State v. Huber, 540 N.E.2d 140 (Ind. App. 3 Dist. 1989), the Indiana implied consent law provided that “the refusal will result in the suspension of [the arrested person’s] driving privileges.” Ind. Code § 9-ll-4-7(b) (1988). The appellate court found that the warning that “your license may be suspended for one year” was insufficient under the Indiana implied consent law, which “requires an advisement that refusal will result in suspension.” 540 N.E.2d at 141.
In Graves v. Commonwealth, 535 A.2d 707 (Pa. Cmwlth. 1988), the commonwealth court found the arresting officer’s implied consent warning insufficient to convey the mandatory nature of the suspension entailed by refusal to submit to a chemical test. The driver had been advised that he “could” lose his license as a consequence of his refusal to take the test. This, the court said, was “inadequate to convey the standard of certainty of the suspension that is mandated by the statute.” 535 A.2d at 708. That statute, 75 Pa. Cons. Stat. § 1547(b)(2), provided that “It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended or revoked upon refusal to submit to a chemical test.”
Arkansas, unlike Indiana and Pennsylvania, does not have a statutorily prescribed implied-consent admonition form. The General Assembly did not include such a requirement when it enacted the implied consent law. The United States Supreme Court has held that a defendant need not be apprised of the consequences of refusing to submit , to a chemical test. South Dakota v. Neville, 459 U.S. 553 (1983). As we observed in another context: “The police should not be penalized for attempting to afford an unnecessary procedural safeguard to appellant.” Allen v. State, 211 Ark. 380, 386, 641 S.W.2d 710, 714 (1982).
The trial court did not err in finding that the appellant had been adequately informed of the consequences of refusing to take the prescribed chemical test.
Affirmed.
Dudley, J., concurs. | [
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David Newbern, Justice.
Two questions are presented in this appeal. The first is whether a probate court may approve a tort claim settlement on behalf of a ward if the settlement distributes funds to a trust designed not to be a medicaid qualifying trust. The second question is whether a probate court has authority to declare that such a trust is not a medicaid qualifying trust. We affirm the order approving distribution to the trust, but we reverse the order holding that the trust is not a medicaid qualifying trust.
Kimberly Dawn Hogan was born in 1981 with brain dysfunction. In 1988 she was treated surgically at Sparks Regional Medical Center in Fort Smith. Her parents alleged that medical malpractice which occurred in connection with that procedure caused further injury to her brain. A settlement was reached, and Kimberly’s mother was appointed guardian of her estate by the Probate Court which was asked to approve the settlement.
The settlement was approved, and it included an escrow for liens including one asserted by the appellant, Arkansas Department of Human Services (DHS), for medicaid funds previously expended on Kimberly’s care. The settlement also included a provision for creation of a trust for Kimberly’s benefit with the malpractice defendants’ insuror as “trustor” and a Fort Smith bank as trustee. It is a “special needs trust” designed to assure that the funds contained in it are not to be available to Kimberly for the sort of expenses covered by medicaid and thus not to be considered in determining her eligibility for medicaid. See Eligibility for Welfare Benefits as Affected by Claimant’s status as Trust Beneficiary, 21 A.L.R. 4th 729 (1983); Special Trusts for Asset Preservation Planning, 132 Trusts & Estates 62 (1993).
The trust instrument provided the funds were to be used for Kimberly’s care but were, “intended to be utilized for those special needs in excess of those public and private funds that are available and not in any way intended to replace them or to affect her eligibility for said funds.”
In its order approving the settlement the Probate Court stated the amount settled on Kimberly was intended by the parties to
supplement the costs and expenses she incurs. . .in excess of what is available to her from public, quasi-public, and private contributions. . . . The net funds are not provided in order to repay any benefits which have been provided . . . and are not intended to take the place of any benefits payable to her in the future from . . . medicaid .... These funds ... are not [to] . . . affect Kimberly’s eligibility for said funds.
DHS, which had been notified of the guardianship proceeding, but not, in writing at least, of the settlement hearing, intervened to take exception to the Probate Court approval of a settlement purporting to have an effect on a determination of medicaid eligibility which it contended was to be an administrative decision subject to circuit court review.
At a hearing where DHS, the trustee bank, and the guardian were present, DHS argued the Probate Court lacked jurisdiction to determine whether the trust was a “medicaid qualifying trust,” i.e., one which was not immune from consideration when determining funds available to Kimberly when determining her future eligibility for medicaid assistance. See 42 U.S.C. § 1396a(k).
The Probate Court then issued a further order containing the following:
[T]he court has determined and hereby finds that the Trust is not a medicaid qualifying trust and the funds in the Trust are not available for and cannot be utilized for the provision of services which are obtainable from other sources, including medicaid provided services.
We agree with DHS that the Probate Court had no authority to make that decision.
1. Jurisdiction
In addition to arguing that jurisdiction to determine whether a trust is a medicaid qualifying trust is reserved by federal and state law to the administrative process, DHS argues the Probate Court exceeded the powers conferred upon it by the Constitution and statutes, and we agree.
The jurisdiction of probate courts is established by Ark. Const. art. 7, § 34, and it includes “matters relative to . . . guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law.” Arkansas Code Ann. § 28-65-107(a) (1987) repeats the provision for exclusive jurisdiction of probate courts in matters of guardianship, and § 28-65-302(7) provides specifically that a guardian, with probate court approval, may consent to a settlement of a claim by the ward. The authority of a probate court with respect to approval of tort claim settlements on behalf of guardians is further elaborated in § 28-65-318 (1987). Probate courts are, however, courts of limited and specific jurisdiction, and they have only the powers conferred by the Constitution or by statute or powers necessarily incidental to those specifically granted. Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984).
Kimberly’s estate responds to the jurisdictional argument by contending that the determination that the trust was not a medicaid qualifying trust was necessary to the decision approving the settlement. It also contends it was proper for the Probate Court to decide that question because the issue was injected by DHS.
a. Necessity
In support of its argument that it was necessary for the Probate Court to include in its order a holding that the trust was a medicaid qualifying trust Kimberly’s estate cites Alexander v. First National Bank of Fort Smith, 275 Ark. 439, 631 S.W.2d 278 (1982). In that case we held the Probate Court had the authority to determine, in the course of approving the distribution of assets of an estate, whether there had been a family settlement agreement. We affirmed the Probate Court’s holding that there was no family settlement agreement. Had it been held to the contrary, the initial distribution of the estate would have been directly affected. It was thus necessary for the Probate Court to make a determination whether there had been a family settlement agreement to accomplish its task of distribution of the assets.
Kimberly’s estate makes no showing that a decision whether the trust is a medicaid qualifying trust had any effect on the manner in which the assets created by the settlement were distributed. The initial determination as to Kimberly’s medicaid qualification occurred months before the decision distributing the settlement fund and, as Kimberly’s estate points out in connection with the next subpoint, the question about the nature of the trust was stimulated by DHS’s objection to the trust and the settlement after its initial approval. We cannot say the decision of that issue was necessary to the Probate Court approval of the settlement. When a probate court acts without authority in a matter ancillary to one it properly considers, its decision on the ancillary question is void. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978).
b. Injection of the issue
When the question is one of subject matter jurisdiction, it does not matter how it arises; it may be raised for the first time on appeal, Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976), and we can raise it on our own. Arkansas Savings & Loan Ass’n Board v. Corning Savings & Loan Ass’n, 252 Ark. 264, 478 S.W.2d 431 (1972). The parties to an action may not confer subject matter jurisdiction on the court, McCraw v. Simpson, 203 Ark. 763, 158 S.W.2d 655 (1942), thus it does not matter that DHS seemed to be seeking an answer to the question whether the trust was a medicaid qualifying trust.
We reverse the Probate Court’s order of January 4, 1993, and its holding that the trust is not a medicaid qualifying trust.
2. Settlement terms
DHS has given us no reason to reverse the order approving the settlement terms. Presumably the determination of the effect upon continued medicaid eligibility of the provisions of the trust and settlement order of which DHS complains will be made in another forum. See Arkansas Dept. of Human Services v. Donis, 280 Ark. 169, 655 S.W.2d 452 (1983).
DHS concedes that the Probate Court has not decided Kimberly’s eligibility for medicaid. Just as in In Re Porter, 298 Ark. 121, 765 S.W.2d 944 (1989), that issue was not before the Probate Court.
The decision of the Probate Court approving the settlement is affirmed. The decision of the Probate Court that the trust created by the settlement is not a medicaid qualifying trust is reversed.
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Jack Holt, Jr., Chief Justice.
In this appeal from orders entered by the Lawrence County Circuit Court, the appellants raise two points for reversal, challenging the trial court’s setting aside of a default judgment in their favor and, in turn, granting summary judgment in favor of the appellee. The trial court was correct in setting aside the default judgment but, in light of proof of the existence of a genuine issue of material fact, erred in granting summary judgment.
The appellants, Jake Henry, an electrical contractor, and his wife, Barbara Henry, owed the appellee, Gaines-Derden Enterprises, Inc. (doing business as Davies Electric Supply Company), the amount of $27,346.73 on an unpaid account. Gaines-Derden filed suit against the Henrys on January 17, 1987. The lawsuit was dismissed on February 1, 1987, as a result of a settlement agreement between the parties. Gaines-Derden agreed to accept an initial payment of $10,000 and to accept a mortgage on the Henrys’ property in the. amount of $17,346.73. Monthly payments of $500 were to be made until the debt was paid in full.
Appellant Jake Henry made each payment on the indebtedness by check. Some of the checks were made payable to Davies Electric Supply, while others were in the name of the appellee’s attorney, Josh McHughes, who endorsed all checks by stamp and deposited them in his account. On September 19, 1990, after payment of all the outstanding indebtedness, Troy Henry, the appellants’ attorney, wrote to Mr. McHughes, requesting that he direct his client to sign a release deed, a copy of which was attached to the correspondence. Gaines-Derden failed to release the mortgage, and the Henrys’ attorney sent additional letters to Mr. McHughes in November and December 1990, demanding a release and satisfaction of the record, and notifying the appellee’s attorney that suit would be filed if no action were taken in the matter.
On January 16, 1991, the Henrys filed a complaint against Gaines-Derden, seeking damages pursuant to Ark. Code Ann. § 18-40-104 (1987), the statute requiring acknowledgment on the record of satisfaction for the amount due on any mortgage. Acknowledgment, under the statute, operates as release of the mortgage. Ark. Code Ann. § 18-40-104(b). The Henrys sought $12,500 in damages, as well as costs and attorneys’ fees.
At the time the initial lawsuit was filed, in 1987, the appellee’s business operations were located in Searcy, where the Secretary of State’s corporate file indicated the registered agent could be reached. In the meantime, however, Gaines-Derden Enterprises had moved its offices to North Little Rock.
Unaware of the change of address, the appellants attempted service on Gaines-Derden in Searcy. When that effort proved unsuccessful, the summons and complaint were sent by certified mail to the new business address in North Little Rock. A GainesDerden employee, Wayne Ellsberry, picked up the envelope at the post office and signed for it on January 23, 1991.
Meanwhile, on January 23, 1991, the appellee’s attorney, Mr. McHughes, executed a purported release deed on behalf of Gaines-Derden and recorded it on January 29, 1991. On February 8, 1991, Terrance W. Kenyon, the controller of Davies Electric Supply Company, prepared a letter granting Mr. McHughes “Power of Attorney to represent Davies Electric Supply to sign the release of mortgage of Real Property that belongs to Jake and Barbara Henry.”
Gaines-Derden filed no answer to the Henrys’ complaint, and a default judgment was entered against the appellee on March 19, 1991. Subsequently, Gaines-Derden filed a motion to set aside the judgment, and testimony was taken at a hearing on August 26,1991. Thecourt set aside the default judgment, ruling that service of the summons and complaint was faulty because it was not accomplished through restricted delivery on an officer or registered agent of Gaines-Derden. We agree.
The appellee then answered the Henrys’ complaint and moved for a partial summary judgment, asserting that the mortgagee was not notified individually of the request for satisfaction of the mortgage as required by Ark. Code Ann. § 18-40-104 (1987). In reply, the Henrys argued that the statutory requirement had been satisfied by their having sent the request for satisfaction of the mortgage to Mr. McHughes, the attorney representing Gaines-Derden in the original lawsuit. The trial court granted the partial summary judgment, dismissing the Henrys’ complaint “with prejudice.” We hold, in this regard, that the trial court was in error.
I. Default Judgment
In their first argument, the appellants contend that the trial court erred in setting aside their default judgment on the grounds that service of process was faulty. Under Ark. R. Civ. P. 55(c):
The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud, misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.
The standard by which we review the granting or denial of a motion to vacate a default judgment is whether the trial court abused its discretion. B & F Engineering, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Default judgments are not favorites of the law, and the revised Rule 55 reflects a preference for deciding cases on the merits rather than on technicalities. Id.
Two cases are controlling on this issue. In Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989), as in the present case, service of the summons and complaint was made by certified mail, and the “restricted delivery” box was not marked. The return receipt bore the signature of “L.D. Madden” as “Agent.” We overturned the lower court’s refusal to set aside a default judgment, observing that:
There was no evidence that appellee had directed the summons and complaint to be mailed with restricted delivery. Nor was there any evidence that appellant had specifically authorized, in writing, that L.D. Madden was to be his agent to receive mail. Consequently, the default judgment was void ab initio, and the trial court erred in denying appellant’s motion to set it aside.
298 Ark. at 463, 768 S.W.2d at 532.
In CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 219, 812 S.W.2d 472, 474 (1991), we allowed a default judgment to stand where one R.L. Wright, who had signed a receipt for certified mail with a blank restricted delivery box, was “authorized to accept restricted mail on behalf of The Corporation Company” and “signed for and accepted the mail containing the complaint and summons, the same as he would have done had the ‘Restricted Delivery’ box been marked.” A card specifically indicating the extent of Wright’s authorization was on file with the post office.
In the present case, Charles Larry Gaines testified that Wayne Ellsberry, who picked up and signed for the certified mail from the appellants, was not listed in any file at either the post office or the Secretary of State’s office as an agent for service of registered mail. Instead, Mr. Ellsberry was an office salesman who periodically collected mail from the post office.
Service of summons upon a domestic corporation may be effected “by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.” Ark. R. Civ. P. 4(d)(5). Mr. Ellsberry had no express authority to receive restricted mail. The lower court did not err in setting aside the default judgment as void.
II. Summary Judgment
Although couched in terms of a “partial” summary judgment on liability — a nonappealable order — the circuit court’s ruling on the motion by Gaines-Derden was in substance an absolute summary judgment, as it disposed of the complaint in its entirety. The Henrys contend that the granting of summary judgment and the dismissal of the complaint was improper because two genuine issues of material fact remained in dispute: first, whether the appellee’s attorney had actual or apparent authority to accept the request for acknowledgment of satisfaction; and secondly, whether the appellee had actual knowledge of the request more than sixty days prior to a valid release having been recorded.
Rule 56 of the Arkansas Rules of Civil Procedure governs motions for summary judgment. Subsection (c) provides, in relevant part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Summary judgment is an extreme remedy that is only proper when it is clear that there are no issues of fact to be litigated. Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992). It is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Cash v. Carter, 312 Ark. 41, 847 S.W.2d 18 (1993).
The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubt and all inferences must be resolved against the moving party. Lively v. Libbey Memorial Physical Medical Center, 311 Ark. 41, 841 S.W.2d 609 (1992). Once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof by showing a genuine issue of material fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992). On appeal, we determine the appropriateness of summary judgment on the basis of whether the evidentiary items presented in support of the motion left a material question of fact unanswered. Thruston v. Little River County, 310 Ark. 188, 832 S.W.2d 851 (1992).
The order granting “partial” summary judgment is a barebones document, offering no reason for the trial court’s decision to grant the motion. Instead, it merely states that “after the Court reviewed the pleadings and all other matters properly before the Court, the Court grants the Motion for Partial Summary Judgment filed herein by the defendant and the Complaint of the plaintiffs against the defendant is dismissed with prejudice.” (Emphasis added.)
Because of the lack of specifics in the circuit court’s order, it must be assumed that the circuit court incorporated the contentions set forth in the motion by Gaines-Derden. The pertinent passages follow:
1. The defendant was not served individually with notice of the plaintiffs’ request for an acknowledgment of satisfaction of a mortgage pursuant to Ark. Code Ann. § 18-40-104.
2. Notifying the mortgagee individually is a mandatory component of a request for acknowledgment of satisfaction of a mortgage. Ark. Code Ann. § 18-40-104. Without individual notice to the mortgagee, the mortgagor cannot establish a claim for damages for the mortgagee’s failure to acknowledge.
3. That the defendant did not receive notice is undisputed based on the supporting affidavit hereto attached.
4. Requesting an acknowledgment from the mortgagee’s attorney does not satisfy the notice requirement of Ark. Code Ann. § 18-40-104.
5. Because the defendant did not receive notice, the defendant is entitled to summary judgment as a matter of law.
A supporting affidavit, from Larry Gaines of Gaines-Derden Enterprises, Inc., stating that the appellee “did not receive a request from the plaintiffs for an acknowledgment of satisfaction of their mortgage,” was attached to the motion.
The statutory section at issue, Ark. Code Ann. § 18-40-104 (1987), provides:
(a) If any mortgagee, or his executor, administrator, or assignee, shall receive full satisfaction for the amount due on any mortgage, then, at the request of the person making satisfaction, the mortgagee shall acknowledge satisfaction thereof on the margin of the record in which the margin is recorded.
(b) Acknowledgment of satisfaction, made as stated in subsection (a) of this section, shall have the effect to release the mortgage, bar all actions brought thereon, and revest in the mortgagor or his legal representatives all title to the mortgaged property.
(c) If any person receiving satisfaction does not, within sixty (60) days after being requested, acknowledge satisfaction as stated in subsection (a) of this section, he shall forfeit to the party aggrieved any sum not exceeding the amount of the mortgage money, to be recovered by a civil action in any court of competent jurisdiction.
The crux of the motion for summary judgment was the allegation on the part of Gaines-Derden that it did not receive adequate notice. According to the appellee, § 10-40-104 requires individual notice to the mortgagee — in this instance, GainesDerden itself. The appellee directs our attention to a seventy-five-year-old case, Reed v. Frauenthal, 133 Ark. 544, 202 S.W. 700 (1918), for the principle that this section, being penal in nature, must be strictly construed. Yet Reed dealt with a rather different context; there, we invoked strict construction in declining to extend the application of the section to a sale with retention of a vendor’s lien.
Another older case, Barnett v. Bank of Malvern, 176 Ark. 766, 770, 4 S.W.2d 17, 19 (1928), is cited by the appellee, for the following language:
We are, therefore, of the opinion that a demand to satisfy is sufficient which calls to the attention of the mortgagee the fact that the indebtedness secured by the mortgage has been paid, and requests, in consideration of that payment, that satisfaction of the mortgage be made.
The Barnett case involved a question of notice. This court held that an oral demand delivered to a cashier employed by the mortgagee-bank was as adequate under the terms of the statute as a written request. The Barnett opinion never questions the role of the attorney acting as agent for the mortgagee for purposes of endorsement of the court record. But we found a failure to comply with the statute when the attorney for the mortgagee bank noted the payment in full of an indebtedness on the margin of a chancellor’s decree rather than the record. It was, therefore, the endorsement, not the endorser, that was out of compliance.
The rules of agency generally apply to the relationship of attorney and client. McCullough v. Johnson, 307 Ark. 9, 816 S.W.2d 886 (1991); White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W.2d 672 (1931). The acts of an attorney are to be regarded as the acts of the client. Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W.2d 278 (1988).
Whether or not an agent is acting within the scope of actual or apparent authority is a question of fact for the jury to determine. Crail v. Northwestern National Insurance Co., 282 Ark. 175, 666 S.W.2d 706 (1984); Rowland v. Gastroenterology Associates, P.A., 280 Ark. 278, 657 S.W.2d 536 (1983). The Arkansas Court of Appeals, in Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1982), dealt with whether the issue of the authority of an attorney to bind a client by his acts could be decided by summary judgment. The appellate court concluded that “the denial of that authority by appellants raised a disputed question of fact which was not appropriate for disposition on motion for summary judgment.” Id., 3 Ark. App. at 212, 626 S.W.2d at 204.
The authority of Josh McHughes as agent for GainesDerden was vigorously disputed in the pleadings. Mr. McHughes, the record reveals, was the attorney for GainesDerden in the 1987 lawsuit against the Henrys. He negotiated the settlement and received and filed the mortgage. All of the Henrys’ monthly payment checks were mailed to Mr. McHughes, who endorsed and deposited them into his account, whether they were made payable to him or to Davies Electric Supply Company.
All three requests for acknowledgment of satisfaction were made to Mr. McHughes between September and December 1990, and the attorney executed a release deed in January 1991. Finally, the controller for Davies Electric Supply Company prepared a letter in February 1991 giving Mr. McHughes the power of attorney to represent Davies Electric Supply in the mortgage release.
Given the fact that, throughout the period during which monthly payments were made, the Henrys were dealing with Mr. McHughes, they had some cause to rely upon his ostensible authority to represent Gaines-Derden in subsequent matters. As this court observed in Mack v. Scott, 230 Ark. 510, 514, 323 S.W.2d 929, 931-932 (1959):
Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess. . . .
Mr. McHughes’s role is well established in various written instruments that were specifically mentioned, attached to, and made a part of the pleadings filed in the action. Under Ark. R. Civ. P. 10(c):
Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.
Exhibits that formed a part of the claim the Henrys sued upon in the original action, such as the mortgage, letters, and release deed, sufficiently indicated the existence of a genuine issue of material fact concerning the status of Mr. McHughes.
Although Ark. R. Civ. P. 56(e) states that a party resisting a motion for summary judgment “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial,” it is “otherwise provided” in subsection (c) that “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,” are to be examined in order to “show that there is no genuine issue as to any material fact.”
Hence, the documents incorporated in the pleadings (which went beyond “mere allegations or denials”) should have been examined and considered by the trial court as it entertained Gaines-Derden’s motion for summary judgment. In doing so, the court should have noted the existence of a genuine issue of material fact to be determined at trial.
Under the circumstances, the granting of summary judgment by the trial court was improper.
Affirmed in part; reversed in part. | [
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Tom Glaze, Justice.
Robert Lynn Smith appeals his conviction for delivery of cocaine. His sole point for reversal is that, contrary to Ark. R. Evid. 404(b), the trial court impermissibly allowed into evidence proof of bad acts of the accused.
In this case, Smith was charged with having sold cocaine to an undercover officer, Phillip Crutchfield, on December 29,1990. Prior to trial, Smith explained to the trial court that he had three other cases pending in which he had been charged with past drug dealings with Crutchfield and such events purportedly took place in 1990 on November 30th, December 3rd and December 8th. He asked the trial judge to prohibit the prosecutor from eliciting testimony from Crutchfield concerning the earlier drug transactions. The prosecutor responded, saying Rule 404(b) permitted him to ask Crutchfield about these earlier events in order to establish Smith’s identification as the perpetrator of the December 29 crime. The trial court denied Smith’s motion, but warned the prosecutor “not to waive the files in front of the jury.”
Actually, the prosecutor at trial limited his questions to Crutchfield as follows:
Q: [I]f you will, listen very carefully. I don’t want to know what you did other than let me ask you, on December 8th, 1990, did you have occasion to see this defendant seated to my left?
A: You said the 8th? Yes, I did.
BY MR. CREWS: Object, Your Honor, renew my previous objection to this line of questioning.
BY THE COURT: Overruled.
Q: And on November 30th, 1990, did you have occasion to see the defendant seated to my left over here?
A: Yes, I did.
Q: Okay. So you were quite familiar on December 29th, 1990 with this defendant, is that correct?
A: Yes.
As can be seen by the colloquy above, Crutchfield never mentioned having bought or sold cocaine or any controlled substance from Smith on the three prior dates, so no evidence of other crimes, wrongs or acts was introduced by the state. Although Smith contends the prosecutor’s questions were unnecessary because Smith later testified that he knew Crutchfield, the state had its own case to prove and it had no assurance that Smith would testify in his case-in-chief.
Because the state’s examination of Crutchfield did not involve other crimes, wrongs or acts by Smith, we conclude Rule 404(b) was not violated, and Smith’s conviction should be affirmed.
Smith mentions in his argument that the state, on cross-examination, asked him whether he had sold cocaine to Crutchfield on the three prior dates, and while Smith denied having done so, he claims this was a thinly veiled attempt to circumvent Rule 404(b). First, no objection was made to the state’s cross-examination bearing on this point. Second, the state’s cross-examination of Smith simply cannot be equated to an offer of prior bad acts under Rule 404(b). | [
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Per Curiam.
In 1992 the petitioner Rickey Neal was found guilty by a jury of manslaughter and was sentenced to ten years imprisonment. He was represented at trial by Jerry Sailings, a deputy public defender. No appeal was taken, and petitioner sought a belated appeal pursuant to Criminal Procedure Rule 36.9. Mr. Sailings filed an affidavit in response to the motion. As the statements of petitioner and Sailings were in conflict as to whether petitioner informed Sailings of his desire to appeal within the time for filing a timely notice of appeal, the matter was remanded to the trial court for an evidentiary hearing. The transcript of that hearing and the trial court’s written Findings of Fact and Conclusions of Law are now before us.
Petitioner contended in the motion for belated appeal that he advised counsel of his desire to appeal immediately after the guilty verdict was entered and that he did not learn until six months after sentencing that an appeal had not been perfected. He stated that he did not sign a waiver of appeal, but that if he did sign such a waiver, it was not a “willful and intelligent” waiver.
Sailings averred in an affidavit filed in response to the motion for belated appeal that he thoroughly explained the right to appeal to petitioner after trial and that petitioner chose not to appeal. Sailings attached to his affidavit an undated statement signed by the petitioner without notarization stating that he was waiving his right to appeal.
The trial court heard testimony from petitioner, who was represented by counsel, and Sailings on the fact question to be resolved. The contentions of petitioner and Sailings were essentially those made to this court. The court concluded that Sailing’s testimony was the more credible. This court recognizes that it is the trial court’s task to hear witnesses and assess their credibility. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). We accept the trial court’s finding that petitioner voluntarily chose not to appeal. As a result, the motion for belated appeal is denied.
Motion denied.
Petitioner testified at the evidentiary hearing concerning allegations of ineffective assistance of counsel which were apparently raised pursuant to Criminal Procedure Rule 37 in a separate petition filed in the trial court and which were not a part of the motion for belated appeal which was filed in this court pursuant to Criminal Procedure Rule 36.9. The trial court correctly noted at the hearing that this court remanded the matter for an evidentiary hearing limited to the allegation raised under Rule 36.9 and properly declined to enter findings concerning any other claim of ineffective assistance of counsel. | [
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David Newbern, Justice.
Willie Ray Harris, the appellant, admitted stabbing and killing Annie Mae Marshall McDowell on November 15,1991. He was charged with first degree murder as an habitual offender, convicted by a jury, and sentenced to life imprisonment. He contends the Trial Court erred in failing to grant a directed verdict as there was no evidence that he acted with the purpose of causing Ms. McDowell’s death. He also argues enlargements of photographs showing the wounds he inflicted were unfairly prejudicial and should not have been admitted into evidence. We hold that the nature of the weapon used, and the manner of its use, were such that the evidence of Harris’s purpose was sufficient. We also hold that the Trial Court did not abuse its discretion in holding the photographs were not, in the words of Ark. R. Evid. 403, unfairly prejudicial. The conviction is affirmed.
The events leading up to the murder were detailed in Harris’s statement. Ms. McDowell arrived at Harris’s apartment about 4:.30 a.m. asking if she could stay for a time. Harris agreed, and she got into bed with him. Later that morning, at 7:00 or 8:00 a.m., Harris picked up his payroll check and purchased an alcoholic beverage which he and McDowell shared. Sometime around noon Harris gave McDowell $40, and she purchased three rocks of crack cocaine. They shared the drugs and had sexual intercourse.
McDowell asked Harris for more money. When he refused to provide more money she flew into a rage, grabbed a butcher knife which was lying near the bed and cut Harris’s hands. Harris took the knife from her, cut her hair, and stabbed her a couple of times. Harris said he was only trying to make McDowell get herself under control and that he later left the bed and laid the knife down. While he was attempting to get dressed McDowell retrieved the knife, and they resumed fighting on the bed. During the struggle Harris again regained control of the knife and proceeded to stab McDowell 17 times, causing her death.
In a telephone conversation with 911 officials Harris confessed to having killed the victim, and this statement was recorded and played for the jury. Harris also confessed to the police when they arrived and related the foregoing in a taped confession.
1. Sufficiency of the evidence
When the sufficiency of the evidence is challenged, we affirm if there is substantial evidence to support the verdict. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force to compel reasonable minds to reach a conclusion that is beyond suspicion and conjecture. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989).
The Trial Court found Harris guilty of first degree murder for having killed McDowell “with a purpose of causing death.” See Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991). He argues the prosecution failed to produce any evidence that he acted purposefully. The Trial Court found the extent of the victim’s wounds was sufficient to support the conclusion that he acted purposefully. As intent cannot be proven by direct evidence, it may be inferred from the type weapon used, the manner of its use, and the nature, extent, and location of the wounds. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993). There was no error in denying the motion for directed verdict.
2. Photographs
Harris next argues that the Court erred by allowing the use of enlarged photographs. Neither the original photographs nor the enlargements appear in Harris’s abstract. In its brief, filed August 4, 1993, the State argued we could not reach the issue due to the failure to abstract. On August 13, 1993, Harris moved to supplement the record with copies of the enlarged photographs or alternatively to be relieved of the abstracting requirement as impracticable or an undue economic burden on the public defender’s office representing Harris. Such a motion is permitted in Rule 4-2(a)(6). We granted the motion to supplement the record, and copies of the photographic enlargements were filed. In view of the obvious expense involved, we should have recognized the impracticability of requiring the large color photographs be reproduced in sufficient number to accompany each of the required copies of Harris’s brief. Under these circumstances we will consider the photographs we now find in the record as we did in Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990).
The Trial Court found the photographs were neither cumulative, duplicative, nor unnecessary. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). They were not autopsy photographs but crime scene photographs used to show the extent and location of the wounds. While the pictures are gory, and some are similar to each other, all of those to which Harris objected were offered with investigating officers’ testimony to depict the crime scene and to show the extent of the victim’s wounds. The extent of the wounds is particularly relevant, as we noted above, to Harris’s argument about lack of evidence that he killed purposefully.
In Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988)(rev. on other grounds), we remarked that virtually all photographs are enlargements to some degree, and having examined the one enlargement complained of, we found it had not been demonstrated that it accentuated the injuries of the victim in any unfairly prejudicial way. The same is true in this case. There was no question that some photographs of the victim were properly admitted into evidence to show the crime scene, and while we agree that these are ugly photographs, that is the result of Harris’s actions, rather than manipulation on the part of the State. We find no abuse of discretion.
3. Review of other errors
The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and the objections have all been abstracted and certified by the State. We have found no other rulings adverse to Harris which constituted prejudicial error.
Affirmed. | [
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Robert L. Brown, Justice.
This is an appeal from two convictions for delivery of crack cocaine. The appellant, Minnie Pryor, was sentenced as a habitual offender and received 35 years and a fine of $25,000 for one conviction and 20 years on the second, with the time to serve to run consecutively. She raises several points on appeal, none of which has merit. We affirm.
On November 22,1991, investigator Roger Mashburn of the Wynne Police Department met with an informant, Sammy White, for the purpose of setting up a drug buy from Minnie Pryor. White went to Pryor’s home at 1201 West Poplar in Wynne, where he purchased six rocks of crack cocaine from the appellant for $50.00. On November 23, 1991, Investigator Neal Webster dropped the same Sammy White off at the appellant’s house at the same location to make a buy. White purchased crack cocaine for $100.00. The appellant was arrested and charged with two counts of delivery of a controlled substance. Subsequently, an amended information was filed charging the appellant as a habitual offender.
At the trial of this matter Kim Brown, a chemist for the Arkansas State Crime Lab, testified that she had tested the substances that had been purchased from Pryor in November 1991 and that they tested positive for a cocaine base. She added that she received the substances in question from Wilbur English of the Cross County Sheriffs Department.
The State then moved to introduce State’s Exhibit #2, a sealed envelope purporting to contain crack cocaine purchased from Pryor on November 22, 1991. The court received the evidence without objection from Pryor’s counsel. The State then offered into evidence State’s Exhibit #3, the purported controlled substance purchased from Pryor on November 23, 1991. After the defense responded that it had no objection to the introduction of this evidence, Exhibit #3 was also received.
Sammy White later testified that he had purchased the crack cocaine from the appellant on November 22, 1991, and November 23, 1991. The prosecutor asked this witness several questions which culminated in White’s answer that his sister had been sold drugs by Pryor. Defense counsel objected and asked that the jury be admonished. The trial court admonished the jury not to consider White’s response.
After White’s testimony, the State rested and defense counsel asked to make several motions. In chambers, he moved to strike State’s Exhibits 2 and 3 — the crack cocaine — on the basis that the State failed to prove that the chain of custody had been preserved. The trial court denied the motion.
Counsel also moved for a mistrial, citing the numerous questions the State asked White which led to his comment about Pryor’s selling drugs to his sister. The State argued that the motion was untimely and contended that the defense had opened the door for these questions. The motion was denied.
Defense counsel then raised the issue of whether the appellant could be charged as a habitual offender. Of the appellant’s two alleged convictions, according to the argument, one involved a nolo contendere plea for possession of a controlled substance. The trial court ruled that the nolo contendere plea counted as a prior conviction for purposes of the habitual offender statute and that the State could cross-examine the appellant regarding the two convictions.
Minnie Pryor testified in her case-in-chief and denied selling crack cocaine on November 22, 1991, and November 23, 1991. She introduced docket sheets as defense exhibits evidencing her nolo contendere plea to possession of a controlled substance and her guilty plea to forgery. She was cross-examined on both convictions.
The jury returned a verdict of guilty on the two November 1991 counts for delivery of crack cocaine.
During the penalty phase, the State argued that the jury should impose the maximum penalty stating that the Department of Corrections had a “place for her for as long as she is physically able to stay there.” Defense counsel, in his closing argument, retorted that Pryor was age 42 and that in 60 years she would be 102. The prosecutor responded in his closing argument that if Pryor received a 60-year sentence, she would be out in 20 years. The defense objected to this argument and asked for an admonishment and mistrial. The State responded that the defense had opened the door for the response on time to be served. The court instructed the jury that it was not to consider the State’s remarks about what period of time someone might serve as a result of whatever penalty was assessed. The court then denied the motion to declare a mistrial.
The appellant was sentenced to a total of 55 years on the two counts and a fine of $25,000.00.
For her first point, Pryor contends that the trial court erred when it denied her motion to exclude the crack cocaine tested by the State Crime Lab because the State did not prove that the chain of custody had been preserved. Specifically, the appellant claims that there was no record of how the evidence was transported from the Cross County Sheriffs Department to the Crime Lab. The chemist from the Crime Lab did testify that the cocaine was delivered to her by Wilbur English, but Pryor argues that English should have testified to establish this. The appellant further contends that the evidence was tampered with because the informant, Sammy White, stated that he purchased more than three rocks of cocaine. However, when the exhibit was introduced into evidence, it only contained three rocks.
We agree that the purpose of establishing a chain of custody is to prevent the introduction of evidence that is not authentic or that has been tampered with. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992); Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989). It is not necessary that the State eliminate every possibility of tampering; instead, the trial court must be satisfied that in all reasonable probability the evidence has not been tampered with. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Holbird v. State, 301 Ark. 382, 784 S.W.2d 171 (1990). However, in order to raise the issue of untrustworthiness due to a break in the custody chain, an objection must be made at the time the evidence in question is offered. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). A chain of custody objection made after the evidence has been admitted is not timely. Id.
Here, the appellant did not object to the introduction of State’s Exhibit #2 and specifically stated that there was “no objection” to the introduction of State’s Exhibit #3. Instead, she waited to object to both exhibits until after the State had rested. This failure to act at first opportunity resulted in an objection that was untimely. The issue is not preserved for appeal.
Pryor’s second asserted claim of error is that the trial court abused its discretion in not granting a mistrial after the prosecutor questioned Sammy White in a manner which suggested other drug involvement by the appellant. She argues that the prosecutor acted in bad faith in pursuing a line of questioning intended to elicit a response from White that Pryor sold drugs to his sister. The colloquy at trial was this:
PROSECUTOR: Let’s go back. Why would Minnie buy - sell to you?
WHITE: Well, I had a sister that was on crack cocaine for a while and there was at least three drug dealers that would sell to her. Okay, and she was so bad that Mrs. Pryor she was taking clothes-
DEFENSE COUNSEL: Your Honor, I am going to object to this. I have talked to him and I know what he is going to do. He’s going to tell this jury things that other people have told him and these are things that people have told him.
PROSECUTOR: Your, Honor, all I have asked him was why would she sell to him.
THE COURT: I think he can tell why he thinks she would sell to him. That is his opinion. On the other hand though, Mr. White, I don’t want you telling what other people have told you. I want you to tell us what you know from your own observations.
WHITE: Your Honor, I know this for a fact.
THE COURT: Go ahead, Mr. Noblin.
PROSECUTOR: Go ahead.
WHITE: That she was selling drugs to my sister and she was taking stuff like clothes from the kids and toys for Christmas and stuff like this.
DEFENSE COUNSEL: Your Honor, I would like to have this matter proceed outside the presence of the jury.
THE COURT: Mr. Noblin, the objection is going to be sustained. We need to go on to something else.
DEFENSE COUNSEL: Your Honor, I would like for the jury to be told to disregard that.
THE COURT: The jury will be admonished that the last response, you are not to consider that. We are not here concerning that issue.
Later after the State had rested, defense counsel argued that he did not believe an admonishment cured the prejudice and moved for a mistrial, which was denied.
This motion, too, was not timely. Motions for mistrial must be made at the first opportunity. Dixon v. State, supra; Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986). That was not done in this instance, and we need not address the issue.
For her next two points, Pryor argues that she was prejudiced by the trial court’s failure to prohibit the State from questioning her about her past conviction for possession of a controlled substance and further by allowing consideration of this conviction for habitual offender purposes. She concedes that Ark. R. Evid. 609 states that prior convictions may be used for impeachment purposes under certain circumstances. However, she claims that her previous conviction for possession was in fact a no contest plea where no finding of guilt occurred and was, thus, inappropriate for impeachment. Moreover, she had admitted to her criminal record on direct examination.
We disagree with Pryor’s argument. This court has consistently treated convictions based on nolo contendere pleas as convictions. See, e.g., Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990); Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988); Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987). As such, these pleas readily fall within the confines of Rule 609 and the Habitual Offender Statute. Indeed, the Arkansas Court of Appeals recently counted three nolo contendere pleas as convictions for habitual offender purposes. See Stevens v. State, 38 Ark. App. 209, 832 S.W.2d 275 (1992).
The question then becomes whether use of the nolo contendere plea for impeachment was unduly prejudicial under Rule 609. We do not believe it was. This conviction was already before the jury by virtue of Pryor’s direct testimony. Pryor then denied the charges against her for drug dealing on cross examina tion. Surely, a prior conviction for drug possession irrespective of no specific finding of guilt was probative of Pryor’s credibility. We conclude that there was no abuse of discretion by the trial court in its ruling.
We turn to Pryor’s final point which is that the prosecutor irrevocably tainted the trial by reference to specific parole possibilities. We reiterate the statements at issue:
DEFENSE ATTORNEY IN CLOSING ARGUMENT : I’m going to stick up for the minimum punishment to be imposed. Minnie Pryor told you she was 42 years old. In 20 years she will be 62 years old. Sixty years from now she’ll be 102 years old.
PROSECUTOR IN CLOSING ARGUMENT: Now he came up here and argued that if she gets 60 years she’ll be 102. If she gets 60 years and stays clean, she’ll be back in 20. Let’s not play any games about it. You give her 20 years, she’ll be back in 5 to 10.
The trial court sustained an objection to the prosecutor’s remarks and defense counsel then stated: “Your honor, I would ask that the jury be told to disregard those remarks and I ask for a mistrial.” The court then instructed the jurors not to consider the prosecutor’s comment on time to be served and denied the request for a mistrial.
There is no question but that comments on parole by the State are to be avoided, and we have so stated. See, e.g., Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). Nevertheless, in the case before us defense counsel precipitated the comment by arguing to the jury, in effect, that Pryor would be required to serve the full term of years and that if sentenced to 60 years, she would serve 60 years. This statement was misleading.
Defense counsel misinformed the jury and opened the door and invited a response to his absolute statement that Pryor would be in prison for all of the time assessed. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991). We note, too, that the defense counsel asked for an admonishment and that the jury was instructed not to consider the remarks of the prosecutor. Under these circumstances, we cannot say that the trial court erred in refusing to declare a mistrial.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
The appellants claim the amount of compensatory damages awarded by the jury was based on speculation and was excessive. We disagree and affirm.
This personal injury action arose out of an automobile collision that occurred on June 3, 1987, about a mile and a half south of Tuckerman, Arkansas, on U.S. Highway 67. Appellee, Michael L. Prysock, a thirty-five year old farmer, was driving south in his truck, carrying a load of wheat to the grain dryer. Appellant, James Skaggs, was driving behind Prysock in a tractor trailer truck belonging to appellant, Bill Davis Trucking, Inc.
Skaggs’ truck hit the rear end of Prysock’s truck at a high rate of speed. Prysock’s truck rolled over twice, and Prysock was thrown through the cab window. He landed approximately twenty feet from his truck. Prysock was knocked unconcious by the blow and remained in that condition for thirty minutes. An ambulance transported him to the hospital, where he remained for three days with complaints of pain and stiffness in his neck and left arm, and numbness all over his body.
Shortly thereafter, Dr. Roland Reynolds, a family practitioner, began treating him. Dr. Reynolds testified that on Prysock’s first visit, he was having pain in his left hand, thumb, index finger, and third finger, and aches in his left arm. Reynolds’ examination of Prysock’s neck revealed that Prysock had pain with both extension and flexion and with rotation of his neck to the left. Prysock had a left radial nerve deficit, or a decreased sensation of pain and touch in his left radial nerve, and a strain in his left trapezius muscle. At this point, Reynolds placed him on a muscle relaxant and referred him to a neurosurgeon. Later, Prysock was sent to a neurologist, who performed EMG and nerve condition studies. Both the neurosurgeon’s and neurologist’s findings were consistent with Dr. Reynolds’ diagnosis.
Dr. Reynolds examined and treated Prysock on a number of occasions from September 24, 1987, until October 4, 1988. Prysock had the following symptoms on these visits:
September 24, 1987: Pain and stiffness in his left hand; crepitus, pain, and stiffness in his neck; and crepitus in his left shoulder.
March 29,1987: Pain between his shoulder blades caused by shoveling; and complaints of numbness in his neck.
April 12,1988: Soreness in his back, particularly between his shoulder blades; and tingling in his fingers.
May 12, 1988: Pain in the left side of his neck all the way down to the lower spine caused by driving a tractor.
June 14, 1988. Crepitus in his left shoulder; some pain when stretching or turning.
October 4, 1988. Constant ache in his left arm and shoulder; tenderness of the nerves in his neck; and pain while lifting, straining, or stooping.
During this time frame, Prysock was prescribed several medications for his condition. In addition, other tests were performed, and he was examined by another neurosurgeon. His medical bills totalled $4,086.61.
Reynolds testified that none of Prysock’s conditions are likely to get better and will probably become worse because of the type of work that Prysock does; that he may need surgery in the future; that his injury is permanent; that he will need to return for treatment periodically; that he will need more medication and, possibly, physical therapy; and that Prysock’s discomfort will be cyclical, depending on the amount of physical effort expended.
Prysock testified that he wakes up in the morning stiff, that his left hand is still numb, that he cannot do much hard work or lift much with his left arm, that his injury has affected his ability to farm, and that his condition is not improving.
He also testified that he does not work as efficiently as he used to and, as a result, has had to change his method of planting wheat from drilling to broadcasting. Drilling requires lifting sixty pound sacks, which Prysock is unable to do because of his condition. Broadcasting requires more seed to get the same yield. As a result, in 1988, he had to buy 440 extra bushels of seed at $6 a bushel, which cost him $2,640.
Prysock owns 97 acres of land and farms an additional 640 acres. He double crops, which means he plants two crops in a year. He testified that he began the wheat harvest on June 2,1987. He was injured the next day. He returned to the fields on June 8 to harvest the wheat with the help of his ten-year-old son. It was necessary to get the crop harvested so that he could plant his soybean crop. It took him until June 17 or 18 to harvest the wheat crop.
He estimated that he would have finished the harvest by June 10 if he had not been in the accident. As a result of the late harvest, he was delayed in planting his soybean crop, which he did in July.
Prysock testified that a hard rain came while he was in the hospital and beat down a lot of the wheat and, as a result, he lost 1643 bushels of wheat at $2.52 a bushel, or $4,140.36. Since his soybean crop was late in being planted, an early frost cut down his yield. He lost 716 bushels at $5.48 a bushel, or $3,923.68. In 1988 he had to hire an employee, at a cost of $ 1302, to help him harvest.
The trial court took judicial notice of the mortality table in Ark. Code Ann. § 18-2-105 (1987), noting Prysock had a life expectancy of approximately forty-four remaining years.
The only issue submitted to the jury was the amount of damages. The jury was instructed under AMI 2201, as modified, that if it found for Prysock on the issue of damages, then it must fix the amount of money that will reasonably and fairly compensate him for the following elements of damage sustained: (1) the nature, extent, and permanency of any injury; (2) the reasonable expense of any necessary medical care, treatment, and services received in the past, and the present value of any such services reasonably certain to be experienced in the future; (3) any pain, suffering, and mental anguish experienced in the past, and reasonably certain to be experienced in the future; (4) the value of any earnings lost in the past and the present value of loss of ability to earn in the future; and (5) any scars and disfigurement. The jury returned a general verdict in the amount of $198,000.
There were no objections to any of the testimony or trial proceedings. For reversal, appellants’ sole contention is that the damages awarded were based upon speculation and were excessive. We disagree.
Where it is contended that there is insufficient evidence to support the amount of the award of compensatory damages, this court must decide whether the award is so great that it shocks the conscience of the court or demonstrates that the trier of fact was motivated by passion or prejudice. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (m3). See also O’Neal Ford, Inc. v. Davie, 299 Ark. 45, 770 S.W.2d 656 (1989); Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987). In determining whether the amount was so great as to shock the conscience, we consider such elements of damage as past and future medical expenses, permanent injury, loss of earning capacity, scars resulting in disfigurement, and pain, suffering, and mental anguish. Matthews, supra.
A jury has much discretion is awarding damages in personal injury cases. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).
In this case, one element of damage is measurable with exact certainty, i.e., Prysock’s past medical expenses in the amount of $4,086.61. However, future medical expenses do not require the same degree of certainty as past medical expenses. Honeycutt v. Walden, 294 Ark. 440, 743 S.W.2d 809 (1988); Matthews, supra. It is not speculative or conjectural to calculate future medical expenses where there is a history of medical expenses that have accrued as of the date of trial, particularly where there is also a degree of medical certainty as to the need for future medication. Williams v. Gates, 275 Ark. 381, 630 S.W.2d 34 (1982).
A copy of Prysock’s medical bills and a medical itemization demonstrating $4,086.61 in past medical damages were submitted to the jury. Dr. Reynolds testified that Prysock’s injury is permanent, that his pain will increase as his work load increases, and that he will require future medical treatment. Prysock testified that he cannot do much hard work with his left arm, that his injury has affected his ability to farm, and that his condition is not improving. Both the doctor and Prysock testified that all of the medical bills were incurred as a result of his injury caused by the accident. In sum, this evidence was sufficient for the trier of fact to consider this element of damage.
In addition, Prysock proved a permanent injury with reasonable certainty. Handy Dan Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985). See also Matthews, supra. There was medical testimony that Prysock sustained an injury, suffered pain and discomfort up until the time of trial, and that none of his conditions are likely to get better, but will probably become worse. The jury could reasonably conclude that the consequences of his injury will occur in the future. East Texas Motor Freight Line, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986).
Prysock presented proof of loss of past earnings by testifying concerning the amount of the additional expenses incurred because of the injuries he sustained, and showed his loss of earning capacity, or his loss of ability to earn in the future. The probable diminution of earning capacity may be inferred from evidence of impaired ability to work, despite the absence of direct proof of the value of the diminished capacity. Haney v. Noble, 250 Ark. 557, 466 S.W.2d 467 (1971). See also Honeycutt, supra. The testimony in this case clearly established that Prysock sustained a permanent injury that will impair his capacity to earn.
Prysock presented sufficient proof of pain, suffering, and mental anguish, and is entitled to a recovery for this element in the past as well as that reasonably to be experienced in the future. See Matthews, supra; East Texas Motor Freight Line, Inc., supra; The Scott-Burr Stores Corp. v. Foster, 197 Ark. 232, 122 S.W.2d 165 (1938); Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984).
We recognize that the amount of the award is undeniably liberal. However, when we take into account all elements of damages, we cannot say that the amount of the award, $198,000, is so great that it shocks the conscience of the court or demonstrates that the jury was motivated by passion or prejudice. Matthews, supra.
Affirmed.
Turner, J., dissents. | [
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Steele Hays, Justice.
Ronald Jackie Yates was convicted of two counts of rape and two counts of incest involving his niece, aged twelve. The trial court treated the two counts of incest as lesser included offenses of rape, dismissing the incest charges, and the defendant was sentenced pursuant to the verdict to consecutive twenty year sentences on the rape convictions. Yates has appealed, contending that the trial court erred a) in denying a motion for a directed verdict of acquittal, b) in overruling an objection to improper closing argument by the prosecutor, c) in refusing to suppress a confession by the defendant, and d) in overruling appellant’s objections to the prosecutor’s cross-exami nation of the defendant. We find merit in two of the points raised on appeal and therefore the judgment is reversed. We will discuss all the points preserved for review for purposes of remand.
I
The information alleged that appellant unlawfully engaged in sexual intercourse with his niece, a minor, twice in February 1987. When appellant was taken into custody, he first gave a written statement to the police denying any such involvement, but shortly thereafter admitted having had sexual relations with the child on two occasions in February 1987, signing a written statement to that effect. However, the victim testified to only one such incident and while her testimony was subject to some uncertainty due to an inability to recall events from two years previously, her testimony, given its strongest probative force, cannot support an inference that intercourse with the appellant occurred twice when the substance of her testimony was that it happened only once. While she may have made extra-judicial assertions to the effect that it happened on two successive days, there was no substantive proof to that effect and all she could say, beyond the single instance, was that she did not remember.
Appellant relies on Ark. Code Ann. § 16-89-111(d) (1987):
A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.
We conclude that there was no other proof of a second rape and it was error not to grant appellant’s motion for acquittal as to one count of rape.
In her testimony, the girl was unable to fix the date when the sexual intercourse occurred. She testified that it was in September of 1986, but she also said the weather at the time was cold rather than hot. She based the September date on the fact that she and her family were staying temporarily with the appellant because their own house in Florida had burned. In May the child returned to Florida and sometime later she reported the incident to her mother, an aunt and to an examining physician. The physician’s history fixed the date at “several weeks before” the victim’s return to Florida.
We do not find the lack of certainty as to the date to be material. The defendant’s confession stated it occurred in February and the victim’s inability to fix a definite date does not defeat the charge. It is rare that youthful victims of sexual abuse can provide exactness as to when an offense occurred and this victim seems to have been mildly retarded. Any discrepancies in the testimony concerning the date of the offense were for the jury to resolve. Burris v. State, 291 Ark. 157, 722 S.W.2d 858 (1987). Ark. Code Ann. § 16-85-405(a)(2)(d) (1987).
II
During closing argument the prosecutor made reference to the victim’s mental retardation. Counsel for the appellant objected on the grounds that there was no evidence that the victim was retarded. Appellant contends it was error to overrule the objection, citing Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976) and Adams v. State, 176 Ark. 816, 5 S.W.2d 946 (1928) for the rule that counsel may not go beyond the record to state facts that are prejudicial to the opposing party.
We first note that appellant’s obj ection was not made at the first opportunity. The state had previously made reference in its closing argument that the victim was mentally retarded. The defense objected but on grounds relating to other subject matter in the state’s argument and not at all to the mention of retardation. It was not until the state made a second mention of the topic that the defense objected. Having failed to make an objection at the first opportunity, appellant has waived any argument on appeal. Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984). Furthermore it seems to have been taken for granted by both sides that the victim had such limitations, as the defense itself had brought the topic up during trial in its cross-examination of both a police officer and the victim. Given the trial court’s discretion in allowing every plausible inference from the evidence, we could not say there was an abuse of that discretion. Cobbs v. State, 292 Ark. 188, 728 S.W.2d 957 (1987); Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981); Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982).
III
We disagree with appellant’s contention that his confession was coerced, was involuntary, and that he was arrested illegally since he was not told that he was under no obligation to appear for questioning at police headquarters. A.R.Cr.P. Rule 2.3. The state points out that the latter argument is being raised for the first time on appeal. The abstract fails to demonstrate how that point was preserved and since the appellant has not replied to the argument, we will not address that phase of the argument.
We have independently reviewed the testimony at the suppression hearing, as required under the law, McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1980), and find appellant’s arguments unconvincing. He testified that he was told if he would confess he would be assured of a suspended sentence, that he had little or no education, could not read and was intimidated by the interrogation procedures in that one of the officers shouted at him and banged the desk repeatedly with a clenched fist. But these assertions were disputed by the interrogating officers and we do not as a rule overturn the findings of the trial court on issues of credibility. Hanson v. State, 296 Ark. 385, 757 S.W.2d 932 (1988).
IV
The other point which makes reversal necessary has to do with the cross-examination of the defendant by the prosecutor, during which the following occurred:
Q: Mr. Yates, you mentioned that you and your wife were divorced. Why, why’d y’all get divorced?
A: Well, Sir, it wasn’t relation problems. There’s other difficulties through our family that I’d rather not say.
Q: Would it surprise you to know that, was your wife in error when she swore in court that y’all were divorced because of the loss of her breast and hair and other medical problems and that you continually and maliciously made fun of her appearance?
BY MR. JARBOE:
Judge. . .
Q: And told friends and family that you did not . . .
BY MR. JARBOE:
I object to this. This is collateral. It’s very prejudicial. I ask for a mistrial.
BY MR. STALLCUP:
If Your Honor please, the subject of divorce was opened up. I asked him the reason they were divorced and he gave me the reason.
BY THE COURT:
Well, it’s prejudicial versus probative and objection overruled. Go ahead.
Q: Okay. Did you — let me back up. Was the reason that after your wife lost her hair and breast and had these problems, medical problems, that you continually and maliciously made fun of her appearance and told folks, the friends and the family that you didn’t want to be seen with her in public?
BY MR. JARBOE:
May we approach the bench?
BY THE COURT:
Yes.
(Thereupon, the following is held at the bench out of the hearing of the jury.)
BY MR. JARBOE:
This is exactly the stuff the rules talk about on inquiring into prior acts, bad conduct, that sort of thing. This whole thing about the divorce.
BY THE COURT:
This can come in under 404(b).
BY MR. JARBOE:
Well, I object to it and I contend it’s prejudicial.
BY THE COURT:
Overruled.
We do not agree, as the state urges, that the defense opened the door for such questioning by presenting the defendant as a model husband and family man. To the contrary, in opening statement counsel for the defendant told the jury the defendant had had mental problems and a serious drinking problem. The defense did represent that the defendant had had no prior involvements with the law, including even a traffic violation, was a conscientious worker and a helpful neighbor. But we do not equate these implications as suggesting he was a dutiful and caring husband. There was testimony, to be sure, that the defendant purchased a waterbed for his ex-wife’s back problems, but that evidence was aimed at the victim’s testimony that the rape occurred on a hard bed.
This line of questioning was plainly intended to depict the defendant as capable of the most detestable kind of insensitivity — taking pleasure in pointing out the physical effects of his wife’s struggle with cancer. The prejudice can hardly be doubted nor, we think, overstated. If its probative value was significant we would not readily overturn the trial court’s tacit approval by permitting it over timely objections, but we cannot conclude that the defense first presented the defendant to the jury as one solicitous of his ex-wife’s well-being, and, therefore, we believe the matter was lacking in relevance but fraught with mischief.
Reversed and dismissed in part, reversed and remanded in part.
We disagree that incest is a lesser included offense of rape. See Ark. Code Ann. § 5-1-110 (1987); Ark. Code Ann. § 5-26-202 (1987); Ark. Code Ann. § 5-14-103 (1987) and see Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984). | [
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Jack Holt, Jr.,
Chief Justice. At his first trial, the appellant, Michael Dale Bowden, was convicted of capital murder and sentenced to life imprisonment without parole. He appealed, and we reversed on the basis that the trial court erred in admitting into evidence lineup identification testimony by a witness inasmuch as the lineup was conducted in violation of Bowden’s sixth amendment right to counsel. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). Upon retrial, Bowden was again convicted of capital murder and sentenced to life imprisonment without parole. As his sole argument on appeal, Bowden contends that the trial court’s restriction of his cross-examination of a witness for the prosecution denied him his sixth amendment right to confront the witness. We disagree and affirm.
As the facts are essentially the same as those in the first appeal, we limit our review to the matter in controversy.
Tom Duck, Captain in charge of the Investigation Division of the Harrison Police Department at the time of the murders of Johnny Hefley and Cindy Bowden, was called as a witness for the State. On direct examination, Captain Duck testified concerning his investigation soon after the incident. He related that the victims were shot with a semiautomatic weapon at close range, that a murder weapon was never found, that fingerprints were not made at the crime scene, and that after conducting several interviews, he was able to identify a possible suspect, Michael Dale Bowden. The prosecutor then asked, “The fact that you located a possible suspect at that point, did that mean that you ceased all effort to investigate other possible suspects?” Duck answered, “No, sir.”
Later in Captain Duck’s testimony about his investigation, the following exchange occurred:
Prosecutor: At that point or any point in the investigation, did you completely eliminate the possibility of the willingness to investigate other possible suspects other than the one that I think you’ve indicated you had focused on?
Mr. Duck: At that point, we felt we had the proper suspect.
Prosecutor: Prior to that time, had there been a concerted effort to check out other possible suspects? [Emphasis added.]
Mr. Duck: Yes, sir. We had made various trips in outlying counties and following up possible leads and information phoned in to different agencies and what have you and they were all negative with result. [Emphasis added.]
During the course of cross-examination, Duck was asked about other suspects:
Defense counsel: And you also said that during the course of your investigation, not only did you investigate here, but you all also investigated some other suspects, is that correct?
Mr. Duck: Yes, sir.
Defense counsel: Were there other suspects in the case?
Mr. Duck: Possibly not suspects, but possible witnesses.
Defense counsel: Were there other circumstances that led you all to be suspicious of someone? [Emphasis added.]
Mr. Duck: Yes, sir, there was.
Defense counsel: And what were the circumstances that had caused you to be suspicious? [Emphasis added.]
At this point, the prosecutor objected, and the following dialogue occurred:
Defense counsel: Your Honor, he opened it up.
The Court: The Court is going to sustain the objection.
Defense counsel: Your Honor, we would like to make a proffer.
The Court: You may do so after I’ve released the jury.
After the jury was released, defense counsel proffered the following testimony:
Defense counsel: Mr. Duck, during the course of your direct examination. . . , you testified as to your role in the investigation of the deaths of Cindy Hefley Bowden and Johnny Hefley, is that correct?
Mr. Duck: Yes, sir.
Defense counsel: And during the course of that testimony, you indicated that one of the things you did was look into other possible leads and suspects, is that correct?
Mr. Duck: Yes, sir.
Defense counsel: Okay. I want to ask you, what other — what steps did you — well, first, let me ask you, what other leads or possible suspects did you have at that time?
Captain Duck then related that he investigated rumors involving an incident in Newton County, one year prior to Johnny Hefley’s and Cindy Bowden’s murders, in which Terry Ricketts killed Roger Nichols. He explained that some evidence in the case indicated that Johnny Hefley supplied the gun used by Ricketts and that Cindy Bowden was the object of the incident.
The testimony continued:
Defense counsel: I understand that, but part of your investigative function was to check out rumors in regard to that?
Mr. Duck: Yes, sir.
Defense counsel: Because of —
The Court: Now, we’re getting into — the Court wants to understand again what my ruling has been here. We’re dealing with both hearsay and relevancy. What you’re eliciting right now —
Defense counsel: Your honor, at this point, the point I’m trying to make is, this officer testified on direct examination that they had other leads and other suspects and that they had checked those out. We have the right to confront this witness about those assertions. At this point, all I’m trying to do is establish what it was he was trying to check out. I haven’t gotten to the point in order to establish — [Emphasis added.]
Defense counsel: Officer, were you involved in that investigation?
Mr. Duck: Yes, sir, I was.
Defense counsel: What did you do specifically in regard to that?
Mr. Duck: Mainly I followed Lieutenant Cornett’s lead and we interviewed various witnesses, myself being a second investigator, in that area in Newton County.
Defense counsel: Did you ascertain whether or not any of those persons that you interviewed had access to a blue Ford pickup truck on the night of the 18 th or 19th of April ?
Mr. Duck: I don’t recall, Mr. Gardner.
Defense counsel: Did you attempt to locate the whereabouts of any persons you interviewed on the night of the 18th or 19th?
Mr. Duck: As I recall, part of the standard interview Lieutenant Cornett used was to establish where individuals were that weekend night and what they were doing before and then after this incident in Harrison.
Defense counsel: Did you fingerprint any of those individuals?
Mr. Duck: No, sir.
Defense counsel: Is there anything else that you did in regard to this investigation insofar as checking leads and talking to suspects out of that, the Newton County case that occurred about a year before that?
Mr. Duck: Not that I recall other than running down various rumors.
Defense counsel: That’s all.
The sixth amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination. Delaware v. Fensterer, 474 U.S. 15 (1985); Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987). See also Miller v. State, 269 Ark. 409, 601 S.W.2d 845 (1980). In fact, “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673 (1986); Davis v. Alaska, 415 U.S. 308 (1974); Winfrey v. State, supra.
However, the right to cross-examine the prosecution’s witnesses is not unlimited. United States v. Cameron, 814 F.2d 403 (7th Cir. 1987). Trial judges have wide latitude insofar as the Confrontation Clause is concerned “to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, supra. The Confrontation Clause “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, supra; Ohio v. Roberts, 448 U.S. 56 (1980).
In order to determine whether the restrictions placed on the right to cross-examine a witness rise to the level of a constitutional deprivation, a reviewing court must look “to the record as a whole” and resolve whether the restrictions that the trial court imposed on the defendant’s cross-examination created a substantial danger of prejudice by depriving the defendant of a meaningful opportunity to elicit available, relevant information that was likely to effectively impeach the credibility of the witness. See United States v. Cameron, supra; United States ex rel. Blackwell v. Franzen, 688 F.2d 496 (7th Cir. 1982), cert. denied, 460 U.S. 1072 (1983). In considering whether there has been a deprivation of meaningful cross-examination in violation of the Confrontation Clause, courts have considered various factors, such as whether an effective cross-examination would have been crucial to the defense. See United States v. Kaplan, 832 F.2d 676 (1st Cir. 1987), cert. denied, 485 U.S. 907, 108 S.Ct. 1080 (1988).
In Davis v. Alaska, supra, the trial court refused to allow the defendant, on cross-examination, to ask a key government witness if the witness had been on probation for burglary at the time he provided the information to the police that led to the arrest of the defendant. The United States Supreme Court reversed the conviction on the basis that the trial court had violated the defendant’s right to confrontation because the restrictions it had imposed made it impossible for the defendant to effectively impeach the witness by showing bias.
In Delaware v. Van Arsdall, supra, the trial court prohibited all inquiry into the possibility that a witness for the prosecution was biased as a result of the State’s dismissal of his pending public drunkenness charge. The United States Supreme Court held that by “cutting off all questioning about an event that the State conceded had taken place and [an event] that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony,” the trial court violated the defendant’s rights secured by the Confrontation Clause.
The case at bar is readily distinguishable from Davis and Van Arsdall. First of all, Captain Duck’s testimony was not a consequential part of the prosecution’s case, and therefore an effective cross-examination was not critical to the defense. The purpose of Duck’s testimony was merely to show the progress of the initial stages of the investigation, including the fact that Bowden was identified as a suspect. Police investigators Gary Keeter, Wayne Cone, and Glen Redding also testified at length concerning most of the same details.
Secondly, it is obvious from examining the proffered testimony by Duck that it, at the most, was marginally relevant. More importantly, if permitted, it likely would have confused the issues in the case. Duck testified concerning his investigation of the various rumors involving an incident in Newton County, prior to the murders of Johnny Hefley and Cindy Bowden, in which Terry Ricketts killed Roger Nichols. He explained that some evidence in that case indicated that Johnny Hefley supplied the gun used by Ricketts and that Cindy Bowden was the object of the incident.
Granted, Captain Duck’s testimony on cross-examination might have had the effect of showing that his recollection of the investigation was slight and that there was not a concerted effort to investigate other suspects. Notwithstanding, the issue of Duck’s investigation of other suspects was not an important part of the State’s case against Bowden.
The likely effect of this testimony would have been to invite the jury to speculate that someone else committed the murders. However, there was no evidence at trial linking other suspects to the actual commission of the murders. See Maxwell v. State, 284 Ark. 501, 683 S.W.2d 908 (1985).
Based upon the foregoing, we conclude that the restrictions the trial court imposed on the scope of Bowden’s cross-examination were proper and that Bowden was not denied his constitutional right to confront the witness against him.
Pursuant to Ark. Sup. Ct. R. 11(f), we have examined all other objections made at trial and find no reversible error.
Affirmed. | [
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Steele Hays, Justice.
Sam and Tim Yielding brought this action against Chrysler Motor Co. (Chrysler) and its dealer, Hagan’s Chrysler-Dodge, Inc., (Hagan’s) alleging a defective condition in a Dodge truck which rendered it unreasonably dangerous. After a jury verdict for the plaintiffs the trial court granted a motion by Chrysler for judgment N.O.V. The Yieldings have appealed. We think the trial judge ruled correctly.
In July 1985, Sam Yielding bought a new Dodge D-50 truck from Hagan’s. In November the vehicle was involved in what seems to have been a minor collision with another vehicle. The truck performed satisfactorily until February 1986, when a problem with the reverse gear developed. The truck had by then been driven some 18,000 miles. Hagan’s worked on the vehicle for several days and afterwards the truck would occasionally stall. In May it would not start and was again returned to Hagan’s for repairs.
The truck continued to operate erratically. Yielding’s mother drove the truck on May 23, 1986, and testified that on three occasions it stalled and then “shot forward,” although she had not accelerated. On May 25 Sam and his brother Tim Yielding used the truck to go fishing. While driving on a dirt road, slick from heavy dew, the truck stalled and then “took off like a rocket,” swerving off the road and striking a tree. Tim Yielding described the incident:
I told Sam to give it gas, and he put it to the floor and he held it there for a second, and it finally just took off like a rocket. And when it did, he lost control of it, and it went right off the ditch on the left, no, the right, he went off to the right, and then it jerked it back up on the road. When he did, he just went right straight across the road and hit the tree.
At that point the odometer reading was 26,953. Sam and Tim sued for injuries sustained in the collision and the jury returned a verdict of $109,682., allocating fault seventy percent to Hagan’s, thirty percent to Chrysler.
In reviewing the granting of a judgment n.o.v., as with a directed verdict, we will affirm only if there is no substantial evidence to support the jury verdict. Northside Construction Co. v. Huffman, 287 Ark. 145, 697 S.W.2d 89 (1985). We review the evidence and any reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment n.o.v. was entered. Lancaster v. Schilling Motors, Inc., 299 Ark. 365, 772 S.W.2d 349 (1989). Substantial evidence must be of sufficient force and character to compel a conclusion one way or another; it must force or induce the mind to pass beyond suspicion or conjecture. Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982).
Under our product liability statute, Ark. Code Ann. § 4-86-102 (1987), a plaintiff must prove that the product as supplied was defective so as to render it unreasonably dangerous and that such defect was the proximate cause of the accident. See Williams v. Smart Chevrolet, 292 Ark. 376, 730 S.W.2d 479 (1987); Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 74 (1985). It must be shown that the product was in a defective condition at the time it left the hands of the particular seller. Nationwide Rentals Co. v. Carter, 298 Ark. 97, 765 S.W.2d 931 (1989); Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979).
It is not necessary to establish these elements by direct proof; circumstantial evidence will suffice. Nor is it necessary to offer proof beyond a reasonable doubt. However, if direct proof is lacking, a plaintiff must negate other possible causes of the accident by a preponderance of the probabilities. Harrell Motors, Inc. v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981).
The evidence in this case focused on a small clamp in the valve body of the transmission, referred to as an E-clip, which was found lying in the oil pan after the collision. There was proof that when an E-clip is not in place it could result in erratic shifting and, depending on which expert was testifying, cause the vehicle to stall, jerk, or lurch.
There was general agreement that the E-clip was not defective in design and that under normal driving conditions an E-clip would not become dislodged. The primary dispute related to whether the E-clip was an incorrect size or had not been properly hardened, or was incorrectly installed in the manufacturing process; or whether the problem was attributable to the repair work performed by Hagan in February and May, or even a combination of causes.
Generally speaking, when a vehicle suddenly goes out of control while being operated, driver error is a likely cause, absent a reliable explanation in the alternative. That factor can be ruled out, however, when the circumstances are such that common experience teaches that the accident would not have occurred in the absence of a defect. That was the situation in Harrell Motors, Inc. v. Flanery, supra, when the van, which was idling in parking gear, suddenly went into reverse and pinned Flanery against a loading dock.
While we cannot say that the circumstances in this case are such that driver error can be excluded, we will agree, for purposes of this discussion, that the testimony negated the likelihood of driver error as a cause of the collision. Appellants’ experts, Larry Pipes and Alton Doughty, testified that a displacement of the E-clip would cause a vehicle to stall, jerk or lurch, characteristics that were consistent, appellants urge, with their description of the truck’s behavior at the time of, and prior to, the collision. While accepting that conclusion, we note that it was by no means clear that either went so far as to say that such condition would cause a vehicle to “take off like a rocket” or to “shoot forward.”
But we cannot agree the evidence established a probability that the E-clip was defective when the truck left the control of the appellee, an essential constituent of proof required under Ark. Code Ann. § 4-86-102 (1987). See Mixon v. Chrysler Motor Corp., 281 Ark. 202, 663 S.W.2d 713 (1984); Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979). Appellants produced substantial evidence that the accident itself would not have caused the E-clip to dislodge and, hence, there was circumstantial evidence of liability on the part of the Hagan’s or Chrysler, or both. There was evidence that Hagan’s had disassembled the transmission after the truck would not go into reverse and from the testimony of James Beavers, Hagan’s mechanic, the jury could have concluded the E-clip had been dislodged or alfected by the transmission work. However, to attribute any liability to Chrysler, it was necessary to show that the product was defective when it left Chrysler’s control — that the clip was flawed in some manner and functioned improperly because of that defect or in conjunction with the work done on the truck by Hagan’s. We find no substantial evidence to support that conclusion.
Appellants assert that Hagan’s did not disassemble the transmission, a circumstance which would strengthen the probability that the E-clip was defective when the vehicle left Chrysler. However, we are unable to adopt that view of the evidence. James Beavers testified, “I pulled the pan off, pulled the transmission out and I disassembled it and put in the necessary parts to fix it.” (Appendix, p. 124). Nor do the appellants take issue with that. Tim Yielding testified, “[Hagan’s] took out the transmission and put in all new parts, is what they told me,” (Supp. Appendix, p. 2) and “they had the transmission out, tore apart and scattered over forty acres.” (Supp. Appendix p. 3.) Moreover, Beavers testified that while the transmission was disassembled, he visually inspected the E-clip and pressed it to be certain it was seated properly.
The first sign of any malfunction attributable to a dislodged E-clip did not develop until after 18,000 miles and the evidence presented showed that had there been a defect in the clip, it would have been exhibited before then. Appellants’ expert theorized how a defective clip might have stayed in place that long, but stated that he would not have expected a defective clip to stay on for 18,000 miles. A similar statement was made by Alton Doughty, a mechanic who had first looked at the truck and found the E-clip dislodged. While Doughty admitted that he had stated in his deposition that it was possible, there was still nothing in his testimony, nor in the testimony of appellants’ expert that would place a finding by the jury on this point beyond one of speculation or conjecture.
Finally, none of appellants’ witnesses had examined the E-clip to see if it was in fact defective, although it was conceded that such tests could have been readily conducted. The appellee presented testimony by an expert who had examined both the clip and its mounting and found them free of any defect. He showed the clip in question, as well as a new one, to the jury and demonstrated how both fit securely on the mounting. There was nothing shown in cross-examination of the witness that exposed any weakness in this testimony.
When reviewing this evidence and any reasonable inferences deducible therefrom in the light most favorable to the appellants, we cannot say there is evidence to induce the mind to pass beyond conjecture as to liability for a defect on the part of Chrysler. As there was no proof against Chrysler on the issue of a defect, it is not necessary to consider the question of proximate cause.
The judgment is affirmed.
Hagan’s initially appealed as well, but settled its dispute with the Yieldings and dropped its appeal. | [
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Tom Glaze, Justice.
This is an appeal from the appellant’s conviction for robbery and theft of property of a E-Z Mart in Springdale, Arkansas, on March 14, 1988. Appellant was sentenced under the habitual offender provision and received a sentence of forty years imprisonment for the robbery conviction and ten years imprisonment for the theft conviction. The sentences were ordered to run concurrently. For reversal, the appellant argues the trial court committed error in denying 1) his motion to dismiss on speedy trial grounds, and 2) his motion to suppress two photographic lineups and the victim’s identification of the appellant. We find no error, and thus affirm.
On March 17,1988, the appellant was arrested and charged by information for the robbery and theft of the E-Z Mart. At his arraignment on March 29,1988, the appellant entered a plea of not guilty, and the trial date was set for June 2,1988. On the day set for trial, the appellant changed his plea to not guilty by reason of mental disease or defect. Upon the change of the appellant’s plea, the trial court properly entered an order to commit the appellant to the State Hospital for examination. See Ark. Code Ann. § 5-2-305 (Supp. 1989). In the order, dated June 2, 1988, the trial judge stated that the examination and observation should not exceed thirty (30) days. A docket entry was made to reflect this order.
On December 1,1988, the trial court received a letter from the State Hospital stating that the appellant was committed to the hospital on November 8,1988, and that he was now ready to return to court for disposition. After receiving this letter, the trial court entered an order on December 7, 1988, directing that the appellant be brought before the court for trial on “call of the court.” This order is noted on the docket. On March 23,1989, the appellant filed his motion to dismiss on speedy trial grounds pursuant to A.R.Cr.P. Rule 28.2. His motion was dismissed, and the appellant was tried on March 27, 1989.
Under A.R.Cr.P. Rule 28.1, the state had twelve (12) months from the time provided in Rule 28.2 to bring the appellant’s case to trial, excluding only such periods of necessary delay as provided for in Rule 28.3. Both sides agree that the time for trial commenced running on March 17,1988. Appellant was tried ten (10) days after the twelve (12) month deadline.
Once it is shown that the trial was held after the speedy trial period set out in Rule 28.1 had expired, the state has the burden of showing that any delay was the result of the appellant’s conduct or was otherwise legally justified. See Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). We hold that the state has met this burden. Pursuant to Rule 28.3(a), the period of delay resulting from an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial is excludable. Here, the appellant was committed at the State Hospital for observation and examination for a period of twenty-three (23) days. Since the appellant was tried only ten (10) days after the twelve (12) month trial deadline, this twenty-three (23) day excludable period is more than enough to bring the state in compliance with the speedy trial rules.
In so holding, we note the appellant’s argument that the trial court failed to make a written order or docket entry noting the number of days of the excluded period in compliance with Rule 28.3(i). We have stated that a trial court should enter written orders, or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify to a day certain the time covered by such excluded periods. Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). But, a trial court’s failure to comply with Rule 28.3(i) does not result in automatic reversal. We have held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Rule 28.3(i). See Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989); Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989).
Here, the record clearly reflects that on the original trial date, the appellant delayed the proceedings by changing his plea to not guilty by mental disease or defect. The docket reflects that the trial judge entered an order to commit the appellant to the State Hospital for not more than thirty (30) days. Further, the record shows that the appellant was not able to be committed to the State Hospital until November 8 due to a waiting list, and that he was at the hospital for examination and observation for twenty-three (23) days. Hence, we hold that the record is sufficient to satisfy the requirements of Rule 28.3(i).
In the second issue, the appellant argues that the trial court erred in refusing to suppress the store clerk’s pretrial identification of the appellant from two photographic lineups. Specifically, the appellant contends that under the totality of the circumstances the identification procedures were so impermissibly suggestive as to give rise to the substantial likelihood of irreparable misidentification. We disagree.
Linda Lance was the store clerk on duty the morning the robbery occurred. She stated that the robber had come in earlier that morning to buy a Coke. On returning to rob the store, the robber had a conversation with the store clerk, which gave her the opportunity to observe him for several minutes. She described the robber as being in his thirties, 5T1” in height with brownish-blonde hair and blue eyes, slim build, and wearing a brown jacket and a baseball cap. Officer David Dodson prepared two separate photographic lineups. The first lineup contained pictures of six men. All of the men had mustaches, brownish-blonde hair and blue eyes, and rather slender faces. The second lineup contained pictures of the appellant and two other men wearing baseball caps. One of these men had a beard and the other had a rather full face. The appellant is the only man whose photograph appeared in both lineups^
The day after the robbery, Lance went to the police station to attempt to identify the robber. There is uncertainty on how the identification process was conducted at the station. The appellant suggests that Lance was shown both lineups at the same time. Officer Dodson testified that Lance was shown the first lineup, and she positively identified the appellant as the robber. Then, according to Dodson, she saw the second lineup by mistake while he was shuffling some papers around his desk. After seeing this lineup, she again identified the appellant as the robber. Lance testified that she was shown both lineups and identified the appellant as the robber in each one, but she was unable to recall how the lineups were shown to her.
We have stated that it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984). Further, we do not reverse a trial court’s ruling on the admissibility of identification evidence unless it is clearly erroneous and do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification.
Here, in ruling on the motion to suppress, the trial court was presented with a swearing match between the appellant’s allegation and Officer Dodson’s testimony. The trial court apparently believed Officer Dodson’s testimony that the clerk was shown the first lineup, by itself, from which she made a positive identification of the appellant, and we cannot say this ruling is clearly erroneous. While we may agree with the appellant’s contention that the second,lineup was suggestive, it would not taint the clerk’s separate, identification of the appellant from the first lineup.
Further, we have held that even if the identification technique used is impermissibly suggestive, testimony concerning it is admissible if the identification in question is reliable. Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988). Reliability is the linchpin in determining the admissibility of identification testimony, and the following factors must be examined to determine reliability: 1) the opportunity of the witness to view the criminal at the time of the crime, 2) the witness’s degree of attention, 3) the accuracy of the prior description, 4) the level of certainty, and 5) the time lapse between the crime and confrontation. Id. The reliability of the clerk’s identification has been shown here. As stated before, the appellant had several minutes during the crime to observe the robber and gave a description to the police. When she went to the police station the next day, she positively and quickly identified the appellant as the robber.
For the reasons stated above, we affirm. | [
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David Newbern, Justice.
This is a negligence case in which the jury found in favor of the defendants. The plaintiffs were Marvin Reddish, his wife Mary, and their son Jason. The Reddishes contend the trial court erred in failing to grant their motion for a new trial. We hold there was substantial evidence to support the verdict, and thus the decision is affirmed.
The defendants, now appellees, were Scott B. Goseland, his employer, Northwest Arkansas Truck & Equipment, Inc., and Doyle Sisson. Sisson was driving his truck, loaded with used batteries, from Huntsville to Springdale. The truck lost power, and he pulled off on a shoulder. He walked around the truck and got under it to try to determine what was wrong, but he found nothing. He saw no leaking seals or other evidence of malfunction. He felt no heat except that from the muffler. He had thought there had been trouble with his clutch earlier. When he got back in the cab, the clutch seemed normal, but the truck would not move under its own power. Sisson called Northwest and spoke to dispatcher Randy Tyree who sent Goseland to Sisson’s aid. Sisson told Tyree and Goseland he thought the problem was that his clutch was out.
Goseland, an experienced wrecker driver, looked the truck over with Sisson and could find no visible defect. He hooked Sisson’s truck onto his wrecker so that Sisson’s truck would be towed from its front. Goseland, Sisson, and Sisson’s son got in the wrecker cab for the tow. At first Sisson’s truck resisted being towed. They again got out and inspected Sisson’s truck, thinking perhaps there was a rock blocking one of the wheels. They found nothing and tried again. This time, the truck moved without difficulty. Goseland checked to assure that the rear wheels of Sisson’s truck were turning.
After they had proceeded about two and a half miles, Sisson noticed there was smoke at the rear of his truck. He told Goseland who immediately began slowing and looking for a place to pull over. Sisson looked again, and sparks were coming off the truck too. About that time, the rear axle on Sisson’s truck separated, and a dual wheel set came off. The time elapsed from the first notice of the smoke until Goseland was able to stop was 45 seconds to one minute during which time they covered some 1200 to 1500 feet. The detached wheels rolled into the front of a truck coming from the opposite direction being driven by Mr. Reddish. Goseland pulled onto the shoulder when he found a place where the truck and tow would be off the highway. It was later determined that bearings had gone out, and the axle on Sisson’s truck had burned in two. The state trooper who investigated the accident testified he could not think of a way the accident could have been avoided. There was no objection to this testimony.
The Reddishes sought $380,000 for their personal injuries, property damages, and Mrs. Reddish’s loss of consortium. They alleged that Sisson and Goseland were both negligent in the maintenance, inspection, and towing of the truck. No evidence of improper or negligent maintenance was presented.
There was one conflict in the evidence. Sisson testified that he told Tyree that he had heard a loud popping noise before his truck began to lose power. He also testified he told Goseland about the noise. Tyree testified he did not recall being told about the popping noise, and he could not recall for sure whether he told Goseland about any such noise. Goseland testified that the first he heard about the popping noise was after the accident had occurred. He said had he known of it earlier, he would still have towed Sisson’s truck from the front because it would not have been safe for him to have hooked it from the rear due to its position on the shoulder where Sisson had parked it. He said he would have towed it to a place where he could have detached it and then hooked on to the rear for the remainder of the tow.
A trial court may grant a motion for a new trial if the jury verdict is clearly against the preponderance of the evidence. Ark. R. Civ. P. 59(a)(6). If the motion is denied, the standard of review is whether the jury verdict is supported by substantial evidence. Johnson v. Cross, 281 Ark. 146, 661 S.W.2d 386 (1983); Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982). The Reddishes argue that if Sisson did not tell Goseland about the popping noise, then he must have been negligent. If Sisson did tell Goseland about it, then Goseland must have been negligent in not towing the truck from the rear.
The jury’s verdict was taken on two simple interrogatories. The first asked if Goseland had been negligent. The second asked if Sisson had been negligent. The unanimous answer to each was negative. We do not know the facts accepted by the jury. The evidence, however, was sufficient to support a conclusion that, for example, Sisson thought he had told Goseland about the noise, but did not. In that event, given his supposition that he was having clutch problems, it would not necessarily have been negligence for him to fail to tell Goseland or his dispatcher about the noise, and in that event, there would have been no negligence on the part of Goseland either.
Given the evidence of the care exercised at the scene by both Sisson and Goseland, we cannot say there was no substantial evidence to support the jury’s determination that neither was negligent.
The Reddishes also argue negligence was shown in the distance travelled after the smoke was first sighted. Again, we see no reason the jury should necessarily have found negligence. From Goseland’s testimony the jury could readily have inferred he took the first opportunity to get his truck and Sisson’s off the road after learning of the danger.
Affirmed.
Price, J., not participating. | [
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Robert H. Dudley, Justice.
Appellant, Arkansas Oklahoma Gas Corp., owns and utilizes two buildings in Fort Smith which contained asbestos insulation. One of the buildings is appellant’s main office building where the insulation was in a mechanical equipment room located in the basement. The other building is a garage. Appellant decided to make renovations in both the mechanical equipment room of the main office and in the garage. Before making those renovations, however, appellant had all of the asbestos removed from each building. Appellant filed an interim rate schedule with appellee and imposed an interim surcharge to recover the costs of removing the asbestos pursuant to Ark. Code Ann. §§ 23-4-501 to-509 (1987). After hearings on the surcharge, appellee, Arkansas Public Service Commission, denied the rate applications and ordered that the money collected from the surcharge be refunded. That decision was appealed to the Court of Appeals which affirmed the commission’s decision. Arkansas Oklahoma Gas Corp. v. Arkansas Public Service Comm’n, 27 Ark. App. 277, 770 S.W.2d 180 (1989). We granted appellant’s petition for review and reverse the commission’s decision.
There is really only one issue raised by this appeal, although appellant has divided it into three points of appeal. The issue is whether the above cited statutes provide for the recovery of the costs associated with the removal of asbestos. We hold that they do.
First, Ark. Code Ann. § 23-4-502 (1987) states in pertinent part:
Any public utility . . . may recover all costs and expenses reasonably incurred by such utility as a direct result of legislative or regulatory requirements relating to the protection of the public health, safety, and the environment ....
Second, 40 C.F.R. § 61.147, a federal regulation promulgated by the Environmental Protection Agency in order to implement the Clean Air Act, 42 U.S.C. §§ 7401-7642, relates “to the protection of the public health, safety, and the environ ment.” That regulation provides in pertinent part:
Each owner or operator to whom this section applies shall comply with the following procedures to prevent emissions of particulate asbestos material to the outside air:
(a) Remove friable asbestos materials from a facility being demolished or renovated before any wrecking or dismantling that would break up the materials or preclude access to the materials for subsequent removal.
(Emphasis added.)
In determining whether section 61.147 applied to appellant, it is necessary to examine section 61.145(d) which provides that, “If at least 80 linear meters (260 linear feet) of friable asbestos materials on pipes or at least 15 square meters (160 square feet) of friable asbestos materials on other facility components are stripped or removed at a facility being renovated, all the requirements of §§ 61.146 [notice] and 61.147 apply.”
It is not disputed that the material removed from both buildings contained asbestos. Neither is it disputed that the alterations made to each building constituted “renovations” as that term is defined in the regulations. In addition, appellant introduced over eighty (80) photographs showing the pertinent areas of each building, both before and after the asbestos removal process. They show that the amount of asbestos removed from each building met the minimum requirements set forth in 40 C.F.R. § 61.145(d).
The commission, however, found that the asbestos material was not “friable.” Findings of fact by the commission are conclusive if they are supported by substantial evidence. Ark. Code Ann. § 23-2-423 (1987). However, in this case there was no substantial evidence to support the commission’s finding of fact.
“Friable asbestos material means any material containing more than 1 percent asbestos by weight that hand pressure can crumble, pulverize, or reduce to powder when dry.” 40 C.F.R. § 61.147(a). Thus, under federal regulations, the key question in determining friability is whether the asbestos mate rial can be crumbled, pulverized or reduced to powder by hand pressure. Appellee relies upon the testimony of Ralph Sandage, one of appellee’s engineers, in supporting its finding that the material was not friable. However, Sandage never testified that he used the proper test in determining the friability of the material. Instead, he testified the material would not disintegrate upon being touched, pushed, poked, brushed, or bumped and that it came out in a clump and seemed solid; but, the following question and answer were critical on this issue, and show that Sandage did not apply the proper test under the terms of the federal regulation:
Q. Did you try to crumble it or crush it?
A. No, I just pushed — I pushed on — it was a section of a wall in the garage, and I pushed on the asbestos, and it didn’t do anything basically.
To answer your question, I did not attempt to crumble it.
On the other hand, Michael Callan, a witness for appellant, testified directly about the friability of the material in the terms used by the regulation:
A: Friable is defined as being able to be pulverized with hand pressure.
Now, the materials in that room — possibly from even the pictures you can tell that you could scrape them off with your hand and pulverize them. They are the very definition of friability.
Further, Thomas Rimmer, a consultant in the field of industrial hygiene, was retained by appellant to advise in the proper handling of the asbestos material. He testified that removal of the asbestos was the only practical solution and that the expense of partial removal of the asbestos would be much greater in the long run than a one-time complete removal.
Accordingly, we conclude that § 61.147(a) was applicable to appellant and that under that regulation appellant was required to remove the asbestos material before undertaking its renovations. Further, the costs associated with the removal of the asbestos are a direct result of this regulatory requirement and clearly related to the protection of the public health, safety, and the environment as set forth in Ark. Code Ann. § 23-4-502 (1987).
Reversed and remanded to the Public Service Commission for specific findings on the amount of allowable expenses.
Hickman and Hays, JJ., dissent.
Glaze, J., concurs. | [
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Humphreys, J.
Appellant instituted this suit against appellees in the chancery court of Clark County to redeem certain lands described in the complaint from a sale by the Boss Drainage District of said land on October 3, 1922, in a foreclosure proceeding, to satisfy its lien for delinquent benefit taxes due for the year 1921. Omitting the caption and other formal parts the complaint is as follows. On October 2, 1925, appellants filed the following complaint:
“Comes the Security Mortgage Company, a corporation domiciled at Texarkana, Arkansas, and for their cause of action against James Bell, Lula Bell, Alfred. Terrell,.....................Terrell, his wife; the Cil meins’ National Bank, the Saunders Mercantile Company, a corporation, John F. Bevill,..............................Bevill, his wife, and 0. 0. Meek, and........................, his wife, defendants, allege:
“That, on February 20, 1919, James Bell and Lula Bell executed and delivered to the Security Mortgage Company their promissory note in the sum of $2,000, due March 1, 1926, with semi-'annual coupons covering the interest on said note, and said note provides that failure to pay either installment of interest when due shall, at the option of the holder, mature the entire indebtedness, principal and interest, a copy of which note is hereby attached, marked Exhibit A, and made a part hereof; that on said February 20, 1919, said James Bell and Lula Bell executed and delivered as security for the payment of said note a mortgage conveying the following-described lands, located in Clark County, Arkansas, to-wit: The south half of the northeast quarter of the northwest quarter; the south half of the northwest quarter, and the northwest quarter of the southwest quarter of section 34, township 8 south, range 20 west. Said mortgage provides that failure to pay any installment of interest, or the taxes and assessments for local investments, shall, at the option of the Security Mortgage Company, mature all of said indebtedness, principal and interest earned. A copy of said mortgage is hereto attached, marked Exhibit B and made a part hereof; that said James Bell and Lula Bell have failed and refused to pay the various installments of interest due to this date, as shown by the interest coupons attached to said note, and have failed and refused to pay the taxes and the assessments due Boss Drainage District when due and payable, and therefore the entire indebtedness, principal and interest, is declared due and payable.
“Section 1. Plaintiffs further allege that, on or about November 19, 1919, said James Bell and Lula Bell executed and delivered ia warranty deed to Alfred Terrell, in consideration of the assumption of the above indebtedness, conveying the following lands in Clark County, Arkansas, to-wit: The northwest quarter of the southwest quarter of section 34, township .8 south, range 20 west; said deed is duly recorded in the office of the recorder in and for Clark County, Arkansas, in record book 89, at page 437.
“Section 2. Plaintiffs further allege that, on June 8, 1922, in the case of B. F. Dooley, as trustee, the Saunders Mercantile Company and the Citizens’ National Bank, plaintiffs against James Bell, Lula Bell, the Security Mortgage Company, the Mclver Abstract Company, N. R. Franklin, and W. B. East, as trustee, defendants, a decree was rendered by the chancery court of Clark County foreclosing certain indebtedness due the plaintiffs in said suit, and declared same subject to the indebtedness due the Security Mortgage Company, as hereinbefore set out, and, said indebtedness not being due, and said defendant, Security Mortgage Company, electing not to foreclose their first lien, said lands were ordered sold subject to said mortgage; and that, under the decree, the following lands were sold to the Citizens’ National Bank and the Saunders Mercantile Company, located in Clark County, to-wit: the south half of the northeast quarter of the northwest quarter and the south half of the northwest quarter of section 34, township 8 south, range 20 west. A commissioner’s deed was duly executed December 7, 1922, conveying said lands to the Citizens’ National Bank and the Saunders Mercantile Company, and is now on record in the office of the recorder in and for Clark County, Arkansas, in record book 110, at page 259.
“Plaintiffs further allege that, on October 3, 1922, upon constructive service only, a decree Was rendered by the chancery court of Clark County, Arkansas, in the case of the board of directors of Ross Drainage District, plaintiff, against James Bell as the supposed owner of the following described lands located in Clark County, Arkansas, for the drainage assessments, to-wit: The south half of the northeast quarter of the northwest quarter and the south half of the northwest quarter of section 34, township 8 south, range 20 west; that neither the Saunders Mercantile Company nor the Citizens’ National Bank nor the Security Mortgage Company were mlade parties to said suit, although said decree of foreclosure above set out and under which the legal title was vested in them was entered long prior to the filing of said suit for the collection of the assessments due said Boss Drainage District. Said proceedings are therefore void for lack of legal service as provided by law.
“Section 3. Plaintiffs further allege that said lands were sold under the provisions of said decree to the marntL. Drainage District and the purported legal title "tested in said district; that said Citizens’ National Bank and the Saunders Mercantile Company, as owners of the legal title, subject to mortgage of plaintiffs herein, failed to redeem said lands from said decree of foreclosure in favor of said Boss Drainage District, as provided by the act creating said district; that Callaway & Callaway, attorneys at law, of Arkadelphia, Arkansas, were the attorneys for the Boss Drainage District, and were also the attorneys for.the Citizens’ National Bank, and that, through the connivance of said attorneys, said drainage district, upon payment of the assessments due, amounting to $75.75, conveyed said lands to one John F. Bevill for the use and benefit of said bank and said Saunders Mercantile Company, the owners as above alleged; that the purpose of said conveyance was to defeat the plaintiffs’ first mortgage hereinbefore set out as a lien against said lands; that said owners were collecting the rents and profits from said lands, and it was their duty to redeem same, and said transfer should be treated as a redemption.
“Plaintiffs further allege that the actual value of said lands is unknown to them, hut that same are worth at least the sum of $1,000.
“Plaintiffs further allege that thereafter, through the connivance of said attorneys with said bank and mercantile company, and for the purpose of further concealing the interest of said bank and mercantile company, and to. defeat the plaintiffs’ first lien, plaintiffs are informed and believe that said John F. Bevill and wife conveyed said lands to 0. 0. Meek for a nominal consideration, although his deed does not appear of record.
“Plaintiffs further allege that they are entitled to redeem said lands from the sale to the Ross Drainage District, said pretended sale being merely a redemption in fact for the benefit of the legal and equitable owners of said lands.
“Section 4. Plaintiffs further allege that thewAU?p,, entitled to redeem from said sale, under the decree (flKjfe court to the Ross Drainage District, by virtue of act NoT 43 of the Acts of the Legislature of Arkansas for the year 1915 (1915 Acts 123), which provides that plaintiff shall have five years in which to redeem from said sale, land they here offer to pay the amount necessary under the law for the redemption of said lands upon being informed of the correct amount.
“Wherefore plaintiffs pray that they have a judgment for the amount of principal and interest due said James Bell and Lula Bell, as herein set out, and for all costs; that they be permitted to redeem from the sale for the assessments due Ross Drainage' District, as herein set out, and that said lands be ordered sold for the satisfaction of the amounts due them, and for all other proper and equitable relief. ”
Appellee, 0. 0. Meek, demurred in the lower court to numbers 2 and 3 and the first paragraph of § 4, each section being demurred to separately. The trial court sustained appellee’s demurrer to § No. 3 and the first paragraph of § No. 4, but overruled it as to § No. 2. Appellant refused to plead further, and said complaint was dismissed as to § 3 and the first paragraph of § 4, from which order plaintiff appealed. Appellees filed a motion to dismiss the appeal, on the ground that it was prematurely taken. After the demurrer was sustained to § 3 and the first paragraph of § 4 of the complaint and the complaint embracing these sections was dismissed, § 2 of the complaint remained, the demurrer having been overruled as to it. This section of the complaint tendered an issue as to the validity of the tax foreclosure sale, which should have been tried before an appeal was granted and perfected. An objection and exception to the ruling of the court sustaining a demurrer to the third section and first paragraph of the fourth section of the ¡complaint fully saved the point for review by this court on final adjudication and appeal of the whole action. This court said, in the case of Davie v. Davie, 52 Ark. on page 227, 12 S. W. 558, 20 Am. St. Rep. 170:
“The object of the limitation is to present the whole cause here for determination in a single appeal and. thus prevent the unnecessary expense and delay of repeated appeals.”
As the appeal must be dismissed for being prematurely taken, we refrain from passing upon the issues determined upon demurrer until the whole case is brought before us on appeal properly taken and prosecuted.
The appeal is therefore dismissed, and the cause is remanded- for proceedings not inconsistent with this opinion. | [
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Kirby, J.
Appellants insist that the chancellor adopted an erroneous method for determining, the liability of Milton Winham, and that the corporation losses for each of the years or seasons for which he executed the stockholders’ agreements should have been taken into consideration proportionately to the entire amount of indebtedness incurred by the corporation during its operation under the stockholders’ agreements and remaining unpaid upon its liquidation. The stockholders’ agreement, however, did not bind the members executing it to the payment of the losses of the corporation during the particular season, but only to liability for contribution to the payment of the losses of the indorsers on the corporation paper suffered by reason of their indorsements.
The undisputed testimony shows that the total losses sustained in operating the plant for the years during which the stockholders’ agreements were executed to liquidation amounted to $179,940.93; that, after crediting the proceeds of the sale of the plant made in liquidation, $100,000, there remained an unpaid indebtedness incurred during the period of operation under the stockholders ’ agreements, $139,934.23, which had not accrued in any particular year. The notes or indebtedness being renewed from year to year until the liquidation of the corporation, and also that the defendants, appellants, paid the said balance.
Winham signed the stockholders’ agreements for each of the three seasons, the 1921-22 season being the last, and the indorsed notes outstanding, executed and renewed, for the corporation indebtedness, at the end of that period, for contribution to the payment of which the signers of the stockholders’ agreements were liable upon its payment by the indorsers, Winham among the number, amounted to $141,733.34. While it is true that, during the season of 1922-23, for which Winham did not sign the stockholders’ agreement, the last signed by him being for the season of 1921-1922, the corporation earned only ¡a small profit of $2,502.37, it is also undisputed that the amount of the indorsed notes outstanding, executed and renewed, for which he was liable to contribution upon payment under the last stockholders’ agreement executed by him, had been reduced to $130,351.15, in the amount of $16,500, without loss to or payment thereof by the indorsers, necessarily relieving' him from liability to contribution under the stockholders’ agreement to the payment of the said sum of the reduction for which the indorsers could not suffer a loss.
Each stockholders’ agreement signed by Winham provided that the liability to contribution to payment of the notes and indebtedness secured by indorsements should continue to all renewals and until their discharge. The last agreement executed bound him to contribution to the payment of the losses suffered by the indorsers of the amount due thereunder to the end of the term, less the amount of reduction of said indebtedness thereafter made by the corporation. He could not, of course, be held for contribution under the stockholders’ agreement to the payment of indebtedness incurred in the operation of the plant after the termination of the last contract signed by him.
The court correctly held that the sale of the assets of the corporation was duly made and free from fraud, and that the price obtained, $100,000, was. the reasonable value thereof, and also that that amount constituted the fair market value of the assets of the corporation at the termination of the last stockholders’ agreement executed by Winham. Deducting the amount of said sale price, $100,000, with the amount of reduction of the indorsed liability for the season of 1922-23, $16,500, from the whole amount of the indorsed indebtedness existing at the end of the last season for which Winham executed the stockholders’ agreements, $141,733.34, leaves a balance of $25,083.34, for which Winham is liable to contribution and must pay his proportionate share as fixed by said stockholders’ agreement, amounting to $2,219.25, with interest, as held by the lower court.
Appellees insist that the method of liquidation of the old corporation and of payment of its indebtedness by the indorsers amounted to but a reorganization of the corporation with the liability of the new corporation to the payment of the old indorsed indebtedness, no part of which they claim has, in fact, been paid by the indorsers; and that therefore appellants are not entitled to any contribution from Winham and the other signers of the stockholders’ agreement for any losses alleged to have been sustained by reason of their indorsements of the old corporation’s notes, for contribution to the payment of which by the indorsers Winham bound himself by the execution of the stockholders’ agreement. We find no merit in this contention.
The circumstances of the organization of the new corporation are not such as to warrant the conclusion that it is not a separate and distinct corporation, but merely a continuation of the old corporation. It did not in express terms or by reasonable implication assume the payment of the debts or liabilities of the old corporation. While it is true that some of the former stockholders of the liquidated debtor corporation, through a trustee, purchased its entire property and assets at the liquidation sale, which the court properly held duly made and free from fraud, and organized a new corporation, taking stock therein to the amount of the cash contributed by each to the payment of the $100,000 fund used in its purchase, there was no such taking over of the entire property, rights and franchise of the old by the new corporation, nor any such continuation of the business or adoption of the contracts of the old corporation, as warrants the conclusion that the old corporation was reorganized into the new.
Although the property and assets of the old corporation, purchased by their trustee at the liquidation sale for the individuals, who were some of its stockholders, with the $100,000 contributed by them to the purchase fund, was conveyed directly to the new corporation organized by the said purchasers of the assets of the old corporation by their direction, for convenience in saving a transfer through the trustee to the new corporation, it constituted, under the circumstances of this case, no reorganization of or continuation of the old corporation.
The indorsers on the paper of the old corporation, liable to the payment of its debts as such, and for loss to whom by such indorsement the stockholders’ agreement for contribution was made, paid off all the indebtedness for which they were liable by substituting notes signed by the new corporation and indorsed by them individually, taking up the old notes and discharging their liability thereunder by the new notes, which were accepted by the holders in payment of the old. This amounted to a satisfaction and payment of the indebtedness, of the old corporation for payment of which they were liable upon their indorsement, and for which loss because thereof appellees were liable to contribution, so far as they are concerned. As to them, those liable to contribution, said debts were paid and extinguished, the holders having consented thereto and accepted the new obligations in lieu of the old surrendered and delivered to the makers. Viser v. Bertrand, 14 Ark. 267; Elkins v. Voght Machine Co., 125 Ark. 6, 187 S. W. 663; and Harrison v. Walker, 124 Ark. 555, 188 S. W. 17.
It can make no difference in allowing the credit of the sale price of the assets of the corporation realized upon its liquidation, $100,000, the sale having occurred more than two years after the expiration of the last stockholders’ agreement signed by Winham, from the amount of the indebtedness of the corporation in ascertaining the amount for which Winham was liable to contribution under the stockholders’ agreement, since the undisputed testimony shows that said amount was the fair and reasonable market value of the assets of the corporation at that time. We find no error in the record, and the decree is accordingly affirmed. | [
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Hart, C. J.
John Bowlin prosecutes this appeal to reverse a judgment of conviction against him for rescuing one who was in custody after' a lawful arrest, in violation of the provisions of § 2571 of Crawford & Moses’ Digest.
The first assignment of error is that the court had no jurisdiction of -the case, because there were no funds in the county treasury of Johnson County for the purpose of 'holding circuit court at the time the trial of the defendant was had. This assignment of error is not well taken. The defendant was prosecuted and convicted at a trial in the circuit court of Johnson County, which was held at the time and place and in the manner prescribed by law. He had an opportunity to make all the defenses which he had to the indictment and to have present in court all the witnesses in his behalf. This constituted due process of law. The fact that there was no money in the treasury to pay the jurors and witnesses did not in any manner affect the legality of the trial. This was a collateral issue, and could not affect the jurisdiction of the court ór the legality of the proceedings at the trial.
The next assignment of error is that the court allowed the prosecuting attorney to ask the defendant the following question: “How many times have you been fined and pleaded guilty for fighting, or other offenses in Johnson County since you have lived here?” The defendant answered that he had not been fined in the last two years. In the first place, it may be said that the question was a proper one on cross-examination, as affecting the credibility of the defendant as a witness. Whittaker v. State, 171 Ark. 762, 286 S. W. 987. Besides, the defendant answered the question in the negative, and no prejudice could have resulted to him from the question when it was considered in connection with his answer.
It is next insisted that the court erred in instructing the jury. Objection was made by the defendant to the giving of several instructions to the jury and in refusing to give an instruction asked by him. We do not deem it necessary to set out these instructions or to comment upon them at length. The defendant was indicted under § 2571 of Crawford & Moses’ Digest. The court read the statute to the jury, and fully and fairly instructed the jury upon the doctrine of reasonable doubt and the credibility to be given to the witnesses. The court, in other instructions, fully and fairly submitted to the jury the respective theories of the State and of the defendant. The instructions were very full, and were fair to the defendant.
The main reliance of the defendant for a reversal of the judgment is that the testimony was not legally sufficient to warrant the verdict. It is true that, according to the testimony of the defendant and of his witnesses, he only attempted to persuade the officers to let him take his brother home instead of putting him in jail, and that he finally interfered because he thought the deputy sheriff was going to shoot his brother, whom he was charged with rescuing from the deputy sheriff. Under our jucli oial system the jury are the judges of the credibility of the witnesses and the weight to be given to their testimony. Hence, in determining the legal sufficiency of the evidence to support the verdict, we must consider the evidence in the light most favorable to the State. When this is done, it cannot be said that the evidence for the State has no probative force which would warrant the jury in returning a verdict of guilty.
According to the evidence for the State, a deputy sheriff oí Johnson County arrested Jim Bowlin, a brother of John Bowlin, and started with him to jail. While they were on their way to jail, John Bowlin overtook them and told the deputy sheriff that he was going to take his brother back with him. He told the deputy sheriff that he was not going' to allow him to take Jim Bowlin to jail. Finally Jim Bowlin threw down his hat, stated that he was not going to .jail, and started to run. John Bowlin jumped in front of the deputy sheriff, and grabbed at the shotgun which he carried. The deputy sheriff then hit John Bowlin with his gun, and Jim Bowlin ran off a little ways. John cursed the officers, and kept telling them that they could, not take his brother to jail.
Other witnesses for the State testified that, when John Bowlin overtook the officers, he told them that they could not take his brother Jim to jail, and that he was not going to have the officers going after Jim with a shotgun. Jim Bowlin was drunk, but insisted that John should go back home. John Bowlin replied that he would not do so, and told the officers that he was going to take Jim back home with him. ' When Jim Bowlin started to run, John Bowlin made a pass at the deputy sheriff; then the deputy sheriff struck him with his gun.
According to the testimony of other witnesses, John Bowlin seemed to be mad because the officers had a shotgun when they arrested his brother, and John repeatedly told the officers that they could not take his brother to jail. When Jim Bowlin started to run, John Bowlin jumped between the deputy sheriff and Jim. When he did this, the deputy sheriff struck John Bowlin with his gun.
Under these circumstances it was a question for the jury to determine whether or not John jumped in front of the officers to prevent them from shooting his brother or whether he did so to rescue his brother from the custody of the officers. Hence, when the evidence is viewed in the light most favorable to the State, it was legally sufficient to- warrant a verdict of guilty.
We find no prejudicial' error in the record, and the judgment will therefore be affirmed. | [
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Mehaffy, J.
This action was begun in the Bradley Circuit Court by plaintiffs, who are appellants here. Plaintiffs alleged that they were the owners and entitled to the possession of the lands described in their complaint; that the defendants were in the actual possession of said lands under some claim unknown to the plaintiffs, and refused to give possession. Plaintiffs claimed under B. J. Lewis, who had purchased said lands from the Rock Island Townsite Company. There was no dispute about the title of B. J. Lewis. Plaintiffs are the only heirs of B. J. Lewis. They allege that defendants were in the wrongful possession of said lands, and refused to deliver possession to the plaintiffs.
Defendants filed answer and motion to transfer to equity. The motion to transfer to equity was granted by the court, over the objections of plaintiffs. Defendants admitted they were in possession of the lands in controversy, and alleged that J. P. Lansdale advanced the money to B. J. Lewis to purchase said lands. That B. J. Lewis and his wife, who is now Mary Lewis Sanders, made a note and mortgage or deed of trust to secure the payment of the indebtedness due to Lansdale. R. W. Carnley was named as trustee in the deed of trust. That H. C. Johnson was substituted as trustee in place of R. W. Carnley. After B. J. Lewis died, the debt to Lansdale not having been paid, H. C. Johnson, substituted trustee, advertised and sold the land in controversy under the power of sale contained in the deed of trust, and F. R. Dowell became the purchaser. The evidence shows the execution of the note and deed of trust, the sale under the power of sale contained in the mortgage, and it also shows the indebtedness existing at the time of the sale. Plaintiffs moved to transfer the case back to the circuit court, which motion was overruled.
Counsel for appellants state that there is only one question involved, and that is whether the attempted foreclosure sale is valid or void. The lower court held that it was valid, and to reverse that decree plaintiffs prosecute this appeal.
Lewis was indebted to Lansdale, in addition to the note, for supplies furnished. And it is first contended by appellants that the deed of trust was given for the purpose of securing the note for $300 due December 15, 1918, and that nothing whatever was said about future advances in the deed of trust, and that therefore the mortgage was not intended to secure the payment of any debt other than the $300 note. The mortgage or deed of trust covered not only the 15 acres involved in this suit, but also block 52 in the town of Hermitage, some live stock, and the entire crop of cotton and corn to be grown during the year 1918 in Bradley County by the mortgagors. And the mortgage contained the following*: “This sale is on condition that, whereas we are justly indebted to J. P. Lansdale in the sum of $300, evidenced by our note of even date, due and payable on December 15, 1918, and bearing 10 per cent, interest from date until fully paid, and have agreed to pay all taxes assigned .against the property and to keep the premises insured.”
And it also contains the following: “Now if we shall pay said moneys at the time and in the manner aforesaid, and all other indebtedness which may be due said J. P. Lansdale, and all taxes and insurance, then the above conveyance shall be null and void, else to remain in full force.”
The deed of trust then contains the power of sale.
In order to ascertain the intention of the parties in the mortgage and whether or not any indebtedness is secured by said mortgage other than the $300 note, it is proper to consider the entire mortgage. This court has frequently held that each case calls for an interpretation otf the language of the mortgage, so as to determine whether the description falls within the rule announced. That is, within the rule adopted by this court. See Patterson v. Ogles, 152 Ark. 395, 238 S. W. 598, and cases there cited.
We think, under a proper construction of the mortgage, it secures the debt for advances made as well as the $300 note mentioned. The 15 acres of land only was sold under the power of sale in the mortgage. The mortgage included, as we have said, block 52 in the town of Hermitage, some live stock, and the entire crop raised by the mortgagors, and provided for the payment of ,all other indebtedness and taxes and insurance. But whether it included the advances or not appears to be immaterial in this case.
Appellant argues that, when you apply the rule ¡as to the application of payments, the note secured by the mortgage would be paid and whatever indebtedness there was in addition to that would not be secured by the mortgage, and therefore the mortgagee would have no right to sell. The first payment of $250.70 was made before the note was due, and the rule with reference to application of payments, if neither the debtor nor creditor made any application, would require this payment to be applied to a debt that was due rather than to the note which was not due. In fact, the creditor would not have had the right to apply this payment, which was made before -the maturity of the note, to a debt not due.
The rule is stated in Cyc. to be that the law will apply the payment to a debt that has matured rather than one not yet due. 30 Cyc. 1242.
Again it is said: “Except where equitable principles require a different disposition thereof, or where a •different application has been made by the parties themselves, it is a well-settled rnle that a payment should be applied by the court to the oldest debt, where there is more than one debt. That is, the debt first.becoming due.” 30 Cyc. 1243,
It is also held by many courts that the oldest debt means the first debt due, land not the first debt contracted. Numerous eases are cited under the above section of Cyc.
The following is a note in 30 Cyc. 1244: “Where several notes have been given at the same time by the same person and payable to the same party, but falling due at different times, partial payments made by the debtor to the creditor when the notes are all due will be applied to the payment of principal and interest of the note first due, and so on in this order until the last note is paid.”
In this case we have the payment made some days before the note is due, and, as neither party made any application of the payment, the law applies it to the payment of the debt due and not to the note which was not yet due.
Another rule well settled is that even a payment that was thereafter made, if it applied to the note, would go first to the payment of interest.
“As to the appropriation of payments, there is no proof that the right of appropriation was exercised by either party at the time the payments were made, and the court below found that they were made generally, and appropriated them according to priority, the first payment to the first items on the accounts between the parties, which was the rule approved in Kline v. Ragland, 47 Ark. 111, 14 S. W. 474, where it is held that “when, in the absence of appropriation 'by a debtor, the creditor appropriates payments from him to a running account, the law will apply them to the items of the account in the order of their dates.” Citing Price v. Dowdy, 34 Ark. 285; and continuing, the court said: “The latter case says, ‘a different agreement may be shown by evidence’.” Lazarus v. Freidheim, 51 Ark. 371, 11 S. W. 518.
The court in the above ease holds that they are paid according to the priority. As we have already shown, however, that means of debts that are due. The creditor would have no right and the law would not apply a payment to a debt that was -not due rather than to a debt that was due.
‘ ‘ The right of a creditor to make application of payments to one of several debts owing from the debtor applies only to those that are then due, and does not apply at. all when the debtor himself makes the appropriation.” Gates Bros. v. Burkett, 44 Ark. 90.
Applying the payments that were made according to these rules, the first payment that was made would have to go to the payments other than the $300 note, because it was not due. Subsequent payments, even if they were applied to the note, would be applied first to interest; so that it would make but little difference in the result whether the deed of trust secured the payment of the accounts or not.
Appellants next contend that the substituted trustee was without authority to act in the attempted foreclosure sale, and calls attention to Stallings v. Thomas, 55 Ark. 326, 18 S. W. 184. It appears from the quotation that the deed of trust in that case provided that the beneficiary might substitute another trustee in case the trustee named in the deed fails or refuses to execute, and the court held that, since he had never been asked to make the sale, it could not be held that he had failed or refused to execute it. ‘But in the ease at bar the deed of trust provided that, if the trustee was incapacitated by sickness, absence, death or any other cause, ia trustee might be substituted, and the undisputed proof shows that the trustee, Oarnley, was absent, and, that being true, the beneficiary had a right to substitute Dowell.
It is next contended by appellant that the sale is void because there was no appraisement. The record does not show whether there was an appraisement or not, and this was not an issue in the court below, and there fore cannot be considered here. And of .course, if the sale is valid, as held by the court below, this is a complete answer to appellants’ next contention, that Dowell was holding as mortgagee in possession.
It is argued also that the„15 acres of land involved in this controversy was the homestead of B. J. Lewis and his family, and that some of his heirs are minors. If the sale was valid under the power of sale in the mortgage it would be unimportant whether it was a homestead or not; but the undisputed proof shows that the mortgage included the 15 acres involved in this suit, and this tract of land was described by metes and bounds in the mortgage, and the mortgage provides that, in addition to that, block 52 in the town of Hermitage is mortgaged. Block 5'2 may or may not be contiguous to the 15 acres. If it were not, of course the 15 acres would not be a part of the homestead. If it were contiguous, it would then depend upon the value as to how much could be claimed as a homestead. But the undisputed proof shows that the homestead, block 52, was included, but that Lansdale would not sell that, and told the widow of B. J. Lewis that he would not sell it, and it is therefore not involved in this suit.
As to whether the deed of trust had been correctly satisfied was a question of fact to be determined by the court, and, even if it had been satisfied on the record through mistake and the debt had not been paid, such satisfaction would not prevent a sale of the property to collect the debt. But all of the facts were determined by the chancellor, and we could not reverse on that unless we could say that his finding was against the preponder-, anee of the evidence.
Our conclusion is that the decree of the chancery court is correct, and it is therefore affirmed. | [
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Grieein Smith, C. J.
The. issue is whether W. H. Turnage, A. D. Blakely, and Carl Lewis were partners in a grocery business; or, in the alternative, if it should be held that as between themselves there was no intention to create the relationship, is Turnage, because of conduct, estopped to deny his connection.
Blakely and Alvin Pitts, with $2,000 supplied by Turnage, went from Smackover, Arkansas, to Arp, Texas, and opened a place of business in February, 1938. Contract between the parties was in triplicate, but prior to trial all were lost. Evidence is abundant that if Turnage had rested his rights on the agreement and had refrained from activities relating to the business, the liability now asserted against him could not be sustained.
Blakely communicated to Turnage his displeasure at Pitts’ attitude. This occurred approximately two months after the store was opened. Responding to Blakely’s complaints, Turnage wrote the letter shown below. Blakely says that when Pitts went “haywire” by drawing from $200 to $250 monthly for personal use, he (Blakely) proposed to purchase from Pitts, or to sell. Since Pitts did not have money with which to acquire Blakely’s interest, and was not willing to accept the offer made by letter, Turnage and his lawyer went to Arp and concluded an arrangement whereby for $250 paid by Turnage, Pitts “bargained, sold, and conveyed whatever interest he had” to Lewis, whom Blakely had recommended to Turnage as one with whom he would like to be associated. Evidence of the transaction, as quoted in the preceding sentence, was indorsed by Pitts on the back of two of the originals of the contract made before business was begun in Texas.
There is testimony of mutual intentions to have the new agreement formally written and signed, but this was not done.
Turnage contends that as between himself and Blakely and Pitts, the status was that of debtor and creditor: that is, he made a personal loan with the understanding interest at ten percent per annum would be paid and a third of the profits would be applied toward liquidation of the obligation.
The enterprise was not profitable. Two months after Lewis became a partner with Blakely they moved the stock of goods to Smackover. Turnage says this was without his knowledge. However, he rented a building for accommodation of the parties and interested himself in other ways.
On petition of Ritchie Grocer Company Lewis and Blakely were superseded when on May 1, 1939, Homer T. Rogers was appointed receiver. Five creditors filed claims which, exclusive of interest, amounted to $1,509.59. Turnage listed his advances, contending the item was an allowable debt. The receiver concluded Turnage was a partner rather than a creditor, and disallowed. Chancery sustained.
Before one can be held liable for partnership debts, the relationship must have been formed by express agreement or conduct from which agreement is implied or the party sought to be charged must have created an estoppel. “To determine whether a given agreement amounts to a partnership between themselves,” said Chief Justice Hill, “is always a question of intention. But a different test prevails where the rights of third parties are concerned. It was formerly held that participation in profits was conclusive evidence in actions by creditors. This rule has been modified so that a participation in profits is not conclusive, but ‘it is a cogent test for trying the question,’ and ‘is conclusive unless there are some circumstances altering the nature of the contract’.”
In the instant case a preponderance of the evidence is that the contract was that when Turnage had been repaid from a third of the profits, his connection terminated, provided that in the meantime interest had been met. Interest was payable from profits. There is the statement in appellant’s brief that Blakely and Pitts (and, presumably, Blakely and Lewis when Lewis was substituted for Pitts) were to pay “. . . ten percent on the money loaned them, and if profits were more than ten percent, one-third of [such profits] would be applied toward liquidation of the debt: that is, if there were an excess over the interest. ’ ’
There is evidence that notes were given Turnage by Blakely and Pitts; that the accord between Blakely and Lewis was consummated before a definite agreement was reached with Pitts, and the Blakely-Pitts notes “were cancelled and destroyed.” It is also contended that a mortgage covering fixtures was executed to secure the notes.
Turnage involved himself when he departed from the contract. Under its terms he did not have the right of interference — foreclosure, etc. — until a year from the time his advance of $2,000 was made. Yet within two months he designated Blakely as “buyer and boss,” stating in the letter that Blakely should have “full charge.” It is conceded by Turnage that fixtures were purchased in his name. ¡Blakely and Pitts made a down payment from the original fund advanced by Turnage, and Turnage signed a note evidencing the balance agreed upon.
J. L. Daniels, Ritchie Grocer Company credit manager, went to Smackover to investigate the business. Daniels says he made the usual inquiries, then went to Turnage, who told him to do whatever he desired. In the course of conversations regarding Smackover Grocery Company- — the trade name adopted by Blakely and Lewis — Turnage said he owned “everything over there.” Turnage did not say he was a partner. Neither did he request that additional credit be extended, or guarantee payment of accounts which subsequently accrued. Pitts testified he sold his interest to Turnage. Blakely also testified Turnage bought Pitts’ interest.
When the 'business opened at Smackover, Turnage made the necessary deposit for electric light connections. Current was billed to him. The lease on the building occupied in Smackover involved more space than that required for the grocery business. Although Blakely joined Turnage in signing the lease, rentals were paid to the owner who lived in Ohio, and not to Turnage.
There is testimony that Turnage counseled with Blakely and Lewis, advising them in respect of customer credits.
The court found that, in respect of creditors, the relationship between Blakely, Lewis and Turnage “was that of partners,” and that “prior to April 26, 1939, they operated the Smackover Grocery Company.”
The holding was correct. Affirmed.
The communication was addressed to Alvin M. Pitts: — “This is to certify that from this day on, A. D. Blakely is manager, buyer, and boss. He is to have full charge. I will give you $150 for your so-called interest — not one cent more — to be paid to you by A. D. Blakely who will draw a draft on me for that amount. However, if you wish, you may stay and work under Blakely for the sum of $15 per week only.” The letter is dated April 28, 1938.
Haycock v. Williams, 54 Ark. 384, 16 S. W. 3; Mehaffy v. Wilson, 138 Ark. 281, 211 S. W. 148.
Buford v. Lewis, 87 Ark. 412, 112 S. W. 963. | [
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