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McHaney, J.
Appellant operates two buses, one of which he drives himself and one driven by his employee, Price, between Batesville and Oil Trough, for the transportation of passengers for hire, each making two round trips daily. Price lives about one mile from Oil Trough on the highway to Batesville over which the bus line operates. Appellant operates under a permit so to do from the Corporation Commission and carries liability insurance, as he is required’to do as a common carrier. With the knowledge .and consent of appellant, Price drives his bus to his home and keeps it there over night, after completing his runs, and returns to Oil Trough the following morning to begin his schedule of trips to Bates-ville and return. In addition to his regular trips as above stated, appellant made special trips, called “show trips,” three nights per week, including Saturday nights, to the south and east of Oil Trough, for the purpose of trails- porting patrons to and from the picture show in Oil Trough. He usually made these “show trips” himself, but occasionally he had Price make them.
On December 21, 1940, Price was directed to- make the “show trip,” and, as was customary, after completing- his day runs, drove his bus to his home to get his dinner and to bring’ his wife and children to the picture show. On his return to Oil Trough after dinner, his bus collided with a bicycle on which appellee’s adult son and intestate, M. M. Hargrove, was riding, resulting in the death of the latter.
This action was brought by appéllee, now deceased, to recover damages for the death of his son, charging negligent operation of the bus. It was defended on the grounds, among others, that at the time of the accident Price was not on the business of appellant, but on a mission of his own, outside the scope of his employment; and that there could be no recovery for conscious pain and suffering because deceased was killed instantly.
Trial resulted in a verdict and judgment in favor of appellee for $5,000 for loss of contributions of his adult son and for $2,500 for the benefit of his son’s estate for conscious pain and suffering. This appeal followed in due course.
The judgment was rendered October 21, 1941. On April 6, 1942, the death of appellee, Monroe Hargrove, was suggested and conceded as having occurred on March 23,-1942, and this court entered an order that the case be revived in the name of Lillian Hargrove as administratrix in succession. On April 4, 1942, after both parties had filed briefs, appellant filed in this court his petition and brief to abate the action aS to contributions because of the death of Monroe Hargrove, and this is the first question we have for determination. It is conceded that, if Monroe Hargrove, the father, had died prior to the judgment, the action as to him for loss of contributions would have abated and we agree with this concession. Appellant cites and relies upon the case of Jenkins v. Midland-Valley R. Co., 134 Ark. 1, 203 S. W. 1, construing and applying what are now §§ 1273, 1277 and 1278 of Pope’s Digest. We tliink this case is not in point as it was held that the right of action of the widow for the death of her husband did not survive her death. She died before judgment. Here, the case proceeded to judgment and was appealed to this court and briefed, before the death of Monroe Hargrove. The general rule is stated in 1 Am. Jur. 62, as follows: “The general rule is that an action is not abated by death after judgment. The action ceases upon a judgment, and, subject to the right of review, cannot be affected by events happening thereafter. . . .” C. J. S., § 167, says: “It is well settled in most jurisdictions that an action is not abated by the death of a party after the cause of action has been merged in a final judgment and while the judgment stands, even though the judgment is based on a cause of action which would not survive the death of a party before judgment.” The adjudicated cases appear to support the general rule, so the motion to-abate is denied.
For a reversal of the judgment, appellant first contends the court erred in permitting one of counsel for appellee to ask the members of the jury panel, over his objections and exceptions, on voir dire, whether any of them were connected, “directly or indirectly with any insurance company that carries liability insurance on trucks or carriers for hire, such as buses.” We see no objection to the form of the question, which seems to be appellant’s principal objection to it. The statute, § 2025 of Pope’s Digest, as amended by Act 203 of 1939, requires all such carriers to carry a surety policy or bond for the protection of all persons and property from damages caused by the negligent operation of the motor vehicle carrier. Conceding that the object of the question was to inform the jurors of the existence of insurance and that appellant would not have to pay any judgment they might render, the question did not give them any information they did not presumptively already have. We think this matter is ruled adversely to appellant by Mo. Trans. Co. v. Talley, 199 Ark. 835, 136 S. W. 2d 688. Nor can we say the question was asked in bad faith, even though the attorney knew all the jurors.
It is next urged that the court should have directed a verdict for appellant at his request, because Price was not on Ms master’s business at the time of the accident. TMs question was submitted to tlie jury in instructions that told them that if he were on an errand of his own, in which appellant had no interest and with which he was in no manner connected, their verdict should be for appellant. But, if Price was driving the “bus there (to Oil Trough) on a trip or with the expectation of going on business for the defendant, Brundrett, then he would be in the employ of defendant.” As stated above, appellant knew that it was the practice of Price to take the bus home with him and -keep it there at night. We cannot say, as a matter of law, that Price had departed from the master’s service and was on a mission of his own. He went home to get his dinner, and, incidentally, to bring his family back with him. He was on his way to make the ‘ ‘ show run, ’ ’ and the jury had a right to find he was on the master’s business. The cases of Helena Wholesale Grocery Co. v. Bell, 195 Ark. 435, 112 S. W. 2d 416, and Ball v. Hail, 196 Ark. 491, 118 S. W. 2d 668, rule the question against appellant.
It is next insisted that the verdict and .judgment for conscious pain and suffering is without evidence to support it, and that in favor of the father for contributions is excessive. We agree with these contentions. The undisputed proof is that, when the bus struck the bicycle, the boy was thrown against the sharp corner of the bus with such force and violence that his head was split open wide enough to lay the edge of the hand in the skull and that a portion of the brains was thrown out and spattered over the bus. Mr. Allie Crouch, the undertaker, described the nature of the injury as follows: “Something sharp had struck the head, beginning at the bridge of the nose and angling just at the corner of the right eyebrow, from the top of the head and to the base of the skull. The skull was entirely cleft or separated, with this side of it dropped back, I would say .an inch or three quarters of an inch indented. In other words, just mashed back by a sharp cut. That joint of the jaw was all broken in two, and all of the lower jaw was shattered on both sides. One could have easily slipped their hand into the cranial cavity for a space of possibly eight inches, beginning at the nose through the top of the head and to the back; you could have slid your hand in there any place. And the contents of the cranium were visible. You could see very easily over the brain. Aside from that, why, the body had no other bumps or bruises.” No witness testified that the boy was conscious after the accident. Jack Stewart] the first to reach the scene, said: “He wasn’t alive — his heart was still beating is all.” Another witness stated he was alive when they loaded him in the oar, that his heart was beating and that he snored through his nose two or three times. Another said the boy never opened his eyes and never spoke and he did not think he knew anything. Other testimony shows that he lived from 14 to 30 minutes, but there is no evidence that he groaned, or cried out or sobbed, only that he made some struggling .movement -and perhaps gasped or sighed once. We think the evidence shows such a terrible head injury as to preclude the possibility of consciousness from the moment of impact to death. As said in St. L. S. W. Ry. Co. v. Braswell, Adm’r, 198 Ark. 143, 127 S. W. 2d 637, “Appellee alleged conscious pain and suffering, and therefore had the burden of proving the fact, either by direct or circumstantial evidence. The question is, Was the requirement met? We do not think so.” The finding of the jury to the contrary was based on speculation and conjecture, and was without any substantial evidence to support it. All the direct and circumstantial evidence is to the contrary, and the judgment therefor must be reversed and the cause, to this extent, be dismissed.
The recovery in favor of the father for loss of con tributions in the sum of $5,000 is highly speculative. In Mo. Pac. Trans. Co. v. Parker, 200 Ark. 620, 140 S. W. 2d 997, in discussing the amount of recovery of a parent for loss of contributions by a minor, we said: “The amount of the recovery is necessarily speculative. No one can know or testify what the value of the services of a minor child, less its necessary expenses, will be. Generally, where the minor is of tender age, the speculation must be limited to its minority. No legal obligation rests on a child to support a parent after majority, except as provided in § 7603, Pope’s Digest.” The evidence shows that the deceased had just reached his majority; that he was a young man of good habits, did not smoke or drink; that he was frugal, industrious; and that he did not keep company with girls or show any disposition to marry. It is also shown that he spent two six month periods in COC camps and, from his earnings of $30 per month, sent home or caused to be sent to his father $22 per month. The fact of these remittances cannot be given much weight, for, under the statute, U.S.C.A. Tit. 16, § 548h, he was required to do so. It is there provided that “enroilees with dependent member or members of their families shall be required, under such regulations as may be prescribed by the director, to make allotments of pay to such dependents.” In addition to this requirement and without reference to it, at the time he was such an enrollee, he was a minor and his father was legally entitled to the son’s earnings. While this boy might have continued to give his earnings to his father after his majority, it appears to be pure speculation as to just how long he would continue to do so. We think the highest amount the evidence may be said to support is the sum of $2,500.
If appellee will enter a remittitur for the excess within 15 judicial days the judgment as to this item will be affirmed for $2,500, otherwise it will be reversed and the cause remanded for a new trial.
Humphreys, J., dissents from both orders. Mehaffy, J., dissents from order on pain and suffering. | [
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Kirby, J.,
(after stating the facts). There is no dispute about the several purchases of furniture and furnishings, that they were made at different times, and a separate written contract, descriptive of the articles purchased and retaining the title thereto in the vendor until the purchase price was fully paid, was executed at the time of the purchase.
Appellant insists, first, for reversal, that the court erred in not holding the account for all the different purchases of furniture made a single account, as charged on appellant’s ledger, and an entire contract of purchase, not severable or divisible, under which he had the right to repossess the property at any time so long as any part of the purchase price remained unpaid.
This contention cannot be sustained, however. There were, in fact, several purchases made at different times, and separate written contracts executed with each of such purchases, retaining the title in the vendor of the items described therein until payment in full of the purchase price. There is no expression in these different contracts tending to show any intention of the parties to make of the several purchases but one account or contract of purchase, notwithstanding the same reservation of title was made in each of them. Nor does any one separate purchase of such furniture furnish any consideration for another, so far as any definite expression of an intention of the parties to that effect is concerned. The different purchases of furniture and the written separate contracts therefor, neither furnishing any consideration for the other, cannot be regarded as an entire contract, as contended by appellant, but must be held, as they appear to be, separate contracts.
The court erred, however, in giving appellee’s said instruction No. 3. In each of said contracts of conditional sale the title to all the property purchased and described therein was expressly retained until the full payment of the entire amount of the purchase money, and notwithstanding the different articles purchased were included with the prices designated to be paid for each, the title to all the property described remained in the vendor so long as any part of the purchase money for the whole amount thereof remained unpaid.
The court also erred in giving appellee’s requested instruction No. 4, allowing the jury to assess as damages, in addition to the value of the property converted at the time of the conversion, with interest, the rental value of the property converted from the date of the conversion. 8 R. C. L. 486, par. 47; American Soda Fountain Co. v. Futrall, 73 Ark. 464, 84 S. W. 505, 10 Am. St. Rep. 64; Sonsee v. Jones & Green, 157 Ark. 131, 248 S. W. 289; Hudson v. Burton, 158 Ark. 619, 250 S. W. 898.
For the errors designated the cause must be reversed, and remanded for la new trial. It is so ordered. | [
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Wood, J.
This is an action by the appellants, landowners and taxpayers of Road Improvement District No. 7 of Poinsett County, Arkansas, against the appellees to recover the sum of $31,890.77. It is unnecessary for the purposes of the decision to set out the whole complaint. It is conceded that the only question in the case is whether or not the action is barred by the statute of limitations. The complaint, after setting up the organization of Road Improvement District No. 7 (hereafter, for convenience, called district) and the history of the proceeding leading to the deposit of the money which they seek to recover, in the First National'Bank of Marked Tree (hereafter called bank), in substance alleges that the sums of money were unlawfully piaid out by the bank to the McWilliams Company, Inc. (hereafter called company), by a check signed by B. F. Rogers, without an order of the board of directors of said district and without a warrant being issued for said sum playable to the company signed by the chairman of the board or any officer authorized to sign the same, and without same being signed by the district or any officer thereof authorized to sign the same. The complaint alleged that $25,000 of the aggregate amount was thus unlawfully paid to the company on December 29, 1920, $1,890.77 on April 5, 1921, and the further sum of $5,000 prior to June 1,1922. The complaint further alleged that, by reason of said payments being made las aforesaid, the defendant company unlawfully received and converted to its own use the sumuof $31,890.77, money belonging to the district as aforesaid. It is alleged that the money was unlawfully paid by Rogers and the bank upon a pretended contract made by the commissioners with the company for the construction of the proposed improvement, and that the contract was void for the reason that the assessment of benefits was declared void by decree of the chancery court of Poinsett County, and the company did not carry out the contract, and the money was not paid upon estimates furnished by engineers, and that no improvement was constructed in the district.
The last paragraph of the complaint preceding the ■prayer, in substance, alleged that the moneys came into the hands of the defendants, B. F. Rogers, C. A. Blanton and H. B. Thorn, as commissioners of the district and the bank as depository under the express trust created by the act creating the district, and that, as such, they unlawfully converted the same to their own use and unlawfully paid the same to the company, which, in turn, unlawfully converted the same to its own use. There is also an allegation in the complaint to the effect that the payments were not made for the purpose of paying preliminary expenses for the creation and organization of the district. The prayer was for judgment against the defendants for the amount named, with interest, for the benefit of the landowners and taxpayers of the district.
The defendant filed a demurrer, setting up “that the complaint on its face shows the cause of action set out is barred by the statute of limitations, in that the causes of action therein set forth accrued more than three years before the complaint was filed and summons issued to the proper officer.”
The cause was submitted upon the demurrer to the complaint. The court found that the cause of action was barred by the statute of limitations, and sustained the demurrer. The appellants stood on their complaint. The court entered a judgment dismissing the complaint, from which is this appeal.
It is conceded by the appellants that the judgment of the court is correct if the three-year statute of limitations governs. But their contention is that the cause of action stated in their complaint is governed by the five-year statute of limitations. The appellees’ counsel begin their brief by sa3dng that the only question for decision is whether or not this action is barred by the statute of limitations. They contend that the judgment of the court is correct because, as they insist, the cause of action is governed by the three-year and not the five-year-statute of limitations. The question for decision therefore is whether or not the action is barred by the five-year statute of limitations. Section 6950 of C. & M. Digest provides: “The following actions shall be commenced within three years after the cause of action shall have accrued, and not after: (1) All actions founded upon contract or liability, expressed or implied, not in writing,” etc.
Following the above section are many sections designating particular actions and providing for the statute, of limitations applicable to such actions. Then comes the following section: “All actions not included in the foregoing provisions shall be commenced, within five years áfter the cause of action shall have accrued.” Section 6960, C. & M. Digest.
The contention of the appellees is that the action is one founded on contract or liability, express or implied, and governed by the three-year statute of limitations supra. But we cannot concur in this view. We are convinced from the allegations of the complaint that the action is one sounding in tort for the unlawful and wrongful conversion of improvement district funds. The action, under the allegations, sounds in tort and not in contract. The allegations are that the money was paid to the company by the commissioners and the bank unlawfully upon a pretended and void contract, without an order of the board of directors of the district, and without a warrant issued to the company signed by the chairman of the board or the district, or any officer ¡authorized to sign the same; that the company unlawfully received and converted to its own use the money belonging to the district; that two of the commissioners knowingly and willfully and corruptly permitted the other commissioner, Rogers, to sign the cheeks and the bank to unlawfully pay the money, and the company to unlawfully receive the same and to unlawfully convert the same to its own use, and that the money so paid out and converted was held by the bank under the terms of an express trust created by the act creating the district.
The allegations of the complaint are sufficient to show that the money was not. paid out and received upon any contract or liability, express or implied. Under the allegations of the complaint the company was a particeps to the conversion and unlawful appropriation of the funds, because it was cognizant that the funds were being wrongfully and illegally paid' to it, land, knowing suck to be the fact, it received and appropriated such funds to its own use. This would give the property owners and taxpayers of the district a right of action against all those who thus were instrumental in the conversion and misappropriation of the funds.
The case of Clark v. School District No. 16, 84 Ark. 516, 106 S. W. 677, upon which the appellees rely to sustain their contention, is differentiated.from the case at bar by the facts. In that case Clark acted as the clerk of the board of directors of the school district, and rendered services to the board as such, and the board of directors drew warrants for his services. Although these services were illegal, as held in that case, nevertheless they were actually rendered, and Clark received pay for same under a contract with the board. The facts of that case do not. show that Clark knew, at the time he received pay for the service, that his contract was illegal, though it turned out to be so. Here the allegations of the complaint clearly show that the company did not do the work for which it ostensibly received payment. It knew that it was receiving money contrary to the express terms of the act creating the district and contrary to the express terms of the trust under which the bank held the money. The complaint charges that the commissioners knowingly, willfully and corruptly issued checks for the payment of money to the company, and that they and the bank unlawfully converted the same to their own use, and that the company in turn unlawfully converted the same to its own use. The allegations are sufficient to show that the directors of the bank were guilty of conduct which clearly amounted to a tort and actual fraud on the district because of the manner in which they handled the funds, and that the company, in receiving the money under these circumstances, was a particeps in the tort. In all such cases an action to recover the money cannot be said to be founded upon a contract or a liability growing out of a contract, such as is contemplated under § 6950, supra. That statute does not embrace actions sounding purely in tort, but in contract. See Suter v. Wenatchie Water Power Co., 35 Wash. 1, 76 Pac. 298, 102 Am. St. Rep. 881; McGaffin v. City of Cohoes, 74 N. Y. 387, 30 Am. Rep. 307; Aldrichs v. McLean, 106 Fed. 791, 45 C. C. A. 631; Aldrichs v. Skinner (C. C.) 98 Fed. 375.
Section 6960 above covers all actions not included within the provisions specifically named in the sections preceding. The cause of action stated in the complaint under consideration is not covered by any of the preceding sections. It therefore comes within the provisions of § 6960, supra.
All cases sounding in tort not coming within the specific provisions in preceding sections are covered by the general provision contained in § 6960 above, under which section the case in hand falls. See Sims v. Craig, 171 Ark. 492-496, 286 S. W. 867. The decree is therefore reversed, and the cause is remanded with directions to overrule the demurrer and for further proceedings according to law and not inconsistent with this opinion. | [
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MpHAPEY, J.
D. G. Beauchamp was appointed curator of tbe estate of Opal Josephine Lee, March 15, 1915, and did not file any settlement until after Opal Josephine Lee attained her majority. After she became of age she caused a citation to be issued, and on April 6, 1926, Beauchamp appeared and filed a settlement. The appellant filed exceptions to the settlement, and the court heard the cause on said exceptions, and found that Beauchamp was due his ward the sum of $1,136.04, instead of $794.80 as claimed in his settlement.
The case was appealed to the circuit court, where it was tried by the court sitting as a jury, and the circuit court overruled the exceptions, and approved Beau-champ’s report as filed, and directed that the same be certified back to the probate court, there to be entered.
Motion for a new trial was filed and overruled, and exceptions saved and appeal taken to this court.
The settlement filed by Beauchamp is as follows:
“Comes the curator, and for his final settlement he charged himself:
With money received........................................................................$1,000.00
Interest on $250 8 per cent. 1 yr........................................... 20.00
Interest on $200 8 per cent. 10 yrs..................................... 160.00
Interest on $790 4 per cent. 8 yrs.................................... 252.80
Total received..............................................................................$1,432.80
Takes credit with:
Amt. furnished John Hasley for books and
clothes for ward.............................................................................j$ 30.00
Costs in this court...................................................,.................................. 8.00
Amt. paid ward after she became of age........................ 500.00
Amt. of commissions to curator............................................... 100.00
Total paid.............................................................................................$638.00
RESTATEMENT.
Amount received.......................................................................................$1,432.80
Amount paid out............:....................................................................... 638.00
Balance ......................................-........................................................$ 794.80
“Respectfully submitted,
“D. Gr. Beauchamp, Curator.”
Opal Josephine Lee filed exceptions to the final settlement as follows:
“She excepts to item No. 1, which states that the sum of $250 was loaned fox the space of one year at 8 per cent, per annum, and asks that said final settlement be made to show when said amount was loaned, to whom, and whether done under the direction and authority of the court.
“She excepts to item No. 2, which states that the sum of $200 was loaned for ten years at 8 per cent., the interest amounting to $160, for the reason that it is not shown when said amount was loaned, to whom loaned, and whether it was done under or by authority of the court, and fails to show whether the interest was payable annually, or when, and does not show whether the interest was reloaned, reinvested, or what became of it.
“She excepts to item No. 3, which is a loan of $790 at 4 per cent, interest per annum, for a period of eight years, interest thereon amounting'to $252.80, for the reason said final settlement does not show to whom the money was loaned, when, and whether or not it was done under and by direction of the eourt, and does not show what became of the $252.80, whether it was reloaned, reinvested, or what was done with it.
“She further excepts to said final settlement, and says that the curator, D. Gr. Beauchamp, herein, has never furnished her, either directly or through her relative, John Hasley, any moneys for books or clothing, and excepts to the item charged of $30.
“She further excepts to the item of $8 for court costs, and asks that the curator be required to show what this amount was paid out for and how said costs were incurred in the management of said estate.
‘ ‘ She excepts further to the item of $100 charged by D. Gb Beauchamp, curator, as commissions, for the reason that it is exorbitant and not in compliance with statute, and said commissions should be fixed by the eourt.
“She further excepts to said final settlement, and states -to the court that, during the time her curator had control and the management of her estate, by reasonable care and attention to said estate he could have loaned all of her said moneys to reliable and responsible persons, upon good approved real estate security, and all of the accumulations thereof, at 10 per cent, per annum, and that said final settlement shows on its face that the same has not been done. ’ ’
The probate court sustained the exceptions, and found that the curator was indebted to Opal Josephine Lee in the sum of $1,136.04. On appeal in the circuit court, where it was tried before the judge sitting as a jury, the exceptions were disallowed and the settlement as made by the curator approved.
The settlement, together with the exceptions, show the issues, and the evidence of the parties tends to support their respective claims.
At the close of the testimony the plaintiff moved the court to make a special finding of fact regarding the prevailing rate of interest in Greene County, Arkansas, during the time in controversy, and the court found that loans were made as high as 10 per cent, and as low as 6 per cent. — from 6 per cent, to 10 per cent.
The plaintiff excepted to the findings of fact by the court. The plaintiff then moved the court to make a special finding as to whether or not the curator acted with due care in the discharge of the duties of his office, and, in pursuance of this motion, the court found the facts with reference thereto to be as follows :
“I find in this case that the curator has handled this estate in a fair and equitable manner. I find that he has accounted for all moneys that came into his hands. I find that he was not guilty of negligence in failing to loan the funds; that he has handled this property with the same degree of care and attention that he handled his own private affairs, and that he should not be charged for any more than he actually received; that curator did not use any of these funds belonging to his, ward, personally, at any time, but at all times kept funds on hand in the bank in a separate account as curator. I find exceptions to the report should be overruled; that he has handled this estate for the term of practically ten years; that his charge of $100 is not an excessive amount for the care, trouble and work that he had with reference to this estate. It is the judgment of the court that the exceptions be overruled and the report as filed approved. The curator now appears in open court 'and says that he desires to waive and relinquish all claims that he has made for fees and compensation, and asks the court not to allow him anything as compensation for his services in this matter, and, at his request, the report is amended to show that he does not claim or is not allowed any compensation for his services as curator.”
The plaintiff excepted to each finding of the court. Then the plaintiff moved the court to make a special finding of fact regarding the amount of interest the curator would be liable for in the event he did not exercise due care in the performance of the duties of his office, and in answer to this the court finds that, if he had been guilty of negligence and failed to exercise proper care, he would be liable for 6 per cent, interest compounded annually. To this finding the plaintiff also excepted.
In plaintiff’s motion for a new trial it is stated that the court erred in its finding as to the amount of interest the defendant would be liable for upon failure to exercise ordinary care in the performance of his duties, adopting fi per cent, interest, compounded annually, whereas all the evidence shows that the lowest rate of interest in loans of the character which the law required defendant to make was not less than 8 per cent. If there is any such evidence in the record, it is not abstracted by the appellant, and we have failed to find it in the transcript.
The appellant’s first contention is that the current rate of interest is a part of the history of the State, of which the courts will take judicial notice, and refers to numbers of authorities sustaining the contention.
The lower court, while the record does not show this specifically, probably found that the prevailing rate of interest on loans like the curator would have had to make and demanding such security as the law requires, would have been 6 per cent. The record does not show what he found, except that loans and been made in that section from 6 per cent, to 10 per cent. But it is a matter of common knowledge that the amount of interest paid varies according to circumstances, and that many things must be considered; among other things, the character of the loan, the kind and amount of security required, the time of the loan, as well as the general condition of the country at the time.
Appellant says the measure of appellee’s duty, as fixed by law, is found in § 5059 of Crawford & Moses’ Digest, which reads as follows:
“If, at any time, any guardian shall have on hand any money belonging to his ward, beyond what may be necessary for his education and maintenance, such guardian shall, under the direction of the court, loan the same to such person as will give good security therefor, and such money shall be loaned on such time as the court shall direct.”
And § 5060, which is as follows:
“If any guardian shall fail to loan the money of his ward on hand as aforesaid, under provisions of this act, he shall be accountable for the interest thereon. ”
Section 5061 provides:
“Guardians and curators shall loan the money of their wards at the highest rate of interest prevailing in the community that can be obtained on unincumbered real estate security, and then not more than to the extent of one-half the value thereon. The interest in all cases shall be paid annually, and, if not then paid, shall become a. part of the principal and bear interest at the same rate.”
It will be observed that the statute does not require the curator to loan the money 'at the highest rate of interest prevailing in the community, but at the highest rate prevailing in the community that can be obtained on unincumbered real estate security where the loan shall not exceed one-half the value of the real estate.
Another provision in the Jaw is that, if the interest is not paid annually, it becomes a part of the principal and bears the same rate of interest that the principal loan does. But the testimony in this case shows that, on one or two occasions where the curator had found a bor-' rower, the court declined to approve the security. The money had to be loaned under the direction of the court, and, if the court refused to direct the loan or declined to approve the security, then the curator was helpless so far as that loan was concerned.
There is no question about the law nor about the duty of the curator under the law. We think the undisputed proof shows that the curator acted in good faith. In fact, there is no contention that he at any time used any of the money, but the only contention is that he did not lend it out at the prevailing rate of interest and keep it loaned out during the whole time. If the curator would not be responsible for any money loaned under the direction of the court, he would certainly not be liable for failure to make a loan where the security offered was rejected by the court, if he used reasonable care in trying to lend the money and in obtaining proper security therefor.
Section 5066 of Crawford & Moses’ Digest, after prescribing the duties of the guardian with reference to loans and the liability on the bond, says:
“And, if such money has not been loaned out, the court shall order the money to be forthwith invested in United States bonds for the use and benefit of such ward, and it shall remain so invested until such court shall order otherwise, and a report of the action of such guardian or curator shall be made of his proceedings.”
It will therefore be seen that situations like this were anticipated by the legislators when they enacted this law. If the money could not be loaned out on security acceptable to the probate court, then, of course, the curator could not lend it. He would be violating his duty under- the law if he loaned it against the orders and directions of the court, or in oases where the court declined to approve the loan. But, when that situation arose, then it became the duty, not of the curator, but of the court, to order the money to be forthwith invested in United States bonds. There is nothing in the record to indicate that the court made any such order. Instead of purchasing United States bonds, which the curator would have been required to do if directed to do so by the court, he deposited the money in the bank at 4 per cent, interest. This was as high, or probably higher rate of interest than would have been obtained if the funds had been invested in United States bonds.
If the funds had been invested in United States bonds the. interest would have been paid at maturity, but there would have been no compounding of interest. It is certainly the duty of a guardian or curator to act not only honestly but with due care in handling the funds of his ward, and, if he does not do so, he and his sureties become liable for interest on the money because of his negligence. But whether he has done so or not is a question of fact, and the circuit court sitting as a jury was requested to make and did make special findings of fact, and the findings on questions of fact by a court sitting as a jury are binding on this court in the same manner and to the same extent as the verdict of a jury, and, if there is any substantial evidence to sustain the findings, this court cannot disturb them.
It appears that this case was fairly submitted to the court, and that his findings are sustained by the evidence. In addition to this, the appellee in open court waived and relinquished all claims for fees and compensation, and asked the court not to allow him anything for his services, and, at his request, report was amended to show that he did not claim and was not allowed any compensation for his services as curator.
When the findings of fact by the court and this action-on the part of the curator, and the further fact that the guardian or curator is entitled to such compensation for his services as the court shall decide to be just and rea sonable, are considered, this court would not be authorized in setting aside these findings of the lower court.
The statute fixing- fees for curators is somewhat different from the statutes with reference to administrators’ and executors’ fees, because the statutes with reference to the curator expressly provide that the court shall decide what will be just and reasonable compensation for the services, and allow him that amount.
There is no dispute about the law in this case. The finding of the trial court settled the facts, and we think that the findings of fact by the court are sustained by the evidence, and the judgment is therefore affirmed. | [
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Hart, C. J.,
(after stating the facts). The chancellor' was wrong in holding that the bank had a superior lien to that of plaintiff as to the $900, evidenced by a note of April 9, 1927. This money was advanced by the bank after the lien of the plaintiff had accrued for the materials furnished by it and used in the improvement of the premises on which the bank had a mortgage. The mortgage did not contain a clause making it obligatory upon the bank to make this advance of $900, and it had notice of the lien of plaintiff at the time the $900 was furnished. It was entirely optional with the bank whether or not it should make it. Mortgages to secure future advances are valid; but, where it is entirely optional with the mortgagee whether to make future advances or not, advances made after notice of a subsequent incumbrance, such as a lien for materials furnished, are inferior to the materialman’s lien. In other words, the general rule is that, if the amount for which the mortgage shall stand is wholly optional with the mortgagee, he cannot, after notice that a subsequent lien has attached, deplete the value of the equity to the disparagement of .its lienors by advances which, if refused, would not.have been in force. Heintze v. Bentley, 34 N. J. Eq. 562; Gray v. McClellan, 214 Mass. 92, 100 N. E. 1093; Finlayson v. Crooks, 47 Minn. 74, 49 N. W. 398, 645; Germania Building & Loan Assn. v. B. Fraenkell Realty Co., 82 N. J. Eq. 49, 88 Atl. 305; W. P. Fuller & Co. v. McClue, 48 Cal. App. 185, 191 Pac. 1027, and cases cited; Savings & Loan Society v. Burnett, 106 Cal. 514, 39 Pac. 922; 27 Cyc. 239, 240; 40 C. J., p. 302, § 393 (bb); 41. C. J., p. 527, par. 468 (4); and Davis v. Carlisle (Circuit Court of Appeals, Eighth Circuit), 142 Fed. 106, and cases cited. The record shows that the bank had notice of the materialman’s 'lien of plaintiff at the time it furnished the $900 evidenced by the note of April 9, 1927.
It is insisted, however, that the bank should have a superior lien for $450, because that amount was furnished .by it to McCall for the purpose of paying off materialmen’s liens against the mortgaged property, land was used by him for that purpose. The lien for materials is purely a creature of the statute, and, while it is assignable under our statute, the right to prosecute a mechanic’s lien is not assignable. Such liens must be perfected before they can be transferred or assigned. Before the bank could claim any right to the lien of the materialmen by advancing money to. pay off their claims, it would have to prove that these liens had been established ’in the manner required by statute. Young Men’s Building Assn. v. Ware, 158 Ark. 137, 249 S. W. 545.
The result of our views is that the decree of the chancery court was wrong, and will be reversed, with directions to enter a decree in favor of the Superior Lumber Company, holding that it’ has a paramount lien on the house and lot in question to that of the mortgage lien of the bank for the $900 note of April 9, 1927, 'and for further proceeding’s in accordance with the principles of equity and not inconsistent with this opinion. | [
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Lyle Brown, Justice.
The Workmen’s Compensation Commission denied appellant Eisen’s claim for benefits and on appeal to the circuit court the Commission was affirmed. The claim was rejected on the grounds that ,(,1) Eisen was not an employee of appellee Black & White Cab Company, and (2), assuming the employer-employee relationship existed, Eisen was not within the scope of employment at the time of his injury.
On the night of October 11, 1965, Eisen was operating a taxicab. After discharging his passenger at a motel he was flagged by a motorist whose car was stalled because of battery trouble. Eisen had a set of “jumper* cables” in the cab. While Eisen was in the process of connecting the cables from his battery to the faulty battery a third car came on the scene and struck the disabled vehicle. The impact caused severe injuries to Eisen’s left leg. That leg was eventually amputated because of gangrene.
Only two witnesses testified as to the recited issues. Leon Eisen, Jr. testified in his own behalf. Bob Staton, a managing executive and one of the owners of Black & White, testified for the respondents, Black & White and the insurance carrier. The activity of Eisen at the time of his injury is not disputed. As to the employer-employee relationship, Eisen testified that he was employed by the owners of Black & White; that he was operating a company car; that they directed him in his work; that on one occasion they suspended him because of a misunderstanding over money; and that Mr. Staton-promulgated rules concerning the operation of the cabs. Staton’s testimony was very substantially in conflict with that of Eisen. The Compensation Commission accepted the testimony of Staton as establishing the true relationship between the parties.
Commission’s Findings Summarised. There are twenty-three Black & White cabs operating in Fort Smith. None are actually owned by respondent. Property rights to the cabs fall in three classifications: first, those owned outright by individual operators; second, those purchased by an operator under a conditional sales contract financed through Black & White; and third, those purchased under a conditional sales contract and financed by a finance company of the cab operator’s choice. Black & White has an arrangement with the various cab owners whereby legal title to all the vehicles is registered in the name of Black & White irrespective of the equity of the individual cab owner. Such registration makes it possible for Black & White to obtain the required liability insurance on all cabs, for which, the Company pays the premiums;
Claimant Eisen owned no equity in the cab. he was driving. , That vehicle was actually owned by Frank Braswéll, who operated it on the day shift. Braswell was .buying the car under a conditional sales contract. Eisen operated it at night. For tbe purposes already described, the legal title was in Black & White. Claimant’s arrangement to drive the car was made with Frank Braswell. Black & White advertises for drivers and when an applicant reports he is referred to a particular owner who needs a relief driver;
Black & White furnishes services to the drivers. The cabs are equipped with two-way radios. When a call is received by the radio dispatcher he contacts the cab nearest the point where a cab is desired. It is optional with each driver whether he accepts or rejects a call; if he rejects it the dispatcher calls another cab. Work periods are not prescribed by the 'Company. The actual owner is free to use his vehicle for family and other personal uses. Black & White maintains a mechanical department but the cab owners are not required to utilize those services. Gas, oil, and repairs are the responsibility of the owner-operators;
At the end of his shift Eisen would leave $9.50 at the Company’s office. Of that amount one-half would be retained by the Company as its charge and the balance would be credited to Braswell. The Company did not withhold any type of tax. On his income tax return Eisen represented he was self-employed;
No accounting of fares is made to the Company by the owner of the vehicle or his relief driver. Neither does the relief driver so account to the owner for whom he drives.
So much for the Commission’s findings. It was further of the opinion that Eisen’s activities at the time of his injury were outside the scope of his cab operations. We do not reach that point because we sustain the Commission on its finding that an employer-employee relationship did not exist between claimant and Black & White.
Appellant concedes the facts in this case are substantially similar to the facts in Rose v. Black & While Cab Co., 222 Ark. 210, 258 S. W. 2d 50 (1953). Both cases involve the same company and the plan under which they operated in 1953 .is remarkably similar to their present operation. However, appellant here contends there is an important distinction in the fact situations in one respect. It is asserted that in Rose the legal title to the involved vehicle was not vested in Black & White, whereas the opposite is true in the case at bar. The fact that Black & White held the legal title to the vehicle was of course a proper element for consideration. On the other hand, the Commission found the Company’s explanation for its holding the legal title to be plausible. Black & White was doing business under a franchise from the city; the law requires that all cabs be covered by liability insurance; and the franchise could have been jeopardized by a failure to so comply. Further, in the event of an accident, liability could possibly be fixed against Black & White. The surest way for the Company to know that the insurance was in force at all times was for Black & White to carry' it.
Certainly there was evidence here, as in Rose, “from which the inference might be drawn that the cab company was in fact an employer.” It was a disputed question of fact. The finding of the Commission was to the contrary and we cannot say there was no substantial evidence to support that conclusion. It carries the same weight as a jury finding on a controverted issue.
Affirmed. | [
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Paul Ward, Justice.
In 1965 Mrs. Riegler (appellant) and her husband (appellee) signed a note payable to the Worthen Bank & Trnst Company, and on May 11, 1966 they were divorced. In December of that year the bank filed suit on the note and secured judgment for $4,887.30 against both parties. Neither party contested that judgment, but in the trial below appellant contended, and here contends, that appellee (as between themselves) is obligated to pay all of the judgment.
Appellant (by proper pleadings) contended that she was not obligated to pay any part of the judgment because: (a) she was only an “accommodation” signer on the note and received no benefits from the proceeds thereof, and; (b) her liability on the note was negated in a previous chancery proceeding. Appellee contended that Mrs. Riegler was a “co.-signer” of the note, that she received part of the proceeds, and that the matter was not res judicata.
The above conflicting contentions were presented to the trial court (sitting as a jury by agreement), and the trial court found and adjudged:
One, the prior chancery proceeding “was not res judicata as to any issue here involved”.
Two, appellant is not an “accommodation” signer of the note, and both parties are jointly liable to pay the judgment rendered against them.
For a reversal of the above findings and judgments of the trial court appellant relies on two points: One, her plea of res judicata “is supported by the undisputed evidence”, and; Two, she was an accommodation maker and is not liable to appellee for any part of said note.
One. The record reveals: The parties were married in 1943; they owned a home by the entirety; they executed a note to the bank in 1965; this note has been renewed twenty-one times — the last renewal being on May 5, 1966 which is the note in question here; on May 8, 1965 the chancery court, in a suit between the parties, ordered (among other things) that a “joint’account” in the bank in the amount of $4,000 he applied to the bank’s note. It this proceeding in chancery nothing was said or decided about the joint liability of the parties on the note, and no appeal was perfected by either party. The parties were divorced on May 11, 1966, and again no issue was raised as to joint liability on the note. The home (held by the entirety) was ordered sold and the proceeds were divided equally between the parties.
We fail to find in the record any evidence showing where the chancery court at any time considered or had any opportunity to decide whether appellant was a “cosigner” or an “accommodation signer” of the note sued on, or that she had discharged her liability on the note if she was in fact a co-signer.
Appellant cites Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610, as holding:
“The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit.”
Conceding the announced rule to be correct, appellant fails to point out, and we fail to find, where the issues here “were necessarily within the issues” in the prior chancery proceedings. Therefore we hold that the trial court (sitting as a jury) was justified in finding and holding as it did on the question of res judicata.
Two. Here, appellant contends the trial court erred in holding she was not an “accommodation” signer of the note, but again we do not agree with that contention.
The trial court based its decision on the ground that appellant did receive benefits from the proceeds of the note and, therefore, she was a co-signer and not an accommodation signer. We think that is the correct rule, and we also find in the record substantial evidence to support that finding of fact.
On the “fact” issue appellant testified, in essence: I assume we borrowed money to build our house; we •borrowed some money from an aunt for that purpose; I did not put any money in the house but did receive a half interest in it; I do not remember what the note to the bank was for; I cannot swear I did not receive any benefits from the note to the bank.
The burden was on appellant to prove she received no benefits. It was so held in the case of Fisher v. The Rice Growers Bank, 122 Ark. 600, 184 S. W. 36 and in McArthur v. Cannon, 229 A. 2d 372 (1967). Appellant appears to take the position it is immaterial as to whether or not she received benefits from the proceeds of the note, since the U. C. C. eliminated that element. The section of the U. C. C. relied on is Ark. Stat. Ann. § 85-3-415 (1) (Add. 1961) which reads,:
“An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.”
However, in the McArthur case, cited above, the court held that a signer who received benefits from the proceeds of the note was not an accommodation signer. The above emphasised words are, we think, the key to a correct interpretation of the Code. In other words, if, in this case, appellee had paid appellant for signing the note to the bank and she had received no benefits from the note, then she would still be an accommodation signer even though she did receive some money or benefits for the use of her name. This is explained in comment 2 under the section quoted above.
Affirmed.
Byrd, J., disqualified. | [
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J. Fred Jones, Justice.
Following a jury trial in the Poinsett County Circuit Court, on information filed by the prosecuting attorney, Harvey Virgil Tolbert was convicted of a violation of “The Arkansas Hot Check Law” and was sentenced to five years in the state penitentiary. He has appealed to this court and relies upon the following points for reversal:
“The verdict was not supported by the evidence because the evidence did not establish intent to defraud.
The trial court committed reversible error in permitting the State to introduce five checks as a part of the testimony of Boyce Durham.”
The facts are as follows: The defendant had become acquainted with one R. V. “Buck” Moore, a contractor living in Harrisburg, Arkansas. The defendant spent the night in Mr. Moore’s home on October 1, 1966, and the following morning, being on Sunday, appellant advised Mr. Moore that he was short of cash and requested Mr. Moore to assist him in cashing a check. Mr. Moore went with the appellant to Main Highway Esso Service Station where the operator of the service station first refused to cash appellant’s check, but when Mr. Moore agreed to “stand good” for the payment of the check, the operator agreed to cash it.
The appellant made out a check for $75.00 on a printed check form with blank spaces provided for the name and address of the bank. The check form had printed on its face as follows: “For value received. I represent the above amount is on deposit, in said bank or trust company, in my name, is free from claims and is subject to this check.” The appellant wrote “Citizens Bank of Smithville, Arkansas,” into the spaces provided therefor ; the check was made payable to Main Highway Esso Service Station, it was signed by the appellant and cashed by the operator of the service station. When the check was presented to the Citizens Bank of Smithville, appellant had no account in the bank and payment of 'the check was dishonored for that reason. Upon return of the check to the operator of the service station with the bank’s notation “No Acct.,” Mr. Moore was notified ¿nd he paid the operator of the service station as he had agreed to do.
Appellant was charged with, and convicted of, violation of Act 241 of the Acts of Arkansas for 1959, Ark. Stat. Ann. §§ 67-719 — 67-724 (Repl. 1966). The pertinent portions of which are as follows:
“For convenience this Act [§§ 67-719 — 67-724] may be referred to and cited as ‘The Arkansas Hot ■Check Law.’
“It shall be unlawful for any person to procure any article or thing of value, or to secure possession of any personal property to which a lien has attached, or to make payment of any pre-existing debt or other obligation of whatsoever form or nature, or for any other purpose to make or draw or utter or deliver, with intent to defraud, any check, draft or order, for the payment of money, upon any bank, person, firm or corporation, knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in, or on deposit with, such bank, person, firm or corporation, for the payment of such check, draft or order, in full, and all other checks, drafts or orders upon such funds then outstanding.”
.The penalty provision of the act, § 67-723, as it applies to this case, is as follows:
“For a violation of this Act, in the event the amount of the check, draft or order involved is Fifty Dollars ($50.00), or more, punishment shall be by confinement in the penitentiary for not more than ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000).”
Appellant offered no evidence at the trial and the first point he relies on for reversal is settled by § 67-722 of the statute, as follows:
“As against the maker, or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank, person, firm or corporation. The indorsement or stamp of a collecting bank on any check, whether such check be drawn on an out-of-state or in-state bank shall constitute prima facie evidence of presentment without protest.”
The check.for $75.00 upon which appellant was prosecuted and convicted was dated October 1, 1966. At the trial of the case, the state introduced, over appellant’s objection, five additional checks ranging in amounts from $10.00 to $16.25, and dated from October 10, 1966, to October 12, 19.66, drawn by appellant on the Citizens Bank of Smithville, Arkansas, and dishonored for payment by the bank because the appellant had no account in the bank. The original information under which appellant was charged also contained counts in connection with these checks, but because the charges on these cheeks constituted misdemeanors under the statute, they were dismissed from the information on motion of the trial court with direction that they he prosecuted under proper misdemeanor charges in municipal or justice of the peace courts.
These five checks were introduced at the trial, over the objections of the appellant, and the cashier of the bank was permitted to testify thereon for the purpose of showing “the mode, or method, or scheme of operation of the defendant, the motive and his guilty knowledge and intent.” The checks were received in evidence for that limited purpose and the trial court so instructed the jury as follows:
“The Court has admitted testimony of other offenses similar to the one charged in the Information. You will not be permitted to convict the defendant upon such testimony. Evidence of another similar offense, if you believe another has been proven, is admitted solely for the purpose of showing motive, design and particular criminal intent, habits and practices, guilty knowledge, good or bad faith, and you should consider such evidence for this purpose alone and it shall not be considered in fixing any punishment that might be imposed.
The defendant is not on trial for any offense except the alleged offense of the issuance of the check of October the 1st, 1966 in the amount of $75, and the defendant cannot be convicted on testimony of other possible offenses.”
In the light of the trial court’s instructions, we conclude that the trial court did not err in permitting the introduction of the five additional checks for the purpose they were offered and accepted.
In Kerby v. State, 233 Ark. 8, 342 S. W. 2d 412, Kerby was convicted of obtaining money under false pretenses in the sale of corporate stock by false representations concerning the assets of the corporation, and in that case this conrt said:
“. . . [I]n the case at hand Kerby’s actual subjective intent was of controlling importance. Guilty knowledge is an essential element of the crime, for Kerby would have committed no offense if he believed his statements to be true. In such circumstances proof of other similar conduct, not too remote in time, is admissible to aid the jury in determining the intent of the accused. ‘So, when it is material to show that a given act was done with a fraudulent intention, as, for example, in a prosecution for obtaining goods by false pretenses, other disconnected false pretenses in which the presence of fraud is recognized may be proved solely to show the intent. To illustrate: Where the accused had used a fraudulent abstract of title to induce one to sell him goods in exchange for real estate, it may be shown that the accused had on the same day employed the same means to induce another person to sell him goods.’ Underhill, Criminal Evidence, (5th Ed.), § 208. We applied the principle in Myers v. Martin, 168 Ark. 1028, 272 S. W. 856, which although a civil case, is basically similar to the present case. There in a purchaser’s action to recover damages sustained in the purchase of certain bank stock as a result of the seller’s fraudulent representations it was held that the plaintiff could introduce proof to show that the defendant had made like misrepresentations in selling shares of the same stock to others. ‘It tended to show a motive and a general scheme to induce people to invest in the stock of the bank.’ ”
In the case of Larkin v. State, 131 Ark. 445, 199 S. W. 382, we quoted with approval from State v. Raymond, 24 Conn. 204, as follows:
“. . . [Djefendant was charged with keeping intoxi- eating liquors with intent to sell the same in violation of law. William Taylor was allowed to testify that he had purchased of Raymond at his place of business at two different times intoxicating liquors. This was admitted to show that Raymond kept intoxicating liquors with the intent to sell the same. The prosecuting attorney admitted that charges were pending in the superior court against Raymond for making these sales to Taylor. In that case the defendant claimed that the sales to Taylor could not he used as evidence to convict him because if they could it would subject Raymond to two or more prosecutions for the same offense. The court held that the evidence was admissible to prove that he had sold to Taylor other liquor of the same kind in his store. The court said that the evidence of the sales to Taylor was admissible, not for the purpose of convicting the defendant of keeping that liquor for sale, but only for the purpose of showing the intent with which he kept the liquor, for the keeping of which he was being prosecuted. So here the court carefully protected the defendant against conviction of any charge except the one for which he was being prosecuted. Hence we are of the opinion that the court did not err in admitting the testimony of Spriggs and the other witnesses of the sale made to Spriggs.”
In Cain v. State, 149 Ark. 616, 233 S. W. 779, the appellant was charged with, and convicted of, operating a certain gambling house in Hot Springs. One of the errors assigned on appeal was the admission of evidence as to other violations, and on this point we said:
“It is next insisted that the court erred in admitting evidence tending to show that the defendant operated gaming houses at other places in Hot Springs than the Pastime place. There was no error in admitting this testimony to go to the jury. It is true the general rule is that evidence of the commission of other crimes is admissible only when such evidence tends directly or indirectly fo establish the defendant’s guilt of the crime charged in the indictment or some essential ingredient thereof. The evidence of the commission of other crimes of a similar nature about the same time, however,, tends to show the guilt of the defendant of the crime charged when it discloses a criminal intent, guilty knowledge, identifies the defendant, or is' part of common scheme or plan embracing two or more crimes so related to each other that the proof of one tends to establish the other.”
In Wilson v. State, 184 Ark. 119, 41 S. W. 2d 764, appellant was tried and convicted in Van Burén County of the crime of forgery and uttering in connection with a check made payable to R. 0. Jones. The evidence on the part of the state tended to show, that the appellant had drawn a check on the bank of Scotland, bearing the signature of R. 0. Jones, for the sum of $6.00; that said check was returned marked No Acct.; and that there was no R. 0. Jones in Van Burén County. A number of witnesses testified to different checks alleged to have been forged and passed in the same way, and the evidence also showed that the persons whose names were signed to the checks were fictitious persons.. Dates on. the checks covered a period of three years, a,nd all of them ranged in amounts from $2.50 to $12.50 and were passed by the appellant about the same time the check of R. Q. Jones was cashed. The appellant contended that the court erred in admitting testimony relative to other checks than the one to R. 0. Jones.'
In holding the evidence admissible, this court said:
“Evidence of similar forgeries is admissible to show a uniform course of acting from which guilty knowledge and criminal intent may be inferred. In other words, the evidence of other forgeries is admissible, not to prove the commission of the crime for which the party is being tried, but to prove guilty knowledge or intent.”
In the case at bar, the statute placed the appellant under a presumption of fraudulent intent and he offered no evidence to overcome the presumption. He does, however, argue failure of proof of intent to defraud the payee service station since Moore agreed to make the check good and did pay the amount of the check to the payee. One of the fallacies in this argument is that the law does not confine appellant’s intent to the service station alone. Consequently, we hold that under the instruction given as to the purpose for which the additional checks could be considered by the jury, the trial court did not err in admitting them into evidence for the limited purpose they were offered, and that the judgment of the trial court should be affirmed.
Affirmed.
Fogle MAN, J., disqualified. | [
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Gbeenhaw, J.
Appellee brought this suit in ejectment against appellant in the Poinsett circuit court to recover possession of lot 1, block 1 of Little River Addition to the town of Marked Tree. Appellant answered, setting up a number of defenses, and upon his motion the cause was transferred to the' chancery court. The chancellor held that appellee’s title was paramount, declined to allow appellant any sum for improvements or taxes, and ordered a writ of possession, from which decree appellant has appealed to this court.
The evidence showed that Maggie Williams, appellee’s mother,'owned the property 'in question and in March, 1928, executed a deed of trust to Charles M. Bryan, trustee for Wilson-Ward. Company, covering this lot, together with 12 other lots in Marked Tree. The indebtedness was due November 15, 1928, and since no credits appear upon the mortgage record the lien became barred as to third parties after more than five years from the due date.
The lot in question was included in three improvement districts. Assessments for 1927 and 1928 due the St. Francis Levee District were not paid, nor was the assessment for 1930 due Drainage District No. 7. These districts foreclosed, and the property was sold by the commissioner pursuant to the decree and purchased by the respective districts. On January 9, 1934, appellant purchased this lot and obtained a deed thereto from the St. Francis Levee District, and on January 12, 1934, he purchased the lot and obtained a deed thereto from Drainage District No. 7.
In September, 1934, suit was filed to foreclose the deed of trust executed by Maggie Williams in favor of Wilson-Ward Company, and a decree thereon was taken in August, 1935. For some reason which was unexplained the property was not immediately sold, but was finally sold by the commissioner in July, 1939, almost four years after the decree had been entered, and the lot in question, along with all other property included in the mortgage, was purchased by J. H. Crain, trustee for Wilson-Ward Company, and a deed was executed to Crain by the commissioner on September 6, 1939.
Appellant was not made a party to the foreclosure of the deed of trust, nor was a lis pendens filed. It is conceded that Crain acquired no title to lot 1 by reason of the foreclosure under the deed of trust, the lien having been cut off by foreclosure and sale to the improvement districts for the 1927 and 1928 levee district assessments and the 1930 drainage district assessment.
After appellant had acquired the lot in question from the levee and drainage districts in January, 1934, he attempted to exercise the right of ownership thereof, but was interfered with by appellee’s mother, who apparently was still claiming an interest in the lot. In February, 1936, appellant effected a settlement with appellee’s mother by which he conveyed to her two lots and she gave him a quitclaim deed to the lot in question. Appellant had conferred with an attorney, who advised him that by obtaining a quitclaim deed from Maggie Williams he would have no further worries as to the validity of his title.
Appellant paid all assessments due on this lot to all improvement districts, and also state and county taxes, for the years 1935, 1936, 1937, 1938, 1939 and 1940, and also levee and drainage district assessment for 1941. It appears, however, that the drainage district assessment for 1934 and the Ozark Trail Road Improvement District assessment for 1932 were not paid by appellant or anyone else, and these districts foreclosed their liens upon the lot for these assessments, the property was sold to the districts and the commissioner executed his deeds to the respective districts on December 7, 1936.
October 7, 1939, almost three years after Drainage District No. 7 and Ozark Trail Road Improvement District obtained title, the districts executed their respective deeds conveying the lot in question to J. H. Crain, trustee, who on December 7,1939, conveyed all the property obtained at the foreclosure sale to- appellee.
Appellant testified that he did not know that these assessments had not been paid; that he intended to pay all assessments due at the time he purchased the lot from the levee and drainage districts in January, 1934, and would have paid the drainage and road improvement assessments upon which decrees of foreclosure were entered had he known they had not been paid.
T. O. Brigance was secretary of Drainage District No. 7 and Ozark Trail Road Improvement District. At the time appellant purchased from the drainage district he executed and delivered to Brigance his check for $19.80. Brigance on his own motion changed the check, reducing it to $8.80, or $11 less than the amount for which it was originally executed. Appellant testified that he thought he was paying all assessments due on this lot, although nothing was said about the Ozark Trail Road Improvement District assessments. Brigance testified that the original amount of the check would have more than paid the 1934 drainage assessment and the assessments due Ozark Trail Road Improvement District. However, the tax books were not open for payment of the 1934 drainage assessments until in February, 1934, and the 1934 drainage assessments were payable to the county tax collector.
Some time 'prior to Christmas, 1936, appellant decided to erect a building on this lot, and his attorney advised him that the title was good and he had nothing to worry about. Accordingly, about Christmas, 1936, he began the erection of a substantial brick building with concrete floor upon the lot in question, and this improvement was completed about May, 1937, at a cost of nearly $6,000. It was also shown that the cost of the improvements and the -taxes paid by appellant amounted to $6,136.
Appellant interposed a number of defenses to this suit, all of which have had our serious consideration. Under the evidence in this case we are unable to say that the finding and decree of the chancery court that appellee’s title was paramount was against a preponderance of the evidence. This lot having been conveyed to the drainage and road improvement districts hv deeds of the commissioner in the foreclosure proceedings on December 7, 1936, the time of redemption had expired prior to the conveyance by these improvement districts to Crain, trustee, on October 7,1939.
Appellant finally urges that in the event this court should hold that the title of appellee is paramount, appellant is entitled to the enhanced value of the property under the betterment act, and to the taxes paid by him. The betterment act, § 4658 of Pope’s Digest, provides: “If any person, believing himself to be the owner, either in law or equity, under color of title, has peaceably improved, or shall peaceably improve, any land which upon judicial investigation shall be decided to belong to another, the value of the improvements made as aforesaid and the amount of all taxes which may have been paid on said land by such person, and those under whom he claims, shall be paid by the successful party to such occupant, or the person under whom or from whom he entered and holds, before the court rendering judgment in such proceedings shall cause possession to be delivered to such successful party.”
The undisputed evidence in this case shows that at the time appellant constructed the improvement he believed himself to be the owner of the lot, and was in peaceable possession thereof under color of title. Not only had he obtained deeds from the levee and drainage districts in January, 1934, but he made a settlement with appellee’s mother whereby she conveyed to him, in February, 1936, all of her right, title and interest in the lot in question. It will be observed that appellant lost the title to this property by reason of the foreclosure of the 1934 drainage assessment and the 1932 Ozark Trail Road Improvement District assessment, and the sale thereunder to these respective districts, to which deeds were executed by the commissioner on December 7, 1936.
However, the evidence is undisputed that appellant did not know of these foreclosure sales to the improvement districts and thereafter, and while he was still in peaceable possession of this lot, believing himself to be the owner thereof, he made valuable improvements thereon at considerable expense. He testified, and it was undisputed, that in doing so he acted in good faith, stating: “In good faith I believed I owned the property, beyond a doubt, and would not have spent that much money if I had not. ’ ’
It is also undisputed that an attorney advised him before the improvements were made that the deed from Maggie Williams cleared up the title. It is further undisputed that after purchasing this lot from the levee and drainage districts he paid all assessments due all improvement districts, as well as the state and county taxes due thereon for all subsequent yearsj except the drainage assessment for the year 1934 and the road improvement district assessment for 1932, and that he would have paid these had he known they had not been paid.
In the case of Beard v. Dansby, 48 Ark. 183, 2 S. W. 701, this court, among other things, said in considering the betterment act: “But the constructive notice of an adverse title, which the law implies from the registry of a deed, is not sufficient to preclude the occupant from recovering for improvements, if he, in fact, purchased in good faith and under the supposition that he was obtaining a good title in fee. Actual notice is the test — that is, either knowledge of an outstanding paramount title or of some circumstance from which the court or jury may fairly infer that he had cause to suspect the invalidity of his own title. Now, the mere fact that the defect in the title would have been disclosed upon an examination of the public records does not bring such knowledge home to him; for it is not inconsistent with his ignorance of the existence of such a deed, nor with an honest belief that his title is uncontested. . . . The only requirements of the act are, that the occupant should have had peaceable possession, at the time the improvements were made, under color of title and under the belief that he was the owner of the land. Any instrument having a grantor and grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance, gives color of title. . . . Good faith, in its moral sense, as contradistinguished from bad faith, and not in the technical sense in which it is applied to conveyances of title, as when we speak of a bona fide purchaser, meaning thereby a purchaser without notice, actual or constructive, is implied in the requirement that he must believe himself the true proprietor. It must be an honest belief, and an ignorance that any other person claims a better right to the land. . . . The betterment act does not proceed upon the idea of contract, or consent of the parties, or negligence of the owner in asserting his title. It is a rule for administering justice; and the principle of it is, that no one ought to be enriched at the expense of another.”
The ¡Beard case was reaffirmed in the case of Shepherd v. Jernigan, 51 Ark. 275, 10 S. W. 765, 14 Am. St. Rep. 50, where this court said: “If, however, the defendant has improved the land in good faith under the belief that he was the sole owner, he is entitled to pay for his improvements by the terms of the betterment act. Constructive notice of title, such as is implied from the registry of a deed, is not in itself sufficient to preclude an occupant from its benefits.” See, also, Bloom v. Strauss, 70 Ark. 483, 69 S. W. 548; McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88; Green v. Maddox, 97 Ark. 397, 134 S. W. 931; Crowell v. Seelbinder, 185 Ark. 769, 49 S. W. 2d 389, 83 A. L. R. 788.
In the case of Wilkins v. Maggard, 190 Ark. 532, 79 S. W. 2d 1003, the first headnote reads as follows: “Under the betterment act of March 8, 1933 (Crawford & Moses’ Dig., § 3703), one who, believing himself to be the owner and under color of title, has peaceably improved land which upon judicial investigation has been determined to belong to another, is entitled to recover the value of his improvements and the taxes paid.”
This property was conveyed by the commissioner to the improvement districts on December 7, 1936, prior to the time appellant placed his improvements upon the lot. Appellant acted in good faith in erecting these improvements, when he was in peaceable possession under color of title, believing himself to be the owner of the property. We think these facts clearly bring him within the purview of the betterment act, and that he is entitled to its benefits.
Having reached the conclusion that the chancery court erred in so much of its decree as denied to appellant the benefits of the betterment act, the decree is to this extent reversed, and the cause is remanded with directions to allow appellant the benefits provided therein. | [
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G-reenhaw, J.
The present appeal is a continuation of the litigation reported in the case styled Luebke v. Holtzendorff, 203 Ark. 141, 157 S. W. 2d 770, in which the opinion was rendered November 24, 1941.
The case is a very anomalous one. The anomaly arises out of the fact that it involves the right to the possession of a tract of land to which neither of the litigants has the original or record title. The record does not disclose who owns the original or record title, but it appears, from the opinion upon the former appeal, that this owner permitted the land to sell under a decree foreclosing the lien of a road improvement district for delinquent taxes due the district, and, as stated in that opinion, Holtzendorff acquired this title, through mesne conveyances, from the improvement district to which the land was sold under the foreclosure decree. This, as stated in the former opinion, ivas not only color of title, but would have been the actual title but for the opinions in the cases of Todd v. Denton, 188 Ark. 29, 64 S. W. 2d 331, and Tri-County Highway Improvement District v. Taylor, 184 Ark. 675, 43 S. W. 2d 431. Those opinions were to the effect that since the passage of the Martineau Road Law of 1927 and act 153 of the Acts of 1929 road improvement districts were without authority to sell lands for the nonpayment of delinquent road taxes.
It was further said in the opinion on the former appeal that Holtzendorff had acquired an interest in the land which warranted its redemption from other tax forfeitures, and entitled him to intervene in the confirmation proceeding in which confirmation of the sale to the state was prayed. A decree was rendered in that case denying confirmation of the sale to the state. Luebke, who had purchased this land from the state, was made a party to that proceeding upon the motion of Holtzendorff, and the finding was made that Luebke, subsequent to his purchase from the state, had made improvements on the land of the value of $588.
The effect of the former opinion, affirming the decree from which that appeal had been prosecuted, was that Holtzendorff had an -interest superior to that of Luebke, but that Holtzendorff had this interest subject to Luebke’s claim to be reimbursed for his improvements and for the taxes which § 6 of act 119 of the Acts of 1935 required Holtzendorff, as an intervener in the confirmation proceeding, to pay to defeat the confirmation. These facts more fully appear in the former opinion.
The decree affirmed in the former opinion found that the sale to the state was invalid, and that Holtzendorff had such interest in the land as entitled him to redeem from the sale to the state,-but that Luebke had made improvements and had paid taxes for which he should be reimbursed by Holtzendorff as the condition upon which ho might redeem the land, and that Holtzendorff, as intervener, should be permitted to redeem by payment to Luebke of the sum so adjudged, and that if the same were not paid within thirty days the land should be sold in satisfaction of Luebke’s claim, but that the possession of the land should not be disturbed, and that if intervener, Holtzendorff, should seek to gain possession of same it would be required that he bring a proper action in a court of law for that purpose.
From that decree Luebke prayed and was granted an appeal. This decree was affirmed with a modification that Luebke was not entitled to recover the price of a dollar per acre which he had paid the state for the land, but was entitled to recover only the sum required by § 6 of act 119, supra, to effect a redemption from the sale to the state, in addition to the value of his improvements.
We held in this former opinion that Holtzendorff had acquired an interest in the land, but that to protect that interest he would be required to pay subsequent taxes as they accrued, and that otherwise he would lose that interest just as any landowner might lose his title by failing to pay taxes.
After the first decree had been affirmed, with the modification in reg’ard to the sum paid the state by Luebke for his deed from the state, Holtzendorff filed, in the court below, a petition, in which Luebke was tendered the full amount adjudged in his favor on the first appeal, it being alleged that, 'under the first decree and the opinion of this court affirming it as modified, with the tender there made, “this interest of the said Luebke, together with the right to the possession thereof, passed to this petitioner by way of purchase.”
A demurrer to this petition was filed, in which it was averred that the chancery court was without jurisdiction to entertain an action for possession of the land, because it was an action cognizable only at law.
The demurrer was overruled, and Luebke standing thereon, it was decreed “that the clerk of this (the chancery) court upon the request of the intervener, J. F. Holtzendorff, after he shall have paid into the registry of this court the sum adjudged in the decree heretofore rendered in this action as the value of the improvements made by the said defendant, F. C. Luebke, and the taxes paid on the lands hereinafter to be described, without interest from the date of said decree, shall issue and deliver to the said intervener, J. F. Holtzendorff, a writ of assistance directing and commanding the sheriff of Prairie county to take from the possession of the said defendant, F. C. Luebke, tlie possession of the following described lands . . and there follows a description of the land here in litigation. This appeal is from that decree.
For the reversal of this decree we are cited to cases of our own and from other jurisdictions to the effect that a writ of assistance may only issue to place one in possession of property the title to which has been awarded to him by an order of court, and not otherwise. The decree here appealed from awarded to Holtzendorff a writ of possession, although it was not adjudged that he had title to the lands. But it was adjudged that he had a right to possession superior to that of Luebke, whose only interest in the land is the right to reimbursement for the taxes paid and the improvements made.
After the intervention in the confirmation proceeding by Holtzendorff, the litigation became, as between him and Luebke, an adversary proceeding as related to the land here in controversy. In his answer to the cross-complaint filed against him by Holtzendorff, Luebke claimed title under the deed to him from the State Land Commissioner dated November 24, 1939, and no other claim to or interest in the land was alleged. The- confirmation proceeding was filed in 1939; Holtzendorff’s intervention was filed in 1940 ; so that Luebke could not have acquired title by possession.
The. equity of the case warranted the court in the decree from which is this appeal to award a writ of assistance to place Holtzendorff in possession of the land. As was said in the former opinion, Holtzendorff must continue to pay the taxes to protect the interest which he has acquired, otherwise he would. lose that interest just as any landowner would lose his title to land if he failed to pay taxes. If Holtzendorff should continue this payment of taxes for as much as seven years he would not thereby perfect his title, because the land is not wild and unoccupied, but is in the actual possession of Luebke, whose title would eventually ripen and be perfected by adverse possession!
The adjudication that Luebke should be reimbursed for his taxes and improvements is not questioned, and he has no other right to or interest in the land, and Holtzendprff has made a tender in satisfaction of that claim.
It is true the owner of the record title was not made a party to this proceeding except by the confirmation proceeding's, but he may be prodded into action when the party is placed in possession who has paid and is paying the taxes on the land. What action the record owner may take is a question not presented by this record.
The decree of the court below accords with the equity of the case, and it is, therefore, affirmed. | [
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Mehaffy, J.
The appellee, plaintiff below, began this suit in the Miller Circuit Court, alleging that she was the owner of 15 acres of land in section 33, township 14 south, range 28 west, in Miller County, Arkansas, which land was described in her complaint, and claimed title to said land as follows: That, prior to the year 1909, plaintiff’s sister, Mary Day, was in possession of the 40-acre tract, which included the 15 acres sued for, and had been in possession for many years, working said land and improving same and claiming to be the owner of the whole 40-acre tract. That said Mary Day put plaintiff in possession of the 15-acre tract involved in this suit, and that, immediately upon said gift, the plaintiff entered into possession of said 15 acres, which was then in the woods, and plaintiff cleared same, fenced it, built houses thereon, and put said 15 acres in cultivation, and openly and notoriously held the adverse possession thereof 'all the time, claiming to be the owner for more than seven years,' until she was some time ago dispossessed by some kind of a writ issued against her husband. She alleged that the defendants, appellants here, were in the unlawful and wrongful possession of said lands, 'claiming to be the owners, and that plaintiff was entitled to the possession.
Defendants filed a demurrer, which was by the court overruled. They also filed a motion to make more definite and certain, which was also overruled, and exceptions saved. The defendants then filed answer, alleging that R. B. Collum was the owner of the tract of land claimed by plaintiff; that he purchased from John P. Hervey, and that Hervey inherited the lands from his father, Charles Hervey, and tendered deeds showing title to said lands.
The defendants further answered, alleging that neither Mary Day nor Isom Hervey ever had title to said lands, and denied the material allegations of plaintiff’s complaint. Defendants admitted that at one time Mary Day lived on the land,' and had given plaintiff and her husband the privilege of living on the land. Defendants alleged that defendants’ grantor, being a minor, brought suit by Sally E. Hyden, his guardian, in the Miller Chancery Court, to quiet the title to said land in John B. Hervey. The suit was against Mary Day and Isom Hervey, plaintiff’s husband. It is alleged that the suit included the plaintiff. That in said suit all the rights and equities ever existing in behalf of the plaintiff were pleaded, and the same inquired into and disposed of in said cause, and that the title of John P. Hervey, defendants’ grantor, was quieted in him, and a writ of assistance was issued in support of said decree and the rig’ht of the defendant’s grantor under same, ejecting all of said defendants, including plaintiff, from said 40 acres, which included the 15 acres claimed by plaintiff.
The plea of res judicata was submitted to the court, in the absence of the jury, and the defendants introduced and read in evidence chancery record in the case of John P. Hervey, an infant, by Sally E. Hyden, his guardian, against Mary Day and Isom Hervey. The suit resulting in the decree which was introduced involved the lands -in controversy in this suit, and said decree showed that the lands had been adjudged and decreed to the plaintiff, John P. Hervey; that he was the owner of the legal title, and it was decreed that he have and recover of and from the defendants, Mary Day and Isom P. Hervey, and their tenants, the possession of said lands; and that, upon failure of defendants and their-tenants to deliver possession, plaintiff should have a writ of possession. Said decree also adjudged' and decreed that the title of plaintiff, John P. Hervey, be and it is hereby established, quieted and confirmed against all persons claiming by, through or under any of the conveyances as set out in this decree.
The plaintiff objected to the introduction of the decree because Senie Hervey, the plaintiff, is not a party to the suit. Said objection was overruled, and plaintiff excepted. Defendants then introduced and read in evidence the pleadings in said chancery cause, and it was admitted that Senie Hervey was the wife of Isom Hervey, but objection was made because Senie Hervey was not a party to the suit.
The will of Mary Mays was introduced, Mary Mays being the same person as Mary Day, above mentioned. Objection was made to the introduction of the will, and said objection overruled, and exceptions saved. The defendants then introduced and read in evidence the writ of possession issued by the Miller County Chancery Court, commanding the sheriff that he take from the. possession of the defendants, Mary Day and Isom Hervey, the land and premises described in the chancery decree, and deliver the same to John P. Plervey.
After the introduction of the above evidence the court overruled defendant’s plea of res jtidicata, and thereupon the parties introduced the evidence on the main issue, and the case was submitted to the jury, and a verdict returned in favor of the plaintiff.
The testimony showed that the plaintiff claimed title through Mary Day, her sister; that she was living with her husband at the time suit was brought against Mary Day and her husband; that a decree was rendered against this plaintiff’s husband and Mary Day, and Hervey, the grantor of appellants, was decreed to be the owner and entitled to possession of the land involved in this suit. Plaintiff offered to introduce in the trial of the case before the jury the decree of the chancery court. Objection was made and sustained, and appellants were not permitted to introduce and read in evidence the decree of the chancery court.
As the judgment or the decree of the chancery court, introduced on the question of res judicata, is binding on the wife, the suit being against the husband, the plea should have been sustained by the court. It appears that the husband and wife were living together on this 15 acres as husband and wife; that the suit was against the husband alone, a decree rendered, a writ of possession issued, and, as a result of the decree and writ of possession, both the husband and wife and Mary Day vacated the premised, and possession was delivered to the grantor of appellants.
A majority of the judges are of opinion that this was not the separate property of the wife, but that, the husband and wife living together, the husband’s occupancy was her occupancy, or rather that she was occupying it as a wife and because her husband was occupying it; that the domicile of the husband is the domicile of the wife, and that the decree in the chancery court, although the wife was not a party, under the circumstances in this case, was binding on her.
The writer does not agree with this view, but a majority of the judges do, and it is therefore the opinion of the court that the decree of the chancery court, although the wife was not actually made a party, is binding on her as well as the husband.
“A judgment in favor of or against the husband in an action involving a debt due the community will, it has been held, bind the wife, regardless of her nonjoinder.” 21 Cyc. 1694.
• “The judgment in an action by a husband to determine the boundary line of land which was community property is conclusive on both husband and wife, although the wife was not a party to the action, in the absence of proof that it was brought without her consent.” Leggett v. Ross, 14 Wash. 41, 44 Pac. 111.
“A judgment in an action against a husband only to determine adverse claims to land is a bar to subsequent action by such husband and his wife against plaintiff in the former action involving the same questions, although the land is community property.” Lichty v. Lewis, (C. C. A.), 63 Fed. 535.
“But to give full effect to the principle by which parties are held bound by a judgment, all persons who are represented by the parties and claim under them or in privity with them are equally included by the same proceedings. * . * * The ground therefore upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party, is that they are identified with him in interest; and whenever this identity is found to exist, all are alike concluded. Hence all privies, either in estate, in blood, or in law, are estopped from litigating that which is conclusive on him with, whom they are in privity.” Litchfield v. Goodnose, 123 U. S. 549, 8 S. Ct. 210, 31 L. ed. 199.
It is the opinion of the majority of the judges that Senie Hervey, being the wife of Isom Hervey, living with him at the time that she was represented by the husband in the suit, was in privity with him, and equally concluded by the proceedings.
“A judgment in favor of or against the husband in an action involving a debt due the community will bind the wife, regardless of her nonjoinder. But some courts hold that, where the wife was not a party defendant in an action wherein judgment was rendered against the husband, she is entitled to a determination, in an appropriate action or proceeding, of the question whether the judgment was based on a community debt or liability. A determination as to the community character of certain property is res judicata where it is fairly in issue .and both husband and wife are parties. And in jurisdictions where the wife is not a necessary party in actions against the husband affecting community real property, a judgment against the husband is binding and conclusive upon him, the wife, and the community estate, is not to be impeached by a collateral action, and stands as a valid adjudication until annulled or reversed in some direct proceeding for that purpose. Where the wife directly attacks the judgment and seeks to have it reopened, she can urge only such defenses as existed at the time of the rendition of the judgment, and not those subsequently accruing. And even in jurisdictions where both husband and wife are necessary parties in actions affecting community real property, a judgment either for or against the husband in an action to which the wife is not a party is not necessarily void on collateral attack; where the action was brought by the husband alone, the judgment is binding on the wife, unless she avoids it by showing that it was commenced and prosecuted without her knowledge or consent.” 31 C. J. 160.
This court has many times held that the domicile of the husband is the domicile of the wife, even though the wife may abandon and desert her husband and live in another State. The husband is the head of the family, and, as such, according to the opinion of the majority, had the right to represent his wife in the suit, which resulted in a decree against the husband. Moreover, if he did not have the absolnte right to do so, when the writ of possession was issued the wife made no claim to any interest in the land separate from her husband. She vacated when he did, and made no claim that it was her property and that she was not bound by the judgment against her husband. Her conduct was a ratification of the acts of her husband, and she is bound by the judgment, and the plea of res judicata should have been sustained. Again, the person under whom she claims was a party to the suit, and that judgment would bind her. She claimed under Mary Day, and the suit was against Mary Day, and the decree was against Mary Day, specifically awarding to appellants’ grantor against Mary Day and the husband of the appellee. And judgments are binding upon all parties and their privies.
“In regard to the persons in whose favor or against whom the doctrine of res judicata is 'applicable, it is well settled that a judgment or decree is binding upon all par ties to the proceeding in which it was rendered and their privies.” 15 R. C. L. 1005.
“As nsed when dealing with the estoppel of a judgment, privity denotes mutual or successive relationship to the same right of property, and it is classified as privity in estate, privity in blood, and privity in law, in all of which kinds there must be an identity of interest. A privy in estate is one who derives title to property from another. He comes in by succession to property by contract or law. To make one person a privy in estate to another, that other must be predecessor in respect to the property in question, from whom the privy derives his right or title. Examples of this-class of privies are joint tenants, donor and donee, lessor and lessee, and successors in office. Privies in representation are illustrated • by executor and testator, administrator and intestate.”. 15 R. C. L. 1015.
In this case the appellee here was certainly privy in estate to Mary Day, under whom she claimed. Claiming under Mary Day and being the wife of Isom Hervey, living with him at the time, the husband being the head of the family, the judgment against Mary Day and the husband of Senie Hervey is binding on Senie Hervey.
Having held that the plea of res judicata was proper and should have been sustained, it becomes unnecessary to discuss the other points raised by counsel.
The judgment of the court is reversed, and remanded with directions to sustain the plea of res judicata and dismiss plaintiff’s complaint. | [
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W. H. Rector, Special Judge.
Appellant sued appellee in trover, charging it with the conversion of certain collateral which had been deposited with it to ' secure a note executed by his intestate. A g*en eral demurrer to the complaint was. sustained, and, the plaintiff refusing: to plead further, the action was dismissed. This appeal therefore involves the sufficiency of the complaint as tested fay the demurrer.
Briefly stated, the allegations in the complaint were as follows: The appellee, a hank at Little Bock, held a negotiable promissory note of appellant’s intestate, M. C. Pappas, in the principal sum of $700. This note was secured by a certificate of deposit in the Banque Nationale de Greece of the alleged value of $5,000. When this note matured, its maker had died, and the appellant, as administrator, was without funds with which to pay the note a,nd redeem the collateral. At this time the appellant and IT. C. Pappas, a brother of the deceased, entered into an agreement with the bank whereby they indorsed their names upon the past-due note of the deceased, and at the same time gave a new note executed by them individually, to serve as a renewal or a continuance of the old note.
The allegations, with respect to the new note were as follows: “Plaintiff states that, after the death of the said M. C. Pappas, he, together with the said H. C. Pap-pas, a brother of deceased, put their indorsement upon said note past due, and also executed a new note individually to cover said loan and to serve as a renewal or continuance of said original note.”
The complaint further alleges that the bank did not present its claim for allowance by the administrator and did not have it probated.
After the extension agreement above referred to, but before the expiration of the time for probating claims against the estate, the complaint alleges that the appellee “accepted payment of its note from H. C. Pappas, the brother of the deceased, and wrongfully delivered *at the time to H. C. Pappas the said security held by it, which was of the value of $5,000, against his directions and over his protest, and refused to deliver same to this plaintiff, upon proper demand made therefor, thus converting said securities unlawfully to its own use.” It is further alleged that the estate of the deceased was insolvent.
Appellant contends for a reversal of the judgment upon the ground that, after the maturity of the note and the death of the maker, it ceased to be negotiable, and that the delivery of the note, with the collateral attached, amounted to a conversion,, for which the appellee was liable. He cites the case of Union & Mercantile Trust Co. v. Harnwell, 158 Ark. 295, 250 S. W. 321, as controlling the judgment in this case. The appellant also contends that H.' C. Pappas was not an indorser of the old note within the méaning of the law relating to the rights and liabilities of an indorser of commercial paper.
Whether or not an instrument is negotiable or non- . negotiable depends upon our statute (§ 7767, C. & M. Dig.). An instrument once negotiable continues to be negotiable until it is discharged in the manner prescribed by the law (§ 7885-7886), or until it is restrictively indorsed. The note of the deceased at the time it was negotiated was without question a negotiable instrument, and, there being no contention that there was ever at any time a restrictive indorsement thereon, it continued to be negotiable, unless it had been discharged. Whether the act of H. C. Pappas, the brother of the deceased, in paying the note, operated as a discharge thereof, will be considered in a later portion of the opinion. We are now concerned with the effect, if any, upon the negotiability of. the note of the fact that it had matured and its maker had died at the time of the execution of the so-called renewal note.
A majority of the court is of the opinion that the death of the maker and the maturity of the note did not destroy its negotiability. “The fact that a bill or note is transferred after maturity is of no importance except as to equities between prior parties, the rule being that an indorsee or a transferee after maturity takes subject to defenses between the original parties.” 8 C. J., Bills and Notes, paragraph 58.
To hold that a note, once negotiable, becomes nonnegotiable after maturity or after the death of the maker, would- entirely destroy that security which heretofore has attended the making and negotiation- of commercial paper. The channels of commerce are daily flooded with millions of such instruments, and it is indispensable to the transaction of business that one who acquires such an instrument shall .be protected in his ownership and shall not be required to ascertain what in the greater majority of cases would be an impossible thing, to-wit, whether the maker or drawer had died. One who makes and negotiates a promissory note obligates himself to pay the amount named therein upon its maturity, or at any time thereafter, until the paper is discharged in one of the ways recognized by the statute. The death of a maker of a note does not in any way affect its negotiability. Clark v. Thayer, 105 Mass. 216, 7 Am. Rep. 511. We therefore hold that the fact that the maker of the note was dead and the note was past due did not in any wise affect the rights of the bank with respect to its transfer, and that it had a right to sell this note, although its maker was dead and it was past due; and, having a right to sell the note, it also had the right to transfer the collateral as an incident of the sale.
A majority of the court is also of the opinion that any one who was secondarily liable on the note would, when- compelled to pay the same, be subrogated to all the rights of the payee. It is conceded by the appellant that this is true with respect to indorsers, but it is contended that H. C. Pappas was not, in contemplation of law, an indorser. The right of subrogation extends not-only, to indorsers but also to sureties and guarantors. 37 Cyc. 402; Talbot v. Wilkins, 31 Ark. 411, 12 R. C. L., p. 1098.
It is thoroughly settled that, when one who is secondarily liable is required to pay a note secured by collateral, he acquires title to the note, which is not discharged by his payment, and becomes the owner of the attached collateral. In Goss v. Emmerson, 23 N. H. 38, a note was paid by an indorser who was secondarily liable thereon, and it was delivered to him, together with the attached collateral, and he had thereafter wrongfully converted such collateral to his own use. The court held that the indorser, being required by law to pay the note, was entitled to all of the rights against the principal creditor which had previously been held by the holder of the note, including the collateral, and that the fact that the indorser wrongfully converted this collateral to his own use would not render the holder of the note liable as for conversion. In Waddle v. Owen, 43 Neb. 489, 61 N. W. 731, the note, secured by collateral, was paid by an indorser, and was by the holder transferred to the indorser, tog-ether with the attached collateral. The court held that the holder of a negotiable instrument secured by collateral had a right to negotiate it and to transfer the securities with it at any time before payment or tender of payment. The court said:
“The bill being negotiable, Waddle had a right to transfer it by indorsement to Hainer, and to transfer with it the accompanying securities. There is a vast difference between the position of a pledgee who retains the principal debt and wrongfully parts with the securities pledged thereto, and that of one who, in the regular course of business, transfers the debt, and with it the securities, without diverting the latter from the purpose for which they were pledged. The first act constitutes a conversion, the latter does not.” See also Chapman v. Brooks, 31 N. Y. 75; Jones on Collateral Securities (3d .ed.) §§ 418, 421, 425.
It is equally well settled that the holder of negotiable paper secured by collateral may sell the paper with the collateral attached, and his purchaser takes title to the paper and such rights as he had in the pledged collateral. That was in effect the holding of this court in Whitney v. Peay, 24 Ark. 22.
In Bank of Forsyth v. Davis, 113 Ga. 341, 38 S. E. 836, 84 Am. St. Rep. 248, the holder of negotiable paper secured by collateral sold the paper and transferred the collateral to a third person. The court held that this was not a conversion of the collateral, but that the purchaser ' of the note took title thereto and that the collateral passed to him as an incident of the transfer. “As the security (collateral) is a mere incident of the original debt, just as a mortgage is a mere incident of the debt secured, an Assignment of the debt passes either a legal or an equitable interest in the pledge, unless it is otherwise agreed between the parties.” Jones on Collateral Securities (3d ed.), § 418. And the same author, at § 425, says: “ A payee of a negotiable • note, holding other notes as collateral security, may lawfully transfer the collateral notes to an indorsee of the principal note, * * * and if the indorsee to whom the securities are transferred converts them to his own use, the original payee is not liable in trover for such conversion.” See also on the general proposition: 31 Cyc. 849; Hawkins v. Fourth National Bank, 150 Ind. 117, 49 N. E. 957.
When the maker of a note negotiates the same, with collateral attached, he is presumed to know that, under the law, the original payee has the legal right to sell the note and transfer the collateral, and this right exists in the original payee by virtue of his contract with the maker. “One who makes a negotiable promissory note and delivers it to another is charged 'by the law with notice that the payee of such note has the right to transfer it, by sale or otherwise, to whomsoever he may see proper.” Bank of Forsyth v. Davis, supra. And, as. stated above, the purchaser takes such collateral as may be attached as security to the note as a mere incident of the sale and transfer.
From what we have said above it is obvious that the aupollee had the legal right to deliver the note, with attached collateral, upon its payment -by any one'whose liability thereon had been fixed either as surety, guar antor or indorser, and that it equally had the right to sell the note to a stranger and to transfer the collateral to the purchaser of the note. It is therefore now necessary to determine whether H. C. Pappas was liable as surety, guarantor or indorser, and, by reason of such liability, was required to pay the note, or whether H. C. Pappas was a stranger to" the note, and, if so, whether, as such stranger, he paid the note in such a manner as would discharge it, or whether he purchased the same.
"We are of the opinion that H. C. Pappas was not an indorser within the meaning of the Negotiable Instrument Law. Before the adoption of that law in this State, one who indorsed commercial paper after it had been put in circulation was not an indorser, but a guarantor. Killiam v. Ashley, 24 Ark. 511, 91 Am. Dec. 519; Scanlon v. Porter, 64 Ark. 470, 42 S. W. 897. The adoption of the Negotiable Instrument Law does not, in our opinion, change that rule. .Section 7830, C. & M. Digest, prescribes the liability of an irregular indorser; that is, one who, not otherwise a party, places his name upon an instrument, and this indorsement must be before delivery of the paper. The liability of a general indorser is fixed by % 7832, C. & M. Digest, and, under this section, such indorser “engages that, on due presentment, it shall- be accepted or paid, or both, as the case may 'be, according to its tenor, ’ ’ etc. The note being past due at the time H. C. Pappas placed his name upon it, he could not have engaged that., upon due presentment, it would be paid according to its tenor. At that time there could be no due presentment and the note could not be paid “according to its tenor.” But, because H. C. Pappas was not an indorser, it does not necessarily follow that he was a stranger to the note. He could, and did, make himself liable thereon to the bank by signing his name thereon and by executing the so-called renewal note. That, in our opinion, under the allegations of the complaint, was a separate and distinct contract, collateral to the original undertaking of the deceased, and sup ported by a sufficient consideration — the agreement of the bank‘temporarily to forego its undoubted right to foreclose its collateral.
It is sometimes hard to say whether a given contract is one of surety or guaranty. The terms are frequently loosely employed by the courts and in the textbooks. There are, however, certain well recognized distinctions between the two relations. The subject was considered by this court in Hall v. Equitable Ins. Co., 126 Ark. 535, 191 S. W. 32; Shores-Mueller Co. v. Palmer, 141 Ark. 64, 216 S. W. 295; Broomer Lbr. Co. v. Hickman, 71 Ark. 549, 76 S. W. 559; Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913. See 28 C. J. 889-894.
But, whether H. C. Pappas was a guarantor or a surety, his. right, upon being compelled to pay the note, to be subrogated to the rights of the payee and to receive the collateral, was the same. 37 Cyc. 402.
It is sufficient here for us to say that we believe the contract between the bank and H. C. Pappas, which was undoubtedly made for the benefit of the estate o.f the deceased, was a contract of guaranty.
We find it unnecessary to pass upon the question as to whether the administrator could consent to H.’ C. Pappas becoming a guarantor. One who becomes the guarantor of another’s contract without the knowledge or consent of such person, and who, by reason of his guaranty, pays the principal creditor, becomes by operation of law the purchaser of the debt, stands in the shoes of the principal creditor, and, as such, is entitled to all collateral. Leslie v. Compton, 103 Kan. 92, 72 Pac. 1015, L. R. A. (N. S.) 1918F, 706; Teberg v. Swinson, 32 Kan. 24, 4 Pac. 83; Carter v. Jones, 40 N. C. (5 Ired. Eq.) 196, 49 Am. Dec. 125; Wright v. Garlinhouse, 27 Barb. (N. Y.) 474; Marsh v. Hayford, 80 Me. 97, 13 A. 271; Hecker v. Mahler, 64 Ohio St. 176, 60 N. E. 555; Snell v. Warner, 63 Ill. 176; Peak v. Dorwin, 25 Vt. 28.
It therefore becomes immaterial whether the administrator consented to the contract of guaranty or whether in law he could consent thereto.
The liability of a guarantor is secondary. C. & M. Dig., § 7762; Crawford v. Turnbaugh, 80 Ohio St. 43, 98 N. E. 858; 2 Daniel, Negotiable Instruments, §§ 1753-1754. It is otherwise with a surety. Hall v. Equitable Ins. Co., supra; Shores-Mueller Co. v. Palmer, supra. As said in the last cited case: ‘ ‘ The contract of a surety starts with the agreement, and the liability of a guarantor is established for the first time with the default of the principal debtor.”
In this case the act of the appellee bank in taking a new note executed by the appellant personally and by H. C. Pappas, the brother of the deceased, amounted to an extension of the debt. Until this extension note, which was in itself the contract of guaranty, matured, the appellee bank had no right to proceed against the 'estate of the deceased, nor had it any right to proceed against H. C. Pappas. His guaranty was that the estate of the deceased would pay the note on or before the maturity of his note. There was no liability upon his part to pay until his note matured. If he paid the note prior to that time, his act was tantamount to the act of a stranger, against whom there was no liability. In order that the guarantor may be subrogated to the rights of the creditor, upon paying the debt, the payment must be made at a time when he was legally required to make it. 37 Cyc. 375 et seq.; 37 Cyc. 407. The right to subrogation does not exist unless the payment was made by one who at the time was required by law to pay. 5 Pomeroy’s Equity Juris., § 2345 et seq., 2 Story’s Eq. Juris. (14 ed.), § 717 et seq. Of course, if Pappas was not subrogated to the rights of the bank, it was not justified in delivering him the collateral. He was not legally required to pay the note of the deceased until the renewal note which he had executed matured, and if he paid it prior to that time, he will be regarded as a stranger to the debt. Martin v. Monger, 112 Ark. 394, 166 S. W. 566.
From this view of the law it becomes important to ascertain whether the complaint shows upon its face that, at the time H. C. Pappas paid the note of the deceased, he was legally required to pay the same — that is to say, that his note had matured. If this appears from the complaint, we unhesitatingly say that no cause of action was alleged against the appellee.
We are, however, from a careful examination of the complaint, unable to find any allegations from which a reasonable inference can be drawn that H. C. Pappas paid the note at a time when he was required to pay it under his contract with the bank. Indeed, the necessary inferences from the complaint are to the contrary. The complaint does not allege that H. C. Pappas was required by the bank to pay the note. On the other hand, it alleges that the appellee “accepted payment of its note from JEL C. Pappas, the ‘brother of the deceased, 'and wrongfully delivered at the time to IT. C. Pappas the said security,” etc. The inference is that the payment by H. C. Pappas was the result of a voluntary act upon his part, one not required by his legul obligation. The complaint alleges that the bank “accepted” payment, from which we are led to infer that the payment of the note by H. C. Pappas was not the result of his obligation, which might not yet have matured. The allegations as to the estate’s insolvency, being referable to the date the complaint was filed (January, 1926) cannot aid us in reaching a conclusion contrary to the one expressed. We are therefore unable to say, from the facts alleged, giving them every possible intendment in favor of the correctness of the lower court’s ruling on the demurrer, that it appears with certainty that at the time he paid the note he was legally bound to do so.
If the appellee ‘bank desired to justify its act in delivering the collateral to a guarantor, and the complaint failed to show, as we hold, that at the time of the payment of the note and the delivery of the collateral the guarantor was legally bound and obligated to pay the debt, it should have, by motion in the lower court, requested, that the plaintiff 'be required to allege the facts with more particularity.
It is earnesly insisted by the appellee that, if Pap-pas be considered a. stranger to the transaction, his payment of the note and the assignment to him thereof, together with the attached collateral, would make him a purchaser of the debt and entitle him to receive the collateral.
It is undoubtedly true, as shown above, that a stranger may purchase negotiable paper either 'before or after maturity, in which event the paper is not discharged, and he becomes the holder of the same with all the rights of his assignor, including the right to receive such collateral as his assignor may have had. It is also undoubtedly true that, where a stranger pays another’s note, he is presumed to have purchased the same, and the note is not discharged. Chappell v. McKeough, 21 Colo. 275, 40 P. 769; Bank v. Friend, 80 Mo. App. 657; Van Standt v. Hobbs, 84 Mo. App. 628; Ketchum v. Duncan, 96 U. S. 659, 24 L. ed. 868; Wood v. Guaranty Trust Co., 128 U. S. 416, 9 S. Ct. 131, 32 L. ed. 472; Barney v. Clark, 46 N. H. 514; Dent v. Matthews, 202 Mo. App. 451, 213 S. W. 141; People’s State Bank v. Dryden, 91 Kan. 216, 137 Pac. 928; McDonald v. Burns, 83 Fed. 866. The last cited' case is an opinion by the Circuit Court of Appeals for the Eighth Circuit (judgment was rendered by Sanborn and Thayer, Circuit Judges). See also on this point, 3 Randolph on Commercial Paper, §§ 1438-1440.
An examination of the authorities just cited will disclose the fact that, while the presumption is, as stated above, that the payment of a note by a' stranger is a purchase thereof and not a discharge, yet, in the final analysis, it is a question of the intent of the parties, which is to be gathered from all the facts and circumstances. This presumption is not one of law, it is a presumption of fact, and may be rebutted.
In construing the allegations of the complaint with respect to whether or not the act of H. C. Pappas in pay ing the note (assuming that he was a stranger in so doing) amounted to a purchase thereof and not a discharge of the paper, we find that the complaint is silent on the question as to whether the original note, or any note, for that matter, was delivered to H. C. Pappas. It does not appear from the complaint whether the note was marked paid by the bank or whether it was delivered to Pappas with the intention and understanding that the note was not being discharged but that the title thereto was merely being transferred to Pappas as a purchaser, together with the collateral, which he was to hold as security for the payment of the note. We cannot say, as a matter of law, and in the teeth of allegations apparently to the contrary, that the payment of the note by H. C. Pappas made him a purchaser thereof, although, when the facts and circumstances are fully shown, such may be the legal effect thereof.
Our statute provides that payment of a note by or on behalf of the maker will discharge it. C. & M. Dig., § 7885. Hence payment of such note by a stranger, if made for and on behalf of the maker, would discharge the debt. If H. C. Pappas paid this note for and on behalf of his brother, the note was discharged, and he was not entitled to the collateral. If, on the other hand, he paid it for and on behalf of himself, with the intention thereby of acquiring title to the note and its attached collateral, the note'was not discharged, and the bank was justified in delivering him the collateral. .
The complaint might have been fuller on this point, and a motion to make more definite and certain would lie. We cannot say, however, that it was bad upon demurrer, whether H. C. Pappas be treated as a party secondarily liable or as a stranger.
We may add that if H. C. Pappas was a purchaser of the, note, or if he paid the same at a time when he was leg'ally required to do so, the case of Union & Mercantile Trust Co. v. Harnwell, supra, has no application.
From what has been said it follows, that the judgment of the lower court is reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings in accordance with law and not inconsistent with this opinion.
Mr. Justice .Smith, Mr. Justice Humphreys and Mr. Justice McHaney dissent.
Mr. Justice Kirby did not participate. | [
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G-reenhaw, J.
Appellant prosecutes this appeal from a judgment awarding appellee $3,000 for personal injuries received hy her as a result of a collision between a car operated by her husband, W. W. Rogers, and a truck owned by appellant and operated by his employee, Whit Hunt.
■ September 12, 1940, shortly after 6:00 o’clock in the morning, the car in which appellee was riding was proceeding eastward. Rogers testified that he had been driving at approximately 30 miles per hour, and as he approached the street in the town of Lockesburg where the highway he was traveling crossed a highway running north and south he reduced his speed, and not seeing a car on the highway which runs north and south he entered the intersection. As he did so he saw a truck which was being driven north on the other highway at a high rate of speed, as he says; and, thinking he would be unable to avoid a collision, swerved his car to the north (his left) and came to a stop or appreciably slackened his speed at a time when he was six or seven feet west of the center line of the north and south highway.
A sign reading “Road Closed — Detour” with directions thereon had been placed on the north and south highway north of the intersection, and it interfered with use of a portion of the east half of that highway. Rogers testified that the truck was forced to cross over to the west or left side of the road in order to avoid striking this sign, and that his car, which was west of the center line, was struck on the right side by the left rear wheels and trailer of the truck.
The impact caused Rogers’ right door to open, and appellee fell to the pavement.
Several people saw tlie collision. Appellee’s witnesses testified in substance that Rogers was driving at moderate speed, estimated to be between 20 and 30 miles per hour, and that he slowed clown before entering the intersection; that appellant’s truck was being driven at an estimated speed of 50 to 55 miles per hour; that Rogers swerved to his left to avoid the collision and was struck by the truck. Rogers and other witnesses testified that the truck proceeded about 150 feet after the collision before stopping. -
Wliit Hunt, the driver of the truck, testified that his speed was about 15 miles per hour; that after entering the intersection and before reaching the point where the collision occurred he saw the Rogers car approaching from the west about 30 yards away; that because of the length of appellant’s truck and trailer, it was impossible for Hunt to stop his truck, and avoid the collision; therefore, he proceeded across the intersection, and as he turned left to clear the highway sign the trailer was struck by the Rogers car. This occurred while his trailer and rear wheels were still on the right side of the highway. Hunt estimated Rogers’ speed at 50 miles per hour.
Hunt’s version of the accident was corroborated by appellant, who was in the truck, and by another witness.
Appellee was rendered unconscious by her fall, and received medical treatment at Lockesburg. She was later a patient of Hr. H. E. Cockerham of Portland and Dr. J. H. Burge of Lake Village. She was placed in the Lake Village Infirmary, where she remained for two weeks. Testimony of doctors Cockerham and Burge was that in addition to various contusions and lacerations she had suffered a brain concussion, and also chest injuries including a fractured rib and an injury to one lung. At the time of trial appellee still complained of frequent and severe headaches, blurred vision and chest pains. Medical opinion was that this condition resulted from injuries received in the collision, and if the headaches continued they would probably be attributable to the head injury.
Dr. L. Gr. Fincher, called by appellant, testified that he examined appellee while she was in the hospital, and that he found no evidence of a brain or skull injury. He verified the fact that she had a fractured rib. He attributed appellee’s condition to previous optical defects, she having undergone an operation for cataracts, and stated that she was also suffering from nephritis and had high blood pressure.
In his motion for a new trial, appellant assigned a number of errors, not all of which are urged as grounds for reversal.
We are unable to agree with the contention that the testimony of Berry Provence as to. the speed of the truck when it passed him, about three blocks south of the intersection, was inadmissible. It was competent as a circumstance tending to show the speed of the truck at the time of the collision.
Appellant contends that the court erred in giving certain instructions and refusing others. He does not abstract any of the given instructions, although in the motion for a new trial 22 are referred to. Hence we do not know whether the refused instructions were covered by given instructions which were correct.
In the case of Hamburg Bank v. Jones, 202 Ark. 622, 151 S. W. 2d 990, this statement of the law was given: “It is said the court erred in giving and refusing to give a number of instructions. These assignments cannot be considered because appellant has failed to abstract or set out all the instructions given and refused. This court will not explore the record to determine whether error has been committed in this regard.”
Appellant further contends that the evidence showed that he was not guilty of negligence, and that the collision was caused by appellee’s husband. There was a conflict in the testimony, and it was for the jury to deter? mine which explanation it would accept. Since the verdict was supported by substantial evidence it will not be reversed.-
In the case of Harmon v. Ward, 202 Ark. 54, 149 S. W. 2d 575, we said: “It is the province of the jury to determine the credibility of the witnesses and the weight of the testimony, and this court will not set aside a verdict supported by substantial evidence. ... In determining the sufficiency of the evidence this court will consider the appellee’s evidence alone, and if there- is any substantial evidence to support the verdict it will not be disturbed by this court.”
Finally appellant contends that the verdict is excessive. He did not raise this question when a new trial was asked, and it is urged here for the first time. Miller Rubber Co. v. Blewster-Stephens Service Station, 171 Ark. 1179, 287 S. W. 577, 59 A. L. R. 1237, involved a similar question. A quotation from that opinion is: “Another contention of appellant for a reversal of the judgment is that the verdict is excessive. As we understand the record, no such contention was made in the trial court nor raised in the motion for a new trial, hence is not available here. Citizen’s Fire Insurance Co. v. Lord, 100 Ark. 212, 139 S. W. 1114.” See, also, Gaither Coal Co. v. LeClerch, 182 Ark. 466, 31 S. W. 2d 750, in which this court said: “This objection cannot be considered by this court for further reason that it was not made one of the grounds of appellant’s motion for a new trial. A question not raised in appellant’s motion for new trial will not be considered on appeal.”
Affirmed. | [
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Mehabfy, J.
On December 5, 1940, Dr. A. J. Brittian filed suit in the Van Burén chancery court against Frank McKim and Mavis McKim, his wife, alleging that the appellees were indebted to him in the sum of $428.45, for which certain promissory notes had been given. A mortgage was properly executed and delivered to appellant to secure the payment of said notes. On October 30, 1940, Dr. A. J. Brittian brought suit in the Van Burén chancery court against the appellees, Vernon McKim and Edith McKim, his wife, for the sum of $1,263.01; alleged that certain, notes were given for this amount, and. appellees, Vernon McKim and Edith McKim, executed and delivered to appellant their mortgage on certain real property to secure the payment of said indebtedness.
On January 6, 1941, S. L. Collums filed an intervention. alleging that prior to the date suit was filed the appellee, Frank McKim, being indebted to him in the sum of $377, conveyed the l-ands mentioned in plaintiff’s complaint to intervener by warranty deed, and that the sums credited on the indebtedness alleged to be due the plaintiff were not indorsed on the margin of the record of the mortgage within five years after the maturity of all the notes except the last one, and claimed a prior lien; that he was a third party and that all the notes except the last one were barred by the statute of limitations ; that the notes given by McKim to appellant were usurious and void, and the said notes and mortgage should be canceled and the intervener decreed the first rights in said land.
Thereafter Dr. A. J. Brittian filed answer to the intervention and denied each and every allegation of the intervention.
Answer was filed in each of these suits pleading the statute of limitations and usury. There was also an intervention filed by Collums in the second suit and an answer filed denying each and every allegation in the intervention.
On April 8,1941, in the case of A. J. Brittian v. Frank McKim and others, and also in the ease of A. J. Brittian v. Vernon McKim and others, the death of Dr. A. J. Brittian was suggested and admitted, and the causes revived in the name of W. L: Brittian, administrator of the estate of A. J. Brittian. On July 7, 1941, the two cases were consolidated for trial by agreement.
"W. E. Castleberry testified in substance that he was the agent of and working for Dr. W. L. Brittian in the administration of the affairs of Dr. A. J. Brittian; that he had the papers, etc., of Dr. A. J. Brittian, in case No. 610, and A. J. Brittian v. Vernon McKim and Edith McKim; he exhibited the nine original notes and made them exhibits to his testimony; introduced the real estate mortgage executed by Vernon and Edith McKim; in case No.-611, Dr. A. J. Brittian v. Frank McKim, et al., he identified and introduced six notes, and identified and. exhibited the real estate mortgage; that no credits were put on the notes, but he made a statement on paper saying that the credits on the notes were as follows: “credit on note $78.30, 10/23, 1933, $25; credit note $70.30, 10/24, 1936, $20; credit on note ‘$65.30, 11/12, 1937, $25; credit on note $70.30, 9/30, 1938, $50; credit on note $78.30, 10/29, 1940, $30.” The notes were lost at the time the suit was filed, but were afterwards fouiid. Witness got the credits from receipts given by Dr. Brittian to Frank McKim, and Frank McKim said that these were the only payments made; Frank McKim did not direct him to put the payments on the notes; put the credits on each note to protect the interest of Dr. Brittian; the notes ivere made out for correct amount Avith interest at 10 per cent.; never asked usury of anyone.
Frank McKim, one of the appellees, testified admitting- that the five notes and mortgage introduced are the ones he executed; aa7us indebted to the plaintiff at the time in the sum of $250; that Brittian wrote him a note to come down and they Avould fix the papers any AA7ay witness wanted them; that he wanted to make the notes for $50 and let each note draAv its own interest, but Dr. Brittian Avould not agree to this; Dr. Brittian said he would figure the interest in the first of the notes and these notes Avould not draAv any interest the first year if they were paid Avhen they became due; the interest was figured in the notes and Avitness did not Avant it that Avay, but Dr. Brittian said, “you can or else,” so AAÚtness agreed; at that time Dr. Brittian had a vendor’s lien on the same land; witness took up the old notes and gave new ones; Brittian added the vendor’s lien in the deed and put the mortgage on record; that he made notes for the land, but no deed was ever made; six notes were given and he says he thinks he paid $400; the notes are renewal notes made to Dr. Brittian in 1931; witness claims he charged more than 10 per cent., but he made no complaint and tried to pay it; witness says lie told Mr. Reeves lie thought Dr. Brittian was charging him too much interest; this was while Dr. Brittian was bedfast; did not make any complaint until after Brittian was sick; has owed for the land 16- years and still owes for it; Dr. Brittian had a lawyer to make out the notes at Conway and witness knew nothing about what they contained when he signed; he did not discover at that time that there was any usury in them.
Vernon McKim testified in substance that Dr. Brittian had the notes for Frank McKim prepared and Frank had nothing to do with it; witness was indebted to Brittian at the time in the sum of $450; he took the notes back and fixed them up before his uncle sent them back; wanted the notes to pay $50 a year and pay the interest on the notes as they came due; but Brittian did not want to make it that way; witness made two payments; the first time he gave a bale of cotton and later gave $40; does not remember what cotton was selling for, or what year it was; witness gave the note sued on in place of other notes; there are six notes for $100 each, one for $102; seems to witness they were made for a sum more than 10 per cent.; has not paid taxes for a good while; guesses he paid the tax up to 1937; Dr. Brittian paid up the tax on them.
S. M. Collums testified in substance about filing his intervention, and that he took a deed of trust on this land November 7, 1940; Frank McKim gave him a warranty deed and he had the deed recorded; when he took the deed he examined the mortgage in the clerk’s office; in case No. 610 he took a mortgage from Vernon McKim for $180 and it is recorded; no suit was pending at {he time he took the mortgage.
Farish Fraser testified about the mortgage being on record from Vernon McKim and wife to A. J. 'Brittian, and that there had been no credits on the margin of the mortgage record prior to October 28, 1940, and' there are none now; at page 545 witness finds a real estate mortgage from Frank McKim and wife to Brittian and there had been no credits on the margin of the record. Tlxe mortgages from Vernon McKim and wife to Collums and Frank McKim and wife to Collums had been recorded.
The court found in favor of the defendants in each case and ordered that the mortgages be canceled, and that the plaintiff pay all costs. The case is here on appeal.
The appellees say that this case presents two defenses on the part of the appellees; the statute of limitations and usury. There is practically no evidence as to usury, except that of the defendants, and they testify as to transactions and conversations with the deceased, which testimony is incompetent.
The constitution provides: “In civil actions no witness shall be excluded because he is a party to the suit or interested in the issue to be tried. Provided, that in actions by or against executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements of the testator, intestate or ward, unless called to testify théreto by the opposite party. ’ ’ Section 2 of the schedule of the Constitution of the State of Arkansas.
This court said in the case of Lasker-Morris Bank & Trust Co. v. Gans, 132 Ark. 402, 200 S. W. 1029: “But we try chancery cases de novo, and it is our duty as well as that of the chancellor to disregard incompetent testimony. ’ ’
When we have disregarded this incompetent testimony, we are of opinion that the finding of the chancellor was against the preponderance of the evidence; that there is practically no evidence tending to support the plea of usury.
In many eases where incompetent testimony is introduced without objections, such testimony might support a finding of the court. In the case of hearsay testimony, which is inadmissible, the court holds that where introduced without objection, it is sufficient to support a finding of the court or a verdict of the jury. But the case here is very different. There is no constitutional provi sion prohibiting the introduction of hearsay testimony, and in this ease the constitution expressly provides that neither party shall be allowed to testify against the other as to any transactions with or statements of the testator. But as we have already said, we try chancery cases de novo, and it is our duty, as well as the duty of the chancellor, to disregard this incompetent testimony. And without this testimony, which was wholly incompetent, there is no evidence to support the plea of usury.
We think, from a calculation of the amounts and interest on the notes, that they show that there was no usury charge.
In § 13 of art. 19 of the constitution it is provided that all contracts for a greater rate of interest than ten per cent, per annum shall be void.
In the case of Bauer v. Wade, 170 Ark. 1020, 282 S. W. 359, it was said: “In construing this section of the constitution and the statutes passed pursuant to its directions, it had been held that a mutual agreement to give and receive unlawful interest is not necessary to constitute usury, but that there must have been an intention on the part of the lender to take or receive more than the legal rate of interest. Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. W. 569; Jones v. Phillippe, 135 Ark. 578, 206 S. W. 40.”
In the case of Briggs v. Steele, 91 Ark. 458, 121 S. W. 754, it is said: “To constitute usury, there must either be an agreement between the parties by which the borrower promises to pay, and the lender knowingly receives, a higher rate of interest than the statute allows for the loan or forbearance of money; or such greater rate of interest must be knowingly and intentionally ‘reserved, taken or secured’ for such loan or forbearance. It is essential, in order to establish the plea of usury, that there was a loan or forbearance of money, and that for such forbearance there was an intent or agreement to take unlawful interest, and that such unlawful interest was actually taken or reserved.
“The wrongful act of usury will never be imputed to the parties, and it will not be inferred when the op posite conclusion can be reasonably and fairly readied.” See, also, Scruggs v. Scottish Mortgage Co., 54 Ark. 566, 16 S. W. 563; Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. W. 569; Leonhard v. Flood, 68 Ark. 162, 56 S. W. 781; First National Bank v. Waddell, 74 Ark. 241, 85 S. W. 417, 4 Ann. Cas. 818; Citizens’ Bank v. Murphy, 83 Ark. 31, 106 S. W. 697; Eldred v. Hart, 87 Ark. 534, 113 S. W. 213; Briant v. Carl-Lee Bros., 158 Ark. 62, 249 S. W. 577.
In each of tliese cases there was one debt for the land, but there were several notes given. The rule is stated in 48 C. J. 663, as follows: “Where two or more debts are kept separate and distinct from each other, the law will apply partial payments to the satisfaction first of the interest, then of the principal of the debt first falling due, and, following that, first the interest, then the principal of each succeeding debt in order. But where there is in reality but one debt represented by different notes maturing at different times, the payment should first be applied to the interest due on the whole debt. ’ ’
This court, in the case of Rich v. Hankins, 203 Ark. 1082, 160 S. W. 2d 44, after citing the rule in 48 C. J., and other cases, said: “In the light of the above authorities, we think that the payments, supra, were an acknowledgment of the entire indebtedness as a single debt and that the payments made should first have been credited to the interest on the entire indebtedness and not credited to any single note, and that the last payment, supra, March 21, 1936, of $15 kept the debt alive and the five-year statute of limitation is not a bar to appellant’s cause of action. ’ ’
It seems clear, therefore, that in neither case was the debt barred by the statute of limitations. Of course, Collums, the intervener, had no better or greater rights than the defendants, and if the debt was not barred as to them, he could not recover. The record shows that in 1926 these two appellees purchased a farm and home from Dr. A. J. Brittian. Frank McKim promised to pay $660 for his, and Vernon McKim promised to pay $602.93. In 1931, the notes were renewed and both parties admit that they still owe for the land, admit they are in possession of the land, and they ask permission to keep the land, cancel the debt and mortgage on the plea of usury. One of the defendants testified that when they made the notes of which they now complain as being usurious, they took them to their uncle and executed them before him and then returned them to Dr. Brittian. This was in 1931, and not a word was said by either of them, so far as the record shows, about usury or any other defense until after suit to foreclose was brought and after Dr. Brittian was sick, and one of the defendants said “bedfast.”
We are of opinion that in each case there was one debt, and that there was no usury in either, and that the debt was not barred by the statute of limitations.
The decree of the chancellor is reversed in each case, and the causes remanded with directions to enter decrees for the amounts claimed in each case by the appellant, and the lands ordered sold to satisfy the decrees. | [
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Hart, C. J.,
(after stating the facts). It is first earnestly insisted that the judgment should be reversed because the court refused to grant the motion of the defendant for a continuance. According to the evidence for the plaintiff, the accident occurred about four o’clock in the afternoon on January 27, 3926, while he was driving northward in White County, Arkansas, towards Bald Knob. It was the theory of the defendant that on that day his car, which was ia Dodge sedan, was in a garage at Bald Knob which was operated by GL T. Henry.. Bill Kent worked in the garage, and, in his motion for a continuance, the defendant set up that he could prove by Kent that, for several days before the alleged accident, he was the only mechanic that had worked on the defendant’s car, and that the defendant’s car was in the garage where he worked all day on the '27th day of January, 1926. The record shows that the defendant testified to this fact, if fact it was, iand that he was corroborated by the testimony of the keeper of the garage. The complaint of the plaintiff alleges that the accident occurred on the 27th day of January, 1926, and this put the defendant on notice that he was charged with having negligently run into the plaintiff’s car on that day north of a concrete bridge across Grin Creek, in White County, Arkansas, while said car of the plaintiff was traveling in a northerly direction. This put the defendant on notice of what he should prove as a defense to the action, and that, if he claimed he was not the person who overtook the plaintiff in an automobile and negligently ran into the car driven by the plaintiff, he could prove such fact by showing that he was at another place on that day. It could not be said that he could only prove his whereabouts by the owner of the garage and a mechanic working therein. It cannot be said that his defense to the action could only be established by showing that his car was in a garage in Bald Knob. • He could have shown that he was not the person who ran into the plaintiff by establishing that he wias at another place at the time- the accident occurred. Hence the testimony of Kent was cumulative merely, and the court did not abuse its discretion in refusing to grant the defendant a continuance on account of the absence of Kent. Spear Mining Co. v. Shinn, 93 Ark. 346, 124 S. W. 1045; and El Dorado Ice & Cold Storage Co. v. Dingle & Kincaid, 173 Ark. 506, 292 S. W. 690.
Again, it cannot be said that the defendant made a sufficient showing of diligence in the matter within the rule announced in Finley v. Glift, 164 Ark. 190, 261 S. W. 319, and in nnmerons other eases decided by this court. According to the allegations of the complaint, the accident occurred on the 27th day of January, 1926, and the suit was filed on the 29th day of January, 19'26. Trial of the case was had on the 20th day of July, 1926. The witness Kent was only served a few days before the trial, and the record does not show that the defendant asked for an attachment for the witness. The defendant had filed an answer, in which he denied that, on the day alleged by the plaintiff, or iany other day, he drove a car along the highway and ran into the car driven by the plaintiff while attempting to pass him in his automobile. While the defendant excepted to the action of the court in overruling his motion for a continuance, the court had a right to assume that, by going to trial without having asked for an attachment for the witness, he had other witnesses by whom he could establish that he was at another place than the scene of the accident at the time it occurred. Hence we hold that the court did not err in refusing to grant the motion of the defendant for a postponement or a continuance of the case.
The general rules governing the movement of automobiles, except as changed by statute, are the same as those which, as the result of long usage, regulate the movement of wagons and other vehicles of like kind. The record shows that the defendant was driving his car at a more rapid rate of speed than that of the Ford' truck driven by the plaintiff. It was the duty of the plaintiff to yield room enough for the defendant to pass him when the latter blew his horn and gave him warning that he was about to do so. According to the evidence of the plaintiff, he was on the right-hand side of the road, going north, and there was plenty of room on the highway for the defendant to pass his car on the left. It was the duty of the defendant, in overtaking and attempting to pass the plaintiff, to exercise ordinary care and skill in doing so. Hnder the evidence disclosed by the record, the jury might have found that the defendant, after the front wheels of his car had passed the front of the plaintiff’s car, swerved suddenly to the right, intending to return to the right-hand side of the road, without warning the plaintiff, and that he negligently ran his car into the front wheel of the plaintiff’s car and thereby caused the injuries complained of. Wells v. Shepard, 135 Ark. 466, 205 S. W. 806. The evidence warranted the jury in finding for the plaintiff on the question of compensatory damages, and an examination of the record shows that there was no prejudicial error resulting to the defendant from the trial on this branch of the case.
It is earnest^ insisted, however, by counsel for the defendant, that the court erred in submitting to the jury the question of punitive damages, and in this contention we .think counsel are correct. In St. L. S. W. Ry. Co. v. Owings, 135 Ark. 56, 204 S. W. 1146, it was held that negligence alone, however gross, is not sufficient to justify the award of punitive damages. There must be some element of wantonness or such a conscious indifference to the consequences that malice might be inferred. In other words, in order to warrant a submission of the question of punitive, damages, there must be an element of willfulness or such reckless conduct on the part of the defendant as is equivalent thereto. In the case at bar there is no element, of wantonness or willfulness on the part of the person driving the car which overtook the plaintiff and ran into his car and thereby caused the injuries complained of. The overtaking oar was only going at the rate of between fifteen and twenty miles an hour, and the testimon3 for the plaintiff only warrants the inference that the defendant, in endeavoring to return to the right-hand side of the road, swerved his car to the right too suddenly as he was passing the car driven by the plaintiff, and that his negligence in so doing caused the injury complained of. As we have already seen, there is no testimon3r in the record that would warrant the jury in finding that the conduct of the defendant was so reckless as to constitute wantonness or willfulness on his part. Hence the court erred in submitting to the jury the question of punitive damages.
This error can be eliminated. The verdict of the jury found specifically the amount that should be awarded to the plaintiff for his own personal injuries and for the injury to his automobile. It then found a separate amount to be awarded the plaintiff as punitive damages. The error can be cured by rendering judgment in favor of the plaintiff for the compensatory damages, which amount to $125. Inasmuch as the punitive damages are for a substantial amount, and this is a- law case, the cost of the appeal must be awarded to the defendant. American Soda Fountain Co. v. Battle, 85 Ark. 215, 107 S. W. 672, 108 S. W. 508.
It follows that the judgment will be reduced to the sum of $125, and judgment will be rendered here in favor of the plaintiff against the defendant for that amount, and the defendant will be awarded the costs of the appeal against the plaintiff. It is so ordered. | [
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Mehaeey, J.
The appellee filed in the Pulaski Circuit Court the following petition for a writ of mandamus :
“Plaintiff is the duly elected, qualified, commissioned and acting tax assessor of Pulaski County, Arkansas, and the defendant is the duly elected, qualified, commissioned and acting Auditor of State for the State of Arkansas.
“Under the provisions of act 51 of the Acts of the General Assembly for the year 1925, fixing the compensation to be paid assessors in counties having a population in excess of 75,000 persons as shown by the last Federal census, plaintiff and his assistants are entitled to the sum of $25,000 for compensation in making the assessment of the real and personal property for taxation in Pulaski County for the year 1927; and, under the provisions of act 14 of the Acts of 1889, one-half of the assessor’s compensation for making the assessment of real and personal property is required to he paid by the State of Arkansas, and the other half by the county. Under the provisions of act 477 of the Acts of 1919 it is specifically provided that one-half of the expense of the real estate assessment shall be paid by the State and one-half by the county, which act further provides that the county court shall draw its warrant on the county treasurer for one-half the amount due the assessor, and that it shall, at the same time, certify to the Auditor of State the amount due said assessor on the part of the State, the same being one-half of the total amount due said assessor; and that thereupon the State Auditor shall draw his warrant on the State Treasurer for said amount.
“Plaintiff states that the expense of assessing the real estate in Pulaski County for the year 1927 was $16,185, one-half of which has been paid by Pulaski County. Plaintiff further states that, on August 29,1927, the county court of Pulaski County, pursuant to the provisions of the above statutes, certified to the defendant, as State Auditor, the amount due plaintiff from the State of Arkansas for making said assessment in the sum of $8,092.50, ia certified copy of said' order and certificate being attached hereto, marked exhibit A and made a part hereof; that plaintiff presented said certificate to the Arkansas Tax Commission, which said Commission approved same for payment in the sum of $8,092.50, as shown by the indorsement thereon, and that thereafter plaintiff presented said certificate to the defendant and requested him to draw his warrant on the State Treasurer in favor of plaintiff for said amount, but that said defendant declined and refused to do so, and continues to decline and refuse to draw his warrant on the State Treasurer in favor of plaintiff, for the expense of making said assessment, for any sum in excess of $75.”
There was a prayer for a writ of mandamus ordering appellant to issue his warrant for one-half the expense of assessing the real estate in Pulaski County.
Attached to and made a part of the petition for mandamus was the following-order of the Pulaski County Court:
‘ ‘ On this day is presented to the court the duly verified claim of W. H. Grarner, assessor of Pulaski County, Arkansas, against Pulaski County and the State of Arkansas, in the sum of $16,185, for services rendered by him in making the assessment of real property for taxation in said county for the year 1927, and, upon examination and consideration of said claim, it appearing to the court that the same is just and correct, it is ordered that the same be and is hereby allowed and ordered paid, one-half the amount thereof, or the sum of $8,092.50, to be paid by the State of Arkansas, and one-half the amount thereof, or the sum of $8,092.50, to be paid by the county of Pulaski, and the clerk of this court is ordered and directed to draw his warrant on the treasurer of Pulaski County, in favor of said W. H. Garner, for the sum of $8,092.50, payable out of any money in the treasury appropriated for the expense of ‘ assessment and tax-books,’ and it is further ordered that a duly certified copy of this order be delivered to the Auditor of the State of Arkansas, as his authority for payment by him to the said W. H. Garner of the sum of $8,092.50, the amount due by said State for making said assessment.”
The above -order was certified to by the clerk as a true and correct copy of the order of court.
'The Attorney General filed the following demurrer:
“Comes the defendant, J. Carroll Cone, Auditor of State, and demurs to the petition for writ of mandamus in the above styled cause, and for cause states that the complaint does not state facts sufficient to constitute a cause of action.”
Thereafter the circuit court entered the following judgment :
‘.‘On this day comes the plaintiff by his attorneys, Emerson, Donham & Pulk, and comes the defendant by Honorable John L. Carter, Assistant Attorney General; and the defendant herein files a demurrer to plaintiff’s petition, which demurrer, being duly presented and argued before the court, and the court being well and sufficiently advised in the premises, doth overrule same, to which action of the court in overruling said demurrer defendant at the time duly excepted, and asked that his exception be noted of record, which is done. Whereupon, the defendant electing to stand upon his demurrer, and declining to plead further, the cause was submitted to the court upon the verified petition of plaintiff and exhibits thereto; and the court, after hearing argument of counsel, and being well and sufficiently advised in the premises, is of the opinion that the prayer of said petition should he granted.
“It is therefore by the court considered, ordered and adjudged that the defendant, J. Carroll Cone, as State Auditor, be and he is hereby directed to draw his warrant upon the' State Treasurer in favor of plaintiff for the sum of $8,092.50, for one-half the expense of assessing real estate in Pulaski County, Arkansas, for the year 1927, and deliver same to plaintiff.”
To reverse this judgment the State prosecutes this appeal.
Appellant contends that the act of the Legislature under which appellee began the action provides for the payment of one-half of the assessor’s compensation, whereas the petitioner seeks to collect one-half of the expenses.
Compensation which is used in the sense of reimbursement means either salary or fees, and it may also include expenses.
It was held by the New Jersey court that the surplus of moneys furnished the sheriff by the county for the policing of the .jail, after paying the salaries of the deputy keepers, comprised compensation for services rendered as custodian of the jail, and therefore, under the above act of 1905, belonged to the county. Board of Chosen Freeholders of Hudson County v. Kaiser, 75 N. J. Law 9, 69 Atl. 25.
It was held by the Kentucky, court that compensation included all amounts paid for any services required to be performed by the officer.
The word “compensation,” as used in the session laws of 1909, chapter 240, providing that county game wardens shall receive such compensation as the .State Game Warden shall determine, but shall not exceed $50 per month, includes amounts paid for expenses incurred as well as for services rendered, and such compensation cannot in any one month exceed $50. Jenkins v. Holstrom, 30 S. D. 192, 138 N. W. 12.
There are numbers of cases in Words & Phrases, from which we have copied above, which show that salary or compensation means whatever the officer may receive, including the expenses incurred by him, and, when he incurs expenses in assessing property or in any other way in the performance of his official duties, reimbursing him for the money thus expended is compensation, the same as salary or fees received by him.
It is next contended by the 'State that § 2 of act. 51 of 1925 is void, because it authorizes the county court, on application of the assessor, to grant authority to employ additional deputies or assistants at salaries to be fixed by the assessor,' and cites the case of Nixon v. Allen, 150 Ark. 244, 234 S. W. 45. The court there said: “The power to fix the salaries and fees of all officers in the State, and the number of their clerks and employees and their salaries, is a function which, within the limits of the 'Constitution, is lodged in the supreme lawmaking power of the State — the Legislature.” The court cites numerous authorities supporting this declaration of law.
Section 2, as contended by the Attorney General, we think, is void, and the reason given by the court in the ease of Nixon v. Allen, supra, applies equally in this case_ to § 2.
Act 51 of the Acts of 1925, however, is a complete act without § 2. It provides for the assessor’s salary, and for the number of deputies with their salaries, and is a complete act without § 2, and, since that is true, the fact that § 2 is void does not affect the remainder of the act.
This court has many times held that, where the unconstitutional portion of an act was severable, where there was a complete act -without it, the fact that one section or one portion of it violated the Constitution did not necessarily make invalid the entire act, and, in the case of Nixon v. Allen, supra, this court said (quoting from Cooley’s Constitutional Limitations):
“If a statute attempts to accomplish two or more objects, and is void as to one, it may istill be in every respect complete and valid as to the other. But, if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invialid portion. And, if they are so mutually connected with and dependent on each other as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them. ’ ’
The court, in addition to quoting from Cooley’s Constitutional Limitations, cites a number of authorities.
It will readily be seen by an inspection of act 51 that § 2 is not dependent, conditional or necessarily connected with the rest of the act in any way.
It is next contended by the Attorney General that, notwithstanding the Legislature undertook to make this a general act, it is purely local, and calls attention to the case of Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235, 258 S. W. 335. The Attorney General, however, does not contend that the act is void, eveii if a local act, and we think it is immaterial whether the act was general or local. It was passed prior to the adoption of the constitutional amendment prohibiting the Legislature from passing local bills, and is valid, even though a local bill.
Appellant calls attention to § 3 of the act, which provides that “all fees, penalties and other compensation now allowed such assessor shall be by him paid quarterly unto the county treasurer, taking his receipt therefor,' one copy of which receipt shall be retained by the treasurer, one placed on file with the county clerk, and one retained by said assessor.” He then argues that it is clear that it was not the purpose of the Legislature to abolish fees, penalties, etc.
That is true with reference to all, or nearly all, of the acts of the Legislature fixing salaries for county officers, instead of fees. In all cases they are required to -.collect the same fees that the law required them to collect before the passage of the law putting them on a salary and to turn the fees so collected over to the county treasurer. In some instances the law requires that they be paid from the fees collected; in others they are paid salaries by the county without regard to the amount of fees collected. The fees collected might be more or less than the salary fixed by the Legislature.
We think, however, that the Legislature, in passing the law, intended that one-half of the compensation should be paid by the State, and that it is wholly immaterial whether the officer’s compensation was fees or salary, and, whether fees or salary, the -necessary expenses incurred in the performance of his official duties are part of the compensation. .
It is next contended by appellant that the act of 1919 violates § 21 of article 5 of the Constitution of Arkansas, which provides that “no law shall be passed except by bill, and no bill shall be so altered, or amended on its passage through either House as to change its purpose.” And it is then argued that there was an amendment providing that one-half the expenses, etc. The appellant argues that the purpose of the original act, as reflected by the title of the act. as well as the act itself, was to abolish township boards of assessment and valuation, and to create a board of equalization in all -counties of the State having a population in excess of 75,000 persons, and that there is nothing in the act which has to do with-the duties of assessors, but the act deals exclusively with the question of the creation, powers and duties of the board of equalization.
One of the duties of the equalization board was to fix the valuation of property in the county, that is, to assess the property.
Subdivision (1) of § 6 of act 177 of 1919 provides: “It shall raise the valuation of such property as, in the opinion of the board, has -been returned below its true value, to such sum or amount as may be deemed its true value. Members of the board may actually enter upon and view any property as to the true value of which they may not be fully satisfied.”
The next subdivision provides for reducing valuations. Then there is a provision for appeals.
All these provisions have to do with the assessment of property in the county.
But our ¡Constitution does not provide, like many constitutions, that each bill shall have a title in which shall be expressly stated the purpose of the bill, or any words to that effect.
In a very recent case this court said: “It is obvious that the title is not as broad as the act, but there is no provision in our Constitution to the effect that the caption of an act must indicate all the subject-matter embraced in the act itself.” Huff v. Udey, 173 Ark. 464, 292 S. W. 693.
We think the amendment was germane, and that the purpose of the act was not altered or amended on its passage as to change its original purpose.
It is said that the object of this section of the Constitution was that the Senate and House of Representatives of the State might not be hampered or embarrassed in amending and perfecting their bills and thus be driven to accomplish by a number of bills that which might well be 'accomplished by one hill, but 'the purpose of the section was to forbid amendments which should not be germane to the subject of legislation expressed in the title of the act which it purports to amend. Hickey v. State, 114 Ark. 526, 170 S. W. 562.
It is next contended that, if it were admitted that the State could be made to pay half the salaries, the expenses in excess of such salaries would be in conflict with article 19, § 23, of the Constitution. The fact that the State pays it, or the county pays it, would certainly make no difference, because the officer’s salary is fixed at-a certain amount, and he cannot lawfully retain anything above the amount fixed by the Constitution. His expenses, however, might be more than the constitutional limitation as to salary, and certainly he would be entitled to compensation for expenses and to the salary fixed by the Legislature not in excess of that allowed by the Constitution.
While we have held that § 2 is void, there is nothing in the pleadings and nothing in the record anywhere to indicate that any part of the expense of the assessor is because of any assistants or deputies provided for in § 2 of the act, and, in the-absence of anything in the records to the contrary, we, of course, assume that the compensation or expense is that incurred under the act, which we hold is valid, except § 2.
The Legislature evidently intended to provide for one-half of the compensation to be paid by the State, and it had authority so to provide. It also has authority at any time to repeal or modify this law,- if it is unjust or unfair, the Legislature can, and doubtless will, remedy it. The courts cannot hold an act void because it may he thought to be bad policy. The policy of the legislation, 'the expediency of it, are questions peculiarly within the province of the lawmaking power.
It follows from what we have said that the judgment of the circuit court must be affirmed, and it is so ordered. | [
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CarletoN Habéis, Chief Justice.
This litigation involves two separate causes of action, which however, by agreement, were set forth in one set of pleadings, and disposed of at one hearing. Appellants, Weldon Douglas, and Janie Chandler, each maintained a checking ac count in the Citizens Bank of Jonesboro. Rees Plumbing Company, Inc. (which is not presently á party to this proceeding), was a customer of the hank, and maintained checking accounts. On August 19, 1966, the plumbing company delivered its check in the amount of $1,000.00 to Douglas. On that same day Douglas presented the check to the bank for deposit to his own checking account; an employee at the teller’s window prepared a deposit slip, dated as of that day, reflecting that the check was being deposited to Douglas’ account. He was given a duplicate of the deposit slip, and an employee of the bank thereafter affixed to the back of the check a stamp in red ink, denoting the August 19th date, and stating, “Pay to any bank — P.E.G., Citizens Bank of Jonesboro, Jonesboro, Arkansas.” Under date of August 20, 1966, the bank dishonored the check because of insufficient funds, and charged the amount back to the account of Douglas. This same statement of facts applies to Mrs. Chandler, except that the check she presented was originally made payable to a Richard R. Washburn (in the amount of $1,600.00) by the same Rees Company, and this check had been properly endorsed by Washburn before coming into the hands of Mrs. Chandler.
Rees Plumbing Company filed an unverified complaint against the bank, alleging that it had issued the aforementioned checks to the parties, and that it had sufficient funds in the accounts to honor these checks. It was alleged that the checks were wrongfully dishonored, and Rees sought damages due to the alleged willful and wanton negligence of the bank in handling its checks. Subsequently, the complaint was amended to join appellants as parties plaintiff (together with another party which later took a non-suit). Thereafter, on motion of appellee, Rees Plumbing Company was strick en as a parity plaintiff. After first demurring, and moving to make the complaint more definite and certain, the bank filed an answer setting out that the accounts of Rees were insufficient on August 19 to honor the checks, and further, that both were charged back to the- accounts of the respective appellants on August 20, and the appellants so notified. The bank further denied that the endorsement stamp, heretofore mentioned, constituted an acceptance stamp. The bank asserted that the stamp was no more than a method of identification. Both appellants and the bank, appellee herein, filed verified motions for summary judgment. Appellants’ motion was supported by the checks and the deposit slips, which had already been filed, and appellee’s motion was supported by the affidavit of Major Griffin, Vice-President of the Citizens Bank, filed with the motion for summary judgment. The affidavit reflects that Griffin had been engaged in banking with the Citizens Bank for 20 years, and it asserted that he was familiar with the processing of items in the Citizens Bank, as well as the normal procedures of other banks, and particularly familiar with the stamps and symbols used by banks in the area. He then explained the procedure used by appellee, and stated that the stamp served only to identify the depository bank, and that the endorsement appeared on all checks received by appellee which are not received from other banking institutions. He then stated:
“Any item for any reason can be returned by the Citizens Bank or any other banking institution (except those cashed over the counter) if rejected before midnight of the next banking day following the banking day on which the item is received, and prior to the bank stamping its ‘paid’ stamp thereon and filing in the customer’s file.
“I have examined the Citizens Bank records with reference to a $1,600.00 check drawn on Rees Plumbing Company, Inc. account number 810 657 payable to Richard R. "Washburn and find that it was deposited to the account of Mrs. Janie Chandler, a customer of the Citi zens Bank in account number 301191 on August 19,1966. This deposit was posted to the Citizens Bank Journal to the Or edit of Mrs. Janie Chandler’s account on August 19, 1966, but the check was not posted to Citizens Bank Journal as a charge to the Bees Plumbing Company account on which it was drawn because there was no balance in the Rees Plumbing Company Account at close of business on the date of August 19, 1966. The account of Mrs. Janie Chandler was debited for the insufficiency under date of August 20, 1966, and was returned to Mrs. Chandler. ’ ’
He stated that the same procedure was followed with the Douglas check. The court denied the motion of the appellants, but granted.that of the bank.
Thereafter, appellants petitioned the court to reopen the case for the purpose of receiving additional evidence on the question of what weight, if any, might be given to a statement printed on the backs of the deposit slips which had been introduced into evidence by agreement. The language oil the back of the deposit slips provides, inter alia, that “items drawn on this bank not good at close of business day on which they have been deposited may be charged back to depositor.” Appellants desired to introduce evidence to show that they did not know of the language on the back of the slips. The court refused to reopen the case, but the trial judge did state that, in reaching his conclusions, he gave no consideration at all to this language; nor do we consider same in the present instance, it being immaterial to the disposition of the litigation. Prom the judgment denying the motion to reopen the case; denying the motion for summary judgment filed on behalf of appellants, and granting the motion for summary judgment on behalf of appellee, comes this appeal.
The principal., question at issue is, “Did the bank, by stamping the endorsement upon the checks deposited by appellants, and by delivering to appellants the de posit slips, accept both of said checks for payment?” The answer is, “No,” and it might be stated at the outset that cases decided prior to the passage of the Uniform Commercial Code are not controlling. This case is controlled by the following sections of the Code: Ark. Stat. Ann. § 85-4-212 (3), § 85-4-213, and § 85-4-301 (1) (Add. 1961).
Subsection (3) of Section 85-4-212 reads as follows:
“A depositary bank which is also the payor may charge back the amount of an item to its customer’s account or obtain refund in accordance with the section governing return of an item received by a payor bank for credit on its books (Section 4-301 [ § 85-4-301]).”
Subsection (1) of Section 85-4301 provides:
“Where an authorized" settlement for a demand item (other than a documentary draft) received by a payor bank otherwise than for immediate payment over the counter has been made before midnight of the banking day of receipt the payor bank may revoke the settlement and recover any payment if before it has made final payment (subsection (1) of Section 4-213 [§ 85-4-213]) and before its midnight deadline it
(a) returns the item; or
(b) sends written notice of dishonor or nonpayment if the item is held for protest or is otherwise unavailable for return.”
Section 85-4-213 simply sets out the time that a payment becomes final, not applicable in this instance.
When we consider the statutes above referred to, it is clear that appellants cannot previa!. Clark, Bailey and Young, in their American Law Institute pamphlet on hank deposits and collections under the Uniform Commercial Code (January, 1959), p. 2, comment as follows :
“If the buyer-drawer and the seller-payee have their accounts in the same bank, and if the seller-payee deposits the check to- the credit of his account, his account- will be credited provisionally with the amount of the check. In the absence of special árrangement with the bank, he may not draw against this credit until it becomes final, that is to say, until after the check has reached the bank’s bookkeeper and, as a result of bookkeeping operations, has been charged to the account of the buyer-drawer. (The seller-payee could, of course, present the check at a teller’s window and request immediate payment in cash, but that course is not usually followed.) If the buyer-drawer’s account does not have a sufficient balance, or he has stopped payment on the cheek, or if for any other reason the bank does not pay the check, the provisional credit given in the account of the seller-payee is reversed. If the seller-payee had been permitted to draw against that provisional credit, the bank would recoup, the amount of the drawing by debit to his account or by other means.”
The comment of the commissioners is also enlightening. Comment 4, under Section 85-4-213, states:
“A primary example of a statutory right on the part of the payor bank to revoke- a settlement is the right to revoke conferred by Section 4-301. The under lying theory and reason for deferred posting statutes (Section 4-301) is to require a settlement on the date of receipt of an item but to keep that settlement provisional with the right to revoke prior to the midnight deadline. In any case where Section 4-301 is applicable, any settlement by the payor bank is provisional solely by virtue of the statute, subsection (1) (b) of Section 4-213 does not operate and such provisional settlement does not constitute final payment of the item.”
Appellants assert that the affidavit of Major Griffin was never introduced into evidence, and cannot'be considered as anything more than any other pleading in the case. We do not agree. We know of no requirement that an affidavit be “introduced;” the affidavits are simply filed, and this particular one was filed with the motion for summary judgment. Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141.
No counter-affidavits were filed by appellants. They were content to rely on the checks and deposit slips offered as exhibits, and counsel for appellant stated, “I want the motion for summary judgment on behalf of defendant to be considered as contradicted. Did not file a formal affidavit, offered proof.” This, of course, constituted no more than the legal question here-presented for determination, i. e., “Did the bank by stamping the endorsement upon the checks deposited by appellants, and by delivering to appellants the deposit slips, accept both of said checks for payment?” It is not necessary to discuss whether counsel’s simple statement can be considered as controverting’ the Griffin affidavit, since the court permitted it, and it is not decisive in determining the issue herein presented. There was no request by counsel for time to present an affidavit, or to take the deposition of Rees, or anyone else. The Rees complaint (unverified) alleged that sufficient funds were on hand to pay the checks, and the checks were wrongfully dishonored. Nonetheless, no affidavit was made to support this conclusion, nor was one made that sufficient funds had been deposited on the 19th to enable the checks to he paid. In Epps v. Remmel, supra, we said:
“* * * To take a simple example, if in an action on a promissory note, the defendant in his answer denies the making of the note; the plaintiff makes a motion for a sumimary judgment, accompanying it by an affidavit of a person who swears that he saw the defendant sign the note; and the defendant does not file an opposing affidavit, summary judgment should be rendered for the plaintiff. ’'
There is absolutely nothing in the record to contradict Major Griffin’s sworn statement that he examined the records at the close of business on August 19, and there was no balance in the Rees Plumbing Company accounts.
Affirmed.
FOGLEMAN, J., concurs.
The check presented to the bank by Mrs. Chandler was dated on August 18, instead of 19, and was drawn by Rees on another account, which it had in the Citizens Bank.
According to Section 85-4-104, “midnight deadline with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later.”
An order denying a motion for summary judgment is merely interlocutory, leaving the case pending for trial, and is not appeal-able; however, in holding that the court did not -err in granting the summary judgment to the bank, the question of whether appellants were entitled to summary judgment is necessarily answered in the negative. | [
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Humphreys, J.
On the 26th day of August, 1927, appellant obtained a judgment in the circuit court upon a note against J. P. Blanks, one of the appellees, for $1,000. On September 9 following he brought this suit in the cironit court of AsMey County against appellees, to set aside certain conveyances of real estate and bank stock by J. P. Blanks to the other appellees for the alleged purpose of defeating appellant and his other creditors from collecting their claims against him, thereby defrauding them. It was alleged that J. P. Blanks was insolvent, and rendered so by conveyances of his real estate and bank stock to his co-appellees, without consideration, and with knowledge by the grantees that the conveyances were made to defeat his creditors. The lands were conveyed by several deeds of conveyance on the 17th day of February, 1926, to L. W. Blanks, a nephew of J. P. Blanks, who subsequently conveyed a part of them to the Elon Company and a part to the Hamburg Investment Company, two corporations which were owned by his brother and himself. On the same day J. P. Blanks assigned his stock, amounting to $19,000, in the Hamburg Bank to L. W. Blanks, who subsequently transferred it to his mother, L. G-. Blanks.
Appellees filed an answer, admitting the conveyances were made, but denying that they were voluntary and without consideration, or that they were made for the purpose of defrauding the appellant and the other creditors of J. P. Blanks.
The cause was submitted to the court upon the pleadings and depositions of the witnesses, which resulted in a dismissal of the complaint of appellant, based upon substantially the following findings, to-wit:
“That each of the conveyances were made in good faith, and for a reasonable and fair consideration, and that none of them were made for the purpose of hindering or delaying the creditors of J. P. Blanks, and that said J. P. Blanks was not insolvent at the time he-made said conveyances herein mentioned by him to L. W. Blanks, and that L. W. Blanks paid a fair consideration in each and every instance, and there was no fraud in any manner in said conveyances to L. W. Blanks, and that L. W. Blanks had a perfect right to transfer said hank stock to L. Gr. Blanks and the lands to the Elon Company and the Hamburg Investment Company, and that none of the parties herein made or received said conveyances with any intent to defraud any creditors of the said J. P. Blanks.”
Appellant contends for a reversal of the judgment upon the ground that J. P. Blanks was insolvent when he instituted this suit, and that the property in question was conveyed to a relative and close friend, who admitted that he purchased same for the purpose of helping his uncle and who, it is claimed, was unable to satisfactorily explain the transactions. Appellant cites the case of Harris v. Smith, 133 Ark. 250, 202 S. W. 244, in support of his contention. The court said in that case that: ‘ ‘ The various transactions were out of the ordinary, and Harris’ explanation of them was unsatisfactory. The learned chancellor correctly found that the stock of merchandise was transferred to the Wyss Lumber & Trading Company without consideration and in fraud of appellees and other creditors, and that the moneys deposited in the City National Bank in the name of Wyss Lumber & Trading Company belonged to B. P. Harris.”
The record in the instant case does not reflect that the several transfers were made without consideration, and that the vendor and vendee were unable to make a satisfactory explanation of the transactions. On the contrary, it appears that the conveyances were made for adequate considerations, and that the consideration received was applied to the payment of bona ficle debts of J. P. Blanks. It also appears that his obligations were pressing, and the only way he could meet them was to sell a large part of his holdings. His nephew came to his rescue, and bought most of his property for a fair market value. He used his mother’s insurance money to buy the bank stock, and paid twenty cents above par for it. After purchasing it he transferred the stock to his mother. He had anlple funds with which to purchase his uncle’s property, and actually paid him cash for it, which was used to pay his uncle’s pressing debts. After conveying the property in question, J. P. Blanks had a large block of stock left in the Boyle Dry Goods Company, and other assets amounting to about $2,500. These transfers were made two year's before the institution of this suit, and just what became of the Doyle stock and his other assets in "the interim does not appear. The rule applied in the Harris case, supra, was that announced by Mr. Chief Justice Hill for the court in the case of Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913, which is as follows:
“It is thoroughly settled in equity jurisprudence that conveyances made to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care; and when they are voluntary they are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.”
The rule was applicable and controlling under the facts in the Harris case, supra, but cannot be applied in the instant case, because the facts are entirely different in the two cases. In the Harris case the conveyances were made without consideration and to defraud his creditors, while in the instant case they were made for fair considerations and for the purpose of paying the pressing debts of J. P. Blanks. The findings of the trial court were in accordance with the weight of the evidence. The decree is therefore affirmed. | [
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John A. Fogleman, Justice.
The sole question for decision on this appeal from a declaratory judgment is whether the property of a public school is subject to assessment of benefits by a municipal street improvement district in which the property lies. Appellants contended in the lower court that it was not and that the assessment made in this case was invalid because the property was exempt from taxation under Article 16, § 5 of the Arkansas Constitution.
This court was first confronted with this question in 1892, when it held that this section of the constitution did not exempt a public schoolhouse from liability for such an assessment. Board of Improvement v. School District of Little Rock, 56 Ark. 354, 19 S. W. 969. The basis for this holding was that the exemption of school buildings and grounds relates only to taxes for general purposes of revenues and has no reference to special taxes or assessments for local improvements. That property was held to be exempt under the act (Mansfield’s Digest, § 825 et seq.) because the court found no inference that the legislature intended to include school property in the real property to be assessed
Subsequently, the General Assembly adopted Act. 125 of 1913, § 7 of which [Ark. Stat. Ann. § 20-402 (Eepl. 1956)] specifically provides that property of public school districts shall.be subject to assessment for local improvements beneficial thereto and. authorizes school districts to sign petitions for the making of said improvements. This act clearly supplied the legislative intent found missing in Board of Improvement v. School District of Little Rock, supra. A holding that the act was invalid would be contrary to the holding of that case for the reason that the constitutional exemption would certainly have been applied if such a statute could not supply the deficiency there pointed out. Although it seems that the point has not been passed upon directly since the adoption of the act, the liability of school property for such assessments has been recognized in the following cases:
City of Malvern v. Nunn, 127 Ark. 418, 192 S. W. 909, approving the action of the trial conrt in excluding school property not listed or valued by the tax assessor on the assessment roll from the taxable value of the property in a proposed district, where we said the act above cited subjected the property of public school districts to such assessments and that the property had a voice in the organization of the district according to its value fixed by the assessment roll.
Waterworks Imp. Dist. No. 2 of Paris v. Logan County, 155 Ark. 257, 244 S. W. 4, wherein the decision in Board of Improvement v. School District of Little Rock, supra, was approved, but it was said that courthouses and jails could not be assessed because there was no statutory authorization as there was then in the case of the property of public school districts.
Fry v. Poe, 175 Ark. 375, 1 S. W. 2d 29, wherein it is said that the right-of-way and roadbed of railroads are, along with churches and schoolhouses, subject to local assessments in municipal improvement districts.
In Bensberg v. Parker, 192 Ark. 908, 95 S. W. 2d 892, in a case involving church property, we again held that the constitutional exemption applies only to taxes for the general purposes of government and does not relieve those in whose favor the exemption exists from the obligation to pay special assessments which are charged upon property on the theory that such property is specially benefited thereby.
Appellees’ argument overlooks the fact that these special assessments are not really “taxes” in the usual and ordinary meaning of the word. While both are referable to the sovereign power of taxation, the words “taxes” on the one hand and “assessment”, “special assessments” or “local assessments” on the other, ordinarily have distinct legal meanings. The word “taxes” refers to exactions laid by the government for purposes of general revenue. The word “assessments” refers to exactions laid for making local improvements for tlie benefit of property owners. The word “tax” does not include “assessments.” Board of Improvement Searer Dist. No. 2 v. Sisters of Mercy, 86 Ark. 109, 109 S. W. 1165, 15 Ann. Cas. 347; Martin v. Reynolds, 125 Ark. 163, 188 S. W. 4; Missouri Pacific R. Co. v. Izard Co. Highway Imp. Dist. No. 1, 143 Ark. 261, 220 S. W. 452. See, also, Wood v. Henderson, 225 Ark. 180, 280 S. W. 2d 226.
The whole foundation of our improvement district system in Arkansas is expressed by the Honorable Horace Sloan in his definition of local assessments in his scholarly treatise entitled “Improvement Districts in Arkansas.” This definition appears therein as § 1 and reads:
“A local assessment is a compulsory contribution, levied by the Legislature or pursuant to legislative delegation of authority, for the purpose of defraying all or a part of the expense of constructing or maintaining a specific local improvement of a public nature and imposed upon the property specially and peculiarly benefited by such local improvement in proportion to but not substantially in excess of the benefits so received by the property affected.”
See McGehee v. Mathis, 21 Ark. 40; Davies v. Gaines, 48 Ark. 370, 3 S. W. 184; Coleman v. Eight Mile Drainage Dist. No. 2, 106 Ark. 22, 152 S. W. 1004; Bensberg v. Parker, 192 Ark. 908, 95 S. W. 2d 892; Ragsdale v. Cunningham, 201 Ark. 848, 147 S. W. 2d 20.
Such assessments are justified by the peculiar and special benefits which the improvements bestow upon the property assessed. Kirst v. Street Imp. Dist. No. 120, 86 Ark. 1, 109 S. W. 526; St. Louis, I. M. & S. R. Co. v. Board of Directors of Levee Dist. No. 2, 103 Ark. 127, 145 S. W. 892; 1 Sloan, “Improvement Districts In Arkansas,” § 2, p. 2. We find that the statute does not conflict with this constitutional provision.
While the claim of exemption under Article 16, § 5, of the Arkansas Constitution is the only issue raised' in the lower court, appellants argue here that an additional reason for holding this legislation invalid is conflict with Article 14, §§ 2 & 3\ Because of the public interest involved, we elect to consider this contention. The former section prohibits the use. of money or property belonging to the state school fund for any other than the purpose to which it belongs. The latter prohibits the annual tax voted by the electors of the district from being used for any purpose other than the maintenance of schools, the erection and equipment of school buildings and the retirement of existing indebtedness. In considering these prohibitions, we recognize that it is common knowledge that the annual tax on property in a school district is only one of its many sources of revenues.
The payment of attorney’s fees for recovery of school funds from solvent sureties on the bond of an insolvent depository has been held to be a legitimate' expenditure .not in conflict with Article 14, § 2. Board of Education of Lonoke County v. Lonoke County, 181 Ark. 1046, 29 S. W. 2d 268. The payment of professional appraisers employed to appraise all real estate in a county under Act 351 of 1949, as an aid to the tax assessor in assessing property for ad valorem taxes, is not prohibited by Article 14, § 3, as amended by Amendment 40. Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508. The payment of a just proportion of the salaries of the county collector and the county treasurer was held not to be an unconstitutional diversion of school funds. County Board of Education v. Austin, 169 Ark. 436, 276 S. W. 2. From these cases it seems clear that any use of those funds raised from taxation that results in benefits to those funds or property or aids in the stated purposes for which these funds may be expended would not be an unconstitutional diversion. The benefits to be derived by school districts in performing their functions by construction of streets, sewers, water systems, electrical distribution systems, drains, levees, and other improvements which may be undertaken through improvement districts seem obvious. Certainly, direct expenditures by school districts for such improvements for its. own use and benefit would not be considered diversion of school funds. There is no reason why the distribution of the financial burden proportionately among a number of properties so benefited should make it so.
If the school property was not benefited in this instance, appellants could have appealed the finding of the assessors to the city council for a hearing de novo. Ark. Stat. Ann. § 20-406. It then might have had the assessment against its property corrected by applying to the chancery court within thirty days after the publication of the city ordinance confirming the assessments was published. Ark. Stat. Ann. % 20-416; Lenon v. Street Imp. Dist. No. 512, 181 Ark. 318, 26 S. W. 2d 572. In the absence of a showing that these procedures were successfully followed, it must be presumed that this school property was benefited.
The procedure for enforcing payment of the annual installments of assessed benefits is not a matter for determination on this appeal, not having been an issue in the lower court and having no bearing on the constitutional questions raised.
Appellants also contend that the act is permissive, in that it permits, but does not require the participation of the school district. This question was not in issue in the lower court, but we find it to be without merit. The act says that the property of public school districts shall be subject to assessment. The only part of the act which gives the school district any option is that permitting it to sign the petition seeking the creation of the district.
The decree is affirmed.
As amended by Amendments 11 & 40. | [
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Lyle Brown, Justice.
This is a workmen’s compensation case. It was stipulated that Michael L. Smith, a minor, was fatally injured while in the employment of the appellee company, Farm Service Cooperative. Appellants, Michael’s family, seek recovery on the basis of partial dependency on Michael. The family unit consisted of the parents and four minor children, including eighteen year old Michael. The Commission and the trial court found no partial dependency. It was held that “the claimants were not dependents within the meaning of the Act.”
Michael worked for Farm Service Cooperative in Fayetteville and grossed approximately $41 per week. His father testified that Michael gave him $60 per month for expenses. The family also contended that Michael’s car was in fact the family automobile. It was stated that he contributed labor to the raising of rabbits, chickens, cows, and other livestock that benefited the family. On at least one occasion Michael paid the electric and butane bills.
At the time of Michael’s death the father was unemployed. The record indicates it was merely temporary and that for the full year preceding the fatal accident, Lewis Smith had earned approximately $85 per week. He returned to the same job shortly after Michael’s death but at a slightly lower wage. None of the other members of the family earned any income.
The appellants first question the propriety of the Commission’s consideration of the economic situation prior to the day of the accident. They argue that under Ark. Stat. Ann. § 81-1315 (h) (Repl. 1960) “all questions of dependency shall be determined as of the time of the injury. ’ ’ Since the father was in fact unemployed at the time of Michael’s death, appellants contend that is the proper time to determine the dependency of the family on Michael’s earnings. Instead, the Commission considered a reasonable period of time in making its factual finding. According to Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S. W. 2d 899 (1946), the Commission was correct in considering the prior events as opposed to a temporary situation.
Appellants next challenge the correctness of the test used to determine partial dependency as applied to minor children. Ark. Stat. Ann. § 81-1315 (i) (Repl. 1960) provides that the right to workmen’s compensation benefits is based on a finding of dependency. That provision allows proportionate compensation in relation to the amount of actual dependency on the employee’s earnings to the total dependency of claimant. Appellants argue that the legal obligation to support the minor child by the father should be the controlling factor in determining dependency. Without reciting the circular reasoning of the appellants, we do not find the position meritorious.
Dependency is a fact question. It is to be determined in the light of surrounding circumstances. Crossett Lumber Co. v. Johnson, 208 Ark. 572, 187 S. W. 2d 161 (1945). The Commission used the correct test. The rule is stated in 2 Larson, Workmen’s Compensation La/w, § 63:11, as follows: “whether his contributions were relied on by claimant to maintain claimant’s accustomed mode of living.” In Crossett Lumber Co. v. Johnson the same standard is used: “it is quite apparent that the contributions did affect their standard of living and were properly a part of their support.”
At the time of his death Michael’s expenses included an automobile payment of $38.92 per month, clothing, gasoline, and one meal daily when away from home. He traveled 52 miles round trip to work. He was required to repair his automobile on occasions and recently bought new tires for it. An additional expense was the cost of remodeling a house in anticipation of his marriage. Michael also dated regularly. Social security, state, and federal taxes must be deducted from his gross income of $41 per week. Moreover, when Michael died, according to the father, he owed some open accounts.
The only testimony as to the $60 per month payment came from the father, an interested party, and the Commission gave doubtful credence to it. Even the mother could not substantiate the amount, regularity of payment, or the agreement. The Commission discounted all testimony as to the loss of services performed on or about the farm, those services not being a part of the eafnmgs as required by the Act.
The Commission, in considering Michael’s income after tax deductions and his own expenses, found that he could not have contributed to the extent alleged. Further, they found no evidence that the family’s standard of living had been lowered due to Michael’s death.
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Wood, J.
The city of Fayetteville instituted this action in the chancery court of Washington County against the county judge, the county clerk, and sheriff, to restrain them from removing from the two southeast rooms of the courthouse of Washington County all employees of the city of Fayetteville and all records, books, papers and other property belonging to the city of Fayetteville, and from a vault in the 'basement of the county courthouse of Washington County all records, books and papers belonging to the city of Fayetteville.
The plaintiff alleged, in substance, that, on the 18th of June, T923, it had leased from Washington County two rooms in the courthouse and a vault in the basement of the courthouse of Washington County for the use of the plaintiff as a police court, mayor’s office, council chamber, and office of the city water-plant, and other official city business; that the contract of lease which was entered into with the county court of Washington County was spread upon the records of such court. The contract was made an exhibit to the plaintiff’s complaint. Plaintiff further alleged that this contract was entered into for a period of five years from and after December 9,1922; that on the 25th day of October, 1926, plaintiff entered into a contract with the county court ■of Washington County, which contract was made an exhibit to the complaint, by which the city leased the rooms and vault as above described for a period of five years from and after December 9, 1927. It is alleged that, in the last contract, the city leased certain ground space on the courthouse grounds. The exhibits set out the terms of the contracts showing that the city agreed to pay to the county the sum of $40 a month in advance as rentals for the property leased from the county. The plaintiff alleged that it went into possession and was then in possession of the property mentioned in the leases, and had complied fully with the terms of the contract, and that its time under the leases had not expired; that, notwithstanding this fact, the county court of Washington County entered an order on its record at its April term, 1927, adjudging that the city of Fayetteville, on or about October 1, 1927, vacate the two rooms and the vault and the other property of the county then held and occupied by the city and its officials, and that one of the rooms be occupied by the county superintendent of schools and the other by the county farm and home demonstrator, and the rest of the property be used and occupied for county purposes only, and directing the sheriff to serve a copy of the order upon the city and to carry out and enforce the order on or before the first day of October, 1927. Plaintiff further alleged that on October 10,1927, the county court of Washington County entered an order on its records directing the clerk to issue a writ commanding the sheriff to remove the city officials and all of their records, books, papers, furniture, etc., and other property, and also to remove from the lot or parcel of land upon which the courthouse was situated all personal property and buildings belonging to the city of Fayetteville. Plaintiff alleged that no action in ejectment had been instituted against the plaintiff to recover the possession of the rooms and the lot; that the plaintiff had no notice whatever of the order and proceedings of the county court as alleged, and had not been given, an opportunity to be heard upon the lease contracts with the county. It further alleged that it was not necessary for the uses of the county that the county court make the orders mentioned, and it set forth the facts showing this to be the ease. It was alleged that the • officers mentioned were threatening to carry out the void orders of the county court, and, unless restrained, would so do. Plaintiff prayed that they 'be enjoined from executing such void order, and for all proper and special relief.
On the '21st of October, 1927, the defendants filed a demurrer and motion to dismiss, in which they set up, first, that the complaint did not state a cause of.action; and second, that the court had no jurisdiction of the subject-matter set forth in plaintiff’s petition. The chancery court sustained the demurrer, holding that it had no jurisdiction. The plaintiff excepted to the ruling of the court, and moved the court to transfer the cause to the law court. The cause was duly transferred to the law court, and plaintiff was by the court allowed to amend the prayer of its complaint so as to pray the circuit court for a writ of certiorari to bring up the records of the county court so that the orders of which complaint is made might be quashed by the circuit court.
The defendants renewed their demurrer and motion to dismiss the complaint in the circuit court. The circuit court, in the hearing upon demurrer, found that the order of the county court providing for the city offices was regular and valid; that the remedy of the plaintiff was by appeal from those orders, and that the circuit court at that time had no jurisdiction to issue a writ of certiorari. The court thereupon entered its judgment dismissing the complaint. The plaintiff stood upon its complaint, and prayed an appeal to the Supreme Court, which was by the court granted.
1. According to the allegations of the complaint, the orders of the county court were final orders or judgments rendered against the appellant without notice to the appellant. Such being the case, these orders were absolutely void. They show on their face that they were void because the county court, in these orders, in effect, set aside and canceled the lease contracts that had been entered into between the county court and the appellant without giving the appellant any notice whatever that such orders would be made. The orders themselves do not recite that the appellant was present in court or that it had received any notice of the contemplated cancellation of the lease contracts. The order of the county court of April 4, 1927, after reciting that the lease should be canceled, by directing that notice of such order be served on the city, shows that the order was ex parte, and that the city of Fayetteville had not been theretofore notified of the proceeding. The demurrer to the complaint admits this fact. Where there is a want of jurisdiction below, either of the subject-matter or parties, or an excess of jurisdiction, apparent on the face of the record, certiorari, says this court, “is the appropriate, if not the only, remedy.” Grinsteacl v. Wilson, 69 Ark. 587-591, 65 S. W. 110, and cases there cited. Our statute declares that all judgments and orders rendered by any of the courts of this •State against any one without notice, and all proceedings thereunder, shall be absolutely null and void. Section 6238, C. & M. Digest. See Sovereign Camp W. O. W. v. Wilson, 136 Ark. 546-51, 207 S. W. 45, and other cases in note to the above section of O. & M. Digest. “Certiorari lies to quash a void judgment, even though the judgment might have been vacated and set aside on appeal.” Browning v. Waldrip, 169 Ark. 264 (quoting syllabus 5), 273 S. W. 1032, and cases cited.
2. This brings us to the question of whether or not the lease contracts set forth in appellant’s complaint were .beyond the jurisdiction of the county court to enter into them. Article 7, § 28, of the Constitution confers upon the county court jurisdiction in every case necessary to the local concerns of their respective counties. Section '2279, C. & M. Digest, among other things provides that the county court of each county shall have the following powers and jurisdictions: “To have the control and management of all the property, real and personal, for the use of the county; * * * to sell and cause to be conveyed any real estate or personal property' belonging to the county, and to appropriate the proceeds of such sale'for the use of the county; to disburse money for county purposes, and in all other cases that may be necessary to the internal improvement and local concerns of the respective counties.”
Under these broad general powers conferred upon the county court by the Constitution and statute, supra, we hold that it is within the jurisdiction of the county court to enter into a contract to lease the rooms in the courthouse and the parcel of land on the courthouse grounds to the appellant, under the facts stated in the complaint. These contracts therefore were not ultra vires. See Little Rock C. of C. v. Pulaski County, 113 Ark. 439, 168 S. W. 848. We are not called upon, under the allegations of the complaint, to determine whether the lease contracts entered into between the county court and the appellant were improvident or whether any' grounds existed for avoiding or cancéling such contracts.
It follows that the court erred in sustaining the demurrer and denying the appellant’s prayer for writ •of certiorari. The judgment is therefore reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings according to law. | [
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Smith, J.
The appellant insurance company issued to James Richard Holder an accident policy in the sum of a thousand dollars, whereby it agreed to indemnify the insured against certain disabilities, and, in the event of his accidental death, to pay the wife of the insured the sum of a thousand dollars. The policy contained the following provision, among* others: “If the insured 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 insured from the date of the accident, and result in any of the following specific losses within thirteen weeks, the association will pay, in lieu of all other indemnity: * * * For loss of life, $1,000.” Indemnities were also provided for certain disabilities which might not result in death.
The insured was shot and killed by his wife, the beneficiary, and she brought a suit, after the company had denied all liability and waived the time within which suit might be ‘brought, and upon the trial of that action there was a verdict and judgment in favor of the insurance company. Thereafter the administrator of the insured’s estate brought a suit in the chancery court, in which he sought to recover upon the policy,, and to have the proceeds thereof declared a trust fund. It appears that, at the conclusion of this trial, when the chancellor indicated that he would find for the defendant, the plaintiff administrator elected to take a nonsuit, and the cause was then dismissed. Thereafter the administrator brought the present suit for the benefit of the estate of the insured; and alleged that the insured had been unlawfully killed by the beneficiary named in the policy. There was a verdict and judgment for the plaintiff for the amount of the policy, with the statutory penalty and an allowance for attorney’s fees, and this appeal is from that judgment.
At the trial from which this, appeal comes, witnesses detailed the circumstances under which the deceased had been killed, this testimony being to- the effect that the insured and his wife had quarreled; that she left his home and went to that of her mother, to which place the insured followed her, and that he there forcibly took from her their baby and carried it back to their home; that she followed, crying and begging for the return of the child, and, when they arrived at their home, her entreaty being ignored, she unlawfully shot and killed the insured.
There was testimony contradicting that of Mrs. Holder and her stepson, a son of the insured by a former marriage, given at the trial from which this appeal comes, which tended to show that, in the first suit on the policy, Mrs. Holder had shown that she killed her husband in self-defense. This contradiction presented a question of fact for the jury, and upon this question the court charged the jury as follows:
“The court instructs you that, the contract being an accident policy, and Lillie Ethel Holder, the assured’s wife, being the beneficiary named therein and alive at the time of his death, the plaintiff, as administrator of the estate of James B-ieliard Plolder, cannot recover in this case unless you find from the testimony that he was purposely and unlawfully killed by his wife.; that he himself did not, by his own misconduct, engage in or voluntarily enter the encounter which resulted in the injury causing his death.”
Other instructions given by the court elaborated the proposition that the administrator could not recover unless it Was shown by the testimony that the beneficiary named in the policy had unlawfully killed the insured. We must therefore assume that the jury found the fact to be that the beneficiary unlawfully killed the insured, and that the killing, while intentional, was not justified. Upon this finding was the plaintiff entitled to recover?
Appellant insists that the killing, while intentional, was justified, and'insists that there can be no recovery, and the following cases are cited in support of that contention: Ætna Life Ins. Co. v. Little, 146 Ark. 70, 225 S. W. 298; Metropolitan Casualty Ins. Co. v. Chambers, 136 Ark. 84, 206 S. W. 64; State Life Ins. Co. v. Ford, 101 Ark. 514, 142 S. W. 863.
In reply to this contention, it may be said that the jury has found, under the instructions referred to above, that the killing was intentional, but not justified. This being true, the killing was “accidental” within the meaning of the language employed in the policy sued on.
In Maloney v. Maryland Casualty Co., 113 Ark. 174, 167 S. W. 845, it was held that, if an injury occurs without the agency of the insured, it is “accidental,”, even though it may have been brought about designedly by another person. The question was again raised in the case of Harrison v. Interstate Business Men’s Accident Association, 133 Ark. 163, 202 S. W. 34, where it was held, after a review of the authorities, that (to quote a syllabus) : “If an injury occurs without the ag’ency of the insured, it will be held to be ‘accidental,’ even though it may be brought about designedly by another person.”
The case of Henry v. Knights & Daughters of Tabor, 156 Ark. 165, 246 S. W. 17, was a suit upon an ordinary life policy, and the facts were that the beneficiary had killed the insured. It was there held that the beneficiary, having willfully killed the insured, could not recover on the policy, but that a recovery might be had for the benefit of the insured’s estate. This holding was made upon the ground that, while publio policy prevented the beneficiary in a policy, who had willfully murdered the ■insured, from collecting the insurance, public policy did not extend further than was necessary to prevent the felon from reaping the benefit of his crime, and that the proceeds of such a policy are payable to the estate of the insured.
The instant suit is prosecuted upon the theory that, while the beneficiary willfully killed the insured, and that she cannot recover the proceeds because it would be contrary to public policy to permit her to do so; but, as the policy sued on is an accident, and not an ordinary life, policy, it was essential that plaintiff show that the killing was accidental, as that term is defined in thé cases above cited, before the administrator could recover. In other words, there was no liability to anyone unless the showing w'as made that the killing was accidental. The instructions required the jury to make this finding of fact before returning a verdict in plaintiff’s favor, and* as that verdict was returned, we must assume that finding was made, and, as the testimony is legally sufficient to support that finding, the judgment must be affirmed.
It is insisted that no proof of death was made; but, inasmuch as the company, within the time when proof might have 'been made, denied liability under the policy to anyone, it was not necessary to make this proof.
As no error appears, the judgment must be affirmed, and it is so ordered. | [
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George Rose Smith, Justice.
This is an action by the appellant against his former employers, the appel-lees, for damages for the loss of his right hand and forearm in an accident not covered by the workmen’s compensation law. The trial judge directed a verdict for the defendants at the close of the plaintiff’s proof. We have concluded that the appellees are right in their contention that Spradlin’s asserted cause of action is barred by the doctrine of assumption of risk.
The appellees, Klump and Raceland Farms, Inc., were engaged in raising and training thoroughbred race horses on a farm near Hot Springs. They also raised beef cattle and conducted general farming operations. At the time of his injury in 1965 Spradlin had been employed for several months as general manager of the farm, except that he had nothing to do with the race horses.
When Spradlin was hurt he was operating a hay baling machine by himself. The' testimony and photographs describe the hay-baling process. The operator rides a tractor which pulls the baler through a field where the hay has already been cut. The baler itself is run by power drawn from the tractor by means of a power-takeoff. In operation the baler picks up loose .hay and carries it by a conveyor belt to a pair of rollers, somewhat larger than, but essentially similar to, a clothes wringer. The hay, after passing through the rollers, is compressed into a cylindrical bale, tied with twine, and dropped to the ground.
When Spradlin was hurt he had been baling hay for an hour or more. He stopped the tractor and went back to try to adjust the baling machine, which was turning out poorly tied bales that were conical rather than cylindrical. Spradlin unwisely left both the tractor engine and the power-takeoff running, so that the baling machine’s rollers continued to turn while he tried to correct its performance. Unfortunately Spradlin put the fingers of his right hand too close to the rollers, which drew his lower arm into the machine and inflicted injuries that led to the amputation of the arm just below the elbow.
Assumption of risk is a harsh doctrine, not favored by the courts, but we are nevertheless unable to say conscientiously that it does not govern this case. Sprad-lin, a mature man of about 36, had had 20 years experience in farming and in the use of farm machinery. As manager of the farm he worked without supervision. His proof charged his employers with negligence in failing to instruct him adequately in the operation of this particular kind of baling machine and in failing to equip the machine with safety shields. Even so, the danger presented by the moving rollers was completely open and obvious. Spradlin readily admitted on cross examination that he fully appreciated the peril involved in letting his hand get too dose to the moving parts of the haler. In cases which we cannot distinguish in principle from this one we have held upon similar facts that the injured employee must be charged with assumption of risk as a matter of law. Standard Oil Co. of Louisiana v. Gray, 175 Ark. 702, 300 S. W. 405 (1927); Jones v. Mayberry, 143 Ark. 390, 220 S. W. 479 (1920); Fullerton v. Henry Wrape Co., 105 Ark. 434, 151 S. W. 1005 (1912). We are forced to conclude that the trial court did not err in directing a verdict for the appellees.
Affirmed. | [
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George Rose Smith, Justice.
By information the appellant, an employee of the Crown Coach bus com pany, was charged with the larceny of $2,505.15 belonging to his employer. He appeals from a verdict and judgment finding him guilty and sentencing him to serve a year in the penitentiary. For reversal he questions the charge of larceny, as distinguished from embezzlement, and the admissibility of Dr. Donald Baker’s testimony for the State.
There is no merit in the first contention. On the evening of the theft Edwards was in charge of the bus station at Fayetteville. He took three money bags from the money drawer and hid them by thrusting them through a hole in the ceiling. Edwards, being a servant having mere custody of his master’s property, was properly chargeable with larceny. Atterberry v. State, 56 Ark. 515, 20 S. W. 411 (1892). See also Ark. Stat. Ann. § 41-3929 (Eepl. 1964), defining larcény by a bailee, and § 43-1012, with respect to a defect in the charge which does not tend to prejudice the substantial rights of the accused on the merits.
The serious issue is whether Dr. Baker’s testimony should have been excluded as a privileged communication between physician and patient. Upon that issue the facts must be narrated in some detail.
At about nine o’clock on the night of the crime John Pomoransky went to the bus station on business. There was no one in the waiting room. Pomoransky saw Edwards lying face down on the floor behind the counter. A money drawer was open; papers were scattered about. Assuming that a robbery had occurred, Pomoransky called to an acquaintance next door to send for the police and an ambulance.
The ambulance drivers got there first. Officer Stout arrived a few moments later, while Edwards was still on the floor. He talked to Edwards briefly, to find out what had happened. Edwards said that he had heard the door open, but he didn’t look up, and someone hit him on the head twice. Officer Stout, seeing no indication of any injury, examined and felt Edwards’s head, but he found no swelling, no blood, no abrasions. After Edwards was taken to the hospital the police officers searched the premises and quickly found the money bags above the ceiling. There were some shelves nearby that could be pulled out to serve as a ladder for access to the hole in the ceiling.
The ambulance crew, apparently acting without instructions from the police, had taken Edwards to the emergency room at the Washington General Hospital. Dr. Baker, who was not Edwards’s family doctor but was on call that night was sent for and arrived within five minutes. Edwards told him that he had been struck on the right side of the head, had fallen to his knees, and had been knocked unconscious by a second blow on the top of his head.
Dr. Baker with no one else present, examined Edwards carefully. He testified that if Edwards had been knocked unconscious by blows on the head, there would have been abrasions, redness, or swelling as a result of the trauma. No such indications were found. Neurological changes in the movements of Edwards’s eye muscles would also have resulted from a recent loss of consciousness, but those symptoms did not exist. If Edwards had fallen to his knees there would have been indicative marks on the skin, but such marks were wholly absent, X-rays of the skull were likewise negative. In short, Dr. Baker’s testimony which the jury manifestly accepted as the truth, demonstrated that Edwards’s tale of having been robbed was an out-and-out fabrication.
Counsel for Edwards objected unsuccessfully to Dr. Baker’s testimony, on the ground that it was privileged. Ark. Stat. Ann. § 28-607 (Repl. 1962). In some states such statutes have been construed to apply only to civil cases; other courts have held them applicable to criminal trials as well. See, for example, State v. Betts, Ore. 384 P. 2d 198 (1963), and State v. Sullivan, Wash., 373 P. 2d 474 (1962). In the past we have assumed, without expressly declaring, that our statute does apply to criminal cases. Wimberley v. State, 217 Ark. 130, 228 S. W. 2d 991 (1950); Cabe v. State, 182 Ark. 49, 30 S. W. 2d 855 (1930); Burris v. State, infra.
We need not explore that question, because we are convinced that the trial judge correctly rejected the claim of privilege in this case. In the first place, the statute by its terms applies only to information which the physician may have acquired from his patient while attending in a professional character “and which information was necessary to enable him to prescribe as a physician. . .” § 28-607. We have given effect to that limitation. In Burris v. State, 168 Ark. 1145, 273 S. W. 19 (1925), two physicians who had treated the accused for disease on different occasions were permitted to testify for the State about his mental condition. In holding that testimony to be admissible we said:
“It will be observed that the statute only excludes the testimony of a physician as to information ‘necessary to enable him to prescribe as a physician.’ The statute does not exclude all of the testimony of a physician because he had attended the person in a professional capacity, but the exclusion is limited to information which was necessary to enable the physician to prescribe. Neither of these witnesses had ever examined appellant as to his mental condition or treated him for mental disease, and they both testified that they were basing their opinions upon mere observations of the appellant during their acquaintance with him as family physician and by observing him while he was on the witness stand, but not from any information received for the purpose of treating him. . . .
‘ ‘ Counsel rely mainly upon the announcement of the law on the subject made by this court in the case of Triangle Lumber Co. v. Acree, 112 Ark. 534, but we find nothing on examination of the opinion in that ease which would justify us in holding that his testimony was incompetent. There is nothing in the opinion to justify the conclusion that we meant to ignore the distinction that under the statute the testimony of a physician is not to be excluded except such as related to information essential to the treatment of the patient.”
In the second place, the purpose of the privilege is to permit a patient to communicate freely with his physician about his disease and to prevent physicians from disclosing the infirmities of their patients. Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720 (1914). Neither reason has the slightest relevancy here. Edwards, who did not testify or offer any witnesses at the trial below, obviously had no basis for communicating with Dr. Baker about his disease, because he knew perfectly well that he had none. To permit one in such a situation to feign injury and then exclude the doctor’s testimony would enable a criminal to conceal by deliberate falsehoods the most trustworthy evidence of his offense. As we said in the Wimberley case, supra: “It could not have been intended by the Legislature that. . . the Act should be the means of protecting a criminal from just punishment.”
Finally, counsel for the appellant, citing the landmark holdings in Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, 384 U. S. 436 (1966), argue with apparent gravity that Dr. Baker’s testimony should have been ruled out because he failed to inform Edwards that he could remain silent, that anything he said might be used against him, that he was entitled to a lawyer, and so on. The two cases cited announced principles applicable to in-custody police interrogation when the investigation has reached the accusatory stage. It would be the height of absurdity to apply those prin ciples to a medical examination conducted by a physician in circumstances giving him no reason to suspect, before the completion of the examination, that some offense on the part of his patient might conceivably be involved. The suggestion that Dr. Baker’s testimony involved self-incrimination on Edwards’s part is rebutted by the holding in Schmerber v. California, 384 U. S. 757 (1966).
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Smith, J.
On September 24, 1932, appellee was run down by a hit-and-run driver of an automobile in the town of Paris, and was severely injured. The car which ran him down was a B model, wine colored, Ford car, exactly like one owned by Steve Kurry who lived over a hill north of the place of injury and in the same direction the car proceeded after striking the victim. The driver evidently lost control of the car, as it ran into a wire fence which it struck with its right fender. Shortly after the collision a witness saw Kurry’s car in his garage with its lights on. Within a half an hour after the collision, investigating officers found the Kurry car in its garage with the lights turned off. The right headlight was broken, and the right fender had such scratches on it as a wire would have made and presented the appearance of having been very recently done.
Appellee brought suit against Mr. Kurry to compensate his injury. The case remained on the docket until January, 1941, when it was tried, and the trial resulted in a verdict for the defendant. The testimony in that case, like the testimony in the instant case, disclosed very convincingly that Mr. Kurry was’not the driver of the car, but it did disclose, in appellee’s opinion, that Mrs. Kurry was the driver, and, after obtaining this information, disclosed at the trial, suit was brought against Mrs. Kurry, and a judgment for $1,500 was rendered against her, from which is this appeal.
Appellee did not know prior to this first trial that Mrs. Kurry, and not her husband, was the driver who ran him down. Mrs. Kurry was driving alone on some mission not disclosed,’and her husband was, therefore, not responsible for the tort committed in striking appellee. Brotherton v. Walden, ante, p. 92, 161 S. W. 2d 391.
Appellee was struck about 9 p. m. Mrs. Kurry denied having driven the car that night, and the testimony on her behalf, if credited, shows very clearly that she did not drive the car. The jury could not have found for appellee if this testimony had been accepted as true, and it must be presumed that it was not believed. The credibility of the witnesses who gave this testimony was, of course, a question for the jury.
The testimony of Mrs. Kurry and that of two of her children is to the effect that Mrs. Kurry did not leave her home that night, and the testimony of Luther Adams, if true, very conclusively shows that Mrs. Kurry did not do so. Adams called at the Kurry home between 8 and 8:30 p. m., and remained there about an hour. It was during this time that appellee was struck. Adams did not, during that time, leave the room, but Mrs. Kurry did leave the room and did not return while witness was there. According to this witness, Mrs. Kurry went into a bedroom to attend a sick child. The testimony of this witness is much discredited by the stenographic report of his testimony at the first trial, where he testified as follows: “Q. Did any of them leave while you were there? A. Mrs.'Kurry left while I was there. Q. Are you sure about that? A. Yes, sir. Q. Did anyone go with her? A. No, sir. Q. Did she come back while you were there? A. No, sir. Q. She didn’t come back while you were there? A. No, sir.”
This witness was corroborated by one George Kid-well, who testified that he accompanied Adams to the Kurry home, but remained in the car during the entire period of Adams’ visit, and that during that time no one left the house, and no car was driven out of or into the garage. But, as we have said, the jury has passed upon' the credibility of these witnesses.
The jury might well have found that Mrs. Kurry did not drive the car; but, we are unable to say that the finding of the jury to the contrary is not supported by substantial testimony.
It is argued that, even though the testimony sufficiently shows that appellee was struck by the Kurry car, it is purely speculative whether Mrs. Kurry was the driver. But it is not entirely so. Certainly, it is more speculative that it was driven by some other person. The car was in the garage immediately after the collision, with its lights burning, and these had been turned off when the officers came about half an hour later. It was not shown that Mrs. Kurry left the home; but it was shown that she left the room where Adams was being entertained by her husband, and that she did not return to the room. In the last analysis, the responsibility of passing upon this question of fact rested upon the jury; and we are unwilling to say that the verdict was without substantial testimony upon which to base it.
The court gave, over the objection and exception of appellant, an instruction on circumstantial evidence, of which appellant says it “might not be an erroneous abstract statement of law, but it is clearly abstract. It does not undertake to apply the evidence in this case.”
The instruction was not abstract, as appellee’s case depended upon proof of circumstances to support the inference and finding that appellant was the driver of the car, and it was the function of the jury to weigh and apply the testimony.
Other instructions were objected to, chiefly upon the ground that they were abstract and not warranted by the testimony in the case. "We think they were not abstract and were correct declarations of the law upon the question of liability, if it were found that appellant was the driver of the car.
It is very earnestly insisted that the cause of action, which occurred about nine years before the suit was filed, was barred by the statute of limitations, and that defense was interposed. Upon that issue the court gave an instruction, numbered 2, reading as follows: ‘ ‘ Section 8952 of Pope’s Digest of the statutes of Arkansas reads as follows: ‘Absconding Debtor. If any person by leaving the county, absconding or concealing himself, or any other improper act of his own, prevent the commencement of action in this act specified, such action may be commenced within the times respectively limited, after the commencement of such action shall have ceased to be so prevented.’ If you find from a preponderance of the evidence that by reason of any improper act of the defendant the commencement of the action was prevented within three years of the time of receipt of his injuries, then plaintiff would have three years after discovering that defendant was responsible for his injuries, if you so find, within which to file his suit. So, if he first learned of this fact, if it is a fact, in January, 1941, he is not barred. ’ ’
The instruction quotes the statute, and the first question which presents itself is whether the cause of action was an “action in this act specified.”
This section is found in all the digests of our statutes, and is correctly stated to have been taken from Chapter 91 of the Revised Statutes,' entitled “Limitations.” It first appears in “Laws of Arkansas Territory, compiled and arranged by J. Steele and J. M’Campbell, Esqs.,” published in 1835. It there appears as § 5 of the chapter on Limitation of Actions, and as having-been taken from an act passed July 4, 1807, by Louisiana Territory. The actions’ to which the act referred are enumerated in § 1 of this Territorial Act, which reads': “In all actions upon the case other than for slander; . . .,” following which other causes of action are enumerated. This § 5, with some mutations which do not destroy its identity or change its effect, appears as § 26 of Chapter 91 of the Revised Statutes.
Now, Mrs. Kurry denies striking appellee. If she did strike him — and the verdict of the jury is conclusive of that fact, then she has concealed that fact, and even yet attempts to do so.
By § 17 of act 134 of the Acts of 1911, now appearing as § 6645, Pope’s Digest, which was passed soon after automobiles came into general use, it was required that Mrs. Kurry should stop and, upon request of the person injured, give him her name and address. This she did not do, and she offered him no aid, and made no report of the incident. It was highly improper, indeed, inhumane, to omit the performance of these duties, if no law had imposed them.
At § 231 of the chapter on Limitation of Actions, 34 Am. Jur., p. 187, under the sub-title, “Concealment of Cause of Action,” it is said, in part: “According to the majority rule, however, fraudulent concealment of a cause of action from the one in whom it resides, by the one against whom it lies, constitutes an implied exception to the statute of limitations, postponing the commencement of the running of the statute until discovery or reasonable opportunity of discovery of the fact by the owner of the cause of action; under this rule, one who wrongfully conceals material facts and thereby prevents discovery of his wrong or the fact that a cause of action has accrued against him is not permitted to assert the statute of limitations as a bar to an action against him, thus taking advantage of his own wrong, until the expiration of the full statutory period from the time when the facts were discovered or should, with reasonable diligence, have been discovered. Stated in another way, the general trend of the decisions is in support of the rule that where a party against whom a cause of action has accrued in favor of another, by actual fraudulent concealment prevents such other from obtaining knowledge thereof, or the fraud is of such a character as to conceal itself, the statute of limitations will begin to run from the time the right of action is discovered or, by the exercise of ordinary diligence, might have been discovered.”
The case of Conditt v. Holden, 92 Ark. 618, 123 S. W. 765, 135 Am. St. Rep. 206, was an action to recover a mule, of which the defendant had had possession for more than three years when the suit was brought, and the three-year statute of limitations against suits in replevin was pleaded in bar of the action. The defendant had taken up the mule as an estray animal, but had not posted it as such, as the law required him to do. The plea of the statute of limitations was sustained by the trial judge, and in reversing that action it was said, after quoting § 5088, Kirby’s Digest (now appearing as § 8952, Pope’s Digest), that “The defendants did not attempt to comply with the statute, but on the contrary they wrongfully and unlawfully claimed the mule as their own, and kept it on and about their farm for over four years, until the true owner claimed it. This conduct not only rendered them guilty of a criminal offense, but it was a fraud on the plaintiff’s rights which amounted to a fraudulent concealment from plaintiff of his right of action against them for the recovery of his property. Under these circumstances they cannot invoke the benefit of the statute of limitation, which began to run against plaintiff only from the time of his discovery of the fraud.”
The case of Free v. Jordan, 178 Ark. 168, 10 S. W. 2d 19, was another replevin suit for an animal, which reaffirmed the holding in the Conditt case.
Here, Mrs. Kurry did not stop, as the law and the dictates of humanity required, but drove on, leaving appellee to his fate. Had she stopped it would-have been known who had struck appellee, but in driving away, in violation of the law, she concealed her identity, and appellee remained unaware of his cause of action against her until the trial of the suit against her husband.
Apart from this statute (§ 8952, Pope’s Digest), many cases hold, as does the case of Wright v. Lake, 178 Ark. 1184, 13 S. W. 2d 826, that, where there has been a fraudulent concealment of a cause of action, the statute of limitations does not begin to run until the fraud is discovered. The most recent of these cases is that of Quattlebaum v. Busbea, ante, p. 96. 162 S. W. 2d 44, where it was held that “While fraudulent execution of illegal warrants remained undisclosed, with concealment of transactions by which money was withdrawn from treasury, statute of limitation did not begin to run.”
Mrs. Kurry did not conceal herself. She concealed her act. She continued to reside in Paris, where the in jury was inflicted, but she has never yet, and does not now, admit striking appellee, and we think a question was made for and properly submitted to the jury whether she had, by “any other improper act of her own,” concealed from appellee his cause of action against her.
The case must, therefore, be affirmed, and it is so ordered.
Mr. Justice Mehaeey is of opinion that the cause of action is barred by the statute of limitations. | [
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McHaney, J.
Appellant was convicted of the crime of assault with intent to rape and sentenced to three years imprisonment in the state penitentiary. The only question argued on this appeal is the sufficiency of the evidence to support the verdict and judgment against him.
The statute, § 3403 of Pope’s Digest, defines rape as “the carnal knowledge of a female forcibly and against her will.” ¡Section 3407 provides: “Whoever shall feloniously wilfully, and with malice aforethought assault any person with intent to commit a rape, and his counsellors, aiders, and abettors, shall, on conviction thereof, be imprisoned in the penitentiary not less than three nor more than twenty-one years. ’ ’
In Begley v. State, 180 Ark. 267, 21 S. W. 2d 172, it was said: “In order to warrant a conviction of assault with intent to rape, it must appear not only that defendant intended to have carnal knowledge of the girl alleged to have been assaulted, forcibly and against her will, but that he did some overt act towards the accomplishment of his purpose, which amounted in law to an assault upon her. An assault usually implies force by the assailant and-resistance by the assailed. It is not necessary that the attempt by the assailant be persisted in to the utmost, but it is sufficient that it was actually begun without reference to the reason which causes the assailant to desist. ’ ’ Citing cases. In Paxton v. State, 108 Ark. 316, 157 S. W. 396, the court said that subsequent yielding and consent do not mitigate or justify an assault with intent to commit rape. Bee, also, Boyette v. State, 186 Ark. 815, 56 S. W. 2d 182.
Applying the rule so aptly stated by the late Chief Justice Hart, in the Begley case, supra, and by the late Judge Butler in the Boyette case, we think the evidence for the State in this case is sufficient. The prosecuting witness was a saleslady in Little Rock, but her parents lived at Opal, about 12 miles out of Beebe. On the night of October 25, 1941, after work hours, she took a train to Beebe, intending to spend the week-end with her parents. She arrived in Beebe about 11 p. in., where she had arranged to meet a girl friend and both were to go out to Opal on the bus. The girl friend did not show up, but she met appellant, with whom she was slightly acquainted, who asked her to let him take her home. 'She reluctantly accepted, and they started out highway 67 and turned on highway 64. After driving a short distance, appellant turned his car off on a dim road to a secluded spot, killed his motor, and attempted to have intercourse with her forcibly and against her will, forcibly in. that he put his right arm around her and with his left he tried to put his hand under her dress while she was resisting his efforts both by word and act. As she wrestled with him, her arm came in contact with the door handle, the door was opened and she stepped out. He got out of the car on his side, went around to her and continued his efforts to accomplish his purpose. He caught hold of her, attempted to unbutton his trousers, attempted to kiss her, but she continued to frustrate his purpose. She cried out for help twice, and was heard by a witness in his home not far away, but who thought nothing of it at the time. She had a box of clothing and a handbag in the rear seat of the cár and she asked him to give them to her and she would catch the bus on home. He refused, pushed her back in the car, shut the door and drove away cursing because she refused him. A short time later he either knocked her in the head with some kind of instrument, or she attempted to jump from the running oar and seriously injured herself. He picked her up, put her in the front seat, and took her to Dr. Abbington’s hospital in Beebe. She had three bad gashes in her head, had bled profusely and was unconscious. She did not know how she got the blows on the head, but was very positive she did not jump out of the car.
We think the evidence amply sufficient to support the verdict and judgment, and that her sad experience should serve as a warning to other 19 year old virtuous girls, as she was, not to take, a chance at late hours of the night by riding alone with a young man who is a mere acquaintance.
The facts in this case are quite similar to those in Snetzer v. State, 170 Ark. 175, 279 S. W. 9, where the evidence was held sufficient.
The judgment is accordingly.affirmed. | [
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Holt, J.
August 13, 1941, Rex Chastain, a minor, sixteen years of age, while working as a helper on a beer truck belonging to appellant, Karcher Candy Company, was fatally injured.
August 16, 1941, the Karcher Candy Company filed with the Workmen’s Compensation Commission “Em ployer’s First Report of Injury,” in which it stated that Rex Chastain was an employee of the candy company at the time of his injury and death, and on the back of this report is this statement: “Employee was hired by L. D. Montgomery, one of our truck drivers, as a helper on his truck and he was paid by Mr. Montgomery. ’ ’
The candy company’s insurance carrier resisted the claim before the Workmen’s Compensation Commission on the following grounds: “1. Claimant not an employee of Karcher Candy Company. 2. Claimant had no surviving dependents. 3. If partial dependency exists, it is not sufficient to warrant the payment of minimum set out in the act. ’ ’
The Commission held that Rex Chastain, at the time of his injury and death, was an employee of the Karcher Candy Company, but denied compensation on the ground that he had no dependents.
Mrs. Lona Mae Hester, mother of Rex Chastain, filed petition for rehearing before the Commission on two grounds: (1) that the Commission erred in holding that Chastain was an employee of the Karcher Candy Company; (2) that the Commission erred in holding that claimant was not entitled to compensation because there was no dependency upon the deceased employee.”
From the order of the Commission denying Mrs. Hester’s petition for rehearing, an appeal was prosecuted to the Pulaski circuit court, second division. Upon a hearing on this appeal, the circuit court reversed the findings and order of the Commission and dismissed the cause, holding that Rex Chastain was not an employee of the Karcher Candy Company at the time of his fatal injury and that the Commission -was without jurisdiction. Appellant comes here and seeks to uphold the jurisdiction and order of the Workmen’s Compensation Commission.
The essential facts presented are not in dispute. The sole question for determination, as stated by appellee, is: “Was Rex Chastain, under the circumstances of this case, an employee' of the appellant, Karcher Candy Company, within the meaning of our Workmen’s Compensation Act, at the time he was killed while working on one of its beer trucks as the driver’s helper?”
Section 2 (b) of act 319 of 1939, the Workmen’s Compensation Act, provides: “ ‘Employee’ means any person, including a minor whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession or occupation of his employer. . . .”
The essential facts presented are: Mrs. Hester testified that her son, Rex Chastain, was working for the Karcher Candy Company at the time of his death. He began work about two months before he was killed and earned $6 a week.
Frank J. Iseman, vice-president and secretary of the Karcher Candy Company, testified: “Q. Mr. Iseman, was Rex Chastain working for the Karcher Candy Company when he was killed in August? A. Not directly. Q. Not directly- — just what do you mean by not directly? A. Well, the boys that drive these trucks have authority to pick up help whenever they need it and they pay for the use of them out of their own pockets because they are on a commission — the more they sell the bigger their pay will be.- Q. But he was working for the Karcher Candy Company with your 'knowledge and consent? A. Yes, sir, on the truck. Q. And with your knowledge and consent? A. Yes, sir. . . . Q. And you did say he was considered an employee? A. Yes, indirectly.”
He further testified that the candy company paid no unemployment compensation on Rex Chastain, but paid it on other employees and that the truck driver had the authority to hire and discharge boys working in the same capacity as Rex. At one time the candy company paid Rex direct for a few hours services. At the time Rex lost his life “he was helping Montgomery make deliveries off the truck. ”
He further testified: “Q. But you did pay these drivers enough commission so that they could hire these helpers? A. Yes, sir, we did. Q. It is a universal custom of these people to hire and fire, but still they are considered employees of the company? A. It is a custom. . . . Q. Did you recognize, or your company recognize, the fact that a driver of one of these trucks was unable to do the work and needed the helper? A. Yes, sir. Q. And for that reason you paid him enough salary or commission to hire a helper? A. Yes, sir. Q. And you left it to him — that was the custom? A. Yes, sir. Q. The help would come to your warehouse with the truck driver — come on the premises with him? A. At times he did. . . . Q. Did you have actual knowledge that this boy was acting as Montgomery’s helper? A. Yes, sir. Q. Did you know he was acting in that capacity? A. Yes, sir.” All truck drivers were not required to hire helpers; the company was interested in results, but if the drivers have more deliveries than they can make without a helper, “then you want them to have a helper? A. Yes, sir.”
L. D. Montgomery, the driver of the truck from which Rex Chastain fell and was killed, testified: “ Q. Mr. Montgomery, did you hire Rex to help you? A. Yes, sir. Q. What were you paying him? A. One.dollar a day and his dinner. Q. Did he work regular? A. Yes, sir.’ Q. Was he a good hand? A. Yes, sir. Q. Just what kind of arrangements did you have with the Karcher Candy Company in regard to these helpers? A. Well, we were making three cents a case and we didn’t feel like we could hire a helper, so us boys got together and got the boss to give us a raise, so in about two weeks, he gave us a raise — one cent a case, and told us to get a boy to work regularly. ITe said that was the reason he was giving us a penny on the case so we could give that to the boy to help us. Q. And you hired Rex Chastain to help you? A. Yes, sir.”
We think it clear from the testimony that the relationship of employer and employee, or master and servant, existed between appellant candy company and Rex Chastain within the terms of the act, and that the trial court erred in holding otherwise.
It is undisputed that appellant’s employee and truck driver, Montgomery, had been directed by appellant to employ the necessary help in his 'beer deliveries. The cost of delivery was a part of the sale price of the beer. Appellant knew that Montgomery had employed Rex as a helper and the primary purpose of this employment was for the benefit of appellant. Appellant not only knew of, and approved, this employment but allowed Montgomery an additional one cent on each case that he delivered, out of which, Montgomery was directed to pay his helper, Rex Chastain, for services which Chastain was directly performing for the benefit of appellant candy company.
The fact that appellant had given to Montgomery, the truck driver, the privilege to hire and discharge his helper is not sufficient to destroy the relationship of employer and employee between appellant and Rex Chastain, the facts remaining that Rex was performing services for the benefit of appellant and with appellant’s knowledge and consent.
In Western Union Telegraph Company v. Lillard, 86 Ark. 208, 110 S. W. 1035, 17 L. R. A., N. S. 836, it is held (quoting headnote No. 2): “The relation of master and servant between two persons may be shown by proving that the one performs services for the'other.” In this case is cited with approval St. L., I. M. & S. Ry. Co. v. Hendricks, Admr., 48 Ark. 177, 2 S. W. 783, 3 Am. St. Rep. 220, in which this court said: “Indeed, it would be difficult, in most of these cases, to prove the relation of master and servant except by the fact that the one is known to perform service for the other, or from their course of dealing.”
In 35 American Jurisprudence 450, § 8, the textwriter says: ‘ ‘ The relationship of master and servant or employer and employee is a contractual relationship. As between the parties themselves, at least, there must be something to indicate on the part of the supposed master or employer that the supposed servant or employee is to act for him subject to his control, and such supposed employee or servant must act or agree to act in the other’s behalf. In this respect, the rules applicable to the creation and existence of the relationship of principal and agent are'equally applicable. The relationship may be created by express contract, but this is not essential; it may be created as well by conduct which shows that the parties recognize that one is the employer, or master, and that the other is the employee or servant. Moreover, when one is sought to be held responsible for the tortious act of another under the principle respondeat superior, the question of responsibility will not depend entirely upon the existence of some actual contractual relationship of master and servant. It is sometimes allowable to prove the relation of master and servant by the fact that one performs service for another.” In support of this text the Lillard case, supra, is cited..
And Mr. Schneider in volume 1, second edition, of his Workmen’s Compensation Law, p. 204, § 22, announces the rule in this language: ‘ ‘ The agent who with authority express or implied, employs help for the benefit of his principal’s business, thereby creates the relation of employer and employee between such help and his principal. So it has been held that where a driver, employed to solicit sales of beer and make delivery, was permitted to employ helpers, a helper who was injured while in the performance of his duty was entitled to compensation from the brewery.”
For the error indicated, the judgment is reversed, and the cause remanded with directions to proceed in a manner not inconsistent with this opinion. | [
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McHaney, J.
Appellant, E. C. Ellsworth, was the administrator in succession of the estate of Frank Eve-land who died intestate in Garland county, Arkansas, February 2, 1936, leaving no widow and no direct heirs, his wife having predeceased him. Shortly after Eve-land’s death, one Davis, a former county judge of Garland county, was appointed and qualified as the first administrator and made and filed an inventory of said estate. A short while thereafter he died and his widow, May Davis, was appointed, qualified and served for a short time and resigned, and appellant, Ellsworth, became her successor. Appellant, Maryland Casualty Company, became the surety on Ellsworth’s bond as such administrator. Appellant, Frances M. Varney, is a stepdaughter of said intestate and is claiming the real and personal property of said estate, here involved, as a gift from her stepfather. Other appellants are C. T. Cotham and O. H. Sumpter of Hot Springs, reputable members of the bar of this court of long standing, and Stanley D. Campbell, a member of the bar of Tulsa, Oklahoma, and we presume he is a reputable member thereof.
Appellees are all the collateral heirs of Frank Eve-land. They brought this action against appellants in the chancery court to surcharge and falsify the accounts of Ellsworth as administrator in the handling of said estate, and to recover a judgment against him and the surety company for the funds misappropriated, to cancel an alleged void order of the Garland probate court, to cancel a certain deed from said Eveland to Frances M. Varney purporting to convey certain real estate to her and to cancel certain deeds made and executed by her to her attorneys, totaling a one-half interest in the same real estate covered by the deed from Eveland to her, and a deed from Sumpter to Ellsworth, administrator, covering a portion of the part conveyed to him. Judgment was also sought against all the parties, including attorneys, for moneys of the estate wrongfully had and received by them. The prayer of the amendment to the complaint is: “Therefore, plaintiffs pray that they have judgment against the said E. C. Ellsworth, administrator of the estate of Frank W. Eveland, deceased, and the Maryland Casualty Company, a corporation, in the sum of $12,909.10, together with interest thereon from July 13,1938, at the rate of six per cent, per annum until paid; that the defendants, O. H. Sumpter, C. T. Cotham, Frances M. Varney and Stanley Gampbell, be required to account for the funds and property illegally paid to and received by them from said estate, and that the deed of Frances M. Varney and the deeds to all persons claiming interest in said real property through her, be canceled and held for naught, and for costs and all other proper relief.”
The complaint and the amendment made certain allegations of misconduct on the part of all the individual appellants which we do not consider material to the decisive point or points on which this opinion is based and we do not, therefore, set them out. The complaint did allege that Ellsworth, as administrator, did receive personal property of said estate of the value of $15,733.08 and that the lawful expenses of administration and the payment by him of lawful and valid debts was the sum of $2,823.98, leaving a net balance of $12,909.10, which should have been distributed by him to appellees, as the heirs at law of said intestate, according to the law of descent and distribution of this state; that he had failed and refused to do so, and that they should have judgment against him and the surety company on his official bond therefor, with interest from July 13,1938, at six per cent, per annum; and that his settlement theretofore made be surcharged in said amount for the use and benefit of appellees. It was also alleged that the administrator had paid to Sumpter $600 and to himself $492 without any order of the probate court authorizing him so to do, and that each of them should be required to account therefor. Also that the administrator had paid and delivered to Cotham, Varney and Campbell money, stocks and securities of the total value of $11,901.10, without lawful authority, and that each of them was indebted to appellees in said sum. As to the real estate, it was alleged that the deed purporting to convey same to Varney was never signed and acknowledged by Eveland, was never legally delivered to her, and that she acquired no title thereto; that mesne conveyances of said real estate were made by Varney, and that Cotham, Campbell, 'Sumpter and Ellsworth, individually are now the iecord owners of a one-half interest therein; and that said conveyances by her are void as against appellees who are entitled to have all said deeds canceled. It is also alleged that they acted promptly upon discovery of the actions of appellants which was a short time before the bringing of this suit.
■Separate answers were filed consisting largely of general denials. Trial resulted in a decree for appellee. The court found it had full and complete jurisdiction of the action and all the parties; that appellees are all the heirs at law of Frank W. Eveland who died intestate at the place and date aforesaid, and, as such heirs, are entitled to all the estate of said Eveland involved in this action; that “the order or orders of the Garland probate court purporting to pass title or find title to the money or other property involved in this litigation or purporting to distribute the estate or any part thereof to Frances M. Varney, E. C. Ellsworth, Stanley D. Campbell, C. T. Cotham or O. H. Sumpter, were void, 'the probate court being without jurisdiction to enter such orders and that the account of E. C. Ellsworth, as administrator — be surcharged in any amounts paid to the said E. C. Ellsworth, Frances M. Varney, Stanley D. Campbell, C. T. Cotham and O. H. Sumpter out of the estate of Frank W. Eveland under such order or orders or received by them from said estate, together with his bond.” The court found .all issues of law and fact in favor of appellees and against appellants, “except the issue as to whether there was actual fraud on the part of the defendants (appellants) or either of them, upon which issue the court deems a specific finding unnecessary to its decree, likewise as to alleged forgery of deed,” and that appellees are entitled to the relief prayed, including the cancellation of the alleged deed from Eveland to Varney and all subsequent deeds through her appearing in the chain of title to the real estate involved, and to an accounting as prayed in the complaint. Judgment was accordingly entered against Ellsworth and the Maryland Casualty Company for $13,367.11, which with interest amounted to $15,777.91 on July 15, 1941, to bear interest from said date at six per cent, per annum. Other judgments rendered were as follows:
Against Sumpter .................................$2,483.53
“ Varney .................................... 6,325.55
“ Cotham .................................... 1,983.53
“ Campbell .............................. 1,983.53
together with interest on these respective amounts at six per cent, per annum from July 13, 1938, until paid; and that the account of Ellsworth be surcharged with each of said sums. All deeds involving the title to the real estate in question were canceled by the decree, and the right of subrogation, if any, in favor of the surety was preserved. From this decree comes this appeal.
A brief summary of the facts follows: Frank Eve-land suffered a cerebral hemorrhage in his home on February 2,' 1936, from which he died the same day. His wife, the mother of appellant, Frances M. Varney, and her sister, Lula Pearl Parr, by a former marriage had predeceased him about four months. Mrs. Varney had. lived in the home with them for about .seven years and liad been supported by Mm as a member of tbe family. Shortly after Eveland’s death Judge Davis was appointed administrator of his estate and went to the home to make an inventory of the property. No inventory was made of the household effects, but Mrs. Varney produced a black box containing bank pass books, certificates of deposit and other evidences of indebtedness due to Eve-land, all personal assets of his estate. All household effects, except the radio were later sold by her and appropriated to her own use. The radio and Eveland’s automobile were later taken by Ellsworth, he claiming on trial that he paid her for them, which she denied. She first refused to surrender the black box and its contents to Judge Davis, claiming that the estate was indebted to her for services rendered the intestate and was told she must file her claim and have it allowed. She also claimed Eveland had given her the black box and contents prior to his death, on an occasion when he was going to the hospital for a dangerous operation. Judge Davis insisted she must surrender the box, which she did when threatened with the police or a court order. The circumstances of the claimed oral gift were that Eveland was afflicted with a double hernia, and on November 4, 1935, (nearly 90 days before his death) he went to the hospital for an operation. A short time before leaving for the hospital, according to her testimony, he handed her a deed to the real estate here involved and the black box, and said: “If I never come back from the hospital, everything here belongs to you.” .She did not mention having the deed and did not produce it at that time, and did not place it of record until April 7, 1936.
Judge Davis, the then administrator, made inventory of the contents of the box and filed same. As stated above, Judge Davis died and his wife, May Davis, succeeded him, but in about 30 days she resigned and appellant, Ellsworth, succeeded her. Ellsworth prepared the deed and took the acknowledgment as notary. He employed appellant Sumpter as his official attorney without a previous court order authorizing him so to do. Appellant Varney had employed appellant Campbell of Tulsa, Oklahoma, to prosecute her claim against said estate on a 50 per cent, contingent fee basis, his first written contract with her being dated February 13, 1936, at which time she did not inform him that she held a deed to the real estate. Prior to April 9, 1936, Campbell had associated appellant Cotham with him as her attorney and on that date they filed “exceptions to the inventory of assets” filed by May Davis, administratrix, on the ground that the personal property was hers by gift from Eveland. In this pleading prepared by Cotham, Mrs. Varney was referred to as the “daughter” of Eveland. They also filed exceptions to the account current of May Davis on May 20, 1936. Said exceptions were denied on the same date and no appeal was taken from this action of the court.
The deed to the real estate was taken by appellant Varney to appellant Cotham early in April, 1936, at the suggestion of Ellsworth. Cotham took the deed to per sons in the bank, who should know Eveland’s signature, to obtain their opinions as to the genuineness of the signature and comparisons were made of the signature on the deed with Eveland’s known signature on checks.at the bank. After learning of this deed Campbell and Cot-ham secured from appellant Varney a “supplemental agreement” in which she gave them and Sumpter a onelialf interest in the real estate, as compensation for services “heretofore and hereafter to be performed” for her. Sumpter was later employed by the administrator, Ells-worth, as attorney for said estate, but without a court order, and was paid the sum of $1,983.53, by Cotham, as his part or share of the fees collected from Mrs. Varney.
On November 4, 1936, a “Petition for Partial Distribution” of the estate was filed by Mrs. Varney, in which no mention is made that she claimed to own the estate, previously asserted by her exceptions, and asked for a payment of $5,000. This petition recited that she “represents to the court that she is the sole and only legatee and beneficiary”of said estate, and “as such” is “entitled to all the estate of said deceased,” etc.; and she prayed therein that Ellsworth be compelled to pay her said money as “said sole legatee and beneficiary.” Cotham, who prepared the petition, admits that the words “sole legatee and beneficiary” are “inept” to describe a stepdaughter of a decedent who left no will. A hearing was had on the petition on December 8, and on December 14 an order was made which recited the following: “It appearing that on the 8th day of December, 1936, all per-, sons interested in the estate of Frank Eveland, deceased, appeared in court, Frances M. Varney in person and by her attorneys, Stanley D. Campbell and C. T. Cotham, Esqs., Lula Pearl Parr, by her attorney, C. Floyd Huff, Jr., E. C. Ellsworth, administrator in succession of said estate, in person and by his attorney, O. H. Sumpter, Esq., and by consent of all the parties,” etc. The court, after hearing Mrs. Varney and others, entered an order awarding her all the personal property of said estate against the administrator and a $5,000 distribution to her at that time.
Lula Pearl Parr, sister of Mrs. Varney, is mentioned in this order for the first time in the probate proceedings. She had questioned the genuineness of Eveland’s signature on the deed and had written Mrs. Morgan, mother (now deceased) -of two of the appellees, that her sister was making false claims against said estate and, with Ellsworth, was dissipating the estate. She and her attorney threatened to interfere with the proceedings on two grounds: that she had been “equitably” adopted by Eve-land and that the probate court had no jurisdiction to determine the title to the property. A compromise settlement was reached and she was paid $3,000 out of the $5,000 distributed to Mrs. Varney under said order, for which Mrs. Parr gave a full release to her sister and a quitclaim deed to her interest in the real estate. Thus no one opposed, the claim of Mrs. Varney and no one questioned the court’s jurisdiction to determine her rights to the property. Appellees, the heirs, had no notice of the proceeding. Thereafter the property was divided and the estate closed, the final order being made on July 13, 1938. Appellant Cotham told how the estate was divided — one-third of 50 per cent, to Campbell, and the remaining two-thirds of 50 per cent, to Sumpter and Cot- ham equally. Of the real estate, Campbell got one-third of the one-half, and of the remaining two-thirds of one-half Sumpter got two-ninths and Cotham one-ninth. Sumpter thereafter conveyed to Ellsworth a one-ninth interest, being one-half of what was conveyed to him.
We think the court correctly held that the order or orders of the probate court purporting to adjudicate the title to said property or to distribute same, and especially the order of December 14, 1936, were void, because the probate court was wholly without jurisdiction. We think there was ample proof of legal if not actual fraud practiced on the probate court in the procurement of the order, and that the chancery court, in this action, had full jurisdiction both of the subject-matter and the parties. We are also of the opinion that, conceding the truth of appellant Varney’s statements in evidence, as to the gift of the black box and the deed to her by Eve-land, when he was about to leave for the hospital, were gifts upon condition, and the gifts failed when the condition failed. In other words, that the gift of the black box was a gift causa mortis, which was revoked by his return from the hospital, and that there can be no such thing as a gift causa mortis of real estate. Gordon v. Clark, 149 Ark. 173, 232 S. W. 19; Johnson v. Colley, 101 Va. 414, 44 S. E. 721, 99 Am. St. Rep. 884. He went to the hospital for an operation to correct a double hernia. Before leaving he handed her the box and deed, saying: “If I never come back from the hospital, everything here is yours.” The undisputed fact is that he did come back from the hospital on November 18, 1935, returned to his home where he was confined a few days, but not in bed, and thereafter resumed his normal life, was up and about town, and did not die until February 2, 1936, and then from a wholly disassociated affliction from that that took him to the hospital. He discussed and treated the property as his own and the black box remained in the place he had always kept it before the alleged gift.
In Pomeroy’s Equity, 4th Ed., p. 2669, the rule as to gifts ccmsa mortis is stated as follows: “When a gift causa mortis is made during sickness, it is essential, in order to perfect it and prevent a revocation, that the donor should die of the very same sickness from which he was then suffering, and there should be no intervening recovery between the illness and his final death; and it seems that the donee must affirmatively show the existence of all these facts.
We, therefore, conclude that the trial court was justified in finding and holding that no valid gift of the property was made to Mrs. Varney.
Aside from this phase of the case, we are convinced that the order of the probate court was void for want of jurisdiction to make it. Throughout its history, this court has held that probate courts are without jurisdiction to hear contests of and determine the title to property between personal representatives of deceased persons and third persons claiming title adversely to the estates of deceased persons. Moss v. Sandefur, 15 Ark. 381; Mobley v. Andrews, 55 Ark. 222, 17 S. W. 805; Shane v. Dickson, 111 Ark. 353, 163 S. W. 1140; Fowler v. Frazier, 116 Ark. 350, 172 S. W. 875; Gordon v. Clark, 149 Ark. 173, 232 S. W. 19; Huff v. Hot Springs Savings, T. & G. Co., 185 Ark. 20, 45 S. W. 2d 508; Sides v. Janes, 188 Ark. 386, 66 S. W. 2d 617; Ellis v. Shuffield, 202 Ark. 723, 152 S. W. 2d 535. The personal property was in the hands of the administrator. Mrs. Varney was not an heir, distributee or beneficiary and was therefore a third person. She was a stranger to the blood and to the estate. Counsel for the Maryland Casualty Company contends that, because the assets constituting the subject-matter of the contest were in the hands of the administrator the probate court has jurisdiction to determine the title thereto, even though such claimant be a third party or stranger to the estate. In other words, if the property is in the possession of the administrator the probate court has jurisdiction to determine the title as between him and the stranger, but if the possession is in the stranger it does not. This contention is not sound, as shown by a reading of the cases cited above, in a number of which the possession was in the administrator. .For example, in Gordon v. Clark, supra, Gordon sued in the chancery court to quiet title as against an administrator and others and alleged that the administrator was holding a& a part of the estate certain bonds and other personal property which, as alleged, the deceased in his lifetime had given to him. A plea was filed to the jurisdiction, was sustained, and the case dismissed on the ground that the probate court had jurisdiction. On appeal this court reversed, saying: “The present case involves a contest between the administrator and a claimant to certain property of the estate, and it is well settled that the probate court has no jurisdiction of a contest between an executor or administrator and others over the title of property belonging to the deceased. King v. Stevens, 146 Ark. 443, 225 S. W. 656, and qases cited, and Union & Merc. Trust Co. v. Hudson, 147 Ark. 7, 227 S. W. 1.”
The general rule, supported by our own cases, is stated in Gary’s Probate Law, 3d Ed., § 23, p. 20, relative to the power of the probate court to determine the title to contested property, and it is limited as to contestants “to those interested in such property as equitably or legally entitled to some distributive share therein or in the residue, and to creditors who voluntarily and upon general notice and without special citation present their claims. All controversies between executors, administrators and guardians, or those interested in the particular estate, and other persons not interested in it, must be settled in another forum.” King v. Stevens, 146 Ark. 443, 225 S. W. 656, and Thomas v. Thomas, 150 Ark. 43, 233 S. W. 808. These cases hold that where the contest is between the executor or administrator and parties who claim as heirs or beneficiaries having some interest in the estate, and who do not claim adversely or as strangers to it, the probate court has jurisdiction. Mrs. Varney did not go before the probate court as one interested in the estate as an heir or beneficiary, but as one claiming adversely to the estate as a third party or stranger, and the probate court was without jurisdiction to entertain the contest, and its order of December 14, 1936, was and is void and of no effect.
All appellants, except Mrs. Varney, entered pleas of laches in bar of the action. Laches is not mere delay, but delay that works an injury to another. No injury or disadvantage or change in status is shown. Appellants still have the real estate. There are no innocent purchasers. They may have spent the money or other personal property wrongfully received by them, but if so that is no defense. Appellees were nonresidents, living in different parts of the United States, and acted promptly when advised, and we think the plea comes with poor grace and cannot be sustained.
The decree is accordingly affirmed. | [
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Smith, J.
Appellee Bell brought this suit for himself individually and as next friend of Betty, his infant daughter, against appellant to recover damages to compensate an injury sustained by the child resulting from the striking of the child by an automobile driven by appellant, and from judgments in his favor on both counts is this appeal.
The errors assigned for the reversal of the judgment are that it is contrary to the law and the evidence, and that the court erred in not directing a verdict in appellant’s favor.
Four acts of negligence on appellant’s part are alleged, (lj that she was driving at a dangerous and negligent speed; (2) that she failed to apply her brakes; (3) that she was driving without sufficient brakes;-and (4) that she failed to keep a proper lookout. No error is assigned in giving or in refusing to give any instruction, and the instructions are not abstracted. The presumption is, therefore, conclusive that the cause was submitted under instructions correctly declaring the law.
Appellant denied all the allegations of negligence, and alleged that the child’s own negligence was the proximate cause of her injury.
The testimony cannot be reconciled, but it must be viewed in the light most favorable to appellee in testing its legal sufficiency. When thus viewed, it is to the following effect.-
'Appellee Bell has a 15-year-old daughter named Elizabeth, who was sent across the highway to a neighbor’s home for water. Her sister, Betty, who was 9 years old, did not accompany Elizabeth, but followed her. Elizabeth crossed the road, and saw two cars approaching from the west. When she saw Betty was following, she told Betty to wait until those cars had passed. Betty obeyed, and just as she put one foot in the highway to cross it appellant’s car coming from the east struck her.
The testimony is conflicting as to the speed of appellant’s car. Some of the witnesses placed the speed at 65 miles per hour. There was testimony that the child was knocked up hill for a measured distance of 125 feet, and when she struck the ground the car hit her again. The car traveled as much as 250 feet after striking the child, and one witness placed the distance at 375 feet. The view of the' driver of the car was unobstructed for a much greater distance, and the driver had only to turn to the left to avoid striking the child. The brakes of the car were applied, but not in time to avoid the collision.
Appellant testified that she drove through Russell-ville on her way to Fayetteville about 6 p. m., driving at her customary speed of around 50 miles per hour, but slowed down when meeting another car to about 40 miles per hour, and that all at once two'children darted in front of the car, when she applied her brakes. She could not drive to the left of the small child for fear of striking the larger child, but she turned as far to the left as she could without striking the larger child, and it was not possible to avoid striking the small one. She was looking down the road, but did not see the children until they came in front of the car, and she did not know where they came from. Appellant was fully corroborated by the lady who was driving with her, riding on the front seat.
These conflicts in the testimony were passed upon by the jury, and that offered by appellee fully sustains the finding that appellant was negligent in failing to keep a lookout and in driving so. fast without doing so. There was no testimony that appellant’s brakes were defective.
The instant case is very similar to the recent case of Robertson v. Walden, ante, p. 92, 161 S. W. 2d 391. In this case, as in that, we have no hesitancy in saying that the testimony is sufficient to sustain the finding that appellant was negligent; but in this case, as in that, we are less certain about the contributory negligence of the child. There, the injured child was 14 years old; here only 9. Taking into account the age of the child, as the jury had the right to do, we are unable to say that it was not a question for the jury, rather than one of law for the court, whether the child was guilty of contributory negligence.
The child was carried to a hospital, and was unconscious for sixteen days. She sustained a very serious injury, and no complaint is made that the verdicts returned are excessive, and as no error appears the judgment must'he affirmed, and it is so ordered. | [
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Carleton Harris, Chief Justice.
Appellee, Aviation Insurance Managers, Inc., hereafter called A.I.M., instituted suit seeking to recover from appellant, American Aviation, Inc., hereafter called American, a 1961 Cessna 172 Skyhawk aircraft of the alleged value of $3,125.00. A bond was filed by appellee, hut a cross-bond was filed by appellant, and the airplane remains within the possession of appellant. This plane was damaged in an accident in Texas in May, 1965. The registered owner in the office of the Administrator of the Federal Aviation Agency, Oklahoma City, is Texas Airmotive Company, Inc., hereafter called T.A.C., of Bryan, Texas. The plane was insured by appellee, and on June 7, 1965, ap-pellee issued a settlement draft in payment of the loss to T.A.C., and received in return a signed hill of sale to the aircraft on a Federal Aviation Agency form. The name of the buyer was left in blank. The plane was taken to Weiss International Airport at San Antonio, Texas, where a number of salvage bids were received, the highest bid being made by Charles Collier in the sum of $3,125.00, which was accepted. Collier had previously purchased aircraft salvage from appellees. On June 13, 1965, Walter Kostich of Tulsa, Oklahoma, went to the Weiss Airport for the purpose of picking up the airplane, and the aircraft was delivered to him by a representative of AJ.M., apparently under the belief that Kostich was acting for Collier. The log books for the engine and aircraft were forwarded to Collier. On June 23, 1965, Collier was informed by letter from A.I.M. that the company understood that he had picked up the aircraft, and he was advised that the bill of sale would be immediately forwarded upon receipt of his draft in the amount of $3,125.00. Upon Collier’s making inquiry as to whom the draft should be made payable, A.I.M. advised that it should be made payable to the company. Thereafter, several letters seeking payment were sent to Collier, and on October 22, 1965, following a telephone request by Collier, A.I.M. sent a customer sight draft to a Dallas bank, which was returned “unpaid,” and a second sight draft was also returned stamped likewise.
On March 31, 1966, A.I.M. received a request from Mr. .Kostich to forward a bill of sale to him. Thereupon, the insurance company made an investigation, and learned the following facts:
Kostich, after obtaining the craft in San Antonio, took it to Tulsa, Oklahoma, and had the wings rebuilt. On September 8, 1965, Collier gave Kostich a bill of sale for the airplane, and was paid $1,000.00 by Kostich, the latter applying for registration of the aircraft in his name, but the application was rejected by the Federal Aviation Agency, because Kostich did not have a bill of sale from the registered owner, T.A.O. On November 20, 1965, Kosticb sold the aircraft to American, and gave that company a bill of sale. Appellant paid Kostich $4,175.00, and likewise made application for registration, bnt the application was rejected for the same reason that the application by Kostich had been rejected. In the meantime, American took the aircraft to Rogers Municipal Airport, Rogers, Arkansas. The case was tried on stipulated testimony, and on October 18, 1967, the Renton County Circuit Court ordered American to deliver possession of the plane to A.I.M., or upon its failure to do so, awarded appellees a money judgment in the amount of $3,125.00, together with interest. From the judgment so entered, appellant brings this appeal.
The question in this litigation is very simple, “Who owns the airplane?” This is a case of first impression in this state, and there does not seem to be a great deal of case law over the country. Appellee’s contention is that it holds the executed bill of sale from the registered title holder, is the owner, and therefore, is entitled to the aircraft, i. e., A.I.M. stands in the shoes of T.A.C., having paid that company the loss on the plane, and having received the bill of sale in return. Appellant’s argument is that it is a bona fide purchaser of the plane without notice that anyone other than Kostich was claiming any interest thereto.
Congress has preempted the field of registration and recording of title instruments affecting civil aircraft. Pacific Financial Corporation v. Central Bank and Trust Company, 5 Cir., 296 F. 2d 68. A central office has been established at Oklahoma City, Oklahoma for this purpose. Pertinent portions of 49 U.S.C.A. § 1403, provide as follows:
“(a) The Administrator shall establish and maintain a system for the recording of each and all of the following:
(1) Any conveyance which affects the title to, or any interest in, any civil aircraft of the United States; # * # >>
This covers sales, mortgages, leases, contracts of conditional sale, or any other instrument executed for security purposes. Subsection (c) provides as follows:
“No conveyance or instrument the recording of which is provided for by subsection (a) of this section shall be valid in respect of such aircraft, aircraft engine or engines, propellers, appliances, or spare parts against any person other than the person by whom the conveyance or other instrument is made or given, his heir or devisee, or any person having actual notice thereof, until such conveyance or other instrument is filed for recordation in the office of the Administrator: * * *”
Appellee did not record its bill of sale from T.A.C.; in fact, it is still holding same in blank, and as stated, its contention is that it still holds title to the aircraft, since it is holding the bill of sale. According to Bill McKamey, manager of the New Orleans office of A.I.M., the reason that his company did not record the bill of sale was due to the fact that the company was following the customary practice in the aircraft salvage business. The witness stated that a salvage buyer often sells the salvage to someone else, and it may change hands two or three times before a salvage buyer delivers it to the ultimate purchaser; the latter then receives the bill of sale with his name inserted, and files it with the Federal Aviation Agency. The reason, according to McKamey, is to avoid delay and eliminate the costs of registering the aircraft with every person who purchases the salvage.
“Our oustomary procedure in salvage cases is to deliver the blank bill of sale to the salvage buyer upon receipt of the salvage money. The salvage buyer then delivers it to his buyer, if any. When the last buyer re-cteives the bill of sale, he then files it with the Federal Aviation Agency. The bill of sale was never delivered by Aviation Insurance Managers, Inc. in this case because the salvage money has never been paid. ’ ’
We do not agree that there was no conveyance of the plane from A.I.M. to Collier, even though no bill of sale was given to the latter. A.I.M., according to the stipulated testimony, sold the craft to Collier. McKam-ey’s testimony reflects:
“Mr. Collier had previously purchased aircraft salvage from our company in behalf of Oak Grove Airport. It was my understanding that this was what he was doing in the present case.”
“* * * We sold the salvage to Mr. Collier' [our emphasis.] We looked to him for payment and we held the bill of sale for delivery to him upon payment of the salvage price. This is the only manner in which business has been done with Mr. Collier in the past.”
The stipulated testimony of both Collier and Kos-tich appears in the record, but we do not see that their testimony is particularly pertinent to the determination of this litigation. Collier testified that he bought the Cessna for Kostich, and he said that he advised McKam-ey of this fact, telling the latter that Kostich was to pay for the plane.
According to Kostidh’s testimony, he purchased the plane from Collier, received a bill of sale from the latter, who at the same time promised to obtain a bill of sale from either T.A.C. or A.I.M.
It has previously been pointed out that Congress has preempted the field as far as recordation and registration of aircraft is concerned, but we do not mean to say that Congress has preempted the entire field relating to conveyances of aircraft, for it has been held otherwise. In Aircraft Investment Corp. v. Pezzani & Reid Equipment Company, 205 F. Supp. 80 (1962), the United States District Court E. D. Michigan, S. D., said:
“Plaintiff suggests that Congress has preempted the entire field of conveyancing of interests in aircraft. This view is erroneous, notwithstanding In re Veterans’ Air Express Company, 76 F. Supp. 684 (D. N. J. 1948), which contains dicta on which plaintiff relies. Congress has said only that until an instrument purporting to convey an interest in an aircraft is recorded, in accordance with the Act, it is void as to third parties without notice. Upon federal recordation, it is valid without further recording. In providing for the recordation of various instruments pertaining to transactions affecting title or interest in aircraft, Congress has not impaired the existence and effectiveness of state laws creating and defining such instruments. Excepting the recording section of the Federal Aviation Adt, the validity of the chattel mortgage here in question must be measured by the appropriate state law.”
Appellee did not plead the application of the Texas statutes, and the law of this state applies.
Let us then look to our appropriate statutes. Ark. Stat. Ann. § 85-2-106 (Add. 1961), being a part of the Uniform Commercial Code, states:
‘‘* * * A ‘sale’ consists in the passing of title from the seller to the buyer for a price.”
This section then refers to § 85-2-401. Subsection (2) of the last section provides:
“Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical de livery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a securitv interest by the bill of lading * * V’
We have already pointed out that McKamey’s testimony flatly states, “We sold the salvage to Mr. Collier.” The plane was physically delivered to Kostich (for Collier) though the document of title was to be delivered at a different time. Under subsection (2), just quoted, it appears that title passed to the buyer when the aircraft was delivered. Appellee, in holding on to the blank bill of sale, was actually endeavoring to reserve a security interest in the plane — but whatever interest was retained, even had there been a conditional sale— or a chattel mortgage — had to be recorded in the central office to become valid as against innocent purchasers. We are not concerned with the validity of the sale from A.I.M. to Collier (or Kostich) as it affects the rights between those parties; we are only concerned with their transaction as it affects the rights of appellant.
Under the evidence, there is no doubt but that appellant was a good faith purchaser; in fact, it is not otherwise argued. In State Securities Co. v. Aviation Enterprises, Inc., 355 F. 2d 225 (1966), the question of the recording of conveyances was discussed. That litigation was affirmed on the basis of two points, the second being that a chattel mortgage on an airplane was invalid, as to a purchase made in good faith from the mortgagor, where the mortgagee had not followed the provisions of Section 1403 (c). The court said:
“Further, under § 1403 (d), supra, Securities’ mortgage is invalid as to good faith purchasers, since it did not register its mortgage with the Federal Aviation Agency. And the failure of Owens to register its title does not benefit Securities, since Securities must stand on the strength of its own title and cannot recover on the weakness of Owens’s title.”
Reversed.
George Rose Smith, J., dissents.
Ark. Stat. Ann. § 27-2504 (Supp. 1967) provides that a party who intends to raise an issue concerning the law of any jurisdiction or governmental unit outside this state shall give notice in his pleadings or other reasonable written notice. | [
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Grifein 'Smith, C. J.
McLeod, as county judge, has appealed from an order of the circuit court commanding him to hear and determine a contest between Roy Richardson and Lloyd Cochran, who at an election March 21,' 1942, were opposing candidates for school director. Richardson undertook to contest, thinking county court was the proper forum. That tribunal held it was without jurisdiction. The controversy reached circuit court on Richardson’s petition for mandamus to compel the county court to act.
Section 24, art. 19, constitution of 1874, authorizes the general assembly to provide by law the mode of contesting elections not specifically provided for. An Act containing 101 sections was approved January 23, 1875. Some of its provisions are still in force. , Section 71 appears as § 4837 of Pope’s Digest. It is copied in the margin.
In Ferguson v. Wolchansky, 133 Ark. 516, 202 S. W. 826, it was held that § 2860 of Kirby’s Digest (now § 4837 of Pope’s Digest) was applicable to school election contests. The decision was that since no specific statutory or constitutional provision covered such contests, the office was included within the term “county offices.” This view, says the opinion, was confirmed by the fact that certain provisions of the school law required school election returns in cities and towns to be made to the county clerk, whose duty it was to deliver a certificate to the person elected.
Validity of Act 234, approved March 11, 1919, was upheld in Stafford v. Cook, 159 Ark. 438, 252 S. W. 597. (■See § 11 of the Act). The right of appeal from a final order of any county board of education was given by Act 183, approved March 21,1925. Although this Act has not been expressly repealed, it does not appear in the current Digest — this, no doubt, upon the assumption it had been repealed by implication. It was held in Gibson v. Davis, 199 Ark. 456, 134 S. W. 2d 15 (December, 1939) the Act had not been repealed.
Act 247, approved March 29, 1933, abolished county boards of education and the office of county superintendent. Examiners were substituted for superintendents. Powers and duties formerly exercised by boards of education were transferred to county courts. It was in effect until repealed by Act 184, appróved March 22, 1935, which was passed without the emergency clause. Pope’s Digest, § 11667-11674. •
Act 154, approved February 28, 1939, provides that in districts where there are contests for the office of school director, any ten qualified electors may petition the county examiner to supply duplicate ballots and duplicate ballot boxes for use in the election.
Act 319, approved March 25,1937, made each school district, for the purpose of elections, a political township.
Act 184 of 1935, transferred to county courts “. . . the powers and duties formerly exercised by the county board of education.” It expressly repealed Acts 26 and 247 of 1933, and §§ 29, 31, 32, 33, and 35 of Act 169 of 1931. Boards of education were again (as in 1933) abolished, as was the office of county superintendent.-
This was the law’s status when Act 327 was approved March 26,1941. It is entitled “An Act to provide for the more efficient supervision of public schools, to create the office of county supervisor, to create a system of county boards of education, to improve the rural schools, and for other purposes.”
Section 19 expressly repeals § 11667 and certain succeeding sections of Pope’s Digest, also § 11468.
Section 1 of Act 327 created county boards of education composed of five members. Section 13 authorizes employment of a supervisor. Section 11 invests boards with authority and malees it their duty to supervise employes. In addition, “. . . all powers, duties, and the responsibilities respecting the public schools . . . which heretofore have been vested in the several county courts . . . are hereby transferred to and vested in the respective county boards of education.” An exception is that “. . . canvassing of returns and certification of results of all school elections . . . shall continue to be vested in the county courts.”
Section 12 is: “In executing the powers herein conferred upon the county board of education, said board shall exercise such powers and jurisdiction with reference to the making of orders and enforcing the same as were formerly conferred upon the county courts of the state.”
In construing Act 247 of 1983, it was said in Shimek v. Janesko, 188 Ark. 418, 66 S. W. 2d 626, that the county court, in canvassing votes and declaring results of a school election, did not act judicially. Its duties were similar to those of a. county board of education functioning under Act 169 of 1931: — “No appeal could be taken from this order, but any person who had been voted for for school director might file a contest, and it was the duty of the court to hear the contest, make its findings, and render its decision, and from this order an appeal could be prosecuted to circuit court.”
The difficult question is, Did the general assembly, in transferring powers to boards of education, but reserving to county courts exclusive authority to canvass returns and certify results of a school election, intend that such courts, and not the newly-created boards of education, should hear and determine contests?
Following the matter we have quoted from § 11 of Act 327, it is said: “Specifically, these duties, .among others, shall include the following.” The reference is to seven subdivisions. Appellee argues, and not without force, that “among others” has reference to like duties. Harrington v. Blohm, 136 Ark. 231, 206 S. W. 316.
By express enactment, county courts are vested with but two powers respecting school matters: canvassing returns and certifying results. There is no provision for contests. It follows that jurisdiction must be implied; and, all powers, duties, and responsibilities formerly inhering in county courts (other than canvassing returns and certifying results) having been placed with county boards of education, and the general plan of legislation in 1941 appearing to have been to undo what was done in 1933 and 1935, it is not illogical to assume that the intent of Act. 327 was to return to boards the authority they had under Act 169 of 1931. What seems more reasonable is that those who framed the 1941 measure overlooked contest's and therefore failed to affirmatively provide for them. The result is that the deficiency must be implied from the spirit of the Act: from what was intended in effect, but not said.
It is not without misgivings that we reverse the judgment and hold that the board of education had jurisdiction. Let the writ be quashed.
Mr. Justice Mehaeey dissents. •
Cochrane received 237 votes, and Richardson 234.
The Act,, as it appears in the published volume for 1874-75, is entitled “An Act providing a general election law.” Although the last section is numbered 102, there are in fact but 101 sections because of the omission of § 34.
“When the election of any clerk of the circuit court, sheriff, coroner, county surveyor, county treasurer, county assessor, justice of the peace, constable, or any county or township officer, the contest of which is not otherwise provided for, shall be contested, it shall be before the county court,” [The remainder of the section relates to procedure.]
The supplies were to be delivered to judges and clerks of the election “. . . as now provided by law.” The duplicate box was to be sealed and transmitted to the county treasurer, “. . . who shall safely keep the same until the time for filing contests in school elections has expired, but in case of a contest said treasurer shall not, destroy said ballots until ordered to do so by the court having juris-’ diction of the contest. The original ballot box shall be returned to the county judge and by him safely kept until the time for contesting an election has expired and in case of a contest shall preserve the said ballot box and ballots.”
Italics supplied. | [
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Greenhaw, J.
Appellant sued Silbernag'el & Company, a partnership, and a number of their truck drivers for damages for .a personal injury he received from an alleged collision near Jenny in Chicot- county on IT. S, highway 65 shortly after dark on Monday, June 26, 1939.
The complaint alleged that appellant was driving his truck south on said highway at a reasonable rate of speed, with due care and caution for his own safety, when he met a truck of Silbernag'el & Company going north on said highway, and driven by their agent and employee in the prosecution of their business. It further alleged that the Silbernag’el truck was being operated in a negligent and reckless manner at an excessive rate of speed, taking most of the paved surface of the highway, and forced appellant to drive on the shoulder of the highway in an effort to avoid a collision, striking .the left side of his truck and resulting in a serious injury to his left arm which necessitated its amputation about two inches above the elbow.
Silbernagel & Company answered, denying all material allegations of the complaint, and specifically stating that no truck belonging to them and operated for their benefit or on any of their business was in the vicinity of the place where appellant claims he was injured; that all of their trucks were through with their business for the day and none of the defendants were performing any business for them. They .later filed an amendment to their answer, stating that appellant at the time of the alleged collision was in such an intoxicated condition that he did not know or could not know whose truck struck him and was not in such condition that he could exercise ordinary care for his own safety, and pleaded appellant’s contributory negligence.
At the conclusion of the testimony on behalf of appellant, a nonsuit was taken as to all defendants except Silbernagel & Company and Sylvester Brown, their driver, who appellant contends was driving the truck involved in the collision, and the trial proceeded against them only. Several witnesses testified and the issues were submitted to a jury resulting in a verdict in favor of appellees, upon which judgment was entered and from which is this appeal.
In his motion for a new trial appellant assigns numerous errors, a part of which he waived in his brief ■ on appeal. We have carefully considered all the assignments of error upon which appellant relies for a reversal of this case, and are unable to agree that any of them constitute reversible error.
There was substantial evidence introduced on behalf of both appellant and appellees. We think the instructions given to the jury fairly presented their respective theories of the case, and that no reversible error was committéd either in the admission or rejection of testimony or in the giving or refusing of instructions. It is a well established rule that this court will not pass on the weight of testimony, that being within the exclusive province of the jury, whose verdict should be upheld whent it is based upon substantial evidence. Lewis v. Shackleford, 203 Ark. 500, 157 S. W. 2d 509.
The evidence showed that no one was with appellant at the time of the collision. Tie testified that the lights of the truck which struck him were not dimmed as it approached him, and that in order to avoid the collision he drove over on the shoulder of the highway as far as he could without going into a deep ditch, and that the truck which struck him was over on his side of the highway, although it had ample room to pass him on its side of the highway; that the rear view mirror and the door handle were knocked off of his truck, the door dented and about half of the left rear fender knocked off; that after the collision the truck proceeded up the highway a short distance and stopped, the driver opening the door, looking back and then immediately closing the door of the truck and proceeding on his way without offering any assistance or making known his identity. He could see that the driver of the truck was a negro. He testified that he saw the name of Silbernagel on the truck, and knew the kind of trucks Silbernagel & Company operated, as he had seen them frequently. After the accident he drove his truck into the town of Jenny, a short distance from the scene of the collision. He further testified that he was sober at the time of the collision.
The evidence showed that Silbernagel & Company was engaged in the wholesale grocery business and also in the beer business and operated trucks with trailers in connection with their, grocery business, but that the trucks which handled beer did' not have trailers attached. Sylvester ¡Brown, when driving the truck, used one with a trailer, delivering groceries. It is not contended that a beer truck was involved in this collision, but that the truck was one with a trailer; used in the delivery of groceries, and driven by Sylvester Brown.
Evidence was given on behalf of appellant by other witnesses to the effect that a truck and trailer of Sil bernagel & Company used for delivering groceries was seen by tliem that evening near the scene of the alleged collision on U. S. highway 65, proceeding north in the direction of the place where the collision occurred, and some of them identified the driver thereof as Sylvester Brown. One witness, Willie Stewart, testified that he saw Sylvester Brown on this occasion driving the truck of Silbernagel & Company and talked with him.
On the other hand, considerable evidence was introduced on behalf of appellees that no truck of Silbernagel & Company was operated on IT. S. highway 65 at or near the scene of the alleged collision at any time on Monday, June 26, 1939, the date of the collision, except a beer truck, and that all Silbernagel & Company’s trucks were in their garage by 5 p. m. on that date, and left there for the night and locked up, although it was further in evidence that all the drivers had keys to the garage.
Sylvester Brown, who appellant contends was the driver of the truck that struck him, testified that he did not work for Silbernagel & Company on Monday, June 26, 1939, and did not drive one of their trucks at any time on that date. His testimony was corroborated by other witnesses, and the payroll record showed he was not paid anything for that day, but worked the remainder of the week, and showed the number of hours he worked each day. Brown testified that not only did he not drive the truck involved in the collision with appellant, but that he was not present, knew nothing about the collision, ' and further that he did not have a conversation with Stewart on that date.
Evidence was also given that- appellant was not intoxicated when he arrived at Jenny shortly after the collision. A young woman, a waitress in a cafe at Lake Village, testified that appellant drank two bottles of beer around noon in the cafe. She was with him most of the afternoon, and when she last saw him, about 6:30 p. m., he was leaving in his truck for home and appeared to be sober. He had drunk nothing while in her company since noon.
A number of witnesses, so'me of them being officers, testified that appellant was intoxicated in Lake Village and Eudora on the afternoon preceding the collision, the time of his intoxication being placed by some as late in the afternoon. Calmes Merritt, former sheriff and collector of Chicot county for 22 years, testified that he saw appellant at Lake Village between 6 and 7 p. m. on this date, and that he was “pretty drunk.” Appellant testified that the collision occurred about 8 p. m.
Appellant contends that it was reversible error for the court to submit to the jury the question of contributory negligence, since appellees contended that neither Silbernagel & Company’s truck nor Sylvester Brown was involved in this collision, and that in view of this contention a plea of contributory negligence was inconsistent. He further urges that no one testified that he was intoxicated at the time the collision occurred; that there was no evidence of contributory negligence which warranted the submission of this question to the’ jury, and that the court erred in admitting evidence of the intoxication of appellant, and in instructing the jury that if they found from the evidence that appellant at the time of the collision was driving his truck upon the highway in an intoxicated condition they could consider that as a circumstance in determining whether appellant was guilty of contributory negligence.
While it is true no one testified that appellant was intoxicated at the exact time the collision occurred, there was-ample testimony to support a finding that he was, intoxicated a short time before the collision. The former sheriff of Chicot county and others testified they saw him in an intoxicated condition shortly before dark on the date of the collision. According to the testimony, the period intervening between the time the last witnesses saw appellant and the time of the collision was short, and we do not think the court erred in submitting the question of intoxication to the jury for their consideration in connection with other facts in evidence, in determining whether appellant was guilty of contributory negligence.
The court did not tell the jury that if they found that appellant was intoxicated at the time of the collision he would be guilty of contributory negligence, nor that it was evidence of contributory negligence, but instructed them that if they found from a preponderance of the evidence that appellant was driving his truck while under the influence of intoxicating 'liquors and such intoxication, if any, caused or contributed to appellant’s injury, he could not recover.
This was a correct declaration of law. This court has held that the fact that a person was intoxicated at the time he was injured does not of itself show such contributory negligence as will defeat his recovery for such injury, but it is a circumstance which may be considered in determining whether or not Ms intoxication contributed to his injury. American Bauxite Co. v. Dunn, 120 Ark. 1, 178 S. W. 934, Ann. Cas. 1917C, 625.
It appears that Sylvester Brown was never served with summons, nor was an answer filed for him, although he appeared and testified. Appellant now contends that, although Brown was named as a defendant in the complaint, it was reversible error for the court to instruct the jury regarding his liability. Brown was treated by all parties throughout the trial as a party defendant. Instructions were offered concerning him without objection from either party on this ground, and appellant cannot now complain of this alleged error.
Finding no reversible error, the judgment is affirmed. | [
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Griffin Smith, C. J.
The question is whether $11,-979.74 paid by appellant January 28, 1942, under compulsion of Act 391 of 1941 shall be treated by the commissioner of labor as contributions exacted for the fourth quarter of 1941; or, expressed differently, What did the general assembly mean when in section seven of the Act it reduced to one percent the amount an employer should contribute if for all years through 1941 total payments to the compensation fund, after benefits had been paid, equaled or exceeded ten per cent of the employer’s annual pay-roll?
Appellant’s five-year pay-roll was $8,009,068.91, the average being $1,601,813.78. Through 1939, 1940, and 1941, the pay-roll was $4,917,513.41, averaging $1,G39,-171.14.
Contributions were $203,256.45, against which benefits of $38,492.54 were clwged. Net contributions, therefore, were $164,763.91.
Annual pay-roll is defined as the total of wages payable by an employer, regardless of tbe time of payment, for employment during a calendar year. “ Average annual pay-roll” is the mean of an employer’s labor pay ments for the three or five preceding calendar years, “whichever average is highest.”
■Section seven makes contributions payable “for each calendar year.” The commissioner is directed to prescribe rules regulating payment of contributions where details are not covered by the Act. The statute makes a levy of one and one-eighth percent of pay-rolls for 1937, and “with respect to employment after December 31, 1937, 2.7 percent” shall be paid.
“Future rates” are embraced within a provision which requires the commissioner to maintain in the unemployment compensation division of the department of labor a separate account for each employer. To this account must be credited “all the contributions paid on his own behalf for each calendar year.” Benefits payable to an eligible person are charged against the employer’s account “in his base period.” There is this mandate;
“The commissioner shall, for the twelve months beginning April 1, 1942, and for each twelve-month period thereafter, classify employers in accordance with their actual experience in the payment of contributions on their own behalf and with respect to benefits charged against their accounts, with a view to fixing such contribution rates as will reflect such experience. . .
A limitation is that no employer’s rate shall be less than 2.7% unless there shall have been three years throughout which an employe could have received benefits, if eligible.
The status justifying a reduction in contributions is expressed in this language;
“Each employer’s rate for the twelve months commencing April 1 of any twelve-month period shall be determined on the basis of his record up to the end of the previous calendar year. If, at the end of such calendar year, the total of all his contributions paid on his own behalf and credited to his account for all previous years exceeds the total benefits charged to his account for all such years, his contribution rate shall be (a) two percent, if such excess equals or exceeds seven and one-half but is less than ten percent of his average annual pay roll; (b) one percent, if such excess equals or exceeds ten percent of Ms average annual pay-roll.”
Appellant’s net contributions of $164,763.91 for 1939, 1940, and tlirongb 1941 were ten and five one-hnndredths percent of the three-year average pay-roll, which, as heretofore stated, was $1,639,171.14. Benefits for 1941 were included in the total of $38,492.54.
But, says appellee, in order for the excess of contributions over benefits to be ten percent of the three-year average pay-roll, it was necessary to include appellant’s payment of $11,579.74 covering the last quarter of 1941, and due December 31; hence, delay having occurred, and the remittance not having been received until January 28, the two percent rate must apply.
This construction is out of harmony with the Act’s design to encourage employers who meet all requirements by conducting business in a way to promote social security. It inevitably follows that when an employer’s pay-roll account as reflected on the commissioner’s books shows a minimum of benefits and a consistently increasing credit balance, the plan to prevent unemployment has been facilitated and there is harmony with the direction that beginning with April 1, 1942, employers shall be classified “in accordance with . . . actual experience in the payment of contributions.”
This construction is harmonious with the definition that “annual pay-roll” contemplates the total of wages payable (“regardless of the time of payment”) for employment during a calendar year. It conforms to the Act’s provision affecting prior payments, that “No employer’s rate for the period of twelve months commencing April 1 of any twelve-month period shall be less than 2.7 per cent, unless the total assets of the fund, excluding contributions not yet paid at the end of the previous calendar year, exceed the total benefits paid from the fund within the last preceding calendar year. ’ ’
The commissioner, during the past five years, has supplied employers with a “ Statement of Contribution Account.” Such statement embraced contributions for the calendar year it covered, although actual payment was not made until January 31- of the succeeding year. The statement sent appellant covering 1941 included contributions chargeable against fourth quarter pay-rolls ■ for 1941.
Act 391 requires the commissioner, not later than the last day of February of each year, to supply the governor with a report covering administration ‘ ‘ during the preceding calendar year.” It is requisite that a balance sheet be appended. Conforming to the law’s requirement, the commissioner transmitted his report to the governor January 31,1942. The “trial balance” for the state as a whole shows contributions of $15,998,-075.21. Other assets brought the total to $16,650,325.69. With the report was the following:
“This statement was prepared as of January 31, 1942, in order that contributions for the fourth quarter of 1941 could be included.” Appellant’s remittance of $11,979.74 had been received, and was treated as a part of the fund for determining an employer’s contribution and benefit experiences.
For the quarter beginning April 1, 1942, appellant’s remittance to the commissioner was $4,660.29, based upon one percent of its three-months pay-roll. A deficiency assessment of $4,660.29' was made, on the theory that appellant’s January 28 payment could not be considered in determining whether the unimpaired balance was equal to or in excess of ten percent of requisite pay-roll averages.
While the commissioner is to be commended for requiring judicial determination of a matter he regarded as questionable, it is our view appellant brought itself within the law’s provision for a lower rate, and that the deficiency-assessment cannot be sustained.
It follows that the court erred in sustaining appellee ’s demurrer. The judgment is reversed and the' cause is remanded with directions to overrule the demurrer and to enter an order quashing the deficiency assessment. | [
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Smith, J.
Appellant was found guilty of involuntary manslaughter and given a sentence of one year in the penitentiary, from which judgment is this appeal.
Appellant was jointly indicted with three other persons who were occupants of a car which he was driving at the time the homicide was committed; but at the conclusion of the introduction of the testimony the case was dismissed as to all the defendants except appellant.
The indictment alleged that the occupants of the car “did unlawfully, feloniously, wilfully, culpably and negligently; without due caution, care and circumspection, drive his car into and over one Jewel Faulkenberry, . . .,” thereby killing the said Faulkenberry.
The indictment sufficiently charged a violation of § 2982, Pope’s'Digest, which is our involuntary man slaughter statute. The trial judge was under the apprehension that a violation of § 48 of act 300 of the Acts of 3937, p. 1103, now appearing as § 6706, Pope’s Digest, was charged; but withdrew those instructions and submitted the case under § 2982, Pope’s Digest.
This action of the court is assigned as error, it being insisted that § 6706, Pope’s Digest, supersedes § 2982, Pope’s Digest, in so far as it relates to homicides in driving automobiles; and it is further insisted that the testimony is insufficient to sustain a conviction under § 2982, Pope’s Digest.
Considering first the last stated contention, it may be said that none of the defendants testified, and no other person saw the automobile strike Faulkenberry, a child twelve years old, and the state’s case depended upon proof of statements made by appellant subsequent to the collision.
A deputy sheriff testified that it was not known who had killed the child, but that he arrested appellant as a suspect. Appellant first stated that his wife was driving the car, but after he had been placed in jail, he admitted that he, and not his wife, was driving the car when the collision occurred, and he detailed the circumstances of the accident as follows. He was driving on highway 40 from Osceola, and he met a car the lights of which -were on, and he could not see very well, and that the boy darted out and he could not tell whether the boy was in front or behind the car that was approaching from the opposite direction, and that he hit the boy with his car. He slowed down and started to stop, when someone in the car told him he was in a white settlement and that he had better drive on or they would g*et hurt; that he did not report the accident because he had never heard any more about it and figured the boy was not hurt very badly. Appellant is a colored man and the child killed was a white boy,. but the accident did not occur in a village or “settlement,” as there was only one house in that neighborhood. Appellant accompanied the deputy sheriff to the scene of the killing, and other officers found evidence of the collision at that point. Blood stains on the highway were found twenty feet from the place where the body was found, and the clothes worn by the boy were exhibited to the jury. The child’s head was crushed.
We think it fairly inferable that the occupants of the ear were drinking, if not intoxicated, and that fact would be clearly shown if we might consider the proof of statements made by a woman who was in the car, but after a verdict had been directed in her favor the testimony as to her admission was excluded from the jury. However, we think the testimony supports the finding that appellant was not driving the ear with “due caution and circumspection,” as that term will be hereinafter defined.
As has been said, none of the occupants of the car testified, but we think it fairly inferable from appellant’s own admissions and the circumstances of the case that he was driving without due caution and circumspection, and in all probability at an unlawful speed, as is evidenced by the distance the car threw the body.
Act 300 of the Acts of 1937 is a comprehensive act, consisting of 165 sections, and is entitled “An act regulating traffic on highways and defining certain crimes in the use and operation of vehicles. . . .” Article IY of this act is entitled “Accidents,” and embraces §§ 36 to 47, both inclusive, of the act, and it is certain that appellant did not comply with the requirements of any of these sections. He made no inquiry as to the extent of the injury he had inflicted; and he made no report thereof; and he offered no aid to the injured party as the law required him to do. These omissions of his statutory duty, aside from his humane duty, all strongly support the inference that appellant struck the boy while driving without due caution and circumspection.
We conclude, therefore, that the testimony is sufficient to support the conviction. Madding v. State, 118 Ark. 506, 177 S. W. 410; Nichols v. State, 187 Ark. 999, 63 S. W. 2d 655.
Appellant insists, as has been said, that § 2982, Pope’s Digest, in so far as it relates to a death inflicted ■by tbe driver of an automobile, has been superseded by § 48 of act 300 of the Acts of 1937 (§ 6706, Pope’s Digest).
Section 2982, Pope’s Digest, reads as follows: “Involuntary manslaughter. If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter.”
Section 48 of act 300 of 1937 (§ 6706, Pope’s Digest) reads as follows: “Negligent homicide, (a) When the death of any person ensues within 1 year as a proximate result of injury received by the driving of any vehicle in reckless, wilful or wanton disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide, (b) Any person convicted of negligent homicide under the provisions of this act shall be punished by imprisonment for not more than 1 year or by fine of not less than $100 nor more than $1,000, or by both such fine and imprisonment, (c) The commissioner shall revoke the operator’s or chauffeur’s license of any person convicted of negligent homicide under the provisions of this act.”
After defining voluntary manslaughter, the crime of involuntary manslaughter is defined in § 192 of the Penal Code of California as follows: “2. Involuntary —in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The similarity of this statute to § 2982, Pope’s Digest, is apparent.
At the 1935 session of the General Assembly of California, an act was passed which appears as chapter 27 of the acts of that session. This is an act to establish a “Vehicle 'Code . . .,” and our act of 1937, supra, may have been patterned after it, as many of the provisions of that act are identical with our act of 1937. Under the title, “Negligeiit Homicide,” a section of the California act reads as follows: ‘ ‘ 500. Negligent Homicide. When the death of any person ensues within one year as the proximate result of injuries oansecl by the driving of any vehicle in a negligent manner or in the commission of a lawful act not amounting to felony, the person so operating such vehicle shall be guilty of negligent homicide, a felony, and upon conviction thereof shall be punished by imprisonment in the county jail for not more than one year or in the state prison for not more than three years.”
In the recent case of People v. Crow, (Calif. App.) 120 P. 2d 686, it was held that these statutes of the state of California were not in conflict, and that the offenses were so separate that a verdict of acquittal of negligent homicide was not inconsistent with a subsequent verdict of conviction of manslaughter arising out of the same automobile accident, for the reason that the statute defining “Negligent Homicide” defines a crime different from involuntary manslaughter or any other crime defined in the Penal Code.
What effect a conviction or an acquittal in this state would have under either § 2982 or § 6706, Pope’s Digest, as a bar to a prosecution under the other section is a question not requiring decision here. But we are convinced, as was the California court, that the sections are not in such conflict that the later (the Vehicle Act) repealed the former (the Penal Code).
If our act of 1937 repeals § 2982, Pope’s Digest, where one had been killed by an automobile, it also repealed any other law that would apply to a homicide committed in driving an automobile; and we think the General Assembly had no such intention. It is easily conceivable that the driver of an automobile might, with deliberation and premeditation and with malice aforethought, drive over a person with the intention of killing him, in which event he would be guilty, not of involuntary manslaughter, but of murder. Of course, to make such an act murder, proof of the specific intent to kill would be required, and no degree of negligence, however gross, would suffice to make the unlawful killing murder; but if such proof were made of the specific intent to kill, it could not be said that the grade of such a homicide had been reduced to a grade less than murder by the act of 1937.
Now, § 2982, Pope’s Digest, is a criminal statute, and the phrase, “without due caution and circumspection, ’ ’ must be construed in that light. It means not ordinary negligence or the lack of ordinary care, which would constitute civil liability for an injury; it means criminal negligence. Many cases define the difference between ordinary negligence, upon which civil liability might be predicated, and the criminal negligence required to constitute a crime.
It is pointed out in the chapter on Automobiles, 5 Am. Jur., p. 927, where, at § 790, it is said: “Degree of Negligence Necessary. In cases dealing with homicides, resulting from negligence in operating automobiles, the decisions of the courts have stated in different terms the kind of negligence required to constitute a crime. In some of them it is said to be negligence that is ‘culpable and gross’; in others, that it must be such as to show a reckless disregard of the safety of others, etc.; but all of the authorities are agreed, in the absence of’Statutory regulations denouncing certain acts as criminal, that in order to hold one a criminal there must be a higher degree of negligence than is required to establish negligent default on a mere civil issue, and that, in order to sustain a conviction of criminal homicide attributable to a negligent omission of duty rvhen engaged in a larrful act, it must be shown that a homicide Avas not improbable under all the facts existing at the time, and Avhich should reasonably have had an influence and effect on the conduct of the person charged. Carelessness in driving an automobile at a speed that is unreasonable, or likely to endanger life or limb, is not necessarily criminal carelessness within the meaning of a statute making one guilty of manslaughter who causes the death of another by culpable negligence or criminal carelessness.”
In defining the phrase, “Criminal Negligence,” vol. 10, Words and Phrases, p. 521, there appears the following quotation from the case of Croker v. State, 197 S. E. 92, 57 Ga. App. 895: “‘'Criminal negligence,’ within involuntary manslaughter, statutes, is something more than ordinary negligence, which would authorize recovery in a civil action, but is the reckless disregard of consequences or a needless indifference to the rights and safety of others with a reasonable foresight that injury would probably result. Code 1933, §§ 26-1006, 26-1009, 26-1010.”
In the case of Bell v. Commonwealth, 107 Va. 597, 195 S. E. 675, it was said by the Supreme Court of Appeals of Virginia that “The courts and the authorities agree, in the absence of statutory regulations, that a higher degree of negligence is required to establish criminal negligence than to establish liability in a civil action. The negligence required in a criminal proceeding must be more than a lack of ordinary care and precaution. It must be something more than mere inadvertence or misadventure. It is a recklessness or indifference incompatible with a proper regard for human life. It must be shown that a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender. 99 A. L. R. 829; 5 Am. Jur. 927; Cain v. State, 55 Ga. App. 376, 190 S. E. 371.”
We think the state, had it so elected, might have predicated this prosecution upon a violation of the portion of act 300 of 1937, appearing as § 6706, Pope’s Digest, above quoted; but, even so, the right to' prosecute under § 2982, Pope’s Digest, also existed. The testimony here shows more than a lack of care which would constitute ordinary or simple negligence, but establishes criminal negligence, in that, although driving a car was a lawful act, yet it was not driven with due caution and circumspection, and the judgment of the court below must, therefore, be affirmed. It is so ordered. | [
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George Rose Smith, Justice.
This began as a taxpayer’s suit brought in the Pulaski Circuit Court by Camille Lamar to enjoin the Pulaski County Board of Election Commissioners from conducting an election on March 12, 1968, for the selection of two directors of the Little Rock school board. When the parties realized that the proposed election of school directors involved in itself no avoidable expenditure of tax money, because an election had to be held anyway to submit another matter to the people, the plaintiff, as a patron of the district, amended her complaint to seek a declaratory judgment with respect to the validity of the proposed election of school directors and, if appropriate, an injunction to prevent the submission of that issue to the voters.
On the merits the question for decision was whether two incumbent directors who had been elected to three-year terms in September, 1965, were required to run for re-election in March of this year as a result of the passage of Act 171 of 1967, which changed the date iof the annual school election from the last Tuesday in September to the second Tuesday in March. Ark. Stat. Ann. § 80-301 (Supp. 1967).
The two incumbents and their opponents, the appellants, intervened in the case. The trial court concluded that the incumbents are not required to stand for reelection this month. Upon that finding he enjoined the commissioners from going ahead with the election of school directors. This appeal was lodged, argued, and submitted to this court within a period of three days after the circuit court’s decision. At the outset we issued a temporary stay of the trial court’s order, to provide for the possibility that the proposed election might be found to be lawful. A day later we handed down a per curiam order reversing the circuit court’s judgment “on the ground that the courts are without authority to en join the bolding of a regular election, regularly called.” We stated that a formal opinion would follow. This is that opinion.
We have not decided this exact point in any earlier case. An analogous situation, also involving the assertion of excessive power over the election process, was presented in Irby v. Barrett, 204 Ark. 682, 163 S.W. 2d 512 (1942). There the chairman and secretary of the Democratic State Committee had refused to allow Irby to qualify as a candidate in the Democratic primary, because those party officials had decided that even if elected Irby would not be eligible to hold the office he soug’ht. After concluding that the statutes did not vest in the party chairman and secretary the authority they attempted to exercise, we went on, in language appropriate to the case at bar, to explain why such sweeping power ought not to be conferred upon two persons:
“If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the chairman and secretary of the committee? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the state and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, he have a holding by the court that the name should not have been omitted.”
The situation now before us embraces an even greater threat to democratic government than that considered in the Irby case. If a court, trial or appellate, can at the eleventh hour prohibit a regular election, regularly called, it is at once apparent that the control of judges over the election process goes far beyond reasonable limits. In many states the courts themselves have been quick to recognize the absolute necessity of severe restrictions upon their own discretionary authority. We wholly agree with those decisions, as epitomized in the following quotations:
“The jurisdiction of any court, or of the whole judicial department of the government, to enjoin the expression of the popular will at a time and in the manner provided by statute, may well be doubted. If the election, when held, was not according to statute, or if the statute was enacted without any constitutional authority, the courts might very well hold the election invalid. But that is quite another thing from enjoining the people from peaceably assembling and casting their votes for or against any proposition submitted to them under the color of law.” Lamb v. The B., C. R. & M. R.R., 39 Iowa 333 (1874).
“But the attempt to check the free expression of opinion — to forbid the peaceable assemblage of the people — to obstruct the freedom of elections — if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizen. If the courts can dictate to the officers of the people that they shall not hold an election from fear of some imaginary wrong, then people and officers are entirely subservient to the courts, and the consequences are too fearful to contemplate.
“The principle which would authorize the mighty mandate of a court of chancery, in this case, would justify it in every election to be held by the people, and thus the whole administration of the government might be obstructed and all power and authority placed at the footstool of the judge.” Walton v. Beveling, 61 Ill. 201 (1871).
“The mere fact that the present suit was brought as a suit under the Uniform Declaratory Judgments Act . . . does not alter the situation, as it was not the purpose of such Act to extend the jurisdiction of the courts over matters which are purely political. The rule still obtains in this State that ‘an election is essentially the exercise of political power, and, during its progress, is not subject to judicial control. This comprehends the whole election, including every step and proceeding necessary to its completion.’” Killam v. Webb County, Tex. Civ. App., 270 S. W. 2d 628 (1954).
We do not imply that a declaratory-judgment action or a taxpayer’s suit might not in some instances be used to settle questions involved in an election to be held in the future. It is essential, however, that the proceeding be brought in sufficient time to permit the issues to be fully considered, on their merits, with adequate time for both sides to prepare and present their contentions. It may be remembered that in 1952 we dismissed an attack upon a referendum petition on the ground that the time remaining before the election was too short for the completion of testimony upon the issue of fraud. Ellis v. Hall, 221 Ark. 25, 251 S. W. 2d 809 (1952).
When the present case was presented to us, four days before the scheduled election, our only sound course was to let the election be held, leaving the parties to their post-election remedies, which are unquestionably adequate. The attack upon the validity of the election came so late that there was no possibility whatever of our giving sufficient study to the merits of the parties’ substantive contentions. Indeed, counsel for the appellants frankly admitted in oral argument that he was unprepared, owing to the extreme haste with which the case had been processed. Hence our per curiam order, reversing the trial court’s decision, was expressly without prejudice to further proceedings in the matter.
The per curiam order of March 8,1968, is confirmed. | [
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Conley Byrd, Justice.
John A. Rauch appeals from a judgment in favor of appellee First National Bank in Little Rock upon a guaranty signed by Rauch to accommodate John L. Copeland, Jr. For reversal he contends that his signature on the guaranty was obtained by fraudulent misrepresentation on the part of Finley Vinson, officer of the First National Bank; that the note or other instrument executed by John L. Copeland, Jr., was void under Ark. Stat. Ann. § 34-1604 (Repl. 1962,) having been executed for payment of a gambling obligation ; and that, since the bank waived its rights as to the guaranty of Barron Lange upon the same indebtedness, it thereby waived its rights as to appellant Rauch under Ark. Stat. Ann. § 85-3-606 (Add. 1961).
The record shows that John L. Copeland, Jr., when the guaranty agreement was executed, was manager of tlie Riverdale 'Country Club and bad gotten into financial troubles because of some gambling losses. He approached Mr. Finley Vinson of the First National Bank relative to an $11,000 loan, which the bank refused to make upon the security offered. Subsequently Mr. Copeland informed Mr. Vinson that Rauch, William E. Darby, William S. Miller, Jr., and Barron Lange would sign, his note. Pursuant to a conversation between Vinson and each of the guarantors a separate guaranty instrument was drawn for each party. Rauch’s guaranty agreement covered $4,250; Darby’s $4,250; Miller’s $1,-500; and Lange’s $1,000. Upon execution of the agreements a total of $11,000 was disbursed, and the record indicates that some of the money was used to pay off gambling debts that Copeland had incurred. Barron Lange died while Copeland’s payments were current and the time for filing claims against his estate expired before Copeland defaulted.
Rauch bases his claim of fraudulent misrepresentation upon the allegation that Vinson assured him the bank had sufficient collateral to cover the $11,000 note. Needless to say, Rauch’s testimony was controverted by Vinson’s, and under the circumstances we must hold that there was substantial testimony to support the verdict of the trial court sitting as a jury.
We find no merit in Rauch’s contention that Copeland’s obligation was void under § 34-1604, supra. A close reading of that statute shows that it voids obligations only where the money is “lent to be bet.at any gaming or gambling device. ’ ’ There is no testimony here showing that the money was lent for purposes of gambling.
The bank’s release or failure to claim against Lange’s estate had no effect upon Rauch’s guaranty because he specifically agreed that he would be liable notwithstanding a release of any other guarantor. Section 85-3-606, supra, recognizes that the release of one guar antor does not release another when the release is made with the consent of the latter. We know of no reason why the consent given by Ranch at the execution of the agreement should not be binding.
Appellee filed in this court a claim for additional attorney’s fee. We grant an attorney’s fee which, when added to that allowed by the trial court, does not exceed 10 per cent of the principal plus accrued interest.
Affirmed.
Ward, J., not participating. | [
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Conley Byrd, Justice.
Appellant Oarl W. Widmer appeals from a decree sustaining a plea of res judicata to his action for specific performance. His grounds for reversal are that the trial court erred in not holding all his requested admissions of fact as being admitted, in not granting his motion for summary judgment, and in sustaining the plea of res judicata. 'Since a plea of res judicata is in actuality a plea of confession and avoidance, we do not reach the first two points because we hold that the trial court was correct in entering a summary judgment upon the plea of res judicata.
Appellant’s complaint is based upon a sales agreement with appellees Roy G. Wood and Helen L. Wood, under date of October 19, 1961, for the sale of lands located in Sequoyah County, Oklahoma. After appellant had filed requests for admissions of fact and motions for summary judgment, appellees filed a motion for summary judgment specifically pleading as a defense a judgment entered in the Sebastian Circuit Court on May 12, 1967, between the same parties. Attached to appel-lees’ motion for summary judgment was the circuit court judgment which contained detailed findings of fact and a detailed statement of the issues between the parties. The circuit court judgment was the result of a suit brought by Roy G. Wood against Carl W. Widmer to recover the abstract to the real estate involved. It showed that as a defense to the recovery of the abstract Carl W. Widmer pleaded the same breach of the sales agreement upon which he here relies. The trial court there specifically found the issues relative to the sales agreement in favor of Roy G. Wood. The motion for summary judgment was filed on July 18, 1967, and the record shows no response by appellant Widmer to this motion. The order granting the summary judgment on the plea of res judicata was entered September 1,1967, more than 30 days after the filing of the motion for summary judgment.
“In Mid-South Ins. Co. v. lsi Nat. Bk., Ft. Smith, 241 Ark. 935, 410 S. W. 2d 873 (1967), we held that the motion for summary judgment requires the opposition to remove the shielding cloak of formal allegations and to demonstrate a genuine issue as to a material fact. Under the circumstances we think the plea of res judi-cata was well taken and that the trial court was correct in awarding the summary judgment. Nor can we find anything in Southern Farmers Ass’n v. Wyatt, 234 Ark. 649, 353 S. W. 2d 531 (1962), that would require us to arrive at a different conclusion.
Affirmed. | [
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Grieein Smith, C. J.
Eape was charged by information. The jury convicted and assessed the death penalty. Pope’s Digest, § 3405. The appeal questions sufficiency of the evidence and alleges error in the admission of defendant’s confession.
The attorney general, without discussing the matters assigned as errors, rests upon the proposition that the bill of. exceptions was not filed within the time allowed. We think the point is well taken.
The verdict was returned February 4, 1942. Defendant’s motion for a new trial was filed the following day, and overruled February 13. Appeal was denied. Fifty-eight days were allowed for bill of exceptions. It was approved May 6 and filed with the circuit clerk May 7. Excluding February 13, and allowing all of the fifty-eighth day, Monday, April 13, and not May 7, was the last day. .
Section 1 of Act 158, approved May 8, 1899, authorizes circuit courts to grant appeals from convictions for offenses other than capital crimes. Section 2 is: “If the court in which conviction is had shall refuse to grant an appeal to the supreme court, such an appeal may be granted by any judge or judges of the supreme court, in manner as now provided by law.” Pope’s Digest, § 4240. A headnote prepared by the editor who compiled the Acts reads: “Circuit court to grant appeals for all offenses except capital.”
In Bromley v. State, 97 Ark. 116, 133 S. W. 813, it was held that failure of the defendant to file a transcript in the supreme court within sixty days was fatal to the appeal, no application having been made to this court to compel the circuit clerk to expedite the work. In commenting on the procedure, Chief Justice McCulloch said it had been repeatedly held that the statute limited .jurisdiction, and “even in the event of hinderance by reason of unavoidable casualty the court cannot take cognizance of an appeal unless it is perfected within sixty days.” The reference was to a misdemeanor. It was also said: “Since then the statute has been amended so as to limit to sixty days after judgment the time for suing out a writ of error. Act of May 6, 1909. [Pope’s Digest, § 4236.] It folloAvs that the transcript has not been filed here in time to give this court jurisdiction.”
But, it may be argued, § 4249 of Pope’s Digest confers upon a judge of the supreme court poAver “to extend the time for filing the record.”'
There is the further provision (Pope’s Digest, § 4250) that “The court may act upon and decide a case in Avhich the appeal Avas not prayed or the record Avas not filed in the time prescribed, Avhen a good reason for the omission is shown by affidavit. ’ ’
These sections are from title 9, chapter 1, § 327, of the Criminal Code. Their effect Avas modified by Act 158 of 1899, Avhich, as heretofore shoAvn, permits circuit courts to allow appeals “for all offenses except capital.”
The term “capital offense” Avas defined by Chief Justice McCulloch in Outler v. State, 154 Ark. 598, 243 S. W. 851. The first headnote to the Arkansas Reports is: “CraAvford & Moses’ Digest, § 3404 [hoav § 4227 of Pope’s Digest], requiring appeals to be alloAved by a judge of the supreme court in convictions in capital cases, applies only Avhere accused is sentenced to be electrocuted, and in other cases appeal may be granted by the trial court under CraAvford & Moses’ Digest, § 3396 [iioav § 4239 of Pope’s Digest”].
In Adams v. State, 203 Ark. 1057, 160 S. W. 2d 42 it Avas held that AAdiile felony appeals must be lodged Avitliin sixty days from judgment “unless additional time is gi\Ten by a justice of the supreme court,” time for filing the bill of exceptions cannot be enlarged by this court. The statement that time may be extended appears' to be in conflict with the Bromley case. If, as Chief Justice McCulloch said, jurisdiction can only be conferred by filing the transcript within sixty days, the right to give additional time is non-existent because when the sixty-day period has expired there is no method by which jurisdiction can be acquired; yet, for many years, the practice has been for individual judges to grant extensions in eases where it was made to appear that the appellant was without fault in allowing the statutory time to lapse.
In the case at bar jurisdiction was acquired by this court when the judgment was filed April 14th, the sixtieth day after judgment. Certiorari was issued by the clerk directing that the record be brought up. But there is no record upon which error can be predicated. The record proper, according to Stevenson’s Supreme Court Procedure, includes the pleadings, exhibits, statement showing service of summons, any material order of the court preceding judgment, the judgment itself, motion for a new trial, order overruling such motion, and the order granting appeal. Morrison v. St. Louis-San Francisco Railway Co., 87 Ark. 424, 112 S. W. 975.
Perhaps the only ground upon which the Bromley case and the Adams case can be harmonized is that which distinguishes the court’s right to grant additional time when the motion for relief (accompanied by the judgment and such other parts of the record as appellant may care to present) is filed within sixty days, as contrasted with a similar request made after the sixty-day period has expired. Certainly, when the record is filed within sixty days, the supreme court has jurisdiction; and though it may be questionable whether a judge has power to extend time, we prefer, when there is uncertainty, to resolve the doubt in favor of a liberal construction, and to adhere to the practice recognized during the past few years.
It must be remembered, however, that no power reposes in this court to increase the time allotted for filing a bill of exceptions with the circuit court, and unless it is so filed within sixty days — that is, not later than the sixtieth day — only the record can be considered on appeal.
It is always unsatisfactory to dispose of an appeal on technical grounds, and this is particularly true in criminal cases when the penalty is severe. But if this pro ceeding should be disposed on its merits, rather than on the record alone, it would have to be affirmed.
The morning of January 21, Mrs. Annie Benson, who lived at McG-ehee with her sister, Mrs. Inez Humphrey, was awakened. In the bed with Mrs. Benson was a young nephew. Mrs. Benson, who first thought her brother was attempting to awaken her, turned and looked into the face of a Negro, who demanded money. The intruder was informed there was none. Mrs. Benson testified he was armed with a small pistol, and she was “paralyzed with fear.” The Negro, later identified as appellant, directed her to go into an adjoining room, where his lust was satiated.
. Appellant admitted he was an itinerant burglar and could not remember how many houses he had entered or attempted to enter the night of January 20-21. After being arrested appellant was brought to Little Bock and questioned by Sergeant Templeton of the Arkansas state police; Prosecuting Attorney Henry Smith, of Pine Bluff, and Sheriff Howard Clayton, of Desha county. When asked how he awakened Mrs. Benson, appellant replied: —“I shook her with my hand. I had a.stick so she would think it was a pistol. It didn’t take long to get this woman up. I asked her if she had any money she could give me, and she said she did not. Other testimony is printed in the footnoted
Mrs. Benson’s explanation of the transaction, in part, is shown below.
The confession of appellant and the testimony of Mrs. Benson — some of which is not copied — were sufficient to establish the crime of rape. A holding in Threet v. State, 110 Ark. 152, 161 S. W. 139, was that if the female who charged she ivas raped failed through fear to resist or to make outcry, the assault ivas against her will. To the same effect is Jackson v. State, 92 Ark. 71, 122 S. W. 101. To this declaration of the law, however, there ivas added the statement that if the defendant testifies sexual intercourse was by consent, it would be error to refuse to instruct the jury that if it found the female failed to complain immediately, or to make outcry, such facts should be considered in determining Avhether there Avas consent.
There Avas no testimony to support argument in appellant’s brief that his confession Avas Avrongfully obtained. The defendant did not take the Avitness stand to deny the confession.
There is the suggestion that the judgment be modified by substitution of life imprisonment for electrocution. This we could not do even if the bill of exceptions had been filed in time, although in Davis v. State, 155 Ark. 245, 244 S. W. 750, the holding Avas otherwise. The applicable statute is expressed in fourteen Avords: “Any person convicted of the crime of rape shall suffer the .punishment of death.” Pope’s Bigest, § 3405.
A discussion of the law’s evolution is found in Dennis, a Slave, v. The State, 5 Ark. 230, at page 233:
“By an act of the revised statutes, approved 16th February, A. D. 1838, and which was afterwards put into operation by the proclamation of the governor, it was declared, ‘that any person convicted of the crime of rape, should suffer the punishment of death.’ The act, in respect to the punishment of the offense, made no distinction between the case of a white-man and slave., A subsequent act of the legislature, passed 17th December, 1838, made distinction as to the punishment. It that, whenever a. white man should be convicted of the crime of rape, he should suffer punishment for the offense, by confinement for a term of years in the .jail and penitentiary house of the state. The act excepts the case of a slave out of this provision, and affirms that, whenever a slave is convicted of the crime of rape, he shall suffer the punishment of death. The first section of the act of the last legislature, approved 14th December, 1842, declares, ‘that all persons convicted of the crime of rape, shall suffer the punishment of death.’ The second repeals all laws inconsistent with the provisions of the first section. The inquiry then is, what laws were inconsistent with this provision. The answer is at hand, and cannot be mistaken. So much of the act of December, 1838, as changed the punishment of rape, when committed by a white man, from death to confinement in the jail and penitentiary. This is the only law inconsistent with the provisions of the act of 14th of December, 1842; and this the second section of the last act expressly repeals. This last act, so far from repealing the old laAv or first act in regard to the penalty, reenacts its present provisions, and declares in all cases the punishment for the crime of rape shall be death; Avhicli had always been the case upon conviction of a slave, by all the statutes passed on that subject. The motion on this point, as Avell as on the other taken to the indictment, Avas properly overruled. ’ ’
Act 187, approved March 20, 1915, gives the jury a right in all cases Avliere the punishment at that time was death, to render a verdict of life imprisonment in the state penitentiary at hard labor. Pope’s Digest, § 4042.
In Webb v. State, 154 Ark. 67, 242 S. W. 380, it was held that the Act did not repeal the old statute fixing the penalty at electrocution, “but merely gave the power to the jury to reduce the punishment to life imprisonment, and that a verdict finding the defendant guilty of that crime, without fixing the punishment at imprisonment, called for a judgment for the extreme penalty of electrocution. ’ ’
. The trial court instructed the jury that it might fix the defendant’s punishment at electrocution, or at life 8 ■ aprisonment.
It will be observed that the discretion conferred by Act 187 relates to the jury, and not to the courts.
No errors are shown by the record proper, and the judgment must be affirmed. It is so ordered.
Mr. Justice Mehaffy and Mr. Justice Holt think the judgment should be modified by substituting life imprisonment for electrocution.
Por methods applicable to computation of time in criminal cases, see McNutt v. State, 163 Ark. 122, 259 S. W. 1, where it was held that § 3423 of Crawford & Moses’ Digest (now § 4266 of Pope’s Digest) contemplates that when the last day of the .sixty-day period allowed for appeals falls on Sunday, the transcript may be filed the following day. [But the rule is different in civil cases. Also see Clark v. American Exchange Trust Co., 189 Ark. 717, 74 S. W. 2d 974; Bank of El Paso v. Neal, 181 Ark. 788, 27 S. W. 2d 1024].
Italics supplied.
Unless the sixtieth day should fall on Sunday. If this occurs, a filing on Monday, the sixty-first day, would be permissible.
“While this conversation was going on Mrs. Benson was sitting on the side of the bed, in her nightgown. I told her to let’s go into the next room. I still had the stick I was using as a pistol. I went into the other room because someone [else] was in the bed in this room. We lay down on the bed. I told her to lie down. ... I did what I intended to do. . . . She laid down when I told her to. . . . She told me it wouldn’t do me any good [and] I told her I wouldn’t hurt her. I asked her if she was going to tell anyone about it.”
“It was in the neighborhood of four o’clock, judging by the light. I didn’t look at a watch. It was before daylight. The first thing I knew- — I had my back turned to the side of the bed — I was facing the other side — some one was shaking my shoulder. My brother comes and goes, and I didn’t think anything about it: just laid there a few minutes. I was so sleepy I couldn’t quite get up. [The in- trader] shook my shoulder again. Finally I turned over to see what it was, and I couldn’t believe it! I was so scared when I saw him I was paralyzed. I saw a colored man standing there. He had a gun in his right hand: a small pistol. He asked ior money and I told him I didn’t have any. Then he said, ‘Get up.’ At first I just sat on the side of the bed. Naturally I was nervous and scared to death, and started shaking. He said I was making too much racket, that I would wake the child up. He made me go into the other room. I was so frightened I didn’t know what else to do. . . . He said if I didn’t make a racket he wouldn’t have to shoot me: that he didn’t want to have to shoot anybody. ... I just hardly know what happened. The next thing (when I knew anything at all) I got up. I couldn’t say whether I got down [on-the bed] of my own accord, because I was paralyzed with fear. I thought I was going to get killed. I had an orphan nephew living there and I thought more of his welfare than I did of anything else. ... He said that if I told, he would come back and kill me; that he read the papers and would know whether I reported it or not. . . . He took down his clothes and assaulted me: had intercourse with me.”
See Pleasant v. The State, 13 Ark. 360. | [
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George Rose Smith, Justice.
This is an action brought by the Camden Housing Authority to condemn 6.236 acres of a 73-acre tract owned by the Reeves fam-. ily, in Camden. The jury fixed the value of the property being' taken at $38,000. The Authority’s single point for reversal is the court’s asserted error in allowing the landowners to introduce an unrecorded plat showing the 73-acre tract as a residential subdivision consisting of public streets and blocks divided into lots.
In recent years we have had several cases involving the admissibility of similar plats, some of which depicted subdivisions that existed only on paper. The cases are not out of harmony with one another; the difficulty is that of applying the law to varying fact situations.
We have consistently held that such a lot-and-block plat is not admissible when the subdivision has really not yet come into existence. The reason for the exclusionary rule is that such an exhibit is apt to mislead the jury into valuing the property as consisting of so many lots, without adequately considering necessary development expenses such as the construction of streets and utility lines, which could not be properly explained to the jury without bringing a host of collateral issues into the case. Arkansas State Highway Comm. v. Parks, 240 Ark. 719, 401 S. W. 2d 732 (1966). In several of the cases relied upon by the Housing Authority, the subdivision portrayed by the plat was not beyond the panning stage, so that the admission of the plat was fairly sure to mislead the jury. That point was discussed in detail in Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86 (1958), where it was admitted that the land had not been developed at all as a subdivision. Similar non-exister^t subdivisions were involved in Arkansas Louisiana Gas Co. v. Honrard, 240 Ark. 511, 400 S. W. 2d 488 (1966), and Arkansas Arkansas Louisiana Gas Co. v. Lawrence, 239 Ark. 365, 389 S. W. 2d 431. (1965). Such an exhibit is especially misleading when, as in the Watkins case, it is accompanied by testimony about the value of the fictitious lots.
On the other hand, an unrecorded plat may be admissible when the subdivision is not merely imaginary. In Arkansas State Highway Comm. v. O. & B., 227 Ark. 739, 301 S. W. 2d 5 (1957), the land had, not been dedicated as a subdivision, but it was surrounded by well developed sections of the city of Jacksonville. The testimony proved that its best use was for the development of residential lots. We upheld the admission of a plat showing the land divided into lots and blocks. There the court appropriately cautioned the jury against trying to determine how the land might best be divided into building lots or at what price the lots might be sold. In the case at bar a similar cautionary instruction would have been proper, but the Housing Authority made no clear-cut request for such an admonition to the jury.
The facts in Arkansas State Highway Comm. v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309 (1963), were very much like those now before us. There the subdivision was not shown to have yet been dedicated, but its proprietors had succeeded in bringing in improvements such as a road and gas and water lines. In sustaining the admissibility of two exhibits that showed the tracts subdivided into lots and blocks we used language that seems to have been used as a guide by these appellees:
“It is undisputed that the highest and best use of the property in question is for residential purposes. These exhibits were offered and admitted in evidence only for the limited purpose of showing the highest and best use of the property as being for residential purposes and for the further purpose of showing the improvements existing thereon [gas and water lines and gravel road] some several months before the taking by the appellant. This evidence could not result in conjecture or speculation by the jury as to market value to the prejudice of appellant. Ark. State Highway Comm. v. O. & B. Inc., 227 Ark. 739, 301 S. W. 2d 5.
“Appellant urges that the exhibits are inadmissible as evidence in view of our ruling in Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86. The facts in that case, on this point, are quite different. There testimony was admitted as to the number and value per lot of the property. It is true that witnesses in the case at bar testified they considered the value of other lots in the area; however, there was no testimony as to the value per lot of the subject property. The testimony, as to value, was on a raw acreage, basis of the tract. Thus, we hold that the court was correct in admitting-ap-pellees’ Exhibits A and B under the facts in this case. ’ ’
In the case at bar the 73-acre tract has been owned by the Reeveses for more than fifty years. In 1952 or 1953 Bob Reeves, a graduate engineer, surveyed the land, laid it out in lots and blocks, and built a home on one lot. Later on two more homes were constructed on lots sold to others. The Reeveses, pursuant to a plan to develop the subdivision over a period of years, had paved, curbed, and guttered two streets and had laid about 1,900 feet of water lines, 1,500 feet of sewer mains, and almost 3,000 feet of gas lines before the Housing Authority brought this action. By that time about a third of the property had access to streets and utilities.
The plat that was introduced in evidence showed the improvements we have mentioned, the contours of the land, the streets not yet developed, and the proposed division of the tract into lots and blocks. It also showed how the whole tract was almost cut in two by the Housing Authority’s condemnation of the 6.236 acres now in question. The landowners confined their proof to the value of the tract as a whole, carefully avoiding any reference to the value of individual lots. Thus it will be seen that the facts are so similar to those in the Witkowski case that it would be hard to draw a logically controlling distinction between the two.
The Housing Authority’s principal argument is that the paved streets, houses, and utility lines could have been shown without the inclusion of the lots and blocks. No doubt that statement is true, but it does not follow that the plat in dispute was therefore inadmissible. The same argument could certainly have been made in the O. & B. and Witkowski cases, supra. Here the Beeves subdivision had progressed beyond the planning stage and into the process of actual physical development on the land. The question is, Had that development progressed to such a point that a lot-and-block plat of the area could be shown to the jury without being misleading? When it is borne in mind that every pertinent fact could have been brought out on cross-examination of the landowners’ witnesses and that the court might have been asked to give cautionary instructions like those in the O. & B. case, we are not willing to say that the court committed reversible error in allowing the introduction of an exhibit that was unquestionably of value both to counsel and to the jury in the interpretation of the testimony.
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J. Fred Jones, Justice.
The city of Mountain View, Arkansas, extended its airport landing strip east across a street known as Kemp Road, and diverted traffic to and from the north end of Kemp Road over a new road constructed west from Kemp Road along the north side of the landing strip. J. T. Kemp, Lloyd Kemp, Don Kemp and Dean Kemp, who owned property on Kemp Road north of the airport, filed a petition in the Stone County Chancery Court against the Mayor and City-Council of Mountain View seeking a reinstatement of Kemp Road to its former condition and an injunction against doing anything in the future which would prevent or hinder the petitioners and the general public from having complete and unrestrained access and use of such roadway or street. The Mayor and Council demurred to the petition and the evidence. The chancellor overruled the demurrers and denied the petition. The Kemps have appealed and they rely upon the following points for reversal:
“The Mayor and City Council of Mt. View were without authority to close a portion of the road in question and to erect the barricades thereon.
The chancery court erred in dismissing appellants ’ petition, and should have granted the relief sought.
Appellants are entitled to the relief requested in their petition.”
The Mayor and City Council have cross appealed and they rely on the following points:
“The trial court erred in over-ruling city’s demurrer to Kemp’s petition.
The trial court erred in over-ruling city’s demurrer to Kemp’s evidence.”
The facts in this case are not seriously in dispute. The appellants are relatives and for many years have owned their separate farm lands northeast and adjacent to the city of Mountain View, which is a city of the second class. A public road which has become known as “Eemp Road,” has for many years extended north from state Highway 14 through the Kemp community and has been used by the appellants and others in gaining access to black-topped state Highway 14, which runs east to Batesville and west to Mountain View proper. Kemp Road was originally east of the city of Mountain View, but the city has extended its boundaries east along the north side of Highway 14 by annexation of East Subdivision to Mountain View, and the south end of Kemp Road is now inside the corporate boundaries of Mountain View and has become a street within the city limits of East Subdivision. Another road, knoiyn as “Section Line Road,” also extends north from Highway 14, and leaves Highway 14 about one-half mile west of Kemp Road and runs more or less parallel with Kemp Road. The city owns and maintains an airport, or landing strip, north of, and adjacent to, East Subdivision, with the landing strip being two hundred feet wide and extending west from Kemp Road for a distance of approximately one-half mile and almost to Section Line Road. The city of Mountain View, in anticipation of outside financial assistance for the purpose of improving its airport and paving the airport runway, and in order to accommodate larger airplanes, extended the airport runway, or landing strip, some distance east, across Kemp Road. The city first constructed a new road, or street, running from Kemp Road west /to Section Line Road along the north side of the landing strip, then by resolution adopted on July 25, 1967, a two hundred foot section of Kemp Road was closed where it Ayas crossed by the extension of the airport runway. That portion of Kemp Road south of the runway was left open from the runway to Highway 14, and that portion of Kemp Road north of the runway was left open with access to state Highway 14 via the new road along the north side of the landing strip then south on Section Line Road.
It became necessary for appellants, in traveling ffom their homes to Highway 14, to travel south to the landing strip, then west approximately one-half mile toward Mountain View to Section Line Road, then south on Section Line Road to Highway 14. For the purpose of travling west on Highway 14 toward Mountain View proper, appellants were required to travel no farther than before the change was made. But for the purpose of traveling east on Highway 14 toward Batesville, it was necessary to make two additional right angle turns and travel about one mile farther than before the change was made. Appellant Lloyd Kemp lives on Kemp Road about one-fourth mile north of Highway 14 and since the change in the access route he is required to travel about three-fourth mile instead of one-fourth mile in reaching the black-topped Highway 14.
By orders of the Mayor of Mountain View, under authority of a resolution adopted by the City Council in July 1967, the two hundred foot section of Kemp Road was torn up and barricades were erected about September 29, 1967. The petition for injunction was filed on October 5, 1967. A general demurrer, alleging “that said complaint does not state facts sufficient to constitute cause of action,” was filed to the petition on October 14, 1967. On October 16, 1967, the City Council, in special session, passed an ordinance which in effect, af firmed the resolution adopted in July. The case was tried and the decree entered on October 18, 1967.
The appellants, on direct appeal, do not argue procedural invalidity of the legislative process by which a part of Kemp Road was closed except in reply to ap-pellees’ argument that the procedure followed by the Mayor and City Council was regular. The thrust of appellants’ contention is that the state of Arkansas has never delegated to cities of the second class, authority to close a street under such facts as appear in this case. The appellees contend that cities of the second class do have such authority under the facts of this case and in support of their demurrers, appellees contend that the appellants did not allege, or prove, such special, or peculiar, damages as is necessary for the maintenance of an action for injunctive relief against closing a portion of Kemp Road in this case.
Arkansas Statutes Annotated § 19-3825 ,(Repl. 1956) authorizes vacation and abandonment of a street dedicated by the owner in a recorded plat where the street has not been used for five years, and this section clearly does not apply to the facts in this case at bar. Consequently, if the city of Mountain View had the authority to vacate, or close, any portion of Kemp Road, under the facts in this case, such authority must be found in Ark. Stat. Ann. § 19-2305 (Repl. 1956), the pertinent part of which is as follows:
“In order to better provide for the public welfare, safety, comfort and convenience of their inhabitants, the following enlarged and additional powers are conferred upon cities of the second class, viz:
#jj. at.
Second. To alter or change the width or extension of streets, sidewalks, alleys, avenues, parks, wharves and other public grounds, and to vacate or lease out such portions thereof as may not for the time being be required for corporation purposes, and where lands have been or may be acquired or donated to such city for any object or purpose which has become impossible or impracticable, the same may be used or devoted for other proper public or corporate purposes or sold by order of the city council, and the proceeds applied therefor.” (Emphasis supplied).
Appellant J. T. Kemp testified on direct examination: That he had lived on Kemp Road northeast of Mountain View for twenty-three years and is in the broiler business, that his principal means of ingress and egress for twenty-three years has been over Kemp Road in going to Highway 14 and to Mountain View, that he lives north of the airstrip, that trucks haul feed over Kemp Road to his place, that other people live on the road and everyone is welcome to use it, that Kemp Road has been closed or a barricade has been erected across it, that the city closed Kemp Road and built appellant, and others, a road along the north side of the airstrip. This appellant then was asked the following question and gave the following answer:
“Q. ... How does it affect your getting in and out from your place and these trucks and feed trucks and chicken trucks getting in and out from your place 1
A. Well, we have two short turns in it, and we use big trailers; and it’s hard to get our chickens out over it, you know; in bad times, they can hardly make the turns.”
On cross-examination this witness testified that from his doorstep to Highway 14 is five tenths of a mile, and that his house is the farthest one north on Kemp Road, that since the new access road has been built all the work has been done on it and his other road has been permitted to go down, that Don Kemp lives south of Highway 14 but has two broiler houses north of the airport, that besides his own two broiler honses and those of his son, Don, there are three more broiler honses in the area, one belonging to his brother Lloyd and one to John Tingle, that John Tingle lives right on the side of the new access road built along the north side of the airstrip and about midway of it, that his brother, Lloyd, lives north of the airport, that Kemp Koad continues north to Herpel Road and is used by himself, his son, and Howard Wade, who raises cattle and hogs, that besides himself and Howard, J. M. Green, who is with the forestry service, also uses Kemp Road out to Harpel Road and also squirrel and deer hunters use it, that his son, Dean, who is employed out of state, has a house beside his own and that his mother lives between his house and his brother, Lloyd, that there are actually four houses on Kemp Road north of the airport, that in going to Mountain View he is required to travel no farther over the new road along the north side of the airport, than he would in traveling south on Kemp Road, but in going to Batesville over Highway 14, it is more than one-half to three fourths of a mile farther since it is only one-half mile to Highway 14 over Kemp Road and one and one-tenth miles via the new airstrip road and an additional one-half mile east to where Kemp Road intersects with Highway 14.
Appellant, Lloyd Kemp, testified on direct examination: That he had lived north of the airport on Kemp Road for twenty-two years and that Kemp Road has been in its present location for as long as he can remember and has been used by the general public all this time. This witness was asked the following question and made the following answer:
“Q. Well, this relocation or blocking of the street there, will it damage you in any way, or does it damage you in any way?
A. It sure does.
Q. Just tell the Court in what respect it does.
A. Well, it just puts me out of the way a lot. I am a quarter of a mile from where I live to the blacktop, and I am about three-quarters the other way. We had a good road there; I thought it was good. Now we have to run over gravel that is probably 6 inches deep, creek gravel, and along the airport — up on the airport.”
On cross-examination, this witness testified that Kemp .Road still runs in front of his place and that he has lost no ingress or egress because of cutting off the road, that the difference in time it takes him to get onto the blacktop of Highway 14 would be the difference in time it would take to travel one-fourth mile, as compared with a mile and one-fourth; that there is one person who lives on Kemp Road between the airport and Highway 14.
Appellant Don Kemp testified on direct examination: That he owns property north of the airstrip but lives south of Highway 14, that he had been acquainted with Kemp Road for twenty-two or twenty-three years, and then the following question was asked him and received the following answer:
“Q. Now, how has the closing of this Kemp Road affected you and your property up there?
A. Well, like Lloyd said, we are traveling a road now that has got 6 inches of gravel on it.
Q. Has it affected the value of the property any?
A. Yes, it has.
Q. In what respect?
A. Well, it put us about a mile out of the way from the real highway.”
On cross-examination this witness testified: That in going from his home south of Highway 14 to his proper ty north of the airport, he travels no farther now than he would before Kemp Road was closed, hut that the road is not as good since it is necessary to travel farther on gravel.
Howard Wade testified on direct examination: That his brother sold the land to the Kemps and that he is thoroughly familiar with Kemp Road, that the road has been in its present location for 50 years and has been used by the general public during that time.
On cross-examination this witness testified: That he had used the north end of Kemp Road from Herpel Road in hunting cattle and such as that; that a portion of Kemp Road in that area runs through his land and that he does not believe that the county would attempt to work the road without saying something to him about it.
The testimony offered by appellees had to do with the need for the airport runway extension, the purchase of property for that purpose, and the adoption of the resolution and passage of the ordinance in connection with closing the two hundred foot strip of Kemp Road, and that testimony is not important to the issues on this appeal.
Appellants rely on the decisions of this court in Texarkana v. Leach, 66 Ark. 40, 48 S. W. 807, and Brooksher v. Jones, 238 Ark. 1005, 386 S. W. 2d 253. The facts in both of these cases readily distinguish them from the case at bar. In the Leach case the steeet was being abandoned across a series of railroad tracks in favor of a crossing to be provided by the railroad company across fewer tracks. Apparently the proposed abandonment left appellant’s, and neighboring property, on the dead end of the street against the railroad. In any event, it clearly appeared that appellant’s property would have been reduced by at least twenty-five to fifty per cent in value by the abandonment. It is true that this court held in the Leach case that the city did not have the authority to close the street in these words:
“Texarkana being a city of the second class, the ordinance of its city council is void. The municipal-authorities of a city or town cannot vacate a street, or any part of it without the authority of the legislature. This power does not inhere in a municipality.
* * * The statutes of this state authorize municipal corporations to lay off, open, widen, straighten, establish and improve streets, and keep them in. repair, but they do not expressly, impliedly, or incidentally confer upon cities of the second class or incorporated towns authority to vacate streets.”
As pointed out by the appellants, Ark. Stat. Ann. § 19-2305 was enacted by the legislature about the time of the decision in the Leach case. As a matter of fact, Act No. 24 of 1897 (Ark. Stat. Ann. § 19-2305) was approved on June 5, 1897, and the Leach case was decided December 17, 1898. The court, however, did not mention Act No. 24 of 1897 in the decision, but as pointed out in appellants’ brief, this act does “grant to a city of the second class the authority to: ‘ alter or change the width or extension of streets, sidewalks, * * * and to vacate or lease out such portions thereof as may not for the time being he required for corporate purposes” (Emphasis on “vacate” supplied).
In the Brooksher case, supra, Birnie Avenue in Fort Smith had been dedicated to the public as a city street since 1906 and was being used daily by more than two hundred automobiles, when the city of Fort Smith attempted to abandon a portion of it to Safeway Stores, Incorporated. This court, in effect, simply held that the proof in the Brooksher case failed to show that the portion of Birnie Avenue sought to be vacated was not required for corporate purposes.
The Brooksher decision did not reject the decision in the case of Risser v. City of Little Rock, 225 Ark. 318. 281 S. W. 2d 949, except to state that the points decided in the Bisser case were not decisive of the points raised in the Broohsher case.
Appellees rely heavily on our decision in the Bisser case, supra. In that case the facts were very similar to the facts here. In order to expand its airport, the city of Little Rock made two efforts to close portions of East Tenth and East 26th Streets leading from the city of Little Rock to the very populous Fourche Dam Pike area. The first ordinance was enacted in accordance with Ark. Stat. Ann. § 19-3825 (Repl. 1956) authorizing tiie closing of streets where they have not been used for five years. This ordinance was declared void by the trial court and no appeal was perfected. The city council then enacted an ordinance abandoning a portion of these streets on authority of Ark. Stat. Ann. § 19-2304 (RepL 1956) (which relates to cities of the first class and is the same as Ark. Stat. Ann. § 19-2305, supra, relating to cities of the second class). An injunction was sought to enjoin the city from abandoning the old routes in favor of the new ones. The contention among others being “the city had no control or jurisdiction to close the road in question.” In affirming the trial court in denying the injunction, this court touched lightly on the authority of the city, but did consider at some length whether or not the appellant petitioners had suffered special and peculiar damages. As to the authority of the city, this court said: “Cities have the authority to control, supervise and regulate all streets within corporate limits, Ark. Stat. Ann. § 19-2313, § 19-2304.” As to special damages in the Bisser case, this court said:
“Next we come to the question of whether the appellants suffered special and peculiar damages. None of the plaintiffs own property abutting the portions of the streets being closed, but even if it is conceded that appellants have been damaged by the relocation of the roads, they have suffered no peculiar or special damages which could give rise to a cause of action. Travelers on 10th Street, as relocated, must turn two corners and travel a little farther, which requires less than a minute in additional time. This slight inconvenience, however, is not peculiar to appellants alone. This street is an outlet from the city to one of the most thickly populated sections, of the county. Every person that travels the street suffers the same inconvenience as the appellants.'”
The Risser decision then quotes with approval from Little Rock and Hot Springs Western Railroad v. Newman, 73 Ark. 1, 83 S. W. 653, where this court said:
‘ “The rule of law governing cases of this kind is that no private action on account of an act obstructing a public. and common right will lie for damages of the same kind as those sustained by the general public, even. though the inconvenience and injury to the plaintiff be greater in degree than to other members of the public; but an action will lie for peculiar or special damage of a kind different from that suffered by the general public, even though such damage be small, or though it be not confined to plaintiff, but be suffered by many others.’ ”
Now in the case at bar, none of the appellants were abutting land owners to the closed portion of K.emp Road. Besides deer and squirrel hunters, only five people were shown to have used Kemp Road, and only three of them regularly used that portion that had been closed, as compared with two hundred who daily used Birnie Avenue in the BrooJcsher ease and the inhabitants of the most thickly populated area in Pulaski County in the Risser case. The appellants here, as in the Risser case, have only shown inconvenience in traveling a little farther with two additional turns in the road and have shown no special and peculiar damages not common to anyone else who might have occasion to travel Kemp Road.
Appellant questions the validity of the ordinance closing a part of Kemp Koad because the ordinance was not published pursuant to law (Ark. Stat. Ann. § 19-2404 [Répl. 1956]). The ordinance was passed with an emergency clause on October 16, 1967, two days prior to the trial; it was adopted by unanimous vote on suspension of the rules, and the emergency clause was voted on separately. Therefore, the ordinance was effective upon adoption under the provisions of Amendment No. 7 of the state constitution, and it was not likely that it could have been published before the trial. We do not imply that the adoption of an emergency clause dispenses with the necessity for publication, but the effectiveness of an emergency ordinance not providing for fine, penalty, or forfeiture should.not.be. suspended until publication, at least if it is published within a reasonable time.'
The question of when a street, or any part of a street, is no longer required for corporation purposes is a question of fact to be determined by the city council in the first instance, and then by the chancellor when the validity of the council’s action is attacked in chancery court. Chancery cases are tried de novo in this court and the chancellor’s decision is sustained unless it is against the preponderance of the evidence.
We conclude, therefore, that the two hundred foot section of Kemp Road, closed by the city of Mountain View, is not, for the time being, required for corporation purposes, and that under authority of Ark. Stat. Ann. § 19-2305, and § 19-2313, the city had authority to abandon and close that section of Kemp Road and to lay off, open and maintain, the new substitute road along the north side of the airport strip.
In the Brooksher case, supra, the opinion was concluded as follows:
“We make it plain that we are not holding a city has no right under any factual situation to vacate a street under % 19-2304, bnt we are merely bolding that the Commission had no such right in this instance under the undisputed facts as shown by the record.”
We also make it plain, in the case at bar, that we are not holding that a city does have a right under just any factual situation, to vacate a street under § 19-2305, but we are merely holding that the City Council had such right in this instance under the facts as shown by the record in this case. In the absence of future legislation on the subject, each case arising in the future must continue to rest on its own peculiar facts. The decree of the chancellor is affirmed.
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George Rose Smith, Justice.
This is a taxpayer’s suit brought by the appellant to enjoin six Saline county school districts from continuing to employ the seventh appellee, Millard Nix, as the districts’ tax representative. The appellant contends that there is no statutory authority for the districts to engage a person to perform the duties assigned to Nix, which are said to be partly a duplication of duties imposed by law upon the county assessor. The chancellor upheld the contract of employment.
We agree with the chancellor. School boards have broad statutory authority to employ such employees as may be necessary for the proper conduct of the schools and to do “all things necessary and lawful for the conduct of an efficient free public school or schools.” Ark Stat. Ann. § 80-509 (d) and (m) (Repl. 1960).; Where such a wide discretion is vested in the school directors we have held that one who seeks relief in the chancery court has the burden of proving by clear and convincing evidence that there has been a manifest abuse of the board’s discretion. Safferstone v. Tucker, 235 Ark. 70, 357 S. W. 2d 3 (1962). We are unable to say that the appellant has sustained his heavy burden of proof.
According to the record, within the past five or six years these districts were confronted with serious financial problems. Statutory changes mandatorily allocated a certain portion of the districts’ revenues to the payment of teachers’ salaries. Moreover, by 1965 the ratio of assessed property values within the county had fallen to 15 percent of market values, so that the county found it necessary to employ professional assistance in the reappraisal of the taxable property within the county. See Ark. Stat. Ann. §§ 84-468 et seq. (Repl. 1960).
In that critical situation the school directors concluded that additional revenues had to be found if the schools were to remain open. The six appellee districts joined together in the employment of Nix, contributing proportionately to the payment of hie salary and expenses.
Nix’s duties are twofold. First, he prepares for each district the list of taxpayers that must be filed with the county assessor. Ark. Stat. Ann. § 84-405. The appellant concedes that the statute expressly authorizes the districts to pay the expense of compiling the lists, but he insists that the greater part of Nix’s time is devoted to. the other phase of his work, which is said to be a duplication of the county assessor’s functions.
The proof does not support that contention. The second category of Nix’s contractual duties includes the discovery of new construction and other property not listed for taxation, the appraisal of such property, and the submission of that information to the appropriate district. At the trial in May of 1967 Nix testified that since the preceding January 1 he had discovered unas-sessed properties having a value of about one and a quarter million dollars.
According to the districts’ testimony, the information being supplied by Nix cannot be obtained from the county assessor’s office until a year later. Yet the early acquisition of the information is important to the districts, because it enables them to plan the operation of the schools with knowledge of the revenues that will be available. Moreover, Nix supplies information not. furnished by the assessor, such as the location of new residential subdivisions that must eventually be served by the districts. That kind of data assists the school boards in planning the construction of new school buildings, where they will be most needed.
In employing Nix the school directors also intended for his activity to play a part in preventing assessed values from falling below the minimum percentage required by law for the receipt of all available state-aid funds. It cannot be doubted that the maintenance of adequate assessed values will be of direct financial benefit to the-districts. We are not convinced by the appellant’s insistence that if there is any dissatisfaction with the county assessor’s appraisals, the sole remedy is at the ballot box when he seeks re-election. In the first place, the statutes already encourage citizens to discover and -report property that has been overlooked by the county assessor. Ark. Stat. Ann. § 84-444. And, secondly, the directors might understandably have some doubt about the incumbent assessor’s defeat at the polls by an opponent running upon a platform of higher assessments and hence higher taxes.
For the reasons stated, we conclude that the appellant failed to show by clear and convincing proof that there was a manifest abuse of discretion on the part of the school directors in their decision to employ Nix to perform the duties assigned to him.
Affirmed.
FoglemaN, J., dissents. | [
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Conley Byrd, Justice.
Appellant Ross Dopson instituted this action in chancery court for specific performance of a rider giving coverage to his wife, Aurelle Dopson, under a group hospitalization policy issued hy appellee Metropolitan Life Insurance Company. From a decree denying relief to appellant and awarding relief upon a cross-complaint to appellee, appellant relies upon the following points for reversal:
I. THE FINDING OF THE COURT THAT APPELLANT HAD FAILED TO DISCLOSE THE HISTORY OF HIS WIFE’S PRIOR BACK TROUBLE IN THE APPLICATION IS NOT SUPPORTED BY A PREPONDERANCE OF THE COMPETENT EVIDENCE.
II. THE FINDING OF THE COURT THAT APPELLANT’S FAILURE TO DISCLOSE HIS WIFE’S PRIOR BACK TROUBLE IN THE APPLICATION WAS MATERIAL TO THE RISK IS NOT SUPPORTED BY A PREPONDERANCE OF THE COMPETENT EVIDENCE.
The record shows that Ross Dopson had known his present wife for approximately six months before their marriage in December 1964. He and his children by his first wife already had coverage under the group policy and previous riders. The application for the rider to cover his wife, Aurelle, and her three children was made on June 8, 1965, at Dopson’s home. Appellee’s agent, Burton R. Mullins, Jr., prepared the application signed by Dopson. In obtaining the information necessary for the preparation, Mr. Mullins directed his questions to Mrs. Dopson rather than to Mr. Dopson.
There is a dispute between the Dopsons ’ testimony and that of Mullins about whether Mrs. Dopson told Mullins about her back trouble in May 1964. Mr. and Mrs. Dopson testified that she did. Mullins testified that she did not. It is uncontradicted that she entered the hospital with a back problem in May 1964, at which time her doctor ran a myelogram. The chancellor found the issues in favor of appellee and we can not say that his finding is contrary to a preponderance of the evidence.
Appellant argues, however, that Dopson himself made no representation because the undisputed proof shows that he had no knowledge of Mrs. Dopson’s hack: trouble. While it is true that Dopson is the only party to the lawsuit and that he was honest insofar as his personal knowledge was concerned, we hold that his lack of knowledge does not prevent appellee ’6 defense under Ark. Stat. Ann. § 66-3208 (Repl. 1966), which provides in part:
“Representations in applications. — (1) All statements in any application for a life or disability insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(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 issued a policy or contract in as large an amount or at the same premium or rate, or would not have provided coverage with respect to the hazard resulting in the los-s, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise. . . [Acts 1959, No. 148, § 275, p. 418.]” ((,Emphasis supplied.)
Upon the second issue appellant relies on Inter-Ocean Casualty Co. v. Huddleston, 184 Ark. 1129, 45 S. W. 2d 24 (1932). There we held that a misrepresentation would not void liability under a policy unless the failure to disclose was material to the risk involved. Un der § 66-3208, supra, our holding in the Huddleston case has been modified to the extent that a recovery will be denied where the “omissions” or “incorrect statements” are such that the company -would not have provided coverage with respect to the hazard resulting in the loss had it known the true facts.
As part of the foregoing, appellant argues that there is no competent evidence to prove a connection, between the back trouble of 1964 and the injury of 1965. Appellee points out that in an affidavit one E. R. Ryan referred to Mrs. Dopson’s past medical history and definitely stated that, had the May 1964 back trouble information been available to the Metropolitan Life Insurance Company, it would not have issued the rider without an exclusion relative to Mrs. Dopson’s back. E. R. Ryan’s affidavit was put in the record under the following stipulation:
“MR. YOCUM: May it please the Court, I have an affidavit here by Mr. E. R. Ryan, who is the Assistant Supervisor of the Underwriting Section of Metropolitan Life Insurance Company and it’s my understanding that with Mr. Lindsey, that we will stipulate that Mr. Ryan would testify a§ to the contents of this affidavit if he were here.
MR. LINDSEY: I will agree to that, Your Honor.
THE COURT: Let this be marked.”
Under the stipulation we hold that the affidavit was competent evidence to show that Metropolitan Life Insurance Company would not have provided coverage of Mrs. Dopson’s back had it been advised of the 1964 back trouble.
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Ernie E. Wright, Chief Judge.
In December, 1979, Appellant Dennis Sossamon filed suit against appellees for specific performance of a written offer signed by appellees and delivered to appellant on December 8, 1977, to sell real estate. The acceptance of the offer appearing on the form was not signed by appellant as buyer but was orally agreed to by him. The offer concerned certain improved real estate appellant was then occupying as a tenant pursuant to a lease agreement with appellees.
The trial court denied specific performance and we affirm the decree.
For reversal appellant argues the trial court erred in finding appellant failed to sustain his burden of proof and various other points, but we discuss only the matters we find to be dispositive of the case.
In August, 1976 appellant leased the property in question from appellees for a period of three years, and during all times here relevant appellant has had possession of the property as a tenant, and has paid monthly rent in keeping with the rental agreement of the parties. Appellant approached appellees about buying the property, and on August 8, 1977, appellees signed an offer to sell the real estate to appellant for $45,000, payable $1,000 earnest money on acceptance of the offer, $13,000 in cash with the $1,000 earnest money to be credited on the $13,000 cash payment, and the balance of $32,000 payable $500 monthly over a period of 88 months, including 9 percent interest. Appellant did not execute the lease but did orally agree to the terms of the offer on the date the signed offer was delivered to him and gave Appellee, Mr. Davis, his personal check for $1,000, with notation thereon, “earnest check for property.” When the check was delivered to appellee Davis, appellant did not have the funds in the bank to make the check good and the check was never cashed. Davis testified appellant was to sign the offer and acceptance and return it to him, and he would then furnish appellee a copy, but appellant never did sign the offer.
The “Offer and Acceptance”, signed only by appellees as sellers contained no specific time for payment of the $13,-000 down payment. Both parties testified the agreement contemplated the transaction would be closed within a reasonable length of time. The understanding was that appellant was to secure a loan to close the transaction.
In early 1978, appellant told appellees he was unable to obtain financing from Savings & Loan. Later in the spring of 1978, appellant told appellees he could obtain financing from the VA if appellees would allow VA to have a first mortgage on a part of the property. Appellees rejected this proposal.
Early in 1979, appellee Davis advised appellant he preferred not to close the deal. Up to that time appellant had never offered to close the transaction except on some basis under which appellees would be required to relinquish a first security interest in some prt of the property.
In September, 1979, a Mr. Finsel indicated interest in the property and told Appellee Davis the property ought to be worth $60,000. Shortly thereafter Davis told appellant he couldn’t sell him the property for less than $65,000, and thereafter in December, 1979, appellant filed suit for specific performance. At the time of trial in March, 1980, appellant continued to occupy the property as tenant paying monthly rent to appellees, although the written lease had expired in August, 1979-
Appellant testified that soon after appellees gave him the offer to sell and he had given the $1,000 check for earnest money, he spent $1,000 for masonry work and installing an additional door in the business building on the property. The improvement was for the convenience of appellant’s business and not an unusual type improvement for a business tenant to make. Later appellant paid $60 for an appraisal in connection with a loan application to Central Bancshares. This was the only formal loan application appellant has ever made for the purpose of closing the transaction, and the loan application was rejected. In 1979, appellant proposed to appellees that he could pay the $13,000 cash payment with a first mortgage going to a Mr. Rice and a Mr. Engeles or he could pay the whole $45,000. Appellee Davis declined to accept an arrangement under which appellees would have a second mortgage for the deferred balance, and declined because of tax consequences to accept the proposal that he accept all of the sale price in cash. Appellant did not come forward with any concrete proposal to close the purchase that would have been in keeping with the terms of the contract. The contract did not specify that appellees would accept a second mortgage on all or part of the property as security for the deferred part of the sale price nor did it obligate them to accept cash in full at closing. There was no evidence other than appellant’s vague testimony that appellant had a loan commitment from any source that would enable him to close the purchasé in keeping with the terms of the offer to sell, viz: that is by payment of $13,000 cash and appellees retaining title or having a first mortgage to secure the deferred balance to be paid with interest over 88 months.
Appellees have received no money on the $1,000 earnest money recited in the offer and appellant’s $1,000 check was never cashed. Appellant testified he expected Appellee Davis to hold the $1,000 check until the transaction was closed, but David denied there was any understanding to that effect.
The court found appellant had failed to prove his case by a preponderance of the evidence, that he had never performed the conditions he should have performed to place himself in a position to entitle him to specific performance, that appellant had not paid the $1,000 earnest money, but had merely assumed appellees would hold his check until some unknown and unspecified closing date. A decree was entered dismissing the complaint.
After carefully reviewing all of the evidence, we conclude the chancellor was correct in finding appellant had failed to prove facts by a preponderance of the evidence establishing he is entitled to specific performance. The burden was upon appellant to show substantial compliance with the obligations imposed upon him by appellee’s written offer and appellant’s oral acceptance. Appellant did not pay the $1,000 earnest money, but gave a check which was not good at the time it was delivered and it has never been cashed. Appellant has never at any time offered to close in keeping with the terms of the written offer. Moody v. Kahn, 174 Ark. 1072, 298 S.W. 353 (1927).
Appellant argues in his brief that a reasonable man would assume that it was likely or possible in order for the appellant to obtain a loan that he would need to give a first mortgage on the property to a lender, and that appellees were obliged to accept a second mortgage on the real estate, or some part of it, as security for the deferred balance. Appellant cites no authority that supports his argument, and we reject the contention. There was no evidence of any agreement that appellees would accept a second mortgage, and the law implies no such agreement.
The appellant was not diligent in seeking specific performance. He filed suit two years after the offer to sell was made. The law is well settled that one seeking specific performance must act with diligence. Even though the agreement did not specify a time for performance, both parties testified the agreement contemplated a reasonable time, and the law imposes an obligation to comply with the contract within a reasonable time. Bracy v. Miller, 169 Ark. 1115, 278 S.W. 41 (1925). Smith v. Carter, 213 Ark. 937, 214 S.W. 2d 64 (1948). Appellant failed to offer to close the transaction in keeping with its term within a reasonable time, and did not act with diligence in seeking performance. He paid nothing to appellees on their offer to sell, and by this suit seeks to profit from the interim increase in the value of the property. Equity will not grant specific performance unless the one seeking relief shows he has all times been ready, able and willing to perform in keeping with the agreement, and has acted with promptness in seeking specific performance. Appellant failed to show he met these requirements. Welborne v. Preferred Risk Insurance Co. 232 Ark. 828, 340 S.W. 2d 586 (1960).
The chancellor made findings of fact against appellant and we do not reverse findings of the trial court unless clearly erroneous. Rule 52, Ark. Rules of Civil Procedure. We cannot say the chancellor’s findings are clearly erroneous, but on the contrary we conclude his.findings are well supported by the evidence.
As we review equity appeals de novo we affirm a correct decision of the chancellor if we conclude the record shows appropriate reasons for affirmance, even though the reason was not stated by the trial court as a basis for the decision. James v. Medford, 256 Ark. 1002, 512 S.W. 2d 545 (1974). There is an additional reason we affirm the decree denying specific performance.
Appellees denied there was a valid contract. This is sufficient to raise the defense of the statute of frauds. Stanford v. Sager, 141 Ark. 458, 217 S.W. 458 (1920).
The written offer upon which appellant relies does not contain a definite description of the real estate. The offer describes the real estate only as Lots 11 & 12, Block 1, Hendrix Addition. There is no indication as to what city, county or state the property is situated in. Unquestionably the property could be identified by oral testimony, but a contract for the sale of land comes within the statute of frauds, Ark. Stat. Ann. § 38-101 (Repl. 1962), and must therefore be in writing to be enforceable. Reynolds v. Havens, 252 Ark. 408, 479 S.W. 2d 528 (1972). A definite description of the land that is the subject matter of the agreement is one of the essential elements that must be in writing before a court of equity will grant specific performance. Here there is not a sufficient key in the written offer by which the property can be definitely identified and oral testimony is not permitted to identify the land. James v. Medford, supra. It is true that partial performance of a contract by payment of a part of the purchase price and placing a buyer in possession of land pursuant to an agreement of sale and purchase is sufficient to take the contract out of the statute of frauds. Such did not occur here as appellant paid nothing and was at all times relevant in possession of the property as a tenant. He was never placed in possession pursuant to any agreement for sale or purchase. Thom v. Geyer, 254 Ark. 716, 497 S.W. 689 (1973).
Affirmed. | [
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James H. Pilkinton, Judge.
Larry Slaughter, d/b/a Ark-La Wood Company of Junction City, Arkansas, is engaged in the business of procuring and selling pulpwood. He owns three pulpwood yards — one at Stamps in Lafayette County, one at Village in Columbia County, and the third at Junction City in Union County.
Prior to 1975, all three locations were covered under one workers’ compensation insurance policy issued to Mr. Slaughter. Slaughter’s employees included the woodyard employees and drivers, surveyors and clerical workers. Slaughter had only one logging crew, and the persons working on this sole logging crew were also covered under Mr. Slaughter’s workers’ compensation insurance policy.
In addition to the regular wage employees of Slaughter, there were many independent contractors who produced, sold and delivered pulpwood to the three woodyards. The record shows there were twelve to twenty-two such independent contractors bringing pulpwood into the Village yard; approximately the same number at Stamps; and twenty-five to thirty-five such contractors hauling pulpwood into the Junction City yard. It is undisputed that these were independent contractors, or subcontractors, who had their own equipment ran their own operations, hired and fired their own employees, and merely produced, sold and delivered wood to one of the several woodyards. Under Ark. Stat. Ann. § 81-1306 (Repl. 1976), the prime contractor is liable for workers’ compensation benefits to the employees of an independent subcontractor where the subcontractor fails to secure the compensation insurance coverage required by the Arkansas act.
Due to the number of injuries suffered, an insurance “modifier” had been included in Slaughter’s premium rate, making his rate unusually high. The coverage at that time was with Bituminous Insurance Company and, in connection with attempting to work out a safety program to reduce injuries, the safety director at Bituminous suggested to Slaughter and his independent insurance agent, Lawrence H. Derby of Warren, Arkansas, that a separate policy be obtained for each location. Slaughter and Derby were told that if Slaughter would make his manager at each yard prime contractors, and let them be responsible for the insurance, and assume other duties, including the obtaining of the pulpwood at each yard, then the prime contractor at each yard would become a separate risk from Slaughter’s risk on his wage employees, and thus there would be a savings on premiums. Slaughter followed this suggestion, and through Derby four separate policies were applied for and issued by Bituminous in 1976: (1) to Larry Slaughter, d/b/a Ark-La Wood, covering all of Slaughter’s wage employees as had been the cause previously; (2) to Chester Anderson covering only the wood haulers and their employees, delivering wood to the yard at Village; (3) to Jerry Owens covering only the wood haulers and their employees, delivering wood to the yard at Stamps; and (4) to Lennox Norris covering only the wood haulers and their employees who delivered wood to the yard at Junction City.
As Anderson, Owens and Norris were without any experience rating, their premiums were the standard rate, unblemished by claims for previous injuries by employees or contractors. Thus the three latter separate policies were written at a lower rate than Slaughter’s policy.
Bituminous Insurance Company quit writing workers’ compensation insurance in Arkansas after 1975. Derby then obtained four policies from Rockwood Insurance Company for the year November 7,1976 to November 7,1977. After the first policy year, Rockwood renewed the policies issued to Larry Slaughter and Chester Anderson. Jerry Owens and Lennox Norris were rejected as unacceptable risks because of excessive injuries and claims. Consequently Derby applied for coverage of Lennox Norris and Jerry Owens to the Arkansas Compensation Rating Bureau, which makes random assignments of rejected risks to companies in the “pool”. Norris was assigned to American Mutual Liberty Insurance Company. By luck of the draw, Jerry Owens was assigned to Rockwood which had previously rejected him. Because of the regulations, Rockwood had to accept Owens, and American Mutual insured Norris. A routine audit, conducted by Rockwood after the second year, revealed that Larry Slaughter owned all three yards. The extent of his control, if any, over the procurement of wood and over the wood haulers and their employees covered by the Anderson, Owens and Norris policies is a disputed question of fact.
Rockwood filed this suit and sought reformation of its policies to all three — Slaughter, Anderson and Owens — for the periods of its coverage. Rockwood claimed as grounds for relief that there had been a failure to disclose the true nature of the business relationship existing between Slaughter on the one hand, and Anderson, Norris and Owens on the other. The reformation sought was the inclusion of the experience modifier to each policy, and the total added premium dollar claimed to be due to Rockwood from Slaughter was $9,-212.05.
American Mutual Liberty Insurance Company was brought into the case for a declaration of liability under the policy issued by American Mutual to Norris for the period covering November, 1977 to November, 1978. It was alleged that American has liability for workers’ compensation benefits under its policy to independent haulers and their employees delivering pulpwood and logs to the Junction City woodyard operated by Norris. American Mutual Liberty denied liability, and sought cancellation of its policy on the basis of fraud.
Following a trial on the merits, the chancellor found, and a chancery decree was entered, holding:
(1) That each individual defendant, (Slaughter, Anderson, Norris and Owens) had risk exposures and properly had policies of insurance issued to them to cover such exposure;
(2) That AMLIC was not entitled to a rescission of its policy of workers’ compensation insurance issued to Lennox Norris;
(3) That Rockwood was not entitled to a reformation of ■ its workers’ compensation insurance policies to include Slaughter’s experience modifier; and
(4) That Slaughter was entitled to judgment of and from Rockwood in the amount of $35,711.09-
American Mutual Liberty Insurance Company has taken an appeal from the decree; Rockwood has taken a cross-appeal; and Slaughter, Anderson, Norris and Owens have cross-appealed only to insure that if American Liberty was successful, Rockwood would be required to cover any liability of Slaughter as a statutory employer under Ark. Stat. Ann. § 81-1306.
I
American Mutual first contends that the findings of the chancellor that Lennox Norris was a separate risk is against the preponderance of the evidence. American Mutual thus ' argues that in order for Lennox Norris to have risk exposure he must be an employer within the meaning of the Arkansas Workers’ Compensation Act. The evidence shows that Slaughter’s woodyard in Junction City operated pursuant to a contract with Georgia Pacific. For a stipulated price per cord of wood delivered, Slaughter agreed to arrange for the purchasing, cutting and delivering of wood to the premises of Georgia Pacific. The employees of Slaughter, who were paid by the hour, posed no problem relative to entitlement to workers’ compensation. However “haulers” and their employees posed an entirely different problem. See Stephens and Stephens v. Logan et al, 260 Ark. 78, 538 S.W. 2d 516 (1976).
Slaughter’s woodyard at Junction City was operated by Norris; his woodyard at Village was operated by Anderson; and his woodyard at Stamps was operated by Owens. The evidence shows that these three individuals were not merely employees of Slaughter; they also served Slaughter as contractors. In addition to their salary as employees, each manager was paid an incentive bonus in his capacity as a contractor for Slaughter. Each was individually responsible to make the required quota by obtaining the wood to be brought into the yard managed by him'.' Each manager was responsible for a safety program; each was responsible to maintain the insurance program for the independent haulers and their employees, to see that all injuries were reported, and to keep a check on injured claimants. Each was responsible for carrying workers’ compensation insurance to protect against the statutory liability for haulers and their employees.
As already noted, Section 6 (Ark. Stat. Ann. § 81-1306) provides that where a subcontractor fails to secure compensation (i.e., purchase the policy of workers’ compensation insurance or qualify as a self-insurer) then the prime contractor shall be liable for compensation to the employees of the subcontractor. The evidence clearly shows that Norris was a prime contractor for Slaughter, within the meaning of Section 6, supra, and that Norris subcontracted a portion of that contract, i.e., the cutting and hauling of wood to the Junction City woodyard, to these haulers. The employees of the haulers therefore fell squarely within the provisions of Section -6, supra. We are not concerned here with an employer and employee in the usual case. There are injured persons who are entitled to benefits from persons or entities other than their employer. For instance, there is a “statutory employee” as provided by Section 6, supra. The statutory employee is entitled to benefits, and this right does not depend upon the employee relationship with an employer as defined by the Act.
This court will not disturb the chancellor’s findings on issues of fact unless clearly against the preponderance of the evidence. Newberry v. McClaren, 264 Ark. 735, 575 S.W. 2d 438 (1978). While chancery cases are heard de novo by the appellate court, a chancery court decree will not be reversed where there is a disputed question of fact unless the findings are clearly against the preponderance of the evidence. We cannot say on this record that the finding of the chancellor that Lennox Norris was a separate risk is clearly erroneous (clearly against the preponderance of the evidence).
II
American Mutual next argues that it is entitled to rescis sion of this contract of insurance, and that the chancery court erred in denying that relief. We do not agree. As we view the record, American Mutual is in no position now to question the validity of the policy it issued to Norris. The evidence shows that as early as May 15, 1978, American Mutual knew there was a relationship between Slaughter and Norris. This relationship came to American Mutual’s attention by a report prepared by Mr. C. P. McConnell, of American’s Little Rock claim office, in connection with a claim of a person named Jimmy Ford under the Lennox Norris policy. The record is clear that American Mutual thereafter accepted premiums under its policy based upon an “upset” payroll of $3.40 per cord with knowledge that Slaughter owned all three yards. By so doing, American waived any right it may have had to question the validity and effect of the insurance contract. Continental Insurance Companies v. Stanley, 263 Ark. 638, 569 S.W. 2d 653 (1978); Stephens and Stephens v. Logan, supra. Notwithstanding the McConnell report dated May 15, 1978, showing the relationship between Slaughter and Norris, American Mutual continued to adjust and pay claims on behalf of its assured, Norris. The evidence shows that of the thirty claims paid on behalf of the insured, Lennox Norris, thirteen were paid after May 15, 1978. This action of the company is not consistent with its claimed right to rescind. Continental Insurance Companies v. Stanley, supra. It follows that American Mutual cannot be heard at this time to seek rescission of this contract of insurance, and that the chancery court correctly denied this relief. We have concluded that this case must be affirmed on direct appeal. The cross-appeal of Slaughter, Anderson, Owens and Norris therefore becomes moot.
Ill
On its cross-appeal Rockwood seeks to reform five insurance policies so as to substantially increase the premiums charged. The chancellor denied the reformation, and we hold that he was correct in so doing. In the first place, Rockwood carried the burden of proof to show by clear, cogent, convincing and decisive evidence that these policies were issued under a mistake of fact, induced by fraud or inequitable con duct. We agree with the chancellor the evidence here fails to meet that test. The only contact Rockwood had with the appellees was through Lawrence H. Derby. The record shows that Derby called Emma Armstrong, the general agent for Rockwood in Arkansas, and if Rockwood was misled or defrauded it could only have been through Derby. The record shows that Derby submitted the applications and the experience data on all concerned; and Derby was required to personally guarantee the premiums in writing. Mrs. Armstrong had never met Anderson, Owens or Norris. She admits in her testimony that she made no inquiry as to who they were, and in fact made no check at all on them. Her testimony and actions are consistent with Mr. Derby’s version of the matter. Mr. Derby testified that he gave Mrs. Armstrong complete information in regard to the risks. The chancellor found in effect that the evidence showed a full disclosure of the relationship between Slaughter, Norris, Owens and Anderson, and we cannot say on this record that such decision is erroneous. Completely lacking is any clear, cogent, convincing and decisive evidence of fraud, inequitable conduct or mistake.
It is also admitted by Rockwood that the policies issued by it to Anderson, Owens and Norris had no endorsement or other provision authorizing an experience modifier. Rockwood admits that a premium is settled at the time the policy is issued. The premiums were definitely stated in the policies as issued and, under the circumstances here, we hold that the chancellor was correct in concluding that Rockwood can only collect the premiums agreed upon.
Affirmed on direct and cross-appeals.
Penix, J., not participating.
Warren Wood, Special Judge, participated in this decision. | [
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Richard L. Mays, Justice.
When Robert and Linda Falbo, appellants herein, learned that an infant child of whom they had recently obtained custody as foster parents from the Arkansas Division of Social Services was going to be removed from their home and placed with Stephen and Judy Schlobohm for adoption, they promptly filed a petition for adoption of the child with the Pope County Probate Court. Nine days later the Scholobohms filed a petition to intervene in the Falbos’ adoption proceedings and a petition for adoption, attaching a consent to adoption signed by Ivan Smith, the child’s legal guardian and a representative of Arkansas Social Services. After a joint hearing on the consolidated petitions, the probate court dismissed the petitions and restored the child to the custody of Arkansas Social Services. From that consolidated order, the Falbos appeal and the Arkansas Social Services cross-appeal. We affirm on appeal and dismiss the cross-appeal of Arkansas Social Services.
A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and that the adoption is in the best interest of the child or individual to be adopted. Ark. Stat. Ann. § 56-214(c) (Supp. 1979). If the requirements for an adoption decree are not met, the court shall dismiss the petition and determine the person to have custody of the child. Ark. Stat. Ann. § 56-214(d) (Supp. 1979). The court has broad discretion in awarding custody of a minor child, and its decision will not be reversed on appeal in the absence of gross abuse. Adams v. Adams, 224 Ark. 550, 274 S.W. 2d 771 (1955); Knight v. Dealers, 259 Ark. 45, 531 S.W. 2d 252 (1976).
Although the appellants did not obtain the required consent to their proposed adoption from their foster child’s legal guardian, the Arkansas Social Services, or allege in their adoption petition that consent should be excused, they complain on appeal because the probate court dismissed their petition. Since there was testimony below that the Arkansas Social Services would not approve or consent to an adoption of a normal, healthy infant, such as child here, by parents over the age of 34, as were the Falbos, appellants contend that the Arkansas Social Services exceeded its statutory authority by arbitrarily establishing an age limit for prospective adoptive parents. In effect, they argue for the first time on appeal that consent should have been excused by the probate court because the Arkansas Social Services unreasonably withheld its approval to their proposed adoption. Having failed to raise the consent issue in their pleadings, however, appellants not only fell short of establishing a prima facie case for adoption, but, since the issue was not raised below, they cannot now raise the issue on appeal. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848 (1974).
Appellants also argue that the chancellor’s decision to return the custody of the child to Arkansas Social Services was not in the best interest of the child. Appellants buttress this contention by referring to evidence which emphasizes the suitability of their home and the likelihood that relocation of the child would cause some temporary adjustment problems. Fully crediting the facts relied upon by appellants, and finding no need to state all of the facts which might have influenced the chancellor’s decision, we find no merit in appellants’ contention. The chancellor heard substantial testimony that the interest of an infant child would be best served by placement in a home with children close to the infant’s age and parents younger than the Falbos. Since restoring the child to the custody of the Arkansas Social Services would provide an opportunity to place the child in a more suitable home, we are unable to say that such a decision was not in the best interest of the child.
The Arkansas Social Services also seeks to cross-appeal from the decision of the chancellor dismissing the adoption petition of Stephen and Judy Schlobohm because of improper venue. Although we have reservations about the legal propriety of the chancellor’s dismissal, we find no basis to reach the issue without an appeal by the Schlobohms. Since Arkansas Social Services did not petition the court for adoption of the child, it has no standing to appeal from the order dismissing the petition for improper venue.
Affirmed on appeal and dismissed on cross-appeal. | [
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Frank Holt, Justice.
Following a valid Texas divorce, appellee filed an action for partition of their real property in Arkansas which was held by her and appellant during their marriage as tenants by the entirety. After an evidentiary hearing, the chancellor found that the divorce obtained by appellee in Texas converted the tenancy by the entirety to a tenancy in common, the property is subject to partition, and should be sold and divided equally between them. Appellant urges that the court erred in finding that the Texas divorce decree altered the title of the real property from one of tenancy by the entirety to one of tenancy in common and in not finding he was entitled to claim the estate by the entirety as his homestead under Ark. Stat. Ann. § 34-1801 (Supp. 1979) since he occupies it.
The parties retired and moved to Arkansas from Texas in 1970 and built their home here. In January, 1975, appellee left appellant and returned to Texas to live with her married daughter. In December of that year she filed for divorce in Texas, which was granted in May, 1976. In the meantime appellee had filed an action in Arkansas to enforce a temporary order of the Texas court regarding the couple’s property. However, this action was dismissed in September, 1976, after the Texas divorce was granted. The chancellor in the Arkansas proceeding declined to give full faith and credit to the Texas decree, stating that the Texas court did not have in rem jurisdiction of the property and, therefore, the decree was unenforceable inasmuch as it attempted to divide the couple’s property. He did not reach the question whether the Arkansas court had jurisdiction to order sale of the property and stated another action needed to be filed. No appeal was taken from this decision. Subsequently, the present partition action was filed.
Appellant argues that a foreign divorce decree cannot affect title to land in Arkansas, citing Tolley v. Tolley, 210 Ark. 144, 194 S.W. 2d 687 (1946). We agree. Even so, a study of two enactments of our legislature clearly indicates the intent of that body that an estate by the entirety should be dissolved by an Arkansas court when the marital status is terminated by divorce. Prior to 1947 an estate by the entirety could not be dissolved by the court pursuant to a divorce decree. However, the legislature in that year passed Act No. 340, § 1, Ark. Stat. Ann. § 34-1215 (Repl. 1962), which provided that chancery courts within Arkansas had the power to dissolve estates by the entirety upon the rendition of a final decree of divorce and treat the parties as tenants in common in the division and partition of this property. The emergency clause stated the necessity of this enactment because of “injustices” resulting from the lack of power in the courts of equity to dissolve such estates upon dissolution of the marital status. That statute was amended in 1975, Ark. Stat. Ann. § 34-1215 (Supp. 1979), to provide that when any chancery court of Arkansas renders a final divorce decree, an estate by the entirety is automatically dissolved unless the court specifically provides otherwise.
Although we adhere to our long-standing rule that a foreign court’s decree cannot, ipso facto, affect title to land in Arkansas, here an Arkansas court held an evidentiary hearing on a partition action following a Texas divorce decrree which was stipulated by both parties to be valid. Evidence was adduced that the appellant’s and appellee’s marriage spanned a period of 25 or 26 years except for a brief time in which they were divorced and remarried. They had lived and worked together in Texas before their retirement in Arkansas in 1970. She is 72 and he is 71 years of age now. They have no children from their marriage. Since the divorce, he has remarried and has continued to occupy the property, claiming it as his homestead. He acknowledged that, when he decided to sell the property, he would give appellee one-half of the proceeds. However, he desired to continue living there indefinitely.
Under our present statutes, which reflect public policy, dissolution of estates by the entirety should be permitted to avoid “injustices.” Upon an Arkansas divorce the estate is automatically dissolved, unless the court provides otherwise, converting it into a tenancy in common in the division and partition of the property. The chancellor’s hearing in the partition action here, in effect, amounted to a relitigation in an Arkansas court of the equitable interests of the parties.
In the circumstances, the chancellor correctly held the estate by the entirety should be converted to a tenancy in common, the property sold, the proceeds divided equally, and the appellant is not entitled to claim the property as his homestead.
As contended by the appellee, she is entitled to a reasonable attorney’s fee, pursuant to Ark. Stat. Ann. § 34-1825 (Supp. 1979), from the proceeds of the sale of the property.
Affirmed.
Hickman, J., concurs. | [
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James R. Cooper, Judge.
This is an appeal from a determination by the Chancery Court of Sebastian County holding that appellees were entitled to have their title to eighty acres of land in Sebastian County confirmed by reason of adverse possession and by reason of an “expressed survivorship title” in appellees’ predecessors in title. The Hillmers, plaintiffs in the trial court, filed their petition to quiet title on November 5, 1979.
On September 27, 1924, J.R. English and C.F. Bach took title as tenants in common to the eighty acres in question. English and Bach, who were unmarried and not related, lived on the property until their deaths. There was testimony indicating that they may have made two or more wills each, but the purposes of this case, each died intestate.
J.R. English died in 1963, leaving three sisters surviving him, namely Sara Ann Coulson, Emma Mamie Barcus, and Hannah Vince, who succeeded to his interest in the property. Sara Ann Coulson is now deceased, leaving Matthew Coulson as her sole heir. Matthew Coulson, Emma Mamie Barcus, and Hannah Vince were the defendants in the trial court, and are the appellants here.
After the death of J.R. English, C.F. Bach lived on the property alone, and paid or caused to be paid the taxes until his death on August 10, 1977. Bach was ninety-three years old at the time of his death, and for a number of years prior to his death the only portion of the property used by him was the small' house where he lived. No improvements were made on the land during the lifetime of Bach, and appellee Robert D. Hillmer testified that when he bought the property in October of 1977, the windows were starting to fall out of the house, the barn was rusting down, the old fence was on the ground, and the land was grown up in briars and brush.
On August 1, 1966, C.F. Bach executed a warranty deed purporting to convey the entire estate in the property to his sister, Fannie Sharp, and his niece, Evelyn Bernardin, reserving a life estate to himself. There was no visible change in the possession or control of the property after the execution and recording of the deed. On February 27, 1976, Fannie Sharp executed a warranty deed conveying her undivided one-half interest to Vermeil Daffron, her daughter.
On October 10, 1977, Evelyn Bernardin and Vermeil Daffron executed a warranty deed conveying the entire estate in the eighty acres to appellees. After an unsuccessful effort to obtain a quitclaim deed from the appellants, the appellees filed their petition to quiet title. In an alternative petition subsequently filed, the Hillmers asked that should the respondents below be declared to be one-half owners of the property, the Hillmers be reimbursed for their expenses in improving the property. The Hillmers allege extensive improvements on the property and the appellants concede in their response to the alternative petition that the Hillmers should be entitled to the current value of any such improvements. In their response, appellants proposed that the property be partitioned.
Vermeil Daffron testified that J. R. English and C. F. Bach had a verbal agreement that if one passed away, the other one got what was left, and that Bach had claimed the land as his own after English died. She stated that she and her sister, Evelyn Bernardin, paid the taxes for thirteen years; that she saw a will that had been executed in 1966 by C. F. Bach, and “. . .it said at his death that it went to his sister, Fannie Sharp, and to his niece, Miss Evelyn Bernardin.” She further stated that the will was not probated after Bach’s death, but that she wrote Emma Barcus, one of the appellants, and told her the farm was going to be sold, and that if she, Emma Barcus, had any interest in it, “My advice to you is to come on down and get a lawyer and put in for your part.”
Appellant Matthew Coulson is sixty-nine years old and lives in Kansas City, Missouri. He testified that he and his family visited J. R. English and C. F. Bach from time to time; that he heard a discussion between English and Bach regarding wills, and that English read his will; that it provided that “the one that lived the longest was to live on the property, keep the taxes paid until they passed away, and then it should be divided equally among the heirs.” Coulson also stated that after the death of English, Bach wrote Emma Barcus “all the time” and reported that he had paid the taxes; that Bach lived on the property with the permission of Coulson’s mother and aunts. He testified that he had no knowledge of the deed made by C. F. Bach in 1966 until November of 1979.
For reversal, appellants argue that (1) there was insufficient evidence to support the trial court’s ruling that appellees and their predecessors in title acquired title by adverse possession, and (2) there was insufficient evidence to support the trial court’s ruling that C. F. Bach inherited title to the property from J.R. English or that C. F. Bach took title to the property under an oral agreement.
It is undisputed that C. F. Bach alone was in actual possession and control of the property from the time of J. R. English’s death until Bach’s death in August of 1977. Appellees concede that they must “tack” their time of possession to that of C. F. Bach in order to show themselves entitled to ownership of the property by adverse possession, thus appellees have the burden of showing that Bach held adversely to the appellants.
The general rules for establishing title by adverse possession are set out in many Arkansas cases, and are clearly set out in the case of Utley v. Ruff, 255 Ark. 824, 502 S.W. 2d 629 (1973), where the Arkansas Supreme Court stated:
Title to land by adverse possession does not arise as a right to the one in possession; it arises as a result of statutory limitations on the rights of entry by the one out of possession. Possession alone does not ripen into ownership, but the possession must be adverse to the true owner or title holder before his title is in any way affected by the possession, and the word ‘adverse’ carries considerable weight. . . One of the cardinal principles of adverse possession in order that it may ripen into ownership is that the possession for seven years must have been actual, open, notorious, continuous, hostile and exclusive, and it must be accompanied with an intent to hold against the true owner.
In conclusion, the Court stated:
As already pointed out, for Mr. Ruff to have prevailed in this case, it would have been necessary for him to have proven actual acts indicating his claim of ownership in the possession of the land involved, otherwise the true owner would never know that anyone was claiming adversely and the true owner’s cause of action would not accrue until he did have actual or constructive knowledge or notice that his land was being claimed by another. . .
When J. R. English died, the appellants became co-tenants with C.F. Bach, and the mere lapse of time did not dissolve the co-tenancy. Griffin v. Solomon, 235 Ark. 909, 362 S.W. 2d 707(1962). If the successors in title to C.F. Bach, the appellees, are to show that the co-tenancy was dissolved, they must show that the possession of Bach was actual, open, notorious, continuous, hostile, and exclusive, and it must be accompanied with an intent to hold against the appellants. They must further show that Bach’s adverse claim was brought home to the appellants directly or by notorious acts of such unequivocal character that notice may be presumed.
In Dodson v. Muldrew, 239 Ark. 202, 388 S.W. 2d 90 (1965), Court refers to the rule in Singer v. Naron, 99 Ark. 446, 138 S.W. 958, an earlier case with approval.
The reason is that possession of one tenant in common is prima facie the possession of all, and the sole enjoyment of rents and profits by him does not necessarily amount to a disseizin. Hence, for the possession of one tenant in common to be adverse to that of his co-tenants, knowledge of his adverse claim must be brought hime to them directly or by such acts that notice may be presumed. In order for the possession for the tenant in common to be adverse to that of his co-tenant, knowledge of his adverse claim must be brought home to them directly or by such notorious acts of unequivocal character that notice may be presumed.
Between tenants in common there is also a fiduciary relationship, for they stand by operation of law in a confidential relation to each other, as to the joint property, and the duty is imposed on them to protect and secure their common interests. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848 (1974).
The only possible testimony which might show hostile possession by C. F. Bach was his delivery of the warranty deed to his sister and niece in 1966. There is evidence that the taxes were paid from that date by Vermeil Daffron and Evelyn Bernardin, but the property continued to be assessed and the taxes paid in the name of C. F. Bach. Standing alone, the delivery of the deed does not constitute substantial evidence of hostile or adverse possession on the part of C. F. Bach. After delivery of the deed Bach continued to live alone on the property as he had since the death of J. R. English; neither he nor his grantees made any improvements on the property; and the grantees did not enter into possession or exercise any other rights of ownership. More importantly, there is no evidence of acts so notoriously and unequivocally hostile as to charge appellants with knowledge of C. F. Bach’s adverse claim. They were not told that a deed had been executed, and they were under no obligation to search the record; indeed, if they had searched the tax record, they would have discovered that the taxes were assessed and paid in the name of C. F. Bach. There is evidence that Vermeil Daffron acknowledged the appellants’ claim when she wrote one of the appellants, Emma Barcus, after Bach’s death, and told her, “My advice to you is to come on down and get a lawyer and put in for your part.”
We hold that the decision of the trial court finding adverse possession in appellees is clearly against the preponderance of the evidence, and that appellees have failed to establish this claim.
We further hold that there was insufficient evidence to support the trial court’s ruling that C. F. Bach inherited title to the property from J. R. English, or that Bach took title under an oral agreement. Such a ruling would allow the conversion of a tenancy in common into a joint tenancy with right of survivorship, based upon an oral agreement. We are unaware of any authority for such a conversion.
In Williams v. Robinson, 251 Ark. 1002, 476 S.W. 2d 1 (1972) the Court stated, “We have long recognized that an oral contract to make a will to devise or a deed to convey real estate is valid when the testimony to establish such contract is clear, cogent, satisfactory, and convincing.” In Crowell v. Parks, 209 Ark. 803, 193 S.W. 2d 483 (1946), it was stated that the evidence must be so strong as to be substantially beyond reasonable doubt.
There is evidence that J. R. English and C. F. Bach agreed that the survivor was to take the entire estate, but there is also evidence that they agreed that the survivor would only have possession for as long as he lived. The testimony clearly falls short of the clear, cogent, satisfactory, convincing, and substantially beyond reasonable doubt test required to enforce and oral contract.
We hold that appellants and appellees are tenants in common as to the subject property, and the case is remanded to the trial court for further proceedings consistent with this opinion, including the alternative petition of appellees.
Reversed and Remanded.
Corbin, J., not participating.
Fogleman, Special Judge, not participating. | [
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Richard L. Mays, Justice.
After appellant was notified that his contract of employment with Boone County Hospital would be terminated, he sought a temporary restraining order in chancery court. The chancery court refused to grant the restraining order because it found that appellant would suffer no irreparable harm from the proposed discharge. We affirm.
On April 18, 1980, appellant, Dr. D. W. Kreutzer, the pathologist and director of the laboratory of the Boone County Hospital since 1971, was informed by letter that the Board of Governors of the Hospital had voted to terminate his contract, effective 60 days from the date of notice. Appellant’s contract provided a salary of $100,000 and authorized termination of the contract by either party upon 60 days writ ten notice to the other. Appellant complained to the Board that the decision to discharge him had been made in executive session without notice to him in violation of the Arkansas County Government Code, Ark. Stat. Ann. § 17-3101 et seq (Repl. 1980), and the Freedom of Information Act, Ark. Stat. Ann. § 12-2801 et seq (Repl. 1979). He requested the Board to hold a public hearing on the reasons for his discharge and buttressed his request by submitting supporting petitions signed by various community members. Although a letter was sent to appellant on May 8, 1980 generally outlining the reasons for the Board’s decision, the Board refused to hold a public hearing. On June 19, 1980, one day prior to the effective date of his discharge, appellant filed a complaint in chancery court alleging illegal termination of his contract and seeking to temporarily enjoin the Board from discharging him until the merits of his claim could be determined, he alleged that unless the Board was temporarily enjoined, his professional reputation, future employment opportunities and ability to care for his patients would be irreparably harmed. After a brief hearing, the chancellor denied the interlocutory relief and this appeal followed.
The issuance of a temporary restraining order is a matter addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal unless it is clearly erroneous. Spitzer v. Barnhill, 237 Ark. 525, 374 S.W. 2d 811 (1964), Ark. R. Civ. P. 52. Essential to the issuance of a temporary restraining order is a finding that a failure to isue it will result in irreparable harm to the applicant. Ark. R. Civ. P. 65. Harm is normally only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. State Police Commission v. Davidson, 252 Ark. 137, 477 S.W. 2d 852 (1972).
Appellant contends that the chancellor's finding that he had not made a sufficient showing of irreparable harm to justify issuance of a temporary restraining order is clearly erroneous. He alleges harm from the loss of his S 100,000 a year salary and from the possibility that he might be forced to move to another community to find suitable employment. He argues that the chances of obtaining acceptable employment, even if he relocates, will be significantly diminished because of alleged harm to his professional reputation. He then somehow concludes that these circumstances mandate a finding of irreparable harm and the issuance of a restraining order temporarily enjoining his discharge. We could not more forcefully disagree. These arguments are available anytime an employment contract is terminated. The chancellor need not indulge in speculation about appellant’s future employment opportunities in deciding the legal question here. No ground is lost by a denial of the interlocutory order which cannot be recouped in a court of law by a favorable judgment and an award of money damages.
Affirmed. | [
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David Newbern, Judge.
The question we find to be controlling here is whether the appellant’s amended complaint against the appellee, Elbert T. Pruitt, stated a claim which was barred by the statute of limitations. We agree with the chancellor that, if a claim was stated by the amended complaint, it was barred. We also agree with the chancellor that there was no showing of the negligence alleged against the appellee John Matthew Co., and thus we affirm the judgment favoring all of the appellees.
Barbara and Elbert Pruitt were divorced in 1970. Before their divorce, they had contracted to buy a parcel of land from the John Matthews Co. (Matthews). The divorce decree awarded the land in question to Elbert Pruitt, and after the divorce he continued to make the payments on it to Matthews. When the land had been paid off, Matthews conveyed it to Elbert Pruitt.
The appellant’s initial complaint, which was served in May, 1975, sought reformation of the deed from Matthews to Elbert Pruitt to make it one conveying the land to the appellant and Elbert Pruitt by the entireties. She contended the chancellor exceeded his authority in the divorce decree when she was effectively deprived of her equitable interest in the land arising from the purchase contract to which she was a party.
At the time the complaint was served, the land had been conveyed by Elbert Pruitt and the woman he married after the divorce to Paul Brooks. Thus, the complaint prayed that, if Brooks were determined to be a bona fide purchaser of the land without notice of the appellant’s claim, Matthews be held liable for damages in the amount of the value of half the land. The theory of the action against Matthews was one of negligence in conveying the land to Elbert Pruitt without naming the appellant as a grantee.
By an order of December 4, 1979, the chancellor held that Brooks was a bona fide purchaser for value without notice. Thereafter, the appellant amended her complaint to state that Elbert Pruitt had been guilty of fraud at the time the divorce decree was entered because he had informed the court that the appellant had only a “dower interest” in the land.
1. The claim against Matthews.
The chancellor found that Matthews was not negligent in conveying the land to Elbert Pruitt in reliance upon the divorce decree purporting to award the land to him. We find nothing in the record which would show that finding was clearly erroneous. A. R. Civ. P. 52(a).
2. The claim against Pruitt.
The chancellor found the claim against Elbert Pruitt was a tort claim and was barred by the three-year statute of limitations applicable to tort claims not specifically covered by other statutes of limitations, presumably Ark. Stat. Ann. § 37-206 (Repl. 1962). Bankston v. Davis, 262 Ark. 635, 559 S.W. 2d 714 (1978); Burton v. Tribble, 189 Ark. 58, 70 S.W. 2d 503 (1934); Field v. Gazette Publishing Co., 187 Ark. 253, 59 S.W. 2d 19 (1933). Whether the claim is one in deceit for damages or a restitutionary claim based on fraud, we agree it was clearly barred. The statute of limitations which applies to “actions not otherwise provided for” provides a five-year limitation. Ark. Stat. Ann. § 37-213 (Repl. 1962). Williams v. Purdy, Executrix, 223 Ark. 275, 265 S.W. 2d 534 (1954); Kahn v. Hardy, 201 Ark. 252, 144 S.W. 2d 725 (1940).
The fraud was alleged to have occurred at the time the divorce decree was rendered, i.e., August 20, 1970. The chancellor found a copy of that decree had been served on the appellant on that date. While the initial complaint in this action was served in May, 1975, and thus within the five-year period, it did not toll the statute with respect to any action against Elbert Pruitt based on fraud. Although that complaint asked for a remedy against Elbert Pruitt, it stated no claim or “cause of action” against him, as it did not allege facts showing he had committed fraud, negligence or breach of contract or any other actionable conduct.
If an amended complaint sets forth a new cause of action, it will not relate back to the initial complaint for the purpose of tolling the statute of limitations. The clearest holding to that effect by our supreme court was in Renner v. Progressive Life Ins. Co., 194 Ark. 874, 109 S.W. 2d 1245 (1937), where it was held that an amendment stating a tort cause of action did not relate back to the complaint which originally was in contract. Quoting from Davis v. Chrisp, 159 Ark. 335, 252 S.W. 606 (1923), the court said:
Our cases also hold that where there is an amendment stating a new cause of action . . . the statute of limitations runs to the date of the amendment and operates as a bar when the statutory period of limitation has already expired. [194 Ark. at 876].
This statement has more recently been approved in dictum in the case of Bridgmen v. Drilling, 218 Ark. 722, 238 S.W. 2d 645 (1951).
At the time the amendment was filed our new civil procedure rules had been adopted, and a complaint was no longer subject to a demurrer for failure to state a “cause of action.” To avoid the granting of a motion to dismiss, we now require that a complaint state “facts upon which relief can be granted.” A. R. Civ. P. 12(b)(6). The principle referred to above with respect to the statute of limitations remains applicable here, however, as no facts were stated in the original complaint upon which relief could have been granted against Elbert Pruitt. To the extent any such facts have been stated, they appeared in the amendment which came after any possibly applicable statute of limitations had run.
Affirmed.
Judge Hays did not participate. | [
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Lawson Cloninger, Judge.
In this workers’ compensation case, appellant Harvey D. Mosley appeals a decision by an administrative law judge, which was affirmed by the full Commission, precluding him from benefits because he gave false answers with respect to previous injuries when he made application for work with appellee Heim Brothers Packing Company.
We find there is no substantial evidence to support the finding of causal connection between the false representation and the injury, and we reverse and remand for the taking of further testimony.
Appellant sustained an injury to his lower back on December 18, 1978, while “catching beef’ at appellee Heim Brothers Packing Company’s plant. Appellees accepted the claim as compensable and paid compensation benefits until about October 7, 1979, when the benefits were terminated upon learning that appellant had falsified his employment application.
The full Commission found that the three criteria enunciated in Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W. 2d 232 (1979), were present and that appellant was precluded from additional benefits. In Shippers, the Arkansas Supreme Court adopted the test set out in IB Larson’s Workmen’s Compensation Law, § 47-53, which states:
The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and willingly made a false represenation as to his physical condition; (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring; (3) There must have been a causal connetion between the false representation and the injury.
Appellant made an application for employment at Heim Brothers Packing Company on May 25, 1978. On the application form, appellant denied ever having a workers’ compensation claim or having any back- injuries, when in fact he had suffered neck and lower back injuries in an automobile accident in August of 1975. He had received workers’ compensation for his injuries for several months, un til his employer, Merico Baking Company, discovered the injury was not job-related. There was substantial evidence to support the Commission’s finding that appellant knowingly and willfully made a false representation as to his physical condition.
The former plant manager for Heim Brothers Packing Company took appellant’s application for work and stated that he relied on the applicant’s answer to the question inquiring whether the applicant had suffered previous back injuries; that because of the nature of the work in a meat packing plant, he would not have hired appellant if he had known of his back problem. There is ample testimony to support a finding that the employer relied upon the false representation and that this reliance was a substantial factor in the hiring.
The third factor of the test adopted in Shippers v. Stepp, supra, is the only one seriously contested by the appellant in this case, and it is the point that has been most troublesome in a number of Arkansas cases. Recent cases which have explicitly dealt with the third factor are Baldwin v. Club Products Company, 270 Ark. 155, 604 S.W. 2d 568 (Ark. App. 1980); Shock v. Wheeling Pipe Line, Inc., 270 Ark. 57, 603 S.W. 2d 446 (Ark. App. 1980); and Foust v. Ward School Bus Manufacturing Company, 271 Ark. 411, 609 S.W. 2d 88 (Ark. App. 1980). In Baldwin, the claimant suffered an injury to her “right upper extremity.” She made a statement on her employment application form to respondent Club Products Company that she had never been injured on the job, when in fact she had suffered a previous injury which affected her left arm and hand. The Arkansas Court of Appeals reversed the denial of benefits to the claimant on the basis that there was no substantial evidence of a causal connection between the two injuries. The Court noted that all of the expert medical testimony supported the claimant’s position that there was no causal connection. The dissenters in Baldwin, Judges Penix and Newbern, felt there was substantial evidence, in that the claimant had testified she had been told by her doctor to avoid lifting and repetitive use of her left wrist. The dissenters found this to be sufficient evidence of a causal connection.
In Shock, supra, the claimant falsely stated on his employ ment application that he had never been injured on the job, when in fact he had previously suffered several injuries including one to his back. After being hired he suffered another back injury. The Court of Appeals held the testimony of a causal connection was incomplete and not fully developed. The Court stated:
In view of this situation we conclude, in the interest of fairness to all concerned, this case must be reversed and remanded for the sole purpose of developing the factual question of whether or not there was a causal connection between the false representation and the injury.
The most recent Arkansas case to deal with the application of the Shippers test as it relates to causal connection is Foust v. Ward, supra. The claimant was injured on the job and ultimately was operated on for severe lower back pain. Although he had answered an employment application question as to previous on-the-job injuries in the negative, he had received an earlier injury to his back. Testimony was also adduced to the effect that the claimant was suffering from a congenital back problem, although there was no evidence the claimant knew of this congenital defect prior to his hiring. In its opinion, the Court clarified the causal connection test, stating that this requirement is “. . . that a causal relationship exists between the previous injury or illness the employee misrepresented and the injury for which he seeks compensation.”
In Foust, the Court found there was evidence that the claimant’s congenital defect was a contributing factor to the injury, but that it could not be held that the claimant misrepresented his condition as required by Shippers, as there was no evidence the claimant knew about the defect at the time he was hired. The expert medical testimony was conflicting and sometimes inconsistent. The Court reversed the denial of benefits and remanded to the full Commission solely for the taking of further evidence with respect to the causal relationship issue.
In Shippers Transport v. Stepp, supra, the Arkansas Supreme Court stated that it is only fair that employers have a right to determine a health history before employment to avoid the possible liability for an accidental injury, causally related to an infirmity. Such a statement indicates, and reason affirms, that the employee has a responsibility to be truthful when making an application for work.
We agree with Judge David Newbern’s ruling in Foust v. Ward, supra, that the third factor should be regarded as a requirement that a causal relationship must exist between the previous injury the employee misrepresented and the injury for which he seeks compensation. There is evidence in the instant case that appellant suffered from a congenital back problem, but, as in Foust, there is no evidence he knew of it when he made his employment application with appellee. This was a condition which might well have been revealed to the employer if appellant had been truthful on his employment application, and demonstrates why public policy demands that an applicant be truthful, but it cannot be considered to show the necessary causal relationship unless the applicant knew of his congenital problem.
The Commission refers to 1973 back injury suffered by appellant, but the record does not reveal such an injury. The Commission also states that appellant sustained an injury to his head and a leg in 1977, but the only indication that this injury was related to the present injury is an inconclusive report from Dr. Harold Chakales, dated November 29, 1979, which states that, “I feel that this is a new injury which started from the injury of 1977. Even though he did injure his back, I am sure that he healed.” Nothing else in the record indicates there was an injury to appellant’s back in 1977.
The report of Dr. Chakales and the finding of the Commission that previous back injuries would predispose the claimant to additional back problems do not constitute substantial evidence. The Commission’s decision is reversed and the matter is remanded to the Commission for the taking of further evidence with respect to the question whether there is a causal connection between the two injuries.
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Tom Glaze, Justice.
The Arkansas Court of Appeals affirmed the Worker’s Compensation Commission’s affirmance of the administrative law judge’s ruling that appellee’s claim for initial benefits was filed within the two year statute of limitations mandated by Ark. Code Ann. § 1 l-9-702(a)(l) (1987). Hall’s Cleaners v. Wortham, 38 Ark. App. 86, 829 S.W.2d 424 (1992). We agree that appellee’s claim was timely, and affirm.
The statute of limitations issue was submitted to the Commission on the basis of a stipulated record, which essentially reflected that over a period of twelve years appellee developed a swan neck deformity in her left thumb. The deformity was caused by appellee’s continuous operation of a pressing machine while employed by appellant, Hall’s Cleaners. Some three years before she filed the claim at issue, appellee experienced pain and sought and paid for treatment from her family physician, Dr. Jim Citty. Dr. Citty informed appellee that appellee’s thumb deformity was job-related and irreversible. Appellee reported Dr. Citty’s opinion to appellant in September of 1987 and was thereafter removed from the position of press operator and reassigned to a less strenuous position at the front counter. The reassignment did not affect appellee’s wages.
Appellee’s pain increased, yet Dr. Citty maintained his position that the condition could not be remedied. However, he did recommend that appellee seek a second opinion and directed her to a Dr. Green. Dr. Green, after investigation, told appellee the deformity could be repaired by fusing the joints back together. •
Relying on this information, appellee left her employ at Hall’s Cleaners and consented to the surgery recommended by Dr. Green. The surgery took place on August 31,1989. Appellee returned to work a little over a month after the operation. Appellee then filed her claim for benefits on October 12, 1989.
The administrative law judge ruled the injury to be a “gradual on-set injury” which did not accrue until August 31, 1989, when appellee first lost time from work, thus, her claim, having been filed on October 12, 1989, was well within the two year statute of limitations. Appellee was awarded temporary total disability from August 31, 1989, through October 9, 1989. She also received a permanent impairment rating of 25 % to the left hand.
The Commission, in a 2-1 decision, affirmed, holding that, (1) appellee’s injury was not a latent injury and (2) that the substantial character of her injury was known more than two years prior to the filing of her claim but that the claim was not barred by the statute of limitations because her injury did not cause an incapacity to earn wages until August 31,1989, and that the statute did not begin to run until that date. The Court of Appeals affirmed the decision, and we granted review.
The issue presented to the Court of Appeals was whether there was substantial evidence to support the Commission’s decision that appellee’s claim for benefits was not barred by the statute of limitations. On appeal the evidence must be viewed in the light most favorable to the Commission’s decision and its decision must be upheld if it is supported by substantial evidence. St. Michael Hospital v. Wright, 250 Ark. 539, 465 S.W.2d 904 (1971). Thus, before the appellate court may reverse a decision by the Commission, it must be convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. International Paper Co. v. Tuberville, 301 Ark. 22, 786 S.W.2d 830 (1990).
The statute under consideration is Ark. Code Ann. § 11-9-702(a)(1) (1987) which provides:
TIME FOR FILING. (1) A claim for compensation for disability on account of injury, other than a occupational disability and occupational infection, shall be barred unless filed with the commission within two (2) years from the date of’the injury.
The issue on appeal is when did appellee’s condition first rise to the level of an “injury” for purposes of commencing the statute of limitation. The decisions of this Court, and those of the Court of Appeals, consistently proclaim Arkansas to be an “injury state,” that is, the statute of limitations begins to run at the time of the injury as opposed to the time of the accident. Donaldson v. Calvert-McBride Printing Co., 217 Ark. 625, 232 S.W.2d 651 (1950); Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983); Calion Lumber Co. v. Goff, 14 Ark. App. 18, 684 S.W.2d 272 (1985). However, review of the case law on this subject demonstrates that labelling Arkansas merely as an “injury state” is somewhat misleading.
In Donaldson, this court held that, for purposes of commencing the statute of limitations under § 11-9-702(a)( 1), the word “injury” is to be construed as “compensable injury,” and that an injury does not become “compensable” until (1) the injury develops or becomes apparent and (2) claimant suffers a loss in earnings on account of the injury. Donaldson, 217 Ark. at 629-631, 232 S.W.2d at 654. Thus, the statute of limitations does not begin to run until both elements of the rule are met. Therefore, Arkansas is technically a “compensable injury” state. (For a review of cases in which our decision in Donaldson was applied see, Shepherd v. Easterling Const. Co., 7 Ark. App. 192, 195, 646 S.W.2d 37 (1983) and Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 98-99, 661 S.W.2d 433 (1983)).
The following provision, Ark. Code Ann. § 11-9-501 (a) (1987) determines at what point an injured worker first becomes entitled to benefits:
Compensation to the injured employee shall not be allowed for the first seven (7) days disability resulting from injury, excluding the day of injury. If a disability extends beyond that period, compensation shall commence with the ninth day of disability. If a disability extends for a period of two (2) weeks, compensation shall be allowed beginning the first day of disability, excluding the day of injury.
Although appellee’s injury had been apparent for some three years, it is undisputed that she was never absent from the job until she reported to the hospital for reconstructive surgery on August 31, 1989. Thus, it was not until that time, when she missed a month of work, that she became entitled to benefits under the Workers’ Compensation Law. Therefore, we hold that it was not until she underwent surgery that the limitations period of Ark. Code Ann. § ll-9-702(a)(l) commenced to run. The Court of Appeals was correct in affirming the Commission’s specific finding that appellee’s claim was not barred by the statute of limitations.
On appeal, appellants contend that appellee’s claim is barred by the statute of limitations and premises this point upon our decision in Cornish Welding Shop v. Galbraith, 278 Ark. 185, 644 S.W.2d 926 (1983). They argue the statute commenced to run on the date Dr. Citty informed appellee that her deformity was both job related and irreversible. Appellant’s reliance on Cornish Welding Shops is misplaced and the distinction between Cornish Welding Shops and the case at bar is rudimentary.
It is clear that the issue at bar today is, “what is a compensable injury for purposes of commencing the statute of limitations contained within §1 l-9-702(a)(l),” which applies to a claimant’s right to recover benefits for an initial “compensable injury.” However, in Cornish Welding Shops, this court was confronted with the issue, “when does the statute of limitations contained within § 1 l-9-702(b) commence to run?” That provision, in pertinent part, reads as follows:
TIME FOR FILING FOR ADDITIONAL COMPENSATION. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one year one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.
Therefore, § ll-9-702(b) and Cornish Welding Shops govern only the time in which a claimant, suffering a recurrence of an earlier fully compensated “compensable injury,” must file a. claim for “additional compensation.” It is clear from a reading of both Donaldson and Cornish Welding Shops that the former is a “compensable injury” case under § 1 l-9-702(a)(l) and the latter a “recurrent injury” case under § 1 l-9-702(b). Likewise, the case at bar is a “compensable injury” case and thus, the Commission and the Court of Appeals were correct in ruling that Donaldson is controlling.
We therefore affirm the Court of Appeals.
Holt, C.J., not participating. | [
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Robert L. Brown, Justice.
The appellant, Ida Mae Allen, raises three points for reversal of a verdict and judgment against her in the amount of $300,000, resulting from a vehicular collision and injury to the appellee, Orlando David Burton. None of the points has merit, and we affirm.
On March 17, 1990, Ida Mae Allen and Orlando David Burton, were traveling separately on Highway 65 near Pine Bluff. Both parties were southbound. The portion of Highway 65 involved has five lanes — two southbound, two northbound, and one center turning lane. Allen was driving a car in the inside lane a short distance behind Burton, who was driving a motorcycle in the outside lane. Allen’s husband was a passenger in her car. Burton had a friend riding on the back of his motorcycle.
What happened next is disputed by the parties. According to Allen, she first observed Burton pulling into the outside lane from the shoulder of the highway. His right signal light was on, she said. Once he was in the outside lane, he did not turn off the right-turn signal, which remained on until the accident, according to Allen. She further stated that she was in the inside southbound lane behind Burton, while he was in the outside lane. As the front of her car began to come even with the front of Burton’s motorcycle, he turned left directly in front of her. She applied her brakes, struck the motorcycle, and ended up in the northbound lane headed toward a ditch.
Burton’s version of the incident was altogether different. He denied ever having been on the highway shoulder. Instead, he testified that he was attempting to turn into an intersection to get into the northbound lane of Highway 65 when the accident occurred:
Well, when I put my signal light on and looked in my mirror, I saw I had time to change to the center lane, so I changed. And I was driving very slowly in this lane so I could find an intersection so I could get off and turn around and go back. And as I saw an intersection that I could turn left into, when I got ready to turn, I put my signal light on and checked my mirrors. When I got — as soon as I went into my turn to get into the turn lane, then I was just hit from my left. The car behind me just ran into me.
Burton lost his left foot and a portion of his left leg because of the accident. He filed suit against Allen. Allen, in response, pled that Burton was under the influence of alcohol and was negligent,, which proximately caused his own injuries. Following a jury trial, the verdict of $300,000 was rendered.
I. AMI INSTRUCTION 902
Allen argues for her first point that AMI Instruction 902 was improperly given over her objection because it did not identify a specific purpose for which the superior vehicle could use the highway. The instruction read to the jury was as follows:
Now, when two vehicles are traveling in the same direction, the vehicle in front has the superior right to the use of the highway [for any proper purpose] and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. Now, this does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road. (Brackets, ours.)
Apparently, before the jury retired to reach its verdict, Allen objected to AMI 902. However, no record of the objection was made. After the jury went out, the trial court stated that counsel could make his objection for the record “just as if it had come prior to our giving it to the jury.” Allen’s counsel then stated the objection:
Your Honor, the defendant objects generally and specifically [to] the court’s giving AMI 902 specifically named instruction number 13 having to do with the — having to do with the superior right of the forward vehicle in that I do not think this case presents the unique set of facts that the framers of the AMIs anticipated by the use of this instruction. Specifically, we have here an alleged change of lane situation, and I do not think that the instruction as given, or even generally or otherwise was proper under the circumstances.
The trial court then asked Burton’s counsel for a reply, and this colloquy ensued:
BURTON’S COUNSEL: Your Honor, just to be sure the record is clear on Mr. Huckabay’s objection, 902 goes to the giving of the instruction generally, not for the language that we inserted in the instruction or used the term “for proper purposes” rather than saying, “for purposes of turning through an intersection,” over such language . . . Mr. Huckabay’s objection is to the . . . instruction [being given] at all, not the language of the instruction.
ALLEN’S COUNSEL: Your Honor, I believe what I said was what I said.
BURTON’S COUNSEL: Well, I understand. . . .1 just wanted to be sure that when the brief time comes —
ALLEN’S COUNSEL: I have nothing more to say other than what I said. . . .
BURTON’S COUNSEL: Well ... I know what we said back in chambers, and I just wanted to be sure that
ALLEN’S COUNSEL: And I don’t think my instruction violated anything we said in chambers. Now, I [am] simply telling you what I objected to, and I think it’s pretty clear.
The trial court then ruled that though the proof was in conflict, there was some proof that Burton had completed a lane change and was the forward vehicle and that AMI 902 was appropriate.
We have held that the failure to insert a specific purpose in the bracketed portion of AMI 902 is error. Harlan v. Cubro, 250 Ark. 610, 446 S.W.2d 459 (1971). However, it is clear in this case that Allen objected to the propriety of the AMI 902 instruction under the facts of this case and not to the absence of a precise purpose set out in the AMI 902 brackets. It is further clear that she has raised the argument of lack of a precise purpose in AMI 902 for the first time on appeal. It is axiomatic that Allen was required to object distinctly and specifically to any deficiency in AMI 902 as given. Ark. R. Civ. P.51; see also Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991). No such objection appears of record. Rather, Allen argued that this was a change-of-lane case, and the superior-vehicle instruction was not applicable. We have consistently held that a party cannot make a new argument on appeal. See, e.g., Mobbs v. State, 307 Ark. 505, 821 S.W.2d 769 (1991). Because the objection concerning a specific purpose in AMI 902 was not raised below, we will not consider it for the first time on appeal.
We note on this point that a verbatim record of Allen’s objection to AMI 902 was not made when the objection was first brought to the trial court’s attention. This violates our Administrative Order No. 4, effective July 1, 1991, which states:
Unless waived on the record by the parties, it shall be the duty of any circuit, chancery, or probate court to require that a verbatim record be made of all proceedings pertaining to any contested matter before it.
It puts this court at a considerable disadvantage in reviewing points pertaining to unrecorded hearings, when a verbatim record is not before us. Clearly, what is recollected after the jury retires may have gaps and may be disputed by the participants.
II. ALCOHOL DEFENSE
Allen next argues three points pertaining to Burton’s consumption of alcohol before the incident. The first point deals with whether she proffered an exhibit marked number seven in a timely manner. The exhibit involved is a hospital record made during Burton’s hospital stay with a handwritten notation: “Pt. refused to sign blood alcohol consent form @ 1735 h. as requested by State Trooper present in room. State Trooper removed pt.’s driver’s license from pt.’s wallet @ 1737 h.”
As in the case of the first issue, there was no recorded hearing relating to the admissibility of Exhibit 7 until after the jury began its deliberations. Apparently, however, a pretrial hearing was held on the various exhibits and witnesses to be presented by the parties. Allen asserts that the trial court denied admission of her exhibit, over her objection, at that time. The trial court’s memory of those events, which was recorded after the jury had retired, was different:
And, at that time, five of the six documents, as I recall, were reluctantly agreed to by plaintiff’s counsel that were admissible although . . . plaintiff s counsel did not waive his right to object to them if he felt [that] tactically and strategically he should do it at that time. It never dawned on me that Mr. Huckabay would not offer the sixth document for the Court’s ruling at the proper time in the course [of] the trial. I did, however, indicate I felt like there was probably a more valid objection to that document [than to] any of the other ones. And at such time as the trial proceeded to that point when Mr. Huckabay offered the other five documents, the sixth one was not offered and has not been until this time.
Allen’s counsel and the trial court plainly have a disagreement over what transpired at the pretrial hearing regarding this exhibit. The trial court, however, was definite that he had not ruled on its admissibility.
A proffer of an exhibit is essential to appellant review. See, e.g., Loyd v. Keathley, 284 Ark. 391, 682 S.W.2d 739 (1985). That an exhibit must be offered into evidence before the taking of proof has concluded is self-evident. Here, the trial court stated that Exhibit 7 was neither offered as evidence nor proffered before the jury retired. The court, as a consequence, never had occasion to rule on the matter. A proffer of evidence is appropriate after the trial court has denied its admissibility. The trial court stated, though, that a denial never took place, and we give that statement credence. The Court of Appeals has stated that the trial court has great discretion as to the time when a proffer of proof may be made. Sitz v. State, 23 Ark. App. 126, 743 S.W.2d 18 (1988). We cannot say that the trial court abused that discretion in refusing to consider the contested exhibit after the jury had retired to consider its verdict.
The second issue concerns a comment by the trial court during voir dire. Burton’s counsel advised the jury panel that Burton would testify that he had consumed two beers before the accident. Counsel then inquired whether the fact that Burton had drunk any beer at all would cause any juror to decide that Burton should not prevail. Three prospective jurors indicated affirmative responses, and they were excused for cause.
Additional jury panel members were called forward and questioned about possible prejudices against persons who ride motorcycles. The trial court returned to the subject of alcohol, inquiring:
Would the fact that some alcohol was involved [affect your decision] ? Now, nobody has indicated that there was likely to be any proof that there was a quantity of alcohol sufficient to cause any of the laws of this state to be broken or anything like that.
At that point, Allen’s attorney requested a bench conference, and the proceedings were recessed. Out of the presence of the panel, he objected to the trial court’s alleged comment on the evidence that there would be no evidence that Burton was intoxicated. After some conversation, the trial court suggested the plausibility of such an instruction, and Allen’s attorney interrupted and said:
That’s fine. My — just wanted the Court to know I would not have done anything so bizarre as to have the jury excused for this objection, but that I thought, as I remember what the Court said, that was the reason for my objection.
By taking this position, Allen conceded that a mistrial was not warranted which precludes a claim of error on that aspect on appeal. See Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 520, 780 S.W.2d 543, 544 (1989). The remaining question then is whether it was incumbent upon Allen to pursue the remedy of a cautionary instruction which she appeared to agree to.
We think that it was. We have held that the burden is on the complaining party to request such an instruction. See Matkin v. Jones, 260 Ark. 731, 543 S.W.2d 764 (1976). It is further the complaining party’s burden to assure that the instruction is given, if the party is serious about curing asserted error. Allen did not do so, although her attorney had previously requested that course of action. She cannot now complain about its absence on appeal.
For her final point relating to alcohol, Allen contends that the trial court committed error in allowing Burton’s counsel to state in closing argument: “There is no competent evidence this man was intoxicated.” Allen hinges her argument on the court’s disallowance of Exhibit 7 relating to Burton’s refusal to permit a blood test for alcohol and urges that this exhibit would have constituted competent evidence of intoxication. As we have already indicated, Allen proffered this exhibit too late.
In addition, we view the statement by Burton’s counsel as argument — not evidence. There was ample proof before the jury that Burton had consumed three or four beers and half a pint of whiskey before the accident. Burton contested these facts and argued that there was no proof that he was drunk. We do not believe that Allen’s case was prejudiced by this remark in closing argument.
III. JUROR COERCION
The jury retired to deliberate at 4:58 p.m. They returned to the courtroom at 6:40 p.m. because of difficulty in reaching a verdict. Allen’s attorney indicated that the judge might wish to inquire “not as to their numerical standing” but if they were deadlocked. He added that if they were, the court should give them the dynamite instruction. The trial court stated that it would not inquire about where they actually stood. When the jurors had been reseated, the court addressed them:
Okay. I’ve been told by the bailiff that . . . it’s been reported to him that the jury has been unable to arrive at a verdict in this matter. Without telling me how you stand in terms of for or against the defendant, could you tell me numerically if the split is six to six or nine to three — or well, not nine to three because if it was nine to three you’d have a verdict. . . . But without telling me again which side is for, can you give me an idea of where the vote seems to stand if you’ve taken a vote.
JURY FOREMAN: Yes, sir. It is about eight to four.
THE COURT: About eight to four? Okay. Ladies and gentlemen, I have previously instructed you, of course you understand that it takes only nine to arrive on a verdict. I want to make sure you understand that to start with. Sometimes I wonder if folks really understand.
The court then gave AMI 2303, the “dynamite instruction,” which encourages a verdict. The court added that the jury should “give it the good ole college try” and make a reasonable effort to harmonize its views. Allen offered no objection to any of the foregoing. The jury then went back to their deliberations and returned with a verdict in Burton’s favor in fairly short order at 7:12 p.m. The verdict was agreed to by nine jurors.
We have said in a criminal case that an inquiry into numerical standing, though not commendable, might be done in such a way as not to constitute error. See Hopes v. State, 294 Ark. 319, 742 S.W.2d 561 (1988), citing Murchison v. State, 153 Ark. 300, 240 S.W. 402 (1922). Here, we discern no coercive motive on the part of the trial court. Indeed, the court repeated that in reaching a verdict jurors should not give up their individual convictions. The critical factor here, though, is Allen did not follow-up on his misgivings about a request for numerical standing or object when the trial court asked for the numerical split and added its comments. An appellant may not complain on appeal of an erroneous action of a trial court, if he acquiesced in that action or failed to object. Daniels v. Cravens, 297 Ark. 388, 761 S.W.2d 942 (1988).
Affirmed.
The sixth document referred to by the trial court is the disputed Exhibit 7. | [
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Jack Holt, Jr., Chief Justice.
Delma Richey, plaintiff-appellant, sought recovery for damages arising out of an automobile collision that occurred between her and the appellee, Jessie Frank Luffman. The jury verdict favored Mr. Luffman. Mrs. Richey appeals the verdict claiming the trial court erred in refusing her proffered jury instruction based upon Ark. Code Ann. § 27-51-306 (1987), relating to use of an audible signal by an overtaking vehicle. We find the trial court did not err and affirm.
On January 17, 1988, Mrs. Richey was traveling west on a two lane highway, Highway 62, in Randolph County, Arkansas. Mr. Luffman, accompanied by his mother, was traveling behind her. Although the facts are in dispute, the record indicates that Mrs. Richey turned left toward her church parking lot simultaneously to Mr. Luffman passing her on the left. It is disputed whether Ms. Richey signaled to turn. Anyway, as Mr. Luffman passed Mrs. Richey the two vehicles collided. Mr. Luffman’s vehicle, a 1971 Ford truck, was damaged in the right rear end. There was no evidence to indicate that Mr. Luffman honked as he passed Mrs. Richey. Mrs. Richey’s vehicle, an Oldsmobile, sustained a damage to the driver’s side door and front fender.
Ms. Richey sued Mr. Luffman to recover $750.98 in property damages to her car as well as $12,187.92 for her personal injuries. At trial Mr.Luffman and his mother testified that Mrs. Richey pulled to the right hand shoulder of the roadway, and that Mr. Luffman gave a turn signal with his left blinker, pulled in the left lane and was in the left lane, along side of Mrs. Richey when she turned into him as he turned into a driveway trying to avoid the accident.The parties dispute whether she used a turn signal. Although no evidence was presented regarding whether Mr. Luffman honked his horn as he proceeded past Mrs. Richey on the left,there was a stipulation that if Mrs. Richey testified, she would say that she did not hear Mr. Luffman honk his horn prior to the collision. After hearing all of the evidence, the jury reached a verdict in favor of Mr. Luffman.
Mrs. Richey requested that a modified version of AMI 601 be given to the jury. This instruction is based upon Ark. Code Ann. § 27-51-306 (1987). Mrs. Richey wanted the jury instructed as to the following:
PROFFERED INSTRUCTION NO. 1
There were (sic) in force in the state of Arkansas at the time of occurrence a statute which provided:
First: When overtaking and passing a vehicle on the left the driver of an overtaken vehicle shall yield to the right when given an audible signal by the overtaking vehicle.
AMI 601
Ark. Code Ann. § 27-51-306 (1987)
The trial judge refused this instruction stating that it causes prejudice.
The jury instruction at issue, Proffered Instruction Number 1, asserts that once the overtaking vehicle gives an audible signal, the overtaken vehicle must yield the right-of-way, even though he has properly given a turn signal. By implication, it provides that an overtaking driver has a duty to make an audible noise when passing on the left. This is not a correct statement of the law.The relevant statute, Ark. Code Ann. § 27-51-306 (2) (1987), places a duty on the overtaken driver to yield right of way only if the overtaking driver does use an audible signal:
Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall yield to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
Since there was no evidence presented that Mr. Luffman sounded a signal as he passed Mrs. Richey, the proffered jury instruction is not relevant.
We came to the same conclusion in Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157 (19868). There, two cars were traveling the same direction behind a third car. Apparently, the two cars decided to pass the lead car at the same time which resulted in a rear end collision. We affirmed the trial court’s refusal of a jury instruction based upon Ark. Code Ann. § 27-51-306 (2) (1987) explaining:
First, there was no evidence of audible signal having been given by either vehicle. Therefore the instruction tendered an issue not in contention. To that extent the instruction was abstract. ... It should also be pointed out that this rule of the road imposes a duty on that driver being overtaken. There the requirement that an overtaking driver always sound his horn was deleted. Consequently, the instruction should not be given unless there is evidence that the driver being overtaken failed to give way to the right on audible signal.
Smith, supra (emphasis added).
Mrs. Richey argues that the recent case of Neal v. J.B. Hunt Transp. Inc., 305 Ark. 97, 805 S.W.2d 643 (1991), expands the Smith, supra, decision. In Neal two reasons were provided for not giving the instruction: where there is “neither evidence of audible signal nor evidence that the overtaken vehicle failed to give way to the right.” Mrs. Richey argues that, by implication, Neal, supra, allows the proffered jury instruction if there is evidence of either an audible signal or that the overtaken vehicle,didn’t yield right of way. We disagree. Neal merely indicates two reasons for not giving the instruction.
We have held that “there is no error by refusing an instruction which may have misled or confused the jury.” Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992). See also Arkota Indus. v. Naekel, 274 Ark. 173, 623 S.W.2d 194 (1981) (“The court properly refused a proffered instruction which contained several provisions of the statute that were not pertinent to the case and might have been confusing to the jury.”)
Suffice it to say, the proffered instruction was not applicable to the facts at hand, and the trial court’s refusal to give it was not error.
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George Rose Smith, Justice.
On the night of June 19, 1974, the appellant, Shirley Marie Curry, in four successive incidents shot and killed five persons and wounded a sixth. She was charged with capital felony murder in the second incident, in which she killed her former husband, Jimmy Lee Curry, and their daughter Sabrina, aged 17. The case was inactive for about four years because Mrs. Curry was committed to the State Hospital and found to be mentally ill to the degree of legal irresponsibility.
In July, 1978, the doctors reported that Mrs. Curry had recovered from her psychotic illness, had been in remission for over a year, and was able to understand the proceedings and to assist effectively in her own defense. They were still of the opinion that at the time of the offenses Mrs. Curry had probably been suffering from a mental disease or defect to such a degree as to make her unable to appreciate the criminality of her conduct or to conform her conduct to the requirements of the law. They expected Mrs. Curry to remain in remission from her iüness as long as she continued medication.
Upon resumption of the proceedings Mrs. Curry pleaded not guilty by reason of insanity. The first trial resulted in a hung jury. At the second trial the jury found Mrs. Curry guilty and sentenced her to life imprisonment without parole. The principal issue on appeal is whether there is .substantial evidence to support the jury’s conclusion that Mrs. Curry was not insane at the time she committed the two murders in question.
There is actually very little dispute in the testimony, the difficulties lying in the inferences to be drawn.
Mrs. Curry was awarded custody of the couple’s three children when she obtained a divorce in 1967, but her husband insisted upon a provision that the children be allowed, as each one reached 14, to choose the parent they wanted to live with. In 1971 Sabrina, the oldest child, chose to live with her father. June Cook, a frequent visitor to Mrs. Curry’s home after that, was surprised at the extent of Mrs. Curry’s hostility toward her former husband as much as six years after the divorce. The witness was also impressed by Mrs. Curry’s bitterness toward her daughter, whom she didn’t want to see or talk to. The bitterness arose from Sabrina’s decision to live with her father. Mrs” Curry also thought Sabrina was influencing the two boys to live with their father when they were old enough to choose.
According to lay witnesses, Mrs. Curry, with the possible exception of a few instances having no direct bearing on the case, appeared to be a normal person. She was unusually self-sufficient. During the early 1970’s she built and occupied her own house, going to the lumberyard to select materials and learn how to use them. Even the doctors whose testimony supported the defense of insanity found Mrs. Curry to be of above average intelligence and testified that she would have seemed to be a normal person in ordinary matters.
The homicides occurred on the night of June 19, 1974. That morning there was a hearing in chancery court about the custody of the older son, Richard, who was 14 and chose to live with his father. Among the witnesses were four persons who were to be killed that night: the father, Sabrina, Richard, and Jessie, the younger son, aged 11. Mrs. Curry testified, among other things, that she had objected to the children’s being allowed to make a choice of parents. She admitted having threatened to shoot her former husband. She had told Richard, in connection with the possibility of his leaving at 14, that if his father came to the house and tried to take the child’s clothing and things away, “I’ll blow his guts out.” She said she made that statement because she felt like it. The court awarded Richard’s custody to the father, effective the next day.
The bare facts about the homicides were stipulated, with some additional testimony. Apparently Mrs. Curry first killed her two sons at her home in Lowell. Shortly after midnight she drove her pickup truck to her former husband’s home in Springdale and committed the two murders charged in the information. She shot Jimmy Lee Curry when he came to the door. She then went into Sabrina’s room. When Sabrina asked who it was, Mrs. Curry answered in a calm voice, “It’s your mother.” She then turned on the light and shot Sabrina. She went next to the home of Jimmy Lee Curry’s half-sister, in Springdale, and killed her. Her last visit was to the home of her own sister’s former husband, James Dodson, who lived west of Farmington. She shot Dodson twice, but not fatally. Dodson testified that his own divorce proceeding had been just about as nasty as you could get.”
Mrs. Curry was arrested and taken to police headquarters in Fayetteville. One officer testified that the first thing Mrs. Curry said to him was, “I missed the sixth one, didn’t I?” She seemed calm in answering questions as she was being booked, but she did say to an officer that she was not afraid of him and could kill him with two fingers. A matron at the jail testified that one morning while Mrs. Curry was in custody there she said she was happier than she had ever been, because her kids were in heaven.
There was expert testimony by four physicians: Dr. Bowers, Dr. Jenkins, Dr. Oglesby, and Dr. Taylor. They all thought that Mrs. Curry was not criminally responsible for the homicides. Three of them diagnosed her illness as paranoid schizophrenia. The fourth, Dr. Taylor, thought she suffered from paranoia only, but he had signed the staff report finding paranoid schizophrenia because such reports had to be unanimous. The opinions of the doctors were essentially similar. Dr. Bowers, for example, testified that Mrs. Curry had believed herself to be acting as a messenger of God or of the devil, whichever way she chose. She could not appreciate the criminality of her conduct. He did find it highly unusual that Mrs. Curry’s first incident of paranoid schiizophrenia occurred at about age 36; the first incidents usually occur in the 20’s. Dr. Jenkins said that Mrs. Curry believed that God was instructing her to do what she did. He said she was probably under a delusion at the time of the killings, though the psychosis can come and go with lucid intervals in between. She could have known that she was loading a gun, that she was pulling the trigger, • that she was killing people, that they would be dead. All those things were consistent with her delusion.
The jury were instructed, in the language of AMCI 105, that they were not bound to accept an expert opinion as conclusive, that they should give it whatever weight they thought it should have, and that they might disregard any opinion testimony found to be unreasonable. In a recent case involving a plea of insanity we pointed out that even though several competent experts agree and there is no opposing expert testimony, the jury must still decide the issue upon its own fair judgment. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979).
We find substantial evidence to support the jury’s verdict. The two homicides on trial were those of the defendant’s former husband and 17-year-old daughter. Her hostility toward her husband had existed for some seven years; she had threatened, apparently more than once, to kill him. Her bitterness against her daughter had existed for three years and was such that she did not want to see the girl or to speak to her. Mrs. Curry was by no means incapable of rational thought; to the contrary, for all her life she had usually gone about the ordinary affairs of life in a normal manner. Upon the proof as a whole we cannot say that reasonable minds could not reach the conclusion reflected by the jury’s verdict. Indeed, a contrary holding in the face of all the evidence supporting the verdict would be in effect to say that when the expert witnesses agree with one another the jurors can reach no other conclusion. That is not the law.
A second argument is that the court should have given a requested instruction, taken from the language of Ark. Stat. Ann. § 41-612 (Repl. 1977), explaining to the jury that even after a verdict of not guilty by reason of insanity the court would still have three alternatives, the first of which would be to commit the defendant to an appropriate institution if the defendant was found to be so affected by mental disease or defect as to present a risk of danger to herself or to the person or property of others. The other alternatives were also explained, the general effect being to tell the jury that Mrs. Curry would not automatically be released if found not guilty by reason of insanity.
Instructions such as this one have been considered in many cases. Annotation, 11 A.L.R. 3d 737 (1967). The argument in favor of the instruction is that jurors know the effect of verdicts of guilty or not guilty, but they do not know the effect of a finding of insanity and may return a verdict of guil ty to be certain that an insane person will not be prematurely released. On the other hand, the instruction raises questions foreign to the jury’s primary duty of determining guilty or innocence. Moreover, it would hardly be possible to give a jury complete and accurate information about all the possible future decisions with respect to a person found to be not guilty by reason of insanity. In much the same way, it is not really practical to tell a jury all about the parole system, even though it has a practical effect upon any sentence to confinement in the Department of Correction. Our rule is that no effort should be made to explain the parole system to the jury, even if the jurors request an explanation. Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971).
Upon the issue now presented the decisions in other jurisdictions are sharply divided, with the present trend being in favor of the giving of the instruction. In a case directly in point, however, we have held that such an instruction should not be given, because the jury is not officially concerned with the procedure to be followed after a verdict of not guilty by reason of insanity. Campbell v. State, 216 Ark. 878, 228 S.W. 2d 470 (1950). We have re-examined the question in the light of the more recent decisions and adhere to our position.
The appellant’s remaining argument is that the trial judge unduly restricted defense counsel in their questions about prospective jurors’ views about the defense of insanity. No objection was ever made that pinpointed an adverse ruling with regard to a specific question; so no error is shown. Indeed, we do not see that counsel were really restricted in any manner.
Affirmed.
Holt, J., concurs.
Hickman and Hays, JJ., dissent. | [
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David Newbern, Justice.
This is a medical malpractice case. The appellant, Betty Tullock, sued the appellee, Dr. Gareth Eck, along with another physician and the medical center in which they work. Ms. Tullock contended Dr. Eck negligently prescribed estrogen on November 30,1987, and that her taking of the drug contributed to her advanced state of breast cancer diagnosed in March 1990. Dr. Eck was awarded summary judgment on the ground that the two-year statute of limitations had expired. Ms. Tullock argued that her taking the medication prescribed by Dr. Eck constituted a continuous course of treatment and the last allegedly negligent act occurred when she finished taking the medication in May 1989, less than two years before suit was filed. The summary judgment order has been properly certified as final pursuit to Ark. R. Civ. P. 54 (b). We agree with the Trial Court’s conclusion that the continuous treatment doctrine did not toll the statute of limitations, and thus summary judgment in favor of Dr. Eck was proper.
Affidavits, discovery documents, pleadings, and exhibits revealed these facts. Dr. Eck performed gall bladder surgery on Ms. Tullock November 2, 1987. On November 10, 1987, Ms. Tullock, in the course of a post-operative examination, reported to Dr. Eck a mass in her breast. Dr. Eck recommended a mammogram and biopsy, and a mammogram was performed. The mammogram report confirmed the mass but did not show the presence of cancerous cells.
According to Dr. Eck, when Ms. Tullock returned for a second post-operative visit November 30, 1987, he informed her that the mammogram was essentially negative but repeated that a biopsy of the mass was indicated. Ms. Tullock declined to have a biopsy and denies having been fully informed of the risks and alternatives concerning her choice with respect to a biopsy in 1987.
A subsequent post-operative visit was scheduled for December 14,1987. Dr. Eck states it was his intention to discuss further with Ms. Tullock the need for a biopsy at that meeting. His office records show that Ms. Tullock called to cancel the appointment and did not reschedule it. While Ms. Tullock acknowledges she was to return, she states she did not do so because she had been told her gall bladder situation was healed, and she had been led to believe the breast mass was benign.
At the November 30,1987, visit Dr. Eck wrote a prescription for Ms. Tullock for the drug Premarin, an estrogen supplement, which Ms. Tullock filled that day. Hospital records compiled subsequently when Ms. Tullock underwent a mastectomy showed she had been taking estrogen since 1973. Dr. Eck’s prescription permitted refills for one year. She refilled the prescription on June 9, 1988, and November 10, 1988, thus providing sufficient medication to last into May 1989, well within the two years of the filing of this suit on December 11,1990. A pharmacist called Dr. Eck’s office for authorization of an additional refill on May 9, 1989, and it was refused.
In June 1989 Ms. Tullock visited another doctor who did not perform diagnostic treatment on the breast mass but continued her estrogen therapy. The same doctor diagnosed a malignant infiltrating ductal cell breast cancer in March 1990. Ms. Tullock’s next direct contact with Dr. Eck occurred on March 30, 1990, when after that diagnosis, she returned to him for the biopsy.
In the process of treatment, the cancer was found to be estrogen dependent, and Ms. Tullock argued that Dr. Eck’s prescription of estrogen in the face of the undiagnosed mass presenting at the time of the examination was negligence. She alleged Dr. Eck was also negligent in his acts and omissions related to the diagnosis and treatment of her cancer, thus contributing to the loss of an opportunity for a cure and significantly shortening her life expectancy.
1. Summary Judgment
a. Standard of review
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.
Summary judgment is appropriate “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.” Ark. R. Civ. P. 56(c). While there might well have been disputed issues of negligence had this case gone to trial, the only issue with which we are concerned is whether the statute of limitations was tolled by continuous treatment. As to the latter, there is no factual dispute. The question is thus whether Dr. Eck was entitled to judgment as a matter of law.
b. Statute of limitations
If a physician is negligent in treating a patient but the patient continues to be treated by the physician for the condition which was the object of the negligent act or treatment, the patient should not be required to interrupt the treatment to bring suit against the physician because a statute of limitations is about to run. That is the most often stated rationale for the “continuous treatment doctrine” which tolls the statute of limitations until treatment is discontinued. See, e.g., Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Rountree v. Hunsucker, 833 S.W.2d 103 (Tex. 1992).
We have found no authority to support the conclusion that a patient’s continued ingestion of medicine prescribed by a physician is enough to establish an on-going course of treatment for the purpose of applying the continuous treatment doctrine. We find only authority suggesting the contrary. See, Fleishman v. Richardson-Merrill, Inc., 226 A.2d 843 (N.J. Super. 1967); Parrott v. Rand, 511 N.Y.S.2d 57 (A.D.2 Dept. 1987); Bernardo v. Ayerest Laboratories, 470 N.Y.S.2d 395 (A.D.1 Dept. 1984) and Millbaugh v. Gilmore, 30 Ohio St.2d 319, 285 N.E.2d 19 (1972); Rountree v. Hunsucker, supra.
All of these cases from other jurisdictions are distinguishable, some of them very significantly so. None of them is precisely like the case before us now combining (1) the allegedly negligent prescription of a drug which allegedly directly caused injury with (2).a very strict statute of limitations limiting action to two years from the date of a wrongful “act complained of and no other time.” We have found no case just like this one where the question is whether the final “treatment” (“act”) occurred the date the prescription was issued by the physician or the last time the medicine was taken by the patient under the aegis of that prescription. We thus find it necessary to go our own way, looking to the Arkansas statute and the two cases in which we have applied the continuous treatment doctrine in conjunction with it.
The statute is Ark. Code Ann. § 16-114-203 (1987). Here are its relevant words:
(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.
(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. . . .
Ms. Tullock argues that the actions of Dr. Eck in failing to biopsy the mass, prescribing estrogen, and failing to provide the requisite follow-up care fall within the continuous treatment doctrine. We recognized and applied the doctrine first in Lane v. Lane, supra., and again in Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303 (1990).
In the Lane case, narcotic injections given by Dr. Lane to Ms. Lane, his wife, over a long period of time resulted in scarring and drug addiction. Dr. Lane pleaded the statute of limitations, and the Trial Court refused to bar the claim though the initial injurious behavior occurred more than two years before suit was filed. We affirmed, quoting a description of the continuous treatment doctrine from 1 D. Louisell and H. Williams, Medical Malpractice, § 13.08 (1982)(footnotes omitted), as follows:
[I]f the treatment by the doctor is a continuing course and the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.
That description has two fundamental elements. There must be “treatment,” which “is a continuing course.” That requirement is stated conjunctively with the second element, “the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care.” Without the former element, it might be thought that a physician’s omission of treatment where there is a duty of care could toll the statute of limitations on the basis of continuation of negligence or tortious conduct. We were very careful, however, not to adopt, and to point out that we had specifically rejected, the so-called “continuing tort” theory of tolling the statute of limitations as inconsistent with the General Assembly’s intent in stating that limitations begin to run “the date of the wrongful act complained of and no other time.”
“Continuous treatment” is distinguishable from “continu ing tort.” The cases in which we rejected the continuing tort doctrine are Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986); Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); and Williams v. Edmondson, 257 Ark. 837, 250 S.W.2d 260 (1975). See also Note, Torts — Limitations on Actions — Arkansas Adopts Continuous Treatment Rule to Toll State of Limitations in Medical Malpractice Actions, 11 U.A.L.R. L. J. 405 (1989).
In the Owen and Treat cases the appellants argued that a single negligent act of a physician, a misdiagnosis for example, was a continuing wrong and the statute of limitations would not begin to run until the error was discovered, on the premise that the effect of the wrong was continuous. We declined to adopt that theory, holding the cause of action to accrue at the time of the wrongful act. We said to hold otherwise would, in effect, apply the “discovery of injury rule” to our malpractice statute of limitations, which would change the time of the accrual of a cause of action from the time of the act to the date of discovery of the injury. We declined to reach such a result which would have been directly contrary to the legislative intent plainly expressed that the limitation begins to run from the “date of the wrongful act complained of and no other time.”
In contrast to the so-called continuing tort theory, based on a single negligent act with on-going injury, the continuous treatment doctrine becomes relevant when the medical negligence consists of a negligent act, followed by a continuing course of treatment for the malady which was the object of the negligent treatment or act. That obviously occurred in the Lane case.
In Taylor v. Phillips, supra, the issue was somewhat closer. Dr. Phillips had allegedly been negligent in applying a metal brace to Mr. Taylor’s broken jaw more than two years before suit was filed. The brace was not removed until within two years of the filing. Mr. Taylor last consulted Dr. Phillips about his condition on November 4 or 5, 1987. He returned to Dr. Phillips’s office, however, December 8, 1987, and was seen by Dr. Phillips’s partner, Dr. Modelevsky. On December 9,1987, Dr. Modelevsky consulted with Dr. Phillips, and they agreed on further surgery involving a bone graft. Suit was filed October 18, 1989. The majority opinion stated that the two-year period began running December 9, 1987. The opinion stated this was “clearly ... a continuing course of treatment.”
Dr. Eck’s allegedly negligent conduct (act) occurred November 30, 1987, when he wrote the prescription. Unlike Ms. Lane and Mr. Taylor, Ms. Tullock had no further contact, direct or indirect, with the doctor with respect to the condition of her breast until the cancer diagnosis had been made by another physician and she returned to Dr. Eck for a biopsy March 30, 1990, more than two years after the alleged negligence occurred. She does not allege any negligence occurred on the occasion of the biopsy or thereafter.
If we were free to adopt the continuing tort theory we might hold that Dr. Eck was not entitled to summary judgment as a matter of law. As we explained in the Lane case, however, we feel constrained by the statute in that respect, and if the public policy thus expressed is to be altered, it is up to the General Assembly to do it. The continuous treatment doctrine does not apply in the circumstances of this case, and thus we must affirm the Trial Court’s decision on that point.
c. Constitutionality
Ms. Tullock argues for the first time on appeal that the malpractice limitation is unconstitutional as applied in this case. This argument was not raised before the Trial Court ruled on the motion for summary judgment. It is thus waived under the well-settled rule that even constitutional arguments are waived on appeal unless raised at trial. Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991).
Affirmed.
Glaze and Brown, JJ., dissent. | [
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Darrell Hickman, Justice.
The only question in this appeal is one of statutory construction.
Carolin Weldon claimed that she was injured when she stepped into a hole where a water meter was located. A suit was filed against Southwestern Bell Telephone Company because the accident took place on Southwestern Bell property. The meter belonged to the local water company, the Conway Corporation. The complaint alleged that the meter had either been removed or the lid was off of it and the grass had grown up concealing the hole.
The suit was filed almost three years from the date of the accident. Southwestern Bell defended by claiming that a two year statute of limitations barred this suit. If that statute is applicable, Southwestern Bell is correct. The statute reads:
Limitation of Actions. — No suit shall be brought against any telephone company or cooperative by the reason of the maintenance of telephone lines, poles, and fixtures, on any real property, or with any right-of-way of any public way, unless it is commenced within two [2] years after the cause of action has accrued; provided, that such causes of action not barred by a statute of limitation at the time of the passage of this act [§§ 77-1601 — 77-1639] shall not be sued on more than two [2] years thereafter.
Ark. Stat. Ann. § 77-1636.
The trial court granted the motion to dismiss after hearing arguments by Southwestern Bell that the word “fixtures” in the statute was not limited to telephone fixtures but applied to any fixture located in a right-of-way. The appellant argues that the statute means telephone fixtures and since this was a water meter, the statute should not apply. We agree with the appellant.
We apply the doctrine of noscitur a sociis which, in literal translation, means “it is known from its associates,” and in practical application means that a word may be defined by an accompanying word. In Altus Cooperative Winery v. Morley. Commissioner of Revenues, 218 Ark. 492, 237 S.W. 2d 481 (1951), the cooperative sought to manufacture wine. We found that seventeen words in the statute, such as “producing, marketing, selling, harvesting . . .”, were confined to activities associated with agricultural products. In the present case we would have to say that the General Assembly should have said “telephone lines, telephone poles and telephone fixtures” for appellee to prevail. The statute did not intend to limit any cause of action resulting from the maintenance of any fixture located on a telephone company right-of-way. It only intended to apply to "telephone fixtures.”
Reversed. | [
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Lawson Cloninger, Judge.
This divorce action was filed by appellant Bobbie Sue Janni against appellee Samuel Wayne Janni, asking for absolute divorce, custody of the couple’s three children, and for child support. The chancellor awarded appellant a divorce and custody of the children and stated that he would make no specific award with reference to child support, but rather would allow the matter to remain open and permit the amount to be determined at a later date.
The appellant’s only point for reversal is that the trial court erred in failing to enter an order directing the appellee to pay a reasonable amount of child support and attorney’s fee. She states that the court found it did not have jurisdiction to enter personal orders against the appellee, and she urges this Court to declare that the chancellor does have personal jurisdiction.
Appellant and appellee were married in 1969 when appellee was in military service at Ft. Chaffee, Arkansas. They lived together in Lawton, Oklahoma, and then for three or four years they lived in Fort Smith, Arkansas. The couple moved to the state of Michigan in 1973 and lived together there until they separated on November 9, 1978. Appellee asked appellant to leave the home and he knew that she and the children would be going to her parents’ home in Fort Smith. Appellee remained in Michigan, and has not been to the state of Arkansas since the separation.
Appellant’s divorce proceeding was filed on November 26, 1979- Service was obtained upon appellee under the provisions of Ark. Stat. Ann. § 27-339.1 (Repl. 1979), and Ark. Stat. Ann. § 27-2503 (Repl. 1979), by appellants attorney writing appellee a letter sent by certified mail, enclosing a verified copy of the complaint and summons. The relevant portions of § 27-339-1 provide that, “Any cause of action arising out of acts done in this state by an individual in this state . . . may be sued upon in this state, although the defendant has left the state, by process served upon or mailed to the individual . . . outside the state.” That statute further states that the person committing the act shall be deemed to have appointed the secretary of state as his agent for service. Ark. Stat. Ann. § 27-2503 (Repl. 1979), provides that when the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made by any attorney for a party. The notice given by appellant’s attorney in this case was sufficient under § 27-339.1 to constitute service on the appellee in “any cause of action arising out of acts done in this state,” or it was sufficient under Ark. Stat. Ann. § 27-339 (Repl. 1979) to constitute constructive service.
When appellee did not appear or answer in the trial court", an attorney ad litem was appointed by the court to write appellee at his home in Saginaw, Michigan, advising him of the date set for hearing on the questions of divorce and child support. Appellee did not plead or make any appearance in the trial court, and has filed no pleading or brief in this Court.
Section 27-339.1, supra, provides that any cause of action arising out of acts done by an individual in this state may be sued upon here although the defendant has left the state. The statute is not limited to tort actions, but it specifies any cause of action. Bunker v. Bunker, 261 Ark. 851, 552 S.W. 2d 641 (1977).
In the Bunker case, Mrs. Bunker filed her action for divorce in Arkansas and obtained service on Mr. Bunker, who resided in Louisiana, pursuant to § 27-339.1. The Bunkers were living together in Arkansas at the time of their separation, when Mr. Bunker left Arkansas and apparently changed his domicile to Louisiana. In holding that the trial court had personal jurisdiction over Mr. Bunker, the court said:
We see no good reason for not recognizing Arkansas’s jurisdiction in this case. Arkansas was the Bunkers’ last matrimonial domicile. It is the place where Bunkers’s asserted wrongful conduct created the cause of action for divorce and alimony. It has continued to be the residence of Mrs. Bunker and the children, where their living expenses must be paid. It is presumably the residence of the witnesses who will be called to testify. Finally, Bunker appears to have left this state voluntarily, creating the possibility of hardship if that conduct on his part deprives Mrs. Bunker of her right to bring her suit in Arkansas. . .
Appellant urges this Court to extend the reasoning of the Arkansas Supreme Court in the Bunker case to the facts in this case. This we must decline to do. There are parallels to be drawn between Bunker v. Bunker and the case now before the Court, but there are two striking differences: (1) In the Bunker case, the alleged acts of the husband occurred in this state, whereas in the instant case, the acts of the husband occurred in Michigan, and (2) in the Bunker case the last matrimonial domicile of the parties was in this state, whereas in the instant case it was in Michigan. Appellant’s reliance upon the case of International Shoe Co. v. Washington, 326 U.S. 310 (1945) is not well placed in this case. The Arkansas Supreme Court in the Bunker v. Bunker case, cited International Shoe Co. v. Washington, to support the proposition that there was no longer a constitutional limitation upon a state’s jurisdiction in a case like Bunker v.. Bunker. It is not necessary to consider the constitutional issue in this case, because our statutes do not purport to extend personal jurisdiction over non-resident defendants such as appellee. The state, through legislation, has chosen to exercise its jurisdiction over resident and nonresident defendants who commit acts in this state giving rise to a cause of action. The appellee in the case now before the Court committed no act in this state giving rise to appellant’s cause of action, although he may have committed acts which caused harmful consequences in this state.
It is only a short step to extend the reasoning in Bunker v. Bunker to the instant case, as contended by appellant, but it is a step that this Court cannot take, and we find that the trial court cannot enter a personal judgment against appellee.
Affirmed.
Fogleman, Special Judge, joins in this opinion.
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Per Curiam.
In this civil case, the appellant’s tender of the transcript was denied by our clerk because the order extending the time to file the transcript was not entered within the ninety-day period. See Ark. R. App. P. 5(b).
The trial court signed the order within the ninety-day period, but it was not entered within that period. Rule 4(e) of the Arkansas Rules of Appellate Procedure provides that a final “order is entered within the meaning of this rule when it is filed with the clerk of the court in which the claim was tried.” (Emphasis supplied.)
We explained in Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983) and Sullivan v. Wickliffe, 284 Ark. 33, 678 S.W.2d 771 (1984), that the critical factor in this type of case is when the order is entered, not when it is signed.
In this case the order was timely signed and filed with the judge, but not with the clerk of the court. A question has been raised about a possible conflict of the above quoted rule of appellate procedure with one of our rules of civil procedure. Ark. R. Civ. P. 5(d) provides:
Filing with the Judge. The judge may permit papers or pleadings to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.
We addressed this issue in Sullivan v. Wickliffe, supra, and explained that an order cannot be deemed entered, or filed with the clerk, just because it is signed by the judge and it contains a recitation that it is filed, when in fact it is not filed with the clerk. If our rules were otherwise, the prevailing party could not discover by public record whether the case was ended.
Motion for a rule on the clerk is denied. | [
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Steele Hays, Justice.
Appellants purport to bring this interlocutory appeal under Rule 2(a)(6) of the Arkansas Rules of Appellate Procedure giving this court jurisdiction under Ark. Sup. Ct. R. 29(l)(k). We dismiss for lack of an appealable order.
Appellants Lawrence Butler, James Henry Ellison, and Nathaniel Thomas were charged by information in Pulaski County Circuit Court with three counts each of Capital Murder in violation of Ark. Code Ann. § 5-10-101 (1987) . The information alleged that on February 19,1992, they feloniously, with the premeditated and deliberated purpose of causing the death of another person, caused the deaths of Cyrus Lee, Sabrina Earl and Marcus Johnson. Appellants have remained incarcerated since they were arrested.
On June 22,1992, the prosecuting attorney’s office appeared ex parte before the Honorable Floyd J. Lofton, Pulaski County Circuit Judge, and orally moved that appellants submit to the extraction of pubic hair, blood and saliva. The court signed an order on that date requiring the appellants to submit to a physical examination for the collection of samples of appellants’ pubic hair, blood and saliva.
On June 23, 1992, Nathaniel Thomas filed a motion to set aside the order of June 22nd alleging there had been no showing of probable cause for the intrusive search of his person and that reasonable notice of the time and place for his appearance was not given by the prosecuting attorney.
A probable cause hearing was held with all parties and their attorneys present. The prosecuting attorney’s office again made an oral motion to the Honorable Chris Piazza, Circuit Judge. No witnesses were presented. The court ordered that all three appellants submit to a physical examination for the collection of samples of appellants’ blood and saliva for testing and comparison with items of clothing, floor coverings, weapons, and other physical evidence secured from the scene of the homicides.
Appellants brought this interlocutory appeal by filing a Notice of Appeal on July 7, 1992. They claim that there was no showing of probable cause for the court’s order.
Appellants do not challenge the trial court’s authority to order the taking of body fluid samples pursuant to Ark. R. Crim. P. 18.1(a)(vii). This rule reads in part:
(a) Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the defendant to:
(vii) permit the taking of samples of his blood, hair and other materials of his body which involve no unreasonable intrusion thereof;
(b) Whenever the personal appearance of the defendant is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the prosecuting attorney to the defendant and his counsel. . .
Instead, appellants challenge the lack of procedure and the lack of evidence preceding the order in this case. They contend the discovery provided by the State showed no reasonable or probable cause to order the taking of body samples. They also claim the reason offered by the State at the hearing was insufficient, i.e., that the FBI had requested samples of the blood of all accused prior to its testing of the evidence.
This court has no jurisdiction to hear this interlocutory appeal. A defendant does not have any general right to an interlocutory appeal in criminal cases. The appealability of a circuit court’s order is governed by Ark. R. App. P. 2(a), which requires a final judgment or decree or one which, in effect, discontinues or determines the action and prevents a judgment from which an appeal might be taken. See Ellis v. State, 302 Ark. 596, 791 S.W.2d 370 (1990). Rule 2(a) contains no provision which permits an interlocutory appeal from an order entered by a circuit court during pretrial procedures.
The State may bring an interlocutory appeal in two circumstances. Under Rule 36.10 of the Arkansas Rules of Criminal Procedure, an interlocutory appeal is allowed only when the order (1) grants a motion under Rule 16.2 to suppress seized evidence or (2) suppresses a defendant’s confession. See State v. Russell, 271 Ark. 817, 611 S.W.2d 518 (1981); State v. Glenn and Hamilton, 267 Ark. 501, 592 S.W.2d 116 (1980). In State v. Stuart, 306 Ark. 24, 810 S.W.2d 939 (1991), the court dismissed an interlocutory appeal by the State from an order suppressing evidence because such an order was not appealable under A.R.Cr.P. Rule 36.10. No provision exists in the Rules of Criminal Procedure for such an appeal by a defendant.
In order to appeal, a defendant must first be convicted of a crime. Rule 36.1 of the Arkansas Rules of Criminal Procedure states that “any person convicted of a misdemeanor or a felony by virtue of trial in any circuit court of this state has the right to appeal to the Arkansas Court of Appeals or to the Supreme Court of Arkansas.” The jurisdiction of the Arkansas Supreme Court is limited to appellate jurisdiction only. Weston v. State, 265 Ark. 58, 576 S.W.2d 705, cert. denied, 444 U.S. 965 (1979). In Weston, the court stated that an appeal attacking the defendant’s indictment will not lie at this stage in the proceeding in the absence of a final order of the trial court settling some issue against him or finding him guilty of some offense. In the present case, the appellants have not been convicted and have no right to appeal at this point.
Appellants contend the order is comparable to a mandatory injunction, which is appealable. Ark. R. App. P. 2(a)(6). The argument is without merit. An injunction is a command by a court to a person to do or refrain from doing a particular act; it is mandatory when it commands a person to do a specific act, and prohibitory when it commands him/her to refrain from doing a specific act. Tate v. Sharpe, 300 Ark. 126, 777 S.W.2d 215 (1989). In Tate, the court stated that in order for an injunction to be mandatory, the order must be based upon equitable grounds to justify the use of extraordinary powers of equity, such as irreparable harm and no adequate remedy at law, and the order must determine issues in the complaint, not merely aid in the determination of such issues. Also, an injunction is an equitable remedy over which a chancery court has jurisdiction. Manitowac Remanufactuirng, Inc. v. Vocque, 307 Ark. 271, 819 S.W.2d 275 (1991). Because the Pulaski County Circuit Court issued the order in a proceeding not equitable in nature, the order does not qualify as a mandatory injunction.
For the reasons stated, the appeal is dismissed.
Holt, C. J., not participating. | [
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Robert H. Dudley, Justice.
Shortly after midnight on September 1, 1991, State Trooper Steve Shults was driving his police car on Highway 67 near the Missouri state line when he saw a pickup truck exceeding the speed limit while traveling south toward Corning. The trooper followed the truck, as it continued to exceed the highway speed limit, into a 45 m.p.h. zone in Corning, where he saw it veer across a yellow line. The trooper thought the driver of the truck might be intoxicated and stopped the truck at 12:26 a.m. The trooper got out of his car, and, as he was approaching the pickup, he glanced into the bed of the truck and saw a case of beer in cans, six bottles of beer, and four wine coolers. The trooper asked the driver for his license, looked at it, and saw that the driver, appellant Scott Manatt, Jr., was only sixteen years old. There were three other teenagers in the. truck. The trooper asked to whom the beer and wine belonged, and appellant responded that it was his. The trooper satisfied himself that appellant had not been drinking and shortly afterwards issued a citation to appellant as being a minor in possession of intoxicants, and let him go. The case was processed in the juvenile division of chancery court. The chancellor found that appellant was a delinquent juvenile because he had violated the statute prohibiting minors from possessing intoxicants. He entered an order denying appellant’s driving privileges for one year, but allowed him to drive to and from work and school. Court costs amounted to $35.00. Appellant makes five assignments of error, and those assignments, in turn, contain many subpoints. Some of the subpoints are not easily followed, but we are satisfied that there is no merit in any of them and, accordingly, affirm.
Appellant’s first point is:
UNDER RULE 29(l)(a), IT IS ALLEGED THAT THE LOWER COURT ERRED IN FAILING TO ENJOIN THE USE OF THE JUVENILE CODE AS FAILING IN EQUAL PROTECTION OF THE LAWS OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ALSO FAILED TO ACCORD TO PERSONS UNDER THE AGE OF 18 YEARS PRIVILEGES OR IMMUNITIES WHICH UPON THE SAME TERMS SHALL BELONG TO ALL CITIZENS UNDER ARTICLE 2, SECTION 18 OF THE ARKANSAS CONSTITUTION, JURISDICTION-ALLY TREATING CITIZENS 18 TO 21 DIFFERENTLY THAN THOSE 16 TO 18 FOR THE SAME OFFENSE.
In this point appellant contends that the juvenile code is unconstitutional and that we should enjoin its use because, when a juvenile violates a criminal statute, he is subjected to more severe penalties than would be an adult for violating the same statute. We do not reach the merits of the argument because appellant was not sentenced under the juvenile code. Appellant was given a citation for being a minor in possession of intoxicating liquor. See Ark. Code Ann. § 3-3-203 (1987). The chancellor found that he violated the statute and consequently found him to be a delinquent juvenile. See Ark. Code Ann. § 9-27-303(11) (Repl. 1991). Without objection, the chancellor applied Ark. Code Ann. § 5-64-710 (1987), a part of the criminal code, and suspended his driving privileges. The criminal code provides that the trial court shall deny driving privileges when a person who is less than eighteen years old is found guilty of a criminal offense involving the illegal possession of alcohol. This penalty, denial of a driver’s license, “shall be in addition to all other penalties.” Ark. Code Ann. § 5-64-710 (Supp. 1991).
The salient fact is that there was no “disposition,” such as commitment to a youth services center, probation, or fine, as provided for in Ark. Code Ann. § 9-27-330 (1987), the statute that appellant contends unconstitutionally provides excessive punishment for juveniles. Instead, the only “disposition” was to deny appellant the privilege of holding a driver’s license as provided for in the criminal statute and driver’s license statute, and, by statute, that is to be “in addition to all other penalties.”
In order to have standing to challenge the constitutionality of a statute, a party must demonstrate that the challenged statute had a prejudicial impact on him. Montgomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982). Here, the challenged statute had no impact on appellant, and, therefore, he has no standing to challenge it. In his reply brief the appellant contends that he has standing because court costs were assessed against him under the juvenile code, but he has not shown that court costs are discriminately applied in juvenile court. Accordingly, we affirm the trial court’s refusal to enjoin the use of the juvenile code.
Appellant’s second assertion of error is:
THE LOWER COURT ERRED IN FAILING TO TREAT THE OVERBROAD DEFINITION OF “JUVENILE DELINQUENT” AS VOID FOR VAGUENESS BY FAILING TO FIND ACA 9-27-303 SUB PARAGRAPH 11 AS VOID FOR VAGUENESS AND BEING OVERBROAD WHICH DEFINITION CREATES AS A DELINQUENT EVERY CHILD IN ARKANSAS AT SOME TIME BEFORE ITS 18TH BIRTHDAY AS A JUVENILE.
The primary contention under this point is that the definition of “delinquent juvenile” contained in Ark. Code Ann. § 9-27-303(11) (1987) is facially void for vagueness. Appellant does not contend that the statute he was found to have violated, “minor in possession of intoxicants,” is void for vagueness. Rather he argues that the definition of “delinquent juvenile” is void. Since there was no disposition of appellant under this definition, we do not need to reach the issue, but we do discuss it in a summary manner only as a prelude to another of his subpoints.
The statute defines the term “delinquent juvenile” as any juvenile ten years old or older who has committed an offense that would constitute a felony, misdemeanor, or violation for an adult, excepting traffic offenses and game and fish violations. The statute sets out the age of a juvenile offender, and it defines the type of behavior that will cause one to be classified as a delinquent juvenile. Under the definition, a juvenile would only have to look to the criminal code and city ordinances to find the proscribed acts. Thus, the statute is not facially void. See State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992), for a complete discussion of the standard for determining whether a statute is void for vagueness.
Appellant alternatively argues that if the definition is not vague, and if it is literally followed, it is overbroad because it subjects every juvenile to being declared a delinquent. Appellant did not offer any empirical data to sustain this argument. The only data on the subject of which we are aware, and of which we can take judicial notice, are the statistical publications of the Administrative Office of the Courts and the United States Census, and this data does not sustain appellant’s contention. Thus, the chancellor did not err in refusing to declare the juvenile code unconstitutional because the definition of “delinquent juveniles” is overbroad.
Also under the same point of appeal appellant contends that the statute he was convicted of violating, being a minor and possessing alcohol, is in violation of the Equal Protection Clause. Citing our legal drinking age of twenty-one, appellant contends that all persons who are under the age of twenty-one, and who possess alcohol, must be treated the same, but, under our statute, only persons less than eighteen years old lose their driver’s license when they possess intoxicants. Such an argument loses sight of the fact that a person reaches majority in this State at the age of eighteen years, Ark. Code Ann. § 9-25-101 (1987), and it is only minors who are subject to losing their driving privileges under this act. It is adults over the age of eighteen, but under the age of twenty-one, who cannot purchase intoxicants, who might make a hollow equal protection argument. In addition, in Carney v. State, 305 Ark. 431, 808 S.W.2d 755 (1991), we set out the basis for this dichotomy, and we held that it is rational and, consequently, not unconstitutional. We need not repeat that reasoning here.
Appellant’s third point of appeal is:
THE COURT ERRED IN EXERCISING JURISDICTION BEYOND ITS JURISDICTION BY ENFORCING ACT 93 OF 1989 ACA 5-65-116 WITHOUT REGARD TO ACT 1109 OF ACTS OF THE LEGISLATURE OF 1991 ACA 27-16-915 AND FAILING TO FIND THAT THE 1989 ACT WAS AMENDED BY THE 1991 ACT AND BY IMMEDIATE IMPOSITION OF THE RULING OF THE COURT WITHOUT REGARD TO THE DEFENDANT’S RIGHT TO APPEAL AND BY LETTER RULING DISALLOWS ANY STAY AGAINST IMPOSITION PENDING APPEAL.
Appellant contends that Ark. Code Ann. § 5-65-116 (Supp. 1991), the part of the criminal code passed in 1989 that provides for the suspension of driver’s licenses of juveniles under eighteen who commit offenses involving intoxicants, was repealed by implication by Ark. Code Ann. § 27-16-916 (Supp. 1991), a part of the code dealing with driver’s licenses that was passed in 1991.
The two statutes are not in conflict, and one does not repeal the other by implication. The criminal code section 5-65-116 provides that a person under eighteen who is convicted of driving while intoxicated, or who illegally possesses alcohol or a controlled substance, shall lose his driver’s license. On the other hand, the driver’s license statute, section 27-16-915, provides that any person, regardless of age, who illegally uses or possesses controlled drugs, as they are defined by the Controlled Substances Act, shall lose his driver’s license. Thus, there was no repeal of that part of the criminal code providing for the loss of a driver’s license by a person under eighteen years of age when he is found guilty of an offense involving intoxicants. In addition, this court has stated that repeal by implication is not favored. Johnson v. Sunray Serv., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991).
Under this same assignment of error appellant makes an additional equal protection argument. He contends that there is an unconstitutional disparity in the way section 5-65-116 treats juveniles under eighteen as compared to the way it treats adults, and also in the way it treats juveniles under eighteen compared to the way it treats people eighteen, nineteen, or twenty years of age. We do not reach the first subpart of this argument because an adult cannot be convicted of the offense of possession of intoxicating liquor by a minor. See Ark. Code Ann. § 3-3-203 (1987). With regard to the second subpart of the argument, a person reaches majority in this State at the age of eighteen, Ark. Code Ann. § 9-25-101 (1987), and there is a rational basis for taking the privilege of driving from a minor who possesses intoxicants. Carney v. State, 305 Ark. 431, 808 S.W.2d 755 (1991). Under a different statute, a person must be twenty-one years of age before he can lawfully possess intoxicants. Ark. Code Ann. § 3-3-203 (1987). As we have already set out in the second assignment of error, there is a rational basis for treating minors under the age of eighteen differently from adults who have not yet reached the lawful drinking age of twenty-one.
Appellant makes yet another subargument under this assignment of error, “[T]he lower Arkansas trial court is acting beyond its jurisdiction in denying the Appellant an opportunity to appeal . . . .” We summarily dismiss this argument as we are now hearing this case on appeal.
Appellant’s fourth assignment of error is:
THE COURT ERRED IN ALLOWING THE JUVENILE INTAKE OFFICER AS ITS APPOINTEE AND ADVISER TO MAKE AN EXPARTE RECOMMENDATION TO THE COURT BY WRITTEN RECOMMENDATION PRIOR TO AN ADJUDICATION OF GUILT DURING THE TIME THAT THE COURT WAS SITTING AS A TRIER OF FACT AND INJECTING THE COURT INTO THE ROLE OF AN ADVOCATE.
Appellant’s first argument under this assignment of error is that the trial court violated Ark. Code Ann. § 9-27-321 (Repl. 1991), which provides that a statement made by the juvenile to the intake officer shall not be admissible in evidence against the juvenile. There simply was no statement to an intake officer that was admitted into evidence. An incriminating statement made to the trooper was admitted into evidence, but that is not prohibited by the cited statute.
Additionally under this assignment, appellant argues that the trial court abused its discretion in allowing the intake officer to sit at counsel table with the deputy prosecutor during this proceeding, and that the trial court erred in allowing the intake officer to make the recommendation that appellant’s driver’s license should be suspended for one year. Again, we treat the matter summarily because, even if appellant’s arguments were valid, there was no possible prejudice. There is no doubt appellant wás a minor and that he was in possession of intoxicants, and the applicable statute provides that in such case the trial court is required to suspend the minor’s driver’s license. See Ark. Code Ann. § 5-65-116 (Supp. 1991).
Appellant next argues that this case should be reversed because the chancellor took an adversary posture at trial. The argument is based upon the following: At the beginning of the case the chancellor asked appellant’s attorney: “How old is your son?” and, during the trooper’s testimony, appellant made an objection, based on the lack of a Miranda warning. The trial court then asked five pertinent questions of the trooper before ruling. One of these questions was: “How did he claim ownership?” Appellant cites no authority that these questions by the court were improper in a juvenile hearing, and we know of none. When a party cites neither cases, nor authority for an argument, nor gives a convincing argument, and the argument has no readily apparent validity, we will not further consider the matter. Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991).
In his final assignment of error, appellant contends:
THE COURT ERRED IN FINDING A LINK BETWEEN THE POSSESSION OF ALCOHOL, AND THE DRIVER OF A VEHICLE, AND IN ALLOWING ALLEGED STATEMENTS BY THE DEFENDANT WITHOUT BENEFIT OF MIRANDA WARNINGS BY AN OFFICER STOPPING A JUVENILE WHEN THE QUESTIONS AND ANSWERS OF THE TARGETED JUVENILE RESULT IN ARREST AND COMPLETING A “LINK.”
Appellant makes a number of arguments under this assignment of error, but all but one of them are based upon the contention that the trial court erred in allowing the trooper to testify that appellant admitted that the intoxicants were his because the officer did not give a Miranda warning to appellant. The ruling was correct. Here, the officer issued a citation in lieu of an arrest. See A.R.Cr.P. Rules 5.1 and 5.2. The officer did not take appellant into custody. In Berkemer v. McCarthy, 468 U.S. 420 (1984), the United States Supreme Court held that persons temporarily detained pursuant to a routine traffic stop are not “in custody” for purposes of Miranda. The Court reasoned that Miranda warnings were not required in such cases because the stop was temporary, it was in public, and the atmosphere on a public street is not comparable to the “police dominated” custodial interrogation. The Court held that a motorist who is detained pursuant to a traffic stop is entitled to a recitation of his rights only when the stop becomes such that he is “subjected to treatment that renders him ‘in custody’ for practical purposes.” Id. at 440.
Finally, in two separate subarguments, appellant contends that this case should be reversed because the trial court did not act in an impartial manner and that there was a “predisposition” to “make an example out of this defendant.” The record does not show that the trial court acted unfairly or partially in any manner, or sought to make an example of appellant. We consider the argument to be disrespectful of the trial court and in violation of Rule 6 of the Rules of the Supreme Court and Court of Appeals, but, rather than take punitive action, we state that the argument is completely without a basis and inappropriate.
Affirmed.
Newbern, J., not participating. | [
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Robert H. Dudley, Justice.
We affirm the trial court’s denial of a motion to set aside default judgments in this case. In late November, 1989, plaintiff Laverne Suchor was standing inside a boom bucket, or cherry picker, atop a truck while stringing the city’s Christmas lights on Missouri Street in West Memphis. Defendant Carl Divelbliss was driving a tractor-trailer that was owned by co-defendant, Monroe Contractors Equipment, Inc. Royal Insurance Co. carried liability insurance on the tractor-trailer. The tractor-trailer, while being operated by Divelbliss, struck the plaintiffs rig, causing him to fall twenty to thirty feet to the ground and suffer severe and permanent injuries.
Plaintiff initially contacted an attorney in Memphis, but subsequently secured Arkansas counsel, Kent Rubens and Marc Baretz. On June 6, 1990, Rubens and Baretz filed suit for plaintiffs Laverne Suchor and Renell Suchor, husband and wife, against defendant Divelbliss and co-defendant Monroe Contractors. At about the same time, Lea Shedlock, a claims representative for Royal Insurance, contacted Rubens by phone. On June 8, 1990, Rubens wrote Lea Shedlock to advise her that he and Baretz represented plaintiffs. The material part of the letter is as follows:
We have taken over representation, and as I told you we have filed a complaint, a copy of which is enclosed. We have not sought to obtain service; however, our clients insist that we either show progress or we should proceed with it. We will forward the medicals to you as soon as possible.
On June 19,1990, Ms. Shedlock, the claims representative, responded, in part, as follows:
As we discussed, when I am in receipt of the medicals, I will be in contact with your office. Also, please forward your theory of liability. As of this date, I do not have your client’s version as to how this incident occurred.
I look forward to reaching a timely and equitable resolution.
On June 25, 1990, Rubens responded, in material part, as follows:
With regard to your request for a statement of liability, it seems that we have set that out in the pleading which I sent you. You want a statement from our client, but I am sure you realize that it will be in conformity with the allegations of the complaint. We are getting together all the medicals and the medical expenses for review, and we will be sending them to you shortly.
Between June 25 and August 1, there was no communication from Ms. Shedlock to Rubens or Baretz, and, on August 1,1990, Rubens attempted to have service of process upon both Divelbliss and Monroe Contractors. Service was never had on Monroe Contractors, but was perfected on Divelbliss on August 4, 1990. Divelbliss immediately give the summons and copy of the complaint to his employer, Monroe Contractors, who immediately forwarded the documents to Interstate Motor Carriers, the independent insurance agent for Monroe Contractors. The agent received the summons and complaint on August 8, 1990. The record does not disclose when the agent forwarded the summons and complaint to Royal Insurance, but it does show that the agent had not forwarded these documents by January 8, 1991, five months later. Obviously, Divelbliss was in default long before the agent forwarded the summons and complaint to the insurance company.
On September 18, 1990, Royal sent a letter to Rubens requesting medical reports, and on January 8, 1991, Royal sent letters to Monroe Contractors and Interstate Motor Carriers, the agent, warning of the possibility of a lawsuit.
On February 4, 1991, the trial court granted default judgments as to liability against Divelbliss since service had been perfected but no answer had been filed. The trial court heard evidence in open court on the amount of damages, and found that plaintiff Laverne Suchor had suffered damages in the amount of $200,000, and that plaintiff Renell Suchor had suffered damages in the amount of $25,000. Judgments were entered accordingly. On May 17,1991, Rubens notified Royal that the judgments had been taken, and three months later, on August 22, 1991, Royal took its first action when it caused Divelbliss to file a motion to set aside the default judgments. The motion was denied and Divelbliss appeals'.
Appellant first argues that the trial court committed reversible error in refusing to set aside the default judgments in their entirety. His argument centers around the recently amended A.R.C.P. Rule 55. On December 10,1990, we amended Rule 55 by making it more lenient, and allowing more discretion to trial courts in deciding whether to enter a default judgment. The amendment changed paragraph (a) to read:
When a party against whom a judgment for affirmative relief is sought has failed to appear or otherwise defend as provided by these rules, judgment by default may be entered by the court.
(Emphasis supplied.) Previously, the last clause of the paragraph read, “judgment by default shall be entered by the court.” (Emphasis supplied.)
Old Rule 55(c) listed the following factors that could warrant setting aside a default judgment: “Excusable neglect, unavoidable casualty, or other just cause.” The new Rule 55(c) reads as follows:
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 new rule is more liberal in its treatment of default judgments and represents a preference for deciding cases on the merits rather than technicalities. Ark. R. Civ. P. 55 reporter’s note (1990).
The amended rule is a procedural rule, is remedial in nature and, accordingly, should be given retroactive effect. Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981). In addition, the effective date of the amended rule was before the date of the default judgments, and therefore, the amended rule is the applicable rule. Even applying the amended rule, the judgments on the issue of liability must be affirmed. We recently discussed the amended rule in B & F Engineering, Inc. v. Controneo, 309 Ark. 175, 830 S.W.2d 835 (1992). There, the agent for the insurance company received two summonses and complaints in two different actions stemming from the same accident. When the agent received the second summons and complaint, he mistakenly thought that the answer filed in response to the first suit also answered the second, and, as a result, failed to forward the second summons and complaint to the insurance company’s counsel. Our holding affirmed the trial court’s order granting default judgments. In reaching our decision, we held that the standard of review was whether the trial court abused its discretion, and we said that standard required us to consider the nature of the mistake causing a failure to respond on a case by case basis. Here, the insurance agent received a copy of the summons and complaint but did nothing with those documents for, at the very least, five months. There is no showing that the agent made an excusable mistake, or that there was some inadvertent occurrence, or that any excusable neglect took place. The trial court found, “The agent apparently did not tend to business.” The proof in the record discloses nothing more than carelessness on the part of the agent, and, on such proof, the trial court ruled correctly in refusing to set aside the default judgments.
Appellant also argues that the trial court erred in refusing to set aside the default judgments because Kent Rubens, the plaintiffs’ attorney, was guilty of misconduct. Appellant states:
The correspondence between Ms. Shedlock [the claims adjuster]'and appellees’ [plaintiffs’] attorneys reveal that the parties were working in a cooperative manner (at least in her mind) and that she was reasonable in expecting to be advised of service. Appellant submits that such failure to advise Ms. Shedlock that service had been obtained on Divelbliss constitutes “misconduct of an adverse party” sufficient to set aside the default judgment under Rule 55 (c) (3).
In her affidavit of August 16,1991, which was made a part of the motion to set aside the default judgments, Ms. Shedlock stated that she had a phone conversation with Rubens, and received the quoted letter and her understanding was that plaintiffs’ attorney “would withhold from obtaining service of process and advise me if and when service of process was obtained . . . . “However, the letter alone simply did not state that Rubens would notify her when service was obtained. Rather, the material part of it provides:. “We have not sought to obtain service; however, our clients insist that we either show progress or we should proceed . . . .” The record does not reveal the content of the phone conversation. It does reveal that, in preparation for the hearing on the motion to set aside the default judgments, the plaintiffs sought to obtain specific information from Ms. Shedlock about the phone conversation. By interrogatory plaintiffs asked: “Do you have any notes, diaries, memoranda of any phone conversations with the plaintiffs’ counsel concerning the above styled lawsuit?” Divelbliss responded:
Objection, Rule 33 of the Arkansas Rules of Civil •Procedure provides that Interrogatories may be served upon and answered only by parties to the lawsuit. Lea Shedlock is not even a named party to this lawsuit, no service has been obtained upon her and the Court has thereby acquired no jurisdiction over her person .... Therefore, to the extent that these discovery requests seek information from . . . Lea Shedlock, they are objectionable.
Ms. Shedlock refused to answer the interrogatory set out and refused to answer similar others. In sum, we cannot say the trial court was clearly erroneous in its implied ruling that there was no “misconduct” on the part of the plaintiffs’ lawyer, or that the trial court abused its discretion in its clear ruling that alleged “misconduct” on the part of the plaintiffs’ attorney was not the cause of the Divelbliss default. The trial court sagaciously observed that the cause of the default was not Rubens’ letter, but instead the cause was the failure of the agent to forward the summons and complaint.
Appellant next argues that the trial court erred in refusing to set aside the default judgments because Divelbliss was not given three days written notice of the application for the judgments. A.R.C.P. Rule 55(b) provides that if the party against whom the default judgment is sought has appeared in the action, he shall be served with written notice at least three days prior to the hearing on the application. Appellant tacitly admits that Divelbliss did not answer within the time specified, but contends that Ms. Shedlock’s contacts with Rubens constituted an “appearance” and, as authority for the contention, cites the case of H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689 (D.C. App. 1970). While the contacts in Livermore were much more extensive than the contacts in this case, and we could distinguish this case on that basis, we decline to do so because we choose not to follow the reasoning of that court.
We have cases decided before the adoption of the Arkansas Rules of Civil Procedure that hold that an “appearance” can be something other than the filing of a written pleading. For example, a defendant asking for a continuance constituted an appearance in Price v. Shope, 212 Ark. 420, 206 S.W.2d 752 (1948). In Spratley v. Louisiana & Arkansas Railway Co., 77 Ark. 412, 416, 95 S.W. 776, 777 (1906), we wrote:
There is no doubt but that where a party, who has not been served with summons, answers, consents to a continuance, goes to trial, takes an appeal, or does any other substantial act in a cause, such party by such act will be deemed to have entered his appearance.
The rationale is that the “appearance” was sufficient to constitute an implied waiver of the service of process. Price v. Shope, 212 Ark. at 421, 206 S.W.2d at 752. “Appearance” in all of our cases designates some overt act by which a party against whom a suit has been commenced submits himself to the jurisdiction of the court. Here, there was no act by which Divelbliss can be said to have impliedly waived the service of process or voluntarily submitted to the jurisdiction of the court prior to service. He took no action in court after service that would indicate an appearance. To the contrary, when his arguments are analyzed, they are the antitheses of a waiver of service. In this appeal, Divelbliss argues that the regular service of process was not sufficient, standing alone, to bring him within the jurisdiction of the court, but rather, in addition to that regular service, Rubens, because of his alleged misconduct, had a duty to notify the claims representative of service before Divelbliss could be brought within the jurisdiction. Below, he argued that Ms. Shedlock did not have to respond to an interrogatory as she was neither a party, nor within the jurisdiction of the court. These arguments are diametrically opposed to the concept that Divelbliss waived service of process through some act by Ms. Shedlock. In sum, Divelbliss did not make an appearance in the trial court until he filed a motion to set aside the default judgments.
Appellant’s final argument is that the judgments should be reversed with respect to the damages. Generally, whether a defaulting defendant is entitled to notice of a hearing on the amount of damages is a matter of state, not federal, law. Annotation, Defaulting Defendant’s Right to Notice and Hearing as to Determination of Amount of Damages, 15 A.L.R.3d 586 (1967). In Arkansas, a default judgment establishes the liability, but not the amount of damages. A hearing is required to determine the amount of damages, and the plaintiff is required to introduce evidence of the damages. B & F Engineering v. Controneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Some jurisdictions require that notice of the hearing be given to a defaulting defendant even when he has never appeared, see synopsis of cases in Defaulting Defendant’s Right to Notice, supra, § 3, but the Arkansas rule, A.R.C.P. Rule 55(b), does not require that notice be given to a defaulting defendant who has not appeared. Perhaps the reason is that it would be superfluous to again serve a defendant who already received one notice but failed on an ongoing basis to respond. Because Divelbliss did not timely file an answer, and because he did not make a subsequent appearance, the plaintiffs were entitled to the default as to liability without further notice, and subsequently, upon proving their damages, they were entitled to the judgments in the amounts proven. The trial court did not err in refusing to set those judgments aside.
Affirmed. | [
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Donald L. Corbin, Justice.
Appellant, David Middleton, appeals from the part of a judgment of the Newton Circuit Court convicting him of “possession with intent to deliver a quantity of intoxicating beverages without having a valid license as provided in the Arkansas Alcoholic Control Act.” The judgment was entered pursuant to a jury verdict which, among other things not relevant to this appeal, sentenced appellant to serve one year in the Newton County Jail and fined him $ 1,000.00 for the charge in question. For reversal of the conviction, appellant asserts two points of error. Both of appellant’s arguments are procedurally barred and we therefore affirm the judgment of conviction.
Appellant’s first argument for reversal is that the charge for which he was convicted is not a criminal offense under the statute named in the charging instrument. The heading of the information lists a summary of the charges against appellant and among that list is the charge at issue on this appeal: “POSSESSION OF ALCOHOL WITH THE INTENT TO SALE, #3-3-205, 1 count.” However, the text of the information states the charge as follows:
Count §10 The said defendant on the 30th day of July, 1991, in Newton County, Arkansas, did unlawfully possess, with the intent to deliver a quantity of intoxicating beverages without having a valid license as provided by the Arkansas Alcoholic Control Act, against the peace and dignity of the state of Arkansas. [Emphasis added.]
Count Ten obviously charges appellant with conduct in violation of the entire Alcoholic Control Act. Thus, the premise of appellant’s argument, that he was charged with violating only Ark. Code Ann. § 3-3-205 (Supp. 1991), is false.
The fact that appellant’s argument is based on a false premise is of no .consequence to our decision on appeal because appellant has not preserved this argument for our review. Appellant did not object to the charging instrument at trial. The trial court was not apprised of the error about which appellant complains and made no ruling for our review. As this argument is raised for the first time on appeal, it is not preserved for our review. Mays v. State, 308 Ark. 39, 822 S.W.2d 846 (1992). We point out that while it is true that being convicted of a crime for which one was not charged is a violation of due process, Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990), Hedrick v. State, 292 Ark. 411, 730 S.W.2d 488 (1987), even constitutional arguments are waived when argued for the first time on appeal. Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).
As his second argument for reversal, appellant asserts that if we determine the charge for which he was convicted is indeed a crime, there is insufficient evidence to support his conviction. We have repeatedly held that in order to preserve a sufficiency of the evidence argument for appellate review, an appellant must move for a directed verdict at the close of the state’s case and again at the close of all the evidence in the trial. A.R.Cr.P. Rule 36.21(b); Shankle v. State, 309 Ark. 40, 827 S.W.2d 642 (1992). The record reflects that appellant waived his right to challenge the sufficiency of the evidence by failing to make a motion for directed verdict at the close of the state’s case before presenting evidence on his behalf. In addition, appellant again waived this argument when at the close of all evidence, he merely made “the usual motions.” A challenge to the sufficiency of the evidence, whenever it is made, requires a specific motion to apprise the trial court of the particular point raised; a general “usual motion” such as the one made by appellant will not suffice. Rule 36.21 (b) is strictly construed. Easter v. State, 306 Ark. 452, 815 S.W.2d 924 (1991). We adhere to that strict construction and do not consider the merits of appellant’s challenge to the sufficiency of the evidence due to his waiver. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).
The judgment is affirmed. | [
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David Newbern, Justice.
The Garland County Probate Court dismissed the petition in this guardianship case due to lack of jurisdiction. We reverse and hold that the Court had jurisdiction of the matter.
Helen LaRue Roberts, the appellant, petitioned to become guardian of the person and the estate of her sister, Lois LaRue Powers. Mrs. Powers’ husband, George H. Powers, the appellee, contested the petition. Mrs. Powers owns substantial real and personal property in Oklahoma where she lived with Mr. Powers prior to being brought to Hot Springs by Ms. Roberts. Mr. Powers opposed the move, and considerable bitterness has developed over whether he or Ms. Roberts should be the guardian of Mrs. Powers whose mental condition unquestionably requires a guardianship.
The Probate Court’s opinion stated that Mrs. Powers had resided in Oklahoma 68 years and the bulk of her property was there. The decision to dismiss Ms. Roberts’ petition was based on the Court’s finding that when Ms. Roberts brought Mrs. Powers to Hot Springs, Mrs. Powers lacked the capacity to change her residence or domicile from Oklahoma to Arkansas. The issue before us is squarely that of whether a prospective ward must be a resident or domiciliary of Arkansas for an Arkansas probate court to have jurisdiction to establish a guardianship for the ward’s person and estate.
Neither residence nor domicile is addressed in Ark. Code Ann. § 28-65-201 (1987) which provides simply, “(a) A guardian of the estate may be appointed for any incapacitated person, (b) A guardian of the person may be appointed for any incapacitated person except a married minor who is incapacitated solely by reason of his minority.” The parties cite and argue portions of the venue provisions in Chapter 65 entitled “Guardians Generally.” Those arguments are not very helpful because venue and jurisdiction are separate concepts. Ozark Supply Co. v. Glass, 261 Ark. 750, 552 S.W.2d 1 (1977).
It is our view that Mrs. Powers’ mere physical presence in Garland County is a proper basis of jurisdiction of her person and estate. Jurisdiction to be exercised by a state through its courts of a person or property is established by mere presence. That was part of the scheme of jurisdiction established in Pennoyer v. Neff, 95 U.S. 714 (1878). We have followed it as to persons since our decision in Moores v. Winter, 67 Ark. 189, 53 S.W. 1057 (1899), although problems with the concept may exist in some contexts. See Oden Optical Co., Inc. v. Optique Du Mond, Ltd., 268 Ark. 1105, 598 S.W.2d 456 (Ark. App. 1980). Nor is there any doubt that an Arkansas court may have jurisdiction of whatever property may belong to Mrs. Powers in Arkansas. Arndt v. Griggs, 134 U.S. 316 (1890); Ingram v. Luther, 244 Ark. 260, 424 S.W.2d 546 (1968).
That the General Assembly has not restricted guardianship jurisdiction to the domicile of the prospective ward makes sense. If an incapacitated person is in this State and in need of the protection of guardianship proceedings our courts should not have to decline jurisdiction due to the fact that the person in need is domiciled elsewhere.
The Garland County Probate Court established temporary guardianships of the person and estate of Mrs. Powers, naming Ms. Roberts guardian in each instance. Thereafter, an Oklahoma court entered a permanent order, naming Mr. Powers guardian of Mrs. Powers’ estate. The temporary guardianships established by the Garland County Probate Court were vacated when the Court decided it lacked jurisdiction. While there may be remaining questions of comity or full faith and credit to be resolved in view of the actions of the two courts, the Probate Court has not yet dealt with them, and the record is not such that we can settle them without remand. Our holding is simply that the Probate Court erred in holding that it lacked jurisdiction to establish guardian-ships of the person and estate of Mrs. Powers.
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Steele Hays, Justice.
This is an appeal from a judgment finding appellant Keith Carle to be in contempt of the Craighead Circuit Court. Carle, an attorney and sole practitioner in Jonesboro, was sentenced to ninety days in jail for a willful refusal to proceed to trial in the case of Helen Cater v. Lee Cater. Carle contends the trial judge erred in three respects: in refusing to recognize substantive error in the order being defied, in sentencing him under its inherent power after trying him under a statutory definition of contempt, and in imposing an excessive punishment. Finding merit only in the third point, we modify the punishment imposed and otherwise affirm the judgment appealed from.
Keith Carle represented Lee Cater in a divorce suit with Helen Cater. While that suit was pending Mrs. Cater was subjected to a beating for which she accused Lee Cater. Cater denied the accusation and claimed to have been elsewhere at the time. Mrs. Cater filed suit for damages and on her complaint criminal charges for assault and battery were brought against Lee Cater.
The civil suit was called for trial in January of 1991 while the criminal case was pending. The suit was passed on motion of the defendant and reset for trial in April. Cater again moved for a continuance, which was denied, but the case was reset for October 21 due to a crowded docket.
On September 24 Cater again moved for a continuance on multiple grounds: his assets were frozen as a result of the divorce case, a key witness was unavailable, a possible conflict because of other cases existed; Cater also asked that Judge David Burnett recuse. Judge Burnett refused to recuse and denied the motion to continue.
On October 18 Cater again moved for a continuance and the motion was heard. Carle argued that the criminal case was scheduled for the same week and that a key witness was unable to attend trial. Judge Burnett determined from the prosecutor that the criminal case could be scheduled so as not to conflict and that the witness could testify by video deposition or her testimony from the criminal trial could be transcribed and introduced. The motion was again denied.
On October 21 with the trial judge, opposing counsel, litigants and a jury panel present and prepared to try the case of Cater v. Cater, Mr. Carle delivered a notice of his withdrawal as counsel for Lee Cater and refused to proceed.
After satisfying himself that Carle’s position was adamant and that he was aware of the consequences, Judge Burnett continued the case, cited Mr. Carle for contempt and recused from the contempt proceedings. Judge Harold Erwin was designated to conduct the contempt proceedings which were tried on December 31 after a pretrial hearing on December 23. At the close of the trial Judge Erwin found Keith Carle to be in contempt of court and sentenced him to ninety days in jail. This appeal followed.
Before taking up the arguments,, we mention that in an appeal of a case of criminal contempt, we view the record in the light most favorable to the decision of the trial judge and sustain that decision if it is supported by substantial evidence. Atkinson v. Lofton, 311 Ark. 56, 842 S.W.2d 425 (1992).
The Order
As in the trial court, Carle argues that his constitutional and statutory rights were impinged by Judge Erwin’s refusal to consider in defense of the contempt charge that Judge Burnett abused his discretion in ordering him to proceed with trial on October 21. Carle cites Ark. Code Ann. § 5-1-111(c) (1987) as requiring a charge to the jury that reasonable doubt on the issue of defense requires acquittal and defines “a defense” as any matter involving an excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to introduce supporting evidence.
Appellee’s brief excepts to that contention, pointing out that Judge Erwin made a finding that Judge Burnett did not abuse his discretion in denying a continuance and ordering the trial to proceed as scheduled. But we need to resolve that rather ambiguous issue, as we think the law is long settled- where the failure or refusal to abide by an order of the court is the issue, we do not look behind the order to determine whether the order is valid. In Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906), we upheld the contempt, refusing at the same time to review the underlying order:
The court had jurisdiction to render such a decree, and the fact that it was erroneous would not excuse disobedience on the part of those who were bound by its terms until reversed. Nor does the fact that the decree has been appealed from excuse disobedience until the same has been superseded in a manner provided by law. The appeal alone does not stay proceedings under the decree, and as long as the decree remains in force its terms must be obeyed.
That rule was adhered to in Whorton v. Hawkins, 135 Ark. 507, 205 S.W.2d 91 (1918) and the principle itself was recently underwritten by the Supreme Court in United States v. Rylander, 460 U.S. 752 (1983):
It would be a disservice to the law if we were to depart from the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure to enforce a court’s order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience.
Carle contends that we have looked beneath the order on occasion and recognized substantive error as a defense in contempt proceedings, naming Atkinson v. Lofton, 311 Ark. 56, 842 S.W.2d 425 (1992); Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991); Norton v. Taylor, 299 Ark. 218, 772 S.W.2d 316 (1989) and Lessenberry v. Adkisson, 255 Ark. 285, 499 S.W.2d 835 (1973). But while it might be possible to read one or more of those cases as an exception to the rule, they are to no avail in this case for reasons that should be readily apparent. The underlying setting of those cases was contempt, but beyond that the similarities begin to fade. In Atkinson, the attorney did not defy an order of the court, he was held in contempt simply for asking for a continuance. In Lessenberry, we held the attorney was within his right in refusing to represent a client whom he had never agreed to represent and who had proposed a fictitious defense to drug charges. Moreover, the opinion places particular emphasis on the fact that the attorney’s refusal did not interfere with the orderly conduct of the court’s business.
In Arnold v. Kemp, supra, as in Lessenberry, supra, and Atkinson, supra, the actions by the attorneys did not interfere with the orderly conduct of the court’s business. Beyond that, the attorneys were challenging on constitutional grounds the fee limitation in criminal cases by the only means available, risking contempt- a challenge this court ultimately sustained.
In Norton v. Taylor, supra, the attorney was held in contempt for refusing to represent a nonindigent defendant in a probation revocation proceeding as ordered by the circuit court. We held the court was without authority to order the attorney to provide legal services to a nonindigent defendant under the circumstances presented. Unlike Carle, Norton had not undertaken to represent the defendant, nor were his actions disruptive of the court’s docket.
In sum, what distinguishes these cases, we believe, from the case at bar, is legitimate and successful challenges to the validity of a court order, in contrast to a refusal to comply with an order which was clearly within the court’s jurisdiction and power, i.e., the denial of a motion to defer the trial of a case.
Inherent Power
Keith Carle maintains that it was error for the trial court to try him under the contempt statute [Ark. Code Ann. § 16-10-108 (1987)] and sentence him under the inherent power of the court. The statute reads:
(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts, and no others:
(3) Willful disobedience of any process or order lawfully issued or made by it;
(b) (1) Punishments for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court. However, the fines shall in no case exceed the sum of fifty dollars ($50.00), nor the imprisonment ten (10) days.
The standard regarding the inherent power of the court is included in Article 7, Section 26 of the Arkansas Constitution. This provision states:
The General Assembly shall have power to regulate by law the punishment of contempt not committed in the presence or hearing of the courts, or in disobedience of process.
Carle’s argument that he was informed of the offense with which he was charged at the pre-trial hearing and then convicted of another version of which he was not informed is incorrect. At the pre-trial hearing, Carle requested that he be informed of the charges against him. The trial court responded that it would be proceeding under Ark. Code Ann. § 16-10-108(a)(3) and under the court’s inherent powers to punish a direct contempt. As to the range of punishment, Carle insisted the court was bound by the statutory limit. The trial judge disagreed but stated that he would work within the range of penalties used for Class A misdemeanors. Therefore, the appellant was given notice of the offense as required in Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).
At the contempt hearing, Carle again attempted to persuade the court that his conduct did not fall under the inherent power of the court. The court rejected the argument, stating, “The court is not going to abandon its inherent powers doctrine, right.” (TR. 47.)
The power to punish for contempt is inherent in courts and they may go beyond the powers given by statute. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992); Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984). We have interpreted Ark. Code Ann. § 16-10-108(a)(3) and held that it is not a limitation on the power of the court to impose punishment for disobedience of process. Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988).
The implied powers doctrine clearly applies here. This was a direct contempt in the “presence and hearing” of the judge. Although Carle’s behavior would not qualify as “disorderly, contemptuous or insolent” due to his demeanor, he still chose to disregard a lawful order of the court.
Also, conduct was in “disobedience of process” even though Carle argues that the order did not constitute process because it was not in writing. In Arkansas Department of Human Services v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991), the court stated that process in the sense of the statutes is a comprehensive term which includes all writs, rules, orders, executions, warrants, or mandates issued during the progress of an action. Even though the court’s order was verbal, Carle’s conduct still constituted disobedience of process.
Therefore, Carle’s actions in disobeying the court’s order fell within the inherent powers of the court to punish for contempt and the court was not bound by the limitations set out in the contempt statute.
The Punishment
Keith Carle contends the sentence of ninety days in jail is excessive in light of all the facts and circumstances. He submits that because his sincerity and lack of motive for personal gain are not questioned the sentence is wholly disproportionate to the offense. We agree that the punishment is unduly harsh.
Our power to modify punishment imposed for contempt has been recognized in numerous cases: Page v. State, 266 Ark. 398, 583 S.W.2d 70 (1979); Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974); Morrow v. Roberts, Judge, 250 Ark. 822, 467 S.W.2d 393 (1971); Garner and Rosen v. Amsler, Judge, 238 Ark. 34, 377 S.W.2d 872 (1964); Fossom v. State, 216 Ark. 31, 224 S.W.2d 44 (1949); Smith v. State, 28 Ark. App. 56, 770 S.W.2d 205 (1989). In Garner, we modified sentences of ten and five days in jail imposed on two attorneys who claimed without basis in fact that a petit jury was “stacked” against their client. Writing for the court, Justice George Rose Smith noted that the principal justification for contempt lies in the need for upholding public confidence in the majesty of the law and in the integrity of the judicial system and “when we have found these ends will be met despite a reduction or even a remission of a jail sentence for contempt it has been our practice to modify the judgment.” With that said, the sentences were reduced to two days in jail.
While we view the offending conduct in this case with the utmost gravity, we are not persuaded it was prompted by other than a misguided belief that his client’s interest required it, however ill conceived that may have been. It has not been shown that this conduct, or anything similar, is repetitive and it seems unlikely there will be a recurrence. Therefore, we believe a punishment of five days in jail and a fine of $500 to be sufficient and in keeping with our prior rulings in such matters. See the cases cited above. With that modification, the order appealed from is
Affirmed. | [
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Donald L. Corbin, Justice.
Appellees, Glenda Long and Willard Kelley, were both charged by felony information with the capital murder of Willard Kelley’s wife, Shirley Kelley. Willard Kelley was also charged by felony information with hindering the apprehension of evidence in his wife’s murder. Both appellees were tried together by a jury. The case never reached the jury, however, because the trial court directed verdicts for appellees on all charges at the close of the state’s evidence. The state has filed this appeal.
The threshold issue in this case is whether the state is permitted to appeal from the trial court’s order directing verdicts for appellees. Resolution of this preliminary issue requires our construction of Ark. Sup. Ct. R. 36.10; our jurisdiction is therefore pursuant to Ark. Sup. Ct. R. 29(1)(c).
Our law is well settled that the state is not allowed to appeal from a directed verdict acquitting the defendant when the sole issue is the sufficiency of the evidence of the defendant’s guilt. State v. Dixon, 209 Ark. 155, 189 S.W.2d 787 (1945). The reasoning behind this rule is stated as follows:
The question of the legal sufficiency of the evidence in a given case constitutes a question of law for the decision of the court, but it cannot become a precedent for application in another case because of the varying state of facts in different cases, and therefore the decision of that question, even though it be one of law, is not important in the “uniform administration of the criminal law.”
Dixon at 158, 189 S.W.2d at 789.
Notwithstanding the foregoing rule as stated in Dixon, the state claims it should be permitted to appeal in this felony case because it has examined the transcript and determined the state was prejudiced by the trial court’s commission of an error, the correction of which is essential to the uniform administration of the criminal laws of this state. Ark. R. Crim. P. 36.10(c). The asserted error the state claims requires correction is that, when deciding appellees’ motions for directed verdicts due to insufficient evidence, the trial court erroneously weighed the credibility of the evidence rather than deciding the motions strictly on the sufficiency of the evidence.
In an effort to distinguish between the concepts of “sufficiency of the evidence” and “credibility of the evidence,” we repeat the following analysis used by the United States Supreme Court when presented with a different, yet somewhat similar issue:
[A] conviction rests upon insufficient evidence when, even after viewing the evidence in the light most favorable to the prosecution, no rational factfinder could have found the defendant guilty beyond a reasonable doubt. A reversal based on the weight of the evidence, on the other hand, draws the appellate court into questions of credibility. The “weight of the evidence” refers to “a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.”
Tibbs v. Florida, 457 U.S. 31, 37-38 (1982) (quoting Tibbs v. State, 397 So. 2d 1120 (1981)).
This court has previously held it was error for a trial court to direct a verdict for a defendant on the basis that the state’s evidence was not believable. State v. Taylor, 180 Ark. 588, 22 S.W.2d 34 (1929). The state was permitted to appeal in Taylor because, similarly to the present case, the asserted error did not involve a question of the sufficiency of the evidence; rather, it involved a question of the credibility of the evidence. The Taylor court permitted the state to appeal reasoning that “[i]t was within the peculiar province of the jury to judge the credibility of the witness. It will also be within the province of the court to grant a new trial, upon motion of the defendant, if, in its opinion, the verdict was against the evidence.” Id. at 591, 22 S.W.2d at 35. Therefore, we agree that when a trial court exceeds its duty to determine the sufficiency of the evidence by judging the credibility of the evidence, it commits an error that requires correction. Consistently with Ark. R. Crim. P. 36.10(c) and Taylor, we hold the state is entitled to an appeal in this case.
In the order entered in the present case, the trial court carefully recited the evidence presented by the state and then made conclusory comments. Based on several of those conclusory comments, we conclude the trial court erroneously weighed the credibility of the evidence instead of determining the sufficiency of the evidence. We discuss separately the recited evidence and some of the conclusory comments.
Dr. Fahmy Malak performed the autopsy on Shirley Kelley and determined her cause of death to be multiple crushing blunt trauma to the body, including the upper and lower extremities, the torso, head and neck. Dr. Malak explained he believed that while Mrs. Kelley was alive and standing, she was struck by a vehicle from the rear. Donald E. Smith, of the trace evidence section of the State Crime Laboratory, testified that hairs from the victim’s head were found on two automobiles. Other evidence showed that one automobile belonged to appellee Long and that the other automobile was not connected to either appellee in any way. The trial court observed the state’s theory that the jury could determine all, some, or none of Smith’s findings to be accuraté. However, the trial court stated it “could accept that the jury could believe all or none of Smith’s testimony, but there should be a reasonable, non-speculative basis in the record upon which a jury could believe he is correct on the hair on one vehicle and incorrect on the hair on the other. The court can find no reasonable, nonspeculative basis in this record for such distinction.”
On appeal, the state argues that it was not for the trial court to decide which part of Smith’s testimony the jury would find credible. We agree with this contention, for it is well established that the jury has the right to believe all or any part of a witness’ testimony. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). The foregoing is but one example of situations where the trial court erroneously invaded areas within the province of the jury.
Another example of such invasion is seen in the part of the order where the trial court points out numerous inconsistencies in various witnesses’ testimonies and then concludes that the jury would have to engage in too much speculation and conjecture to find appellees guilty of the crimes charged. While it is true that a verdict cannot be supported by evidence requiring the jury’s speculation of a defendant’s guilt, it is also true that variances and discrepancies in the proof go to the weight or credibility of the evidence and are therefore matters for the factfinder to resolve. Jones v. State, 305 Ark. 95, 805 S.W.2d 642 (1991). Thus, when there is evidence of a defendant’s guilt, even if that evidence is conflicting as it was in the present case, it is for the jury as factfinder to resolve the conflicts and inconsistencies and not for the court to resolve on a directed verdict motion.
Yet another example of the trial court’s invasion of the jury’s province remains to be illustrated. The trial court stated in its order that it was concerned about the importance of the requirement that circumstantial evidence be “inconsistent with any other reasonable conclusion but the guilt of the defendants.” It is true that when circumstantial evidence alone is relied on as substantial evidence to support a verdict, that circumstantial evidence must indicate the accused’s guilt and exclude every other reasonable hypothesis. Black v. State, 306 Ark. 394, 814 S.W.2d 905 (1991). However, the question of whether the circumstantial evidence excludes every other reasonable hypothesis is for the factfinder to determine Id.; Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). Thus, while the trial court’s concern was warranted, the analyzation of the circumstantial evidence should have been left to the jury as the factfinder in the case.
The foregoing review of the trial court’s order convinces us that when considering appellees’ motions for directed verdicts due to insufficient evidence, the court went beyond its duty to determine the sufficiency of the evidence and erroneously engaged in a weighing of the credibility of the evidence. We can do no more than declare the error of the trial court. We cannot reverse the judgment because, as the state acknowledged at the beginning of its brief, due to the trial court’s directing verdicts favorable to appellees, appellees’ double jeopardy rights prevent the state from retrying them on the same charges. Smalis v. Pennsylvania, 476 U.S. 140 (1986); Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992); State v. Taylor, 180 Ark. 588, 22 S.W.2d 34 (1929).
Error declared. | [
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James H. Pilkinton, Judge.
The appellant, Arkansas State Highway Commission, asks that we reverse an award for $68,500 made by a jury in White County, Arkansas.
Appellees own 40.5 acres of land and some improvements located in part in the town of Russell, Arkansas, and in part just east of the town. The acreage comprises one tract. The State Highway Commission contended that the sum of $48,500 represented just compensation for the parcel taken and for damages to the remaining 9.53 acres. That figure is supportable by evidence introduced on behalf of the Commission. However, one of the persons owning an interest in the tract testified to damages of $98,400; and one expert for the landowners fixed the damages at $71,500, and a second expert for the landowners at $88,716. The jury returned a verdict in the amount of $68,500 and the State Highway Commission has appealed.
I
The real basis of appellant’s first argument on appeal is that the witnesses for the landowners based their opinions upon non-comparable sales. We find no merit in this argument. A close examination of the testimony of the witnesses for appellee reveals that the trial court did not err in holding that the weight to be given the testimony in question was for the jury. Arkansas State Highway Commission v. McAlister, 247 Ark. 757, 447 S.W. 2d 649 (1969).
Mr. R. W. Weaver, a witness for the landowners, qualified as an expert. He testified that he based his value testimony upon a number of things. Mr. Weaver’s testimony shows that he was very familiar with the property in question, having grown up a short distance from it. He described the physical attributes of the property in detail, including certain pecan trees growing thereon, the drainage, the type of soil involved, the quality of water available and other important characteristics having a bearing on market value. Mr. Weaver pointed out that the property was good loamy land suitable for raising soybeans, or for use as truck crop land. He stated that the property was flat, tight land suitable for irrigation, with a good quantity of water available. He testified, however, that the highest and best use was for rural home sites because there was available water, electricity, natural gas, telephone and all essential utilities not usually found available for a rural tract. He testified that he looked at the subject tract, gathered data and information in a wide area, narrowing it down to the highest and best use for this particular tract; but that he also looked at it from an agricultural standpoint. He further testified that he took into consideration all of the various factors that he had related to the jury, as well as what other lands comparably situated and comparably sized were selling for and being used for in the area.
Under well settled law in Arkansas in a condemnation case, a qualified expert need only to state his bare opinion as to the value of the condemned property. The testimony of an expert witness should be stricken only if it is shown to lack a sound and reasonable basis. Arkansas State Highway Commission v. Cook, 257 Ark. 98, 514 S.W. 2d 215 (1974).
In the case at bar, Mr. Weaver said on cross examination, in response to a question from the appellant’s attorney, that he was familiar with a 3.00 acre tract of land which lay immediately across the road from the subject property. Appellant now insists that Mr. Weaver’s testimony should have been stricken because of his reliance on this tract. Mr. Weaver at no time stated that his opinion was based solely upon the 3-00 acre tract to which appellant is objecting. He stated at several points in his testimony that this tract was only one of many which he viewed in connection with his overall market study. This witness had indicated that he had taken into account certain other comparables.
The trial court properly ruled that the answers of the witness in question, as to the comparables, would go to his credibility and to his expertise in the eyes of the jury, and the testimony should not be stricken. This was a proper ruling by the trial court in view of Arkansas State Highway Commission v. Jones, 256 Ark. 40, 505 S.W. 2d 210 (1974). In that case the court held that if on cross examination a condemnor is unable to draw from an expert witness more than a weak or questionable basis for his opinion, that fact has bearing on the weight to be given the testimony by the jury; and the testimony should not be stricken on motion. Mr. Weaver also testified that no two pieces of land are truly comparable, in that they are not exactly the same, and that he in no way was attempting to tell the jury that the 3.00 acre tract was comparable to the 40 acre tract; but he was merely taking that sale into consideration in conjunction with his overall opinion. Just because an expert witness uses a smaller tract in conjunction with an appraisal of a larger tract, that does not, as a matter of law, show that the witness had no reasonable basis for his opinion as to the fair or market value of the property condemned. The Arkansas Supreme Court in Arkansas State Highway Commission v. Ward, 265 Ark. 578, 579 S.W. 2d 603 (1979) held that the question of similarity or dissimilarity is basically a question for the trial judge, and we find no abuse of that discretion in this case. See also Arkansas State Highway Commission v. NWA Realty, 262 Ark. 440, 557 S.W. 2d 620 (1977).
The appellant also argues that Mr. Weaver testified as to lot sales in Foothills Subdivision in West Russell. Again the witness’s answer was specifically upon the inquiry of appellant’s attorney. Mr. Weaver detailed the demand for rural home sites in the area, and we cannot say that this testimony pertained or was intended to deal with the question of whether the lots in the subdivision were comparable to the property in question. In any event, in Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563 (1969) the Supreme Court held that the opinion of an expert witness is not rendered without reasonable basis merely because he bases value figures partially on what lots are selling for in the area, even if the taking is in acreage.
Once a witness qualifies as an expert, he is entitled to give an opinion based upon his expertise. The condemning authority may question that expertise, and the witness’s testimony is deemed to be insubstantial only if it is shown on cross examination that there is no reasonable basis for this opinion. Arkansas State Highway Commission v. Duff, supra.
When we consider the testimony in this record concerning the comparable sales of land nearby in the light most favorable to appellee, we find the appellee’s comparable sales are in compliance with the standards set by the case law.
II
Appellant also contends that the testimony of the witness Weaver was insubstantial. We do not agree. He testified that he took numerous sales into consideration and reviewed them with respect to the various factors in arriving at his opinion and then adjusted those sales to come up with the fair market value of the property. He testified, among others, about a 40 acre tract just south of the subject property, which sold for $1,000 an acre, which he adjusted to $1,-700 an acre because of the topography, drainage, and the fact that it sold 15 months before the taking. Mr. Weaver testified that he took ten other sales into consideration but that some of them were as far as 18 to 20 miles away. Separation of two tracts by distance where they are otherwise similar is not sufficient to show that the sale of one is not evidence of the value of the other, where it cannot be said as a matter of law that they are in different localities. Arkansas State Highway Commission v. NWA Realty, supra. On the basis of this record with reference to the respective tracts, we are unable to say that they are not comparable as a matter of law. Consequently, the weight to be given Mr. Weaver’s testimony was for the jury. Arkansas State Highway Commission v. Highfill, 250 Ark. 291, 464 S.W. 2d 784 (1971).
Ill
Appellant also argues that the court erred in permitting testimony by Mr. Quattlebaum, an expert for the landowners, to go to the jury. We do not agree. The record shows that after qualifying as an expert, Mr. Quattlebaum testified that the highest and best use for this particular tract of land immediately before the taking in August of 1978 would be for the development into acreage for home sites. Mr. Quattlebaum testified that he did consider the 3.00 acre tract, about which the appellant’s attorney inquired on cross examination and which sold for $3,000 an acre, but that he did not consider it fully comparable because of the difference in size. The gist of his testimony was that the sale of the smaller tracts in the vicinity were not comparable per se, but would have to be adjusted. Taken as a whole, it appears to us that the testimony of Mr. Quattlebaum was neither improper nor prejudicial to appellant’s case; and that he gave a logical basis for his opinion of market value.
IV
Appellant finally argues that the testimony of B. F. Roetzel, who owned an interest in the land and represented the landowners, is insubstantial.
An owner of land is competent to give opinion testimony as to the value of his land. His testimony is to be stricken only if it is demonstrated that there is no fair or logical basis of support for it. Arkansas State Highway Commission v. Jones, supra. In this case Mr. Roetzel testified as to his familiarity with the land and other lands in the area. The mere fact that Mr. Roetzel did not know of any other sales of land at the exact value he placed upon his property does not demonstrate that he had no reasonable basis for his opinion. Arkansas State Highway Commission v. McAlister, supra. This witness had lived on the land for along time, used and worked it, and was intimately familiar with his land, a part of which was taken by the state. He testified that he was familiar with the value of other land sales in the area. We cannot say he had no reasonable basis for his opinion. The jury did not adopt his value anyway, but in the exercise of the right given to a jury by law in a case of this nature, fixed the damages at $68,500, some $29,900 less than the valuation placed upon this land by the owner.
We are simply unable to say that appellant has demonstrated that the verdict had no substantial evidentiary support.
The judgment is affirmed. | [
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Tom Glaze, Judge.
In this Workers’ Compensation case, the appellant, Marshall A. Humphries, is the employer of the claimant, Wilbur Bray, and the sole proprietor of Farmers Gulf Station (Gulf) and Farmers Repair Shop (Repair). In addition, the appellant is the sole shareholder, president and manager of Farmers Auto Supply, Inc. (Supply, Inc.) of Earl, Arkansas. The appellee, Wilbur Bray, was employed by Gulf, and four other employees worked for appellant’s businesses: Gulf, Ollie Cox; Supply, Inc., Linda Shidler and Ronald McNair; Repair, Walter Baker. During his employment, the appellee was airing a tire when the rim of the tire blew off and injured the appellee. He suffered injuries which consisted of multiple fractures of the arms, legs, ribs and shoulder. Appellee was hospitalized for eight weeks and was released to return to work in April, 1977.
The primary issue in this appeal is whether the appellee’s job was within the definition of “employment” as set out in the Workers’ Compensation Act. At the time of the appellee’s injury, Ark. Stat. Ann. § 81-1302(c) (Repl. I960) provided as follows:
“Employment” means:
(1) Every employment carried on in this State in which five (5) or more employees are regularly employed by the same employer in the course of business or businesses...
The Administrative Law Judge concluded that the appellant had five employees at the time of the injury herein, and thus, the appellee was engaged in covered employment. The Judge’s conclusions were based upon the finding that three of the businesses, including Supply, Inc., were operated and controlled by the appellant, and notwithstanding their legal status, should be combined for the purpose of determining covered employment. In so finding, the Judge decided the correlative issue that employees of a corporate entity held and controlled by a single shareholder may be combined with employees of the shareholder’s other enterprises. In view of this finding, the Administrative Law Judge determined the appellant was the same employer under § 81-1302(c) above for five employees who worked for appellant’s separate businesses. On appeal the Full Commission found the opinion of the Administrative Law Judge to be well reasoned and thorough and the Commission adopted and affirmed the Judge’s opinion.
In reviewing the Commission’s decision, the pivotal issue is whether it correctly held that the two employees who worked for Supply, Inc. could be added to the other three employees hired by appellant in his Repair and Gulf businesses. Neither appellant nor appellee cite any Arkansas Workers’ Compensation cases that address this issue. In contending that a corporation should be treated as a separate employer, appellant does cite cases in other jurisdictions which he argues are similar to the facts and issues before us. In this connection, appellant relies on the case of Crall v. Hockman, 460 S.W. 2d 688 (Mo. 1970) wherein the Missouri Supreme Court held that a partnership was a separate employing entity under the Missouri Workers’ Comepnsation Act, and that the employees of a partnership should not be attributed to a member of the partnership for purposes of determining whether the individual partner was an employer under the Act. [To this same effect, see Kalson v. Industrial Commission, 248 Wis. 393, 21 N.W. 2d 644 (1946).] Based on the decision in Crall, appellant reasons and contends that if the employees of a partnership are not to be counted, then it follows that employees of a corporation should not be counted.
In another jurisdiction, we find the case of Saf-T-Cab Service v. Terry, 167 Md. 46, 172 A. 608 (1934), which appears to be closer in point than the Crall or Kalson cases. In Terry, the Maryland Court of Appeals held in a Workers’ Compensation claim that a driver served as an employee of two corporations at the same time. The Motor Cab Company, Inc. owned the cabs used in the business, and Saf-T-Cab Service, Inc. was concerned with their operation. The Court’s holding was based upon the intimate relationship of the two corporations and the joint interest in the undertaking which the claimant’s employment served to promote. The record before the Court in Terry attributed no corporate purpose to either corporation except the prosecution of the taxicab enterprise in which the claimant was employed by the same corporation executive to whom the management of both corporations was committed.
As was true in Terry, the evidence before us indicates a close relationship and association between appellant’s three businesses: Gulf, Repair, and Supply, Inc. In fact, it is almost impossible to distinguish at times one business from the other. Linda Shedler, a bookkeeper, testified that she worked for the appellant at the time the appellee was injured, and at that time there were three accounts: Gulf; Supply, Inc.; and Farmers Body Shop. All of appellant’s businesses were at the same location and in the same building. Shidler kept books for all of these commercial enterprises, and she stated that her salary was paid from any one of the businesses or sometimes by the appellant himself. She testified that money was moved from one account to another so that the employees could be paid from an account with sufficient funds. She prepared payroll slips for the five employees named earlier, viz: Ollie Cox, Walter Baker, Ronald McNair, the appellee and herself.
The appellant testified that the payroll slips did not indicate which business an employee worked for, and the slips were identical and gave only the employee’s name and the payroll information. Further, the Wage and Tax Statement for the appellee for 1975 shows that the three businesses were not separate, listing the employer’s name on the W-2 as: “Farmers Auto Parts, Repair and Gulf Station.” The appellant testified that he incorporated the auto supply store because it was a requirement of Parts, Inc. of Memphis, who financed part of the business. It was incorporated in June, 1973, but the charter was revoked three and one-half years later, sometime after appellee’s injury. At the time of the injury, a Coca Cola sign in front of the business read: “Farmers Gulf and Auto Parts,” with no reference to its incorporation. Moreover, there was no separate listing in the Earle telephone directory for Supply, Inc. Rather, each of the three businesses had an extension telephone using the same number.
There was conflicting testimony as to whether it was ever made known to the employees of any of appellant’s businesses or the public that the auto supply business, Supply, Inc., had been incorporated. Our Supreme Court has held that the relationship of employer and employee is presumed to continue for a reasonable time after a sale of the business is made without the knowledge of the employee. Ledbetter v. Adams, 217 Ark. 329, 230 S.W. 2d 21 (1950). In Ledbetter, the Supreme Court concluded that a transfer of three of the cab company’s five cabs to another was a subterfuge designed to defeat the purpose of the Workers’ Compensation Act by reducing the number of employees below the required number. The Court went on to say that had the transfer been in good faith that the original employer would have remained liable under the Act until there has been a reasonable time, or course of events, for knowledge of the change of employer to be brought home to the employee.
After a careful study of the evidence before the Workers’ Compensation Commission, we conclude that there was substantial evidence in the record to find that the corporation was the alter ego of the appellant, and that it was so managed and controlled by him as to constitute a sole proprietorship. The conditions under which the corporate entity may be disregarded or looked upon as the alter ego of the principal stockholder vary according to the circumstances of each case. This doctrine of piercing the corporate veil is founded in equity and is applied when the facts warrant its application to prevent an injustice. Aetna Casualty and Surety Company v. Stover, 327 F. 2d 288 (8th Cir. 1964). We feel that its application in the instant case was warranted.
We are aware that the rule of piercing the fiction of a corporate entity should be applied with great caution. We also recognize that a corporation and its stockholders are a separate and distinct entity even though the stockholder may be the owner of a majority of the stock in a corporation. Banks v. Jones, 239 Ark. 396, 390 S.W. 2d 108 (1965). If we were faced with a corporation that complied with the principles of corporate law both as to form and practice, we would hold that Supply, Inc. was not the same employer as the appellant and reverse the award of benefits to the appellee. However, under the set of facts in this case, Supply, Inc. is found to be one of the appellant’s businesses and may be considered in determining the number of employees of the appellant.
Affirmed.
Corbin J., not participating.
Throughout the record Farmers Auto Supply, Inc. of Earle, Arkansas, is also referred to as Farmers Auto Parts and Supply or Farmers Auto Parts. For purposes of simplicity, the name Supply, Inc. has been substituted in this opinion whenever the name of the business is mentioned.
Farmers Body Shop was a business located in the same building where appellant’s enterprises were, but was operated by an independent contractor, and therefore, was not considered in determining the number of employees. | [
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Frank Holt, Justice.
This appeal results from the trial court’s denying appellant’s motion to quash and vacate a default judgment.
On November 7, 1978, the appellee filed an action against the appellant asserting he had suffered property damages to his building as a result of the negligent operation of an automobile by appellant and that a separate defendant had negligently entrusted the automobile to appellant. On November 13, 1978, a summons was served on him. On January 8, 1979, a default judgment for $5,000, plus costs, was rendered against him. On January 9 a summons, issued 4 days earlier, was served on the separate defendant, the owner of the automobile. On January 23, 1979, a motion to quash service was filed on behalf of both the appellant and the separate defendant. On March 9, 1979, during term time, appellant amended this pleading, seeking to set aside the judgment. The court treated the supplemental pleading as a motion to vacate and, after a hearing, overruled the motion.
We need only to discuss appellant’s contention that the court erred in not setting aside the default judgment for “excusable neglect, unavoidable casualty and other just cause.” Ark. Stat. Ann. § 29-401 (Repl. 1962). It is within the sound discretion of the trial court to grant or deny a motion to set aside a default judgment, and the question on appeal is whether there has been an abuse of that discretion. Johnson v. Jett, 203 Ark. 861, 159 S.W. 2d 78 (1952); and § 29-401, supra. Default judgments are not favorites of the law and should be avoided when possible. Winters v. Lewis, 260 Ark. 563, 542 S.W. 2d 746 (1976); and Perry v. Bale Chevrolet Co., 263 Ark. 552, 566 S.W. 2d 150 (1978). “The granting of a default judgment is a harsh and drastic action and may deprive a party of substantial rights.” Winters v. Lewis, supra.
Appellee’s suit was filed by an attorney, who had previously represented appellant on an unrelated matter in which he had been given power of attorney for appellant during a period of time from 1976 to 1977. There was some evidence he had also represented him in the spring of 1978, 7 months prior to the filing of this action, on a DWI charge. When appellant received the summons on November 13, 1978, he telephoned his former attorney, who informed him that he was representing the appellee in the matter, could not discuss the suit with him, and advised appellant to get an attorney to represent him. When appellant said he had insurance coverage, the attorney explained the carrier’s duty to defend him and advised appellant to contact the carrier. According to appellant, the attorney did not advise him to hire a lawyer but told him he wanted the name of the insurance company because he wanted to collect from it. However, appellant admitted he knew by the end of this conversation that the attorney was representing the appellee and would not represent him. It is undisputed that appellant called back that same day and left the name of his insurance carrier with the attorney’s secretary. That day the attorney wrote the insurance carrier, sending a copy of the complaint. About a week later, or within the 20 days after service of process, the carrier advised him by telephone and letter that there was no insurance coverage on the vehicle. The attorney did not pass this information on to the appellant. Appellant testified that when he called back and gave the name and telephone number of the insurance company to the attorney’s secretary, appellant “thought that was the end of it.” After receiving notice of the default judgment, appellant then consulted his present attorney, who promptly filed the motion to quash service, as indicated, and later amended the pleading to vacate judgment.
When it is demonstrated there exists a just cause for a defendant not filing a timely answer, a default judgment should be set aside. Barkis v. Bell, 238 Ark. 683, 384 S.W. 2d 269 (1964). As a proper guide to the exercise of discretion, the basic underlying policy is to have each case determined on its merits because, in the normal course of litigation, substantial rights are preserved and justice between the parties is best served by this policy. In view of the former relationship between appellant and appellee’s attorney and appellant’s promptness in questioning the default judgment, we are of the view that there was an honest and unfortunate misunderstanding which constituted just cause for not filing a timely answer. Therefore, the default judgment is set aside and vacated.
Reversed and remanded.
Fogleman, C.J., and Hickman, J., dissent.
This statute is now replaced by Ark. Rules of Civil Procedure, Rules 55 and 60 (Repl. 1979). | [
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Richard N. Moore, Special Justice.
This case orb ginated as a suit by John Harris and Betsy Harris, herein referred to as “Harris”, against Diamond Shamrock Corporation and Arkansas Louisiana Gas Corporation, referred to as Arkla, Inc., and is before the Supreme Court of the State of Arkansas pursuant to Rule 29(1) (n). The subj ect of Appellee Harris’ complaint was an oil and gas lease executed between Harris and Diamond Shamrock on July 1, 1977, involving certain acreage purchased in May of 1974 and owned by Harris. At the time the oil and gas lease between Diamond Shamrock and Harris was executed, there was in existence a long-term gas purchase contract between Appellant Diamond Shamrock and Arkla, Inc., that had been executed on December 7, 1971, and covered an area which included the Harris property. By the terms of the long-term gas purchase contract, Arkla agreed to purchase at a specified price the gas produced by Diamond Shamrock from wells in several counties, including the area in Pope County, Arkansas, where the Harris lands are located. When Harris purchased the property in May, 1974, an abstract of the property was prepared but did not include nor reveal the existing long-term gas purchase contract between Diamond Shamrock and Arkla, Inc. Harris later discovered that a recording supplement, evidencing the material terms of the long-term gas purchase contract, had been recorded in the records of the Circuit Clerk of Pope County on December 15,1971, but appeared nowhere in his chain of title.
Subsequent to the purchase of the property involved herein, Harris executed an oil, gas, and mineral lease on July 1,1977, with Diamond Shamrock, this lease included, along with other acreage, the thirty-four (34) mineral acres located in Section 10, Township 9 North, Range 20 West, in Pope County, Arkansas, belonging to Harris. Unknown to Harris at that time, this area was also included by the terms of Diamond Shamrock’s 1971 gas purchase agreement with Arkla, Inc.
The gas lease contract between Harris and Diamond Shamrock was represented to Harris by Diamond Shamrock to be the same standard form that was used with other property owners in the area and contained the royalty clause as follows:
“Lessee shall monthly pay lessor as royalty owned gas, including casing head gas, and other gaseous substance produced from said land and sold or used off the premises, or for the extraction of gasoline or other products therefrom, the market value at the well of one-eighth of the ga^ so sold or used, provided that on' gas sold at the wells, the royalty shall be one-eighth of the amount realized from such sale.”
It is this clause that sets the price that Appellant Diamond Shamrock has contracted to pay Harris under their lease for any gas produced from the Harris property. The Appellant asserts that the market value, referred to in the quoted royalty clause, was actually established prior to the time of the 1977 lease agreement between Diamond Shamrock and Harris by the terms of the 1971 gas purchase agreement between Diamond Shamrock and Arkla, Inc. The agreement set the price that Arkla, Inc. would pay to Diamond Shamrock for gas produced and supplied from the area that included the property owned by Harris.
Harris alleged in the trial court that the amount he receives from Diamond Shamrock for the gas attributable to his property should not be set by the gas purchase contract between Diamond Shamrock and Arkla, Inc. Harris asks that his compensation be set by the market value of one-eighth of the gas produced as stated in his lease agreement with Diamond Shamrock or, in the alternative, that the court grant a cancellation of the gas lease between Harris and Diamond Shamrock due to Harris’ lack of notice of the 1971 gas purchase agreement at the time he entered into the lease agreement with Diamond Shamrock.
On November 14, 1983, the trial court held:
1. That the gas purchase contract between the Defendant Diamond Shamrock Corporation and Arkla, Inc., formerly Arkansas Louisiana Gas Company, executed on the 7th day of December, 1971, is not applicable to Plaintiff’s oil and gas lease executed to Diamond Shamrock Corporation on the 1st day of July, 1977.
2. That the pleadings are amended to conform to the proof and the Court finds that the oil and gas lease between Defendant Diamond Shamrock Corporation and Plaintiffs Harris provides for Plaintiffs to be paid monthly, as royalty on gas, one-eighth (1/8) of the market value thereof.
3. The best evidence of the market value is the price paid other paticipants in the Lynch No. 1 Well, as shown in Plaintiff’s Exhibit No. 15, which stated that the other participants as of January 5,1983, were being paid N.G.P.A. Section 102 3.249 cents/M.M.B.T.U.
4. Plaintiffs are not entitled to cancellation, but are entitled to performance of their oil and gas lease, just as if the gas purchase contract aforementioned did not bind them in any way.
5. Plaintiffs are entitled to an accounting for past due royalties at the market value, as determined'by what the other participants were paid on the same well as set out in Plantiffs’ Exhibit No. 15, which indicates that they were being paid N.G.P.A. Section 102 3.249 cents/M.M.B.T.U., as of the 5th day of January, 1983.
6. That Defendant Diamond Shamrock Corporation will pay Plaintiffs Harris future royalties at the same rate the aforementioned participants are being paid.
7. That Defendant Diamond Shamrock Corporation shall pay Plaintiffs Harris accrued interest at the rate of ten percent (10%) per annum on all past due royalties from the date they should have been paid.
8. That there is no contractual relationship between the Plaintiffs and the Defendant, Arkla, Inc., so that the Defendant, Arkla, Inc., is not responsible, nor is it obligated by any of the findings and orders made by this Court in favor of the Plaintiffs against the Defendant Diamond Shamrock.
9. The Plaintiffs shall have a lien on the oil and gas lease aforementioned and the gas produced therefrom to secure payments of past and future royalties, and said lien shall apply to both Defendant, Diamond Shamrock and Arkla, Inc.
10. This Court shall retain jurisdiction for accounting of the past due royalties and enforcement of this Order.
Diamond Shamrock contends on appeal that the trial court committed error when it found that Appellant’s royalty obligation was the market value of one-eighth (1/8) of the gas attributable to Appellee Harris’ lands and that the determination of this market value should not be anything other than the amount paid Diamond Shamrock for the gas produced from Appellee Harris’ land pursuant to the long-term gas purchase contract between Diamond Shamrock and Arkla, Inc. Appellant Diamond Shamrock also asserts that any other interpretation of the lease agreement actually rewrites the contract for the parties and, is therefore error. Appellees Harris cross appealed the trial court’s denial of their request for cancellation of the contract. Appellees Arkla, Inc. cross appealed the trial court’s refusal to dismiss Arkla, Inc. from the original lawsuit.
Appellee John Harris asked the representative of Diamond Shamrock specifically about the terms of the oil, gas, and mineral lease that Harris executed with Diamond Shamrock during his negotiation of the lease. His inquires were to determine if there was anything unusual about this particular lease in comparison to the leases Diamond Shamrock had previously executed with other lessors in the same area and Unit. Diamond Shamrock assured Harris that it was a standard lease and that the terms and provisions were not different or unusual. As aforementioned, Harris executed this lease in July, 1977, without knowledge that Diamond Shamrock had previously entered into the long-term gas purchase contract with Arkla, Inc. in December of 1971. Further, the Harrises had no reason to be on notice of that particular contract since though it was recorded, it was not in their chain of title and they had no reason to search nor manner by which to discover this contract. In Tisdale v. Gunter, 194 Ark. 930, 109 S.W.2d 1267 (1937), it states:
If one, to prove his title, must rely upon and make proof of a deed or decree to establish a title, then it is a link in the chain of title, and he is affected with notice thereof, whether he has knowledge or not and regardless of the fact that it may not be of record. If, to establish a title, it is not essential to prove and rely upon a deed of record, it is not a link in the chain of title, and in these circumstances one is not bound by the recitals of a deed or decree, unless he has actual knowledge thereof.
See also, Criner v. Ritchie, 212 Ark. 815, 208 S.W.2d 447 (1937).
The memorandum of the gas purchase contract between Diamond Shamrock and Arkla, Inc. that was recorded in 1971 was not notice to the Appellees Harris.
Appellant Diamond Shamrock prepared the oil, gas and mineral lease agreement that was executed between itself and Harris and included in this Agreement the language in the royalty clause which contained the reference to “market value”. During the time period that Harris and Diamond Shamrock were negotiating the lease agreement, there was never any attempt on the part of Diamond Shamrock to inform Harris of the gas purchase agreement with Arkla nor was there any explanation of why the pricing standard of the gas purchase agreement was not included in the royalty clause of the lease agreement. If Diamond Shamrock was relying upon the pricing standard found in the 1971 gas purchase agreement with Arkla, Inc., then this price should be clearly referred to in the lease agreement royalty clause. To hold otherwise would place Harris in the unfair position of being compensated for the gas produced from his property by a contract to which he was not a party nor had any notice of when negotiating his lease with Diamond Shamrock. This very gas purchase agreement that Diamond Shamrock attempts to rely on requires that Diamond Shamrock give specific reference and include notice to any other party with whom it might contract who would be covered by the gas purchase agreement. Diamond Shamrock not only failed to include this notice by specific reference in its lease agreement with Harris, it failed to disclose the prior agreement when questioned by Harris during the oil and gas lease negotiations. The royalty clause states that the valuation is to be made by the market value of one-eighth of the gas sold attributable to the Harris lands. If there is any uncertainty,, then this obligation should be resolved in favor of Harris against Diamond Shamrock, the party that drafted the instrument. Bradley v. Arkansas Louisiana Gas Company, 280 Ark. 492, 659 S.W.2d 180 (1983). Shelty v. Benton Savings & Loan Association, 279 Ark. 275, 651 S.W.2d 71 (1983); Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532(1974).
Arkla, Inc. cross appealed on the issue that the trial court was in error for denying Arkla’s motion to dismiss. Due to the fact that the Appellant Diamond Shamrock based the royalty payments that it was obligated to pay Harris upon the 1971 gas purchase agreement with Arkla, we hold that Arkla was properly included in the original lawsuit pursuant to Rule 19 of the Arkansas Rules of Civil Procedure.
For the reasons stated above, the trial court’s decision is affirmed on direct appeal and because of this holding, it is unnecessary to deal with the other issues raised on appeal.
Hubbell, C.J. and Dudley, J. dissent.
Hollingsworth, J., not participating. | [
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Robert H. Dudley, Justice.
Appellant was found guilty of violating the Omnibus DWI Act of 1983 and, on appeal, contends that the act is unconstitutionally vague. We uphold the statute and affirm the conviction. Jurisdiction to decide the constitutionality of the act is in this court. Rule 29(l)(c).
The Omnibus DWI Act of 1983, Ark. Stat. Ann. §§ 75-2501 through 75-2514 (Supp. 1983), changes the definition of the illegal act. Under the earlier statutes, §§ 75-1027 through 75-1031.1 (Repl. 1979), it was unlawful to drive while under the influence of intoxicants and there was a presumption that a person was under the influence of intoxicants if he had a blood alcohol content of .10% or more. Under the 1983 act, two separate acts are declared illegal: (a) driving while intoxicated or (b) driving with a blood alcohol content of .10% or more. The 1983 act, Ark. Stat. Ann. § 75-2503 (Supp. 1983), provides:
(a) It is unlawful and punishable as provided in this Act [§§ 75-1031.1, 75-1045, 75-2501 — 75-2514] for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this Act for any person to operate or be in actual physical control of a motor vehicle if at that time there was 0.10% or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance. [Acts 1983, No. 549, § 3.]
Appellant contends that subsection (a), above, is vague. Both the Fourteenth Amendment to the United States Constitution and article 2, section 8 of the Arkansas Constitution declare that no person shall be deprived of life, liberty or property without due process of law. It has been recognized for over 80 years that due process requires some level of definiteness in criminal statutes. Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77, fn. 2 (1948). Due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. State v. Bryant, 219 Ark. 313, 241 S.W.2d 473 (1951); Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 68-69 (1960); Note, Due Process Requirements of Definiteness in Statutes, 62 Harv. L. Rev. 77-78 (1948).
Subsection (a) of § 75-2503 meets both requirements. First, it gives a fair warning of the prohibited conduct. Due process requires only fair warning, not actual notice. McBoyle v. United States, 283 U.S. 25, 27 (1931). The standard is the same in Arkansas. Trice v. City of Pine Bluff, 279 Ark. 125, 129, 649 S.W.2d 179 (1983).
The word “intoxicated” is described in another subsection, § 75-2502 (a) as:
(a) “Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, or a combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.
The definition of “intoxicated” fairly warns a person of ordinary intelligence that he is in jeopardy of violating the law if he drives a motor vehicle after consuming a sufficient quantity of alcohol to alter his reactions, motor skills and judgment to the extent that his driving constitutes a substantial danger to himself or others. The warning is sufficient to pass constitutional muster. The Constitution does not require impossible standards of specificity and a statute, is sufficiently clear if its language conveys sufficient warning when measured by common understanding and practice. Jordan v. DeGeorge, 341 U.S. 223 (1951); Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979).
Second, a law is held to be vague when it leaves the police or the factfinder free to decide, without a fixed standard, what is prohibited. Trice v. City of Pine Bluff, 279 Ark. 125, 649 S.W.2d 179 (1983). The definition of intoxicated, set out in § 75-2502(a), is a sufficient standard for police enforcement and for ascertainment of guilt. We hold that § 75-2503(a) of the act is not unconstitutionally vague.
Under the second subsection, § 75-2503(b), intoxication is not an element of the offense. Driving with a blood alcohol content of. 10% or more is the prohibited act. Stated differently, it is a violation per se to drive with a blood alcohol content of .10% or more. We have also held this subsection is not unconstitutionally vague. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).
Appellant next contends that the trial court committed error in allowing the police officer to testify that appellant was intoxicated because, he argues, that is the ultimate issue. There is no merit in the argument. Rule 704, Ark. Unif. Rules of Evid., 28-1001, et seq. provides:
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
The unmistakable trend of authority is to not exclude opinion testimony because it amounts to an opinion on the ultimate issue. Mathis v. State, 267 Ark. 904, 907, 591 S. W.2d 679, 681 (1979). While the opinion testimony in this case embraced the ultimate issue, it did not mandate a legal conclusion and there was no error in its admission. See Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981).
For the benefit of bench and bar we comment on a matter not raised on appeal, and therefore not affecting this case, which relates to filing charges in cases of this nature. Appellant was charged with driving while intoxicated and with having had three prior convictions. Therefore, he was charged with a felony. Sec§ 75-2504(b)(3) (Supp. 1983). Yet, the charge was made in municipal court by a traffic ticket. An information was not filed. The Constitution of Arkansas requires that felonies be charged by either information or indictment, art. 2, § 8, amendment 21; Lovell v. State, supra. In addition, city attorneys cannot file felony charges and municipal courts are without jurisdiction to try felony cases.
Affirmed. | [
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Robert H. Dudley, Justice.
The plaintiff contends that the trial court erred by dismissing his complaint and amended complaint. We affirm. Jurisdiction is in this court to construe the Arkansas Rules of the Supreme Court, Rule 29 (l)(c).
In the complaint, which sounded in tort, plaintiff alleged that he was employed by the defendant and was injured by a fellow employee. The complaint did not contain an allegation of negligence on the part of the defendant nor did it contain an averment of negligence by the fellow employee. It recited only that plaintiff was injured when an employee dropped a piece of equipment on his leg.
The defendant filed a Motion to Dismiss for failure to state facts upon which relief could be granted. AR.CP Rule 12 (b)(6). Concurrently, defendant filed an answer denying liability.
The defendant next filed a motion for summary judgment in which he pleaded that recovery was barred by the fellow servant rule. In response, the plaintiff acknowledged the fellow servant rule but pleaded that he would file an amended complaint in which he would allege negligence on the part of the defendant. The plaintiff then filed his amended complaint. The real issue on appeal is whether the amended complaint contains a statement of facts showing that the plaintiff is entitled to relief. The pertinent part is as follows:
2. That in addition to the allegations contained in the Complaint filed on January 19, 1983, the plaintiff alleges herein that the defendant, Jimmy Moss, was personally present at the time of the incident on November 5, 1981; that the employees of the defendant were acting under the specific supervision of the defendant; that the directions of the defendant, Jimmy Moss, in describing how he wanted each piece of equipment handled by his employees were erroneous in that he described an improper procedure for the repair of the equipment. The plaintiff herein alleges negligence of the defendant, Jimmy Moss, in demanding and directing the action of his employees in an erroneous and negligent manner, such actions being the proximate cause of the negligent injury to the plaintiff herein.
Later, defendant’s motions were set for hearing. At that hearing, the trial court announced that he was granting summary judgment on the original complaint and dismissing the amended complaint because it “contains conclusions, not particulars. . . ” The order reflects that summary judgment was granted.
On appeal, plaintiff contends that the fellow servant rule is an affirmative defense which must be pleaded by answer, or else it is deemed waived. ARCP Rule 8. Thus, the plaintiff concludes, the case must be reversed. He also contends there are facts in dispute.
We do not reach the issues raised by the plaintiff because, even if the trial court announced the wrong reason for its ruling, an appellate court will sustain the judgment if it is right. Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983). The trial judge in this case reached the right result since the original complaint did not aver negligence on the part of the fellow employee, only an incident and an injury, while the amended complaint merely concluded that the defendant erroneously described and directed a negligent procedure. It did not state any facts.
Rule 12 (b) (6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” Since Rule 12 (b) (6) provides for testing the complaint, it must be read in conjunction with Rule 8, which sets out the requirements of the complaint. Rule 8 provides:
A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim, or third-party claim, shall contain ... (2) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief, . . . (Emphasis supplied)
Both the complaint and the amended complaint failed to make a “statement in ordinary and concise language of facts showing that the pleader is entitled to relief because neither contains a factual allegation of any act of negligence. Thus, they were correctly dismissed under Rule 12 (b) (6) for “failure to state facts upon which relief can be granted.” See Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981).
The dismissal should have been for failure to state facts upon which relief was granted and should have been without prejudice. If that procedure had occurred, the plaintiff would have had an election on whether to plead further or appeal. However, the dismissal order recites that it is on summary judgment and so plaintiff never was afforded a chance to plead further. Accordingly, we modify the order of the lower court to the extent that the dismissal is without prejudice.
Affirmed as modified.
George Rose Smith, J., and Hollingsworth, J., concur. | [
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Steele Hays, Justice.
Appellant, Robert Oliver, was convicted of violating the Omnibus DWI Act of 1983. On appeal he challenges the sufficiency of the evidence and the interpretation and construction of a section of the act, Ark. Stat. Ann. § 75-2502(a). The pertinent section reads;
“Intoxicated” means influenced or affected by the ingestion of alcohol, a controlled substance, or a combination thereof, to such a degree that the driver’s reactions, motor skills and judgment are substantially impaired and the driver, therefore, constitutes a clear and substantial danger to himself and other motorists or pedestrians.
The gist of the argument is that because the state failed to present any evidence as to appellant’s reactions, motor skills and judgment under normal conditions, it necessarily failed to prove these responses had been substantially impaired. The appellant argues that in any case the state failed to show he was intoxicated as that term is defined under § 75-2502(a).
Appellant’s argument is without merit. The statute is clearly intended to describe and measure behavior that is so substantially altered that it presents a danger to the driver and others. The driver’s skills under normal conditions are immaterial. It is driving with those skills impaired to the extent that it causes the danger outlined in the statute that brings the driver within the proscribed activity.
In this case it is quite evident appellant’s driving skills were sufficiently impaired to create a substantial danger to himself and others. The arresting officer testified he clocked the appellant’s car going 62 miles per hour in a 45 miles per hour zone. He said the appellant’s oncoming vehicle was making a curve and traveling left of the center line causing the officer to have to dodge the car. The officer turned around, followed appellant and at one point observed him traveling completely over the center line. He stopped the car and gave the appellant a field sobriety test. Appellant was able to touch the tip of his nose with his left finger but missed entirely with his right. The officer gave appellant a dexterity test by starting with the small finger and counting up to four and reversing: one, two, three, four, four, three, two, one. The officer asked him to do it twice. Appellant responded with “four, one, three, two, four, four,” and then made no further attempt to finish the test. Appellant, he said, became so abusive and threatening that he handcuffed him. The chief photographer for a television station who was accompanying the arresting officer corroborated the officer’s testimony and testified that the odor of alcohol was present after the appellant got in the patrol car with them. The supervising officer who met the appellant at the detention center testified the appellant appeared to be very intoxicated, that his face was flushed, his eyes bloodshot, his speech slurred and that he was unsteady on his feet. Appellant admitted to drinking up to five beers between 12:00 a.m. and 2:00 a.m.
Under our prior DWI laws we have found similar evidence sufficient to sustain a conviction of driving while under the influence of intoxicants. See Walker v. State, 241 Ark. 396, 408 S.W.2d 474 (1966); Atha v. State, 217 Ark. 599, 232 S.W.2d 452 (1950). While the language of our previous statutes, Acts 1949, No. 255, differs from the act nowin force, we have no reason to find the superseding statute greater in its requirement of proof for conviction. To the contrary, the emergency clause of the Omnibus Act makes it clear the legislative intent was to create a strict statutory scheme to deter potential intoxicated drivers.
It is hereby found and determined by the Seventy-Fourth General Assembly that the act of driving a motor vehicle while under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of this State, and that increasing the penalty for this dangerous conduct may serve as a deterrent to such behavior.
There was substantial evidence presented in this case to sustain a conviction of driving while intoxicated under Ark. Stat. Ann. § 75-2503(a) and the judgment is affirmed. | [
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Per Curiam.
Ordinarily, we only grant petitions for review of decisions by the Court of Appeals on the ground that the decision involves a legal principle of major importance when the party seeking review filed a motion for certiorari before the case was submitted to the Court of Appeals. Ark. Sup. Ct. R. 29 (6). No such motion was made by the state in this case, but we grant review for three reasons.
First, the Court of Appeals was divided on whether this case should have been referred to us. The case does concern a question of major importance: the changing law of search and seizure. We are responsible for making certain that law is understood and correctly applied in this state. Two recent United States Supreme Court cases change that law, and we must reconcile our decisions with those changes. United States v. Leon, _U.S__,104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard,-U.S--, 104 S.Ct. 3424, 82 L.Ed.2d 73 (1984).
Second, the Court of Appeals had the problem of choosing whether to follow those decisions or our Rules of Criminal Procedure, which no doubt now need review.
Finally, as the petitioner points out, those United States Supreme Court decisions were not rendered until after the state filed its brief. At that point it was considered too late to ask the Court of Appeals to certify this case. In our judgment the state could not have anticipated the importance of the issue prior to the recent decisions.
Review granted.
Purtle, J., dissents. | [
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Robert H. Dudley, Justice.
Appellee, Debbie Arant, aged 19, borrowed her grandmother’s automobile so that she and her friend, Shelia Stanfill, could drive from Paragould to Current River beach, just north of Pocahontas. Debbie promised her grandmother that she would not let anyone else drive the car. After an uneventful trip to the beach, the two of them drank some wine and met appellee Larry White. They decided to drive Debbie’s grandmother’s car to Larry’s home in Jonesboro. Debbie started driving, but just south of Pocahontas she asked that one of the others drive because of the wine she had drunk and because she was unfamiliar with the road. Both Shelia and Larry offered to drive, and Debbie chose to let Larry drive. Shortly thereafter, Larry ran into the rear of the car owned and driven by appellant, Gregory Evans.
The jury awarded appellant Gregory Evans a verdict of $15,000 against appellee Larry White but found that White was not the agent of appellee Debbie Arant. Appellant Evans contends that, as a matter of law, Larry White was Debbie Arant’s agent and that the trial court committed error in allowing the matter to go to the jury. We find no error and affirm. Jurisdiction of tort cases is in this Court. Rule 29(1) (o).
We have adopted the definition of agency contained in the Second Restatement of the Law of Agency, § 1, comment a, which provides that the relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control. Crouch v. Twin City Transit, 245 Ark. 778, 434 S.W.2d 816 (1968). The two essential elements of the definition are authorization and right to control.
Ordinarily, agency is a question of fact to be determined by the trier of fact, but where the facts are undisputed, and only one inference can reasonably be drawn from them, it becomes a question of law. Campbell v. Bastian, 236 Ark. 205, 365 S.W.2d 249 (1963).
In this case, the facts concerning the first element were undisputed; Larry White was willing to act for Debbie Arant, and she authorized him so to act. However, the facts concerning the second element were in dispute. Debbie Arant, the only witness on the subject of agency, testified on cross-examination that she retained some control but on re-direct examination that she did not have any right to control. Since more than one inference can be drawn from her testimony about the element of control, the trial judge correctly allowed the jury to decide the issue.
Affirmed. | [
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Per Curiam.
The clerk of the court refused to file the record in this case because of uncertainty about whether the notice of appeal, filed on July 6, was timely. The judgment bore conflicting filing stamps, a somewhat inconspicuous one reading “Filed May 21,1984’ ’ and a more prominent one reading “Filed & Recorded June 7, 1984.” We remanded the question to the circuit judge, who determined that the judgment was “filed of record” on June 7. That finding, too, is not without ambiguity, but we think it proper to let the record be filed.
The doubt, however, should not have arisen. The time for filing the notice of appeal runs from the date the judgment or decree is filed in the circuit or chancery clerk’s office, not from its recordation. Hence the filing date should be clearly stamped on the document. If the date of recording is also to be stamped, the stamp should not include the word “filed.” All circuit and chancery court clerks are directed to conform their practice to this opinion, a copy of which will be forwarded to them by the Judicial Department.
Rule granted. | [
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George Rose Smith, Justice.
On March 23, 1983, at 6:55 a.m., the Plainview fire department was called to a fire at Horn’s grocery, which was also the residence of Samuel, Mabel, and John Horn. At the scene the firemen learned that the three Horns were still inside the burning building. In. extinguishing the fire the firemen found the bodies of the three Horns, all of whom had died not from the fire but from having their heads battered and their throats cut. It later appeared that the victims had also been robbed. The appellant Metcalf was convicted on three counts of capital murder and sentenced to life without parole on each count. We need discuss in detail only one of his five arguments for a new trial.
At a hearing on a motion to suppress an in-custody statement given by Metcalf, the weight of the testimony showed that when Metcalf was arrested on the night of March 23 he asked for a lawyer, but none was provided. The next morning he was taken from his cell for questioning. An officer testified that when Metcalf was again reminded of his rights he started talking “a mile a minute” even though an officer tried to stop him. A tape recorder was turned on and took the rest of his statement, which was introduced at the trial.
The trial judge, in ruling that the statement was admissible, recognized the difficulty: “I do want to state this: This man did request a lawyer and ... I have some serious problems with it.” The judge concluded, however, that Metcalf had waived his rights when he was reminded of them and kept talking.
The judge’s ruling was wrong. When a person in custody indicates that he wants a lawyer, under the Miranda rule the interrogation must cease. Moore v. State, 261 Ark. 274, 551 S.W.2d 185 (1977); Davis v. State, 243 Ark. 157, 419 S.W.2d 125 (1967). It is true that the accused person may change his mind and initiate further contact with the officers, but the impetus must come from the accused, not fromthe officers. Oregon v. Bradshaw, _U.S__, 103 S. Ct. 2830 (1983); Edwards v. Arizona, 451 U.S. 477 (1981); Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). Here Metcalf was admittedly taken from his.cell for questioning. He should not have been put in that position without a lawyer being present; so his supposed willingness to make an uncounseled statement is immaterial.
Since a new trial is necessary, we mention the other four points. First, the death-qualification of the jury was not improper. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). Second, Metcalf’s wife could be required to testify for the State, for she was not asked to disclose any confidential communications. Uniform Evidence Rules 501 and 504; Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977). Third, defense counsel conceded that the State could question Mrs. Metcalf about her prior inconsistent statements, for impeachment. It is argued that the entire statement should not have been admitted; but the statement was brief, and we do not see that the non-impeaching portion conveyed any prejudicial information to the jury. See Davis v. Ark. Best Freight System, 239 Ark. 632, 393 S.W.2d 237, 17 A.L.R. 3d 986 (1965).
Fourth, while in jail awaiting trial Metcalf wrote a letter to his wife, urging her and other witnesses to commit perjury in several respects at the trial. Metcalf put the letter in an unsealed envelope and asked a fellow prisoner who was confined for only 10 days, to smuggle it to Metcalf’s wife. The inmate, however, turned the letter over to the sheriff, and it was introduced in evidence by the State.
It is argued, first, that the letter was inadmissible, because in entrusting it to the other inmate Metcalf had an expectation of privacy and of freedom from an unreasonable search. We have held, however, that jail officials may examine an unsealed letter written by an inmate. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979). Further, weagree with a California decision upholding the admissibility of a letter entrusted by the writer to a fellow prisoner and turned over to the sheriff. People v. Hunt, 133 Cal. App. 3d 543, 184 Cal. Rptr. 197 (1982). There the court said: “The general rule is that an inmate at a jail has no right to privacy. . . .Lack of privacy is a built-in aspect of imprisonment, with censorship and control of communications to and from a jail inherent in its administration. Such authority is necessary to protect against escape.’ ”
Second, counsel argues that the letter was inadmissible as being a confidential communication to Metcalf’s wife. An oral communication between spouses, however, is not protected when it is overheard by a third person. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). Similarly, Metcalf waived any possible confidentiality of the letter by delivering it unsealed to a fellow inmate.
The State’s motion for an award of costs for a supplemental abstract is denied. The additional material goes largely to the sufficiency of the State’s proof, a matter not questioned by the appellant.
Reversed and remanded.
Hubbell, C.J., and Hickman and Hays, JJ., dissent. | [
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David Newbern, Justice.
The appellants were convicted of driving while intoxicated. They were tried separately in municipal court in Fort Smith, and their cases were consolidated for appeal to the Sebastian County Circuit Court where their convictions were affirmed in non-jury proceedings. In their appeal in this court the appellants question, among other things, the constitutionality of parts of Act 549 of 1983, the Omnibus DWI Act, thus our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29(1 )(c).
With respect to appellants Southern, Roden and Hager we must remand to the trial court for resentencing. The sentences of these appellants were determined upon consideration of prior convictions of driving while intoxicated and in accordance with sentencing enhancement portions of the Act. However, the record does not show that these defendants had or waived legal counsel in those proceedings. Prior convictions may not be considered for purposes of the sentencing enhancement portions of the act unless the record shows the accused had counsel in the trials leading to the prior convictions or that the right to counsel was waived. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984). In oral argument counsel for the appellants and for the state agreed the case should be remanded, the trial court will be free to reexamine the record for evidence pertaining to this report, but neither side may augment the record at this stage. The judgments are otherwise affirmed as to all of the appellants.
The appellants raised a number of constitutional arguments, but because some of them have been resolved in recent decisions of this court, it was determined in oral argument that the appellants seek rulings on two points in addition to the sentencing question. They are, (1) whether an accused is denied the constitutional right to confront witnesses against him when breath samples which resulted in conviction pursuant to Ark. Stat. Ann. § 75-2503(b) (Supp. 1983) are destroyed and unavailable at the trial, and (2) whether doctrines of prosecutorial discretion and separation of powers are violated by the portion of the Act which eliminates the authority of judges and prosecutors to reduce charges levied by police officers. Ark. Stat. Ann. § 75-2508 (Supp. 1983).
1. Confrontation
Each of the appellants was given a breathalyzer test, and testimony of police officials showed each appellant scored in excess of .10% thus showing violation of Ark. Stat. Ann. § 75-2503(b) (Supp. 1983). The appellants objected to the introduction of the test scores into evidence as the breath samples had not been preserved so that they might be subsequently examined by the appellants or their witnesses.
The appellants cite the Fifth Amendment to the U.S. Constitution although their argument is couched in terms of the right to confrontation found in the Sixth Amendment. They also cite Article 2, § 10 of the Arkansas Constitution. In Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979), we held that neither the Sixth Amendment to the U. S. Constitution nor Article 2, § 10, of the Arkansas Constitution guaranteed the right to confront physical evidence as opposed to witnesses. If the appellant’s citation to the Fifth Amendment to the U. S. Constitution was intentional and their argument is that the state’s inability to present the breath samples was a deprivation of due process of law, (more properly argued by citing the Fourteenth Amendment) that argument was clearly answered in Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984), citing California v. Trombetta, _U. S__, 104 S.Ct. 2528 (1984).
2. Separation of Powers
The gist of the appellants’ argument here is tht the prosecutors and the courts traditionally have had the power to reduce charges or convict of a lesser offense included in the one charged and that this traditional judicial or administrative power is unconstitutionally invaded by § 8 of the Act, Ark. Stat. Ann. § 75-2508 (Supp. 1983), which prohibits the reduction of charges. A part of this argument is that the arresting officer becomes the only person who may determine the offense to which the accused must be tried or sentenced on a plea of guilty.
We answered the fundamental separation of powers argument in Sparrow v. State, 284 Ark 396, 683 S.W.2d 218 (1985). There we addressed precisely the same arguments against removing from the prosecutor and the court the power to reduce charges and putting the charging “power in the hands of the policeman.” We said,
[T]his part of the law is not unconstitutional. It is well settled that it is for the legislative branch of a state or federal government to determine the kind of conduct that constitutes a crime and the nature and extent of the punishment which may be imposed. [Citations omitted.]
In Lovell v. State, supra, it was held that it is not a violation of the Arkansas Constitution for legislation to permit a police officer rather than a grand j ury or prosecutor to file a misdemeanor criminal charge, but we issued a caveat in this respect for felony cases. None of the appellants in this case was charged with a felony.
The convictions are affirmed. The cases of appellants Southern, Roden and Hager are reversed as to sentences only and remanded to the circuit court for resentencing. | [
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Webb Hubbell, Chief Justice.
Buel Epperson executed a will on August 29, 1980, bequeathing his personal property to his wife Wanda, if she survived him, and the rest, residue, and remainder of his estate to the Buel Epperson Family Trust. Buel and Wanda were divorced on March 29, 1982, and Buel married appellee, Carolyn Epperson on August 30,1982. Buel Epperson died less than a year later on June 20, 1983, without having made a new will.
The August 29, 1980 will was admitted to probate, and appellee filed a petition to elect her dower rights against the will. The appellants, the estate of Buel Epperson, objected, citing Ark. Stat. Ann. § 60-501 (Supp. 1983), which precludes a spouse from asserting a dower or curtesy right by taking against a will unless the surviving spouse had been married to the decedent continuously for a period in excess of one year. The probate court ruled that § 60-501: 1) conflicted with the Arkansas dower statutes; 2) was not intended to be applied when the will predates the marriage; and 3) was unconstitutional. We reverse and remand.
The probate court found that Ark. Stat. Ann. § 60-501 (Supp. 1983) conflicts with Arkansas dower laws. We have a. duty, if possible, to reconcile our state’s statutes to make them consistent, harmonious, and sensible. Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976). § 60-501 requires a surviving spouse to be married for more than one year before the spouse can take against the will. No similar requirement is placed on the surviving spouse if the decedent dies intestate. Ark. Stat. Ann. § 61-201 et seq. (Supp. 1983).
The legislature has the power to give or withhold dower, and it has the power to declare the manner in which the dower right might be barred. Skelly Oil v. Murphy, 180 Ark. 1023, 24 S.W.2d 846 (1930). Thus, it is within the province of the legislature to withhold dower where there is a will. However, the legislature merely limited, rather than withheld, dower rights where there is a will. Only those persons who have been married for more than a year may elect to take dower rights where there is a will § 60-501 limits dower rights, but does not conflict with § 61-201 et seq., which define dower rights.
The probate court found § 60-501 unconstitutional as a violation of the 14th Amendment to the United States Constitution. When considering an equal protection challenge to a state legislative classification scheme which does not involve either a “suspect” classification or a “fundamental” right, the proper test is whether the classification bears some rational relationship to a premissible state objective. Dandridge v. Williams, 397 U.S. 471 (1970). In order to evaluate whether there is a rational relationship, we examine (1) the character of the classification, (2) the individual interests asserted in support of the classification, and (3) the governmental interests asserted in support of the classification. Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W.2d 184 (1974).
The statute classes differently those people who have been married less than one year from those who have been married more than one year. The equal protection clause prohibits invidious discrimination but does not require identity of treatment. A classification is not invidious if some rational basis can be found to support it. Pridgeon v. State, 226 Ark. 151, 587 S.W.2d 225 (1979); Yarbrough v. Ark. State Highway Commission, 260 Ark. 161, 539 S.W.2d 419 (1961).
§ 60-501 precludes a new spouse from immediately receiving full dower or curtesy rights when there is a will. Individual and governmental interests in this limitation include discouragement of deathbed marriages, and the classification bears a rational relationship to that objective.
Appellee asserts that § 60-501 can be compared to a Pennsylvania mortmain statute, held unconstitutional as violative of Equal Protection by the Pennsylvania Supreme Court. Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974). That mortmain statute makes invalid bequests for religious purposes included in a will executed within thirty days of death, unless those who would benefit by its invalidity agree that it shall be valid. The Pennsylvania Court, quoting Eisenstadt v. Baird, 405 U.S. 438 (1972) found that the states do not have the power to legislate that different treatment be accorded to persons placed by statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. However, § 60-501 is based on criteria related to its objective. It protects assets of a decedent in cases in which the assertion of a dower interest would often be contrary to the decedent’s intent. Ark. Stat. Ann. § 60-501 (Supp. 1983) is constitutional and does not violate the 14th Amendment.
Since we uphold the constitutionality of § 60-501, appellee’s failure to serve the Attorney General with a copy of the proceedings pursuant to Ark. Stat. Ann. § 34-2510 (Repl. 1962) is not prejudicial. However, we would have reversed and remanded on that issue had we not found the statute constitutional. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1983).
The probate court also found that § 60-501 was not intended to be applied when the will predates the marriage because of Ark. Stat. Ann. § 60-407 (Repl. 1970). § 60-501 applies when a married person “dies testate as to all or any part of his or her estate” (Emphasis supplied). § 60-501 does not make any distinction between those wills predating a marriage and those wills made after a marriage. Ark. Stat. Ann. § 60-407 provides:
If after making a will, the testator is divorced all provisions in the will in favor of the testator’s spouse are thereby revoked. . . .
In McGuire v. McGuire, 275 Ark. 452, 631. S.W.2d 12 (1982), we said the clear meaning of this statute is that any bequest to the former spouse is void, but the remainder of the will remains in effect. Unless the will is completely revoked because all of its substantive provisions favor the decedent’s former spouse, the decedent will have died testate, and § 60-501 will apply. § 60-407 does not require a holding that § 60-501 was not intended to be applied when the will predates a marriage.
Since we are reversing the probate court, we remand for further proceeding consistent with this opinion. Neither appellant nor appellee discusses, and the trial court did not make a finding whether decedent’s will should have been completely revoked because of § 60-407. The residue of the estate under the will goes to a trust that appears to be for the benefit of decedent’s former spouse and children, but this issue was not addressed or developed below, so we do not reach that issue on appeal.
Reversed and remanded.
Purtle and Hollingsworth, JJ., dissent. | [
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Robert H. Dudley, Justice.
In July and August, 1981, the appellant, a youthful offender, committed three felonies. He was charged in circuit court with each felony and, in January, 1982, pleaded guilty. The judgment of conviction provides that he was sentenced in each case ... “to five years; two years suspended to run concurrent, credit for jail time of 159 days.” He was placed in the custody of the Department of Correction under the Youthful Offender Alternative Service Act of 1975. Ark. Stat. Ann. §§ 43-2339 through 43-2349 (Repl. 1977). Later, he was released but soon committed three additional felonies. The prosecuting attorney filed a petition for revocation of that part of the sentences upon which execution had been suspended. The trial court revoked suspension of execution of the remainder of each sentence and ordered the sentences to be served consecutively. The appellant contends that the trial court was without jurisdiction to change the judgment from concurrent to consecutive after the first part of the sentences had been placed into execution. The argument is meritorious. We reverse. Jurisdiction is in this court. Rule 29 (l)(c).
A sentence must be in accordance with the statutes in effecton the date of the crime. Ark. Stat. Ann. § 41-803 (Repl. 1977); Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983). The Youthful Offenders Alternative Service Act of 1975 was in effect in 1981, the date of the crimes and, by the provisions in § 43-2342(a), a trial judge could suspend either the imposition or the execution of the sentence and place a youthful offender on probation under supervision of the judicial branch, or else, in accordance with the provisions of § 43-2342 (c), sentence the offender to the Department of Correction for transfer to an alternative service program or immediate pardon under supervision of the executive branch. The judgment of conviction in this case reflects that the judge sentenced the offender under § 43-2342(c) and the sentence was put into execution because appellant was placed in the custody of the Department of Correction,
Under the Criminal Code, once the execution of a sentence has begun, the trial court loses jurisdiction to modify the sentence. Massey v. State, 278 Ark. 625, 648 S.W.2d 52 (1983). Correspondingly, the courts have no inherent authority to modify a sentence after execution of that sentence has begun because, at that time, the power to exercise discretion has passed to the executive branch of government. Davis v. State, 169 Ark. 932, 277 S.W. 5 (1925). Thus, the trial court was without jurisdiction to modify the sentences after execution of those sentences had commenced. In addition, a new sentence cannot be set at a revocation hearing. Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984).
We address only the point raised, and make no comment upon the validity of single sentencing proceeding in which the offender is sentenced, the sentence is placed into execution, and the court subsequently places the offender on judicial probation. We leave that problem for another day.
Reversed. | [
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John I. Purtle, Justice.
Appellant was convicted of capital felony murder and sentenced to life without parole. He presents four arguments in his appeal: I) the trial court erred in failing to grant appellant’s motion for a new trial because a witness was allowed to testify in violation of the rule; II) the court erred in refusing to give appellant’s requested non-AMCI instruction on corroborating evidence; III) it was error not to grant appellant’s motion for a directed verdict because the evidence did not support a finding of robbery; and IV) it was error to deny a motion in limine to prevent testimony that the victims’ child was in the vehicle where the homicide occurred. We find that the court was correct in each instance and affirm the case.
Steve and Diane Francis were found shot to death on January 30,1982. Their infant child was found unharmed in the floor of the automobile where the bodies of the Francises were found. Four cents was the total amount of money found on the victims. Appellant and Jeff Brown were charged with felony murder based upon an allegation that the Francises were murdered in the course of a robbery.
Johnny Gould, a deputy sheriff, was listed as a prosecution witness and was present at the beginning of the trial. He was “knocked off” the list by the prosecutor in order to allow him to attend to other duties. He came back into the courtroom while one or two defense witnesses testified or had their depositions read to the jury. Gould was called as a rebuttal witness and testified on matters pertaining to the jail records. Specifically, the records indicated that the appellant and Jeff Brown were not at the jail at the same time.
I
Appellant’s first allegation is that prejudicial error resulted when the trial court rejected his motion for a new trial based upon the fact that officer Gould was allowed to testify in violation of the sequestration rule on witnesses. The error was first raised in the motion for a new trial and was therefore not timely. Failure to object at the time the evidence is offered amounts to a waiver. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980). In finding no prejudice of a substantial right in the circumstances of this case we note that the testimony of witness Gould could have been presented by another custodian of the records and was in no manner based upon the testimony he may have heard upon returning to the courtroom. Additionally, motions for new trials are governed by Ark. Stat. Ann. § 43-2203 (Repl. 1977), and the ground alleged here does not seem to meet the requirements of the statute.
II
Although appellant’s requested instruction concerning the sufficiency of corroborating evidence may have been correct, it was not error to refuse to give it if the other instructions given covered the issue. Wallace v. State, 270 Ark. 17, 603 S.W.2d 399 (1980). Non-AMCI instructions should be given only when the trial judge finds that the AMCI instruction does not state the law or AMCI does not contain a needed instruction on a subject. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). AMCI instructions on the presumption of innocence, reasonable doubt, circumstantial evidence, and accomplice testimony, which specifically requires corroboration, were given. We find that the instructions given were sufficient and it was not error to reject the proffered non-AMCI instructions.
III
The third argument for reversal is that the corroborating evidence of a robbery of the victims is insufficient. On the first appeal of this case we held the evidence was sufficient to support the conviction although we reversed on other grounds. We consider whether the law of the case is controlling on the issue of sufficiency of the evidence to support the conviction. Decisions of the appellate court generally become the law of the case on retrial. The law of the case applied to admissibility of evidence when the evidence is not materially different from that previously before the court. Upton v. State, 275 Ark. 424, 516 S.W.2d 904 (1974). The law of the case precludes the appellant from assigning as error arguments decided on the first appeal. Mode v. State, 234 Ark. 46, 350 S.W.2d 675 (1961). We consider all alleged errors, even if the law of the case prevails. We consider all alleged errors in felony cases whether they are argued in the brief or not. Mode, supra. A purpose of such rule is to prevent the appellant from saving a point on the first appeal in order to have a second appeal on the same facts.
The law of the case is not an inflexible doctrine. For example, when the law has changed between trials the correct law will be applied to the second trial and appeal. Washington v. State, 278 Ark. 5, 643 S.W.2d 255 (1982). The doctrine does not absolutely preclude correction of error. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). The logic and reasons for holding the law of the case controlling would not seem to apply where competent evidence presented at a second trial was materially different from that presented at the first trial. For example newly discovered evidence could cause us to reconsider the sufficiency of the evidence to support a conviction. However, in the present case the evidence presented at the second trial was not materially different from that at the first and the doctrine is applicable. Even if we were to reconsider the sufficiency of the evidence we would hold it is sufficient to support the convictions.
IV
A motion in limine was made to preclude evidence of the victims’ child being found in the vehicle with the parents’ bodies. The court correctly overruled the motion. In Russell and Davis v. State, 262 Ark. 447, 559 S. W.2d 7 (1977), we held that separate and isolated crimes or facts may be shown to fully illustrate the circumstances connected with the charge being tried. When acts are intermingled and contemporaneous with one another, they may be proven as a part of the whole criminal scheme. Russell and Davis v. State, supra; Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981). Evidence that appellant attempted to shoot the baby is an integral and interwoven part of the criminal scheme and tended to show motive or intent. Unif. R. Evid. 404 (b). A limiting instruction was not requested.
Pursuant to Ark. Sup. Ct. R. 11 (f), we have examined the record for overruled objections and motions and find none which were prejudicial to the appellant.
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George Rose Smith, Justice.
The plaintiff below, A.H. Barnhill, Jr., had a liability insurance policy issued by Farm Bureau, covering Barnhill’s four cars. The policy provided that its terms applied separately to each vehicle. Barnhill was seriously injured in a collision with an uninsured motorist. The policy contained the required minimum uninsured-motorist coverage of $10,000.
Barnhill brought this suit for a declaratory judgment permitting him to stack the four coverages, so that he could recover up to $40,000 to apply to his damages. The circuit court held that the policy did not allow stacking, but the Court of Appeals reversed. Barnhill v. Farm Bureau Mutual Ins. Co., 12 Ark. App. 123, 671 S.W.2d 233 (1984). We granted the insurer’s petition for review to be certain that the reversal was not contrary to our holding in M.F.A. Mutual Ins. Co. v. Wallace, 245 Ark. 230, 431 S.W. 2d 742 (1968). We agree with the Court of Appeals.
The significant difference between the other-insurance clauses in the two cases is that in M.F.A. Mutual the clause referred specifically to other insurance issued by the same company, the language being as follows:
With respect to any occurrence ... to which this and any other automobile insurance policy issued to the named insurer or spouse by the Company [our italics] also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit. . . under any one policy.
We did say that the statute was not designed to provide greater protection than would have been available had the insured been injured by an operator with a policy containing the minimum $10,000 statutory limit, but that reasoning does not preclude an insurance company from selling more than the minimum protection if it chooses to do so.
That is the situation here, the other-insurance clause reading as follows:
[I]f the Insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.
Farm Bureau argues that although it charged a separate premium for each of the four vehicles covered by the policy, and although the terms of the policy were to apply separately to each vehicle, the quoted other-insurance clause precludes Barnhill from stacking the coverages that would otherwise exist.
We cannot agree. The other-insurance clause is undoubtedly ambiguous. That is, the holder of a policy such as this one could not be expected to realize that the reference to the limits of liability “of this insurance and such other insurance” includes not only a policy issued by a different company but also the very policy he was reading, so that its multiple coverage would be “other” insurance. Certainly the policy does not state in plain terms the meaning that the company would have us give to it. There being an ambiguity, the doubt must be resolved in favor of the insured.
The question now presented has already been decided by two federal judges who were endeavoring to apply the law of Arkansas. Dugal v. Commercial Standard Ins. Co., 456 F. Supp. 290 (W.D. Ark., 1978); Woolston v. State Farm Mutual Ins. Co., 306 F. Supp. 738 (W.D. Ark., 1969). Woolston involved another Farm Bureau other-insurance clause identical to the one now before us. Both federal judges distinguished our holding in the Wallace case in the same way we have done and decided the issue in favor of the insured. We agree with those decisions, which have been fairly interpreted in a recent Survey of Arkansas Law, 3 UALR L. J. 145, 244 (1980):
After Dugal it is clear that both the Arkansas Supreme Court and the federal courts sitting in Arkansas will construe the “other insurance” clause to include the stacking of damage awards from more than one insurer. In order to be certain that the clause will also apply to other policies issued by the same company, the insurers must clearly define the term “other insurance” to include other insurance provided by the same company. Careful drafting will prevent stacking of policies issued to one insured by one company.
The other matters argued by Farm Bureau have been fully answered by the Court of Appeals and need not be re-examined.
Affirmed.
Purtle, J., dissents. | [
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Darrell Hickman, Justice.
This appeal concerns a family dispute. Joe McCarty sued his former brother-in-law and his wife, John and Margaret Dunlap, alleging invasion of privacy. McCarty based his lawsuit on two phone calls which occurred in July, 1980. The calls were made by Margaret Dunlap to McCarty’s present wife, Bobbye. Bobbye was subsequently joined as a plaintiff. McCarty alleged that several things were said that invaded his privacy. The parties filed numerous pleadings which raised different causes of action and various defenses. Ultimately, it was tried to a Pulaski County jury. The jury returned a finding for the McCartys but assessed no damages. The McCartys did not object to that finding, and it is the Dunlaps who appeal.
The Dunlaps make three arguments: first, that the court was without jurisdiction; second, that there was no substantial evidence to support the jury’s verdict; and third, that the suit should have been barred by the statute of limitations. We only address the statute of limitations argument and hold that the action is barred.
In a motion to dismiss, the Dunlaps specifically raised the limitation set forth in Ark. Stat. Ann. § 37-201 (Supp. 1983) which provides:
The following actions shall be commenced within one (1) year after the cause of action shall accrue, and not after: first, all special actions on the case, actions for criminal conversation, alienation of affection, assault and battery and false imprisonment; second, all actions for words spoken slandering the character of another; third, all words spoken whereby special damages are sustained.
The trial court ruled that the cause of action was not barred by this statute undoubtedly because he considered the action to be one for the tort of invasion of privacy and covered by the three year limitation in Ark. Stat. Ann. § 37-206 (Repl. 1962), which provides for torts not enumerated by § 37-201.
Our rule is that in order to prevail on a motion to dismiss the complaint on the basis of limitations, it must be barred on its face. McKim v. McLiney, 250 Ark. 423, 465 S.W.2d 911 (1971). Furthermore, we strictly construe the statute, and if there is any reasonable doubt, we will resolve the question in favor of the complaint standing and against the challenge. See Jefferson v. Nero, 225 Ark. 302, 280 S. W.2d 884 (1955).
In Arkansas we do not recognize “notice pleadings” only “fact pleadings.” ARCP Rule 8. Simply because the complaint said that the action was one for “invasion of privacy” would not make it so; we must look to the alleged facts. See Bankston v. Pulaski County School Dist., 281 Ark. 476, 665 S.W.2d 859(1984).
To determine then whether the action is barred, we look to the complaint itself. The answer is not easy because of the state of the pleadings. The original complaint, filed in August of 1981, alleged only oral communications. The Dunlaps moved to dismiss, raising the defense of the statute of limitations in October of 1981. In February of 1982 the judge denied the motion. On July 28, 1982, the McCartys filed an amended complaint which added Bobbye McCarty as'a party and added an allegation of civil conspiracy. The conduct alleged was the two telephone calls and the failure of the Dunlaps to pick up Joe McCarty’s son after a visit with McCarty on January 9, 1982. The Dunlaps moved to strike the amended complaint. The judge’s ruling on that motion is unclear. In an order he stated:
In reference to the “Motion to Strike Amended Complaint: filed herein in behalf of the Defendants, and in reference to the “Motion for Leave to Add Party” filed herein in behalf of the Plaintiff, the Court, having offered the Plaintiff an election between proceeding to the currently scheduled trial (July 12, 1982) with existing parties or continuing and resetting trial of this matter following addition of a new party, understands that the Plaintiff will file herein an amended complaint which will contain an expressed incorporation of the allegations made in earlier complaints and, therefore, both the “Motion for Leave to Add Party” and the “Motion to Strike Amended Complaint” should be granted; ....
At trial the judge stated that he would allow evidence of the conspiracy but he only instructed the jury on invasion of privacy. Evidence regarding the visit of McCarty’s son was presented to the jury. We cannot discern from the record or the parties’ briefs whether the amended complaint as to the new allegations was allowed. No argument is made that the amendment relates back to the original complaint, thus tolling the statute of limitations. See ARCP Rule 15 (c).
The Dunlaps were entitled to a ruling on their motion to dismiss at the point where the statute of limitations was first raised. The pleadings then in existence must be the basis of that ruling. Since the original complaint alleged only oral communications, it should have been barred. In order to arrive at that decision, we have had to examine the nature of the causes of action for defamation and invasion of privacy.
The basis for the claim for invasion of privacy alleged in the original complaint is two telephone calls made in late July 1980 by the Dunlaps to Bobbye McCarty in which the following things were said: Joe McCarty was not given notice of divorce filed against him by his former wife because Joe McCarty was transferring assets out of his former wife’s name; the Dunlaps “had something” on Joe McCarty which they would tell Bobbye; and Joe McCarty’s retarded son would be delivered to Little Rock and left on his door step. The complaint further alleged that the statements were made maliciously, invaded the McCartys’ right to privacy, destroyed his personal life, humiliated him and exposed him to ridicule and contempt.
There are four kinds of invasion of privacy that are actionable: (1) appropriation, which consists of the use of the plaintiff’s name or likeness for the defendant’s benefit; (2) intrusion, which is the invasion by one defendant upon the plaintiff’s solitude or seclusion; (3) public disclosure of pritraterarct^'whicYi is the publicity of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation; and (4) false light in the public eye, consisting of publicity which places the plaintiff in a false light before the public. See W. Prosser, The Law of Torts § 117 (4th Ed. 1971); Restatement (Second) of Torts § 652 et seq. (1977). In Olan Mills v. Dodd, 234 Ark. 495, 353 S.W.2d 22 (1962), an appropriation case, we recognized the tort of invasion of privacy. If this case does present a claim for invasion of privacy it is invasion of privacy by intrusion. The only case we have had involving that type of invasion of privacy is Collection Consultants, Inc. v. Bemel, 274 Ark. 223, 623 S.W.2d 518 (1981). It is a case of harrasment by a bill collector and a classic case of invasion of privacy. In ten months the plaintiff received about fifty collection letters and seventy phone calls from the defendant, some to the plaintiff’s place of employment and many made at irregular hours.
The Restatement (Second) of Torts § 652 B, Comment b, illustrations (1977), gives five examples of invasion of privacy by intrusion, which are briefly: a reporter takes plaintiff’s picture in a hospital room against plaintiff’s wishes; a detective looks into plaintiff’s windows; a detective wiretaps plaintiff’s phones; the defendant examines the plaintiff’s bank records for evidence in a civil action; and the defendant, a professional photographer, telephones the plaintiff repeatedly to have her picture made. We find no case where such a cause of action was based on one or two phone calls.
Many courts have dealt with the question of whether only oral communications can constitute invasion of privacy. See 19 A.L.R.3d 1318. Some courts have ruled against allowing invasion of privacy actions, based on purely oral statements. Grimes v. Carter, 241 Cal. App. 694, 50 Cal. Rptr. 808 (1966); Pongallo v. Murphy, 243 S.W.2d 496 (Ky. 1951). Other courts have allowed such an action. Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961); Biederman’s of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo. 1959). Still other cases deal with the issue but do not resolve it. For example, in Santiesteban v. Goodyear, 306 F.2d 9 (5th Cir. 1962), the court held that there can be an invasion of privacy by oral statements if accompanied by sufficient publicity. See also Brown v. Colonial Stores, Inc., 110 Ga. App. 154, 138 S.E.2d 62 (1964).
Although closely related, invasion of privacy is distinct from libel, slander or defamation. Each of these requires injury to reputation or livelihood. See Parkman v. Hastings, 259 Ark. 59, 531 S.W.2d 481 (1976); A. B. Hanson, Libel and Related Torts § 245 (1969. Since McCarty alleged injury to his marriage and his peaceful home, the action would be more one of invasion of privacy. The privacy tort covers behavior harmful to the plaintiff even though there is no injury to his reputation.
We do not answer the question of whether mere oral communications can be the basis of a claim for invasion of privacy because it is unnecessary to our decision. This is neither a classic case of invasion of privacy by intrusion or one of defamation. But regardless of how we characterize the action it is one for words spoken whereby special damages are sustained, as specifically provided for in § 37-201. Only torts not enumerated in § 37-201 have a three year limitation. The reason there must tie a short limitation period for actions based on spoken words is simple: there is no written proof of the claim and such an action ought to be quickly resolved. This effects the underlying purpose of statutes of limitations; that is, to settle claims within a reasonable period of time after they arise and while the evidence is fresh in the witnesses’ minds. See 51 Am. Jur. 2d Limitation of Actions § 18 (1970).
Since the McCartys’ complaint was filed more than one year after the telephone calls were made, it is barred.
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Steele Hays, Justice.
Appellant was found guilty of kidnapping under Ark. Stat. Ann. § 41-1702 and sentenced as an habitual offender to thirty years imprisonment. § 41-1702 provides:
(1) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
(a) holding him for ransom or reward, or for any other act to be performed or not performed for his return or release . . .
The single argument on appeal is the evidence at trial did not support a charge of kidnapping under § 41-1702, because a substantial interference with the victim’s liberty was lacking and the restraint was of such short duration that it would not be encompassed by the statute.
The facts are: as the victim was getting into her car the appellant appeared at her side. He ordered her into the car at gunpoint and demanded a ride out of town, which she refused. She was threatened and struck several times, but she continued to refuse. At one point the appellant’s pistol discharged, evidently by accident, with the bullet passing through the windshield. After about ten or fifteen minutes the appellant got out of the car and walked away.
We have not previously addressed this element of the kidnapping statute but a review of other jurisdictions leads us to conclude it is the quality and nature of the restraint, rather than the duration, that determines whether a kidnapping charge can be sustained.
This issue often arises in cases where another offense, such as rape or robbery, is accompanied by a greater restraint of the victim than ordinarily occurs in the commission of the other crime. Among these cases a restraint for only ten minutes has been held to be sufficient to constitute kidnapping. See Sinclair v. U.S., 388 A.2d 1201 (D.C. 1978) and cases cited. In Sinclair, the victim was forced to accompany the defendant for about ten minutes, during which the victim was robbed. The court found the evidence sufficient to constitute kidnapping in addition to robbery, reasoning that by removing the victim in a vehicle, the defendant took him out of the view of friends and acquaintances and exposed him to greater danger and lessened the risk of detection.
In two recent cases involving kidnapping alone, the courts found the evidence sufficient to sustain the charges where the restraints involved were less than five minutes. Commonwealth v. Burkett, 370 N.E.2d 1017, 5 Mass. App. 901 (1977); Rodriguez v. State, 646 S.W.2d 524 (Tex. App. 1 Dist. 1982). In Burkett the court declined to find error in the refusal of an instruction for attempted kidnapping. The court said:
As permitted by that section both indictments included an allegation that the defendant ‘without lawful authority, did forcibly . . . confine the victim, with the intent to cause him to be secretly confined against his will.’ On all the relevant evidence both the offenses charged were complete at least as soon as the defendant climbed into the back of the [victim’s] car, pointed his gun at [his] head with an order to drive, and the car began to move, the fact that the car moved only a few hundred feet because a police officer shot out one of the tires is beside the point.
In Rodriguez, the appellant was convicted of kidnapping on almost identical facts under a statute containing similar language to ours, i.e. “substantial interference with the liberty” of the victim. The victim struggled with the defendant after he had forced her into her car at knife point. When other students approached the defendant gave up the attempt and walked away. The court considered whether the evidence of the two to four minute struggle established substantial interference with the victim’s liberty. It cited other cases where brief restraints had occurred and sustained a kidnapping charge, concluding that the word “substantial” did not require a minimum length of restraint, only that the interference be substantial. The court observed, “The intervening event of the approaching crowd, causing the appellant to abandon his ultimate plan and shortening the period of restraint and confinement to a few minutes was not sufficient to allow him to escape the consequences of his conduct.”
It is significant the actions of the would-be kidnappers in these cases confined the victims in such a way that escape, rescue or detection was made difficult or' impossible. Whether or not the actor was able to complete the objective of the kidnapping is immaterial. Once the kidnapper has undertaken the activity and the victim has been exposed to the attendant dangers, the act is complete, as it is the nature of the restraint rather than its duration that tends to govern.
The facts in this case support a finding of substantial interference with the victim’s liberty. She was forced at gunpoint into the car, where the dangers were increased. She was struck several times by her assailant, once by a blow with the gun itself, causing the weapon to discharge. The relatively brief duration of the restraint is not sufficient to remove it from the scope of the statute.
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Hart, J.
On October 27, 1906, Fencing District No. 2 of Eonoke County, Arkansas, filed separate complaints against R. E. E. Eagle and twenty-six others in the Eonoke Chancery Court. All of the complaints were in the same form, and were proceedings in equity under the statute to have the lands of the defendants sold for the payment of taxes assessed against them for Fencing District No. 2 of Eonoke County. The suits were consolidated, and the defendants filed their answer, in which they denied that the district had been legally formed. They denied that the commissioners had ever been appointed or qualified. Further answering, they aver that, at the time the assessments which the suits were brought to enforce were made, the said fencing district had ceased to exist, and that it owed no debts.
Upon the final hearing of the cause, the chancellor found in favor of the plaintiffs. An attorney’s fee of $250 was allowed plaintiff’s solicitors, and the same was ordered to be prorated among all the defendants and be charged against their land’’ respectively. A decree was entered, in which the amount of tax, penalty and cost against each tract of land was declared to be a lien on it, and, in default of payment thereof by the owner of the land within the time specified, the lands were ordered sold for the payment thereof. The defendants have appealed.
The proceedings under which the fencing district was established are not set out in defendants’ abstract, and we have no means of ascertaining whether or not the record shows that the district was legally formed except by exploring the transcript, which, under a familiar rule of practice, we are not required to do. Hence the objections that the district was not legally form-' ed, and that the commissioners were never appointed, may be considered as waived or abandoned.
Counsel for defendants insist that the levy or assessment was void because it was made by the board of commissioners, and not by the county court, as provided by section 1388 of Kirby’s Digest. To sustain their contention, they rely upon the following language in the complaint: “That the third assessment of five mills on the dollar was levied on the lands hereinafter mentioned by the said board of commissioners and approved by the county court,” etc. The answer denied this allegation. This allegation in the complaint was unnecessary. Section 1397 of Kirby’s Digest provides that, in the complaint in such cases, it shall not be necessary to state more than the fact of the assessment and the non-payment thereof in the time required by law, without any other further statement of any step required to be taken by the court, or the board. The plaintiff meant to allege that the board of commissioners ascertained the cost of fencing and reported the same to the county court, and that the court assessed said cost. See Kirby’s Digest, § 1388. In any event, as was said in the case of Board of Improvement Dist. v. Offenhauser, 84 Ark. 262: “The court has held in levee district and drainage district cases that regularity of the proceedings in forming the districts will be presumed, in the absence of evidence to the contrary.” (Citing cases.) Here the record does not show that any evidence on that question was introduced, and the presumption is in favor of the assessment.
Counsel for defendants also contend that “the commissioners ■could not borrow money on their personal responsibility and bind the district for it.” We do not think this question is presented by the record.
The fencing district in question was organized in the fall of 1902. The board of commissioners were appointed, and began the work of erecting the fence. Twenty-three miles were contemplated, and the wire for it was purchased. The district did not have any money, and the members of the board on their individual responsibility borrowed $6,000 and used it in constructing the fence. The Legislature at its 1903 session passed an act making a four-wire fence lawful in that part of Lonoke County which was south of the Choctaw railroad, and this included the territory embraced in Fencing District No. 2. The act went into effect April 25, 1903. Because of the passage of this act, many of the landowners in the fencing district wished to abolish it. On account of this, and because the district did not ■have the money with which to do so, the fence has never been completed as originally planned, and that part of the fence which was built has not been kept up. The object of the collection of the assessment sued on is to reimburse the commissioners for the money which they had paid out for the purpose of constructing the fence. It is not a suit by the holders of the note against the district for money alleged to have been borrowed by it. True, the money used in constructing the fence was borrowed by the commissioners. But it was borrowed by them on their individual account, and as the matter now stands the commissioners built the fence and paid the cost thereof out of their own funds. In short, the taxes collected will be applied to the actual cost of erecting the fence.
It was the duty of the board to erect the fence, and the district was liable for the cost of it. Altheimer v. Board, etc., Plum Bayou Levee Dist., 79 Ark. 232. The district is liable for the actual cost of constructing the fence, and it was proper to levy the assessments, which are the foundation of this action, for the purpose of paying for it.
Counsel for defendants also urge that the court erred in making the allowance of $250 to the solicitors for the plaintiff. In this they are correct. In the case of improvement districts in cities and towns, an attorney’s fee is expressly allowed by statute. Kirby’s Digest, § 5695. In the case of fencing districts, the statute provides that suits to enforce the collection of assessments shall proceed in the same manner as is provided by law in cases of suits for the collection of assessmeñts for local improvement; but this does not give the right to tax an attorney’s fee. It has reference only to the mode of procedure. Kirby’s Digest, § 1399. The allowance of the attorney’s fee of $250 was error, and to that extent the decree is modified; otherwise it will stand affirmed. | [
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Per Curiam.
Ozark Acoustical Contractors, Inc. (Ozark), Conrade Electric Co., Inc. (Conrade), Ketcher & Co., Inc. (Ketcher), and Southwest Interiors, Inc. (Southwest), have appealed from a decision giving a mortgage lien held by the appellee, National Bank of Commerce of Memphis, Tennessee, priority over their materialman’s liens. The bank moves to dismiss the appeal on the ground that the notices of appeal filed by the appellants were untimely. We find that the notices of Ozark and Conrade were timely but that the notices of Ketcher and Southwest were not, thus the motion is granted as to the appeals of Ketcher and Southwest but not as to the appeals of Ozark and Conrade.
On March 27, 1989, the trial court entered its order establishing the priorities among the parties. Ketcher and Ozark moved to set the order aside because they had not received notice of it. The motion was granted on May 23, 1989, and the court reentered its order on June 5, 1989.
On June 30, 1989, Ozark and Conrade filed a notice of appeal. Ketcher and Southwest were not named as appellants, but on July 19and20,1989,theymoved to amend the noticeof appeal by adding their names as appellants. On July 26,1989, the trial court granted the motion to amend the notice of appeal.
Arkansas R. App. P. 4(a) permits the trial court to increase the time for filing a notice of appeal if it is shown that the would be appellant did not receive notice of the judgment or order to be appealed. Instead of permitting the increase in time, the trial court vacated its original order and reentered it at a later date. A trial court may set aside its judgment within 90 days of its having been filed with the clerk in order to “prevent the miscarriage of justice.” Ark. R. Civ. P. 60(b).
The bank argues that the appeal of Ozark and Conrade was untimely because it should have been filed within 30 days of the March 27 order. That might be true if the trial court had extended the time for Ketcher and Southwest to file their notice or notices of appeal, but that action would presumably have had no affect on the judgment with respect to Ozark and Conrade. However, the trial court chose a different route. The final order as to all parties was entered June 5, thus the June 30 notice by Ozark and Conrade was timely.
Unfortunately for Ketcher and Southwest, their failure to file within thirty days of the June 5 order was fatal to their appeal. While it is proper for two or more parties to file a joint or consolidated appeal, Ark. R. App. P. 3(c), the notice of appeal must “specify the party or parties taking the appeal. . . .”Ark. R. App. P. 3(e).
We hold that Ozark and Conrade filed a timely notice of appeal from the final order. We dismiss the appeal as to Ketcher and Southwest, however, because they did not file a timely notice which is required for this court to take jurisdiction of an appeal. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980).
Glaze, J., not participating. | [
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Darrell Hickman, Justice.
Jimmy Hart was convicted of theft by receiving and sentenced to 28 years imprisonment, being a four-time convicted felon. The most significant question presented in this appeal is whether the state offered sufficient proof to corroborate the statements he made to the police. The state proved, independent of Hart’s statements, that the property in question was stolen. (It was an expensive computer, keyboard and printer.) Hart argues that, while such evidence may be proof that the offense of theft occurred, it is not proof that the separate offense of theft by receiving occurred. He asked the trial court for a directed verdict, which was denied. We affirm that decision.
First, we point out the clear distinction between evidence needed to corroborate a confession and that needed to corroborate the testimony of an accomplice. The former, which is the case before us, is governed by Ark. Code Ann. § 16-89-111(d) (1987) and reads as follows:
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 have consistently held the proof need only be that the offense was committed. Morgan v. State, 286 Ark. 264, 691 S.W.2d 164 (1985). When corroboration of an accomplice’s testimony is sought, the state must do more than show the offense was committed. The testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Code Ann. § 16-89-111(e)(1) (1987). In this case, the state did not have to connect Hart to the offense by independent evidence. There must only be “other proof’ that the offense occurred, in other words, proof of the corpus delicti. Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989).
That matter aside, we address the question of whether the state satisfied the law when it proved independently that the crime of theft was committed but not theft by receiving. To answer the question, we first examine the purpose of the corpus delicti requirement. The primary reason the state must prove the corpus delicti is to insure that a person is not convicted of a crime that did not occur. Johnson v. State, 198 Ark. 871, 131 S.W.2d 934 (1939). See also People v. Williams, 422 Mich. 381, 373 N.W.2d 567 (1985). The state must prove, independent of a confession, that two elements exist: 1) an injury or harm constituting the crime, and (2) that the injury or harm was caused by someone’s criminal activity. E. Cleary, McCormick on Evidence, § 145 at 366-67 (3d ed. 1984). As a general rule, the connection of the accused with the crime is not an element of the corpus delicti. 23 C.J.S. Criminal Law, § 1110 at 398 (1989).
Some courts literally require every essential element of the crime to be proved by independent evidence. See Forte v. United States, 94 F.2d 236 (D.C. Cir. 1937). See also Annot., 45 A.L.R.2d § 7(b) at 1329-31. Others do not; it is sufficient if the corroborating evidence tends to establish the major or essential harm.
In People v. Cantrell, 8 Cal.3d 672, 105 Cal. Rptr. 792, 504 P.2d 1256 (1973), disapproved on other grounds, People v. Wetmore, 22 Cal.3d 318, 149 Cal. Rptr. 265, 583 P.2d 1308 (1978), and Gentry v. State, 416 So.2d 650 (Miss. 1982), it was held that in felony-murder prosecutions, independent proof of the underlying felony, such as robbery, does not have to be produced to establish the corpus delicti of the offense. In People v. Cantrell, the court quoted with approval:
The corpus delicti of the crime of murder having been established by independent evidence, both reason and authority indicate that the circumstances surrounding the commission of the crime can be shown by the extra-judicial statements of the accused, and that such evidence of the surrounding circumstances may be used to establish the degree of the crime committed.
The California courts still follow this reasoning. See People v. Howard, 44 Cal.3d 375, 243 Cal. Rptr. 842, 749 P.2d 279, cert. denied,_U.S__, 109 S.Ct. 188 (1988).
In Gentry v. Mississippi, the court said the following:
It is well established in this state that the corpus delicti in a homicide case is made up of two fundamental facts, the first being the death of the deceased and the second the fact of the existence of a criminal agency as to the cause of death, (citation omitted) Thus, in a prosecution for premeditated murder the state is not required to prove independently those mental elements if the defendant had made a confession that admitted them. It follows that independent proof of the felony in a felony-murder prosecution is not necessary if the proof of the felony can be gathered from the confession. In this case the state satisfied the burden upon it by proving the death and that it resulted from a criminal agency. Appellant confessed that he killed the deceased while committing armed robbery.
It would seem our decisions in murder cases generally follow the reasoning in these cases. See Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981); Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959) (the state must prove beyond a reasonable doubt that the deceased was in fact killed and that he came to his death by the act of someone other than himself).
More directly on point is the case of State v. Fuller, 446 So.2d 799 (La. App. 1984). The defendant was charged alternatively with theft and receiving stolen goods. The defendant argued that his conviction for receiving stolen goods could not stand because there was no independent evidence of that crime, only the crime of theft. The court dealt with the question this way:
Thus the defense argues that, while the defendant admitted seeing the theft occur, his subsequent confession to receipt of items taken in that theft cannot sustain a conviction because the only evidence of the fact that the offense of receiving stolen goods occurred is the defendant’s own confession.
We categorically reject this ingenious contention. We hold that where, as here, there is proof of the corpus delicti of a theft and the defendant is charged alternatively with theft or receiving stolen things, that sufficient proof of a corpus delicti exists to make admissible a voluntary confession to having received goods which were the subject of that theft.
It is noteworthy that in Arkansas, the distinction between types of theft has been abolished. Ark. Code Ann. § 5-36-102 (1987) reads as follows:
(a)(1) Conduct denominated theft in this chapter constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretence, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses.
The commentary to this section adds this insight:
It is hoped that making theft a single offense, regardless of the manner in which it occurs, will reduce the needless wrangling at both trial and appellate levels over whether particular conduct that is obviously criminal constitutes one offense rather than another.
The crime in this case is theft. It was undisputed that a theft occurred. Hart’s receipt of the goods, knowing or having good reason to be believe they had been stolen, could be established by his confession. The state need not independently prove each specific element of the offense of theft by receiving to establish the corpus delicti. See Harshaw v. State, 94 Ark. 343, 127 S.W. 745 (1910); Bright v. State, 490 A.2d 564 (Del. 1985). See also, E. Cleary, McCormick on Evidence, § 145 at 371 (3d ed. 1984).
We also find the remaining arguments meritless. Appellant asked the court to instruct the jury on the legal requirement that a confession be corroborated. He did not proffer a typewritten instruction, but he read § 16-89-111 (d) to the court and asked that the jury be so instructed. We note there is no instruction in AMCI which parallels this statute. Since the appellant did not proffer a typewritten copy of his proposed instruction, the argument is not preserved for appeal. See Willett v. State, 18 Ark. App. 125, 712 S.W.2d 925 (1986); A.R.Cr.P. Rule 33. Appellant claims he could not have anticipated the need for the instruction, but he did not make that known to the trial court, nor was a continuance or a recess requested to have the instruction typewritten.
Appellant also claims error occurred as the result of a suspended sentence revocation hearing that was held prior to his trial. At the hearing, appellant took the stand to testify that his suspended sentence period had expired. On cross-examination, the state asked him several questions concerning the theft by receiving charge. Citing Simmons v. State, 390 U.S. 377(1968), he claims the state should have been prevented from using any information gained at the revocation hearing as a basis for his conviction. Hart has not shown that the state used such information at the trial. Therefore even if error occurred, he has shown no prejudice as he is required to do. Tillman v. State, 300 Ark. 132, 777 S.W.2d 217 (1989).
One of the appellant’s statements admitted into evidence against him contained references to a trip to Little Rock during which his companions sold some tools. Appellant asked that the statement not be admitted because it contained the implication that the tools were stolen. (In fact, the tools were stolen from the same place that the computer had been stolen, but appellant was not charged with that theft.) The court refused to suppress the statement. The statement, at most, contained vague implications that the tools were stolen; but it was Hart who let the jury know that the tools were definitely stolen goods. In questioning a police officer on cross examination, he elicited the response that the tools were in fact stolen. The appellant, although inadvertently, placed the allegedly objectionable matters before the jury, therefore, he may not complain on appeal. Aaron v. State, 300 Ark. 13, 775 S.W.2d 894 (1989).
Finally, Hart claims that the jury should have been instructed it could sentence him to five to forty years in prison rather than the twenty to forty years set out in the habitual offender statute. Ark. Code Ann. § 5-4-501 (b)(3) (1987). His argument is based on the wording of the statute, which is that a person convicted of four or more felonies may be sentenced to an extended term of imprisonment. Hart claims that use of the word “may” indicates the jury is permitted to sentence him to twenty to forty years, but is not required to.
The sensible meaning of the statute is that the jury may sentence the offender to any term of years between twenty and forty. See Rogers v. State, 10 Ark. App. 19, 660 S.W.2d 949 (1983).
Affirmed.
Dudley and Newbern, JJ., dissent. | [
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David Newbern, Justice.
Carlton Keith Goldsmith, the appellant, was convicted of first degree murder and sentenced to 40 years imprisonment for killing Dusty Fowler, the two-year-old son of Goldsmith’s living companion, Marsha Fowler Ogle. Goldsmith’s sole point of appeal is that the court erred in refusing to grant a mistrial after erroneously allowing Clarence Curston to testify as a rebuttal witness. We find no error and affirm.
Marsha Ogle testified that on May 1, 1988, she and Goldsmith and her two children were living in a house on the Logan farm where Goldsmith was employed. Someone came to the door and asked for help in freeing a vehicle which had become stuck in the mud. Goldsmith used a pickup truck owned by his employer to pull the stuck vehicle out, but in the process the employer’s truck became stuck. Goldsmith returned to the house. He and Ogle and Dusty Fowler went in Goldsmith’s personal pickup truck to the Logan home on the farm to borrow a tractor to use in pulling Goldsmith’s employer’s truck out. Goldsmith drove the tractor, and Ogle drove Goldsmith’s truck. Dusty got in the tractor with Goldsmith. They drove back to the house where they were staying and left Goldsmith’s pickup. Then all three rode in the tractor to the site where the employer’s truck was stuck. Once the truck was freed, Ogle was to drive it back to their house and switch to Goldsmith’s pickup truck and then meet him at the Logan’s where he would return the tractor.
Ogle testified further that Dusty accompanied Goldsmith in the tractor. On her way back to the house she took a wrong fork in the road and wound up at a cemetery where she could not turn the truck around because the transmission was jammed in a forward gear. Someone, who turned out to be Curston, came to help her. They got the truck into reverse gear and were able to turn it around. Ogle returned that truck to the house and then drove Goldsmith’s truck to the Logan home. As she approached the Logan place, Goldsmith came toward her on foot holding Dusty who was apparently unconscious. Goldsmith told her Dusty had fallen and was hurt and to drive to the hospital. On the way he told her Dusty was not breathing.
Goldsmith’s testimony about the day’s activities was roughly the same as Ogle’s up to the point when, after using the tractor to pull his employer’s truck out of the mud, they started back to the house where they were staying. Goldsmith testified that Dusty was not with him in the tractor but was with Ogle. Before he got to the area of the cemetery, Ogle, who was driving Goldsmith’s truck, had caught up behind the tractor. He said he looked back and could see Ogle whipping Dusty in the pickup truck. He stopped the tractor and let Dusty ride with him to Logan’s. As they drove on, he was examining Dusty for bruises when he hit a rut, the tractor jumped, and Dusty wound up on the floorboard with an injury to his head. When he and Dusty got to the Logan home, Dusty was passing out. He and Ogle took Dusty to the hospital.
Curston was called as a rebuttal witness. He testified, over objection, that when he was helping Ogle with the truck transmission at the cemetery he did not see anyone with her.
Other testimony in the state’s case in chief included that of a former assistant state medical examiner who performed an autopsy on Dusty’s body. He stated that the body had bruises over the thoracic, abdominal, and shoulder areas. There was a skull fracture and edema of the brain. The brain expansion and concussion were the causes of death. Wounds on Dusty’s extremities were consistent with defense wounds he would have gotten trying to protect himself. David Baker, a friend and co-worker of Goldsmith testified that he had worked with Goldsmith when Goldsmith and Ogle were living together on a farm in Texas. He said he had seen Goldsmith knock Dusty down, kick him, slap him, and put dirty diapers on his face. He was afraid of Goldsmith who could “get mad ... if you set him off.”
Goldsmith argues that Curston’s testimony was not proper rebuttal testimony because Goldsmith takes the position that Dusty was in the tractor with him and not with Ogle when they approached the cemetery, thus Curston’s testimony is not inconsistent with his. He contends Curston was called to confuse the jury and make it appear that Goldsmith was contradicting a “local” person. We find no merit in the argument. If Curston’s testimony is consistent with that of Goldsmith, then the only possible error would be that it does not technically amount to rebuttal evidence. We are not convinced that such an error, if it was one, was prejudicial. There is nothing to show that the jurors were confused. We do not reverse for an alleged error which is unaccompanied by a showing of prejudice. Taylor v. State, 299 Ark. 123, 771 S.W.2d 283 (1989); Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). We have no doubt that it was proper to deny the mistrial motion because that remedy is so drastic that it must appear to the court that the prejudice resulting from the alleged error is so great that the trial cannot, in fairness, be allowed to proceed. Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989); Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980).
Affirmed.
Turner, J., not participating.. | [
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Per Curiam.
This is the first petition the Judicial Discipline and Disability Commission has filed since Amendment 66 to the Constitution was adopted.
It recommends that Municipal Judge William P. “Billy” Switzer be suspended with pay pending the outcome of criminal charges against him in Ashley County Circuit Court. Before we can consider this petition, we note that Switzer has not been served pursuant to Rule 12 A of the Rules of Procedure of the Ark. Judicial Discipline and Disability Commission. See In the Matter of Rules of Procedure of the Arkansas Judicial Discipline and Disability Commission, 298 Ark. 654, 770 S.W.2d 116 (1989).
Any service that complies with rules of the Arkansas Rules of Civil Procedure for personal service will suffice.
It is noted that a copy of the petition was mailed to Mr. Robert J. Johnson, 304 Main Street, Crossett, Arkansas, but no mention is made whether Johnson represents Switzer.
Switzer may, of course, waive service and enter an appear anee. Action on the petition will be deferred pending notice. | [
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Steele Hays, Justice.
By this appeal appellant asks us to reverse the trial court for permitting the jury to award damages for loss of use of a completely destroyed automobile. We think the issue was properly submitted to the jury, and accordingly, we affirm.
Ruth Sanders, appellee, brought this action against David Fryar, d/b/a Fryar’s Transmission Service, appellant, for the fair market value and loss of use of her 1982 Subaru automobile. The vehicle was totally destroyed on June 11, 1987, while being test driven by the appellant following the installation of a new transmission. The jury awarded Ms. Sanders $4,200 for the value of the vehicle and $2,152.60 for loss of use, evidently accepting her testimony that she had asked appellant about a rental car and he told her to go and rent a car, that she waited some two and one half weeks for the appellant “to do right about my car” before renting one for $20 per day. She said that although she had a second car it was in the repair shop with engine trouble, that she had two jobs and a daughter in college, had visited Subaru dealers in Little Rock, Fayetteville, Benton, and Malvern, but could not get credit and had finally bought a 1978 Oldsmobile from a friend for $100 down and $10.0 per month.
Prior to the decision in Sharp v. Great So. Coaches, Inc., 256 Ark. 773, 510 S.W.2d 266 (1974), Arkansas had long adhered to the view that damages for the loss of use of a vehicle during repairs were not recoverable. Madison Smith Cadillac Co. v. Wallace, 181 Ark. 715, 27 S.W.2d 524 (1930). By 1972 Arkansas was the only state committed to that position. Jones v. Herrin, 252 Ark. 837, 481 S.W.2d 362 (1972). That rule was changed abruptly in Sharp v. Great So. Coaches, supra, and two years later the legislature effectively preempted our holding by the passage of Act 643 of 1975 [Ark. Code Ann. § 27-53-401 (1987)] which reads in full:
In all cases involving damage to motor vehicles, the measure of damages shall be the difference between the value of the vehicle immediately before the damage occurred and the value after the damage occurred, plus a reasonable amount of damages for loss of use of the vehicle.
Appellant contends that the rule should not apply when a vehicle is totally destroyed, citing Annot., Recovery for Loss of Use of Motor Vehicle Damaged or Destroyed, 18 A.L.R.3d 497 (1968), which lists a majority of states as having taken that position. We concede as much, but note that even among those states so listed, some allow recovery for loss of use for a reasonable time until it can be determined whether the vehicle is repairable, id. § 8, and others permit recovery for loss of use until a destroyed vehicle can be replaced. Id. § 9. Yet the rule appellant would have us adopt would make no allowance for special circumstances. It would simply exclude damages for loss of use where the vehicle was damaged beyond repair.
We decline that invitation, if for no other reason than because it would require that we read into the 1975 statute language which the legislature did not include. The statute makes no mention of loss of use being limited to vehicles which are only partially damaged, nor does it purport to exclude recovery when a vehicle is totally destroyed, or limit its application to commercial vehicles. The act merely declares that “in all cases involving damage to motor vehicles” the measure will be the before and after value, “plus a reasonable amount of damages for loss of use of the vehicle.” [Our emphasis.] We find that language clear and unambiguous and consider it our duty to apply it without adulteration.
As an alternative argument, appellant asks that should we determine that the appellee is entitled to some loss of use, we limit the amount to the rental value of a comparable car for a reasonable time to seek a replacement for the destroyed vehicle. But without exploring the record, we think that issue was essentially what the jury was being asked to decide when instructed, as it was, in accordance with AMI 2210. The instruction told the jury to determine the amount it found to be reasonable for the plaintiffs loss of use of her automobile, and we cannot say the evidence was lacking to support the amount awarded.
AFFIRMED.
Glaze, J., not participating. | [
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David Newbern, Justice.
Delbert Neil Helm appeals from a judgment against him for $1,059,927.15 in favor of the appellee, Mid-America Industries, Inc. The judgment, which was based on a jury verdict, resulted from business dealings between the parties. Helm contends the Sebastian County Circuit Court lacked jurisdiction of him and was not the proper venue for the action. He also argues the court erred in proceeding with the action against him because it was already pending in a federal court in Oklahoma. Finally, he contends it was error to deny his motion for a continuance which he sought on the basis of illness of his counsel. Helm’s abstract is flagrantly deficient with respect to most of these points, but Mid-America has filed a supplementary abstract which will allow us to decide them, and we find they contain no merit. We, therefore, affirm the judgment.
Mid-America, a Delaware corporation, is a “Green Light” automobile parts wholesaler which has its principal place of business in Ft. Smith, Sebastian County, Arkansas. Helm is a resident of Oklahoma who operated parts stores in Oklahoma and Arkansas. Ed York, a Mid-America officer, testified about the circumstances which led to the business relationship between the corporation and Helm. Helm came to Ft. Smith and the Mid-America office in February, 1986, and announced to a Mid-America employee who received him there his intention to become a Green Light parts dealer. York was unavailable to speak to Helm just then, but he called Helm, and a week later, Helm returned to Ft. Smith with his brother and another person who was his comptroller. They were given a presentation by Mid-America on the Green Light store process. Several weeks later, Mid-America officials toured several of Helm’s stores in Oklahoma and Arkansas.
York testified that Helm’s stock consisted of “distressed” merchandise defined as merchandise sold at a loss, as in a fire sale. York told Helm he would expect Helm to dispose of the distressed type merchandise and not purchase any more of it for sale if he became a Green Light dealer. Helm said he would comply with that request. The alleged breach of this promise is a major element of the dispute which arose. Mid-America and Helm entered written agreements with respect to Helm’s stores at Talequah and Bartlesville, Oklahoma, and Siloam Springs, Arkansas.
From a document entitled “Third Agreed Pre-Trial Order” which was submitted to the United States District Court for the Eastern District of Oklahoma, and which Helm has given us as an appendix to his abstract, we learn additional facts. Helm filed the federal court action for breach of contract and commercial defamation, and Mid-America counter-claimed for money owed to it by Helm. The summaries of the pleadings in that action reveal that the relationship had grown to other stores. Helm experienced a cash flow problem and was unable to pay his account with Mid-America, and he contended that Mid-America had not properly credited him for merchandise it had agreed he could return and which it failed to pick up. Mid-America’s counter-claim was for the balance owed on Helm’s account.
The action in Sebastian County Circuit Court was filed by Mid-America subsequent to the initiation of the federal action by Helm. The federal court declined to enjoin the state proceeding, and the circuit court denied Helm’s motion to dismiss in favor of the federal action as well as his motion to dismiss for lack of personal jurisdiction and improper venue.
1. Jurisdiction in personam
Although it is argued that all of Helm’s Arkansas automobile parts stores were closed at the time this action was commenced, and Mid-America’s argument mentions that fact on another point, there is nothing abstracted to demonstrate it. Nor do we have any information as to the place where Helm was served with process, although Helm states in argument that he was served in Oklahoma. As far as we know, from the abstract of the record, Helm was still doing business with Mid-America in Arkansas when the action was filed. Even if that were not the case, however, we would have no trouble affirming the trial court’s determination that Helm was subject to its jurisdiction.
Arkansas Code Ann. § 16-4-101 c. 1. (a) (1987) provides that an Arkansas court may exercise jurisdiction of a person “who acts directly or by an agent” as to a claim “arising from the person’s . . . [transacting any business in this state.” The evidence surrounding Helm’s initiation of his relationship with Mid-America is probably sufficient to satisfy the requirement of the statute. If not, however, the fact that Helm operated a Store at Siloam Springs, at least from 1986 to 1988, which was responsible for some of the debt for which he was sued clearly satisfied it.
In Wisconsin Brick and Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981), we denied a writ of prohibition which had been sought to prevent an Arkansas court from assuming jurisdiction of a Wisconsin company. We held that the question of whether the company was “transacting business” in Arkansas was one of fact, and if the trial court erred in deciding that question we could correct it on appeal but not in response to a writ of prohibition. In the course of deciding that case, we noted that our long-arm statute, cited above, was meant to “permit courts to exercise the maximum personal jurisdiction allowable by due process, and the statute should be liberally construed.”
The only facts before us here show clearly that Mid-America’s claim arose directly, at least in part, from business transacted by Helm in Arkansas. In addition, his contacts with this state surpassed the minimum required by the Supreme Court interpretation of the United States Constitution in International Shoe v. Washington, 326 U.S. 310 (1945), and Helm could have foreseen he could be haled into a court in this state to answer claims arising from his activities here. See World-Wide Volkswagen Corp v. Woodsen, 444 U.S. 286 (1980).
The only case cited by Helm we need distinguish is Union National Bank v. Thornton, 293 Ark. 385, 738 S.W.2d 103 (1987), in which we held that the sending of monthly payments to an Arkansas bank was not a sufficient contact to satisfy the requirements of Ark. Code Ann. § 16-4-101 c. 1. (d) (1987) having to do with jurisdiction of nonresidents alleged to have committed torts in Arkansas. Obviously Helm’s acts in Arkansas were considerably in excess of sending his monthly payments to Mid-America.
2. Venue
Helm contends Mid-America’s action was one on an open account and thus the governing venue provision is Ark. Code Ann. § 16-60-111(a) (1987) which requires that it be brought in the county of the defendant’s residence at the time the claim arose. Mid-America contends it was an action on a contract and thus is properly brought against a nonresident in the county of the plaintiffs residence, Ark. Code Ann. § 16-60-109(a) (1987); Farmers Bank v. Fuqua Homes, Inc., 259 Ark. 38, 531 S.W.2d 23 (1975), which was Sebastian County.
While neither party has given us an abstract of the complaint in such a way as to show the nature of the action brought, Mid-America has abstracted its motion to amend the pleadings to conform to the proof along with the court’s order granting the motion. The proof abstracted which could be said to relate to this point consists of testimony showing that the dispute, at least in part, had to do with written and oral agreements between the parties with respect to at least three of Helm’s stores. In its argument, Mid-America has supplied quotations of the instructions showing that the case was submitted to the jury as a contract action.
While we have had some doubt about the matter, Helm, as the appellant objecting to venue, had the burden of demonstrating that venue was improper. Mack Trucks of Ark., Inc. v. Jet Asphalt and Rock Co., 246 Ark. 101, 437 S.W.2d 459 (1969). He has not shown that the action amounted to no more than one on an open account.
Helm has also made an argument that § 16-60-109 (a) is unconstitutional. We do not reach the issue because there is nothing to show that the argument was raised in the trial court. Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980).
3. Prior pending action
Helm contends Mid-America’s claim should have been dismissed because of the prior pending action in the federal court. There is no such requirement. Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977). Nor was there any requirement that the court exercise the forum non conveniens discretion given it by Ark. Code Ann. § 16-4-101(E) (1987). See Country Pride Foods Ltd. v. Medina, 279 Ark. 75, 648 S.W.2d 485 (1983); Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981); Grovey v. Washington, 196 Ark. 697, 119 S.W.2d 503 (1938). We find no error in the court’s refusal to dismiss.
4. Illness of counsel
Helm moved for a continuance of the trial, attaching an affidavit from a physician stating that Helm’s lead counsel was too ill to participate in a trial lasting more than one day. The motion was denied. Mid-America points out that the trial had been twice continued at the request of Helm.
In one of the cases cited by Helm on this point, we noted that whether to grant a continuance on the ground which was asserted in this case is within the sound discretion of the trial court. Missouri & North Arkansas Ry. Co. v. Robinson, 188 Ark. 334, 65 S.W.2d 546 (1933). Also cited is Haislip v. Taylor, 209 Ark. 510, 190 S.W.2d 982 (1945), where we found an abuse of discretion where a party was made to go to trial only two days after a complaint was filed and given only three hours to search for witnesses. We cannot say Helm suffered any comparable hardship. While one of the two Oklahoma lawyers representing him in this case was suspended from practice and the other was ill, there has been no showing that the Arkansas attorney with whom they were associated could not have taken up the slack. We decline to hold the court abused its discretion.
Affirmed.
Price, J., not participating. | [
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David Newbern, Justice.
This is an appeal from a decree which foreclosed a mortgage and granted a judgment on an open account against a corporate defendant. In addition, the decree enforced an agreement which guaranteed a portion of the corporation’s debt. Alice Leigh owned 87 per cent of Big Rock, Inc., doing business as Criss & Shaver Readimix Concrete. Mrs. Leigh’s son, Charles Germer, was president and a director of the corporation. Big Rock purchased cement from Missouri Portland Cement Company (MP). MP’s credit manager testified that, in February, 1984, Big Rock owed MP some $295,000. On March 1, 1984, Leigh and Germer executed a personal guaranty for an $80,000 line of credit for Big Rock with MP. In 1986 Germer, without the knowledge of Leigh, executed a promissory note on behalf of himself and Big Rock to MP for $356,797. Mrs. Leigh died. Germer contended that the subsequent note was a significant alteration of the obligation so that neither he nor Leigh’s estate remained liable on the guaranty. It was also contended that the Wingo Act should preclude MP from bringing action in an Arkansas court because MP had not qualified under the act until shortly before the trial. We agree with the chancellor’s conclusion that the guaranty was not revoked. We hold that the Wingo Act was inapplicable. The decision is affirmed.
1. The guaranty
Germer and Leigh’s estate argue that it was clear error for the trial court to have accepted the testimony of MP’s credit manager to the effect that the amount of the 1986 note was approximately $80,000 less than the entire indebtedness of Big Rock to MP, and thus to have accepted the notion that the note was not intended as a “novation” or substitution for the guaranty. The argument is based on inconsistency between the testimony and a document showing the indebtedness as of August 31,1986. The suggestion is that the credit manager lied. While we may reverse upon finding a factual determination by a chancellor was clearly erroneous, our review defers to the chancellor’s evaluation of the credibility of the witnesses. Lytle v. Lytle, 301 Ark. 61, 781 S.W.2d 476 (1989), Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).
The guarantee agreement on which the chancellor held both Germer and Leigh’s estate liable provided, in part: “Guarantors, without affecting their liability hereunder in any respect, consent to and waive notice of all changes of terms, the withdrawal or extension of credit or time to pay, the release of the whole or any part of the indebtedness. ...”
A material alteration in an obligation, made without the assent of the guarantor, may discharge the guarantor. Inter-Sport v. Wilson, 281 Ark. 56, 661 S.W.2d 367 (1983); Spears v. El Dorado Foundry, 242 Ark. 590, 414 S.W.2d 622 (1967). If, however, the guaranty agreement specifically provides it will not be affected by renewals or extensions of the obligation guaranteed, that provision will be honored. Gentry v. 1st American Nat. Bank, 264 Ark. 796, 575 S.W.2d 152 (1979).
The provision in the agreement consenting to “extension of credit” without affecting liability on the guarantee is clear, and we have been given no reason to hold it is less enforceable than the provision in the Gentry case with respect to renewals or extensions.
2. The Wingo Act
When the obligations in question here were incurred, Ark. Stat. Ann. § 64-1202 (1947) provided, as a penalty in addition to a prescribed fine:
any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make any contract in the State which can be enforced by it either in law or in equity, and the complying with the provisions of this act after the date of any such contract or after any suit is instituted thereon, shall in no way validate said contract.
The trial court found that Big Rock, Germer, and Leigh had waived the provisions of the act by their continuous course of business with MP. We find no authority for such a holding, but we conclude the result was correct for other reasons.
The penalty portion of the act, by its terms, applies only when it can be shown the foreign corporation was “doing business” in Arkansas. In addition, the registration requirement may not be enforced by applying the penalty to a transaction in interstate commerce. U.S. Const. art. I, § 8, cl. 3. See North American Phillips Commercial Electronics Corp. v. Gaytri Corp., 291 Ark. 11, 722 S.W.2d 270 (1987). Although the testimony showed that MP had a salesman residing in Arkansas, its business was done through a terminal in Memphis, Tennessee. Big Rock either picked up the cement in Memphis or the cement was delivered to Big Rock in Arkansas from the Memphis terminal by common carrier.
While we have strong doubts whether even the threshold test of “doing business” in Arkansas was met in this case, we need not decide that question because the transactions between MP and Big Rock so clearly constituted interstate commerce. MP is a Delaware Corporation headquartered in Iowa. It sold cement to Big Rock through an account agent at its Memphis office. “A contract calling for a transaction wholly in interstate commerce is enforceable in Arkansas courts by a corporation not qualified [under the statute] to do business in Arkansas.” Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S.W.2d 893 (1969). The “indispensable element” of importation of goods from one state into another described in Furst v. Brewster, 282 U.S. 493 (1931), is patent in this case, and the “essential character” of the transactions was interstate. Uncle Ben’s, Inc. v. Crowell, 482 F. Supp. 1149 (E.D. Ark. 1980).
In Independence County v. Tad Screen Advertising Co., 199 Ark. 205, 133 S.W.2d 1 (1939), we held that the main purpose of a contract was to screen films at an Arkansas theater. Thus the contract was intrastate despite the fact that the films were shipped into Arkansas by a foreign corporation which continued to own them. There was no sale or purchase of the films. We held that the interstate shipment of the films was only incidental to this otherwise intrastate activity. Application of the penalty provision of the act was thus not prohibited by the Commerce Clause. Here we are asked to hold that the main purpose of the transactions between MP and Big Rock was to use cement in Arkansas. The analogy might be apt but for the fact that MP did not retain title to the cement. The transactions in this case had as their main purpose the interstate sale and delivery of cement rather than the use of it by Big Rock in this state.
Affirmed. | [
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Steele Hays, Justice.
Vernon and Norma Mae Harrelson, appellees, reside in Washington County and have received electrical service from Ozarks Electric Cooperative Corporation, appellant, since 1973. In February, 1988 Ozarks’s computer indicated significant change in the Harrelsons’ electrical usage and in May the appellant tested their meter and discovered it was defective. The appellant reviewed the Harrelsons’ usage pattern and determined that no kilowatt hours had been registering on the meter since July, 1987. During the eleven month period the Harrelsons received minimum electricity bills and admitted noticing a marked decrease from previous bills. (Minimum bills amounted to $7.87 per month, while prior bills ranged from $70-$80.) The appellant reconstructed the charges for this eleven month period in accordance with the Arkansas Public Service Commission’s General Service Rule 10 C (3)(a), estimating electrical usage costing $790.29.
The Harrelsons refused to pay the revised bill and after giving notice, the appellant discontinued electrical service. The Harrelsons filed an action in Circuit Court, seeking a temporary restraining order and service was reconnected. The case was transferred to chancery and the chancellor held that the chancery court maintained jurisdiction of the dispute based upon equitable principles and that the Harrelsons owed for estimated usage only after February, 1988, less any amounts previously paid. On appeal, Ozarks asserts that the chancellor erred in denying its motion to dismiss for lack of subject matter jurisdiction. We sustain the argument.
The decisional process in this case necessarily begins with Ozarks Electrical Cooperative Corporations. Turner, 277 Ark. 209, 640 S.W.2d 438 (1982), where similar issues were presented. Ozarks had discovered that the electric meter of its consumer, Turner, showed evidence of tampering and was not recording correctly. Ozarks gave the information to the prosecuting attorney and Turner was charged with theft of electrical services. Ozarks also demanded payment of $ 1,500, the amount it estimated to be due. Turner paid under protest and, when acquitted of the criminal charges, sued Ozarks for malicious prosecution and for the return of the $1,500. The circuit judge directed a verdict on the claim of malicious prosecution, but submitted the $1,500 claim to the jury, which awarded a verdict to Turner of $1,250. Ozarks appealed, contending that subject matter jurisdiction of the dispute belonged, not to circuit court, but to the Public Service Commission pursuant to Ark. Code Ann. § 23-3-119(a)(2) (1987). In resolving the jurisdictional argument, we examined the holding of Southwestern Electric Power Company v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975), which recognized the distinction between the legislative function, which can be properly carried out by an administrative agency, and the judicial function, which cannot. The Coxsey opinion quoted remarks of Justice Holmes:
A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power. [Prentis v. Atlantic Coastline, 211 U.S. 210 (1908).]
Rejecting the argument that jurisdiction of the dispute between Ozarks and Turner belonged to the Public Service Commission, we said:
Were the APSC to hear this case, it would not be looking to the future and making a new rule or standard affecting the public or a group generally. Rather, it would be determining issues of fact from past actions involving a particular individual within existing law and deciding the liabilities involved. [Emphasis supplied.]
With relative promptness after Turner, the Arkansas General Assembly passed Act 758 of 1985 [codified as Ark. Code Ann. § 23-3-119 (1987)]. Several provisions of the act, including the emergency clause, make it clear that Act 758 was intended to reflect the legislature’s disapproval of the holding in the Turner case and to place primary jurisdiction over such disputes in the Public Service Commission. Section 1 reads in part:
It is the specific intent of [this enactment] to vest in the Arkansas Public Service Commission the authority to adjudicate individual disputes between consumers and the public utilities which serve them, when those disputes involve public rights which the Commission is charged by law to administer. Public rights which the Commission may adjudicate are those arising from the public utility statutes enacted by the General Assembly, and the lawful rules, regulations, and orders entered by the Commission in the execution of the statutes. [Our emphasis.]
The act contains other language as well which could only have been directed to our holding in Turner. Section 2(d) provides that the Commission shall have the authority:
... to conduct investigations and public hearings and to mandate monetary refunds, billing credits, or order appropriate prospective relief as authorized or required by law, rule, regulation or order. The jurisdiction of the Commission in such disputes is primary, and shall be exhausted before a court of law or equity may assume jurisdiction.
Section 1 also provides that the quasi-judicial jurisdiction of the Commission “to adjudicate public rights and claims in individual cases is in addition to the Commission’s traditional legislative authority to act generally, and prospectively, in the interest of the public.” [Our emphasis.] Powers of the Commission enumerated in the code include:
Ascertain and fix adequate and reasonable standards for the measurement of quantity, quality, pressure, initial voltage, or other conditions pertaining to the supply of all products, commodities, or services furnished or rendered by any and all public utilities; prescribe reasonable regulations for the examination and testing of such production, commodity, or service, and for the measurement thereof, establish or approve reasonable rules, regulations, specification, and standards to secure the accuracy of all meters or appliances for measurement; and provide for the examination and testing of any and all appliances used for the measurement of any product, commodity, or service of any public utility. [Ark. Code Ann. § 23-2-304(3) (1987).]
We conclude that the rights at issue in this case, involving a specific regulation of the Commission, and affecting the delivery, measurement and cost of electrical power supplied to a consumer, fall within the primary jurisdiction of the Public Service Commission. Accordingly, we reverse and dismiss the suit.
Turner, J., not participating.
This rule requires the billing correction to be based upon the customer’s metered consumption for the previous six months if the date the meter first malfunctioned cannot be definitely ascertained. The rates effective during this period are then applied to the adjusted consumption and the difference between the amount so obtained and the actual billing are refunded or charged to the customer. | [
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Jack Holt, Jr.,
Chief Justice. On September 27,1988, the appellee, The Bank of North Arkansas (BNA), which has its principal bank located in Melbourne, Arkansas, filed an application with the appellee, Arkansas State Bank Commissioner (Commissioner), requesting permission to establish a branch bank in Calico Rock, Arkansas, where the appellant, First National Bank of Izard County (FNB), has its principal bank located. FNB objected to BNA’s application, although it had recently opened a branch bank in Melbourne, and filed a formal protest, pursuant to Ark. Code Ann. § 23-32-1203(d) (1987), and requested interrogatories from BNA on October 13,1988. Calico Rock is located in Izard County, and both BNA and FNB have their main offices in Izard County.
On October 20,1988, the Commissioner responded by letter to FNB’s interrogatory request and stated that BNA would not be required to answer the interrogatories until he had determined if a hearing would be necessary. FNB protested this decision on October 24, 1988. The next day, a state bank examiner filed a report recommending approval of BNA’s application.
The Commissioner advised both parties on October 26, 1988, that an administrative hearing was not necessary and that, as a result, BNA was not required to answer FNB’s interrogatories. Subsequently, on October 31, 1988, the Commissioner entered his order approving BNA’s application.
FNB requested in writing, on November 28,1988, a copy of the bank examiner’s report, which was sent by the Commissioner two days later. FNB then filed a petition for review in the Circuit Court of Pulaski County and obtained a stay of the Commissioner’s order.
The Commissioner’s order was affirmed by the circuit court on March 21,1989. Thereafter, FNB filed a notice of appeal and obtained a stay from this court conditioned upon FNB’s filing a proper supersedeas bond.
FNB appeals the Commissioner’s order granting approval of SNA’s application for a branch bank in Calico Rock based on three points of error: 1) that the order is in violation of constitutional and statutory provisions and made upon unlawful procedure, 2) the statute allowing discretionary hearings in protested cases is unconstitutional, and 3) the findings of fact in the order are in violation of statutory provisions and are not supported by substantial evidence. In addition, FNB requests that any remand to the Commissioner should specify procedures required to uphold statutory and constitutional provisions.
We find no merit in FNB’s points on appeal and affirm.
VIOLATION OF CONSTITUTIONAL AND STATUTORY PROVISIONS
FNB initially contends that the Commissioner’s order is in violation of constitutional and statutory provisions and made upon unlawful procedure. FNB bases this argument on the perception that its rights to due process have been denied due to the discretionary authority imbued in the Commissioner to grant or deny an application for a branch bank without an adjudicatory hearing. FNB claims that it has a franchise, by virtue of being a federally chartered bank, and that its due process rights can only be preserved and protected through a hearing at which all parties offer evidence.
The pertinent legislation regarding the procedure of establishing a full service branch office is contained in Ark. Code Ann. § 23-32-1203 (Supp. 1989), which provides in pertinent part as follows:
(c) Notice of the filing of the application shall be given by the commissioner to every other bank in the city or town in which the branch applicant bank is located. This notice shall be given by mail.
(d)(1) Any formal protest to a branch bank application must be received in writing detailing the reasons for protest within fifteen (15) calendar days of the date the commissioner’s notice of an application was mailed.
* * * *
(e) An adjudicatory or administrative hearing shall not be required on a branch bank application.
The first rule of construction as to a piece of legislation is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Eldridge v. Board of Correction, 298 Ark. 467, 768 S.W.2d 534 (1989) (citing Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986)).
In addition to the principle that statutes are presumed not to be unconstitutional, Craighead County Bd. of Educ. v. Henry, 295 Ark. 242, 748 S.W.2d 132 (1988) (citing HCA Medical Services of Midwest, Inc. v. Rodgers, 292 Ark. 359,730 S.W.2d 229 (1987)), we have also recognized that administrative agencies are better equipped, by specialization, insight through experience, and more flexible procedures, than courts to determine and analyze underlying legal issues affecting their agencies, which accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Arkansas State Hwy. Comm’n v. White Advertising Int’l, 273 Ark. 364, 620 S.W.2d 280 (1981) (citing Gordon v. Cummings, 262 Ark. 737, 561 S.W.2d 285 (1978)).
Generally, the basic constitutional due process requirements of notice and a reasonable opportunity to be heard are mandatory prerequisites to divest a property owner of his interest. Wallace v. Missouri Improvement Co., 294 Ark. 99, 740 S.W.2d 920 (1987). Although we agree that FNB has a constitutionally protected right to exercise the property interest vested in its franchise free from unlawful competition and therefore has standing to challenge unlawful competition, see Frost v. Corporation Comm’n, 278 U.S. 515 (1929); Webster Groves Trust Co. v. Saxon, 370 F.2d 381 (8th Cir. 1966), the pivotal question is whether due process gives FNB the right and standing to challenge lawful competition and, if so, how much due process must be afforded to this right and did FNB receive at least the minimum necessary to survive this constitutional challenge?
An illustrative discussion of this issue is presented in C. Koch, Administrative Law and Practice 564-67 (1985):
Indeed, over the years, the Supreme Court often has rejected the argument that trial-type procedures always are required by the Due Process Clause. [‘Once it is determined that due process applies, the question remains what process is due.’] The procedural components that will satisfy the Due Process Clause’s requirements will vary from situation to situation. The proper combination of procedures must reflect a practical solution sensitive to both the individual’s rights and the purpose of the administrative program.
* * * *
Perhaps the most influential effort to develop a technique for analysis is Justice Powell’s opinion in Mathews v. Eldridge [424 U.S. 319 (1976). Eldridge had been receiving social security disability benefits, but a state agency terminated his eligibility. Eldridge submitted a written protest to the agency, but otherwise had no opportunity, prior to termination, to participate in the decisionmaking.]. The only issue before the Court was whether the agency had accomplished the termination of Eldridge’s benefits according to due process requirements.
In answering this question, Justice Powell focused on three factors critical to this analysis:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Using this analysis, we conclude that FNB’s due process rights were not violated. Under the first factor, FNB is only indirectly affected because it does not have an exclusive license to operate in the area where BNA requested to establish a branch, and approval of the branch application does not exclude FNB from operating in that area. The aspect of resulting competition was specifically addressed in the bank examiner’s report:
The protest lodged by FNB contends that the approval of the proposed branch will have a detrimental effect on the competition in Calico Rock. FNB has consistently reported earnings in the 90th percentile of its peer group. Capitalization is in the upper 90th percentile of its peer group. The cost of funds is well below 4.50 %. The contention is perhaps well founded due to the fact that the bank [FNB] will have to meet the challenge of competition. However, there is no evidence submitted to support irreparable harm will be committed due to the introduction of competition.
The approval of the applicant’s request will afford the populace of the trade area a choice of banking institutions, therefore promoting public convenience.
The second factor, addressing the risk of an erroneous deprivation of FNB’s interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, also favors upholding the constitutionality of the statutory provisions.
Although section 23-32-1203(e) does not require a formal hearing, other provisions included in that section adequately protect FNB’s rights under these circumstances. Specifically, 1) subsection (c) requires that notice of the filing of the application be given to every other bank in the city or town in which the branch applicant bank is located, 2) subsection (d) provides for the protest of a branch bank application, (3) subsection (f) states that the commissioner’s decision on a branch bank application will be in the form of final findings of fact, conclusions of law, and that the order be given by the commissioner within a reasonable time period, and 4) subsection (g) allows an applicant or official protestant thirty calendar days in which to appeal the commissioner’s order to the appropriate circuit court.
In this case, the commissioner clearly gave FNB notice of BNA’s branch bank application, which FNB protested. The commissioner issued findings of fact and conclusions of law in its order dated October 31, 1988, and FNB exercised its right to appeal the order to the Pulaski County Circuit Court.
These procedural safeguards are sufficient to protect FNB’s interest. The value of additional safeguards requested by FNB, in the form of discovery and a hearing, is outweighed by the resultant increase in administrative burdens, addressed in Justice Powell’s third factor to be considered.
Finally, FNB argues that section 25-15-208(a)(3) of the Administrative Procedure Act, providing that in “every case of adjudication . . . [opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved,” conflicts with section 23-32-1203(e) in the branch banking subchapter, which unequivocaly states that an “adjudicatory or administrative hearing shall not be required on a branch bank application.”
Section 25-15-211, addressing licenses in administrative adjudications, provides as follows: “(a) When the grant, denial, or renewal of a license is required by law to be preceded by notice and an opportunity for hearing, the provisions of this subchapter concerning cases of adjudication apply.”
Thus, the discretionary authority for an adjudicatory or administrative hearing contained in section 23-32-1203(e) precludes the application of section 25-15-208(a)(3) by virtue of section 25-15-211. Simply stated, in this case the Administrative Procedure Act does not apply to the activities of the Commissioner.
In summary, the Commissioner’s action does not affect FNB’s authority or right to conduct its banking operations. The establishment of a branch bank by BNA does not constitute unlawful competition. The Commissioner complied with the statutory requirement of notice and a reasonable opportunity to be heard. Finally, neither the language nor the meaning of Ark. Code Ann. § 23-32-1201 (1987 and Supp. 1989) et seq. is ambiguous, and the Commissioner’s decision not to have a hearing is within his discretion.
Thus, we find the statute is not in violation of constitutional prerequisites.
DISCRETIONARY HEARING UNCONSTITUTIONAL IN PROTESTED CASES
FNB contends that the statute allowing discretionary hearings in protested cases is unconstitutional unless it is interpreted to allow a discretionary waiver of a hearing in non-protested cases.
As noted previously, statutes are presumed not to be unconstitutional, Craighead County Bd. of Educ., supra, and all doubts must be resolved in favor of upholding its constitutionality. Holland v. Willis, 293 Ark. 518, 739 S.W.2d 529 (1987).
Additionally, a rational basis for the discretionary hearings can be found in the analogous case of Webster Groves Trust Co., supra, where the Eighth Circuit Court of Appeals discussed the rationale for not requiring the Comptroller of Currency to hold a formal hearing at which commercial banks could present objections relative to issuance of new national bank charters:
The very nature of the decision required by the Comptroller indicates that a formal adversary type hearing would be of little benefit to him in the discharge of his discretionary powers. There is the further factor present that if bank applicants were subjected to severe public cross-examination, public presentation of unfavorable evidence and were forced to disclose their future plans and programs to competitors, public confidence in the banking system could be adversely affected.
In discussing the discretionary nature of the Comptroller’s underlying actions, the court in Webster Groves Trust Co., supra, stated:
We believe that competing banks, as interested parties, have a right to challenge illegal acts of the Comptroller and that the Comptroller’s discretionary actions are not immunized from judicial review, but we also believe that neither the National Banking Act, 12 U.S.C. § 21 et seq., the Administrative Procedure Act, nor procedural due process requires a formal hearing of the type sought by appellant.
Also, FNB’s sole reliance on Pulaski County v. Commercial Nat'l Bank, 210 Ark. 124, 194 S.W. 2d 883 (1946), is misplaced.
In that case, we noted that where notice to a party to be affected and opportunity for him to be heard were not provided for in the law under which an assessment of taxes was made, the law was unconstitutional and void and the assessment was illegal. However, the statute at issue was held to be void insofar as it authorized an appeal by one property owner from the action of the Board of Equalization in refusing to raise the assessment of another property owner without requiring any kind of notice to the property owner whose assessment was being questioned.
As we noted in FNB’s first argument, FNB does not have a property interest that is recognized as being entitled to the degree of protection it claims. FNB’s rights are not directly affected; in fact, FNB is affected only to the extent that the Commissioner’s order allows regulated competition in a regulated industry. Consequently, the mandates of due process are not violated, and we hold the statute to be constitutional.
FINDINGS OF FACT
Finally, FNB argues that the findings of fact in the Commissioner’s order are in violation of the Administrative Procedure Act (Ark. Code Ann. § 25-15-210 (1987)) and not supported by substantial evidence. Here again, the Administrative Procedure Act does not apply to the extent that it is superceded by the branch banking provisions contained in section 23-32-1201 et seq.
Section 25-15-210(b)(2) provides in pertinent part that “[a] final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings . . . .”
Again, section 25-15-211 provides that the provisions of the subchapter concerning cases of adjudication in the Administrative Procedure Act do not apply unless “the grant. . . of a license is required to be preceded by notice and an opportunity for hearing.” Section 23-32-1203(e) specifically states that a formal hearing is discretionary in a branch bank application and would therefore preclude the application of section 25-15-210(b)(2).
Section 23-32-1203(f) of the branch banking subchapter provides that in the establishment of a full service branch office:
The commissioner’s decision on a branch bank application will be in the form of final findings of fact, conclusions of law, and an order given by the commissioner within a reasonable time period following the expiration of the fifteen (15) calendar day formal protest period.
Thus, the case law strictly interpreting section 25-15-210(b)(2) would only be applicable to those cases where notice and a hearing were both required. In contrast, given the informal nature of the branch bank application procedure, the Commissioner’s findings of fact are sufficient to satisfy the requirements of section 23-32-1203(f).
We note that the Commissioner incorporated the following facts and information in his order:
(1) Reliance on the written evidence submitted on behalf of both BNA and FNB, as well as an on-site investigation by state bank examiners.
(2) BNA is a banking corporation organized under a charter issued by the State of Arkansas with its principal place of business in Melbourne, Izard County, Arkansas.
(3) BNA provided evidence that suitable physical facilities would be provided for the full service branch.
(4) BNA maintained a good capital structure and a good financial condition. At the time of the Examiner’s Investigation for the proposed branch, BNA had 8.5% total capital to asset ratio.
(5) BNA maintained good future earnings prospects, good management, and was in conformity with Arkansas law and State Bank Department Rules and Regulations, according to the Examiner’s Investigation Report.
(6) Evidence provided in the branch application indicated that BNA maintained adequate fidelity coverage.
(7) The proposed service area for the proposed branch was in the towns of Calico Rock and Pineville and in the communities of Wideman and Dolph, Arkansas.
(8) Local conditions assured a reasonable promise of successful operation of the proposed full service branch. The Examiner’s Investigation Report provided evidence that there were four financial institutions in Izard County, but only two in the proposed trade area.
(9) Public convenience and necessity would be promoted by the establishment of the proposed branch. Evidence provided by BNA and cited in the Examiner’s Investigation Report indicated that BNA planned to offer all the products of a full service branch.
(10) The Examiner’s Investigation Report indicated that FNB was the only bank in Calico Rock and that it maintained a capital to asset ratio in the top 95 percentile of its peer group. The investigation also indicated that FNB had maintained an extraordinary earnings record, due in part to its below peer costs of funds. There was no indication that the establishment of SNA’s branch would have a significant adverse effect on competition or lead to destructive competition.
We find sufficient compliance with section 23-32-1203(f) and conclude that the Commissioner’s order was based on substantial evidence.
Affirmed.
Hickman, J., dissents. | [
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Tom Glaze, Justice.
In this criminal appeal, the appellant challenges his conviction for first degree murder of his wife and second degree battery of his wife’s friend, Georgia Estlinbaum. He was convicted by a jury and received a life sentence for first degree murder plus six years on the battery charge. On appeal, he raises four points of error, none of which have merit.
The facts are basically uncontested. Appellant and his wife were experiencing marital problems, and on July 5,1988, his wife and daughter, Christina, left the marital home. Appellant had a neighbor deliver a letter to his wife hoping she would either return home or meet with him to discuss their problems. She refused. On July 8, 1988, appellant confronted his wife in a local grocery store. After a heated conversation, appellant ran out of the store to his car, got a gun and shot his wife, who by this time was outside the store. He first shot her in the head, but after she was down, he shot her several times more, killing her. Appellant then turned to Georgia Estlinbaum, who was sitting in her car, and shot several times into her vehicle. Ms. Estlinbaum was wounded but not fatally.
Appellant first argues that the trial court erred in allowing Christina to testify concerning the physical nature of the arguments that took place in the marital home and the death threats made by appellant towards his wife prior to the shooting.
The state argues forcefully that the appellant failed to preserve his objections to Christina’s testimony for appellate review. While we believe there may be considerable merit to the state’s arguments, we need not burden this decision by sorting through the parties’ lengthy discussion of the state’s position on this point because Christina’s testimony clearly was admissible under A.R.E. Rule 404(b).
The state was required to prove the appellant killed his wife with the premeditated and deliberate purpose of doing so. Ark. Code Ann. § 5-10-102(a)(2) (1987). Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986). The proof of threats made by the defendant prior to the time a homicide occurred is admissible as showing motive. Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981); see also Lang v. State, 258 Ark. 504, 527 S.W.2d 900 (1975) (where threats, even though uncommunicated to the victim, were held admissible to show ill will and motive).
Here, Christina testified that prior to the shooting on July 8, 1988, the appellant had utilized physical force against his wife, and as recent as July 5,1988, appellant not only threatened to kill the victim with a gun, he also beat her. Such evidence clearly tended to show appellant’s motive, intent or plan to kill his wife. Because that evidence was admissible under Rule 404(b), appellant fails to show any abuse of the trial court’s discretion on this point. See Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
Appellant’s second point of error concerned a question the state posed to Christina about a prior guardianship proceeding involving her. The prosecutor asked Christina whether the appellant’s counsel had tried to assist her in the proceeding. Appellant objected to the question, the trial court sustained it, and Christina never answered the question. Nonetheless, appel- . lant moved to strike the question from the record, and the trial court refused the request. Appellant complains on appeal that the trial court erred in failing to strike the state’s question. He offers no citation of authority to support his argument and in no way demonstrates how he was prejudiced by the trial court’s ruling. The trial court agreed the state’s question was irrelevant, and we fail to see how appellant was prejudiced by leaving the question in the record. Prejudice is not presumed, and the appellant has demonstrated none. Holbird v. State, 299 Ark. 551, 775 S.W.2d 893 (1989).
The third point concerns the trial court’s denial of appellant’s motion for directed verdict on the second degree battery charge. Appellant contends the state’s evidence was insufficient to prove Ms. Estlinbaum sustained a serious physical injury. Although the state counters by saying the evidence strongly supports the verdict reached, it first argues that the appellant waived this issue below and therefore it is not preserved in this appeal. We agree.
In a jury trial, the defendant’s failure to move for a directed verdict at the conclusion of evidence presented by the prosecution and at the close of the case constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. A.R.Cr.P. Rule 36.21 (b); Houston v. State, 298 Ark. 7, 771 S.W.2d 16 (1989). Here, while appellant moved for a directed verdict on the battery charge at the close of the state’s case, he failed to renew such motion at the close of his case.
Finally, appellant contends that the trial court erred in not allowing him to introduce evidence of the infidelity of his wife. Appellant argues such evidence would have shown he was acting under extreme emotional disturbance at the time he shot his wife and would have entitled him to a jury instruction on the lesser included offense of manslaughter. See Ark. Code Ann. § 5-10-104(a) (1) (1987). The problem with appellant’s argument is that while he claims evidence existed reflecting that on prior occasions he had accused his wife of “running around,” he never stated when these incidents of “running around” occurred, nor did he mention the name of any paramour.
In sum, appellant failed to explain to the trial court how his evidence, reflecting he had accused his wife of adultery, would show he killed her when he was under the influence of extreme emotional disturbance for which there was reasonable cause — the elements which would entitle him to be convicted of manslaughter under § 5-10-104(a)(l) rather than first degree murder. Because the appellant failed to show the relevancy of the evidence he proposed to introduce, we believe the trial court did not abuse its discretion by excluding such evidence. On this point, we further note that Georgia Estlinbaum testified without objection that the appellant had made accusations to his wife about her seeing other men. Thus, even if the “running around” evidence was admissible, as appellant proposes, that evidence was merely cumulative and the exclusion of it, even if erroneous, was nonprejudicial. Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985).
Under Rule 11 (f) of the Rules of the Supreme Court and the Court of Appeals, an examination has been made of all other rulings adverse to appellant, and none of them constitute prejudicial error. For the reasons above, we affirm.
Price, J., not participating. | [
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Jack Holt, Jr., Chief Justice.
The issue in this appeal is whether the chancellor erred in holding that the appellant, Anna Lee Drayer, was precluded by the doctrine of res judicata from litigating certain issues and claims against the appellee, William G. Wright, in regard to the testamentary trust provisions contained in John J. Hardin’s will.
John J. Hardin died testate on January 27,1933, and his will was admitted to probate. The will created two trusts; however, this case only concerns the interpretation of the first trust, known as the John and Errett Hardin Trust (Trust), the corpus of which consists of approximately 1640 acres.
The successor trustee, William G. Wright, initiated a petition for instruction as to the meaning of the Trust and requested an order directing the distribution of all annual proceeds of the Trust, as well as final distribution of the corpus upon expiration of the Trust. Drayer counterclaimed on the basis that the Rule in Shelley’s case and the Statute of Uses applied to the Trust provisions.
The chancery court has previously interpreted John J. Hardin’s will on December 7, 1955, and April 20, 1973. In this case, the chancellor held that a determination of the membership of the class of beneficiaries was barred by the doctrine of res judicata, and stated that:
. . .the Trustee continue to hold legal title to the corpus of the Trust until the date eighteen years after the death of the last surviving of the above listed measuring lives upon the terms and conditions set out in the Will of John J. Hardin; that annual distribution of trust income be made on a per capita basis to a class of beneficiaries to be determined each year at the time of annual distribution and consisting of those lawful descendants of John and Errett Hardin whose lineal ancestor through whom he or she descends from John or Errett Hardin has died; that upon the expiration of the trust the fee to the Trust property shall vest in the beneficiaries so defined alive at the date of the termination of the Trust with such beneficiaries taking per capita.
From that decree, Drayer appeals on the basis of two points of error: 1) that the trial court erred in ruling that the doctrine of res judicata applied to prevent the application of the Rule in Shelley’s case and the Statute of Uses, and 2) that the trial court erred in ruling that the Rule in Shelley’s case was not applicable. We find that the doctrine of res judicata is applicable and affirm the judgment of the trial court.
Drayer contends that there were no issues before the court relating to the termination of the trust or the proper disposition of the corpus upon its termination when the court entered its 1955 decree. On this basis, Drayer argues that any ruling of the court in regard to these matters was dicta and not binding on the parties. See generally Shall v. Biscoe, 18 Ark. 142 (1856); Connor v. Blackwood, 176 Ark. 139, 2 S.W.2d 44 (1928); Sovereign Camp, W.O.W. v. Gillespie, 87 F.2d 944 (8th Cir. 1937), cert. denied 301 U.S. 698 (1937).
However, Drayer concedes that the court, in 195 5, examined the validity of a purported contract undertaken by John and Errett Hardin, and their respective wives and children, to divide the lands of the first trust and defeat the final remainder interest. The agreement stated that, “ [i] t is further agreed by all parties to this contract that the division made in this contract of all lands described herein is final and lasting and forever binding on all parties concerned.”
The court found that the agreement was “in direct contravention of, and in derogation of, the clear provisions and intent of the will of J.J. Hardin,” and declared the contract null and void from its inception. Necessarily, the court had to determine the circumstances surrounding the termination of the trust, and the proper disposition of the corpus upon its termination, in order to assess the validity of the contract at issue.
The court stated in its 1955 decree:
The court further finds and interprets the will to mean that upon the expiration of the life of the first trust, the lands comprising said trust shall be owned in fee simple by the survivor or survivors of the legal descendant or descendants of testator’s sons, John and Errett, who are living at the time of the expiration of the trust, and if there then shall be more than one surviving legal descendant of John and Errett as that term is defined herein, then the lands of the first trust shall be divided among them each share and share alike in the same manner and with a like share going to each as would be the case if such descendants were the only child or children of such one person, and if such one person had died intestate at the time of the trust. . . .
We have held that under the doctrine of res judicata, or claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action; furthermore, res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those which could have been litigated. Toran v. Provident Life & Accident Ins. Co., 297 Ark. 415, 764 S.W.2d 40 (1989).
Unlike Connor, supra, which stated that a question that was considered, but which was not before the court and was unnecessary to the decision of the case, was not binding as authority, the chancellor’s 1955 decree squarely faced the issue of the validity of a contract that purported to divide the lands contained in the Trust. Although not specifically addressed in the 195 5 decree, the Rule in Shelley’s case and the Statute of Uses were imbedded within a determination of the contract issue and, if not in actuality, could have been litigated at that time.
Drayer does not dispute that she was represented in the 1955 proceeding by a guardian ad litem and is bound by those proceedings. Therefore, we decline to relitigate her claim.
Drayer also argues that the trial court erred in ruling that the Rule in Shelley’s case was not applicable. Since Drayer’s second point of error relies on this court finding that her claim is not precluded under the doctrine of res judicata, we need not address the argument.
Affirmed.
Turner, J., not participating. | [
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Darrell Hickman, Justice.
The main question in this case is whether a school district must insure a bus chartered for a one day field trip, when the bus is not owned by the school district nor driven by a district employee. The answer is no.
Katrina King was a student at Horace Mann Junior High School in Little Rock. On May 9, 1986, she participated in a school field trip that took students to the Nuclear One power plant in Russellville and to Petit Jean Mountain. To transport the students on the trip, the school district hired two buses owned by the Trinity Evangelistic Association (TEA). Katrina was on the bus driven by Irvin Dennis, a volunteer with TEA. While coming down Petit Jean Mountain, the bus ran off the road and Katrina sustained injuries. Katrina’s mother, as guardian and next friend, filed suit against TEA, Irvin Dennis, and the Little Rock School District. The case was tried to the judge. The judge found TEA liable and awarded the appellant $3,000 in damages. On appeal it is argued that the judge erred in dismissing appellant’s case against the Little Rock School District and Irvin Dennis. We agree that the dismissals were proper and affirm the judgment.
The Little Rock School District was dismissed from the case before trial. The judge ruled that, since the district did not own the bus, it was not required to carry motor vehicle liability insurance on the bus. Therefore, the district remained immune from tort liability. We agree that the district was not required to insure the bus.
School districts are among the political subdivisions that are generally immune from tort liability. See Ark. Code Ann. § 21-9-301 (1987). However, in order that persons injured by the subdivisions’ vehicles may have redress for negligence, Arkansas law requires political subdivisions to carry liability insurance on their motor vehicles. Ark. Code Ann. § 21-9-303 (1987) reads as follows:
All political subdivisions shall carry liability insurance on all their motor vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-201 et seq.
If a subdivision fails to carry liability insurance on its motor vehicle it becomes, in effect, a self-insurer and may be held liable for an amount not to exceed the minimum amounts of coverage prescribed by the Motor Vehicle Safety Responsibility Act. Sturdivant v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973). That is what the appellant contends has happened in this case. She claims that the school district was required to insure the bus and, by failing to do so, forfeited its statutory grant of immunity. The question we must answer is, did the legislature, by requiring political subdivisions to carry liability insurance on “their” motor vehicles, intend for that requirement to apply to a situation like this one?
The trial judge held that the word “their” means vehicles which are owned by the political subdivisions. The appellant argues the judge’s interpretation is too restrictive, citing Ark. Code Ann. § 6-19-102 (1987). That law provides that school districts may hire or purchase school buses or make other arrangements as they deem best, affording safe and convenient transportation to pupils. Therefore, the appellants claim, the legislature has recognized that students may be transported in vehicles other than those actually owned by the school district. We disagree with the appellant’s argument that § 6-19-102 is relevant here. It applies to the transportation of pupils to and from school. That is not the situation we have here.
The appellant also argues that the trial judge’s ruling would allow school districts to evade the insurance requirement by leasing their buses rather than buying them. We will not decide in this case if the legislature intended the statute to be applied strictly to vehicles owned by the political subdivision. But we can say with confidence that the legislature did not intend for a school district to insure a bus which was owned by an independent entity, operated by a driver who was not employed or hired by the district, and chartered for a one day field trip. That is the extent of our holding. The purpose of the law is to insure that a person injured by a subdivision vehicle will have some redress. In this case, there is redress against the driver and the owner of the bus.
The second point for reversal involves the dismissal of the bus driver, Irvin Dennis, from the lawsuit. Dennis was dismissed at the close of the appellant’s case. The judge determined that the appellant had not presented sufficient evidence to show that Dennis was negligent, and we agree.
Since this was a nonjury case, Dennis properly challenged the sufficiency of the evidence by moving to dismiss the appellant’s claim against him. See ARCP Rule 50(a). In addressing the issue of whether it was proper for the trial court to dismiss the case, we must consider whether the plaintiffs evidence, given its strongest probative force, presents a prima facie case. Noland v. Thomas, 228 Ark. 572, 309 S.W.2d 727 (1958); McCullough v. Ogan, 268 Ark. 881, 596 S.W.2d 356 (Ark. App. 1980). In this case, the appellant did not make a prima facie case that Irvin Dennis was negligent in his operation of the bus.
The appellant’s case consisted of the testimony of Carolyn and Katrina King and that of Irvin Dennis. Dennis testified that he was driving the bus down Petit Jean Mountain in second gear, going about twenty miles per hour. When he began to apply his brakes, he said the air pressure began to drop. He tried to slow the bus but it wouldn’t stop. He was unable to negotiate a curve on the hill, and the bus ran off the road. He said he had not driven before on mountains as steep as Petit Jean. He did testify that if he had been in first gear, the bus would have been going seven miles per hour rather than twenty miles per hour. But he said he probably would have still run off the road because of the lack of brakes and the weight of the bus.
The judge found that the appellant simply failed to show what the driver did wrong. She presented evidence of the driver’s conduct; but she presented no evidence to show that his conduct was negligent or was the cause of the accident. Later, after Dennis had been dismissed from the case, the testimony of a mechanic was presented as part of TEA’s case to show that first gear only should have been used in driving down the mountain. But by that time, the appellant had presented her case and Dennis had been dismissed. The judge ultimately found that Dennis’ negligence was the cause of the accident and imputed that negligence to his principal, TEA. But at the time Dennis made the motion for dismissal, he was entitled to it.
We note that certain statutes which provide immunity for volunteers and for members of non-profit organizations were not yet in existence at the time the accident in this case occurred. See Ark. Code Ann. §§ 16-120-101 and -102 (Supp. 1989) and Ark. Code Ann. § 16-6-105 (Supp. 1989).
Affirmed.
Turner, J., not participating.
Holt, C.J., and Glaze, J., dissent. | [
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Smith, J.
This is a proceeding hy bill of review to modify a decree of the Logan Chancery Court, Northern District, from a portion of which decree an appeal was prosecuted to this court. First National Bank of Paris v. Gray, 168 Ark. 12, 268 S. W. 616. In the decree thus sought to be reviewed the court had made the following findings of fact:
That on October 1, 1917, George Heim had conveyed to A. L. Gray a tract of land, containing 160 acres, for the consideration of $1,400, and that a balance of $795.30 was then due and evidenced by notes given for the purchase money, which were secured by-a vendor’s lien; that Heim had assigned these notes to H. Bollwig, then deceased, and the same were held by A. P. Niemier, as executor of Bollwig’s estate; that on February 13, 1920, A. L. Gray conveyed to J. M. Cauldwell a 160-acre tract of land, which included 40 acres of the land bought by Gray from Heim, for the consideration of $500 cash and five notes for $500 each, and that Gray had in due course assigned these notes to the First National Bank of Paris as collateral security for certain indebtedness due the bank; that on September 12, 1921, A. L. Gray had executed a mortgage to T. C. Gray, conveying 120 acres of the land sold Cauldwell by Gray, to secure the payment of a note for $1,000, due December 1, 1922; that on February 16, 1920, A. L. Gray conveyed to H. J. Pistole and H. Cowden a quarter-section of land for a cash consideration and six notes for $500 each, ¡and these notes were also indorsed by Gray to the bank. One hundred and twenty acres of the land conveyed by Gray to Pistole and Cowden were embraced in the deed from Heim to Gray, and the court held that this conveyance was subject to the vendor’s lien reserved by Heim for the balance of unpaid purchase money, as was also the 40 acres sold Cauldwell by Gray which was included in the deed from Heim to Gray.
The court declared a lien on the 120 and 40 acre tracts last mentioned in favor of Bollwig’s executor, and directed that these lands be sold in satisfaction of these liens. And, subject to the prior lien in favor of Heim, which Niemier, as executor, had acquired, it was decreed that the bank, as the holder of the purchase money notes given Gray by Pistole and Cowden and Cauldwell, had a lien upon the lands in partial payment of which the notes had been executed. It was iadjudged, however, that, inasmuch as the mortgage from A. L. Gray to T. C. Gray, securing the thousand-dollar indebtedness due from A. L. Gray to T. C. Gray, had been placed of record before the deed from Gray to Cauldwell had been recorded, Cauldwell had taken title subject to the mortgage lien. Sales of the lands were ordered, and it was decreed that, from the proceeds thereof, the indebtedness be paid in the order of priority as the same had been adjudged in the decree.
No objection appears to have been made by any one to this decree, except that it concludes with the following recital:
‘ ‘ To the findings of fact and declaration by the court that the defendant, T. C. Gray, is an innocent purchaser for value, without notice, and by reason of prior filing of his A. L. Gray mortgage to the filing of record of the A. L. Gray warranty deed to J. M. Cauldwell, held prior and a first lien to cross-plaintiff, First National Bank of Paris, Arkansas, at the time excepted, and prayed an appeal to the Supreme Court of Arkansas, which is granted, and 90 days given to file bill of exceptions.”
This appeal was duly prosecuted, and the only question presented for our decision on the appeal from this decree was the question whether the deed from A. L. Gray to Cauldwell was subject to the mortgage on the same land from A. L. Gray to T. C. Gray.
We reversed the portion of the decree appealed from. See Bank v. Gray, supra, in which case it was held (to quote the syllabus) that “the possession of a tenant or lessee is not only notice as against a subsequent mortgagee of all his rights and interest connected with or growing out of the tenancy or lease, but is ialso notice of all interests he may have acquired through subsequent or collateral agreements.” The necessary effect of this holding was to declare the mortgage from A. L. Gray to T. C. Gray invalid, for the reason that A. L. Gray had, prior to the execution of the mortgage, previously conveyed the land to Cauldwell.
G. W. Parks, as administrator of the estate of C. S. Parks, deceased, had intervened in this suit, and he alleged that, as administrator of the C. S. Parks estate, he was entitled to be subrogated to the bank’s collaterals after the bank had been paid in full, for the reason that his intestate had paid certain portions of the indebtedness due the bank from A. L. Gray, for which his intestate, C. S. Parks, Was- security to the bank for Gray. The relief prayed by the administrator was granted, and it was “ordered and decreed that the said G. W. Parks, as the administrator of the estate of the said C. S. Parks, deceased, be and is hereby subrogated to the rights of the said First National Bank to said notes, after the said First National Bank is paid in full.” This last adjudication was embraced in a separate decree, but both decrees were rendered at the same term of the court.
The opinion of this court on the appeal of the bank was delivered February 16, 1925, and’ thereafter the attorneys for T. C. Gray obtained from the court below permission to file a ‘ ‘ supplemental answer and a petition in the nature of a bill of review,’’’ in which it was alleged that there was an error of law apparent on the face of the record in subrogating G. W. Parks, administrator, to the rights of the bank to the notes pledged to the bank to secure indebtedness due tbe bank, it being alleged that C. S. Parks was neither the maker, surety nor indorser, nor in any other manner liable thereon or bound by the same, and it was denied that the said C. S. Parks had in fact paid anything thereon. It was further alleged that such sums as were paid by C. S. Parks had been paid on an indebtedness for the security of which the notes indorsed by Gray to the bank had not been pledged as collateral.
To this supplemental answer and petition a demurrer was filed, for the reasons: (1) “As a supplemental answer, it does not state fact or facts, and does not raise ¡any question that has not been adjudicated by this court; (2) as a bill of review, it does not state any new matter or facts or cause as will entitle this court to set aside the decree rendered herein on the 25th day of September, 19'23.” The demurrer was overruled, whereupon Parks, as administrator, filed an answer, setting up certain payments made by his intestate for Gray, which it was alleged the collateral notes secured.
The court appointed a receiver to take charge of the collateral notes and collect them, and to make a report thereof. The court also referred the testimony taken on these supplemental pleadings to a master, with directions to make findings of facts. This report was made, but exceptions were sustained to these findings. The master found that the mortgage lien claimed by T. C. Gray was void; that the five $500 notes of Cauldwell to A. L. Gray were the property of Gray, “subject to the orders of subrogation to the position of the bank to the extent of $2,589.65 judgment and accrued interest obtained on September 14, 1922, by said bank against A. L. Gray and G. W. Parks, administrator.” That said notes carry a reservation of title in A. L. Gray to the quarter section of land sold Cauldwell, and that Parks, as administrator, has a lien on said land by reason of “being subrogated to the position held by the First National Bank of Paris under assignment by A. L. Gray, for collateral security, subject to said sum due T. C. Gray for taxes advanced.” Gray having paid certain taxes, the master found that the amount thereof constituted a first lien on the land.
The master further found that the vendor’s lien on the Cauldwell land should be foreclosed, and that the proceeds of the sale and other assets in the hands of the receiver should be first applied to the payment of the costs of the suit; second, to reimburse T. C. Gray for taxes, paid; third, to the payment of any balance due the bank on the Gray Mercantile Company notes as security for which the Cauldwell notes had been pledged; fourth, to G. W. Parks, as administrator, in satisfaction of the judgment recovered against his intestate, “which judgment is the basis of the right of subrogation order heretofore made- by this court of equity; ’ ’ fifth, balance, if any, to be applied on the satisfaction of judgment rendered in this court in favor of T. C. Gray.
The decree denied the right of .subrogation as found by the master, and further found that the mortgage for a thousand dollars from A. L. Gray to T. C. Gray was a valid and subsisting lien, “subject, however, to any balance that may be remaining due the First National Bank of Paris.” The court found that this mortgage lien had been foreclosed by a commissioner appointed to make sale, and that T. C. Gray was the purchaser at this sale. It was ordered that this sale be approved, and that the commissioner execute his deed to T. C. Gray.
This decree must be .reversed, and it will be so ordered. As has been said, the necessary effect of the opinion of the court in the case of First National Bank of Paris v. Gray, supra, is to hold the mortgage from A. L. Gray to T. C. Gray void, for the reason that A. L. Gray had previously sold the mortgaged land to Cauldwell. No title could therefore have passed by this mortgage, and, upon the remand of this cause, a decree will be entered canceling it.
We are also of the opinion that the court was in error in reopening the question of the right of Parks, as administrator, to subrogation, as that question had been adjudicated in Ms favor in tbe portion of tbe original decree from which no appeal was ever prosecuted by any one. That decree therefore became and is final, and, as no error of law appears upon the face of the record in which that decree was entered, the decree was not subject to review in this proceeding.
It was held in the case of Rayburn v. Kirk, 134 Ark. 605, 204 S. W. 611, that a bill of review could not be resorted to as a substitute for an appeal to bring up for decision questions as to preponderance of evidence, it being there said:
“Of course, a proceeding by bill of review could, not be resorted to as a substitute for an appeal to bring before us for decision some question of the preponderance of evidence. "We could not decide in this proceeding, if we had the testimony heard at the former trial' before us, any question dependent upon a finding of preponderance of the testimony, for that was a proper question to raise by appeal.”
Parks, administrator, had prayed relief by subrogation in the original proceeding, and that relief had been granted, and the master found, on the resubmission of the question, that he was entitled to this relief. But, whether the preponderance of the evidence supports that finding or not, the right of subrogation was decreed on the original submission, by a decree from which no appeal was prosecuted, and relief against that finding, although it may not,.in fact, be supported by the preponderance of the evidence, cannot be granted in this proceeding. The report of the master should therefore have been approved, as it accords with the original decree of the court, and, upon the remand of the cause, a decree to that effect will be entered, and the funds herein involved will be distributed in accordance with the master’s findings.
The decree of the court below will therefore be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. | [
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Smith, J.
On the 15th day of September, 1926, R. H. Baldwin, a member of a copartnership doing business as Penny & Baldwin, hereinafter réferred to as the plaintiffs, came from Searcy, where they were engaged in the performance of a paving’ contract, to appellants’ place of business in the city of Little Rock, in quest of secondhand pipe, to be used in running a water-line in connection with a paving project.
Baldwin testified that he saw Mr. Siegel, a member of appellant firm,, which is a copartnership doing business as Siegel, King & Company, hereinafter referred to as the defendants, at the defendants’ office in Little Rock. Baldwin advised Siegel that he wanted to buy enough pipe to furnish a pipe line a mile and a half or more in length, to be used in pumping water from a creek, and that sound pipe which did not leak would be required for the purpose. Siegel advised Baldwin that he could fill the order, and they went into defendants’ storage yard, where they saw several piles of pipe. No test of the pipe was made at the time.
A contract was entered into, which was evidenced by the following writing:
“Little Rook, Arkansas, September 15, 1926.
“It is hereby understood that Penny & Baldwin of Searcy, Arkansas, have this day bought of Siegel, King & Company of Little Rock, 10,560 feet of two-inch secondhand pipe, as inspected by Mr. R, II. Baldwin, at the price of $.09 per foot f. o. b. cars Little Rock.
“This pipe is to be good serviceable condition, with .no leaks from end to end.
‘ ‘ Terms: Sight draft bill of lading attached.
“Couplings are to be furnished.
“Prompt shipment.”
The pipe was loaded for shipment to Searcy, and a draft with a bill of lading attached was drawn on Penny & Baldwin, which was duly paid, and the pipe was delivered in Searcy about four days later.
When the pipe was received, Penny & Baldwin were engaged in laying brick, as called for by their paving contract, and it was three or four weeks before they required the use of the pipe line. When the construction of the pipe line was begun, it was found that fifty per cent, of the joints were worthless, and that the pipe leaked at and around the joints and between the joints so that the pipe was worthless for the purpose for which it was purchased. Such is the testimony on the part of the plaintiffs, but it was developed in the cross-examination of plaintiffs’ witnesses that only about nine hundred feet of the pipe was connected up, and it is insisted that the bad results obtained were due to the lack of skill on the part of the laborers who made the connections of the pipe joints.
Plaintiffs brought suit, and alleged that the pipe was worthless, and prayed judgment for $950.40, the' amount paid for the pipe, for $82.90 freight paid, and $50 for unloading and handling. The jury returned a verdict for $950.40, the amount of the purchase price, and from a judgment accordingly is this appeal.
Numerous errors are assigned for the reversal of the judgment, those requiring discussion being as follows : That there was no restitution or tender of the pipe within a reasonable time; that, when a tender was made, the pipe had deteriorated from exposure and could not be returned in the. condition in which it was when sold; that error was committed in refusing certain instructions; and in admitting and in excluding certain testi-' mony.
The first and most important question is, of course, whether there was a breach of the express warranty that the pipe was in good serviceable condition, with no leaks from end to end. The testimony summarized above supports the finding that there was a breach of the warranty, and the law applicable to that condition is restated in the case of Keith v. Fowler, 169 Ark. 176, 273 S. W. 706, by quoting- from the case of Courtesy Flower Co. v. Westbrook, 146 Ark. 17, 225 S. W. 3, as follows:
“ ‘The law on the subject is that, where chattels are purchased under express warranty as-to quality, the purchaser may rescind on discovering- the inferior quality of the article sold, but is not bound to dó so, and, on the contrary, may retain the articles purchased and sue on the warranty, or recoup the damages when sued for the price. In case, however, the contract is to deliver goods of a particular description or quality, without express warranty, and the purchaser accepts them after inspection and discovery of the inferior quality, or after having-had a fair opportunity to make such inspection, he waives the right to claim damages for defects or inferiority of the goods sold.’ ”
The instructions given by the court required the jury to find that the pipe was not serviceable and leaked before finding for the plaintiffs, but it is insisted that, even though the testimony supports the finding- that the pipe was not serviceable and leaked, there was no sufficient tender to the appellants of the pipe, nor was the tender made within a reasonable time.
As we have said, three or four weeks elapsed before any test of the pipe was made by attempting to use it, and, when this test was made, it was found that the pipe did not hold water, and complaint was made of that fact to defendants, who advised plaintiffs to take the pipe to a blacksmith or a plumber. Later plaintiffs took up with defendants the resale of the pipe, and defendants offered them $15 per ton for the pipe f. o. b. delivered at Little Rock. Siegel testified that the pipe would weigh about twenty tons, and that the offer for the pipe amounted to about $300, less the reloading and freight charges. The negotiations for a settlement were fruitless, and on December 21,1926, plaintiffs advised defendants that the entire contract would be rescinded and the pipe would be held in Searcy subject to the plaintiffs’ order, and Baldwin testified that the pipe was in as good condition as when shipped.
It thus appears that- three months elapsed between the date of the sale and the date of a definite announcement of an intent to rescind, and it is insisted that the court should have declared as a matter of law that this offer was not made within a reasonable time. The court told the .jury that plaintiffs could not rescind unless that offer was made within a reasonable time, and, the jury having found as a matter of fact that the offer was made within a reasonable time under all the circumstances, we are unwilling to hold to the contrary as a matter of law.
It is insisted that a rescission could not be effected without a tender of the article sold in Little Rook, but all the testimony shows that such a tender would have been refused if made, as the defendants have at all times insisted, and now. insist, that there was no breach of the warranty.
The test of the pipe which the warranty contemplated could only be made-by an attempt to use the pipe in Searcy, and, to make this test, plaintiffs were required to pay both freight and unloading charges, which items were not included in the jury’s verdict. The offer to return was made at the place where, in contemplation of the parties, the test was to be made, and where it was made, and where a breach of the warranty was discovered.
The instructions requested by defendants were to the effect that a tender of the pipe at Searcy, the place of the test, was not sufficient. But there would have been no expense of reloading and of return freight had there been no breach of the warranty; on the contrary, these items were the direct result of the breach of the warranty, and we think the court was correct in not requiring plaintiffs to incur these items of expense, especially so as the undisputed testimony shows no tender of any kind would have been accepted. 24 R. C. L., p. 326, chapter ‘ ‘ Sales, ’ ’ § 511.
The court permitted Baldwin to testify that he would not have purchased the pipe, even after seeing it, if defendants “had not given that written agreement,” and that the pipe was not suitable for the purpose for which he bought it, and that “he could not use it at all.”
We think there was no error in admitting this testimony, as it amounted only to saying that plaintiffs relied upon the warranty, as they had the right to do, and that there was a breach of the warranty — an essential thing to prove to sustain any recovery.
The court excluded testimony offered by defendants to the effect that they had sold pipe to other customers, who made no complaint, and that Siegel “did not undertake to guarantee the pipe to be as good, to all intents and purposes, as new pipe.”
There was no error in excluding the first mentioned testimony, as the pipe sold other customers may not have been of the same kind; there may have been no warranty, and those purchasers may have been damaged without complaining. As to the last-mentioned testimony, it may be said that it was not contended that the pipe should be-as good, to all intents and purposes, as new pipe. The warranty sued on was that the pipe was in good serviceable condition, with no leaks from end to end, and the jury found, under proper instructions, that there was a breach of this warranty, and, this being true, the plaintiffs had the right to demand a return of the purchase money.
As no error appears, the judgment must be affirmed, and it is so ordered. | [
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Humphreys, J.
Appellant was indicted in the circuit court of Garland County for murder in the first degree for shooting and killing Lafayette Branam. On the trial of the alleged crime he was convicted of murder in the second degree, and adjudged to serve a term of fifteen years in the penitentiary as a punishment therefor, from which is this appeal. ■
When arrested, appellant voluntarily confessed that he shot and killed Lafayette Branam on the day charged in the indictment. The confession was reduced to writing, and introduced in evidence on the trial of the cause, which is as follows:
“My name is Wayne Thurman. I am twenty-one years old, and reside at Red Oak, nine miles from Hot Springs. I will make a statement of my connection with the killing of Lafayette Branam. I left the house Monday morning about 8:30, and I was going down to Bill Parr’s place. Just before I’got to Bill’s I saw Branam and some of his children on a wagon. He was sitting in the back, and the best I could judge he had a shotgun. I couldn’t tell just what kind of a gun it was. I waited awhile after he had gone down the road, and then went on to Bill’s place: I was down there about a half an hour, I judge, and then I went back home. I got my rifle, a 30-caliber rifle, and I went about three-quarters of a mile west of our place, and then I turned to- the right and went on about a mile, and then I turned back to the right and went up White Oak Creek about a mile, to where Branam was at work in his field, plowing, and when I got there it was about 12 o’clock, and Branam was eating dinner, and so I Waited until after he had eaten dinner and started back to work in the field, and I went up to the wire fence, about one hundred yards of where he was at work, and I waited — he had gone a couple of rounds — and then I went on up closer, probably within fifty yards of him, and he came down to the creek to get a drink, and just as he got to the creek I raised up from where I was hiding, and kicked thé wire fence and said, ‘Branam, I am here to get you.’ When I spoke he was standing with his right side to me, and he turned his head and facing me, and, just as he turned facing me, I started firing. I shot five times, and, after I had shot what shells I had in my gun, I turned and went down the fence for about 250 yards, crossed the creek, and then recrossed it, and went across the road right in front of the Scott house, the old Scott house, and went down the road for about — an old road — for about 150 yards, and then turned back toward home. I went straight home, and when I got there Dr. Housley and his wife were there, and they had already told the folks that Branam had been killed. I went to my room and changed clothes, and lay down across the bed and waited for the officers. I bought the gun at Hall’s pawnshop, after Branam had killed my brother. After I left home, and before I got to Branam’s field, I fired one shot to test the gun. I had fired the gun previous to that time ten or twelve times. I kept the gun in my room. Branam staggered at the first shot, and I think he was on the ground when I fired the last. The gun was a 30, lever action, and it threw the shells when I worked the lever.- I threw all of the shells out at that place. I carried the gun back home, and carried it over in the field, and there I hid it. This confession is made voluntarily, and signed and sworn to on the day after the occurrence.”
The other evidence introduced by the State corroborated the statement made by appellant that he killed Lafayette Branam in the manner detailed in the confession. ■ .
Appellant made no attempt to contradict the evidence introduced by the State relative to the charge, but interposed the defense of insanity thereto.
•The first assignment of error for a reversal of the judgment is that the court allowed the prosecuting attor ney, on cross-examination of Dr. T. B. Hill, introduced by appellant on the issue of his alleged insanity, to ask whether the headaches from which appellant suffered, and which he was called upon to treat, we,re the result of a wound appellant had received in his head some years before, or from dissipation or drunkenness. Appellant contends that the purpose of the question was to get before the jury a statement that he was given to excessive dissipation and drunkenness, in an effort to assail his character, which had not been put in issue. We cannot agree with the construction placed upon the question by appellant. Appellant had proved the injury to his head and subsequent suffering from headaches, in an effort .to show irresponsibility for his acts. This question was asked to test the physician’s knowledge of the cause of the headaches, whether the result of the injury, or from other causes. The witness answered that he did not know what caused the headaches, which discloses the wisdom of permitting the question. The impression had been left, after direct examination, that the headaches were the result of an injury to the head, as tending to prove irresponsibility. When the physician could nut connect the headaches with the injury, it weakened the effect of his testimony. The interrogatory was legitimate on cross-examination.
The next assignment of error for a reversal of the judgment is that the court allowed the prosecuting attorney to propound a cross-interrogatory to Dr. J. P. Randolph, one of appellant’s expert witnesses on the issue of insanity, which did not embrace all the undisputed facts in the testimony essential to the issue. The witness was not permitted to answer the question until instructed by the court to consider all the undisputed facts embraced in both appellant’s and the prosecuting attorney’s hypothetical interrogatories. This cured errors of omission in the prosecuting attorney’s interrogatories. Appellant also objected to the hypothetical question of the prosecuting attorney because it assumed as a fact that, after appellant bought the rifle with which he shot Lafayette Branam, he practiced shooting with it at a target. The argument is made that there is no evidence from which a legitimate inference might be drawn to the effect that he practiced shooting the gun at a target. Appellant did not claim to have fired the gun ten or twelve times at random in the air or at game. The legitimate inference is that he shot at some object, and any object at which he shot might have been characterized as a target. There was no error in thus describing the acts of appellant in firing the gun ten or twelve times in the interim 'between the date of purchase and the killing of Branam.
The next assignment of error for a reversal of the judgment was the refusal of the court to allow appellant to ask Dr. George M. Eckels, one of his expert witnesses on the issue of insanity, after he had answered a hypothetical question, whether he believed appellant was mentally responsible for the act of killing Lafayette Branam. If the question in the form asked was proper, the error in excluding the answer was cured by the subsequent testimony of the witness, to the effect that one in appellant’s condition could not distinguish between right and wrong the same as one in a normal condition, and that appellant could not, in his opinion, distinguish between right and wrong in the particular act of killing Lafayette Branam.
Appellant’s next assignment of error for a reversal of the judgment was the admission of the opinion of a. number of non-expert witnesses touching the sanity of appellant, in rebuttal to the testimony introduced by him tending to show that he was insane when he killed Lafayette Branam. The admission of their testimony was challenged on the ground that they did not detail the facts upon which they formed their respective opinions. We have carefully read the evidence of each, and are of opinion that each disclosed evidence growing out of their conversations with him which warranted each in giving an opinion. Most of them had known appellant for a long time, and had associated with him and conversed with him both before and after the commission of the offense. Appellant also contends, in this connection, that the court erred in allowing the jury to pass upon the admissibility of the testimony of the non-expert witnesses, instead of assuming that responsibility himself. It is argued that this was the effect of instruction number 12, given by the court over appellant’s objection. We do not so interpret the instruction. The purport of the instruction, as we construe it, was to tell the jury, in weighing the opinion of each to consider the sources of his information and to attach such value to his opinion as the facts upon which he based same warranted. The instruction correctly announced the law.
Appellant’s next assignment of error for a reversal of the judgment was in giving instruction number 11 by the court. The part of the instruction criticised by appellant is as follows:
“But, if the jury should believe that any fact, or facts, stated to the medical experts in the questions asked them, are not true, then you should disregard whatever opinion they expressed on the question of the defendant’s sanity at the time of the killing.”
Appellant suggests that the court should have used the following language instead of the language used:
“If the .jury finds any fact, or facts, in the hypothetical questions, material to the issue of defendant’s insanity, untrue, then they would be at liberty to disregard the opinion of the experts as to the sanity of the defendant at the time of the killing.”
The questions referred to by the court in that part of the instruction objected to related to hypothetical questions which had been' propounded to the medical experts, material to the issue of appellant’s sanity or insanity, as may readily be seen by reference to other parts of the instruction. We think the language used by the court, when interpreted in the way the court used it, meant exactly what the suggested language of appellant means. The whole instruction given by the court conforms substantially to the rule announced by this court in the case of Kelly v. State, 146 Ark. 509, 226 S. W. 137.
Appellant’s next assignment of error for a reversal of the judgment was the refusal of the court to give his requested instructions numbers 2, 3, 5 and 6, in connection with instruction No. 6, which was given by the court. We deem it unnecessary to set these instructions out at length in this opinion. Suffice it to say that we have examined them, and find that the requests of appellant numbered 2, 3, 5 and 6 were fully covered by instructions 9 and 10 given by the court. It is not error for the court to refuse to duplicate instructions, in fact the court should avoid multiplying instructions.
The next and last assignment of error for a reversal of the judgment was the giving of instruction number 16, which is as follows:
“If you believe from the evidence, beyond a reasonable doubt, that the defendant was of sound mind, and the killing was unlawful and felonious and done with malice aforethought, but entertain a reasonable doubt as to whether or not there was any premeditation and deliberation, then you should find the defendant guilty of murder in the second degree, and fix his punishment at imprisonment in the penitentiary for a period of not less than five nor more than twenty-one years. If, on the whole, you should entertain a reasonable doubt of the defendant’s guilt of either of the grades of homicide included in the charge, then you should find the defendant not guilty. ”
It is argued that there was no place in the case for the instruction, because the facts showed that he was guilty of murder in the first degree or nothing. This court ruled, in the case of Williams v. State, 50 Ark. 511, 9 S. W. 5, a case where the undisputed proof showed a deliberate killing and where the defense was insanity, that, “as there was ground'for a difference of opinion as to the insanity of the focused, under the evidence and the instructions of the court, the verdict will not be’ disturbed by this court for the want of testimony to support it.”
The instruction was favorable to appellant, and he is in no position to complain.
No error appearing, the judgment is affirmed. | [
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McHaney, J.
This suit was instituted by Clara M., Elizabeth Gr., Charles F., and John L. Frank, who are four of the children and heirs at law of John F. Frank, deceased, against Walter A. Frank and Leonora F. Boweii, a widow, two of the children and heirs at law of said deceased, and Amelia L. Bowen, Samuel Nash Bowen, Hughetta Bowen (non compos) children of said Leonora F. Bowen; Monroe C. Frank, a minor, son of said Walter A. Frank; Clara Belle and Harriette Amelia Frank, children of said John L. Frank, Harriette Amelia being a minor 20 years of age on November 6, 1926, according to the allegations of the complaint, without guardian; and Yivia W. Frank and Margaret F. Barrett, nee Frank, and R. B. Barrett, her husband, the widow and only child and heir at law of R. B. Frank, deceased, who was a son and heir at law of said John F. Frank, deceased, to quiet their title to certain lands conveyed to them under the will of said John F. Frank, deceased, and to secure a construction of said will and the effect of certain deeds executed' by. the beneficiaries under said will, and in pursuance thereof, each to the other, of the respective shares allotted to them under said will.
It is alleged in the complaint that all the parties, both plaintiffs and defendants, are nonresidents of this State, their respective residences being set out, showing that they are all residents of the State of Tennessee. It is further alleged that the plaintiffs are the owners in fee and in possession of the lands devised to them under the will of said John F. Frank,- and by virtue of the deeds aforesaid, but that the defendants named are contending that said -will and deeds did not convey a fee simple title and that the deeds undertook to convey a contingent remainder interest in said lands, which could not be alienated under the laws of Arkansas, because it was too uncertain as to time, the parties and interest, and that the deeds above mentioned were and are null and void.
The complaint was filed July 10, 1926, and, on the same day, an affidavit for warning order was also filed, which is in due form. On the same date the clerk of the court issued what is called a “warning order,” but which was in reality only a “notice of the filing of the petition describing the land and calling upon all persons who claim any interest in the land to appear in said court and show cause why the title of the petitioner should not be confirmed,” as required by § 8366, 0. & M. Digest.
On October 26,1926, the court made an order appointing F. F. Harrelson as attorney ad litem and guardian ad litem, and on the same day Mr. Harrelson, as guardian ad litem for Hughetta Bowen (non compos) and Harriette Amelia Frank, a minor, and as attorney ad litem for the other nonresident defendants, filed separate demurrers to the complaint, which were submitted to the court on the same day and sustained. On plaintiffs ’ declining to plead further, their complaint was dismissed for want of equity, from which is this appeal.
Section 8363 of 0. & M. Digest provides: ‘ ‘ Such person shall file in the office of the clerk of the chancery court of the county in which such land is situated a petition describing the land and stating facts which show a prima facie right and title to the land in himself, and that there is no adverse occupant thereof; and, if the petitioner has knowledge of any other person who has or claims to have interest in such lands, the petitioner shall so state, and such person or persons shall be summoned as defendants in the case. ’ ’
It will be seen that this section requires the plaintiffs or petitioners to name the persons he knows who claim any interest in the lands, and that such persons shall be served with summons in the case. The petition or complaint in this case names the persons claiming an interest, but there has been no service upon them. True, they are nonresidents, but they must be served as provided by law, § 1159, C. & M. Digest. By § 1162, C. & M. Digest, it is provided: “A defendant against whom a warning order has been made and published shall, upon completion of the publication of the warning order for the four weeks required by law, be deemed to have been constructively summoned upon the date of the making of the order.” Under § 1049 of the Digest, “A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon.” It will therefore be seen that the law requires two acts to .commence a civil action: (1) the filing of a complaint, and (2) causing a summons to issue to the defendants tliereon; and this court held, in the case of Boynton v. Chicago Mill & Lumber Co., 84 Ark. 203, 105 S. W. 77, that, although there is no statute governing in case of constructive service, by analogy a suit is commenced in such case only when a complaint is filed and an order is made by the clerk warning the nonresident defendants to appear. Until the warning order has been made and published for four weeks, as required by § 1160, there has been no service on the nonresident defendants, and this was not done in this case. Therefore the defendants were not in court, and the case was prematurely submitted to the court.
There is still another reason why the judgment in this case was prematurely rendered. By § 6261, C. & M. Digest, it is provided:
“ Before judgment is rendered against a defendant constructively summoned, and who has not appeared, it shall be necessary: 1. An attorney be appointed at least thirty days before the judgment is rendered, to defend for the defendant and inform him of the action and of such other matters as may be useful to him in preparing for his defense. He may take 'any steps in the progress of the action, except filing an answer, without its having the effect of entering the appearance of such defendant. The-attorney mhy be appointed by the clerk when the warning order is made, or by the court, and shall receive a reasonable compensation for his services, to be paid by the plaintiff and taxed in the costs.” Section 6262 is as follows: ‘ ‘ The attorney appointed pursuant to the last section shall be a regular practicing attorney of the court; and, before an order for his compensation is made,. he must make a written statement of all that he has 'done in the casé, which shall be signed by him and filed with the papers of the action.”
As will be seen, the appointment of the attorney ad litem, the filing of the demurrer and the order or-decree of the court sustaining it and dismissing the complaint all occurred on the same day. The object of the lawmakers in enacting § 6261 was to afford time and oppor t.nnity for the attorney ad litem to communicate with the nonresident defendants and advise them of the action against them, and § 6262 requires him to make a report or statement in writing under his signature of what he has done in the premises. We are of the opinion that, until the thirty days have expired after the appointment of the attorney ad litem, and he has made his report, the court is -without jurisdiction to take any affirmative action in the case. In other words, that a compliance with these sections of the Digest is mandatory and jurisdictional. Until they are substantially complied with, the court is without jurisdiction to make any final order affecting the rights of the nonresident defendants. The filing of the demurrers did not enter the appearance of the nonresidents. Henry v. Blackburn, 32 Ark. 445; and Bush v. Visant, 40 Ark. 124.
It necessarily follows that the decree of the court was premature, and must be reversed and remanded, with directions to take no action until the defendants are in court, and for further proceedings according to law and the principles of equity, and not inconsistent with this opinion. It is so ordered. | [
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