text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Woon, J.
Giving the evidence its strongest probative value in favor of the verdict and judgment, which we must do, the facts are correctly stated by counsel for appellee as follows:
J. W. Bush, plaintiff below, sued the Gibson Oil Company, appellant herein, in the Franklin County Circuit Court, to recover damages for the loss of a stock of merchandise and fixtures by fire on the evening of September 29, 1925, caused by an explosion of so-called coal-oil. The trial resulted in a verdict for the plaintiff for $3,000, the value of the property destroyed. Bush was engag-ed in the general mercantile business at Barling, in a building owned by J. W. Maddux. The Gibson Oil Company, with its principal office located at Fort Smith, was engaged in merchandising petroleum products at retail and at wholesale. Bush was a regular customer of the oil company, buying coal oil from it.
Barling is an inland village, ten miles from Fort Smith, on the Little Bock highway. Gibson delivers in its trade territory its products by means of trucks, and operates a number of them. A truck driver by the name of Ward traveled this particular territory. On Saturday afternoon, September 26, 1925, Bush telephoned to Gibson that he was out of coal oil and asked that a truck driver deliver a- barrel of oil to him that afternoon. At the time Ward was out on the road and not available, so Gibson detailed another truck driver, named Bell, to deliver the coal oil to Mr. Bush. Gibson’s storage tanks at the time were located just across the Arkansas Biver, at Moffett (sometimes called Alexander), Oklahoma. A man named Harvey Chaney was the employee in charge of the storage tanks, as well as a filling station which Gibson operated at Moffett at the time. It was the regular duty of Chaney or his helper to draw the coal-oil or gasoline from the storage tanks into the trucks. At the time Bell called for the coal oil in question, however, Chaney’s helper was absent, and Bell, preferring not to wait, Chaney being busy, drew the coal oil himself into a compartment of the truck operated by him. The trucks have three or four compartments for the convenience of hauling different commodities, coal-oil and gasoline, or gasoline of different qualities, without mixing them. Bell drew the coal-oil in question himself, drove his truck to Fort Smith, where he happened to meet Ward. Since it was a delivery to be made on Ward’s route and to Ward’s customer, the coal oil was transferred from Bell’s truck to Ward’s truck. The transfer was made by drawing the oil into five-gallon cans and then pouring into a compartment by hand in the other truck. Ward then delivered the coal oil, about 45 gallons, to Mr. Bush at Barling. This delivery was made by drawing the oil from his tank wagon into a five-gallon can and pouring the same into the barrel which was located in Bush’s store. He also, on the same trip, after delivering to Bush, delivered a quantity of the same coal oil to another customer named Henry Beard in Barling. All of this transaction took place on Saturday late in the afternoon.
On September 29, Tuesday evening, and shortly after dark, Balph Effert came to Bush’s store with an empty five-gallon coal-oil can, and called for coal oil. The coal-oil barrel was located on blocks about twelve or fifteen inches above the floor and toward the back end of the store. It was equipped with a faucet near the bottom of the barrel through which the coal oil was drawn. Bush placed the can under the faucet, and placed in the can and under the faucet a funnel, and began drawing the coal oil by permitting it to run through the faucet into the funnel and into the can in a small stream. The distance between the mouth of the faucet and the mouth of the coal oil can was just sufficient for the funnel. After starting the oil to drain in that manner, Bush stepped back toward the front of the building, behind the counter, and procured a match, and walked back to the coal-oil can. By the side of the coal-oil can were one or two cans of some kind, about eighteen inches in diameter; thereafter was another vessel of some kind, and next to that was a meat-box, making the meat-box five or six feet from the coal-oil can. Bush stopped beside the meat-box, which was about 18 inches from the floor, stooped over, and struck the match on the meat-box. Instantly, with the striking of the match, the explosion occurred, flashing flames of fire to the ceiling. It knocked Bush back across the store building a distance of 10 or 12 feet and over and against a stack of sacks of feed. In a moment the whole building was in flames. There were a number of men in the building at the time, but they were unable to save anything or do anything toward stopping the fire, with the result that the building, merchandise, and fixtures were all destroyed.
The complaint charges that the defendant negligently furnished a fluid containing gasoline or other combustible elements not properly in coal oil, and that the fluid furnished for coal oil did not meet the standard prescribed by law, and that it was negligence on the part of the defendant, when coal oil was ordered, to deliver this character of fluid, and that this negligence caused the loss.
After the fire Bush procured samples from customers who had bought oil from this barrel, and caused the same to be analyzed by Otto Y. Martin, a qualified chemist then operating a laboratory in Fort Smith, and found the flash test to be less than 60 degrees Fahrenheit, whereas the legal standard prescribed by the statute of Arkansas for coal oil fixes the flash test at 150' degrees Fahrenheit.
The case was submitted to the jury on the issues of the defendant’s negligence and the plaintiff’s contributory negligence, upon proper instructions of law by the trial court. The jury returned. the following verdict: “We, the jury, find for the plaintiff, and assess damages as follows: For loss of merchandise $3,000, with 6 per cent, interest from September 29, 1925. For personal injury, nothing. W. I. Wilson, foreman.” Judgment was entered for the plaintiff for the sum of $3,000, from which .judgment is this appeal.
1. The appellant contends that the evidence is not sufficient to prove that appellant was negligent as charged in the complaint, and also that the undisputed testimony proves the appellee’s injury and damage was caused by his own negligence. It is alleged in the complaint that the appellee bought of the appellant, at wholesale, kerosene oil, or what is commonly referred to by the trade as coal oil, for the purpose of selling same to his customers at retail, to be used in lamps for illuminating and other similar purposes; that such oil for such purposes is not highly combustible, but is perfectly safe for such uses; that the appellee, on the 26th of September, 1925, applied to the appellant to purchase kerosene, or coal oil, and that the appellant, instead of selling and delivering to the appellee the kind and quality of oil as requested by him, carelessly and negligently delivered to appellee, without appellee’s knowledge and consent, a highly gaseous and combustible fluid; that appellee, on the 29th of September, 1925, while waiting on a customer who wished to purchase kerosene or coal oil, drew from the barrel containing the substance so purchased from appellant a pail of oil; that, while exercising due care and caution for his own safety, a match was lighted at a perfectly safe distance from the oil, if the same had been coal oil or kerosene; that, when ■ the match was lighted, an explosion occurred and á conflagration resulted therefrom which destroyed appellee’s property to the value of $3,200 and caused an injury to appellee’s person to his damage in the sum of $10,000, for all of which appellee prayed judgment.
The appellant denied the allegations of negligence, and set up the affirmative defense of contributory negligence on the part of appellee.
Chapter 95 of Crawford & Moses’ Digest contains the law concerning the inspection of oils. The purpose of the law is to prevent, as far as possible, casualties of the character shown by this record, by requiring the owner, manufacturer, or wholesale dealer or jobber in any of the products of petroleum, by whatever name known, to be inspected according to the methods described in that chapter, and making it unlawful to sell any of the petroleum products mentioned in that chapter which, under the test therein prescribed, ignite or bum at any temperature less than 150 degrees Fahrenheit. See §§ 5900 to 5903, inclusive. On the issue of whether or not appellant was negligent, as raised by the pleadings, the pivotal question for decision is, did the appellant furnish the appellee a highly gaseous and combustible fluid, instead of kerosene or coal oil which had been properly tested as required by law? The burden was upon the appellee to prove the negligence as alleged in his complaint. Appellee, by his witness Chaney, endeavored to prove that the appellant was negligent in the manner of withdrawing kerosene and gasoline from appellant’s storage tanks into its tank wagons for delivery, by which the jury might infer that appellant delivered to the appellee gasoline, or kerosene mixed with gasoline, instead of kerosene or coal oil, which the appellee intended to purchase of the appellant at the time mentioned.
We deem it unnecessary to set forth in detail the testimony of witness Chaney on this issue. It suffices to say that the jury was justified in concluding from his testimony that the appellant was negligent on the occasion named in the manner of handling the gasoline and oil from its storage tanks to its delivery wagon, which made it possible for appellant to have delivered gasoline, or gasoline and kerosene mixed, instead of kerosene or coal oil, which the appellee intended to purchase. But learned counsel for the appellant argue, in effect, that the testimony of Chaney is so- conflicting and inconsistent in itself as to make it impossible to conclude from his testimony that gasoline could have been sold and delivered to the appellee instead of kerosene. In mailing this argument counsel have evidently overlooked the well-established rule of law that the weight of the evidence and the credibility of the witnesses is solely within the province of the jury. It was solely the province of the jury to reconcile any conflicts in the testimony of Chaney. They might accept any portion of his testimony which they believed to be true or reject any which they believed to be untrue, or about which the witness was mistaken. Certainly, under the above rule, it cannot be said that the testimony of Chaney did not warrant the jury in concluding that the appellant delivered to the appellee either gasoline or kerosene mixed with gasoline, instead of coal oil, as appellee alleged. But, even if the appellant was not negligent in the manner of handling gasoline and kerosene from its storage tanks to its delivery tanks, the ultimate fact still remains that, if the appellant actually sold and delivered to the appellee a highly gaseous and combustible fluid, instead of kerosene which had been tested as the law requires, and, if the explosion of such fluid was the proximate cause of the appellee’s injury and damage, then the appellant is liable.
The appellee testified that he took three samples of the oil which he purchased from the appellant, which were taken from the same barrel that the oil was being drawn from when it exploded, and had the same analyzed by Otto V. Martin. Otto V. Martin testified, and qualified as an expert in making tests of gasoline and kerosene. He made the tests of the oil brought to him by the appellee and by others for him. The oil thus tested by him flashed at less than 60 degrees Fahrenheit. Witness thought that the flash test for coal oil was 150 degrees F. and the burning point 114 degrees F. If coal oil is poured out on the floor and a match struck near it, it will not explode at normal temperature. If a match is thrown in a bucket of oil, the match will be put out. The flash test of 60 degrees is not below the flash test of gasoline. That is below zero.
Miss Fay Prescott testified that a can of oil was purchased from the appellee about twenty or thirty minutes before his store burned. She started to build a fire with it, as had been her habit, and it flashed up all at once in a great big flash; she did not put more oil in on this occasion than she did before, but it had not'been blazing up that way. Mose Christian testified that he bought some of this coal oil, and was trying to make a fire in the cookstove in the same way he had been in the habit of using coal oil before. He struck a match to it, and, before he got the match down to the wood, it flamed up, the flames coming up out of the stove and blowing one of the caps off the stove and bursting it. Two other witnesses besides the appellee testified that, when a match was struck by the appellee, there was a sudden flash and explosion which knocked appellee back several feet.
We have set out only the above excerpts from the testimony of these witnesses, but it is sufficient to justify the jury in finding that the oil purchased by the appellee from the appellant was a highly gaseous and combustible fluid, and that it did not conform to the test required by law for kerosene or coal oil. Such being the case, the appellant was negligent in selling such oil.
The next question is, whether or not the explosion resulting in the injury and damage to the appellee was caused or contributed to by the negligence of the appellee himself.
The appellee was enguged in the business of operating’ a store where there were no electric lights; he was in the habit of drawing coal oil from barrels into cans or containers for his customers after dark, and striking matches around such coal oil. This was the first explosion and conflagration that had ever occurred. The oil, on the occasion in question, was being drawn from the barrel as usual, the container being placed under the faucet of the barrel containing the oil, there being a space of three or four inches between the top of the can and the mouth of the faucet, and the oil being run from the faucet into the can through a funnel. The can to be filled with oil for the customer was a five-gallon can. After so placing the can and thus starting the oil to running from same into the can, the appellee went into the front part of his store to get a match, and immediately returned and struck the match on a meat-box, when the big flash and explosion occurred, which burned appellee on his hands and face and pushed him back- about ten or fifteen feet.
The above testimony of the appellee himself as to the manner of the explosion was' corroborated by the testimony of two witnesses who were in the store of appellee at the time and witnessed the occurrence. The testimony of Martin, the expert witness who testified on behalf of the appellee, was to the effect that if there was no artificial heat in the month of September inside of doors, coal oil or kerosene of the legal test being drawn in the manner above set forth would not ignite; that, if the oil ignited or exploded and caused a fire under the circumstances, “it would not be good coal oil — it would contain some volatile substance not found in legal kerosene. ’ ’
Dr. Sydney Born, who was an expert concerning the explosive qualities of kerosene and gasoline, testified for the appellant, and he stated, on cross-examination, that, if there be an explosion, there are some explosive elements in the air. Coal oil that would not burn under 140 degrees, in witness ’ opinion, would not have exploded. If the oil exploded i't contained explosive elements not in coal oil; it would not 'be dangerous ordinarily to strike a match within a foot of a can of coal oil. Witness did not think a can of coal oil would explode if a match were struck within six inches of it; if you spread out coal oil on a thin table it will burn; where there is no heat and no vapor arising, coal oil in a container meeting a test of 140 degrees does not vaporize, but it would if spread out.
It occurs to us that all reasonable minds would not necessarily come to the conclusion that the appellee was negligent in striking a match under the circumstances indicated; on the contrary, fair-minded men might very well differ in their conclusion as to whether striking a match under the existing conditions was an act of negligence. Such being the case, the issue of contributory negligence was one for the jury. See Coca Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856. On the issues of both negligence and contributory negligence, the doctrine announced in Pierce Oil Corporation v. Taylor, 147 Ark. 100, 227 S. W. 420, and Goode v. Pierce Oil Corporation, 171 Ark. 864, 286 S. W. 1009, is applicable likewise to the facts of this record.
In Ashcraft v. Jerome Hardwood Lbr. Co., 173 Ark. 135, 292 S. W. 386, we said: “The court is never justi fied in directing a verdict except in cases where, conceding the credibility of witnesses, and giving full effect to every legitimate inference that may be deduced from their testimony, it is plain that the party has not made out a case sufficient in law to entitle him to a verdict and judgment thereon.”
See also Mo. Pac. Ry. Co. v. Berry, 172 Ark. 729-738, 290 S. W. 942. The court therefore did not err in submitting the issues of negligence and contributory negligence to the jury.
2. The appellee was asked, while on the witness stand, by counsel for the appellee the following question: “Did any of the employees of the Gibson Oil Company instruct you that they were selling you something that was dangerous to use sulphur matches around? ” To the above question counsel for the appellant interposed the following objection: “We object, because there was no duty on the employees of defendant to instruct plaintiff, and there is no allegation of negligence for failure to instruct.” The court overruled the objection, and the witness answered the question in the negative. Appellant duly excepted to the ruling of the court in permitting witness to answer.
A witness for the appellant, over the objection of the appellee, testified that he was in the employ of the Gibson Oil Company; that the Gibson Oil Company received a carload of oil purchased by it from the Transcontinental Oil Company during the month of August. This car of oil was identified as the oar from which the oil that caused the explosion was taken. Witness stated that he paid for the car with a check, and wrote a check to the State Inspector for inspecting it. These checks were written on the Gibson Oil Company. The witness exhibited a bill of lading for the carload of oil. The witness did not make out the bill of lading and knew nothing about it, except what it showed on its face. The witness did not testify that he saw the State Inspector make the inspection.
The above testimony was only in the nature of secondary evidence to the fact that the oil was inspected. The primary and best evidence of the fact, if it were a fact, that the oil was inspected, would have been the testimony of the inspector who actually made the inspection. No proper foundation was laid for the introduction of the above testimony. It was not shown that the testimony of the inspecting officer could not be obtained. Therefore the court erred in permitting the above testimony. But, even if we are mistaken, and if such testimony were sufficient to prove that the oil was inspected, it is not sufficient to show that the oil was of the grade and quality required by the statute before the same could be sold. There is therefore no competent testimony in the record that the oil which exploded was oil that had been tested and found to be of the standard required by law. The affirmative testimony in the record was to the effect that the oil did not conform to the test required by law and that it was a highly gaseous and combustible fluid. Therefore, in the absence of proof to the contrary, appellant must be held to have known that it was selling to the appellee, instead of kerosene, gasoline, or some other highly explosive and dangerous fluid. Appellant also must be held to have known that the appellee did not know that the oil he was purchasing from the appellant was gasoline, and not kerosene. It was the duty of the appellant, under these circumstances, to inform the appellee that he was really purchasing gasoline or some other highly explosive and combustible fluid bef ore thus subjecting him to the dangers incident to the handling of such commodity. The plain dictates of humanity and due consideration for the rights of others in the interest of life and property demanded no less of appellant. The appellant’s cause of action, under the allegations, and' proof in the case, clearly sounded in tort, and we are convinced that the court did not err in allowing the question to be propounded to the appellee and in allowing him to answer the same. It tended to elicit testimony relevant to the issue of negligence and also to the issue of con tributory neglig'ence. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, at page 179, 29 S. Ct. 270, 53 L. ed. 453, and eases there cited. See also, 25 C. J. 189.
3. The contention of the appellee that the verdict is inconsistent because the jury did not find damages also for appellee’s personal injury, is -without merit. The appellee is not complaining on this account, and certainly the appellant is not in an attitude to complain. As we said in Mo. Pac. Ry. Co. v. King, 167 Ark. 335, 268 S. W. 595, “The fact that the verdict is for a less amount than the evidence warranted, and may appear to be inconsistent on that account, does not call for a reversal, for the appellees are not complaining.”
There is no reversible error in the record, and the judgment is therefore affirmed. | [
48,
-21,
-24,
-116,
8,
96,
10,
58,
36,
-61,
117,
83,
-35,
-53,
13,
109,
-21,
29,
-43,
106,
-41,
-77,
3,
-42,
-110,
51,
57,
-57,
48,
75,
-11,
85,
76,
48,
-54,
-99,
34,
-64,
-59,
92,
-114,
4,
-7,
-24,
85,
-112,
38,
59,
36,
75,
97,
-121,
-61,
42,
92,
-61,
109,
46,
111,
40,
-55,
120,
-54,
22,
-27,
20,
-128,
2,
-72,
35,
-40,
62,
-112,
-80,
64,
-88,
115,
-76,
-62,
-12,
37,
-115,
8,
-94,
102,
51,
28,
-27,
-23,
-88,
15,
-97,
-115,
-89,
50,
56,
-127,
105,
-97,
28,
127,
16,
23,
122,
-8,
85,
125,
104,
7,
-117,
-42,
-93,
15,
41,
28,
27,
-17,
-93,
52,
85,
-51,
-78,
93,
69,
126,
-97,
-117,
-80
] |
Humphreys, J.
Appellant brought suit on October 27, 1941, in the chancery court of Craighead county, Western District, against appellee alleging ownership of: northwest quarter, southwest quarter of section four, township fourteen north, range two east, in Craighead county, Arkansas, and prayed for cancellation of a deed as a cloud upon her title which was executed by the commissioners of the Cache River Drainage District on the 5th day of January, 1939, to appellee.
She alleged ownership of said land under and by virtue1 of a tax title deed executed to her by the commissioner of state lands of the state of Arkansas on the 23rd day of January, 1939.
Appellant offered, on cancellation of the drainage district deed to appellee, to do equity by paying all the sums the court might decree as due and payable to appellee.
Appellee filed an answer denying the validity of the tax title deed relied upon by appellant as the basis for ownership of said land and asserting ownership thereof under and by virtue of a valid deed thereto from said drainage district and, by way of1 cross-complaint, prayed for cancellation of appellant’s tax title deed as a cloud upon his title to said land.
On February 18,1942, the cause was submitted to the trial court upon the pleadings and lengthy written stipulations of the parties as to the facts from which the court found that said land originally belonged to and was the property of O. F. Way land, and that said land was and is within the boundaries and was assessed for the benefit received from the construction of Cache River Drainage District and was subject to assessment benefits therefor; that the installment of assessment benefits due said drainage district for the year 1927 against said lands became delinquent and the said lands were sold to said drainage district on December 31, 1927, pursuant to chancery court proceedings which were duly approved and confirmed by the court, and that a deed was issued by the commissioner of the court to the ’Cache River Drainage District on January 2, 1928, pursuant to the decree of foreclosure and order of sale of said property; that thereafter, until January 5, 1939, the date the lands were sold and conveyed to appellee, H. J. Sternberg, said lands were owned by the said drainage district in its governmental capacity as a governmental agency and were exempt from assessment and payment of state and county taxes; that the assessment of said lands for state and county taxes for the year 1928, and the purported forfeiture and sale of the lands to the state of Arkansas for the taxes for the year 1928 and the tax deed dated January 23, 1939, executed by the Commissioner of State Lands to appellant were void and should be canceled; that, appellee, H. J. Sternberg, tendered into court the amount of the state and county taxes paid by appellant on said lands for the year 1939.
The court by its decree based upon such findings canceled the tax title deed and confirmed in appellee the title to the lands acquired under his deed from said drainage district and canceled all the proceedings concerning the assessment, sale and forfeiture of said lands to the state of Arkansas for the year 1928, and the deed made pursuant thereto to appellant, dated January 23, 1939, together with all his costs.
From this decree appellant has duly prosecuted an appeal to this court. The trial court correctly found from the undisputed facts that the lands involved were sold unde» foreclosure proceedings on December 31, 1927, and deeded to Cache River Drainage District on January 2, 1928, for the drainage tax due said district thereon for the year 1927. We do not find anything in the record showing that the lands in question were ever redeemed from this foreclosure decree, and, therefore, the lands remained the property of the Cache River Drainage District until it sold them to H. J. Sternberg on January 5, 1939. This court has ruled that when a drainage or improvement district acquires title to lands before the lien for state and county taxes becomes fixed, they are exempt from taxation or assessment for state and county taxes as long as the lands remain the property of said district as during that time they are held by the drainage or improvement district- as a governmental agency and for governmental purposes. This rule is sustained by the cases of Miller v. Henry, 105 Ark. 261, 150 S. W. 700, Ann. Cas. 1914D, 754; Robinson v. Ind.-Ark. Lbr. Co., 128 Ark. 550, 194 S. W. 870, 3 A. L. R. 1426; Crowe v. Wells River Savings Rank, 182 Ark. 672, 32 S. W. 2d 617; and Little Red River Dr. Dist. No. 2 v. Moore, 197 Ark. 945, 126 S. W. 2d 605. Under the rule thus announced the lands were not subject to be assessed for state and county taxes for the year 1928 and were erroneously forfeited and sold to the state and appellant acquired nothing from the state under her deed of date January 23, 1939.
Appellant contends, however, that the lands in question were redeemed from the foreclosure decree in favor of the Cache River Drainage District and argues that there was a redemption of said lands shown by a notation on the chancery decree record of said decree of fore closure, which, notation is as follows: “W% E% NW%> 7-26-29, redeemed by U. F. Wayland; N% W% NW]4> 7-26-29, redeemed by O. F. Wayland.”
The record reflects that O. F. Wayland owned a number of tracts of land in the drainage district, but the notation above relied upon does not include the lands in question, but does show redemptions of some other lands that; were owned in said district by O. F. Wayland.
The delinquent improvement district of the Western District of Craigiiead county, Arkansas, for the delinquent tax due Cache River Drainage District in the year 1927 appearing in this record shows that the lands redeemed by O. F. Wayland were lands in the northwest quarter of section four, township fourteen north, range two east and not the lands involved in the. suit before the court, which are described as the northwest quarter of the southwest quarter of section four, township fourteen north, range two east.
We think the trial court was correct, under these circumstances, in the short opinion he wrote in this case on page 17a of the transcript in the case, which opinion is as follows: “After an examination of the record, briefs and arguments in the cause I deem it unnecessary to enter into a lengthy discussion of the cause. It is well settled by the decisions of our court that there can be no delinquency for state and county taxes while the title to the land is in an improvement district. In this ease it is undisputed that prior to the forfeiture to the state the lands were hold by the drainage district under a sale by it for delinquent taxes.
“Contention is made that after the decree in favor of the district the owner of the land at the time redeemed the same. A notation of the clerk is presented. The notation is in form and fact an interlineation upon the record purported to have been made by the clerk of the court. However, this interlineation does not describe any land and will not therefore be considered. There is no positive showing that the land involved in this suit was redeemed. ’ ’
The decree of the trial court is, therefore, affirmed. | [
-10,
108,
-76,
76,
-72,
-64,
10,
-119,
91,
-87,
101,
83,
-17,
11,
0,
9,
-29,
61,
101,
121,
-25,
-78,
83,
66,
18,
-77,
89,
71,
-6,
-35,
-12,
-42,
76,
49,
74,
21,
66,
-94,
-49,
-100,
70,
2,
-101,
109,
89,
66,
56,
43,
48,
15,
117,
-74,
-14,
45,
53,
107,
73,
46,
107,
46,
80,
122,
-70,
-59,
95,
7,
1,
-59,
-102,
-63,
-24,
-70,
-112,
48,
8,
-56,
115,
-90,
-106,
116,
12,
-103,
8,
32,
98,
11,
36,
-25,
-84,
-120,
6,
-2,
13,
-90,
-62,
24,
90,
105,
-65,
-99,
124,
-48,
-50,
-14,
109,
-123,
95,
108,
-125,
-18,
-44,
-77,
-123,
-68,
-119,
3,
-5,
31,
48,
116,
-49,
-30,
92,
-57,
51,
27,
-114,
-48
] |
Humphreys, J.
This is an appeal from a judgment of $3,000 rendered in the circuit court of Izard Oounty in favor of appellee against appellants for a commission on exchanging 600 acres of land owned hy appellants near Jacksonport, Jackson County, valued at $30,000, for a 200-acre tract valued at $10,000, a stock of goods valued at $15,267.73, and cash and notes amounting to $4,732.27 owned by Garner Brothers. Appellee alleged that he was to receive as a commission one-third of any excess above $17,000, the cash price agreed upon between appellants and appellee for their 600-acre tract, which appellants might realize upon the property received by them in exchange for said 600-acre tract, and that, as they gained a net profit of $9,000 over and above $17,000 out of the property received by them, it would entitle him to $3,000 as his part of the profit.
Appellants filed an answer, denying that such a contract was made and that any profits had accrued to them out of the property they received above the cash value of their 600-acre tract, which was fixed at $17,000.
Appellee testified, in substance, that, while selling out a stock of goods in Calico Bock, for which he had traded, he was informed by Garner Brothers that they would like to trade their stock of goods for land; that he mentioned it to W. B. Headstream, who informed him that appellants had land for sale or exchange; that he and Headstream approached J. B. Fitzhugh concerning the trade, and was told by him that he and A. K. Goodnight had 600 acres in the White River bottom for which they wanted $17,000 in cash, and that, in case of exchange, they would have to receive that much net; that they entered into a contract with J. B. Fitzhugh by which he priced the 600-aere tract to them at $17,000, in case they should effect an exchange with Garner Brothers, and to split the profits above $17,000 three ways, one-third to each, and that they should have until the spring of 1926 to work out the profits on the Gamer stock of goods; that the money to be split three ways was net profit that should be made out of the deal above $17,000 which appellants were to first receive for the 600-acre tract of land; that he spent about ten days endeavoring to make the exchange, and, just before it was completed, and while hanging fire on the price of the Delco plant, he was called to Texas on business; that he had priced the 600-acre tract to Garner Brothers for $30,000, which they were willing to give, provided appellants would allow them $10,000 for 200 acres of land they owned in Oil Trough bottom, ninety cents on the dollar on the wholesale price of their stock, $700 for cash register, $700 for safe, $400, less ten per cent., for a Delco lighting system, and fixtures at ten per cent, less than catalogue prices; that J. B. Fitzhugh was objecting to the price of the Delco plant, which was seemingly the only hitch in the deal, when he left for Texas; that Fitzhugh sent him word that he did not want him in the store, and proposed to pay him wages for his services, which he refused to accept; that Fitzhugh made objection to paying $10,000 for the 200-acre tract in Oil Trough bottom, but, before he left, he agreed to allow that in the trade, with the understanding that, between themselves, in settlement of the commission that should be valued at $6,000; that, on Tuesday after he left for Texas, appellants closed the deal with Garner Brothers on practically the same basis that they had figured on; that he was entitled to $3,000 as his part of the profits for his services, in which he estimated the prices fixed on the several properties involved in the trade.
The written contract between appellants and Garner Brothers was introduced in evidence, and is as follows:
“This agreement, by and between J. B. Fitzhugh and A. K. Goodnight, party of the first part, and J. T. and A. B. Garner, party of the second part, witnesseth: That said Fitzhugh and Goodnight agree to make and deliver to the ¡said J. T. ¡and A. B. Garner their warranty deed, with abstract showing good and merchantable title to all the land owned by them in what is known as and called Mason Bend, near Jaeksonport, in Jackson .County, Arkansas, and containing 600 acres, more or less, and also all the land owned by the said Fitzhugh and Goodnight in the town of Jaeksonport. The agreed price for all of said land is $30,000. The said J. T. and A. B. Garner agree to give and deliver to the said Fitzhugh and Goodnight a warranty deed to what is known a.s and called the Lewis Marlow farm, in Oil Trough bottom, Independence County, Arkansas, coartaining 200 acres, more or less, and now owned by the said J. T. and A. B. Garner, and being all the land owned by them in Oil Trough bottom, the. agreed price for said land is $10,000, and they also agree to transfer to the said Fitzhugh and Goodnight their stock of merchandise in their store building at Calico Bock, Izard County, for 90 cents on the dollar of actual wholesale cost; a safe to be valued at $700; a cash register to be valued iat $700 net; a Deloo lighting system valued at $400, less 10 per cent. All usable fixtures to be valued at 10 per cent, less than catalogue prices. And the said J. T. and A. B. Garner are to pay the difference between their land and merchandise and fixtures and the land conveyed to them by the said Fitzhugh and Goodnight, in cash, or ¡a note satisfactory to the said Fitzhugh and Goodnight. The merchandise and fixtures are to be invoiced at once, and the deeds and transfers to he perfected and exchanged within fifteen days, unless delayed by some unavoidable occurrence.
“Signed in four copies, this 23rd day of June, 1926.
(Signed) “Fitzhugh & Goodnight,
“By J. B. Fitzhugh.
“J. T. & A. B. Garner,
“By J. T. Garner.”
Appellants introduced testimony tending to show that the contract entered into between them and Garner Brothers was materially different from the one which appellee attempted to negotiate before he left for Texas, and that, after he failed to consummate the deal and had abandoned further effort to effect same, he agreed to drop out and accept wages for his services.
In the course o'f trial appellants offered to prove that the stock of goods received from Garner Brothers was being disposed of at retail, and that the indication was that they would not sell for enough to make any profit aibove $17,000, and that there was no wa}r to ascertain the profits above $17,000 until the stock was disposed of. The court excluded this evidence, over the objection and exception of appellants, and refused to give the following instruction requested by appellants, to-wit:
“If you find from the evidence that it is impossible to determine at this time what, if any, profit the defendants made on the sale of the farm, your verdict should be for the defendants.”
To which refusal of the court to give said instruction appellants duly excepted.
We think this evidence admissible, and the instruction should have been given. The gist of the complaint was that appellee was to receive as his commission for making the deal one-third of any profits to be derived out of the property received from Garner Brothers above $17,000, which amount appellants were first to receive for their 600-acre tract of land. Appellee testified that he was to receive his pay out of the profits to be derived from tlie sale of tlie stock uf goods, and that he and H'eadstream were to have until the spring of 1927 to work the profits out of the stock of goods. According to the allegation of his complaint and his own testimony, the burden was upon him to show a profit was made above $17,000 out uf the property received from Garner Brothers.
The cause 'should have been sent to the jury upon the grounds as to whether 'Such a contract as alleged was made, and, if 'so, whether any profits above $17,000 had been derived by appellants out of the property received from Garner Brothers in exchange for the 600-acre tract.
On account o'f the error indicated the cause is remanded for a new trial. | [
-9,
108,
-3,
-100,
26,
-32,
8,
-78,
75,
-95,
118,
115,
-7,
-42,
17,
57,
-25,
77,
85,
106,
-28,
-77,
19,
115,
-103,
-13,
-15,
-35,
-76,
78,
-27,
-42,
77,
48,
74,
17,
-58,
-30,
-51,
28,
-114,
33,
57,
108,
-35,
66,
56,
45,
20,
75,
53,
-122,
-5,
44,
25,
-29,
73,
46,
-23,
41,
-39,
-8,
-70,
-49,
31,
15,
16,
117,
-104,
3,
-56,
126,
-112,
49,
8,
-23,
115,
-90,
-58,
-12,
11,
-103,
8,
38,
39,
0,
-63,
-49,
-88,
-24,
14,
-2,
-119,
-89,
-112,
88,
74,
-56,
-67,
-100,
124,
80,
-121,
116,
-20,
13,
-35,
108,
3,
-113,
-108,
-93,
-115,
60,
-104,
19,
-29,
15,
48,
81,
-49,
-30,
93,
69,
48,
-97,
-98,
-101
] |
Smith, J.
This case is similar to and is controlled by the opinion in .the case of Mosaic Templars of America v. Beam, 147 Ark. 24, 226 S. W. 525.
In 1915 Lizzie Moore was initiated into and became a member of a subordinate lodge of the Mosaic Templars of America, a fraternal benefit life association, and a benefit certificate was issued to her in the sum of $300, payable at her death, if the certificate was then in force, to' the beneficiaries there named. The certificate was kept in force by the payment of the monthly assessments against it until 1925, at which time, the health of the member failed, and she entered into a contract with Rena Miller, whereby she assigned a two-thirds interest in the certificate to the said Rena Miller upon condition that the said assignee would take care of her during the remainder of her life and pay the assessments upon the benefit certificate. The insurance society was advised, of this assignment, and thereafter received from Rena Miller the monthly assessments until the date of the death o.f the insured, which occurred March 16, 1926.
When proof of the death of the insured was furnished, it appeared that Rena Miller was not related to the insured in any degree which permitted her to become a beneficiary under the provisions of § 6074, C. & M. Digest, which reads as follows:
“The payment of death benefits shall be confined to wife, husband, relative by blood to the fourth degree, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepchildren, children by legal adoption, or to a person or persons dependent upon the member, or his or her estate; provided that if, after the issuance of the original certificate, the member shall become dependent upon an incorporated charitable institution, he shall have the privilege, with the consent of the ■society, to make such institution his beneficiary. Within the above restrictions each member shall have the right to designate his beneficiary, and, from time to time, have the same changed in accordance with the laws, rules or regulations of the society, and no beneficiary shall have or obtain any vested interest in the said benefit until the same has become due and payable upon the death of the said member; provided, that any society may, by its laws, limit the scope of beneficiaries within the above classes.”
The section quoted was enacted as § 6 of the act of March’28,1917, (act 462, volume 2, Acts 1917, page 2087), entitled “An act pertaining to the regulation and incorporation of fraternal beneficiáis associations, societies or orders, and other matters pertaining thereto * * The section quoted was amended by act 13 of the Acts of 1927 (Acts 1927, page 37), but the eligibility of Rena Miller as a beneficiary was not affected by the amendatory act.
The ineligibility of Rena Miller being made to appear, the insurer paid the amount of the certificate to the beneficiaries named in the certificate, after declining to pay 'any portion thereof to the said Rena Miller, who thereupon brought this suit, and in the trial below, which occurred in the chancery court, she recovered a decree for the portion of the certificate which had been assigned to her.
It is insisted, for the reversal of the decree of the court below, that the fraternal association could not consent to an assignment of the certificate to a person ineligible to become a beneficiary under the statute quoted, and that the assignment thereof was-therefore nugatory.
Legislation very similar and in many respects identical with the act of 1917 has been enacted in a number of the States, and the legislation has been uniformly upheld.
At § 214 of Bacon on Life & Accident Insurance (4th ed.), vol. 1, page.371, it is said:
“'Benefit societies differ from other mutual insurance organizations in that their charters generally impose restrictions upon the issue of certificates by limiting the persons who may be beneficiaries of the members to those who are heirs, relatives or dependents of such members. Wherever these restrictions are imposed by statute, or contained in the charter of the society, it has no power to pass beyond them by issuing 'a certificate in which any one other than of the specified classes is beneficiary. The Court of Appeals of Kentucky early established this doctrine when it said: ‘ The charter prescribes who may become members of the company and their obligations, and who shall be the beneficiaries of the membership 'after the death of the member, and it is not in the power of the company or of the member, or of both, to alter the rights of those who by the charter are declared to be the beneficiaries, except in the mode and to the extent therein indicated’.”
It would appear therefore that the association properly refused to pay the portion of the certificate assigned to appellee, Rena Miller, but for the fact that the certificate here sued on was originally issued, before the passage of the act of 1917, appearing as § 6074, C. & M. Digest, supra. The case of Mosaic Templars of America v. Bean, supra, and that of Mosaic Templars of America v. Crook, 170 Ark. 474, 280 S. W. 3, held that the statute was not retroactive, and did not apply to certificates issued before its passage. In the Bean case, supra, it was said:
< ‘ The record shows that the plaintiffs are not in any of the classes permitted by the statute to be made beneciaries. Therefore counsel for the defendant contend that the plaintiffs cannot recover on the benefit certificate sued on because the statute in question became a part of the contract of insurance, 'and there is no power to make a beneficiary one who is not within any of the classes designated by the statute. Counsel rely upon the rule laid down by the Supreme Court of Minnesota in Logan v. Modern Woodmen of America, 137 Minn. 221, 163 N. W. 292, and cases cited in the opinion. We need not decide upon the correctness of the rule announced in those cases, for we are of the opinion that the statute relied upon has no application under the facts of the present case. The benefit certificate sued on was issued prior to the passage of the act. So far as the record discloses, at the time the benefit certificate was issued the member had the right to change the beneficiary to the plaintiffs, and this right or privilege was recognized by the grand scribe of the order, in 1919, at the time the change of beneficiaries was made.”
What was there said is equally applicable here, and, as a recovery by an assignee was sustained there, a similar recovery must be sustained here, and it is so ordered. The decree is therefore affirmed. | [
-80,
124,
-44,
-4,
8,
-16,
42,
-70,
82,
-64,
37,
83,
-23,
-22,
21,
111,
-23,
45,
81,
97,
-10,
-77,
23,
8,
-46,
-13,
-79,
-57,
-79,
93,
-25,
-36,
76,
32,
42,
-59,
-26,
-118,
-63,
17,
86,
14,
-118,
-27,
-39,
81,
48,
-25,
-110,
-51,
101,
-34,
-93,
45,
4,
70,
44,
40,
125,
-87,
64,
-71,
-113,
4,
-21,
31,
51,
5,
-68,
-85,
-56,
14,
24,
17,
72,
-64,
83,
-74,
94,
116,
123,
-103,
4,
112,
102,
-127,
84,
-19,
-112,
-104,
-81,
38,
-99,
7,
-106,
121,
51,
14,
-67,
-35,
79,
4,
-90,
120,
-10,
93,
93,
-96,
29,
-113,
-42,
-127,
-51,
-8,
-72,
-121,
-1,
-121,
50,
81,
-56,
98,
93,
99,
120,
-103,
-113,
-54
] |
Holt, J.
Grace Thompson, appellee, was the mother of Inez Nelson Cabe, wife of Jim Cabe. Inez Cabe died June 6, 1940, in the home of her mother in Luxora, Arkansas.
September 9,1940, Grace Thompson sued appellants, undertakers, alleging in her complaint, that appellants, by false representations, had secured the body of her deceased daughter for burial and had unlawfully retained possession for a period of seven days, over appellee’s protest; that during this time the body deteriorated and was mutilated while in appellant’s possession, and that she was deprived of the opportunity to give her daughter’s body a Christian burial, and there was a prayer for damages. Appellants answered with a general denial and specifically pleaded as a defense an earlier suit filed by appellee as being res judicata of the issues in the present suit. Appellants also filed a cross-complaint in which they sought judgment for $40 for services alleged to have been rendered in removing the body from appellee’s home and preparing it for burial. A jury trial resulted in a verdict for appellee in the amount of $140 and for appellants on their cross-complaint in the amount of $40. This appeal is from the judgment awarded appellee. There is no appeal from the judgment on the cross-complaint.
For a reversal, appellants contend, first, that appellee, Grace Thompson, was not the proper party to bring the suit; second, that the issues here were decided in an earlier suit between the same parties and that their plea of res judicata should have been sustained, and, third, that there was error in giving and in refusing to give certain instructions.
Appellants’ first contention that appellee was not the proper party to bring the suit can not be sustained for two reasons.
(1) The facts are that appellants did not raise this point either by demurrer or in their answer. During the trial of the cause, after the testimony of the parties had been concluded and while the court was instructing the jury, appellants for the first time questioned appellee’s authority to bring the suit.
The rule is well settled that the question of defect of parties must be raised either by special plea or in the answer, and that it is too late to attempt to raise this question at the end of the trial, as in the instant case. In Tipton v. Phillips, 176 Ark. 308, 4 S. W. 2d 507, this court said: “The question of defect of parties was not raised by the appellant in its answer, nor by special plea for that purpose. A defense of defect of parties should be raised by answer or by special plea to that effect at the beginning and not at the end of a lawsuit.” Section 1411, Pope’s Digest, provides: “The defendant may demur to the complaint where it appears on its face that the plaintiff has not legal capacity to sue,” and § 1414 contains this provision: “When any of the matters enumerated in §1189 (§ 1411, Pope) do not appear upon the face of the complaint, the objections may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action.”
We are also of the opinion that appellee, on the facts presented, was the proper party to bring the suit. While it appears that appellee’s daughter, Inez Nelson Cabe, was married at the time of her death, she had spent the greater part of the last year of her life in the home of her mother. During her last illness she was in her mother’s home and was administered to and provided for by her mother. During all of her illness, which resulted in her death, her husband manifested not the slightest interest in his wife’s welfare, made no inquiry or provisions for her, did not visit her and in fact there was no evidence in this record that he even attended the funeral. Under these circumstances we think it clear that the husband, as surviving spouse, waived any rights to custody, burial and other legal disposition of his wife’s body, that he may have had. The general rule as to the rights of the surviving spouse is stated in American Jurisprudence, vol. 15, p. 834, § 9, in this language: “It is generally conceded that on the death of a husband or a wife, the primary and paramount right to possession of the body and to control the burial or other legal disposition thereof is in the surviving spouse, . . . The right of a surviving spouse to control the burial is.dependent on the peculiar circumstances of each case, and may be waived by. consent or otherwise,” and in footnote 11, in support of the text, the author says: “Where the wife is not living with her husband at the time of his death or neglects or refuses to assume the trust incident to her right, a waiver of that right is implied and the right and duty immediately descends to the next of kin present and acting. In the case of a dead body needing burial, the right of the spouse must be promptly asserted, or the right to possession of the body for the purposes of interment will be held to have been waived in favor of the next of kin. Southern L. & Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161 (writ of certiorari denied in 213 Ala. 413, 105 So. 168) citing E. C. • L. ’ ’ In the opinion in the Morgan case it is said: “From a reading of all the decisions from the American courts, it seems to be the law: (1) A dead body is not property in the common commercial sense of that term, and subject strictly to the laws of descent and distribution; (2) that the person having charge of a dead body for burial is in the exercise of a sacred trust for all who may, from family ties or friendship, have an interest in the remains; (3) that the right of possession for burial is a legal right coupled with certain duties which the court will protect and that an unlawful interference with' these rights is a basis for suit for damages; (4) that, in case of a husband and wife, the right of possession is in the surviving spouse, provided the husband and wife were living together at the time of the demise; (5) that the absence of the spouse, or his or her failure or refusal to act, has the effect of transferring the right of custody and duty of trusteeship to the next of kin in succession. (1) (2) (3) (4), supra, are, we think, supported by the weight of authority in the adjudicated cases. (5) is based upon the traditions, customs, and the necessities incident to a proper respect for the dead and the case of Wright v. Hollywood Cem. Corp., 112 Gra. 884, 38 S. E. 94, 52 L. R. A. 621. . . . The dead man had been living with his father as a member of the family for some months before his death. Though he was sick and died, his wife never came or communicated or showed any interest in him. It therefore seems certain that they were not living together, and, if not legally separated, the facts would disclose a waiver of any rights as to the custody of the body which-she may have had.”
(2) Appellants’ contention that an action brought by appellee prior to the institution of the present suit is res judicata of the issues here, we think is untenable. On this point the record reflects that on June 12, 1940, prior to the institution of the instant suit on September 9, 1940, appellee filed in the circuit court for the Cliickasawba district of Mississippi county a “petition for injunction” against appellants, asking that they be enjoined from further interference with appellee’s right to the custody of the body of her deceased daughter for the purpose of preservation and burial. No summons was issued on this petition. No response or answer was filed by appellants. No issues were joined. No testimony was heard, but on the same day the petition was filed the court made the following order: “Order of injunction. To the Teasley & Cobb Undertaking Co.: You are hereby enjoined from any and all further interference in the right of the plaintiff herein to the custody of the body of the plaintiff’s deceased daughter and from any and all further interference in the proper Christian burial of the same. Witness my hand and seal of this court this the 12th day of June, 1940. Neil Killough, Judge.” This order was placed in the hands of the sheriff and served on appellants and the body of appellee’s deceased daughter was turned over to appellee in compliance with the order. No further proceedings were had until the filing of the present suit almost three months later.
From the record, therefore, it is clear that the issues joined in the present suit were not raised in the injunction proceedings, supra, and no issues were tried in that action. In fact appellants were not even in court in the injunction proceedings since they were never summoned and did not appear.
Before appellants may successfully sustain the defense, that the former injunctive proceedings between the parties here were res judicata of this action, it is essential that they show that the parties and the issues in both actions were the same. Clearly, appellants have failed to make this showing.
(3) Finally, appellants argue that the trial court erred in refusing a certain instruction requested by appellants and in giving another at the request of appellee. We think it can serve no useful purpose to set out these instructions here. It suffices to say that after a careful examination of them it is our opinion that no error appears in this cpnneetion.
Finding no error, the judgment is affirmed. | [
-80,
-20,
-60,
45,
43,
-47,
-30,
-70,
-46,
-93,
-91,
83,
-85,
-58,
72,
47,
107,
61,
87,
105,
-13,
-77,
23,
36,
122,
-45,
-103,
-41,
58,
-51,
-91,
-36,
76,
32,
-18,
-59,
66,
-54,
-47,
120,
12,
16,
-54,
-20,
-39,
82,
48,
-5,
54,
7,
-43,
-66,
-77,
40,
63,
-61,
109,
46,
123,
60,
92,
48,
-86,
-123,
95,
22,
-79,
36,
-100,
-89,
-8,
112,
-112,
53,
40,
-32,
114,
-74,
-110,
84,
67,
9,
12,
114,
102,
35,
-19,
-25,
56,
-104,
14,
-66,
29,
-89,
-104,
49,
65,
73,
-98,
-67,
120,
-128,
63,
116,
-2,
85,
92,
-88,
9,
-49,
-42,
-79,
-105,
-88,
-100,
35,
-29,
33,
52,
117,
-35,
-22,
92,
71,
125,
-45,
-122,
-46
] |
Mehaeey, J.
Sam Henson and E. H. Caple each applied to the chancellor, J. M. Futrell, for a discharge of each petitioner from custody and imprisonment by the sheriff of Craighead County. It is stated that each of the petitioners was convicted in the municipal court- on the 25th day of April, 1927, ón a charge of having permitted their stock to run at large in an alleged stock-law district comprising a number of townships in Craig-head County. It is alleged -that each of them wehe fined $5 and costs, and that, upon failure to pay said fine and costs, a commitment was issued, directing the constable to take petitioners into custody and place them in the Craighead County j'ail.
The sheriff and constable waived service, and the case was tried, and the chancellor refused to discharge the petitioners, and remanded them back into the custody of the sheriff.
•It is alleged that petitioners were being unlawfully imprisoned, because they say that the alleged stock-law district was not legally created and established.
The application here is for a writ of certiorari to the clerk of the chancery court for the Western District of Craighead County, Arkansas.
Appellant’s-contentions are, first, that'there was no proper order of the county court, and that the election was void because based on a void order of the county court; second, that there was a different question submitted to the voters than that contained in the election notice or proclamation of the sheriff; that the notice was misleading and deceiving to the voters; third, that no election was held in the second, fourth and fifth wards of Jonesboro, which contains a large part of the population of the district; and fourth, that the election judges of the last preceding general election did not act as the judges of the special election.
Appellants do not abstract tbe order of tbe county court, and from tbe abstract made it is impossible for this court to tell whether there was or was not a valid order of the county court. There is no abstract of the petitions, no abstract of the orders of the county court, and no abstract of the agreed statement of facts, so that it is impossible to tell from the abstract whether la different question was • submitted to the voters than that contained in the proclamation. And, the election proclamation not being abstracted, it is impossible for this court to say whether it was misleading and deceiving to the voters or not. And without an abstract of the agreed statement of facts we cannot say that the order of the chancellor was erroneous, nor can we tell from the abstract made whether the election was void or valid.
Buie No. 9 of this court provides that, in all civil cases, the appellant shall file with the clerk of this court, when his case is subject to call for submission, an abstract or abridgment of the transcript setting forth.the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all the questions presented to this court for decision. A majority of the court are of the opinion that the appellant has wholly failed to comply with that part of the rule requiring the filing of an abstract or abridgment of the transcript setting forth the material parts of the pleadings, proceedings, facts and documents relied upon.
• This court has many times held that, when it is impossible to intelligently pass upon the questions presented without exploring the transcript, the decree will be affirmed. Flake v. Mill, 130 Ark. 257, 197 S. W. 33; Power Manufacturing Co. v. Arkansas Rice Growers’ Assn., 170 Ark. 771, 281 S. W. 379.
For a failure to comply with Buie 9 of this court the petition must be denied. | [
116,
-20,
124,
29,
-86,
-32,
58,
-114,
82,
-85,
100,
83,
-19,
-45,
68,
121,
-29,
125,
117,
121,
-58,
-74,
115,
79,
35,
-77,
-117,
-57,
-78,
75,
-28,
-4,
72,
-96,
-54,
85,
-58,
-28,
-57,
92,
-82,
1,
-87,
-19,
88,
16,
60,
39,
32,
-117,
117,
62,
-30,
40,
60,
107,
73,
44,
-23,
60,
65,
-5,
30,
5,
-1,
6,
-127,
70,
-102,
-127,
56,
46,
-104,
16,
-104,
-24,
119,
38,
-122,
84,
13,
73,
44,
118,
38,
9,
-115,
-17,
-24,
-88,
62,
-70,
25,
-90,
-48,
25,
106,
44,
-110,
-99,
103,
80,
6,
-2,
101,
-123,
93,
44,
-122,
-49,
-106,
-73,
5,
-67,
12,
19,
-53,
45,
16,
113,
-51,
-14,
124,
71,
114,
27,
-114,
-45
] |
Smith, J.
On March 1, 1920, J. H. Fine owned a five-acre tract of land, which he contracted to sell to C. H. Law for the sum of $1,500, of which $35 was cash in hand paid and the balance was to be paid in monthly installments of $35 each, all evidenced by the notes of Law to the order of Fine, and hearing interest at the rate of eight per cent, per annum. The contract of sale provided that the title should remain in Fine until the consideration had been fully paid, and that, if Law should default in his payments, or any of them, Fine should have the option of declaring the contract void, and that “all sums paid thereon shall be forfeited to the said party of the first part as rent for said property, and as liquidated damages by reason of his possession of the same, and the said party of the first part shall be entitled to immediate possession of the said property, which the said party of the second part hereby agrees peaceably to yield.” It was further provided in the contract of sale that if and when Law had made all the payments as, agreed, Fine should convey the land to him by warranty deed.
Upon the execution of this contract and the payment of the $35 as there recited, Law took possession of the land, and he soon thereafter contracted with Dyke Brothers for certain material to be used in repairing an old building on the land which could not be occupied without the repairs. Dyke Brothers furnished building material to the value of $169.42, which Law used in repairing the building. Fine was aware of the fact, but was not a party to that contract. Law made two of the deferred monthly payments, and then defaulted, and failed thereafter to make any other payment. The building material was not paid for, and Dyke Brothers brought this suit, and alleged that they are entitled to a lien upon the said building and upon one acre of land surrounding it, and prayed that this lien be declared and foreclosed.
After Law made default, Fine elected to declare the sale contract void, and took possession of the land. After doing so, he sold the land to O. W. Dameron, who made application for a loan on the security of the land to a building and loan association. The building and loan association declined to make the loan unless and until Fine had indemnified it against the claim of Dyke Broth ers for a lien. This Fine did iby making a cash bond in the snm of $175. Service was had upon Law by the publication of a warning' order, and he made no appearance in the case. Fine answered, and set up the contract of sale above referred to, and alleged default thereunder, and denied that Law had authority to create a lien for any material used in the repairs or for other purposes.
The court denied the claim for a lien against the land, but adjudged that the plaintiffs were entitled to a lien on the $175 in the hands of the building.and loan association, and directed the association to pay the money into the registry of the court in satisfaction of the plaintiffs’ claim. Fine excepted to that order, and has appealed, and Dyke Brothers have perfected a cross-appeal from the order refusing to declare a lien in their favor on the improvement and the adjacent ground.
The facts in the ease of Gunter v. Ludlam, 155 Ark. 201, 244 S. W. 348, are very similar to those of the instant case. Gunter and Pate owned a lot in the city of Fort Smith, which they contracted to sell to Ludlam for a payment in cash and other payments to be made monthly. A clause of the contract provided for the acceleration of the maturity of all installments in the event of default in the payment of any installment. Ludlam erected a house on the land with material purchased from parties to the litigation, who claimed liens on the property for the value of their material. Suit was begun by Pate and Gunter to foreclose their lien as vendors for the unpaid purchase price, and Gunter also claimed a mechanic’s lien by way of subrogation to the rig'hts of the person who had built the foundation for the house. The court rendered a decree against Ludlam in favor of Pate and Gunter for the amounts claimed by them, and also a decree in favor of each of the parties asserting liens for labor and material, and declared the liens of those claimants superior to that of the vendors. This court, on the appeal from that decree, held that it was error to subordinate the lien of the vendors to that of the materialmen, as the vendors, having placed Ludlam in possession under a contract of sale, were in the attitude of vendors who had conveyed the property and had accepted a mortgage iback as security for the debt.
What was there said on the question of estoppel is also applicable here. It was there said that mere knowledge on the part of the vendors that labor and material were furnished for the construction of the building, or even their consent thereto, in the absence of some affirmative act which indicated a willingness to subordinate their claim to that of the subsequent lienors, was not sufficient to operate as an estoppel. It was there further said:
“Ludlam was in possession of the property as a mortgagor, and had an alienable interest upon which he could create a lien, therefore his construction of the building and the creation of a lien for labor and material was referable to his own interest in the property, and acquiescence on the part of appellants las mortgagees did not constitute such an affirmative act as would operate as an estoppel to the claim of a superior lien. ’ ’
The doctrine of that case was reaffirmed in the casé of Judd v. Rieff, 174 Ark. 362, 295 S. W. 370, which is also similar to the instant case under the facts. It was there said:
“The effect of the sales and purchase contract under review, in equity, was to create a mortgage in favor of the vendor, Mrs. Judd, to secure the purchase money. Wicker, in effect, became the vendee and equitable owner and mortgagor and Mrs. Judd the mortgagee. Fairbairn v. Pofahl, 144 Ark. 313, 222 S. W. 16; Gunter v. Ludlam, 155 Ark. 201, 244 S. W. 348. Section 6933 of C. & M. Digest provides that every person for whose immediate use, enjoyment or benefit a building, erection or other improvement shall be made shall be concluded by • the words ‘owner or proprietor thereof.’ The above language is sufficiently comprehensive to include, and does include, the vendee in possession under a contract of purchase such as that under review. Wicker was the equitable owner or proprietor, and in possession of the lot in controversy at the time he purchased the materials from Rieff which were used in the building of a garage. The purchase and use by Wicker of the materials in the building of a garage on the lot in controversy gave to Rieff the right to perfect a lien under the statute on the lot to the extent of Wicker’s interest therein. See Gunter v. Ludlam, supra; 27 Cyc. 29, 18 R. C. L. 885.”
Dyke Brothers do not ask that their right to a lien be perfected to the extent of Law’s interest in the land; on the contrary, the relief asked is that it be adjudged that they are entitled to a lien on the building* into the repair of which their material entered and upon an acre of land surrounding the building. The court properly denied this relief.
Dyke Brothers insist, on their cross-appeal, that there was no vendor’s lien in favor of Fine, as opposed to their claim for a lien as materialmen, for the reason that Fine has declared the contract void, and did not do this until after the material had been furnished. In reply to this argument it may be said, first, that Fine could not declare the contract void until Law had defaulted in his payments. The cases of Gunter v. Ludlam and Judd v. Rieff, supra, hold that no estoppel arises against the vendor who does no affirmative act to induce the lien claimant to advance the credit upon which the lien is claimed, and Fine did no affirmative act.
It is true, as cross-complainants insist, that Fine has declared the contract of sale canceled, but Law’s rights are derived from the contract, and these rights were only those of a vendee in possession who had given a mortgage back as security for the debt, and, as was decided in the cases cited, the holder of this equitable mortgage has a lien superior to that of a lien claimant whose rights are derived from a contract with the equitable mortgagor, and, as we have also herein said, Dyke Brothers are not asking relief against Law’s interest, but claim an absolute and paramount lien against the improvement and the land itself, but this, under the cases herein cited, they do not have.
In the case of Judd v. Rieff, supra, it was said that “In Imboden v. Citizens’ Bank, 163 Ark. 615, 260 S. W. 734, we held that, under § 6909, supra, a mechanic’s or materialman’s lien is superior to a prior mortgage only on a separate building constructed with the labor and material furnished or such addition as is separable from the original building without injury thereto.”
Cross-appellants insist a lien should be declared in their favor on the building, for the reason that the testimony does not show that the improvement into which their material went is not separable from the original building without injury thereto. In answer to this contention it may be said, first, that we do not so understand the testimony. The material did not go into a new building separable from another which could be removed without injury to the existing building. On the contrary, we understand that the material was used in the repair of an old building, and was not a separable improvement. But, if the testimony does not establish this fact one way or the other, as cross-appellants insist it fails to do, they have to that extent failed to make the proof required, for the burden is on them to prove facts entitling them to a lien. St. L. I. M. & S. Ry. Co. v. Love, 74 Ark. 528, 86 S. W. 395; Royal Theater Co. v. Collins, 102 Ark. 539, 144 S. W. 919; Langston v. Matthews & Lawton, 117 Ark. 626, 173 S. W. 397; Hoffman v. McFadden, 56 Ark. 217, 19 S. W. 753, 35 Am. St. Rep. 91; Buckley v. Taylor, 51 Ark. 302, 11 S. W. 281.
While the court was correct in refusing to declare a lien on the land or the building, we think it was error to declare the cash deposited with the building and loan association as a bond subject to the demand of the lien claimants. The purpose of the cash bond was to indemnify the building and loan association. The bond was not executed for the benefit of Dyke Brothers, and they were not parties to it. The money belonged to and was deposited by Fine, and it is certain the statute gives no lien on money. To subject money belonging to Fine to the payment of the debt the court has, in effect, held Fine liable for the debt, and there is no authority for so holding.
It follows therefore that the decree denying a lien against the land and the improvement should be affirmed, and the portion thereof subjecting the cash bond to the payment of the debt should be reversed, and it is so ordered. | [
-16,
121,
-104,
-52,
26,
96,
40,
-72,
73,
-32,
37,
87,
-51,
-46,
8,
37,
-89,
125,
81,
104,
-12,
-77,
39,
3,
-46,
-109,
-45,
-51,
-80,
-51,
119,
-44,
76,
36,
-62,
-97,
-62,
-62,
-51,
90,
14,
-127,
42,
108,
-35,
64,
48,
43,
0,
73,
101,
-113,
-13,
44,
49,
91,
13,
40,
-19,
41,
113,
-16,
-101,
-116,
127,
23,
48,
55,
-36,
67,
-22,
-114,
-104,
117,
9,
-24,
83,
54,
86,
116,
13,
-117,
40,
38,
102,
16,
-63,
-1,
-80,
-104,
39,
-6,
-119,
-90,
-127,
88,
-110,
40,
-66,
-98,
121,
0,
37,
126,
-17,
-107,
93,
40,
3,
-113,
-42,
-29,
15,
-4,
-114,
7,
-18,
11,
33,
112,
-49,
-94,
92,
103,
116,
-101,
15,
-39
] |
McIIaney, J.
Appellant was indicted in the-Crawford Circuit Court in one indictment of two counts, the first charging him with grand larceny of certain merchandise, the property of L. T. Byars, and the second charging him with burglary. He was tried and convicted for the larceny, and acquitted on the charge of burglary. From the judgment and sentence of five years in the penitentiary against him he has duly prosecuted an appeal to this court.
Appellant urges for our consideration only two errors of the trial court, either of which, he contends, calls for a reversal of this case. The first is the action of the court, on its own motion, in giving, over his general and specific objections, instruction No. 4-A, as follows:
“There is a rule of evidence that says possession of recently stolen property is a circumstance that the jury may consider, along with all the other facts and circumstances in evidence, in determining whether or not the person who is in the possession of it stole it, unless you find from the evidence that the person in possession of it offers to you a reasonable explanation of his possession. So, iii this case, if you find the property alleged in the indictment was recently stolen and that this defendant was found in possession of that properly, then it will be your duty to consider that circumstance, along with all the facts and circumstances in the case, in passing upon the question of guilt or innocence of the defendant, unless you find, of course, that he has explained to you his possession of it. If you find that, then you should not consider it at all. ’ ’
The second is, the refusal of the court to give his requested instruction No. 6, which is as follows:
“You are instructed that, before you can convict the defendant, Frank Thomas, on the charge of grand larceny contained in tlie indictment, you must find beyond a reasonable doubt, from the testimony, that the defendant was actually present in Crawford County and aided, abetted or assisted, or was present ready and willing to aid or abet in the taking, stealing or carrying away of the property alleged to have been stolen, and, even if yon should find from the testimony that the defendant received and had in his possession property described in the indictment and alleged to have been stolen, knowing the same to have been stolen, but that he came into possession of it after it had been stolen, and that he himself was not actually present, aiding, abetting or assisting or was present, ready and consenting to aid or abet in the stealing of the property, then you cannot convict him of larceny under this indictment.”
1. The only evidence in the record which tends in any way to connect appellant with the crime of larceny, for which he was convicted, is the fact that, shortly after the crime was committed, he had possession of some of the stolen articles of merchandise in Sebastian County. There is in the record sufficient evidence to go to the jury, under a proper indictment, on the question of appellant’s guilt or innocence of .receiving' stolen properly, knowing the same to have been stolen. But there is no evidence in the record, save and except the possession of the stolen articles shortly after they were stolen, to show that he was guilty of having stolen the goods. Appellant did not take the stand and testify in his own behalf, and he now urges that instruction No. 4-A is susceptible of construction that the jury should convict him if they found from the evidence that he was in possession of the stolen property shortly after it was stolen, unless they should “find from the evidence that the person in possession of it offers to you a reasonable explanation of his possession.” And it is claimed that this is emphasized in the last half of the instruction, providing that, if they shoirld find the property was recently stolen, and that appellant was found in possession of it, it would be their duty to consider that circumstance “along with all the facts and circumstances in the case, in passing upon the question of guilt or innocence of the defendant, unless you find, of course, that he has explained to you his possession of it.” It is urged that the instruction requires appellant himself to offer a reasonable explanation of his possession, and while the instruction may be susceptible of such a construction, yet we do not think it is the necessary effect of it, but that the possession might be explained by him through other evidence than that of himself. The instruction is not aptly worded, and we think that it would have been better to have phrased this instruction somewhat like that in the case of McDonald v. State, 165 Ark. 411, 264 S. W. 961, where the court approved the following instruction:
“You are instructed that the possession of property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration under all the circumstances in the case, to be weighed as tending to show the guilt of the one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it be not rebutted. ’ ’
The court held, in that case, that the above instruction was not open to objection as being a charge upon the weight of the evidence, or as making it the necessary duty of the jury to convict upon proof of unexplained possession of property fecently stolen. This court has many times held that the mere possession of property stolen and unexplained by the defendant does not afford presumptive evidence of the defendant’s guilt. Pearrow v. State, 146 Ark. 182, 225 S. W. 311; Long v. State, 140 Ark. 413, 216 S. W. 306.
The rule is correctly stated in 17 B. C. L., § 76, where it is said:
“The true rule is, without doiibt,-that the possession of the property by the defendant, soon after the commission of the alleged crime, is merely an evidentiary fact tending to establish guilt which should be submitted to the jury, to be considered in connection with all the other facts and circumstances disclosed by the evidence. It does not in any case raise a presumption of law that the defendant committed the alleged larceny, although the unexplained exclusive possession of stolen goods shortly after the commission of a larceny may, and often will, be sufficient evidence to justify a jury in finding the possessor guilty.”
We therefore hold on this point that the error complained of in the above instruction is not sufficient to justify a reversal of this case, but, on a re-trial, it should be so phrased as to remove the objectionable features complained of by appellant.
2. It is next insisted that instruction No. 6 should have been given, and that the court erred in its refusal to do so. In this we think appellant is correct. Before the appellant could have been convicted under the indictment charging him with this larceny, he must have been present in Crawford County, and either actually committing the larceny himself or he must have been present, aiding, abetting or assisting therein, or ready and consenting to aid and abet in the larceny. Section 2311 of C. & M. Digest reads as follows: “All persons being present, aiding and abetting, or ready and consenting to aid and abet, in any felony, shall be deemed principal offenders, and indicted and punished as such.” Appellant is indicted here as principal offender. Therefore he could not be indicted and convicted as a principal if he was not present, under the circumstances above named. In the •case of Friend v. State, 109 Ark. 498, 160 S. W. 384, this court held that, “not being present when the offense was committed, he could not properly be indicted as a principal, but should have been indicted as accessory.” Citing Smith v. State, 37 Ark. 274; Williams v. State, 41 Ark. 173; Roberts v. State, 96 Ark. 58, 131 S. W. 60; Hughey v. State, 109 Ark. 389, 159 S. W. 1129.
While the unexplained possession of the property which had recently been stolen, if the jury found it to be unexplained, is a circumstance tending to show that appellant was present in Crawford County and com mitted tlie larceny, yet, if the jury should actually find, regardless of such circumstance, that he was not present and participating,, then it would be their duty to find him not guilty, because, if he were not present, he has been indicted for the wrong offense and could not be convicted therefor.
.In the case of Hughey v. State, 109 Ark. 389, 159 S. W. 1129, Hughey was indicted for the larceny of a cow, and was found in possession of the cow shortly after it had been stolen. The proof showed that lie was not present aiding, abetting or assisting in stealing the cow, but that he had advised Tom Burke to steal cattle generally, which he would buy and dispose of in his business as a butcher, and split the profits with Tom Burke. The cow was found in his slaughter-pen shortly after it was stolen, and this court said:
“ Appellant was not present aiding, abetting and assisting in the stealing of the cow, and if he was in accord with and encouraged Tom Burke to steal cattle generally, as the evidence tends to show, he was at the most an accessory before the fiact of the larceny, and could not be convicted upon an indictment for larceny.” (Citing Roberts v. State, 96 Ark. 62, 131 S. W. 60; Corley v. State, 50 Ark. 313, 7 S. W. 255; Smith v. State, 37 Ark. 274; Williams v. State, 41 Ark. 173). Neither can he'be convicted upon an indictment for larceny of receiving stolen property, knowing it to have been stolen, not being present, aiding, abetting* and assisting in the taking and carrying* away of the animal, the asportation of which was complete upon her delivery at the slaughter-pen for inspection and sale Ho was hot guilty of the offense of larceny, and the testimony is insufficient to support the verdict. ’ ’
We are therefore of the opinion that the refusal to give this instruction constituted a reversible error, and that the case must therefore be reversed and remanded for a new trial. It is so ordered. | [
-16,
-16,
-7,
-99,
10,
-32,
42,
-68,
64,
-93,
118,
51,
109,
70,
8,
43,
-5,
125,
85,
120,
-28,
-89,
3,
113,
-110,
-77,
-101,
-43,
53,
-53,
-26,
-4,
13,
116,
-54,
85,
70,
74,
-59,
30,
-114,
-119,
-71,
98,
-45,
80,
36,
35,
53,
14,
113,
-98,
-17,
42,
58,
-38,
73,
40,
73,
43,
80,
-16,
-66,
-49,
-65,
22,
-95,
4,
-100,
7,
-8,
14,
-104,
17,
0,
-24,
115,
-106,
-126,
84,
13,
-101,
-56,
98,
66,
0,
29,
-17,
-88,
-103,
46,
118,
-107,
-89,
88,
72,
67,
109,
-106,
-35,
103,
84,
6,
-4,
-11,
85,
81,
108,
3,
-81,
-48,
-79,
-81,
52,
-122,
-45,
-5,
33,
52,
112,
-51,
-94,
93,
35,
17,
-101,
-114,
-109
] |
Hart, C. J.,
(after stating the facts). It is conceded that the lien of Charles T. Groom on the lots is superior to the materialman’s lien of the Morrilton Lumber Com-’ pany, but it is claimed the new house and garage which were constructed on the lots from the old lumber from the houses which were torn down and the new lumber which was purchased from the Morrilton Lumber Company is subject to the lien of the lumber company, and that the buildings may be taken off and sold and the proceeds applied equally towards the satisfaction of the judgment of the plaintiff, because the value of the old and new lumber was about the same. In making this contention, counsel for the plaintiff rely upon the provision of § 6909 of Crawford & Moses.’ Digest as construed in Judd v. Rieff, 171 Ark. 362, 295 S. W. 370. In that case it was held that a lien for materials for building a garage, furnished to a purchaser in possession under a land contract prior to the vendor’s exercise of an option to declare the (contract rescinded, was superior to the vendor’s lien on the garage, under Crawford & Moses’' Digest, 6909, providing that a materialman’s lien on specific improvements shall be superior to prior incumbrances on the land. Section 6909 of the Digest reads as follows:
“The lien for the things aforesaid, or work, shall attach to the buildings, erections or other improvements for which they were furnished or work was done, in preference to any prior lien or incumbrance or mortgage existing upon said land before said buildings, erections, improvements, or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable' time thereafter; (a) provided, however, that in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, the said lien shall be prior to the lien given by this act. ’ ’
Prior to the passage of this act it had been held that a mortgage lien was superior to a materialman’s lien. Monticello Bank v. Sweet, 64 Ark. 502, 43 S. W. 500.
We are of the opinion that the chancellor correctly held that the lien of the mortgagee, Groom, was superior to that of the plaintiff as materialman. The statute in question gives one who purchases materials a new right, and, along with the superior right, gives him a remedy for the enforcement of it. The statute in express terms declares that the lien of the materialmen shall attach'to the building for which the materials were furnished in preference to any prior mortgage existing upon the lands before said buildings were erected, and that any person enforcing such lien may have the building sold under execution, and the purchaser may remove it within a reasonable time thereafter.
According to our former decisions, if a new building had been erected entirely out of materials furnished by the plaintiff, its lien might have been enforced against such building, and the purchaser would have had the right to remove it from the lots in a reasonable time, notwithstanding there was a prior mortgage on the lots. The lien can be enforced as a prior lien only by a sale of the building as a separate and distinct entity from the land. .Such priority of lien exists only when a.new building has been put upon the land subsequent to the execution of the mortgage, and the one claiming a prior lien for materials furnished must have furnished the materials for the erection of an entirely new building. To hold otherwise would put it in the power of the mortgagor to impair the security which he had given to the mortgagee. The houses were on the lots when the mortgage was executed, and constituted a part of the realty. Indeed, in many cases houses might constitute the most valuable part of the mortgage security. For the reason that the mortgage includes the houses situated on the lots as well as the lots themselves, the mortgagor would have no right to tear down the buildings without the consent of the mortgagee, and use them, in whole or in part, in making-new improvements upon the mortgaged property.
As we have already seen, the materialman has no rights except as.given him by the statute, and the statute only applies where there is some independent structure erected on the land out of materials furnished for that purpose. Getchell & Tichenor v. Allen, 34 Iowa 559; James River Lumber Co. v. Danner, 3 N. D. 470, 57 N. W. 343, and cases cited; Thorpe Bloch Savings & Loan Assn. v. James, 13 Ind. App. 522, 41 N. E. 978, and cases cited; Rockel on Mechanics’ Liens, p. 388, § 148a; and Boisot on Mechanics’ Liens, p. 149, § 150.
Counsel for plaintiff rely upon Wimberly v. Mayberry, 94 Ala. 240, 10 So. 157, 14 L. R. A. 305. This is an Alabama case, by a divided court; and, after reading carefully the majority and minority opinions in the case, we have reached the conclusion that the dissenting opinion is more in accord with our sense of reason and justice. The materialman had notice of the mortgage, and knew the purpose for which the materials were furnished. He was bound by the language of the statute, and could see from its terms that it only contemplated giving him a lien superior to that of a prior mortgagee'where a new building was erected out of materials furnished by third persons, and not where the new improvement was made out of old materials and new ones so intermingled that there could be no separation and sale of the building ■ erected out of the new material.
It can add nothing to the rights of the materialman that the mortgagee knew that the mortgagor had torn down the old building and was using the lumber together with new lumber furnished by the plaintiff in the erection of a new building. His rights as mortgagee could only be defeated by some act of waiver or estoppel on his part, and this could not be accomplished by mere knowledge on his part that the mortgagor was using the old materials in connection with new ones in the erection of a building. The mortgagee, in order to be estopped, must have given his consent to the mortgagor, or have been guilty of conduct which would have estopped him from asserting his mortgage. Mere silence would not amount to estoppel, and it is not claimed that he expressly or by necessary implication waived any of his rights under the mortgage.
Therefore the decree will be affirmed. | [
116,
122,
-36,
61,
26,
96,
10,
24,
88,
-128,
55,
83,
-17,
-50,
0,
35,
-90,
89,
113,
42,
85,
-13,
19,
98,
-46,
-109,
-15,
85,
-68,
77,
-59,
-57,
76,
52,
-62,
-35,
-27,
0,
-51,
84,
14,
-123,
-117,
77,
-47,
64,
52,
-53,
68,
75,
113,
-121,
-77,
44,
25,
-57,
73,
46,
115,
57,
-48,
-72,
-70,
14,
127,
5,
-79,
100,
-100,
67,
-56,
10,
-112,
49,
-124,
-24,
115,
-74,
-106,
116,
7,
-102,
9,
36,
103,
2,
109,
-1,
-36,
-104,
13,
-10,
-113,
-90,
-109,
88,
10,
97,
-65,
-51,
73,
4,
-42,
126,
-18,
20,
28,
108,
27,
-113,
-10,
-94,
39,
120,
-100,
3,
-50,
3,
-80,
113,
-51,
-78,
93,
51,
21,
-101,
-114,
-23
] |
McHaney, J.
Appellants are the children of John Butler, deceased, by his first wife, and the appellees are his widow and her children by him, with the exception of J. English, who -was the husband of Delois Butler, deceased, who was a child of John Butler, who was originally made defendant, but who filed an answer in the nature of a cross-complaint, and is now one of the appellants.
For many years prior to his death, on the 12th day of September, 1918, in Crawford County, Arkansas, the said John Butler was the owner of 119 acres of land in Logan County, Arkansas, on which he had resided for many years with his family, as his homestead. In the fall of 1916 he removed with his family from his homestead in Logan County to Crawford County, where he continued to reside until the time of his death, which, as heretofore stated, was on September 12, 1918. There was a coal mine, on this homestead, which had been operated for some years prior to his removal therefrom by John Butler, and the place had been mortgaged by Mr. Butler to W. B. Rhyne for $2,500. After her husband’s death, Mrs. Butler went to Port Smith to live, where -she purchased a little home for herself and minor children, as she says, to get the advantage of better schools and to obtain employment’ for herself, which she did in a garment factory, in order to supplement her income to the rents and profits from the lands in Logan County.
One of the appellants w7as the administrator of his father’s estate. He wound up the estate, and turned the land back to his stepmother, which she has been operating since that time, receiving the rents and profits, both from the farming operations and the mining of coal. In 1921 she made a lease thereof for coal mining purposes to one Brogden. The mine had been operated, after Mr. Butler moved to Crawford County and during his lifetime, by Palley & Miller, who ceased operations, and, when Brogden took charge, there is evidence to show that the mine had partially filled up with water, and the mouth had somewhat caved in. After Mr. Butler’s death a new pit was opened up, but apparently on the same vein of coal as was being operated in the old mine, and Mrs. Butler received the rents and profits therefrom. On a hearing, the chancellor found that John Butler had not abandoned his homestead by his removal to Crawford County, and that the -widow, Mrs. A. Y. Butler, had not abandoned the same, and entered a decree dismissing the complaint and the cross-complaint' of English for want of equity, from which is this appeal.
On the trial of the case, appellants offered" to prove by one witness that the value of the land in controversy was in excess of $2,500, the constitutional limit for a rural homestead in excess of 80 acres. There was no allegation in the complaint to this effect, and the appellants offered to amend the complaint in this regard, but the chancellor declined to permit them to do so, for the reason that the case had been completely developed by the taking’ of depositions, and by agreement was being submitted to the chancellor in vacation in the city of Port Smith, and that appellees were not prepared to meet this new allegation. It is within the discretion of the trial court to permit amendments to pleadings, and this court will not reverse for failure to do so, unless for an abuse of such discretion, and we do not think that an abuse of discretion was shown in this regard. Arkansas State Life Ins. Co. v. Allen, 166 Ark. 490, 266 S. W. 449; Meador v. Weathers, 167 Ark. 264, 267 S. W. 787.
■ If appellants had desired to raise the issue of the extent of the homestead on account of its value, they should have done so in their complaint, in apt time, so that it could have been met by pleading on behalf of appellees, and by proof. The court did not therefore err in excluding this evidence and in refusing to permit appellants to amend.
The next question to be determined is whether John Butler abandoned his homestead in his lifetime. It is conceded by all parties that the land in controversy was his liomestead until the fall of 1916, when he removed to Crawford' County, but it is 'contended by appellants that, by such removal, he abandoned his homestead. It is not contended that he acquired a new homestead after his removal to Crawford County, and before his death. It is the rule of law in this State, announced by many decisions of this court, that the question of whether there has been an abandonment of a homestead once established,'is almost entirely a question of intent on the part of the homestead owner so-to do: .In other words, in order to constitute an abandonment of a homestead, the owner must leave it with the intention of renouncing and forsaking it, or leaving it never to return. The law does not require continuous occupation of the homestead to continue it as such! As, was said-in one of the earlier cases before this court, Euper v. Alkire & Co., 37 Ark. 283: “When a homestead right has once attached, a continuous actual occupation is not indispensable for its preservation. It is well settled by the authorities that a removal from the homestead for a temporary purpose, or with the intention of returning and again occupying it, is not such an abandonment as will forfeit the homestead right.” And in that case the court quoted with approval from McMillan v. Warner, 38 Tex. 410, as follows: “The-question of abandonment is almost exclusively a question of intent, since ho legal abandonment can occur without a fixed intent to renounce and forsake, 'or to leave never to return; and to abandon a homestead, a party must forsake and leave it with the intent never to •return to it again as a homestead.” . In the more recent ease of Gillis v. Gillis, 164 Ark. 532, 262 S. W. 307, this court said: “The question of whether one who removes from his- homestead has abandoned same is one of intention, which must be determined from the facts and circumstances attending each case.”
A temporary removal from a homestead for business purposes does’ not constitute an- abandonment. In this case it is shown that Mr.. Butler, Avhen he removed to Crawford County, went there to cultivate bottom lands, by which he thought he could earn sufficient money to pay off the mortgage on his homestead; that he rented his homestead for one year only for farming purposes; that he refused to sell same to persons who offered to purchase. It is also shown by a number of witnesses that he expressed, on many occasions, his intention of returning to his home in Logan County, and these expressions of intention in this regard continued up to the very day of his death. While there is some conflict in the evidence regarding the question of bis intention, we do not find that the chancellor’s finding is against the preponderance thereof, and we therefore hold with the chancellor, that John Butler did not abandon his home in his lifetime.
The next question for determination is whether his widow, the appellee, Mrs. A. V. Butler, abandoned same. Section 6 of article 9 of the Constitution of 1874 reads as follows:
“If the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her during her natural life. Provided, that if the owner leaves children, one or more, said child or children shall share with said widow, and be entitled to half the rents and profits till each of them arrives at twenty-one years of age; each child’s rights to cease at twenty-one years of age, and the shares to go to the younger children and then all go to the widow; and provided that said widow or children may reside on the homestead or not, and in case of the death of the widow, all of said homestead shall be vested in the minor children of the testator or intestate. ’ ’
The -widow did not have a separate homestead in her own right at the time of her husband’s death, and she also had minor children. Therefore, under the plain provision of the Constitution, the homestead of her husband became hers for life, exempt from any debts, except the mortgage indebtedness, together with the rents and prof its therefrom, to be shared by. her and her minor children until they reach the age of twenty-one years. She could not abandon the homestead so as to be effectual against the minor children, and her act in purchasing a home in Fort Smith for the purpose of supporting and educating her children there, does not constitute an abandonment. The only qualification of her right to enjoy the rents and profits of the homestead during her natural life, contained in this section of the Constitution, is, “if the owner of a homestead die, leaving a widow, but no children} and said widow has no separate homestead in her own right.” Here there are children, and she had no separate homestead in her own right at the time of the death of her husband. In such'a case the acquisition of a homestead in her own right, after the death of her husband, does not constitute an abandonment of her husband’s homestead so as to deprive her of the rents and profits thereof during her natural life. As was said in the case of Davis v. Neal, 100 Ark. 399, 140 S. W. 278, L. R. A. 1916A, 999: “It is the settled policy of this court that homestead acts are remedial, and should be liberally construed to effectuate the beneficent purposes for which they are intended.” And in the case of Colum v. Thornton, 122 Ark. 287, 183 S. W. 205, this court said:
“Our Constitution gives the homestead to the widow for life, without any restrictions. It is the settled policy in this State that laws pertaining to the homestead right of the widow and minor children shall be construed liberally in favor of the homestead claimants.” In this same case the court further said: “Upon the death of her first husband, a life estate vests in her in his homestead, and she has the right to lease it and receive the rents from it, subject, of course, to the rights of her minor children to share same with her until each of them arrives at the age of twenty-one years; and we clo not think she forfeits her homestead by a second marriage and removal to the homestead of her second husband. ’ ’
Again, in the same case, it is said:
“The general rule is that a remarriage hy a widow will not operate to destroy the homestead character of a home left to her and her children hy a former husband. Our Constitution does not require a widow to occupy the homestead. There is nothing’ in it to indicate that the framers intended that the marriage of a widow and her going to her second husband’s homestead and occupying it with him should work a forfeiture of her previously existing legal rights. In short, there is nothing in our Constitution to indicate that the right of homestead of a widow should terminate, should she remarry and go to live with her husband on his homestead; and we do not think .such an act on her part destroys the homestead character of a then existing homestead of herself and her children by her former husband.! ’
The effect of this holding is that a widow does not destroy her homestead right in her husband’s estate by the acquisition of another home in her own right, for her own conveniences and purposes and that of her., minor children. We therefore hold against the contention of appellants in this regard.
The final contention of appellants for a reversal of the case is*that there had been an abandonment of the mining operations at and after the death of John Butler, that constitute the leasing* thereof by Mrs. Butler practically the same as opening a new mine. This contention must also be decided against appellants. It has been held by this court that coal underlying a homestead is a part thereof, and cannot be sold for the payment of the debts of the decedent’s estate, but is protected therefrom the same as the homestead is protected. Russell v. Berry, 70 Ark.-317, 67 S. W. 864.
The rule with reference to the operation of mines by the life tenant is stated by this court in the case of Cherokee Construction Co. v. Harris, 92 Ark. 260, 122 S. W. 485, 132 Am. St. Rep. 177, as follows:
“If there were mines already open on the land when the tenant takes the estate, it is not waste to continue to work them. The offense of waste consists in the first penetration and opening of- the soil, and so it has been held that a mine which was opened at the vesting of the life estate or estate for years may be worked by the tenant, even to exhaustion.” (Citing cases).
In the more recent case of Warren v. Martin, 168 Ark. 682, 272 S. W. 367, this court held that the widow was entitled to receive the rents and profits from an oil and gas lease executed on the homestead property in the husband’s lifetime, but which was not drilled until after his death, and .'this ruling was- based upon the prior decisions of this court, permitting the life tenant to work open mines. A mine so opened may be worked by the life tenant to exhaustion. Cherokee Construction Co. v. Harris, supra; Lee v. Straughan, 146 Ark. 504, 226 S. W. 171. No nevr mine ivas opened on this land by Mrs. Butler, but a new pit on the same vein, and it is immaterial that the mines may have been temporarily abandoned, the only question being, were they opened in the lifetime of the husband? See Deffenbaugh v. Hess, 225 Pa. 638, 74 A. 608, 36 L. R. A. (N. S.) pp. 1102-1104.
We find no error, and the decree is accordingly affirmed. | [
-11,
108,
-36,
108,
40,
64,
42,
-104,
98,
-127,
-28,
-45,
-19,
77,
17,
105,
98,
121,
85,
123,
-11,
-90,
83,
98,
-109,
-13,
-103,
85,
-78,
77,
-92,
-10,
77,
120,
74,
-35,
-58,
74,
-49,
92,
-114,
105,
-117,
72,
89,
18,
60,
123,
60,
15,
117,
46,
-10,
42,
25,
-49,
77,
46,
-37,
61,
81,
120,
-70,
7,
15,
6,
-79,
100,
-102,
-59,
-24,
26,
-112,
49,
4,
-88,
115,
-94,
-122,
116,
7,
-119,
8,
102,
102,
3,
-116,
-25,
-88,
24,
39,
-2,
-103,
-90,
-64,
72,
67,
73,
-97,
-107,
74,
-112,
14,
-8,
-25,
-123,
28,
108,
-120,
-114,
-44,
-95,
13,
120,
-35,
26,
-21,
47,
52,
117,
-51,
-94,
77,
7,
50,
-101,
-122,
-16
] |
McHaney, J.
Appellant was indicted, tried, convicted and sentenced to five years' in the penitentiary on a charge of assault with intent to kill one Joe Bramlett, and prosecutes this appeal to reverse the judgment and sentence against him. This was done at an adjourned term of the regular May term of the Johnson Circuit Court.
It is admitted that the testimony was sufficient to take the case to the jury, but it is urged: first, that the court was without jurisdiction to try the case and render .judgment against him, for the reason that, according to the affidavits of the county and circuit clerks, there were no funds on hand to pay the expenses of holding the adjourned term of the circuit court, and that the regular business of the court carried over from the regular term to the adjourned term was not tried, but that this defendant, who was indicted at the adjourned term, and some others, were tried at this term of court; that there were no funds with which to pay the jurors, and that this defendant was forced to be tried before jurors who volunteered their services for that purpose. It is claimed that, by reason of this fact, he had no voice in the selection of the jury, and that a court so constituted was and could be no more than a moot court.
The record shows that this question was raised for the first time in the motion for a new trial. The statute provides for the manner of the selection of jurors to try cases in the circuit court. By going to trial without objecting to the manner in which the jury was impaneled, appellant must be deemed to have waived any irregularities in the order of selecting the jury. In support of this contention he cites, the case of Dixie Culvert Mfg. Co. v. Perry County, 174 Ark. 107, 294 S. W. 381, construing Amendment No. 11, in which it was held that the county judge of Perry 'County was without authority, under that amendment, to make a contract for road culverts and spread the cost thereof over a period of years, when there was insufficient funds on. hand for the year in which same were purchased to pay therefor. It had nothing to do with the question now before us. See also Polk County v. Mena Star Co., ante p. 76.
It is next urged that the case should be reversed for certain remarks made by the prosecuting attorney in his opening’ statement to the jury. An objection by counsel for appellant was sustained by the court, and the prose-, cuting attorney withdrew the remarks from the .jury. There was therefore nothing on which to base this assignment of error. The objection was sustained and the remarks withdrawn by the prosecuting attorney. Lewis v. State, 78 Ark. 40, 93 S. W. 55; Hall v. State, 113 Ark. 454, 168 S. W. 1122.
It is finally insisted that the court erred in permitting the prosecuting attorney to ask the appellant the following questions over his objections:
“Q. I will ask you if you are the same Jim Bowlin that was sent to the pen from Newton County, over here, for cutting a preacher up over there?” “Q. Jim, what was it you was convicted for and why were you serving a jail sentence at Dardanelle about 'a year ago, when you broke jail?”
Appellant was a witness in his own behalf, and the above questions were asked on cross-examination, and it is well settled in this court that the defendant may be asked on cross-examination about other crimes committed by him, whether he has been in jail, the penitentiary, or any other place that would tend to impair his credibility. These questions were permitted, no doubt, for the purpose of testing the credibility of the witness. This court, in the leading case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, announced the general rule on this subject in a quotation from the Supreme Court of Michigan, in Wilbur v. Flood, 16 Mich. 40, 93 Am. Dec. 203, as follows:
“It has always been'held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility. ’ ’
The above quotation was also used in the recent case of Whittaker v. State, 171 Ark. 762, 286 S. W. 937, where a quotation from Real v. People, 42 N. Y. 270, was cited with approval as follows: “A witness, upon cross-examination, may be asked whether he has been in jail, the penitentiary, or State prison, or any other place that would tend to impair his credibility, and how much of his life he has passed in such places.”
The same rules apply to defendants who testify in criminal oases as to other witnesses. There was therefore no error in permitting the above questions to be asked, and in requiring appellant to answer them.
These are all the errors complained of, and, having answered them against appellant, the judgment must be affirmed. | [
-48,
-24,
-23,
-98,
11,
64,
6,
60,
82,
-93,
36,
83,
105,
-49,
9,
123,
-70,
123,
85,
125,
-27,
-73,
51,
97,
-85,
-5,
73,
69,
-73,
74,
-20,
-43,
12,
112,
122,
-43,
-58,
74,
-121,
30,
-114,
-95,
-87,
104,
74,
-128,
32,
39,
20,
15,
113,
-114,
-29,
58,
17,
75,
-55,
40,
91,
63,
64,
-79,
-100,
-121,
125,
21,
-79,
-91,
-98,
3,
-24,
62,
-40,
53,
0,
-36,
115,
-106,
-126,
84,
15,
25,
44,
102,
35,
1,
-100,
-57,
40,
-23,
23,
63,
-99,
-26,
-104,
65,
75,
12,
-74,
-99,
114,
84,
-114,
-4,
-27,
68,
80,
108,
-127,
-49,
-108,
-77,
79,
53,
-122,
82,
-21,
3,
52,
113,
-52,
-14,
94,
71,
114,
-101,
-49,
-111
] |
Smith, J.
This is a suit to quiet the title to a lot “200 feet by 240 feet in the east one-half of block 8 of the original survey of the town of Emerson.”
This relief is prayed upon the following allegations and testimony. The lot was owned by a bank of which T. S. Grayson was president. Grayson agreed to sell the lot to appellee for the cash consideration of $225, and appellee entered into the possession of the lot in 1934. It was contemplated that the purchase price be paid by the 1st of the following year, but being unable to make the payment at that time, appellee requested Henry Rushton to pay for the lot and to take a deed to himself as security until she could repay him the purchase money. Rushton paid the bank the $225 purchase money, and took a deed to the lot in his own name, as it was agreed he should do. Extensive repairs were required, and were made, the cost of which is disputed, and there is some controversy as to who paid for them, including the cost of digging a well.
Rushton died without having made a deed to appellee. After his death his widow and heirs-at-law conveyed to a son of Rushton, and when the widow and heirs refused to make appellee a deed, this suit was brought to compel this action, and from a decree awarding that relief is this appeal.
If the case presented no facts other than those just recited, the relief prayed would have to be denied, for the reason that as the agreement between appellee and Rushton for the purchase of the lot rested in parol, and Rushton paid-his own — and not appellee’s — money for the lot, the statute of frauds would forbid its enforcement.
It was held in the case of Robbins v. Kimball, 55 Ark. 414, 18 S. W. 457, 29 Am. St. Rep. 45, to quote a headnote, that “One who pays for land and takes deed to himself is not bound by a parol agreement to let another have an interest in the land upon payment of a portion of the expenses incurred in acquiring the title, nor by a parol agreement to purchase for himself and the other jointly. ’ ’
This holding has been reaffirmed in a number of subsequent cases which are cited and reviewed in the case of George v. Donohue, 191 Ark. 584, 86 S. W. 2d 1108.
But there are other facts which must be considered, one of which alone is decisive of the case, that is, the validity of a receipt reading' as follows: “On this day the 31st of August, 1937,1, Henry Rnshton received from Lavada Isom the sum of $300, making a total of $550 received from her for the purchase of the following land and improvements thereon 200 x 240 feet of land, east side of block 8, original survey, located in the town of Emerson, county of Columbia, state of Arkansas. (Signed) Henry Rushton.”
It may also be said that the statute of frauds is not pleaded in this case, and that, according to appellee’s testimony, she was placed in possession of the lot pursuant to her agreement to purchase it, and remained in possession of it until 1940, at which time she was ejected, whereupon she brought this suit.
All the witnesses, including several who testified on behalf of appellants as handwriting experts, admit that the name signed to the receipt is the genuine signature of Henry Rushton. It was their opinion, however, that the typewritten recital of the payment of money did not appear on the paper when Rushton signed it.
In their opinion, the paper in question was the top of a paper writing, probably in pencil, which Rnshton had signed, and that this writing had been erased and the typewritten matter appearing above Rushton’s signature substituted, although Rushton signed with pen- and-ink.
We have this writing before us, as did the chancellor below, where it was examined under a magnifying glass. He reviewed the testimony and announced the following finding and conclusion:
“There is no way of knowing what Mr. Bnshton did, he is dead, and except for these witnesses there is no one to testify to the transaction. If it had been-written on newspaper, or on paper that had been used for some other writing, still I do not think it smacks of fraud. One erasing a letter couldn’t have done that good a job. To take a letter and erase all the writing on it is quite a job, and couldn’t be done so neatly as to show, or to look like it hadn’t been erased. The receipt shows they bought this piece of property and that they paid the purchase price of the property. ’ ’
Without reciting the extensive and conflicting testimony upon the question whether the receipt is a forgery, we announce our conclusion to he that we are unable to say that the chancellor’s finding upon this issue is contrary to a preponderance of the evidence. If this receipt is genuine, and is not a forgery, then the testimony is conclusive that the trust existed which the court declared.
There appears to the case of Kimmons v. Barnes, 205 Ky. 502, 266 S. W. 891, 42 A. L. R. 5, an exhaustive annotation, extending from page 10 to page 126 of the volume last cited, upon the effect of an oral promise of one to buy land for another. Cases from our own as well as from English courts and the courts of all the other states are cited. These are to the effect that, if one is given money by another to purchase land, and the agent takes the conveyance to himself, a trust results by operation of law and will be declared by the courts. Here, Bushton did not pay appellee’s money, but paid his own money; but that he bought as agent and for the benefit of appellee is conclusively shown by the fact that he accepted from her the purchase money and the cost of the repairs.. He was, therefore, her trustee.
Among the numerous cases cited by the annotator in the Kimmons case, supra, and from which he quotes, is that of Avery v. Stewart, 136 N. C. 426, 68 L. R. A. 776, 48 S. E. 775, where it was said: “ ‘If the legal title is obtained by reason of a promise to hold it for another, and the latter, confiding in the purchaser and relying on his promise, is prevented from taking such action in his own. behalf as would have secured the benefit of the property to himself, and the promise is made at or before the legal title passes to the nominal purchaser, it would be against equity and good conscience for the latter, under the circumstances, to refuse to perform his solemn agreement and to commit so palpable a breach of faith.’ ”
Appellee testified that she advised Rushton that she was prepared to complete payment for the lot, but that when she did so he gave her the receipt copied above, and when she asked Rushton why he did not give her a deed, he answered that his wife would not sign it, and that the receipt would suffice until a deed could be procured. Rushton died without executing the deed, but that fact does not affect the obligation of his widow and heirs to appellee to divest themselves of the legal title which Rushton held as trustee for appellee’s benefit. As Rush-ton had title only as trustee, his widow had no dower or other interest in the land.
The decree vesting title in appellee is affirmed. | [
114,
108,
-80,
45,
-6,
96,
42,
-86,
105,
-86,
35,
83,
107,
-40,
0,
39,
-26,
73,
113,
122,
-59,
-93,
15,
98,
66,
-77,
121,
77,
-80,
-52,
-10,
-41,
76,
32,
-62,
-107,
102,
-64,
-63,
80,
14,
-127,
-117,
101,
-39,
96,
48,
59,
84,
15,
17,
-106,
-77,
44,
24,
75,
73,
46,
-53,
49,
80,
-8,
-86,
-60,
-1,
11,
33,
39,
-8,
67,
-24,
-118,
-112,
57,
0,
-56,
19,
54,
-110,
116,
75,
-117,
8,
34,
102,
2,
101,
-1,
-48,
-104,
46,
-2,
13,
-90,
-14,
64,
67,
41,
-65,
-97,
-7,
0,
96,
-10,
-8,
-115,
29,
104,
15,
-113,
-42,
-127,
-115,
60,
-100,
3,
-41,
15,
48,
113,
-49,
-94,
92,
-29,
112,
-101,
15,
-3
] |
John A. Fogleman, Justice.
This is the second appeal in this case. On the first appeal, we held that the lower court erred in sustaining a motion to dismiss challenging the sufficiency of the evidence on behalf of appellants to make a prima facie case to establish a prescriptive easement for a road or driveway across the lot on which appellee’s home is situated. Stone v. Halliburton, No. 5-4017, 241 Ark. 710, 409 S. W. 2d 829.
On remand, the trial court heard the testimony of witnesses offered by appellee and rebuttal testimony offered by appellants. The complaint of appellants was dismissed for want of equity. The only question for our determination is whether the chancellor’s holding that appellants had not established a prescriptive easement for a way across appellee’s lot isclearly against the preponderance of the evidence.
Appellants ’ east boundary is appellee’s west boundary. Both tracts (along with a lot now owned by one Perry) were once owned by John Redding. The Perry lot lies immediately north of appellants ’ property. Bell-wood Addition and Annex' lie immediately west and south of the Stone property. 'Stone purchased his house and lot on September 10, 1962, from one Edwards. Mr. and Mrs. Edwards told him that he had a right of ingress and egress through the Halliburton property. One of Redding’s children sold the Halliburton lot in 1957 to Marion Witkowsky, who sold it to appellee in 1959 or 1960. Mrs. Roe, a daughter of Redding, sold the Stone lot to Edwards.
Redding Lane runs in a westerly direction from the old Conway highway along the north side of appellee’s property and is admitted to be a public way until it reaches a point near the northwest corner of appellee’s lot. Appellants contend that this way continues on a curving route across the northwest corner of appellee’s lot, the southeast comer of the Perry lot and near the north boundary of appellants’ lot. This drive presently terminates at the western boundary of appellants’ property, near which their home is situated. Appellee contends that the use of the portion of the way across his property has been permissive and that he has withdrawn his permission for its use. He claims that he had the right to bnild a fence crossing the drive along his boundary.
Appellant, Doyce Stone, testified that the road or driveway was in the same condition as it was when he purchased his property until appellee built the fence in June 1965. He said that he had used the portion of the way across appellee’s property all this time and that this is the only way of getting in and out of his property. Since the fence was built, he has crossed the Perry property. Stone saw a post on the boundary line when he first moved into his home. He referred to the way as his drive or driveway. According to him, the only persons, other than himself, using the part in question were Mrs. Perry, who used it as a circle on which to turn around, and those persons coming in to see him. At the time of his purchase he was told that he had a separate deed for a 20-foot drive. This deed was never produced. “When Stone asked the mayor to pave Redding Lane, he also asked that the driveway be blacktopped. The mayor refused to do the latter because he considered the driveway to be private property. When appellant talked to Edwards after Halliburton blocked the drive, Edwards told him of having had the same trouble with Halliburton.
One A. M. Duncan testified that he first became familiar with this property in 1952. He said that he used the road in question to get into the territory to go squirrel hunting in the 1950’s. He stated that the only part of the road that is different in any respect is the portion of Redding Lane that has been blacktopped (i. e., the portion conceded to be a public way). He said that the road was used by John Redding to get in and out from his property and by the public to get back to the Redding house (now the Stone house). He admitted that Redding had told him that he could come in there.
Mrs. Bessie Turley, who has lived on Bedding Lane since 1942, also testified. She stated that the road has passed her property and the Stone house and proceeded to the Witkowsky property, lying immediately west of the Bedding property, since 1942. She said that no road was actually built in 1942, but that people just drove in and out. She testified that Bedding was a contractor and kept his trucks on his property and that Mr. John Witkowsky had some cattle and hogs he kept beyond the Bedding house. She said that everyone used the road to get in and out and to feed the stock and hogs. She called it a public road. She testified that Bellwood Addition had taken a part of the road, closing it at the west boundary of the Stone property. According to her, no one had ever tried to block the road except Mr. Halliburton who had blocked it three or four times. She said he had blocked it on Mrs. Boe, Mr. Edwards and Mr. Stone.
Sam Block, a real estate broker who had been familiar with the property since it was owned by Mrs. Boe, sought to help Edwards avoid litigation by obtaining an easement from Halliburton when the latter fenced off the way during Edwards’ occupancy of the Stone tract. Block had handled the sale of the property by Mrs. Boe to Edwards.
Marion Witkowsky testified that at the time he purchased the Halliburton lot, there were several wagon trails and that he made an all weather road which ended at the edge nf the Bedding property (now the Perry lot). He stated that Mrs. Boe then owned both the Stone lot and the Perry lot. He recalled that somewhere around 1957 or 1958, Mrs. Bedding (Boe?) sold the Perry lot to one John Perrin. Witkowsky then told Mrs. Boe that she was cutting herself off from the road by the sale of this property and suggested that sbe have some written agreement with the purchaser, but she relied on her friendship with her purchaser.
According to appellee’s testimony: Mrs. Roe was living in the Stone house when he acquired his property and a man named Ratliff was living on the Perry property; at that time, Mrs. Roe was crossing his property via an old wagon trail near the present location of his garage, some 30 feet north of the disputed area; he built a fence extending out from his garage, and Mrs. Roe then started using the disputed, area for ingress and egress; although he spoke to her a;bout this, she did not change her route; she sold the Stone lot to Ratliff'; the use of the entry across his property ceased upon the sale to Ratliff and no one thereafter has crossed his property without his permission; Edwards put gravel on the drive up to the property line and Stone had the disputed area graveled; appellee put up a fence on the line when Edwards lived on the Stone lot; he had given Edwards permission to cross as long as there was no trouble; the fence was still up when Stone first moved there, but he told Stone he would take- the fence down until they had trouble and that Stone could use the driveway until then.
Mrs. Halliburton, a part owner of the property, corroborated her husband’s testimony about the means of ingress and egress used by Ratliff and said that appellee told her of giving Stone permission to cross the corner of the property.
George White testified in rebuttal. He said that he had been acquainted with the properties of the parties since 1924; that back as far as he could remember, the road of which Redding Lane was a part went all the way back to the river; that when he first knew the property there was a dairy at the site of the Stone house and that this road was used by many people such as fishermen who used it to get to Levy; that the road was used as a public road up until'the Bellwood Subdivision went in.
Although appellants contacted Edwards when this controversy arose, he did not testify. Apparently none of the property owners protested when the alleged way was closed on the west by the laying out of Bellwoo'd Addition.
The determination of whether use of a way over the lands of another is adverse or permissive is a fact question. Brundidge v. O’Neal, 213 Ark. 213, 210 S. W. 2d 305; St. Louis Southwestern Ry. Co. v. Wallace, 217 Ark. 278, 229 S. W. 2d 659. Former decisions are rarely controlling on the factual issue of whether a particular use is permissive or adverse. Duty v. Vinson, 228 Ark. 617, 309 S. W. 2d 318. If the use of this way was permissive or if the circumstances were not such as to put appellee and his predecessors in title on notice that the way was being used under a claim of right, then appellants cannot prevail. The burden was on appellants to show by a preponderance of the evidence that there has been use of the disputed strip which had been adverse to appellee and his predecessors in title under a claim of right, and not permissive, for a period of at least seven years. Duty v. Vinson, supra; Brundidge v. O’Neal, supra.
Use which is permissive in its inception can never ripen into an adverse or hostile right no matter how long continued unless the statutory period has elapsed after notice of the adverse claim has been brought home to the owner. Harper v. Hannibal, 241 Ark. 508, 408 S. W. 2d 591. Some act or circumstance, in addition to, or in connection with, the use of a way across unenclosed lands of another and tending to indicate that the use was not merely permissive is required to establish a right by prescription. LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461.
An inference may well be drawn from the testimony of Marion Witkowsky that no use was being made of this disputed strip between his acquisition of the property in 1957 and his sale to appellee. There is evidence tending to show clearly that appellee has at all times since his purchase of the property sought to exercise dominion and control over the disputed strip, that he granted permission to both Edwards and Stone to use the strip, and that, at one time before the present occasion, he withdrew that permission. The closing of the west end of this way without protest is also a factor to be considered in determining the fact question whether or not use has been permissive. Abbene v. Cohen, 228 Ark. 266, 306 S. W. 2d 857.
Furthermore, there is no evidence to indicate when the Halliburton residence was built or when, if ever, the lot ivas enclosed. Use of unoccupied and unenclosed lands for passage is presumed to be permissive until those using the way, by their open and notorious conduct, apprise the owner that they are claiming it as of right. Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986; LeCroy v. Sigman, 209 Ark. 469, 191 S. W. 2d 461.
"While not conclusive, the overtures made to appel-lee by Block in behalf of Edwards may properly be considered as a circumstance bearing on the nature of the use. Martin v. Winston, 209 Ark. 464, 190 S. W. 2d 962.
Not having had the advantage of seeing and hearing the Avitnesses, we are unable to say, on the conflicting-testimony, that the finding of the chancellor is clearly against the preponderance of the evidence.
The decree is affirmed. | [
-43,
-20,
-44,
62,
58,
64,
88,
-88,
104,
-87,
103,
81,
-81,
-54,
-116,
57,
-81,
59,
81,
-70,
-43,
-77,
75,
-32,
80,
-5,
-45,
-43,
-92,
78,
-10,
-43,
76,
32,
-53,
-43,
68,
-54,
-19,
92,
78,
5,
-102,
77,
-39,
98,
48,
47,
20,
15,
49,
-65,
-13,
36,
25,
-61,
73,
46,
-53,
45,
89,
-72,
-70,
4,
127,
7,
49,
53,
-104,
1,
-22,
10,
-112,
49,
25,
-88,
115,
-90,
-106,
116,
11,
-69,
8,
32,
98,
3,
97,
-9,
-32,
56,
12,
-4,
-115,
-90,
-110,
25,
73,
97,
-106,
-107,
124,
0,
68,
122,
-18,
76,
95,
104,
9,
-113,
-14,
-75,
-115,
120,
-108,
3,
-29,
1,
52,
80,
-49,
-22,
84,
103,
116,
-101,
-114,
-103
] |
McHan'by, J.
Appellees are the widow and heirs at law of Rufus Johnson who died intestate on June 26, 1938. Intestate was the record owner of the 80 acres of land in controversy, described as south half, northeast quarter, section 2, township 5 north, range 2 west, in Woodruff county. Not having paid the taxes thereon for 1932, payable in 1933, the land forfeited for said taxes and was sold to the State, June 12,1933. No redemption from said sale was made in the time provided by law, and, after the expiration of the two-year redemption period, the land was certified to the state in 1935. Suit was broug’ht by the State i-n October, 1936, to confirm the State’s title to this and other lands, which resulted in a confirmation decree on May 10, 1937. Thereafter, on November 2,1937, appellant purchased said land from the state for a consideration of $81 and received a deed to same from the Commissioner of State Lands. Nine days later, November 11, 1937, said intestate, Rufus Johnson, filed a pleading in court styled “Motion for Intervention” in the confirmation proceeding in which he set up his ownership of the land, the confirmation decree based on the tax sale in 1933, and that the tax sale was void for the reason that the notice of the delinquent list of lands was not published as required by law. He also set up appellant’s claim of title based on his deed from the State as aforesaid, and that the amount of taxes, penalty and costs and cost of redeeming amount to $9.21 (should be $19.21), which sum he had tendered appellant for a quitclaim deed, which was refused. He prayed an order set ting aside said confirmation decree and that he be permitted to redeem from the state. This pleading was not signed by anyone. Appended thereto was the form of an oath, as follows: “State of Arkansas, County of Wood-ruff. Comes Rufus Johnson and on his oath says that he believes that the statements of this motion are true and correct, and that he had no notice or knowledge of the pending of this action to confirm the title to said lands in the State of Arkansas until after the decree was made and entered therein.....................................Subscribed and sworn to before me this 10th day of November, 1937............................... Notary Public.” Neither lie nor the notary signed in the blank spaces provided. On July 28, 1939, appellees filed an amendment to the “Motion for Intervention,” above set out, in which they alleged that Rufus Johnson had no notice of the confirmation decree of May 10,1937, and set up a number of additional grounds of invalidity of the tax forfeiture and sale of said lands in 1933; that they are the widow and six minor heirs of said Rufus Johnson; that appellee, Susie Johnson, brings this suit as the mother and next friend of said minors; and she prayed an order of revivor in her name as such. In the decree rendered the case was revived.
On January 8, 1940, appellant filed an answer to the intervention and amendment thereto in, which lie set up his deed from the State based on said confirmation decree and alleged that the intervener did not tender into court the amount necessary to redeem from the confirmation decree, within the time required by statute, or at all; that he failed to file a proper intervention as required by Act 119 of 1935, or at all; that he failed to file the affidavit as required by said statute and has in nowise complied with said act; and that it is too late to redeem from the confirmation decree. The answer denied all the allegations in the motion and amendment and asserted they did not set up a meritorious defense.
Trial resulted in a decree setting aside the confirmation decree as to the 80-acre tract of land here involved and holding that the tax sale was invalid for the reason that proper notice then required by law was not published, and the sale was set aside, the State’s deed to appellant was canceled, and the title was confirmed in appellees, heirs of Rufus Johnson, subject to the dower and homestead rights of appellee, Susie Johnson, the widow. The court also found that Jonas T. Dyson (now deceased) as attorney for Rufus Johnson tendered into court and has kept alive a tender of $49.24, which was the sum necessary to redeem said lands, being the amount of the taxes, penalty, interest and costs for which-the said lands sold. This appeal followed.
To reverse this decree appellant first says that Rufus Johnson did not file the intervention or motion that is required by Act 119 of 1935 and cites Angels v. Redmon, 198 Ark. 980, 132 S. W. 2d 170, to sustain him in his construction of § 9- of said act. That section in part reads as follows: ‘ ‘ The owner of any lands embraced in the decree may, within one year from its rendition, have the same set aside in so far as it relates to the land of the petitioner by filing a verified motion in the chancery court that such person had no knowledge of the pendency of the suit, and setting up a meritorious defense to the complaint upon which the decree was rendered. . . .”
We held in Angels v. Redmon, supra, that the affidavit required by ■§ 9 of said Act 119, as to the lack of knowledge of the pendency of the confirmation suit should be made by the owner of the land at the time the confirmation decree is rendered and not by the subsequent grantee of the owner because such grantee’s knowledge was unimportant, and that the grantee’s affidavit that the grantor had no knowledge thereof was hearsay and did not meet the requirements of the statute. That holding while technical, is sound, but it is not controlling here. Rufus Johnson did file a pleading within the year allowed, setting up a meritorious defense and in the form of affidavit attached thereto stated that he had no knowledge of the pendency of the confirmation suit until after the decree was rendered. His attorney neglected to sign this pleading and he neglected to have Johnson sign the affidavit or oath, above copied, and neglected to have a notary or other officer attest same. Was -this neglect fatal? We do not think so. The signing and attestation were formalities and were no doubt the result of neglect or oversight. Our statute, § 1437 of Pope’s Digest, provides : “Every pleading must be subscribed by the party or his attorney, and the complaint, answer and reply must be verified by the affidavit of the party to the effect that he believes the statements thereof to be true . . .” In Coleman v. Bercher, 94 Ark. 345, 126 S. W. 1070, construing this statute, this court held, to quote a headnote: “The primary object of the Code of Practice is the trial of causes upon their merits, and that the rights of suitors may not be sacrificed to technical mistakes, omissions or inaccuracies.” It was further held, in construing what is now § 1463 of Pope’s Digest, relating to amendments to pleadings at any time in furtherance of justice, that: “The omission of the plaintiff or her attorney to sign the complaint, and the omission of Hiner in the affidavit attached thereto to state that he was plaintiff’s attorney, were mere formal defects or clerical mistakes which could not affect the rights of the parties in a trial on the merits of the case; and the motion to correct same, having been seasonably made, should have been allowed by the court as a correction of a mistake, under § 6145, Kirby’s Digest (now 1463, Pope), and thus have cured the defect.” This case has been subsequently followed, the latest being State v. Midland Valley Rd. Co., 197 Ark. 243, 122 S. W. 2d 173, where it was said: “The pleadings of appellee were not verified, but this was a mere formal matter and if motion had been made the court would doubtless have required a verification. ’ ’
So, here, the pleading filed, while styled a motion to intervene, was in effect an answer to the confirmation suit and a cross-complaint against appellant, and a notice was served on appellant on November 12, 1937, a 1101106 for a restraining order, and that Eufus Johnson was filing an intervention in the Woodruff chancery court to set aside the decree of confirmation. Appellant did not make timely appearance in the action, but waited until July 20, 1939, more than a year after the death of Eufus Johnson, when he' filed a motion to be made a party to intervention and a demurrer thereto on the ground that it did not state a defense to the confirmation suit. No mention was made therein that the intervention and affidavit were defective because not signed and verified, but he waited until January 8, 1940, to file his answer in which he alleg’ed the insufficiency of the intervention in the respects stated, and about six months after appellees had filed their amendment to the intervention which was properly verified. Moreover, appellant’s demurrer was overruled July 20, 1939, and he was given five days in which to answer, but he waited until January 8, 1940, nearly six months. If appellant had promptly moved to dismiss the intervention, or at any time during the life of R-ufus Johnson, the court would have doubtless required him to sign his complaint and execute the affidavit. By this long delay, we think appellant waived the defects complained of and that the requirements of § 91 of said Act 119 are no more binding and jurisdictional than the requirements of § 1437 of Pope’s Digest. This requirement of § 9 of said act had been omitted from Act 423 of 1941 and was not effective when the decree herein was rendered. But assuming that the former act was the applicable law in this case, appellant waived the technical omissions by his delay.
Appellant also contends there was no proper order of revivor in the name of appellees. We cannot agree as the decree herein does revive the action in their names.
It is also argued that no meritorious defense was alleged. The original intervention alleged insufficiency of the publication of the notice of the delinquent list of lands — that- it was not published as required by Act 16 of 1933 Special Session. Section 5 of said Act 16 of the special session of 1933 amends Act 250 of the 1933 regular session and requires a notice of the delinquent list'as therein specified to be published and that the lands on said list will be sold at the time specified. It provides a form of notice to be used and the clerk is required to attach his certificate, at the foot of the record of said list, stating in what newspaper said notice was published and the dates of publication “and such record, so certified, shall be evidence of the facts in said list and certificate contained.” This record was introduced and-it failed to show that the notice was published in any paper and the certificate of the clerk fails to show the statutory requirements. The certificate is “that the above is a time and correct copy of notice of delinquent tax sale appearing in the delinquent tax sale record for 1932, Yol. 2, p. 155.” This was insufficient and the court properly found that it was.
The decree is accordingly affirmed. | [
-75,
109,
-76,
44,
40,
-28,
10,
-86,
82,
99,
36,
83,
111,
26,
80,
37,
-29,
13,
113,
105,
-58,
-77,
119,
-92,
82,
-77,
89,
-43,
-75,
77,
-28,
-41,
72,
32,
-22,
-43,
-30,
-30,
-57,
88,
-58,
1,
-117,
76,
-45,
64,
60,
-93,
80,
15,
85,
-82,
-13,
-86,
113,
67,
109,
46,
-1,
-84,
80,
-8,
-97,
5,
-1,
7,
33,
103,
-102,
-127,
72,
-22,
-112,
17,
-128,
-8,
119,
54,
-58,
116,
10,
25,
8,
100,
-25,
9,
-51,
-17,
-80,
8,
14,
-70,
-99,
-90,
-126,
81,
66,
11,
-74,
-100,
125,
-128,
-121,
126,
-12,
-107,
28,
44,
-123,
-50,
-106,
-127,
21,
60,
-108,
3,
-25,
71,
48,
113,
-49,
-26,
92,
71,
50,
-101,
-121,
-7
] |
Grirrin' Smith, G. J.
March 13, 1941, J. W. Johnson filed suit in replevin, alleging ownership of a red heifer claimed by O. T. Byrd. A six-man jury in the justice court of Jeff White found in the plaintiff’s favor. Judgment was for the heifer and $15. Johnson had alleged the heifer to be worth $15, and had asked $30' as damages.
On appeal a circuit court jury found for the defendant (Byrd) “$50 or the calf in question.”
Three errors (copied in the margin) are urged.
First. — Appellee testified he got the heifer from a brother about March 15, 1939, and took it home. The calf was born in April, 1938. Appellee turned it out to graze on the open range. For a time it returned to appellee’s home with other cattle, then disappeared. Byrd and his wife, while driving on the highway in February, 1941, saw the animal pasturing with some of appellant’s stock. The two testified that they recognized it, and made definite identification in general terms. Byrd’s statement was that “. . . my heifer is a three-year-old, past, and not a two-year-old,, past.” Undisputed facts are that when the trial was had before Justice of the Peace White the heifer had not lost any of its so-called “milk teeth”; also, that when trial was had in circuit court the animal still retained “. . . two large center front teeth and the rest were milk teeth.”
Farmers’ Bulletin No. 1721, U. S. Department of Agriculture, is attached to appellant’s brief. Using the bulletin as an authority, it is argued that the heifer could not belong to Byrd because of the admitted condition of its teeth; therefore, it is insisted, the evidence is contrary to recognized laws of nature.
While we find it difficult to understand how appellee and those who testified for him were able to definitely identify the animal, we are not willing to say the evidence was not substantial; hence assignment No. 1 must be dismissed.
Second.■ — Insistence is that because the heifer bore Johnson’s mark, the burden rested upon Byrd to prove ownership, and the court’s ruling to the contrary was erroneous. The mark was only evidential. ■
Third. — Was it essential that there be evidence of value! The only showing of worth is contained in the affidavit filed by Johnson, alleging that in March, 1941, the heifer was worth $15, and that damages were $3,0. Johnson has asked for another trial on the ground of newly discovered evidence, and says that if given, the opportunity he will produce the heifer for a jury’s inspection. The absence of evidence as to value was not raised in appellant’s motion for a new trial, unless it be said that the general allegation that the verdict was contrary to the law and the evidence was sufficient. If the value be fixed at the lowest amount shown — that contained in the affidavit and bond — fifteen dollars would be the maximum recovery in the event the animal cannot be delivered, and the error complained of would be cured. Keller v. Sawyer, 104 Ark. 375, 149 S. W. 334.
Our holding that the value should be fixed at the lowest figure substantially dealt with does not give the party in possession the right ,to pay. the alternative money judgment and retain the property. The owner has an absolute right to have his property restored if that can be done. Bilby v. Foosh, 90 Ark. 297, 119 S. W. 286; Swantz v. Pillow, 50 Ark. 300, 7 S. W. 167; Miller v. Gordon, 172 Ark. 1, 285 S. W. 359.
Affirmed.
(a) “The verdict of the jury was contrary to and not supported hy any substantial evidence.”
- (b) “The trial court erred in instructing the jury over the objection and exception of the plaintiff that the burden rested upon the plaintiff to prove by a preponderance of the evidence that the animal in question was the property of the plaintiff.”
(c) “The trial court erred in not granting a new trial on the grounds of newly discovered evidence.” | [
113,
-19,
-68,
61,
8,
32,
32,
-98,
66,
-117,
39,
83,
-59,
-46,
68,
121,
-25,
45,
-59,
75,
-57,
-77,
86,
-96,
-78,
-45,
-39,
-35,
49,
77,
-84,
86,
9,
24,
-54,
93,
98,
-94,
-127,
-36,
-50,
-116,
57,
-3,
-7,
-64,
56,
111,
118,
71,
49,
31,
-25,
46,
61,
67,
33,
46,
-17,
41,
-56,
-15,
-74,
7,
125,
6,
-77,
114,
-102,
69,
88,
46,
-112,
113,
0,
-8,
122,
-74,
-126,
116,
40,
-103,
8,
38,
98,
5,
29,
79,
116,
-100,
111,
95,
-115,
-89,
-112,
64,
67,
34,
-66,
-103,
48,
-48,
-105,
104,
-26,
69,
-99,
40,
-125,
-114,
22,
-93,
-113,
-92,
-100,
25,
-13,
-73,
17,
113,
-51,
-22,
93,
69,
120,
-101,
-122,
-10
] |
McHaney, J.
Appellant R. A. Martin was, until January 1, 1925, and for some years prior thereto, clerk of the circuit and chancery courts of Cross County, and the appellants R. L. Block and N. B. Martin were the sureties on his official bond. Appellant E. L. Cooper became the clerk of said courts on January 1, 1925, and is now such clerk, and the appellants "W. W. Stacy and O. C. Beamon are the sureties on his official bond. In a suit which originated in the circuit court of said county, but which was later transferred to the chancery court, in which the Parkin Home Bank, was plaintiff, A. N. Beattie and A. R. Bogard were defendants, and certain insurance companies that admitted liability to said Bogard in the sum of $7,311.19 were garnishees, and appellee F. W. Dew-son, doing business as the Shelby County Oil Mill, was intervener, the court made an order, on the 17th day of April, 1924, directing the garnishees to pay said sum to R. A. Martin, as clerk of the court, which they did, and were discharged from any further liability in the case. Martin accepted said sum from the garnishees, and deposited same in the Bank of Parkin, of which he was a director, on April 18, 1924. Thereafter, on the 22d day of September, 1924, the chancery court entered a decree in that cause, by which judgment was given in favor of the Parkin Home Bank against Beattie in the sum of $4,943.45, with interest, against the defendant A. R. Bogard, in the sum of $3,000, with interest at the rate of 8 per cent, per annum from August 4, 1922. In the same suit the intervener, Dewson, recovered judgment ag’ainst Bogard in the sum of $2,812.70, with interest at the rate of 8 per cent, per annum from April 15, 1924, and it was further decreed that A. R. Bogard recover judgment against the plaintiff, Parkin Home Bank, in the amount of the interest at 6 per cent, per annum from December 17, 1923, on the sum of $7,311.19. And it was further decreed “that R. A. Martin, clerk, from the funds in his hands pay all costs herein accrued, the judgment of F. W. Dewson and the judgment of the Parkin Home Bank against the defendant A. R. Bogard, after first deducting from said judgment of Parkin Home Bank against the defendant, A. R. Bogard, an amount equal to the interest on the sum of $7,311.19, as stated.”
This judgment was rendered on September 22, 1924, as heretofore stated, but was not entered until December 17, 1924. The Parkin Home Bank, not being satisfied with the decree of the court, prayed and was granted an appeal to the Supreme Court, and on December 20, 1924, filed with Martin, as clerk, its supersedeas bond, with R. Y. Wheeler, Sidney P. Stallings and R. W. Minnie as sureties thereon. No appeal was prosecuted from this judgment, and the clerk, Martin, did not comply with the order of the court by paying out the funds in his hands, as directed. On January 1, 1925, Martin went out as clerk, and was succeeded by Cooper, and on February 23, 1925, Martin gave his check to Cooper for the full amount of the deposit in the Bank of Parkin.
On January 9, 1924, by direction of the Bank Commissioner, the Parkin Home Bank ceased doing business as a banking institution, and was taken over by the Bank of Parkin, a new institution organized for such purpose, with substantially the same officers and stockholders as the Parkin Plome Bank, which purchased all the assets of the Parkin Home Bank, except a list of assets that the Bank Commissioner would not permit to be taken over by the new bank, in the sum of approximately $140,000, for which the Parkin Home Bank executed its note to the Bank of Parkin, and the assets not acceptable to the Commissioner' were pledged as collateral to secure'the note of the Parkin Home Bank. The Parkin Plome Bank was insolvent at the time on account of the paper the Bank Commissioner required to be taken nut of the assets. Martin continued to be a director in the Bank of Parkin. Thereafter, on the 23d day of March, 1925, the Bank of Parkin was declared insolvent, and taken over by the Bank Commissioner for liquidation. At the time its doors were closed appellant Cooper had never presented the check given him by Martin for the fund in court, but still held it, without making any effort to collect same or to perform the order of the court in distributing said fund in accordance with the decree rendered September 22,1924, and entered December 17, 1924.
So, in August, 1925, appellees Bogard and Dewson brought this suit against all the appellants and all the other appellees, including Sidney F. Stallings, who does not appear to be a party to this appeal, and Loicl Rainwater, the then State Bank Commissioner, to recover from them the respective amounts of their judgments as heretofore set out and due them as determined in the prior suit, and which was not paid by reason of the failure of the Bank of Parkin. ■ Neither Martin nor Cooper filed any claim with the Bank Commissioner for the $7,311.19, but later a dividend was paid by the Bank Commissioner, under order of court, to the Cross County Bank, as registrar of the court, in the sum of $1,462.23, which was 20 per cent, of said fund in court, pending determination as to who was rig’htfully entitled thereto.
The Bank Commissioner answered that, under the terms of the original decree, and of the fund in court deposited in the Bank of Parkin, he was entitled to offset the amount of the .judgment in favor of the Parkin Home Bank, which, with interest .to the time the Bank of Parkin was taken over by him, amounted to $3,634.70, and which, when taken from the original fund, including interest to said date, amounting to $7,865.62, would leave a balance of $4,241.38, held by him as a general deposit as of said date, on which dividends are payable as made to all creditors of the bank. He further alleged that, on said date, the amount of Dewson’s claim, with interest, was $3,024.10, and Bogard’s $1,206.82, which latter amount was the balance due Bogard under the terms of the original decree, after paying his indebtedness to the bank, ■with interest, and taking out the indebtedness due Dew-son; that, after paying the 20 per cent, dividend on said respective sums, there was a balance in the hands of the Cross County Bank, as registrar, in the sum of $616.05, which should be paid back to the liquidating agent into the general assets for distribution among the general creditors of the Bank of Parkin.
On a final hearing the court entered a decree in favor of Bogard and against appellants, the two clerks and the sureties on their respective bonds, in the sum of $1,206.82, with interest at 6 per cent, from March 23, 1925; in favor of Dewson against the same appellants in the sum of $3,024.10, with interest at 6 per cent, from March 23, 1925; and in favor of Bogard and Dewson against Minnie and Wheeler for interest on their, respective sums due them from the fund in court from the 22d day of September, 1924; and in favor of Minnie and Wheeler against the two clerks and their sureties, the amounts decreed against them in favor of Bogard and Dewson. The court denied the prayer of the Bank Commissioner for the return of $616.05, and ordered the amounts paid to Bogard and Dewson as a dividend on their claims, to be credited therewith, and that the additional sum of $616.05 in possession of the Cross' County Bank be paid to Dewson and applied as an additional credit on his claim; that Minnie and Wheeler should pay one-half the costs in this action, and that the two clerks and their sureties should pay the other one-half thereof, and that Minnie and Wheeler should pay all costs in the original action. The court also allowed, as a claim against the Bank Commissioner, the amount due Bogard in the sum of $1,206.82, and the amount due Dewson in the sum of $3,024.10. From this judgment the two clerks and their sureties have appealed, and Bogard and Dewson have taken a cross-appeal against Minnie and Wheeler.
1. As to the liability of the two clerks and their sureties, the lower court found that they were both guilty of negligence in the handling of said fund, and that they were therefore liable to the appellees Bogard and Dew-son therefor. We think the court must.be sustained in this regard. R. A. Martin, clerk, permitted said sum to remain in the Bank of Parkin from April 18, 1924, until February 23, 1925, at which time he gaye a check to Cooper, during all of which time he was a director in the Bank of Parkin, and had been a director in the Parkin Home Bank prior to its failure, and he must have known of the insolvent condition of the Bank of Parkin at the time of giving this check, and prior thereto. The Bank of Parkin was closed within less than thirty days after giving' such check. Cooper was negligent in not cashing said check within a reasonable time after he accepted same, and both were negligent in not distributing the funds to the parties entitled thereto, in compliance with the order of the court. Martin says the reason he did not distribute it was. because of the supersedeas bond, and Cooper says the reason he did not cash the check was because he had no order of court to do so. But the filing of the supersedeas bond did not excuse Martin from distributing said funds, for the reason that said bond was filed too late for the clerk to issue a supersedeas thereon, for at that time only the clerk of the Supreme Court could have done so. Section 2160, C. & M. Digest, reads as follows: ‘‘Where the appeal is granted by the court rendering the judgment or order, and the bond is executed within thirty days thereafter, before the clerk of such court, the supersedeas shall be issued by such clerk; in all other cases it shall be issued by the clerk of the Supreme Court.” Therefore, since the supersedeas bond was filed more than thirty days aft'er the rendition of the judgment, Martin had no authority to accept and file same, or to issue a supersedeas thereon. Hence the filing of the supersedeas bond was no authority for Martin’s withholding the distribution of the fund in •court. Neither did Cooper require an order of court directing him to cash said check and distribute said fund in accordance with the order of the court, as the fund had not been deposited in the Bank of Parkin by order of the court. It was the voluntary act of Martin in so doing, and was the voluntary act of Cooper in permitting it to remain there after receiving the check from Martin, for the period of time shown here. Cooper was the clerk after January 1, 1925, and the order of the court directing the clerk to distribute the funds applied to him the same as to the previous clerk, after he went into office.
Learned counsel for appellant urgently contend that a clerk who receives custody of private funds under the order of court, and places same in a bank reputed to be solvent, and that later the bank fails and the said fund is lost, without any negligence on the part of the clerk, the clerk and his sureties would not be liable therefor. Several cases from courts of other States are cited to support this principle, but we are of the opinion that this court is committed to the contrary rule. In the case of State v. Watson, 38 Ark. 96, this court held, quoting the syllabus, which is sustained by the opinion in the case, as follows:
“"When money in the control of the circuit court is, by its order, placed in the custody of the clerk, he holds it in his official capacity,- and may be punished for contempt for failing to pay it over as ordered by the court, and deprived of his office for malfeasance; and he and his sureties will be liable for it on its official bond to the party entitled to it.”
True, .n that case, the money had not been deposited in a -bank by the clerk, and there is this difference in the facts of the two cases. In that case the court ordered the clerk to pay +he money over to the party entitled thereto, which he failed to do, and this court, in discussing the case, commented upon § 4818 of Gantt’s Digest, now § 1349, C. & M. Digest, relating to the deposit of funds in court in bank by order of the court. No such order was made in that case, and none was made in this. .The clerk, on his own motion, and without any authority from the court, deposited the funds in the Bank of Parkin, a bank of which he was a director, which had taken over a former insolvent bank of which he was a director, and in which the note of the former bank was listed among the assets in the sum of $140,000, and which latter bank failed only a short time more than a year after its organization. See also Howard v. United States (C. C. A.) 102 Fed. 77.
We therefore hold that, unless the clerk of the court is protected by the order of the court, as provided in § 1349 of the Digest, in depositing moneys which constitute a fund in court in a bank, he does so at his peril, and will be responsible therefor on his official bond on failure of the bank. If he desires protection, he should obtain an order of the court directing him to deposit the fund in the bank.
2. The next question for consideration is the liability of the sureties on the supersedeas bond. The lower court held Minnie and Wheeler liable only for the interest on the respective amounts due Bogard and Dewson as of September 22, 1924, with interest thereon from the 23d day of March, 1925, until paid, such amounts being, respectively, $36.85 and $106.40. We think the decree of the court was correct in this regard. The supersedeas bond was filed out of time, and did not become effective as a supersedeas bond, but was good' as a common-law bond to pay appellees, Bogard and Dewson, such costs ■ and damages as they might sustain, and the damages sustained would be the interest on the funds to which Bogard and Dewson were entitled, including the costs, which the court adjudged properly. Moreover, even though said supersedeas bond had been effective as such, there could have been no further .liability thereon to Bogard and Dewson, as they did not obtain any judgment against the Parkin Home Bank, but only a judgment against the clerk, directing him. to distribute the funds in his hands. The bank was dissatisfied with the amount recovered by it in the order of distribution, and was appealing from that order, but not from any judgment of Bogard and Dewson against it. We do not think the appellants are liable to Minnie and Wheeler for these sums adjudged against them.
3. The order of the court directing the Cross County Bank to pay to Dewson the $616.05 held by it was erroneously made. Bogard and Dewson were entitled to the same dividend on their respective claims as the other creditors, of the bank. The liquidating agent had deposited a dividend of 20 per cent, on the total fund of $7,311.19, or $1,462.23, in the Cross County Bank, as reg istrar of the count, for the benefit of the parties entitled thereto. The claim of Bogard was allowed in the snm of $1,206.82, and the qlaim of Dewson in the snm of $3,024.10, and 20 per cent, of their respective claims was properly paid to them. The $616.05 left over ont of this fund, after paying’ the correct amount to Bogard'' and Dewson, should have been ordered returned to the liquidating agent for distribution to all the creditors of the bank. Otherwise, if the order of the court is carried out, Dewson would become a preferred creditor of the bank, which he is not.
We therefore sustain the contentions of the Bank Commissioner on his cross-appeal. The judgment will ' therefore be affirmed on the appeal and the cross-appeal against Minnie and Wheeler, and reversed on the cross-appeal of the Bank Commissioner and on the judgment against appellants in favor of Minnie and Wheeler, with directions to enter a decree in accordance with this, opinion. | [
-16,
108,
-4,
-35,
74,
112,
40,
-70,
75,
-127,
-11,
83,
-7,
70,
5,
109,
-29,
125,
85,
88,
-91,
-73,
18,
102,
-37,
115,
-55,
-59,
-75,
-49,
-92,
-41,
76,
40,
-118,
29,
-58,
32,
-57,
30,
-50,
9,
-69,
-60,
89,
88,
52,
-71,
32,
75,
69,
-105,
-54,
44,
29,
-49,
73,
45,
-39,
57,
80,
113,
-110,
5,
127,
21,
-127,
69,
-104,
1,
-24,
10,
-104,
53,
0,
-8,
115,
-122,
-58,
-43,
-23,
-67,
8,
102,
98,
1,
-60,
-49,
-24,
-68,
55,
-106,
-99,
-90,
-78,
104,
11,
11,
-74,
-103,
90,
25,
-123,
-4,
-88,
-107,
85,
40,
7,
-53,
-106,
-109,
-113,
56,
-100,
31,
-49,
-113,
52,
113,
-51,
-94,
93,
70,
48,
-101,
-45,
-111
] |
Mehaffy, J.
The appellant brought suit in the Ouachita Circuit Court, alleging that her mother, Hettie Clark, died on July 29, 1925; that the appellee is a fraternal order, organized under the laws of Arkansas and engaged, as part of its work, in the insurance of its members upon the payment of certain dues, assessments and premiums. That Hettie Clark, deceased, was a member of the order, held a certificate of membership or policy of insurance in said order, which she had carried for several years, and had paid dues, assessments and premiums up to the time of her death. That the value of said policy at her death was $300. Proof of death was made in August, 1925. That, after the death of the said Hettie Clark, the certificate of membership or policy was sent to the company at Forrest City, Arkansas, and that defendant has possession of said policy, and appellant is unable to exhibit it. Appellant is the administratrix, and the policy is made payable to the estate of Hettie Clark. She alleged that appellant refused to pay, and prayed judgment for $300.
The appellee answered, admitting that it was a fraternal order, admitting that Hettie Clark, deceased, was, at the time of her death, a member of said order, and held a policy upon which the dues, assessments and premiums had all been paid. But it denies that the policy was, at the time of the death of Het'tie Clark, of the value of $300, but states that it was of the value of $100; that that sum was due; that it had heretofore been tendered, and rejected by the appellant; that defendant has continuously held itself ready to pay the amount, and offers to confess judgment for $100.
One of the policies, the one sued on, was issued in January, 1918, and the appellant testified that that was the only policy her mother ever had. She knew that was the policy, because her mother, before she died, told her where to find it, and it was the only policy found where her mother told her it was, and it was the policy that she returned to the company, and she knew it was the one because of a stain on‘the back of it.
Plaintiff introduced the policy, dated the 15th day of January, 1918. In this policy Hettie Clark’s age was shown to be 37. The plaintiff called Joe Holmes as a witness, and he was -an officer of the local lodge, and testified that the policy issued oh January 15 had lapsed •because of the nonpayment of dues and assessments, but that there had been issued after that time another policy, dated Oictober 15, 1918. This policy had never been delivered to her, but it was held by the lodge, waiting for her to return the policy issued January'15, 1918, which she never did.return. But she continued to pay her dues, and the insurance company conceded that she was entitled to recover $100 on the policy of October 15, 1918. The age in this last policy was stated to be 60 years, and the plaintiff asked permission to show that the age was inserted wrong, that the age as given in the last policy was wrong, that she was not 60 years of age, and that, if the age had been correctly stated, she would have been entitled to $300 instead of $100.
The plaintiff in the suit thought that was the only policy that was ever issued or that her mother ever held, but the undisputed proof on the part of the company shows that that first policy was lapsed and that the other one issued. And the only question in the case was whether she was entitled to recover $100 or $300, and, since this depended entirely upon the age of the deceased at the time the policy was issued, plaintiff should have been permitted to introduce proof- to show that, the ag*e of 60 was inserted by mistake, or wrongfully inserted. If that age was correct, she w'as only entitled to recover $100. If her age was as contended by plaintiff, she was entitled to recover $300.
The court should have permitted the plaintiff to show the age of Hettie Clark, and, for this error, the case is reversed, and remanded for new trial. | [
-80,
125,
-76,
-3,
8,
-32,
64,
-102,
83,
-63,
37,
83,
-23,
103,
20,
109,
-31,
45,
-47,
104,
-74,
51,
19,
40,
-46,
-45,
-87,
-59,
-77,
93,
-28,
-4,
93,
56,
-118,
85,
-126,
-30,
-51,
-40,
-50,
-120,
-53,
-31,
89,
82,
48,
115,
116,
79,
117,
-33,
-77,
-85,
86,
74,
45,
110,
125,
-87,
112,
-79,
-118,
-123,
127,
18,
49,
6,
-103,
-95,
-56,
28,
24,
21,
24,
-8,
115,
38,
-50,
116,
35,
-104,
4,
98,
103,
17,
44,
-21,
-120,
-100,
39,
54,
-99,
-122,
-106,
105,
91,
13,
-65,
-111,
121,
-112,
7,
116,
-68,
-43,
92,
40,
1,
-113,
-44,
-95,
-75,
-32,
-100,
-121,
-25,
-121,
118,
85,
-51,
-30,
93,
71,
126,
-101,
-121,
-78
] |
Smith, J.
Appellee, who sued by her father as next friend, recovered a substantial judgment, which is not complained of as being excessive, against Mr. and Mrs. Brotherton, who are husband and wife, to compensate a serious injury which she sustained as the result of a collision with an automobile in which Mrs. Brotherton was driving alone.
The accident occurred about four o’clock in the afternoon of April 23, 1940. Appellee, who is 14 years old, was returning home from school with three other girls. All were walking north on a highway which leads to the railroad station, but which forks before reaching the station. The right-hand road turns east towards Little Bock, and the left-hand road runs northwest across the railroad tracks.
The testimony on appellee’s behalf is to the effect that the girls were walking on the east side of the highway, and Mrs. Brotherton was driving on the same side of the road in the same direction the girls were walking. Appellee had to cross the highway to reach her home. When the girls came to the. point where the road divided, appellee left the path on the right-hand side of the road, and walked to the west across the highway, and the tes timony is conflicting as to whether she ran or walked into the car or was struck by it. The collision occurred on the west or left-hand side of- the road. Mrs. Brother-ton was driving about 20 miles per hour. She testified that as she approached the girls she blew the horn of her car at a distance of about 100 feet, and that as appellee started across the road she again blew the horn at a distance of about 20 feet from appellee, and when appellee proceeded to cross the road she turned her car to the left to avoid striking appellee, but appellee walked into the car and was struck by the right rear fender. Mrs. Brotherton applied her brakes when the collision occurred and the car was stopped within 20 feet after the collision. Mrs. Brotherton picked appellee up and carried her to a hospital. There was nothing to prevent appellee from seeing the approaching car had she looked.
The testimony on appellee’s behalf is to the further effect that the highway curves at the point where she started across, and that she glanced back down the road in the direction from which the car was approaching, but she did not see it. She walked diagonally or obliquely across the road, and was within a step or two of the opposite side when she was struck. No horn was blown.
Appellants insist, first, that in no event should a judgment have been rendered against Mr. Brotherton; and that contention is not questioned, and must be sustained. It was held in the case of Bourland v. Baker, 141 Ark. 280, 216 S. W. 707, 20 A. L. R. 525, (to quote a headnote) that “The common-law rule that the husband is liable for the wife’s torts had been abrogated by the married woman’s act (Acts 1915, p. 684).” See, also, Johnson v. Newman, 168 Ark. 836, 271 S. W. 705.
It is further insisted by appellants that under the above testimony, viewed, as it must be, in the light most favorable to appellee, it was error on the part of the court not to direct a verdict in appellants’ favor, for the reasons (a) that no negligence on the part of Mrs. Brotherton was shown, and (b) that appellee was, as a matter of law, guilty of contributory negligence.
Whether the testimony sufficiently presented the question of Mrs. Brotherton’s negligence as a fact which should have heen submitted to the jury, presents but little difficulty. The jury might well have found, and, evidently did find, that Mrs. Brotherton should have relied more on the brakes of the car and have placed less reliance upon its horn, and that, although she was not driving at a rapid speed, she should have reduced the speed of the car; and she did not testify that its speed was reduced.
Whether appellee, as a matter of law, was guilty of contributory negligence, is a question of more difficulty.
Now, the testimony on appellee’s behalf is to the effect that the horn was not blown, and that she glanced down the road as she walked obliquely across it at the point where the road began to curve, and that she had nearly crossed the road when she was struck.
Appellee is not of that immature age which, on that account, would relieve her of the charge of being guilty of contributory negligence; yet, as she is still a -child that fact may be taken into account in determining whether she used proper care in crossing the road, and one of the instructions given was to that effect.
The introduction and use of the automobile as a means of conveyance and transportation has added greatly to the hazards of the highways, both to pedestrians and the drivers of cars, yet all have the right to use the highways. It was said in the case of Murphy v. Clayton, 179 Ark. 225, 15 S. W. 2d 391, that “Drivers of automobiles and pedestrians both have a right to the street, but the former must anticipate the presence of the latter, and exercise reasonable care to avoid injuring them. Care must be exercised commensurate with the danger reasonably to be anticipated. What is ordinary care is a relative term dependent upon the facts and circumstances of each particular case. The question of contributory negligence is one for the jury whether the pedestrian, in crossing the street at an established crossing, has exercised such care ás a person of ordinary prudence would exercise for its own safety under the circumstances. ('Citing cases.)”
Notwithstanding the increased hazards of the highways, the courts have not gone to the extent of declaring that, as a matter of law, the pedestrian about to cross the highway must look and listen, and if necessary stop to look and listen as it is his duty to do when he approaches and crosses a railroad track. Whether any or all of these precautions should be taken by a pedestrian crossing a highway is a question of fact, dependent upon the circumstances• of the particular case; aiid we think it was so in the instant case. Appellee testified that she was unaware of the, approach of the car until it struck her, and that she glanced around without seeing it. Had the horn been blown she should have taken cognizance of that fact, and should have ascertained from whence the alarm proceeded before crossing the road. But, as has been said, the testimony presents the question of fact whether the horn was blown.
Upon the whole case we are of opinion that the question of appellee’s contributory negligence was properly a question for the jury; and we are of opinion also that this question was properly submitted to the jury.
The judgment against Mr. Brotherton will, therefore, be reversed, and that cause of action dismissed; but the judgment against Mrs. Brotherton will be affirmed. | [
-16,
104,
-92,
-84,
27,
96,
32,
-118,
103,
-45,
37,
-45,
-81,
-53,
17,
101,
-81,
-71,
85,
106,
-11,
-93,
23,
-93,
-14,
-77,
-69,
77,
-125,
-54,
124,
119,
77,
48,
10,
21,
98,
-54,
-19,
112,
-52,
-100,
-85,
-20,
25,
-62,
48,
59,
-106,
5,
117,
-114,
-61,
46,
120,
86,
105,
106,
107,
-80,
-127,
49,
-113,
1,
127,
70,
-95,
68,
-98,
5,
-40,
24,
-100,
49,
40,
-8,
50,
-26,
-109,
-44,
43,
-117,
12,
-96,
102,
1,
5,
-59,
-4,
-104,
46,
118,
61,
-92,
91,
89,
65,
97,
-65,
-39,
-7,
80,
15,
122,
-72,
77,
92,
40,
1,
-53,
-108,
-79,
-51,
-80,
-100,
-125,
-29,
-83,
50,
113,
-55,
-70,
93,
-28,
118,
-109,
-113,
-70
] |
McHaney, J.
Appellees, plaintiffs below, brought this suit in the justice court against appellant and one Melvin Mitchell, tenant of appellant, to recover $45.63 alleged to be due on an account for merchandise furnished by appellees to Mitchell., An order of general attachment was issued out of the justice court, and three bales of cotton seized. Appellant gave a forthcoming bond for the attached cotton. It was agreed that Mitchell had turned over to appellant, his landlord, his crop,including the attached cotton, in settlement of his indebtedness to appellant, and that this crop was in possession of appellant at the time of .filing the suit. A writ of garnishment was also issued and served upon appellant upon the usual allegations and interrogatories. On the day of trial Mitchell made default, but appellant appeared and defended his right to the property. Judgment was rendered in the justice court against both defendants, and the attachment and garnishment sustained. An appeal was prosecuted by appellant only, to the circuit court, and, at the conclusion of the testimony, a verdict was instructed against appellant, Etheridge, and he has appealed.
It is first contended for a reversal of the case that, since Mitchell was the tenant of appellant during the year 1925, and was indebted to him in excess of the value of the crop produced, lacking $23.30 of paying appellant’s account, he had a prior lien for the amounts furnished by him to Mitchell. It is shown that appellant had an account against Mitchell amounting to $331.83, which began January 1, 1925, and terminated October 10, 1925. In the account filed by appellant there is one item of $60 cash advanced, and it is agreed that this $60 was furnished Mitchell by appellant to make a pleasure trip to visit his kinsfolk in Oklahoma. This being the fact, appellant had no lien on the crop for this item The advances covered by the statute, § 6890, C. & M. Digest, for which the landlord has a lien, must be made to enable his tenant to make and gather the crop, therefore the lien given by the statute did not attach to the crop in favor of appellant as to this item, and, although the crop had been turned over to appellant at the time the suit was brought, the lien of the attachment was ahead of appellant’s claim for this item. Since, as we have already seen, the attachment lien was superior to appellant’s claim with reference to this $60 item, and since this amount is more than sufficient to cover appellee’s debt, we do not decide the other questions raised in the brief, including the question of usury, in appellant’s account with Mitchell.
The judgment of the circuit court directing a verdict against appellant was therefore correct, and it is accordingly affirmed. | [
-48,
101,
-4,
77,
10,
96,
40,
-102,
91,
-126,
116,
83,
-23,
103,
4,
105,
-9,
125,
85,
104,
-124,
-73,
6,
98,
-38,
-5,
-119,
-43,
-71,
77,
-27,
-42,
77,
28,
2,
-107,
-62,
-128,
-59,
30,
-114,
-127,
-87,
104,
-35,
64,
52,
-85,
20,
77,
113,
39,
-29,
104,
53,
66,
76,
47,
-17,
57,
-32,
-31,
-118,
13,
127,
22,
-111,
4,
-98,
-123,
-54,
26,
-104,
53,
1,
-23,
122,
38,
-122,
116,
47,
-103,
9,
102,
98,
32,
-123,
-81,
-104,
-36,
46,
-33,
-99,
-90,
-48,
88,
11,
79,
-68,
-99,
102,
85,
-122,
124,
-7,
-107,
29,
108,
3,
-114,
-44,
-77,
45,
48,
-98,
-101,
-49,
39,
-79,
113,
-51,
-94,
92,
103,
48,
-101,
-121,
-39
] |
Holt, J.
Appellee, Fidelity Company, Trustee, sued appellant, Dunlis, Inc., in the Little Rock municipal court for $150, which it was alleged was due for five months’ rental, at $30 per month, on certain property of appellee occupied by appellant.
From a judgment in favor of appellee in the amount of $150, Dunlis, Inc., appealed to the circuit court. January 12, 1942, appellee filed motion in the circuit court for permission to increase the amount, $150 sued for in the municipal court, to $300, the increase of $150 representing five months ’ additional rental which had become due since the judgment in the municipal court. This motion the court granted over appellant’s objections and exceptions. There was a jury trial in the circuit court January 14, 1942, which resulted in a judgment for $300 in favor of appellee. This appeal followed.
The facts are that on February 15, 1940, appellee, as lessor, and J. E. and Reba Highfill as lessees, entered into a written lease agreement under the terms of which appellee leased to the Highfills for a period of three years, two store rooms on Kavanaugh Boulevard in the city of Little Rock, at a rental of $30 per month, rent payments to begin, however, January 1, 1941, it being stipulated that lessees were to have the property rent free until this latter date. The Highfills operated under this lease until September 24, 1940. On this latter date the Highfills entered into a written sales contract with appellant whereby they sold to appellant for a consideration of $600 all of their right, title, equity, interest and good will in this property. The contract of sale described the property and interest of the Highfills as “a certain business and properties and good will located at 2917 Kavanaugh Street, Little Rock,” and the “equity in said property and business.” This contract of sale was signed by Dunlis, Inc., L. A. Lipscomb, President, P. P. Baird, Vice President, and J. E. Highfill and Mrs. J. E. Highfill, Jr. Following this sale by the Highfills to appellant, on the following day, September 25,1940, with the express understanding and agreement among all the parties, the Highfills, Dunlis, Inc., and appellee, Fidelity Company, trustee, the Highfills surrendered the pos session of the property and premises to appellant, appellant talcing possession. The following indorsements were made upon the lease agreement, supra, between'the High-fills and appellee:' “September 25, 1940. We, the undersigned, do hereby assume the above lease and agree to fulfill all terms included therein. Dunlis, Inc., L. A. Lipscomb, President, P. P. Baird, Vice President. This lease is hereby assigned to Dunlis, Incorporated. Fidelity Company, By: E. J. Pope, Vice President.”
Appellant has had possession and the use of the property since September 25, 1940. After appellant had occupied the property for some time it sent the following letter, to appellee: “Dunlis, Inc., 410 West Third St., Little Rock, Arkansas. Mr. Pope, c/o Fidelity Company, Peoples National Bank Building, Little Rock, Arkansas. Dear Mr. Pope: Due to the business conditions and as a conservative move, several weeks ago we decided to discontinue business at our No. 2 location, 2917 Kavanaugh Boulevard. We, of course, appreciate that we have this property under lease rental for a period of three years beginning January 1, 1941; naturally this lease agreement will have to be carried out by us. This of course places a burden upon this going corporation, a burden that we would like to discard as soon as possible by sub-leasing. With your assistance it is possible that the property could be rented, the opportunity to do so would be presented to you much sooner than to us. To that end we solicit your co-operation. Thanking you, we are, Yours truly, Dunlis, Incorporated. By L. A. Lipscomb, President.” J. E. Highfill and his wife, Reba, both testified that ‘ ‘ they did not have nor did they claim any interest whatever in the leased premises. ’ ’
Appellant first contends that there is no valid, en-forcible rental lease contract between it and appellee; that the relation of landlord and tenant is absent; that the possession and title to real property is involved, and that the court was without jurisdiction.
It is our view that none of these contentions can be sustained. It is apparent that until September 25, 1940, the appellee and the Highfills occupied the position of landlord and tenants, and the facts appear to be undisputed that on this date, with all the parties agreeing, the Highfills sold their interest in the leased property to appellant, and with the consent of all parties the High-fills surrendered and abandoned the lease and appellant was substituted as a new lessee, by agreement, in the place of the Highfills. Under these facts the Highfills were no longer bound to appellee for the rents, but appellant, as substituted lessee, obligated itself, as appellee’s tenant, for the monthly rentals becoming due from and after September 25, 1940. In 35 C. J., p. 1088, § 272, the textwriter says: “. . . Where a landlord grants a new lease to a stranger with the assent of the tenant during the existence of an outstanding lease, and the tenant gives up his own possession to the stranger who thereafter pays rent, or where in any other way a new tenant is by agreement of the tenant and landlord substituted and accepted in place of the old, there is a surrender by operation of law, and no additional consideration is necessary. It is immaterial that the old lease is not canceled, or that the original lessee signs the new lease as surety; and it is equally immaterial that the lessor in his pleading mistakenly asserts or assumes that the legal effect of the transaction between the original and the substituted tenant was a transfer of the lease.” We think it clear, therefore, that the position of landlord and tenant existed between appellee and appellant, and this being true, the title to the property is in no sense involved. By the letter set out, supra, appellant admits that it has the property in question here “under lease rental for a period of three years, beginning January 1, 1941; naturally this lease will have to be carried out by us.” No written assignment of the Highfills of their lease to appellant was necessary in the circumstances here, in order to bind appellant on the lease.
The matter comes down, therefore, to a simple suit on a written contract by a landlord against his tenant for rentals due, and clearly, the municipal court, and the circuit court on appeal, had jurisdiction.
It is finally contended by appellant that (quoting from its brief) “it was an abuse of the circuit court’s discretion, amounting to prejudicial error, for said court to allow the appellee, on the day of trial, and without notice, to amend its complaint so as to sue for double the amount sued for in the municipal court, and to refuse, upon proper motion, to continue the case until appellant could have an opportunity of pleading to the complaint, as amended, thereby forcing it to go to trial on the same day the complaint was amended; and that in no event, could a judgment be legally rendered against appellant for more than the amount which was involved in the municipal court, which amount was $150 and costs.” We think this contention is untenable.
At the time judgment was rendered for $150 in municipal court, only five months ’ rental was due. When the cause came on for hearing on appeal in the circuit court, where the cause was tried de novo, ten months’ rental was due, in the amount of $300. We think the trial court committed no abuse of discretion, of error, in sustaining appellee’s motion to amend its complaint and prayer for a judgment in the sum of $300, which represented the amount of $150 recovered in the municipal court plus the five months ’ rental which had accumulated since the municipal court judgment and the trial date in the circuit court. Indeed we think it was the duty of the circuit court, in furtherance of justice, to save time, expense, and a multiplicity of suits, to amend the pleadings to conform to the proof. It is difficult to understand how appellant could possibly have been prejudiced or surprised by the action of the court in permitting the amendment. The amount of the judgment ($300) obtained in the circuit court was within the jurisdiction of the municipal court as well as the circuit court. When the complaint was amended in the circuit c-ourt there was but one cause of action present, the rent due appellee for ten months. The action in the municipal court was for rent due appellee, at that time. We think no new cause of action has been added in the circuit court, since it was still an action for rent for an amount within the jurisdiction of the municipal court.
In 49 C. J., p. 507, § 670, the author states the general rule in this language: “. . . An amendment, however, may ask for more relief upon the original cause of action than can be granted at the time the suit was begun.” In support of the text the case of Warfield v. Oliver, 23 La. Ann. 612, from the Supreme Court of Louisiana is cited. In that case the court said: “This was an action to enforce the obligations of a plantation lease executed by the defendant as lessee. . . . The defendant filed an exception to the prematurity of the action begun December 15,1870, because a portion of the claim for rent was not then due, and did not become due till December 31, 1870. On the eleventh of April, 1871, the exception was sustained, with leave, however, to amend, it appearing that the rent, nearly due when suit was begun, was now long past due, and the amendment was made and issue joined thereon. We see no error, but good sense and justice in this permission to amend.” In K. C. So. Railway Co. v. Anderson, 104 Ark. 500, 149 S. W. 58, this court announced the rule in this language: “It has been repeatedly held by this court that after an appeal is taken from the justice of the peace court, the circuit court may permit an amendment by adding claims which were not included in the original demand, or by increasing the amounts of such demand, only keeping out any new causes of action. St. Louis, I. M. & S. Railway Co. v. Bryant, 92 Ark. 425, 122 S. W. 966,” and in Birmingham v. Rogers, et al., 46 Ark. 254, this court held, quoting headnote “2,” “Upon an appeal from a justice of the peace, the plaintiff may amend his action in the circuit court by adding a claim against the defendant which was not included in the original action before the justice.” In the body of the opinion the court says: “This was a matter subject to the sound discretion of the court, but generally such amendments are allowable in furtherance of justice, and should be allowed when no unfair advantage may be taken of the defendant. ’ ’
Finding no error, the judgment is affirmed. | [
112,
111,
-4,
77,
24,
96,
42,
-78,
106,
-31,
55,
83,
-23,
-28,
4,
121,
-25,
125,
-27,
104,
-119,
-9,
6,
98,
-46,
-13,
83,
-59,
-72,
77,
-12,
-106,
76,
45,
-62,
29,
-14,
-64,
-59,
24,
30,
-87,
25,
100,
-39,
64,
48,
-5,
116,
15,
69,
-98,
-78,
45,
49,
75,
105,
46,
111,
-78,
90,
-15,
-118,
5,
95,
23,
16,
68,
-100,
71,
72,
12,
-104,
48,
9,
-32,
115,
38,
-62,
116,
34,
-103,
12,
36,
99,
66,
-127,
-25,
-24,
12,
38,
-70,
-115,
-90,
-77,
88,
18,
64,
-74,
-100,
120,
4,
-107,
-10,
46,
-59,
89,
108,
-126,
-49,
-42,
-77,
7,
112,
-106,
11,
-13,
67,
48,
116,
-55,
-96,
92,
71,
51,
-109,
-121,
-8
] |
Conley Byrd, Justice.
Appellee -Southwest Arkansas Water District, a public non-profit regional water distribution district formed under Act 114 of 1957, Ark. Stat. Ann. §§ 21-1401 — 1415 (Supp. 1967), for the counties of Hempstead, Little River, Miller, Lafayette and Columbia, instituted this action to condemn a right-of-way some six miles long for pipe lines and a canal to transport water from the Millwood Dam Reservoir on Little River to a point east of Highway 71 south of Ashdown. The canal was to commence at the Millwood Dam Reservoir and end at the plant of Nekoosa-Edwards Paper Company, and since Nekoosa-Edwards Paper Company was the only consumer of the water district at that time, appellants Don E. Hale et al, Robert L. Black et al, and Wayne L. Carver et al contended that the taking was for private rather than public use, which is prohibited by article 2, section 22 of the Constitution of Arkansas.
The act under which the water district was incorporated, Ark. Stat. Ann. § 21-1408 (Supp. 1967), requires it to transport, distribute, sell, furnish and dispose of such water to any person at any place. Section 21-1409 gives to any person aggrieved by the water district’s service or rates the right to petition the Circuit Court to issue such orders as may be necessary and proper to protect his rights therein.
After its organization the water district obtained from the United States government a contract for the acquisition of 265,000,000 gallons of water daily from the Millwood Dam Reservoir. The purpose of the contract with the Corps of Engineers was the contemplated distribution of water for municipal, industrial and agricultural purposes to the surrounding area. The evidence shows that the water district as such had no funds with which to construct or make any distribution and that it depended wholly upon revenue bonds for the construction of improvements. Consequently, before any improvements could be undertaken the district needed a contract with sufficient guaranteed revenues to float a bond issue. In this case, in addition to floating a bond issue upon the revenues derived from the Nekoosa-Ed-wards Paper Company contract, the district applied to the Economic Development Administration, an agency of the federal government, and obtained a grant of $1,-870,000 to aid in the construction of the canal. Furthermore, the over-all planning by Brown & Root, Inc., the project engineers, covered all of the multi-county area included in the water distribution district south and west of Little River. However, the construction plans covered only the canal here involved. The present design capacity of the canal is adequate to serve all expected needs south and west of Little River, including the cities of Ash-down, Foreman, Texarkana and a hoped-for paper company near McNab.
In Railway Co. v. Petty, 57 Ark. 359, 21 S. W. 884 (1893), we had before us somewhat the same issue as the one here. There the railroad had instituted eminent domain proceedings for the purpose of constructing an additional side track across Petty’s land to that of an adjacent and competing coal miner. In upholding the right of the railroad to exercise eminent domain, we said:
“To be public the user must concern the public. If it is an aid in facilitating the business for which the public agency is authorized to exercise the power to condemn, or if the public may enjoy the use of it not by permission but of right, its character is public. When once the character of the use is found to be public, the court’s enquiry ends, and the legislative policy is left supreme, although it appears that private ends will be advanced by the public user. It is common for the interest of some individuals to be advanced, while that of others is prejudiced, by the location of railway stations and switches when there is no motive on the part of the railway officials to discriminate between them. That result is seen in the original location of every line of railway. But the courts do not assume to interfere with the right of the company to locate its line, stations or switches. In this case, the railway located its sidetracks contiguous to the mine of the coal company, rather than to that of the appellee who is a rival miner. The evidence is abundant that side tracks were necessary to facilitate and hasten the business offered to the company at that point. That, of itself, is sufficient to give public character to the uso to ivhich the land was to he devoted. Moreover, at that point upon this very land, as the proof shows, there is established a shipping station for coal. The railway’s franchise empowers it to establish none but public stations. It can place no unreasonable restraint on the right of the public to use it. If the railway maintains a coal shipping station at that point, and unreasonably refuses to accord to the appellee, or others who have occasion to ship coal therefrom, facilities for doing so, the courts can afford a remedy for the wrong; and if the railway abuses the privilege of condemning private property for a public use by turning the property acquired by condemnation to a private use, doubtless the easement it acquired by condemnation may be revoked, and the possession restored to the owner of the fee.”
Thus the water district here stands in much the same position as the railroad. By law it is obligated to serve any member of the public desiring its services, and while the statute does not specifically set it forth, it would appear that this would be upon the same terms and conditions applied to Nekoosa-Edwards Paper Company — i. e., the cost of such services to any prospective customer would be that only which was necessary to pay for the water plus the amortization of the investment in the canals necessary for distribution of the water. Our position would be otherwise if Nekoosa-Edwards Paper Company were the only customer who had a right to use the water. It is true that at present the canal would serve only Nekoosa-Edwards Paper Company; but we feel that we would be unduly restrictive in our interpretation of the right of eminent domain if we required a utility to have a going business before it laid its first trunk line for the distribution of its product. The testimony here showed without doubt that the canal was to serve as a trunk line not only for Nekoosa-E'd-wards but for all other customers who might demand service south and west of the river. Under these circum stances we hold that a preponderance of the evidence shows that the proposed use of the canal by the water distribution district is for a public purpose. Nor can we find anything to the contrary in City of Little Rock v. Raines, 241 Ark. 1071, 411 S. W. 2d 486 (1967).
It is also argued that the trial court erred in finding that the landowners had the burden of proving that the taking was for private use. Since in our opinion a preponderance of the evidence when construed in connection with the statute shows that the taking was for a public use, this issue is moot.
Appellants Don Hale et al urge other points for reversal, such as that the trial court erred in finding that the pleadings should be amended to conform to the proof; in not granting appellants’ motion for continuance ; in not granting resubmission of the case and transferring the cause to equity; and in permitting entry until just compensation was determined and paid.
On these allegations we find no error. Appellant Hale failed to show in what different manner he would have prepared bis case had a continuance been granted, and certainly the mere recording of mortgages on the condemned land by the water district would not call for a resubmission of the case and a transfer to equity. The alleged error with respect to the entry until a just compensation was determined and paid is argued here for the first time.
Since the statutory authority for the exercise of eminent domain refers to “rights-of-way,” we hold that the trial court erred in taking the fee title of appellants ’ properties rather than an easement for right-of-way. The term “right-of-way” ordinarily refers to an easement only. Graham v. St. Louis I. M. & S. R. Co., 69 Ark. 562, 65 S. W. 1048, 66 S. W. 344 (1901). By limiting the eminent domain to an easement, appellants have the security pointed out in Railway Co. v. Petty, supra, should the water district abase its privilege of condemning private property for public ase by taming the property acquired into a private use.
Affirmed as modified.
Brown, J., not participating. | [
112,
-18,
-4,
76,
26,
-64,
48,
-126,
90,
-85,
-27,
83,
-17,
46,
29,
97,
-29,
127,
117,
121,
-60,
-78,
83,
82,
-110,
-77,
-7,
-57,
-101,
-35,
-28,
-57,
-52,
32,
-54,
-111,
70,
-126,
-57,
-40,
-26,
72,
-119,
109,
121,
66,
52,
111,
50,
79,
97,
-115,
-13,
41,
16,
-53,
109,
46,
-55,
35,
64,
122,
10,
-41,
95,
21,
32,
-124,
-120,
83,
96,
56,
-112,
49,
8,
-20,
123,
-90,
-122,
-11,
9,
-103,
8,
32,
98,
2,
-83,
-49,
-20,
-120,
4,
-33,
-115,
-122,
-110,
121,
106,
68,
-98,
-100,
122,
22,
-122,
116,
-18,
-123,
91,
108,
-125,
-50,
-108,
-95,
-114,
-67,
5,
51,
-21,
3,
48,
116,
-49,
-14,
-38,
71,
51,
-101,
-122,
-43
] |
Hart, C. J.,
(after stating the facts). At the general election held in this State on October 5,1926, an initiative petition to enable cities of the first and second classes to issue bonds in certain cases was adopted. The amendment may be found in the Acts of 1927, page 1210, and in Castle’s Supplement to Crawford & Moses’ Digest of the Statutes of Arkansas, page 22. The bonds involved in this suit were issued under the proviso to § 1 of the amendment, which reads as follows.:
“Provided, that cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in the sum and for the purposes approved by such majority at such election, as follows:
“For the payment of any indebtedness existing at the time of the adoption of this amendment; for the purchase of rights-of-way for construction of public streets, alleys and boulevards within the corporate limits of such municipality; for the construction of, widening or straightening of streets, alleys and boulevards within the corporate limits of such municipality; for the purchase, development and improvement of public parks and flying fields located either within or without the corporate limits of such municipality; for the construction of sewers and comfort stations; for the purchase of fire-fighting apparatus and fire-alarm systems ;■ for the purchase of street-cleaning apparatus; for the purchase of sites, for construction of and equipment of city halls, auditoriums, prisons, libraries, hospitals, public abattoirs, incinerators or garbage disposal plants; for buildings for the housing of fire-fighting apparatus; for the construction of viaducts and bridges; and for the purpose of purchasing, extending, improving, enlarging, building, or construction of waterworks or light plants, and distributing systems therefor.”
Another section of the amendment which is pertinent to the issues raised by the appeal reads as follows:
“Said election shall be held at -such times as the city council may designate by ordinance, which ordinance shall specifically state the purpose for which the bonds are to be issued, and, if for more than one purpose, provision shall be made in said ordinance for balloting on each separate purpose; which ordinance shall state the sum total of the issue, the dates of maturity thereof, and shall fix the date of election so that it shall not occur earlier than thirty days after the passage of said ordinance. Said election shall be held and conducted and the vote thereof canvassed and the result thereof declared under the law and in the manner now or hereafter provided for municipal elections, so far as the same may be applicable, except as herein otherwise provided. Notice of said election shall be given by the mayor by advertisement weekly, for at least four times, in some newspaper published in said municipality and having' a bona fide circulation therein, the last publication to be not less than 10 days prior to the date of said election.”
It will be noted that the amendment provides that the ordinance shall specifically state the purpose for which the bonds are to be issued, and, if for more than one purpose, provision shall be made in said ordinance to ballot on each separate purpose. The ordinance specifies a bond issue of $300,000 for the erecting, equipping and furnishing a municipal building, which shall contain a public auditorium, a fire station, a city hall, a chamber for the municipal court and city council, and offices and vaults for the city officials and records. The ordinance further provides that the building shall be erected at Third and Walnut Streets, on lots owned by the city.
It is earnestly insisted by counsel for the plaintiff that the decree must be reversed because a municipal building containing an auditorium1, city jail, a chamber for municipal court and city council, and offices and vaults for city officials and records, constitutes more than one purpose, and that the election was void because, under the terms of the amendment, provision must be made in the ordinance for balloting on each separate purpose.
The design of this provision is to prevent improper measures, which may result from combining a good purpose with a worthless one, where the two subjects have no proper relation to each other, and, if the two are submitted together, the voter cannot vote for one and against the other. Hence the framers of the amendment intended to prevent the joining of one subject to another of a different kind so that each should gather votes for both.
. Careful consideration of the subjects mentioned in the ordinance, however, leads us to the conclusion that they were all different parts of a single plan, and, as combined, were so related as to constitute a single purpose. A municipal building' was to be erected on lots belonging to the city. The ordinance provided that the building should contain a public auditorium, a fire station, ,a chamber for the municipal court and city council, a city j.ail, with an office for the police force, and offices and vaults for the city officials and records. All these matters related to the proper equipment of a city hall for the purpose of administering the city government.
Under the provisions of the constitutional amendment, the majority of the qualified electors might vote for the construction and equipment of city halls, auditoriums, etc. A fire station, a city jail, a chamber for tlie municipal court and city council, and offices and vaults for the city officials and records, are all manifestly parts of a city hall and are necessary to its proper equipment for municipal administrative purposes. While it cannot be said that a public auditorium is an absolute necessity to the proper administration of the city government, it is useful and necessary, so that the inhabitants of the city may have a place to meet and discuss their municipal affairs. Before voting on the issuance of the bonds for any purpose, the inhabitants would have been likely to congregate together for the purpose of discussing the advisability or feasibility of issuing bonds for the contemplated purpose. The object of erecting a municipal building, as we liave already seen, is to .accomplish a single purpose, and that is to properly administer the city government. All the subjects embraced in the ordinance are proper parts of the proposition to accomplish that purpose, and are so related and connected with each other as to constitute one purpose within the meaning of the amendment to the Constitution in question.
It follows that the decree will be affirmed. | [
116,
109,
-76,
126,
-54,
64,
24,
-104,
50,
-87,
-31,
87,
-83,
74,
21,
105,
-69,
127,
117,
88,
-43,
-106,
71,
74,
-110,
-77,
-1,
-59,
-79,
77,
-10,
85,
12,
52,
-54,
-99,
-26,
-26,
-59,
92,
-114,
-127,
-117,
76,
-33,
-46,
54,
98,
114,
-117,
113,
30,
-30,
32,
0,
115,
77,
44,
-55,
-116,
-45,
-5,
-104,
-59,
-5,
7,
-127,
86,
-103,
-123,
-30,
14,
-104,
53,
92,
-24,
115,
-90,
-122,
-10,
77,
25,
12,
102,
102,
-104,
-83,
-21,
-72,
-88,
22,
-46,
-83,
-122,
6,
89,
75,
34,
-66,
-105,
93,
-108,
7,
126,
-25,
-27,
21,
110,
1,
-114,
-10,
-77,
67,
-6,
5,
3,
-53,
67,
48,
101,
-52,
118,
94,
103,
17,
-45,
-121,
-55
] |
Griffin Smith, C. J.
Constitutionality of Act 94 is the issue. The measure became a law February 25,1941, without the governor’s signature.
The controversy goes back to a suit by the state to prevent Gus Blass Company from engaging in the practice of optometry. Collateral issues were involved. State ex rel. Attorney General v. Gus Blass Company, 193 Ark. 1159, 105 S. W. 2d 853. Act 27, approved February 11, 1935, was before the court. It was entitled “An Act to define and prescribe the practice of optometry; to prescribe procedure for the practice of optometry, the power of the [state board of examiners], and for other purposes.” In the decision the following-expression was employed:
“We are of the opinion that the legislature did not attempt to classify optometry as a learned profession, but that it used the term ‘profession’ in its broader and more general meaning. ... If the general assembly intended to advance optometry to the rank of a learned profession, it would have doubtless said so in express terms.”
Act 94 is entitled, “An Act to define the practice of optometry, to regulate the practice thereof, to- provide for the creation and powers of the state board, the enactment into one law of the laws relative to the practice of optometry, and for other purposes.”
Section 1 is: “The practice of optometry is hereby declared to be a learned profession, and the same rights, powers and duties are hereby declared to attach thereto as attach to any other learned professions.”
W. A. Carter instituted the suit from which. this appeal is prosecuted, naming the state board of optometry as defendants. Carter is employed by B. Gainsburg, a citizen of Harrisburg, Pennsylvania. Gainsburg conducts an optical department in the Gus Blass department store, where Carter, admittedly a competent optometrist, represents Gainsburg . Gainsburg is engaged in the sale of eyeglasses, spectacles, lenses, frame mountings, and other optical materials.
Section 1 of Act 94 is challenged on the ground that optometry, not being comparable to law, medicine, or theology, is not a learned profession, being limited in its character because those engaged in the practice do not have the background, training, and education characterizing the three professions mentioned. It is further argued that dispensing eyeglasses is a commercial transaction, involving only such knowledge as is necessary to fill prescriptions written by optometrists or oculists.
Section 5, limiting applicants for examination to persons over twenty-one years of age, of good moral character, and requiring- that such applicant be a graduate of some “ Class-A” school of optometry, is void, say appellees, because the Act does not indicate how Class-A schools shall be designated; hence there is an improper delegation of power.
The objection to § 8 (3) is that it gives to the board power to determine what acts on the part of a licensed optometrist shall constitute unprofessional conduct. It is feared mere opinion or caprice may control members of the board.
Section 9 (3) is alleged to be fatally defective in that it authorizes the board to revoke the license of an optometrist who accepts employment from a person, firm, or corporation engaged in any business or profession “. . . to assist it, him, or them in practicing optometry in the state [if the employer is not himself a licensed optometrist].” Such provision, it is argued, bears no relation to the public health, safety, morals, or other phase of the general welfare. The right of Carter to continue his present employment is, it is urged, a valuable property right. “The practice of optometry,” says the complaint, “is merely an occupation calling for the use of mechanical skill, [and] so long as optometrical services are actually rendered by a registered optometrist, no restrictions may be imposed upon the right to employ an optometrist.” Effect of enforcement, it is said, is to deny equal protection of the law to those so affected, in violation of the Fourteenth amendment to the federal constitution, and of § 8, art. 2, of the state constitution.
Section twelve is void because (a) subsection (2) makes it unlawful for any optometrist, physician, or surgeon, to advertise in any manner . . . any fraudulent, false, or misleading statements as to the skill or method of practice “. . . of himself or of any other optometrist, physician, or surgeon, or to advertise in any manner with intent to mislead, deceive, or defraud the public.” Title of the Act, say appellees, defines the practice of optometry and its regulation, and “. . . the foregoing intends to regulate the conduct of physicians or surgeons who practice their profession not because of the optometry Act nor because of the exemption contained in § 16, but because a physician or surgeon, by virtue of his license under the medical Act, has the right to perform all the duties given to an optometrist under the provisions of this Act.”
(b) Subsection (3) of § 12 makes it unlawful for any.person, firm, or corporation, or any optometrist, physician, or surgeon, to advertise, either directly or indirectly, free optometrical service or examinations, or to advertise by any means whatsoever any definite or indefinite fee for professional services rendered or for materials furnished by an optometrist, physician, or surgeon. Appellees think the provision _ is void because physicians and surgeons are not amenable to the optometry Act, and that prohibition against advertising is an arbitrary enactment, interfering with a lawful business or permissive occupations. The further objection is that articles that may be lawfully sold cannot be advertised.
The flaw in subsection (6) of § 12, making it unlawful for any optometrist, physician, or surgeon, to accept employment from any unlicensed person, firm, or corporation, . . or in any other manner assisting ... in the unlawful practice of optometry” is that it bears no relation to public health, safety, morals, or welfare, but is au unreasonable and unnecessary restriction placed upon appellee Carter and others similarly situated, preventing them from pursuing lawful occupations.
Section 13, denouncing violations of the Act as a misdemeanor, is void because, in the Act’s title, optometry is the subject intended to be regulated; and, since physicians and surgeons fall within the measure’s terms, the title is misleading and constitutionally insufficient.
The (Jus Blass Company and Gainsburg were made parties to the action.
The complaint was amended. Section 1 of the Act, it was said, provides that “. . . the prescribing, dispensing, adapting, or duplicating of lenses, prisms, or ocular exercises are a part of the acts which constitute the practice of optometry; and § 16 of the Act does not apply to physicians and surgeons, nor to persons who sell glasses wholesale on prescription where no attempt is made to practice optometry. B. Gainsburg is also engaged in such acts, and since he is not exempted from the provisions of the Act, he is denied the equal protection of the law. ”
A temporary injunction restraining the board from revoking Carter’s license was granted February 26,1941.
The answer admitted that Gainsburg advertised prices, and the terms upon which glasses would be sold, but alleged that these advertisements were published in the name of Gus Blass Company.
There can be little doubt that the general assembly had power to declare optometry a learned profession, and this it has done on two occasions since Mr. Justice Bxjtler stated in his opinion of May 11, 1937, that if the lawmaking body had intended such designation it would have made the classification by express language.
The decree from which this appeal comes holds that Act 94, insofar as it attempts to prohibit optometrists from accepting employment from unlicensed persons, or insofar as it prohibits unlicensed persons from employing licensed optometrists, and in its pronouncement against advertising prices, is unconstitutional because the purpose is not to promote the public peace, health, or welfare.
Appellees insist that optometry is a business, as distinguished from a profession, and that it depends for its success “. . . upon the choice of a good business location, the use of efficient advertising methods, intelligent buying, and effective selling. This commercial background brands optometry as a mercantile business.”
Attention is directed to the July 6, 1928, issue of Public Health Reports, then published by the treasury department, where it was said: “An optician, or optometrist, or eyesight specialist, is not a graduate physician or doctor of medicine; and he does not diagnose or treat diseases of the eye. He is trained to grind and measure lenses and to fit frames properly. . . .”
This summary, it will be noted, speaks of “eyesight specialists.” Marked progress has been made during more than thirteen years that have intervened since the treasury publication distinguished between optometry, medicine, and surgery. Whether the article was written by a physician, an optometrist, a surgeon, or a layman, is not disclosed.
Typical of some of the testimony regarding methods of examination and required knowledge is that of Dr. Carl F. Shepard, an instructor in the Northern Illinois College of Optometry. An examination, he says, is divided into three parts. First, there is the case history. The patient is questioned about diseases that might affect vision; about environment, lighting conditions, and the nature of work the patient is required to do. The second part is the objective phase, “. . . in which we use such instruments as the retinoscope, ophthalometer, and ophthalomoscope. We also determine that there are no diseases of the eye. This involves a study of the eye while it is in use at a near point and at a distance. The third phase is called the subjective procedure. The extent of the tests which we make depends upon the condition of the eyes. If we encounter conditions that call for certain other types of tests, we test the sets of muscles'in the eyes. As we make the findings in the course of our examination, we write .them down.”
Dr. K. W. Cosgrove made interesting comments in testifying. He is a practicing physician; a member of the American Medical Association, associate professor of pathology at the medical school of the University of Arkansas, state board of health consultant in trachoma, a member of state and national associations, and is connected with the state public welfare department. He is an ophthalmologist and prescribes lenses, but does not use “drops” in the eyes in all cases. Such practice is known as cyeloplegia and has reference to paralysis of the muscles of the eye which are affected by curvature of lenses. As a rule cyeloplegia is not used where patients are more than thirty years of age. ... It often occurs that patients with diseased eyes are referred to Dr. Cosgrove by optometrists, and, conversely, Dr. Cosgrove refers patients to optometrists in order that examination may be made with an ophthalometer, an instrument not used by Dr. Cosgrove.
It was conceded by appellee Carter that refraction of the eyes, or examination, whether by a physician or an optometrist, is a professional act, but, it is argued, salé of glasses after a prescription has been procured is a commercial transaction.
Regarding, the right of a professional man to advertise, the Supreme- Court of the United States said in Semler v. Oregon Board of Dental Examiners, 294 U. S. 608, 55 S. Ct. 570, 79 L. Ed. 1086:
“It is no answer to say as regard to appellant’s claim of right to advertise his professional superiority or Ms performance of professional services in a superior manner, that he is telling the truth. In framing this policy the Legislature was not bound to provide for determination of the relative proficiency of particular practitioners. The Legislature was entitled to consider the general effect of the practices which it described, and if these effects were injurious in facilitating unwarranted and misleading claims, to counteract them by a general rule even though in instances there might be no actual misstatement.”
It seems perfectly clear that Mr. Justice Butler and other members of the court who made the opinion in the state’s suit against Blass in 1935 intended to say that if the general assembly, by express language, should classify optometry as a learned profession, such determination, being an expression of public policy, would not be in excess of legislative powers. Those interested in the profession were justified in believing that an Act defining the practice and placing necessary safeguards around it would not be overridden by the judicial department.
It is true that Act 94 deals with subjects not discussed in the court’s former opinion, and a long forward step has been taken in collecting and reexpressing provisions found in former laws and adapting them to present conditions. If optometry were a business rather than a profession requiring a high degree of skill and knowledge, the rights of appellees would be property, and subject only to reasonable regulation under the police power. Stuttgart Rice Mill Company v. Crandall, 203 Ark. 281, 157 S. W. 2d 205.
Appellees direct attention to this comment made by Mr. Justice Butler in the cited case: — “What difference could there possibly be to the public whether their eyes were fitted and glasses furnished by [an optometrist working for himself, or by one working for another?] To sustam the contention of the appellant would destroy the intent of the legislature.”
Here, again, is an expression indicating that legislative intent would be permitted to control. The intent now having been formulated in language too plain to be misunderstood, a current holding that the lawmaking body was without power to do what the court implied it had a right to do would be arbitrary and would amount to judicial legislation.
We have not overlooked Liggett Company v. Baldridge, 278 U. S. 105, 49 S. Ct. 57, 73 L. Ed. 204. A Pennsylvania statute provided that every pharmacy or drug store in the state should be owned by a licensed pharmacist. As to corporations and partnerships, all partners or stockholders should be prarmacists. In invalidating the requirement the court said: [“The statute] plainly forbids the exercise of an ordinary property right, and, on its face, denies what the constitution guarantees. A state cannot, ‘under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them’.” See, also, Schnaier v. Navarre Hotel & Importation Company, 182 N. Y. 83, 74 N. E. 561; People v. Ringe, 197 N. Y. 143, 90 N. E. 451, 27 L. R. A., N. S., 528, 18 Ann. Cas. 474. Other decisions are cited.
The Liggett case deals with property — the right to hold stock in a pharmaceutical corporation, partnership, or to be sole or part owner. There is nothing in Act 94 prohibiting Gainsburg, Blass, or anyone else from owning stock in an optical company. What the measure prohibits is employment of an optometrist by one who is not licensed. In other words, a layman may not engage in the profession by employing a licensed optometrist.
Section 16 of the Act is printed in the margin.
Unless a particular policy promulgated by the legislature and sought to be enforced is prohibited by the constitution, either expressly or impliedly, courts will not hold the enactment void.
The challenged Act has for its purpose (or at least the general assembly so found) the protection of those who might be (but who in the case at bar were not) imposed upon by unscrupulous practitioners. It is unfortunate that the business of a trustworthy and highly reputable establishment must be restricted, and that an ethical and competent optometrist in the person of Dr. Carter will be adversely affected. But, believing as we do that no constitutional rig’ht has been invaded — although the legislative policy may be questioned by those who oppose the measure — we have no recourse but to say that the Act is valid, and that the decree must be reversed. It is so ordered.
The language appearing as § 1 of Act 94 is copied verbatim from Act 109, approved February 21, 1939, amending Act 123 of 1915. Following approval of Act 109, suit was brought by W. A. Carter to restrain the state board from enforcing its provisions. A temporary order was issued, but there was no final hearing upon the merits. The National Optical Stores Company sued in federal court to restrain enforcement of the measure, allegation being that it was unconstitutional. District Judges Trimble and Lemley sat with Judge Wood-rough of the court of appeals for the Eighth circuit and denied relief.
In their brief appellants say: “In fairness to the Blass Company we wish to say that the men who are employed there as optometrists are capable. . . . However, the company has been repeatedly advised that if it would lease the department directly to a licensed optometrist, relinquish control over the manner in which the department is operated, and allow the optometrist to carry on his own practice, there would be no violation of the law. In this manner the real party in interest would be directly responsible and answerable to the public. The optometrist examining -the eyes would be responsible to the patient. As the situation now exists, the optometrist is the servant or employe of an undisclosed non-resident master whose sole interest is the volume sale of glasses.”
Italics supplied.
“Nothing in this Act except as expressly provided otherwise herein shall apply to physicians and surgeons, nor to persons .who sell eyeglasses, spectacles, or lenses at wholesale on prescriptions from optometrists, physicians, and surgeons, nor shall it prohibit the sale of ready-made glasses and spectacles 'when sold as merchandise at established places of business, where no attempt is made to practice optometry.” | [
16,
-21,
92,
-4,
26,
96,
2,
30,
59,
-117,
-91,
115,
-3,
-48,
-91,
105,
-93,
45,
-47,
11,
-4,
-13,
19,
2,
-14,
-37,
-26,
-57,
-79,
79,
-12,
127,
76,
56,
66,
-107,
-57,
-54,
-63,
-36,
-86,
-83,
43,
-56,
-8,
-48,
48,
88,
18,
9,
81,
95,
-79,
44,
30,
95,
-87,
110,
89,
-83,
-63,
-80,
-114,
-115,
109,
17,
23,
119,
24,
39,
-40,
79,
-118,
51,
-39,
-8,
113,
-90,
90,
-10,
9,
-71,
4,
98,
103,
-87,
41,
-27,
-88,
-70,
38,
59,
-83,
-91,
-97,
72,
-30,
-120,
-74,
-68,
120,
88,
7,
112,
-17,
-35,
19,
125,
4,
-65,
-122,
-69,
-121,
52,
8,
3,
-5,
-25,
16,
85,
-41,
95,
-41,
79,
87,
27,
14,
-60
] |
Lyle Brown, Justice.
This action originated in the municipal court of Forrest City. Appellee, Mrs. Laverne C. Dreyfus, brought suit against appellant, Combined Insurance Company of America, to recover $243.33, two statutory penalties, and attorney’s fees. The suit was based on a hospitalization policy issued by appellant to appellee. In municipal court appellee recovered a judgment exceeding the $300 jurisdictional limit, of the municipal court. On appeal to circuit court the judgment likewise exceeded the jurisdictional limit of the municipal court.
Mrs. Dreyfus applied for hospital insurance and was issued a policy by the Company in January 1964. An issue not here pertinent although argued caused the Insurance Company to controvert the claim. The contract for insurance specifically excluded any sickness that arose prior to a 30-day waiting period. It was the Insurance Company’s position that the sickness (diabetes) was known to Mrs. Dreyfus at the time of the application for insurance. The judge sitting as a jury found in favor of Mrs. Dreyfus.
On appeal the Insurance Company challenges the jurisdiction of the municipal court to award statutory penalties and attorney’s fees as provided by Ark. Stat. Ann. § 66-3238 (Repl. 1966). In the alternative, the appellant argues that even if the municipal court had jurisdiction as to the subject matter, it contends the amount claimed under the policy, the statutory penalties, and the attorney’s fees must be added together to determine the amount in controversy. It is clear in the case at bar that if the penalties and fees are to be included in the calculation of the amount in controversy, the cause of action exceeded the $300 jurisdictional limit.
In order to determine whether the municipal court had jurisdiction we must look to the grant of powers. The Arkansas Constitution of 1874, Art. 7, Sec. 40, defines the specific areas of jurisdiction. The powers are very limited. In matters of contract it has exclusive jurisdiction up to $100 and concurrent with circuit court in controversies up to $300. It has no jurisdiction on matters exceeding $300,’ not including interest. Other grants of jurisdiction are not here pertinent.
The problem in this case is not unlike that raised in American Liberty Mutual Ins. Co. v. Washington, 183 Ark. 497, 36 S. W. 2d 963 (1931). In that case a claim for.statutory penalty and attorney’s fee was prayed for in addition to the amount owing under the insurance policy. The suit was in a justice court. A statutory penalty and attorney’s fee were demanded under the same statute as in the ease at bar. (It should be here noted that a municipal court has the same jurisdiction authority as a justice court.) We there held that the statute authorizing penalty and attorney’s fees “becomes a part of the contract of insurance.”
Appellant cites Baltimore & Ohio Telegraph Co. v. Lovejoy, 48 Ark. 301, 38 S. W. 183 (1886), contending that the municipal court could not exercise jurisdiction on a penalty. In that case the penalty resulted from the breach of duty by the defendant by failing to send a telegram. The statutory penalty was held to be based, not on a contract to transmit-, but on a neglect of duty which sounded in tort. Jurisdiction of a penalty per se is not vested in municipal courts. The jurisdiction of a municipal court in a given case must come within the express language of the constitution or within the incidental or necessarily implied authority of the express grants of jurisdiction. Temple et al v. Lawson, 19 Ark. 148 (1857).
Support for the argument that the penalty is to be considered a part of the “amount in controversy” (Ark. Stat. Ann. § 22-709 [Repl. 1962]) can be found in decisions under the federal removal statute. Under the Arkansas decisions on computing the “amount in controversy” for federal removal of cases, this court has on numerous occasions stated that the statutory penalty was to be considered part of the amount in controversy.
Appellee contends that the attorney’s fees by statute are to be considered part of the costs and not included in the calculation of the amount in controversy. Specifically, Ark. Stat. Ann. § 66-3238 provides that attorney’s fees are to be “taxed up as other costs are, or may be by law collected . . . .” Appellant on the other hand contends that the mere label by the legislature cannot expand the monetary limits of the court.
There is a wide divergence of views on this matter throughout the country. Our court at one time held in a federal removal case that, attorney’s fees are not part of the amount in controversy. Missouri State Life Ins. Co. v. Johnson, 186 Ark. 519, 54 S. W. 2d 407 (1932). On appeal to the Supreme Court that decision was reversed. Missouri State Life Ins. Co. et al v. Jones, Admr., 290 U. S. 199 (1933). Our court in the next statement on the subject said, “In accordance with the opinion of the Supreme Court of the United States, we must now hold that, when a reasonable attorney’s fee is a matter of controversy, and when such fee, added to the specific sum in controversy, aggregates a sum in excess of $3,-000, and all other requisites are present, such cause of action is removable from State to the Federal courts.” Pacific Mutual Life Ins. Co. v. Bierman, 188 Ark. 703, 67 S. W. 2d 577 (1934). Although that decision is not here controlling, it would promote consistency in reasoning and definition of terms to here apply the same rule.
Kansas has a similar penalty statute as ours and their statute was interpreted in Gants v. National Fire Ins. Co. et al, 273 P. 406, 127 Kan. 251 (1929). That court said:
“In the consideration of this question in 2 R.C.L. 30, attorney fees, when taxed as costs, were called extraordinary costs, and in a number of jurisdictions they are distinguished from the usual and ordinary costs as not being subject to the discretion of the court, and are therefore appealable matters. The allowance of such fees requires a judicial determination in two respects — first, whether the particular case under consideration is one in which it was contemplated such a fee should be allowed; and, .second, the amount of the fee that would be reasonable under all the circumstances of the case. These-determinations are purely and strictly judicial, and subject to review for errors in the conclusions reached, and bear no relation to costs in the case except as the statute provides that thev are to he recovered and collected as part of the costs.”
See also People of Sioux County, Nebraska v. National Surety Co., 276 U. S. 238 (1928).
We hold that a municipal court does have jurisdiction under Ark. Stat. Ann. § 66-3238 for the amount claimed under the policy of insurance, the statutory penalty, and the statutory attorney’s fees, when the sum total amount in controversy does not exceed $300.
The municipal court never had jurisdiction because the amount of recovery sought patently exceeded the jurisdictional limit. It follows that the circuit court never had jurisdiction in this action because its jurisdiction is dependent on that of the municipal court. Whitesides v. Kershaw & Driggs, 44 Ark. 377 (1884); Markham v. Evans, 239 Ark. 1154, 397 S. W. 2d 365 (1965).
Reversed and dismissed without prejudice. | [
22,
-2,
-15,
-19,
-117,
97,
50,
34,
91,
-127,
37,
-45,
-23,
-59,
21,
101,
-13,
59,
117,
99,
-111,
55,
21,
98,
-46,
-109,
-71,
69,
-77,
77,
-28,
-4,
76,
41,
-54,
-43,
71,
11,
-75,
-40,
-62,
8,
-101,
108,
-39,
-62,
112,
105,
80,
71,
49,
-113,
-26,
42,
16,
-22,
-84,
44,
91,
-75,
-45,
-79,
-53,
13,
127,
19,
49,
100,
-104,
35,
122,
28,
-112,
49,
32,
-24,
115,
-90,
-122,
116,
103,
-103,
12,
34,
99,
-127,
9,
-57,
-40,
-119,
38,
-36,
29,
-90,
-94,
72,
107,
14,
-73,
-105,
117,
20,
-123,
-8,
-4,
84,
30,
36,
5,
-114,
-106,
-95,
-49,
-32,
-99,
51,
-25,
-49,
-78,
85,
-49,
-90,
93,
6,
59,
27,
90,
-124
] |
J. Fred Jones, Justice.
This is an appeal from a decree of the Mississippi County Chancery Court, Osceola District, dismissing a complaint filed by the appellant, Stella May Wood, to set aside a deed executed and delivered by her to T. E. Dill.
The appellant, Mrs. Wood, was 87 years of age at the time of trial. Her husband had been dead some thirty odd years and she had lived alone at her home in Lux-ora, Arkansas, since her only son was killed in line of duty as a federal prohibition officer in 1934. From about 1934, Mrs. Wood had OAvned, in her own right by inheritance and purchase, a 160 acre farm in Mississippi County. A part of the farm had been taken for highway purposes leaving 115.74 acres which Mrs. Wood leased for cash. T. E. Dill was some sixteen years younger than Mrs. Wood and he owned a farm of some 400 acres near Mrs. Wood’s farm. In 1950 when Mrs. Wood was 70 years of age and Mr. Dill was 54, through the encouragement of mutual friends, they became acquainted with each other. Upon Mr. Dill’s second or third visit with Mrs. Wood in 1950, he assured Mrs. Wood, upon inquiry, that he was divorced and not married, so their acquaintance quickly developed into deep affection attended by constant companionship.
In August 1960, Mrs. Wood conveyed the title in her farm to Mr. Dill by warranty deed, which, except for the description and covenants of warranty, recited as follows:
“ WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS:
That I, Stella May Wood, a widow, for and in consideration of the sum of Ten ($10.00) Dollars to me in cash in hand paid by T. E. Dill, and other good and valuable consideration bad and received by me from him, and in consideration for invaluable services rendered and to be rendered me by Grantee, do hereby grant, bargain, sell and convey unto the said T. E. Dill, and unto his heirs and assigns forever, subject to the reservation hereinafter expressed, the following lands lying and being situated in the Osceola District of Mississippi County, Arkansas, to-wit:
* & #
Grantor hereby expressly reserves unto herself during the full term of her natural life the right of possession and occupancy in and to the above described property and the rents and profits arising therefrom, it being her specific intention by this instrument to convey to the Grantee herein the full fee title to said real estate, subject only to the life estate herein reserved by her.
TO HAVE AND TO HOLD the same unto the said T. E. Dill, and unto his heirs and assigns forever, together with all and singular the tenements, appurtenances and hereditaments thereunto belonging or in any wise appertaining, subject to the life estate herein reserved in Grantor.”
This deed was dated August 31, 1960, and was filed for record on September 2, 1960. It was prepared by Mbs. Wood’s attorney upon Mrs. Wood’s request and at Mr.'Dill’s direction. Mrs. Wood then went to her attorney’s office and signed the deed. The deed was delivered to Mr. Dill after it was recorded and the relationship of the parties continued as before. About two and one-half years after the deed was executed and delivered, Mr. Dill suffered a heart attack and moved into the home with Mrs. Wood. About the time Mr. Dill moved into the home with Mrs. Wood, she executed a will devising her home, without remainder over, to Mr. Dill, and Mr. Dill also executed a will including, all his real property in a testamentary trust for the benefit of his three daughters and his grandchildren. On June 14, 1965, Mr. Dill died and after his death, Mrs. Wood filed the present action to set aside the deed for lack of consideration, mutual mistake, failure to conform to the intent of the parties as orally agreed, unilateral mistake, unjust enrichment, undue influence, fraud and duress.
Upon trial of the case, the chancellor dismissed the complaint for want of equity and upon appeal, Mrs. Wood designates the following points for reversal:
“The court erred in finding and holding that the plaintiff failed to carry the burden of proof in every instance and in dismissing plaintiff’s complaint for want of equity and in failing and refusing to grant the relief prayed for in the complaint and amendment thereto.
The court erred in refusing to receive ,in evidence and consider in this case the Arkansas Supreme 'Court opinion in the Dill v. Dill case reported in volume 209 Arkansas Reports at pages 445, et seq.”
Primarily, a fact question was presented to .the chancellor in this case and upon trial de novo in this court, we are of the opinion that the decree of the chancellor is not against the preponderance of the evidence.
Aside from the land involved here, the Dill estat^' was by no' means insolvent. Mrs. Wood had one sistei in a rest home in Missouri, and another in California at the time of Mr. Dill’s death. Mrs. Wood had a brothel living at the time the deed was executed, and according to her own testimony she told her brother that she intended to deéd the property to Mr. Dill, but did not ask her brother’s advice in the matter and did not advise him of the details of the transaction. The brother has since died, and the two sisters are her nearest relatives.
Prom appellant’s own testimony, Mr. Dill made overtures to meet her in 1950 and she finally permitted Mm to call on her. Upon her inquiry, he assured her that he had obtained a divorce and had been separated from his wife for six years. They quickly became very close friends and constant companions. According to Mrs. Wood’s own testimony, Mr. Dill visited her several times a day, seven days a week, four weeks per month, and twelve months per year; and their relationship grew stronger as the years went by from 1950 when they met, to 1960 when she deeded the property to him,- and that intimate relationship continued for an additional five years until Mr. Dill’s death.
Concerning the execution of the deed, appellant testified :
“ [M]y health was beginning to fade in 1960 and I was afraid I would not be able to carry on much longer and I worried quite a bit about it and Mr. Dill, in order to relieve me of all of these worries, offered to take over for me.
• * #
He offered to take over, look after the farm, see it was planted, collect the rents and see I got my rent and he would see I was taken care of if I got sick, he would see my doctor bills and medical bills were paid and I had a home as long as I lived. After my death — we never figured I would out-live hiwu^af-ter my death he was to collect the rents and divide the profits with my two sisters, my oldest sister is in Sikeston, Missouri in a nursing home and the other sister is in California. He was to divide the income between them and after their death he was to have full possession.
* *
I decided I would rather give him a deed to it than leave it in a will because I was wanting to save him inheritance taxes. He would have to pay inheritance tax if he inherited through a will.” (Emphasis supplied).
Appellant denied receiving the Ten Dollars-consideration recited in the deed and contended that she intended, and that Mr. Dill knew, that their full agreement as to looking after and caring for her during her lifetime, and then paying the rents from the farm to her sisters during their lifetime, was to have been incorporated into the deed. Appellant’s life estate was very clearly incorporated in the deed and certainly the chancellor could have concluded that ten years of close daily companionship, as testified by the appellant, would have included “services performed” as sufficient consideration to support a deed for the remainder following a life estate. According to appellant’s testimony, she trusted Mr. Dill to have their entire agreement incorporated in the deed; she did not read the deed when she signed it, and after she delivered it to Mr. Dill, she did not see it again until after Mr. Dill’s death on June 14, 1965, when she read the deed for the first time, and learned that all of their agreement was not incorporated in the body of the deed.
According to appellant’s testimony on cross-examination, she had been receiving cash rent from her farm, but after the deed to Mr. Dill the land was leased on a crop rent basis, which enabled them to transfer the cotton allotment to more productive land. Mr. Dill went to the farm two or three times a week and appellant went with him on many occasions. Mr. Dill took appellant anywhere she wanted to go, and when Mr. Dill was on his way to Florida he was advised that appellant was ill and he returned without finishing his trip.
Mrs. Johnnie Meadows, one of the daughters of Mr. Dill, testified:
“Q. Did you or did you not know such a deed was in existence?
A. No, sir, I certainly don’t know a thing about, it.
Q. Did you, after your father’s death, visit with Miss Stella?
A. Very often.
Q. During that period of time did you and she discuss this land and her getting it hack?
A. On the telephone a few times we have. I don’t think on visits we ever did.
Q. That was the only mention of that?
A. On the telephone we have discussed it.
Q. Did you offer to release your interest in these lands to her on the basis that you knew your father had not put any money in these lands or paid any consideration for them?
A. No, not on that basis because I didn’t know about their business particularly.
Q. What was the basis?
A. Because Miss Stella and I have always been real good friends and that friendship means more than the money or the land.
Q. Do you know whether or not your father put any money in this land?
A. I have no idea.”
A cousin of Mr. Dill’s visited him in 1963, and was introduced to appellant. He testified as follows:
“Well, she showed me around her house and her flowers and Dick told her I was his cousin, used to «work for him, used to live in Osceola and she told me liow fond she was of Dick and how much he helped her in her business, that she gave him that farm for what he had done for her, she wanted to do something for him, he had been so good to her, she didn’t know what she would have done without him.
# # #
. . . [S]he said he had really been good to her. She said, ‘Now, I have been good to him too.’ She went ahead to say she had somebody to stay there witli her, he was not staying there regularly at that time, I don’t think, but she enjoyed being with him, he had helped her so much with her business that she wanted to do something for him.”
Mr. Swift, an attorney and the trustee of the Dill estate, prepared a lease for Mr. Dill and Mrs. Wood and testified as follows:
“That was the first occasion I had met Mrs. Wood and she proceeded in the course of our discussion to tell me how Mr. Dill acquired the property, advised me she made him a gift of this property prior to this time and was very proud of it and gave me the reason for having done so. * * * She was pleased to have made him a gift because of what he had done for her during their long relationship. She went into that relationship at great length. She was very proud of the fact Mr. Dill had brought some happiness to her. Always in Miss Stella’s mind when I met with her were- three paramount things that had stayed in her mind. One was upon her husband’s death his family had beat her out of some property. That was always a constant bother to her. She was always obsessed with the anguish of having lost her son many years before and third, she was so pleased that after Mr. Dill came into her life she had somebody to look after her. * * * She talked about the fact she had an income from it. That’s using her terminology. There was no doubt in her mind she had a life interest in the property. ’ ’
Mr. Swift testified that Mrs. Wood had told him that she had given the land to Mr. Dill, reserving to herself a life estate; that the relationship between Mrs. Wood and Mr. Dill seemed to be more of a mother-son relationship; that Mrs. Wood had inquired as to whether she had successfully avoided inheritance tax in the execution of the deed; and that she had expressed satisfaction in the disposition of the property under the testamentary trust executed by Mr. Dill.
On recall, Mrs. Wood testified that about the time Mr. Dill moved into her home, she told Mr. Dill that she wanted to make a will, and how and why she wanted it made, and that she dictated her will to attorney Hyatt; that the will was prepared by him and in it she left her home and everything to Mr. Dill. In discussing the will, Mrs. Wood testified:
“Q. At the time the will was discussed, was any discussion had as to where he should live when he was managing these properties, the farm lands?
A. At my death he was to maintain the home and keep it for his own personal home, occupy it, I suppose.
Q. Where would it go at his death?
A. There was no provision made after his death.
Q. There were no strings attached to the house?
A. No, as long as he lived he was to maintain it. as a home.
Q. Was that a part and parcel of the agreement you had at the time you delivered the deed?
A. No, this was not mentioned when I delivered the deed.”
In January 1945, Mr. Dill was granted a divorce from his wife by a decree of the Mississippi County Chancery Court and on appeal to this court the decree was reversed. Dill v. Dill, 209 Ark. 445, 191 S. W. 2d 829. The appellant contends that the chancellor erred in not admitting into evidence, and considering at the trial of this case, our opinion in the Dill case, supra. We are of the opinion that the chancellor was correct and committed no error on this point. There was no controversy in the case at bar concerning Mr. Dill’s marital status at the time of his death and there is no contention that he was ever married, or ever proposed marriage, to the appellant. It is true that the appellant testified that Mr. Dill told her that he was divorced and that she believed him and had confidence in him. Appellant satisfied herself as to Mr. Dill’s marital status on his second or third visit and it would appear that her confidence in him at thát- stage of their acquaintance was based more on infatuation, or desire for companionship, than on what Mr. Dill told her. On this point appellant testified as follows:
“A. There was one or two of my old friends, kind of gossipy, told me they heard he never had the divorce then I would approach him on the subject and he would deny it and tell me to quit worrying about that, that Judge Barham had got him a divorce and it was final.
* # #
Q. I believe you told people on various occasions you made this gift to Mr. Dill?
A. I don’t remember bragging about it, I remember telling one or two of my closest friends I had fixed the deed, had it made out to him. # * #
Q. Miss Stella, do you recall the heart attack Mr. Dill had?
A. Yes.
Q. You brought him from the hospital to your home?
A. Yes.
Q. That’s when he began living with you?
A. Yes, two and a half years before he died. He had no home to go to and I offered him my spare room and he accepted it and he liked it so well he just stayed on.
Q. After you brought him from the hospital these so-called friends called you again and warned you he was not divorced?
A. I believe so.”
We can see no connection between the character of Dill as it might have been revealed by the record in previous divorce proceedings, and the character of Dill and his overt acts in dealing with appellant during the ten years of their close association prior to the execution of the deed, and the additional five years after its execution and delivery as revealed in the record before us.
The record does not reveal the ages of appellant’s sisters, but the record does reveal that no provision was made for them in the will appellant dictated to her attorney. The record does reveal, from appellant’s own testimony, that it never occurred to her or Mr. Dill that she would outlive him, and the record also reveals, from appellant’s own testimony, that the reason she conveyed the property by deed rather than a will, was to save Mr. Dill inheritance tax on the transaction.
We agree with appellant’s contentions, and with the cases cited in support of them, that support deeds are recognized in this state; that when a deed is executed in consideration of future support and maintenance and the grantee fails to fulfill the provisions of the deed, the grantor may sue at law for damages, or may sue in equity to cancel the deed for failure of consideration. We agree with the appellant that “the real consideration in a deed can always be shown by parole evidence.” We also agree that a suit may be maintained in equity for revision of a deed for condition broken, the rationale of the doctrine being that an intentional failure upon the part of the grantee to perform the condition constituting the consideration for a deed, raises the presumption of fraudulent intention from the inception of the contract, and therefore vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, may be resorted to regardless of any remedy the grantor may have had also at law. Goodwin v. Tyson, 167 Ark. 396, 268 S. W. 15. While reformation of a deed or contract for fraud or mistake is a proper matter for equitable jurisdiction, the burden of proving fraud, mistake or lack of consideration rests upon the one alleging it.
We conclude that the chancellor’s finding that appellant failed to meet the burden of proof in the case at bar is not against the preponderance of the evidence, and that the decree of the chancellor should be affirmed.
Affirmed. | [
113,
-17,
-3,
28,
43,
-32,
42,
-71,
82,
-69,
53,
-45,
-17,
115,
84,
105,
35,
93,
85,
105,
-29,
-74,
23,
33,
-110,
-101,
-39,
-33,
-79,
73,
-27,
87,
76,
32,
-54,
-107,
70,
-32,
-59,
88,
-50,
65,
-117,
101,
89,
-46,
56,
-81,
92,
77,
53,
-82,
-30,
43,
53,
67,
45,
44,
-35,
40,
88,
-80,
-117,
29,
127,
34,
17,
-26,
-104,
-125,
72,
104,
-112,
49,
0,
-8,
115,
-74,
-122,
116,
13,
-103,
9,
114,
98,
50,
-115,
-17,
-120,
-120,
22,
126,
-99,
-90,
64,
41,
67,
72,
-66,
-108,
124,
80,
95,
-10,
97,
13,
93,
108,
-115,
-49,
-106,
-79,
13,
-96,
-108,
18,
-21,
7,
52,
117,
-49,
-30,
93,
71,
19,
27,
-121,
-15
] |
Green haw, J.
This case involves the construction of the holographic will and codicil of Mrs. Effie LaDora Prall. At the time of the execution of this will the immediate family of Mrs. Prall consisted of her husband, B. George Prall, one daughter, Beatrice Arvilla Prall, and one son, George Virgil Prall. The will and codicil are as follows:
“I, Effie LaDora Prall do make and execute this my holographic will.
“I devise and bequeath all property of whatsoever kind, of which I may die possessed to be held in trust during the lifetime of my husband B. George Prall, first, the life time of Beatrice Arvilla Prall my daughter, second, and the lifetime of George Virgil Prall my son third. At his death to be divided equally among the heirs of my body, if none, equally among my blood kinsfolk.
“Beatrice Arvilla Prall to be Executrix without bond and to name Executrix or Executor with bond for George Virgil Prall.
‘‘ Codicil.
“I, Effie LaDora Prall do make the following codicil to my will executed by me at Hope, Arkansas, August 26, 1914.
“First: No property in this will can be used to pay debts of person to whom it is given.
“Second: No property in this will can be mortgaged by person to whom it is given.
“Third: The property in this will can be sold and reinvested in real estate if advisable, under the same conditions found in this will.”
Effie LaDora Prall died in 1919, and her husband, B. George Prall died intestate in 1924. Her son, George Virgil Prall, died intestate in 1937, survived by his wife, Irene Thompson Prall, and two minor children, Mary Lou Prall -and Bettie Ann Prall.
Beatrice Arvilla Prall qualified and served as executrix of the estate of her mother, which consisted principally of a 30-acre farm in Hempstead county. After discharging the duties devolving upon her as executrix, she acted or assumed to act as trustee, executing a receipt to herself as executrix, and filed her final account and settlement as executrix, and the administration was closed. After the death of her mother, she handled the 30-acre farm, giving to her father, during the remainder of his life, the rents and profits therefrom. After her father’s death, she received the rents and profits until the death of her brother in 1937. Thereafter she gave the rents and profits to her brother’s widow and children, who have received all rents and profits therefrom since that time.
Beatrice Arvilla Prall instituted this litigation in which she sought a construction of the will of her mother and a partition of the property which is now being rented. Her brother’s widow and his two minor children were made defendants and a guardian ad litem appointed to represent the minors and did so. The cause was submitted to the chancery court and a decree entered in which the court found -that the land was not susceptible of division in kind, and that it was for the best interests of .all parties that the property be sold and the proceeds divided. The court further found and held that, under the will of Mrs. Effie LaDora Prall, the property herein involved went to Beatrice Arvilla Prall in trust during the lifetime of B. George Prall and during the lifetime of George Virgil Prall; that upon the death of George Virgil Prall the property vested absolutely in fee, one-half in Beatrice Arvilla Prall and one-half equally in the two minor children of George Virgil Prall. The court further found and held that the defendant, Mrs. Irene Thompson Prall, had no interest of any kind in the property or the proceeds thereof.
All parties to this litigation have appealed, and are all designated as appellants and appellees.
A careful examination of this will and codicil convinces us that a trust was not created thereby. This will was written by the testatrix herself, and we think that what she meant by the use of the words “to be held in trust” was that her farm should be used for the benefit of her husband, her daughter and her son during the remainder of their lives. Our conclusion is that the instrument under consideration created three life estates: first in the husband, second in the daughter, and third in the son of the deceased, with remainder to the heirs of her body or her blood relatives.
The testatrix no doubt thought that her son would survive her husband and daughter, and provided that at his death her property should be divided equally among the heirs of her body, and if none, equally among her blood relatives. However, we think she intended that the remainder should vest only upon the death of the survivor of the three life tenants. Such we believe to have been her intention, and it is the duty of the court in construing a will to ascertain therefrom the intention of the testator and give effect thereto, is possible.
In the case of Kelly v. Kelly, 176 Ark. 548, 3 S. W. 2d 305, this court said: ‘ ‘ The cardinal rule in construing a will is to ascertain and declare the intention of the testator. That intention is to be gained from reading the entire will and construing it so as to give effect to every clause and provision therein, if this can be done.”
In Pool, Trustee v. Cross County Bank, 199 Ark. 144, 133 S. W. 2d 19, this court quoted with approval from a previous case as follows: “We must look to the will to determine the testator’s intention, but in getting this view we should place ourselves where he stood, and should consider the facts which were before him in deciding what he intended by the language which he employed.”
In view of our construction of the will and codicil, Beatrice Arvilla Prall received only a life estate, and the widow of George Virgil Prall never acquired a dower interest in this real estate.
Under our construction of the will and codicil we think the court was in error in decreeing a partition of the land. The decree of the chancery court is, therefore, reversed and the cause is remanded with directions to enter a decree in conformity with this opinion. | [
-15,
109,
-44,
-51,
-70,
-32,
8,
-102,
115,
-54,
-127,
23,
-7,
-14,
16,
111,
115,
75,
112,
105,
-93,
-74,
31,
41,
-45,
-45,
-85,
-35,
-91,
81,
37,
-41,
125,
32,
-54,
-115,
114,
-126,
97,
88,
-34,
-43,
-117,
-28,
89,
80,
48,
39,
-44,
13,
69,
-66,
-13,
-85,
125,
106,
44,
78,
77,
-88,
88,
-86,
-83,
-122,
-17,
23,
16,
70,
-80,
-19,
74,
78,
-112,
53,
-119,
-24,
51,
54,
-98,
84,
10,
-65,
8,
112,
22,
73,
-84,
-5,
-112,
-104,
-121,
62,
-123,
-121,
-102,
61,
18,
43,
-66,
-100,
111,
-104,
87,
116,
102,
-115,
28,
100,
9,
-49,
-42,
-91,
37,
-24,
-100,
27,
-13,
111,
32,
113,
-53,
-62,
85,
6,
121,
-69,
-122,
-14
] |
Carleton Harris, Chief Justice.
Appellant, Alvis Hudgens, suffered a hernia in May, 1963, arising out of his employment with appellee company. He was thereupon provided with medical treatment, including an operation to correct the hernia, and was paid compensation until he returned to work on September 2, 1963. On January 4, 1967, Hudgens filed another claim with the commission, alleging there had been a recurrence of the hernia. This claim was heard before a referee, who held that the hernia recurred in June of 1964, and that the claim was barred by the statute of limitations. The commission held that the recurrence was in October, 1964, and the claim was-accordingly barred, since same was not filed for more than two years from the time of the recurrence. On appeal to the Columbia County 'Circuit Court, the commission’s ruling was affirmed, and from the judgment so entered, appellant brings this appeal.
Hudgens testified that he began having symptoms of hernia trouble several months after his operation in 1963, He said that he had some trouble in February of 1964, and went to see Dr. Bryon Grimmett, a medical doctor practicing at Waldo. He testified that he again went to see Dr. Grimmett on June 11, 1964, 'and was told that he had a recurring hernia. He stated that in June, 1965, he had a severe pain that made him sick, forcing him to leave the job, and he was taken to Dr. Grimmett by the press foreman. Claimant said that he dreaded having an operation, and this was not performed until August of 1966. The operation was on the same side as the operation that was performed in 1963. Hudgens testified that the June, 1965, occurrence was the only time that he had to leave work because of pain involved.
Dr. Grimmett testified that the first hernia operation was performed by Dr. Weber, and that Hudgens returned to his work in September, 1963; claimant went to Grimmett in February of 1964, complaining of a bulge. He returned in June of the same year, and at that time the doctor found a “small hernia to one-tliird down the inguinal canal.” Grimmett testified that Hudgens told him at this time that “he was handling a billet and it started to slip and he grabbed it or something.* * *
“Well, Alvis told me that his job consisted of lifting-billets that weighed fifty pounds, the best I remember, I didn’t put all this down, and I felt like the lifting, when he said the billets were hot at the time they were lifted by tongs or something, I felt like it was directly related to his work.”
Grimmett first stated that claimant suffered a recurrence of the hernia in June, 1964, though, at another point in his evidence, he said that it was not until October, 1964, that he could definitely say that Hudgens had a “true hernia.” The doctor further testified that in June, 1965, appellee had to leave Ms work because he was having symptoms of strangulation or incarcerated hernia. Dr. Grimmett gave him medicine for pain and suggested that he return to work, using, as much as possible, his leg muscles, instead of his back muscles. In January, 1966, Hudgens still complained of having a lot of pain in the inguinal area from the hernia, and in August, 1966, it was decided that another operation should be performed.
Ark. Stat. Ann. § 81-1318 (Repl. 1960) provides:
“A claim for compensation for disability on account of an injury (other than an occupational disease and occupational infection) shall be barred unless filed with the Commission within two [2] years from the date of the accident.”
•Section 81-1313 (e) sets out that:
“* * *Recurrence of the hernia following radical operation thereof shall be considered a separate hernia and the provisions and limitations regarding the original hernia shall apply.”
Appellee argues that Hudgens did not suffer an industrially caused hernia, as defined in the act, until June 11, 1965; that this was the date of the recurrence of the hernia, caused by a severe strain in the hernia region, while working, and with pain so intense that he had to cease work immediately; further, that notice of the occurrence was given to the employer within forty-eight hours thereafter, and his distress was such as to require the attendance of a licensed physician within forty-eight hours after the occurrence. Here, appellant is referring to the requirements set forth in “Claims for Hernia” in Section 81-1313, and he mentions the case of Crossett Company v. Childers, 234 Ark. 320, 351 S. W. 2d 841, as supporting his position. We disagree. That case does not hold that an industrially caused hernia only occurs when these five requirements are brought into play. The language merely explains why special requirements are incorporated into the compensation act pertaining to hernia claims. The case has no bearing upon the statutory period allowed for filing a claim. Certainly, one who has sustained a hernia which arises out of his employment does not have to wait until some complication arises before filing his claim. Crossett Company v. Childers, supra, makes that very clear. The court said:
“* * *Tbere can no doubt that it was Childers’ work and working conditions that caused his congenital weakness to be converted into an actual case of hernia. Under the appellant’s theory Childers’ injury could never have been compensable, for the incident of February 9 did not cause him to cease work, as the statute demands, and by February 12 it was too late for him to require the attendance of a physician within the limit of forty-eight hours.”
It is thus evident that the taking of these steps is not essential to the filing of a claim, and the case also makes clear that one can sustain a hernia on the job without these experiences. The testimony is' positive that Hudgens had a recurrence of his hernia, following operation, no later than October, 1964, and since no claim was filed until January, 1967, same was barred by the statute of limitations.
Affirmed.
According to the doctor, “A true hernia is the protrusion through the wall of the abdomen outside the abdominal cavity.” | [
52,
-24,
-111,
30,
26,
-29,
58,
-110,
127,
-95,
119,
115,
-19,
31,
4,
125,
-47,
109,
85,
63,
-9,
-77,
19,
97,
-77,
-5,
-53,
-42,
-16,
111,
-10,
-44,
76,
48,
-118,
-107,
-58,
10,
-55,
28,
-64,
6,
10,
-18,
89,
64,
48,
62,
-44,
95,
-67,
14,
-21,
42,
22,
-49,
40,
32,
91,
56,
80,
-47,
-71,
4,
-3,
22,
-79,
6,
-98,
-127,
88,
46,
-104,
49,
32,
-23,
82,
-26,
-62,
-75,
11,
-71,
12,
34,
98,
1,
9,
-27,
-88,
-8,
31,
-49,
-67,
-92,
-77,
32,
74,
-124,
-65,
-99,
112,
22,
-89,
124,
-19,
85,
29,
36,
11,
-122,
-100,
-79,
-49,
44,
-116,
54,
-29,
15,
-78,
49,
-50,
-25,
92,
-59,
107,
27,
114,
-110
] |
Humphreys, J.
This suit was brought in the Fort Smith District of Sebastian County by appellant againstappellees to recover $1,000 posted by him as a bet or wager with J. D. Kuykendall that John B. Williams would receive more votes for sheriff than Pink Shaw in the Democratic nominating primary election held on the 10th day of August, 1926. It was alleged that, a few days before the election, appellant and J. L. Kuykendall made a bet, and each posted a wager of $1,000 with R. H. Kagy, cashier of the City National Bank, as stakeholder, with instructions to deliver the entire amount, or $2,000, to appellant if John ¡B. Williams won, but to J. L. Kuykendall if Pink Shaw won; after the primary, and while a controversy was pending with reference to which candidate received the greater number of votes, and while the wager was still in the hands of the stakeholder, appellant notified R. H. Kagy to return to each one of the bettors the amount he had deposited as a wager, and that Kagy returned the $1,000 to J. L. Kuykendall but refused to return the $1,000 to him, and, instead, deposited said amount to the credit of J. L. Kuykendall in a special fund or deposit in the City National Bank, under agreement that it should not be subject to check.
Summons was issued and served upon R. H. Kagy on December 13,1926, and upon J. L. Kuykendall and the' City National Bank on January 13, 1927. On March 5, 1927, R. H. Kagy and the City National Bank filed an answer, denying the material allegations of the complaint, and alleging that the wager was placed in the hands of R. H. Kagy as stakeholder under agreement that the total amount should be delivered to J. L. Kuykendall if Pink Shaw was elected next sheriff in the Democratic primary election of Sebastian County, but, if not, to appellant. They further denied any liability either to appellant or J. L. Kuykendall, or that they had any interest in the litigation, or had ever asserted any right to the money, or that it was incumbent upon them to decide which was entitled to the wager. They admitted that, after receiving’ notice from appellant to return each his money, they returned $1,000 to Kuykendall, but placed the other $1,000 deposited by appellant in a special fund with the understanding that it should abide decision of a court.
J. L. Kuykendall'filed a separate answer, specifically denying that he made a wager with appellant or posted any money with R. H. Kagy for that purpose.
The cause was submitted upon the pleadings and testimony, at the conclusion of which each asked for a peremptory instruction in his favor, and asked no other instructions. The court instructed a verdict in favor of appellees, which the jury returned, and upon which judgment was rendered dismissing appellant’s complaint at his cost, from which is this appeal.
The bill of exceptions reflects, according to the undisputed testimony, that appellant and J. D. Kuykendall bet $1,000 on the result of the race for sheriff between John B. Williams and Pink Shaw in the Democratic primary election held in Sebastian County on the 10th day of .August, 1926, and posted $1,000 each with R. H. Kagy, cashier of the City National Bank of Port Smith, as stakeholder, under agreement that the entire amount should be delivered to appellant if John B. Williams ^should win and to J. D. Kuykendall in case Pink Shaw should win the nomination. A controversy arose between the two candidates as to which was nominated, resulting-in a contest in court, which was decided in favor of Pink Shaw. While the money was still in the hands of the stakeholder, appellant notified him to return each the amount he had posted or deposited with him. After receiving the notice, R. H. Kagy returned $1,000 to J. D. Kuykendall,' but refused to return appellant the $1,000 he had posted with him, but placed it in a special fund or deposit in the City National Bank in the name of J. D. Kuykendall, with the understanding that it was not subject to check and to remain intact and abide the decision of a court as to whom it belonged. It was discovered in the course of the trial that J. L. Kuykendall had nothing to do with the bet. J. L. was the'father of J. D. Kuykendall, who made the wager. J. D. Kuykendall was not made a party to the suit.
Appellant contends for a reversal of the judgment upon the theory that the common-law rule prevails in Arkansas with reference to the recovery of money from a stakeholder on illegal wagers. Betting on the result of elections, including primary elections, is contrary to statute, and void in this State. Section 3890 of Crawford & 'Moses ’ Digest makes it a misdemeanor to bet on elections. It reads as follows:
“Every person who shall make any bet or wager upon the result of any general, special or primary election in this State, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined any sum not less than $50.”
Even before the passage of the statute quoted, this court ruled, in the case of Jeffrey v. Ficklin and Bennett, 3 Ark. 227, 36 Am. Dec. 456, that wagers upon elections then pending are calculated to endanger the peace and harmony of society and have a corrupting influence upon the morals, and are contrary to sound policy. In that case the court quoted with approval the doctrine announced /by Comyn on 'Contracts, as follows:
“It is a general rule that, if the contract be executed and both parties in pari delicto, neither of them can recover from the other the moneys bet; but if the contract • continues, and the party is desirous of rescinding it, he may do so, and recover back the deposit. And this distinction is taken in the books, viz.: Where the action is an affirmance of an illegal contract, for the performance of an engagement malum in se, it can in no case he maintained. But, where the action is in disaffirmance of such a contract, and, instead of endeavoring to enforce it, presumes it to be void, and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, then it is consonant to the spirit and policy of the law that he should recover. ’ ’
In the case of Perkins v. Clems, 23 Ark. 221, this court said:
“It is held by the great current of authorities that the loser of money upon an illegal wager may recover it of a stakeholder at any time before he pays it over to the winner, and that it does not lie in his mouth to say that the wager is illegal, and keep the money.”
In 12 R. C. L. page 765, paragraph 67,.the rule is stated as follows:
“While there is some authority to the effect that the courts will not entertain an action by the loser on a bet against the stakeholder after the event by which the bet is determined, almost all the authorities hold that, if money or property is placed in the hands of a stakeholder, to abide the result of a bet, or as a forfeit to bind parties to an illegal contract, it may, while it remains in his hands, be arrested by the bailor before or after the happening of the event on which the money , is to be paid or the forfeiture depends.”
The Arkansas case of Jeffrey v. Ficklin and Bennett, supra, is cited in support of the rule.
The Legislature of our State has enlarged the general rule by statute so that the loser of money or property may recover same from the winner if suit is brought for it in ninety days after payment of the money or delivery of the property so lost. Section 4899, Crawford & Moses’ Digest. This statute has no application to a stakeholder nor in any way affects his liability to a bettor who repents and requests the return of his wager while the unlawful" contract is executory. It only applies to bettors after the execution of the unlawful contract.
Appellee insists that the bettors as well ias the stakeholders are in pari delicto and that courts will not interfere in favor of either. This was the case under the common law rule with reference to executed unlawful wagers, or in suits’ to enforce such unlawful wagers, but not in suits for rescission of executory unlawful wagers.
The trial court should have instructed la verdict for appellant, under the undisputed facts in the record.
The judgment is therefore reversed, and judgment . is directed to be entered here against appellees and their bondsmen for $1,000, with interest at six per cent, per annum from December 13, 1926. | [
52,
-19,
-88,
76,
92,
-128,
9,
24,
10,
-95,
-12,
-45,
-19,
104,
16,
125,
-77,
25,
117,
97,
-57,
-77,
23,
96,
-64,
59,
-55,
-59,
-68,
75,
-4,
-43,
8,
56,
74,
81,
66,
-62,
-89,
92,
-114,
-128,
43,
100,
93,
-61,
44,
47,
50,
67,
37,
54,
-16,
56,
56,
107,
73,
44,
-33,
42,
72,
-69,
-46,
7,
125,
23,
17,
-27,
-102,
3,
-54,
46,
-48,
48,
0,
-24,
115,
38,
-126,
100,
45,
-23,
12,
-28,
34,
8,
-91,
-17,
-92,
-120,
62,
127,
29,
-26,
-110,
104,
106,
43,
-74,
-100,
110,
-108,
15,
-16,
97,
85,
21,
44,
7,
-34,
-108,
-93,
13,
-76,
14,
19,
-45,
91,
20,
113,
-51,
-30,
76,
71,
48,
-101,
-121,
-13
] |
McHaney, J.
This appeal is from a decree sustaining a demurrer to appellant’s complaint against the appellees, and dismissing it for want of equity. The complaint states, in substance, that, on January 1, 1926, the appellant entered into a lease contract with appellee, Mixon, whereby he leased to him a certain hotel property situated in the town of Stephens, Ouachita County, Arkansas, for a term of five years, for the annual rental of $3,000, payable monthly in advance at $250 per month; that appellee entered into possession of the property and operated it until the first day of May, 1927, paying the rental therefor in accordance with his contract; that on the 11th day of April, 1927, Mixon gave appellant notice in writing- that he would not occupy said building-, or pay any rental subsequent to May 1, 1927, and that he did vacate the hotel on that date, thereby breaching his contract to pay the rental for the remainder of said five-year period; that the amount of rental due by him under said contract, or that he was to pay under the same, is the sum of $11,000, and the plaintiff prays judgment against said defendant for said sum.
It was .further alleged that the lease contract was in writing, and by its terms gave the appellant a lien on all the furniture in said hotel belonging to the lessee to secure the payment of said rental, and that the instrument was acknowledged and filed for record in the recorder’s office of Ouachita County; that the furniture has been removed from the hotel, stored in a warehouse in the town of Stephens, with A. Foster, and that it is now in his possession as bailee for hire, a copy of the lease agreement being- attached to the complaint.
A further provision is in the lease to the effect that the lessee should have ten days of grace in which to pay the rent before the lessor could declare a forfeiture.
The appellee, People’s Bank, was made party defendant because it claimed a lien upon the furniture, to the end that their respective rights therein might fie determined. The prayer was, in addition to the judgment for balance due on rent, that appellant’s lien on the furniture be foreclosed and applied to the satisfaction of said indebtedness.
Mixon did not plead, answer or demur to the complaint. Appellee, People’s Bank, demurred to the complaint, which the court sustained, and, as heretofore stated, dismissed the complaint for want of equity.
This suit was brought on May 5,1927, five days after the rental for May accrued, and five days before the expiration of the ten days of grace allowed. It was therefore prematurely brought, if the complaint be treated as a suit for rent, for which it specifically prays judgment. Appellant could not sue for the whole amount of the rent due under the contract at that time, as the agreement was, it should be paid monthly in advance, with ten days of grace from the first of each month, and the full amount of rent had not accrued. And if the complaint be treated as a suit for one month’s rent, it was premature, for the reason that the ten days allowed in which to pay had not expired at the time of bringing this suit. Meyer v. Smith, 33 Ark. 627, is the first case in our own decisions relating to the subject. It was later cited in Williamson v. Crossett, 62 Ark. 393, 36 S. W. 27, where, referring to that case, it was said: “It was held in that ca^e that, when the tenant abandons the premises, refuses to pay' rent, and repudiates the tenancy before the expiration of the lease, the landlord may take possession, and rent for the benefit of whom it may concern, and hold the tenant liable for any portion of the rent unpaid at the end of the term.” In Meyer v. Smith it was further held that the landlord, by retaking possession under the circumstances in that case, did not, as a matter of law, accept surrender of the lease, and that a recovery could be had at the end of the term for the difference between the rent reserved and that realized by renting for the benefit of the tenant.
In Williamson v. Crossett it was held that, under the circumstances in that case, the surrender of the lease had been accepted, and that there was therefore no liability for the future rent after surrender and acceptance.
In Hayes v. Goldman, 71 Ark. 251, 72 S. W. 563, this court said: £ £ Now, any acts which are equivalent to an agreement on the part of a tenant to abandon, and on the part of the landlord to assume possession of the demised premises on his own account, amount to a surrender of the term, by operation of law.” Citing cases.
“An express agreement to accept the surrender need not be shown, for the landlord’s assent may be implied by operation of law from the manner in which he uses the property after its abandonment by the tenant.” 2 Wood, Landlord & Tenant (2 ed.) 1173.
“If the landlord takes charge of the property after the tenant has abandoned it merely to protect it from injury, or if, knowing that the tenant does not intend to return, he rents it for the account of the tenant, these acts may not show assent on his part, but if, after an abandonment, he takes possession, and rents the premises on his own account, this is conclusive evidence of a surrender.” Citing cases.
In that case, the court quoted from 2 McAdam, Land, & Ten. (3 ed.) 1283, as follows:
“"When a tenant abandons premises, and returns the keys to the landlord, the latter may accept the keys as a surrender of possession, thereby determining the tenant’s estate, and relet the premises on his own account, or he may accept the keys and resume possession conditionally by notifying the tenant or other person returning the keys that he will accept the keys but not the premises, and relet them on the tenant’s account, in which case the tenant may be held for any loss in rent caused by his abandonment and the subsequent reletting. ’ ’
Under these cases it would appear that the landlord’s right of action on the lease against his tenant for an abandonment of the leased premises for the whole amount of the rent reserved would only mature at the end of the term, when all the installments had matured, and when he would know that the full amount of rent reserved in the lease had been lost. Also it would appear that, if he takes possession of the property and sub-rents it for the benefit of the lessee, his right of action will mature at the end of the term, when he has ascertained the full amount of difference between the rent reserved ■and that obtained by the subletting.
Of course if he accepts the abandonment and rents the property on his own account, the tenant is not liable for future rent. It would appear also that the landlord could refuse to accept the abandonment, let the premises lie idle, and sue the tenant for the rent as it matured under the lease, in this case, on the 10th day of each month. In Bradbury v. Higginson, 162 Gal. 602, 123 Pac. 797, it was held that, although the tenant abandon the premises, the landlord has no right of action for the rent until it falls due. If the landlord so elects, he may treat the lease agreement as at an end and sue for damages for breach of the contract, in which case he could bring his action immediately on the breach and recover the difference between the amount of rent reserved and the reasonable rental value for the remainder of the term, if the rental value be less than the amount reserved in the lease, or he could wait until the end of the term and sue for the difference between the rent reserved and the actual amount of rent received from a subletting on the tenant’s account.
If the landlord is unable to rent the premises, the tenant would be liable for the full amount of the rent reserved. Authorities sustaining the rules of law as herein announced may be found in extended notes to the case of Higgins v. Street (Okla.), 14 Am. & Eng. Ann. Cases, 1086, and 13 L. R. A. (N. S.) 398.
In the case now before us there is nothing in the record to show whether the appellant has retaken possession of the premises, but we announce these rules in view of the disposition we make of this case.
If the complaint in this case be treated as a suit for the recovery of damages for a breach of the contract, the lien retained in the lease contract to secure the payment of the rent does not secure the amount to be recovered in damages for breach. If appellant elects to treat the contract between him and Mixon as at an end, the relation of landlord and tenant has ceased -to exist, and there is no provision in the contract giving appellant a lien on the furniture for damages, for the breach for the term, but only to secure the payment of the rent.
In New v. Mitchell, 80 Ark. 243, 96 S. W. 983, New rented land to certain tenants, who mortgaged the crop to Mitchell for supplies. In a contest between New and Mitchell as to the priority of their respective liens, New sought to recover damages and collect same under his landlord’s lien for neglect of the crop and for rental value of lands not cultivated, in violation of the contract, and this court said: “The landlord’s lien is primarily for rent alone, and has been extended by statute to advances of necessary supplies, money, etc. Kirby’s Digest, §§ 5032-3. It cannot be extended beyond the terms of the statute, and the claims here asserted áre not within the statute.” See also Kaufman v. Underwood, 83 Ark. 118, 102 S. W. 718, 119 Am. St. Rep. 121.
While the lien here involved is by contract and not by statute, we think by analogy the same rule applies, and that we could not extend the lien in the contract to cover damages for the breach thereof, as the contract itself provides that the lien is given “to secure the prompt payment of the rent.”
Since, as has been seen, if the complaint be treated as a suit for rent, even for one month, it was prematurely brought, and if it be treated as an action for damages, there is no lien on the furniture, the decree of the chancery court will be affirmed as to the People’s Bank. As to appellee Mixon, however, the decree will be reversed, and remanded for further proceedings according to law and the principles of equity and not inconsistent with this opinion.
Kirby, J., dissents. | [
80,
-20,
-40,
76,
106,
64,
42,
-104,
82,
-125,
53,
83,
-23,
84,
68,
105,
-30,
125,
81,
105,
-27,
-77,
6,
98,
-46,
-77,
81,
85,
-75,
77,
-12,
-44,
72,
33,
-54,
-107,
-58,
-62,
-63,
92,
14,
1,
42,
108,
-39,
64,
52,
59,
20,
47,
101,
-106,
-13,
44,
24,
79,
108,
44,
93,
45,
112,
-80,
-109,
13,
111,
23,
17,
53,
-34,
1,
96,
28,
-100,
53,
1,
-19,
115,
38,
-122,
116,
79,
-103,
44,
98,
98,
2,
5,
-1,
-64,
-99,
46,
-98,
-99,
-90,
-48,
89,
11,
73,
-66,
-99,
124,
-124,
-115,
118,
-18,
-107,
29,
108,
10,
-50,
-42,
-15,
45,
60,
-108,
-101,
-17,
67,
32,
112,
-51,
-32,
92,
71,
26,
-101,
-58,
-40
] |
McHaney, J.
Appellee had been in the peaceable possession for 35 or 40 years of a certain plot of ground in Rush, Arkansas, containing about three-fourths of an acre, on which she lived, and which she cultivated for garden and truck purposes. In the spring of 1926 she employed one John Melton to plow her land so that she could plant same for garden and other purposes for such year. When said Melton appeared with team and plow for this purpose, appellant, who is the president of the Morning Star Mining Company, came upon the property and forbade Melton from plowing the lands,’ and by threats and intimidation, in the presence of appellee, prevented him from doing such work, cláiming that the Morning Star Mining Company was the owner of such land. An argument then occurred between appellant and appellee regarding the title to the land, in which appellant did some ugly talking. According to the testimony of appellee, which is not disputed, appellant became angry and conducted himself in such a manner as to shock and hurt appellee’s feelings, causing her to cry and to become sick on account of the worry and trouble over this matter; that appellant also prevented any one else from plowing up said land for her. According1 to Mrs. John Melton, who was present and heard the conversation, appellant used some rough language to appellee, acted angry, and appeared vindictive. The proof further showed that the usahle value of the land was $100, and that it would cost' approximately $25 to grow the crop. No evidence was offered on behalf of appellant.
Appellee brought this action against the Morning Star Mining Company and appellant, to recover actual and punitive damages, but, at the conclusion of the testimony, the court instructed a verdict for the Morning Star Mining Company, and submitted the case to the jury as to appellant. There was a verdict and judgment for appellee for $75 actual damages, and $25 punitive damages.
Error is assigned on account of instruction No. 1 given by the court. It is as follows: “The court instructs the jury that, if you find for the plaintiff, you will assess her damages in any sum not to exceed $100, as you may believe from the evidence will compensate her for being wrongfully deprived of the use of her land for the year 1926, and if you find for the plaintiff, and further find that plaintiff was caused to suffer insult, annoyance, humiliation, oppression, aggravation, mental suffering, by the willful, malicious, vindictive or wrongful acts of James K. Lyons, at times when said Lyons was ordering the employee or employees off or from her premises, who had gone there to work for plaintiff, or by fear, frightening or threatening prevented other parties from working for plaintiff on her lands, or that defendant acted with oppressive or vindictive spirit and manner in presence, about and toward the plaintiff, then you have a right to give the plaintiff exemplary damages in addition to compensatory damages, in any sum which you may believe proper, not excéeding $300, as shown from the evidence you may believe will be commensurate with the wrongs done to plaintiff. ’ ’
It is said that this instruction is erroneous for the reason that mental suffering, annoyance, fear, intimida tion, etc.-, unaccompanied by physical injury, will not sustain a cause of action for damages, and the cases of C. R. I. & P. Ry. Co. v. Moss, 89 Ark. 187, 116 S. W. 92, and St. L. I. M. & S. R. Co. v. Taylor, 84 Ark. 42, 104 S. W. 551, 13 L. R. A. (N. S.) 159, are cited in support of this contention. These cases are authority to the effect that mental anguish or mental suffering cannot be made the basis of an action against a railroad company, in the absence of physical injury accompanying same. Many other cases may be found in the reports to the same effect, but these cases are not controlling here, and have no application to the facts in this case. Here the appellant, by the undisputed evidence, committed a willful and wanton wrong against appellee, trespassing upon her property and preventing her from having her land put into cultivation by intimidation and threats of violence. By such acts he caused her to lose the productive value of such land, which the jury has found to be $75. This- loss she sustained directly from 'appellant’s tortious acts. By its verdict the jury has also found that his acts were willful and malicious, and has penalized him therefor in the sum of $25. Having suffered this actual loss, we think the court correctly instructed the jury in this regard.
It is next insisted that the court erred in refusing to give appellant’s requested instruction No. 1, to the effect that, before they could find for-the plaintiff against appellant, they must find that appellant, through acts of violence, prevented the plaintiff from cultivating the lands in question. This instruction was properly refused, as there was no evidence of .violence in the case, only threats and putting in fear of violence.
We find no error, and the judgment is affirmed. | [
81,
108,
-72,
77,
-88,
96,
42,
-104,
65,
-127,
-12,
87,
-69,
-49,
76,
41,
98,
57,
-43,
106,
-12,
-77,
3,
98,
-46,
-13,
49,
69,
56,
76,
-28,
-44,
77,
16,
-54,
85,
-30,
-56,
-49,
88,
-114,
10,
-87,
104,
-55,
96,
48,
59,
114,
15,
113,
-66,
-13,
44,
17,
-58,
41,
46,
-17,
61,
73,
112,
-69,
13,
127,
22,
33,
5,
-98,
1,
-54,
26,
-104,
53,
0,
-64,
115,
34,
-122,
116,
75,
-103,
-120,
102,
98,
49,
12,
-25,
104,
-104,
47,
126,
13,
-90,
-62,
8,
75,
105,
-65,
-107,
76,
-108,
-57,
-2,
-3,
-123,
28,
104,
75,
-53,
-42,
-95,
13,
120,
-108,
19,
-21,
-121,
53,
116,
-51,
-94,
92,
71,
114,
-101,
-113,
-127
] |
Paul Ward, Justice.
Walter J. Sardin (appellant) sued E. W. Roberts (appellee) to recover for personal injuries, allegedly caused by the negligence of appellee in an automobile collision. The trial resulted in a jury verdict in favor of appellee.
Appellant was driving a Cadillac automobile across Broadway bridge toward North Little Rock and appellee was following in a Volkswagen. When appellant reached the end of the bridge he turned to his right and appellee followed in the same lane a short distance behind, both cars traveling approximately fifteen miles per hour. Shortly after the turn was made the left front fender of appellee’s car collided with the right back bumper of appellant’s car.
On appeal appellant seeks a reversal on the sole ground that there was no substantial evidence to support the jury verdict.
Appellant and appellee were the only eye witnesses who testified as to what caused the collision. In substance, appellant stated: It had snowed the night before and I didn’t know whether the streets were still slick or not so when I came off the bridge I slowed down to go around the curve when appellee’s car struck my ear from the rear; by the time I set my brakes “my car stopped some thirty feet or so from where I was struck”; I was moving very slowly at the time my car was struck; my car didn’t appear to be damaged at all.
A city policeman, who arrived at the scene shortly after the collision, testified: I found the two cars entangled; it did not appear that appellant’s vehicle had moved any substantial distance after the impact; it appeared to have stopped on impact. He further stated that appellee appeared to be drunk at the time but later learned this was not true, and that he had been taking medicine for an ailment.
Appellee, in substance, testified: The turn at the end of the bridge had been completed but before we got leveled out appellant stopped Ms ear and I couldn’t stop, so I swerved to the right to avoid hitting him hut my left front fender caught his right hack humper; appellant gave no signal that he was going to stop; his car was not knocked forward, hut stayed right where they hit and they stayed there until the policeman arrived; both cars were traveling between twelve and fifteen miles per hour.
The above conflicting testimony presented a question of fact for the jury to resolve. On appeal we view the evidence “in the light most favorable to the jury verdict”, as stated in Whiteside v. Tyner, 238 Ark. 985 (p. 987), 386 S. W. 2d 239. Therefore, in view of the above, we are unwilling to say there was no substantial evidence to support the jury verdict in this case. | [
-16,
-22,
-32,
44,
9,
64,
50,
10,
84,
-117,
-27,
19,
-81,
-61,
85,
37,
-17,
-1,
85,
43,
-41,
-93,
7,
34,
-46,
-109,
123,
-59,
-97,
-53,
100,
-16,
76,
48,
-122,
21,
102,
73,
-51,
92,
-50,
22,
-38,
-28,
25,
82,
-4,
122,
64,
15,
49,
-98,
-62,
46,
18,
-33,
109,
44,
91,
-68,
-48,
-80,
-56,
13,
119,
18,
-79,
52,
-98,
37,
88,
24,
-104,
49,
32,
56,
114,
-74,
-62,
-12,
105,
-101,
12,
98,
98,
0,
17,
65,
-68,
-72,
14,
-18,
15,
-121,
-110,
113,
-55,
9,
-97,
-97,
123,
84,
14,
126,
-4,
69,
93,
100,
35,
-54,
-108,
-15,
-25,
56,
28,
5,
-29,
-115,
50,
117,
-52,
-14,
93,
69,
82,
-109,
-121,
-110
] |
Carleton Harris, Chief Justice.
R. G. Wood, appel-lee herein, filed suit against Carl Widmer, appellant herein, seeking judgment for the recovery of an abstract of title. Appellant entered a special appearance for the purpose of quashing summons, and setting aside the purported service. This motion was denied on November 17, 1966, and a motion was then filed to vacate this order of the 17th. The motion to vacate was likewise denied by the trial court on December 21, 1966. There after appellant filed an answer and submitted requests for admission of facts to appellee. With reference to the last, Wood filed a motion to quash. On April 28, 1967, appellant filed a motion for summary judgment of dismissal, together with his own affidavit in support of the motion, and a response was filed by appellee on May 12. On that date, the trial, without jury, was held and, after hearing testimony, the court directed that the abstract of title be returned to appellee, or, if same was lost, appellee should have judgment in the amount of $400.00 as damages. From the judgment, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in not granting the motion to abate the complaint; to quash summons, and set aside the purported service, and it is then contended that the court erred in not granting appellant’s motion for summary judgment of dismissal.
We find no merit in the first point. Widmer’s contention is based on the allegation that the summons served upon him directs that he answer within twenty days after service, whereas the statute, Ark. Stat. Ann. § 27-1135 (Repl. 1962) provides twenty-one days in which to answer or plead. Appellant has no cause to complain, for his first pleading (special appearance and motion to abate) was filed sixteen days after being served; in other words, Widmer was not de-peived or misled in any way to his detriment, whatever the status of the service had upon him. As pointed out in 72 C. J. iS. Process § 14, page 1009, an error in stating the time at which process is returnable is not fatal where a defendant was not misled to his detriment or prejudice.
As to his second point, relating to the summary judgment, Widmer relies in large measure upon the fact that he served sixteen requests for admission of facts upon appellee, which were never answered. However, appellee did file a.“motion to quash,” stating that same were irrelevant and otherwise improper. We held in Widmer v. Wood, 243 Ark. 617, 421 S. W. 2d 872, that a similar motion by tbe appellee constituted written objections . Appellant further points out that the statute provides that a notice of hearing on objections shall.be given at the earliest practicable time, and that no such notice was given by appellee. In Widmer v. Wood, 243 Ark. 457 (the first Widmer-Wood case to reach this court), the same argument was presented. We held it to be without merit, stating:
“ ***That the objections did not include a notice for a hearing thereon was not, in our judgment, a defect so fatal as to. result in the defendants’ admission of the truth of the requests.”
Appellant also asserts that the affidavit he filed, along with his motion for summary judgment, was sufficient within itself to supply the facts essential to justify the granting of his motion for summary judgment. We do not agree, and in fact appellant’s statements on the day of trial are contrary to this assertion. Let it be borne in mind that the only matter involved in this suit is whether Wood is entitled to the abstract of title; Wid-mer’s affidavit relates to his contention that Wood breached the contract for the sale of the land. In determining the issues that would be presented to the court, the judge asked appellant if he had any statement to mqke. Widmer replied:
“I’ve read this complaint, I’ve read the answer and I’ve read the exhibits attached to it and no where do I find anywhere a mention of an abstract or conditions upon which it was to be turned over to Mr. Widmer or returned by Mr. Widmer, or kept by Mr. Widmer. There is nothing in here that shows a/nd the court’s got to have proof this morning as to the agreement regarding the abstract transaction. [Emphasis supplied.] Now, of course, it would depend on, if there hadn’t been a default there wouldn’t have been any law suit, hut regardless of who’s fault it is, I am unable at this time to see where that question of fault in not carrying it out has anything to do with the agreement to the abstract. That’s a separate agreement, and I’m interested in hearing only what the agreement is with respect to this abstract, not going into the long winded business here to determine who’s fault it is for breaching this contract.”
The court then proceeded to hear proof, and three witnesses testified, at the conclusion of which the court rendered its judgment in favor of appellee.
Affirmed.
This is the third lawsuit between Widmer and Wood to reach this court, and in the second case we pointed out that nearly all of the requests for admissions were similar to those set forth in the first case. Here too, most are substantially the same. | [
52,
-28,
-35,
76,
11,
33,
50,
-104,
82,
67,
39,
-45,
-19,
-14,
12,
57,
-9,
41,
84,
120,
-49,
-93,
87,
97,
114,
-77,
-45,
-43,
-75,
-49,
116,
-43,
76,
-80,
-62,
-105,
102,
-56,
-51,
28,
78,
-128,
-119,
108,
-39,
-111,
52,
59,
28,
15,
49,
-66,
-21,
42,
27,
67,
9,
44,
-5,
40,
-64,
-72,
-101,
15,
123,
20,
35,
54,
-100,
-121,
88,
-84,
-112,
49,
19,
-8,
51,
-74,
-126,
-12,
106,
-103,
8,
102,
98,
0,
21,
-25,
-128,
-72,
46,
60,
29,
-90,
-79,
32,
11,
97,
-74,
-103,
118,
16,
71,
-2,
-18,
-107,
21,
44,
15,
-49,
-12,
-79,
-97,
120,
-100,
-125,
-21,
-77,
16,
112,
-49,
-12,
92,
87,
59,
-101,
-122,
-111
] |
Greenhaw, J.
Appellee brought this action against appellant, his wife, to secure a decree of divorce and the custody of their two minor children. He alleged that they had lived separate and apart without cohabitation for a period of more than three consecutive years prior to the filing of the complaint, pursuant to subsection 7 of § 2, Act 20 of the Acts of 1939. Some time thereafter lie filed an amendment to the complaint alleging adultery on the part of appellant as an additional ground for divorce.
Appellant filed an answer denying the allegations of the complaint and the amendment to the complaint, and by way of cross-complaint asked for a divorce on the ground of willful desertion for a period of more than one year.
The cause was tried and a decree entered on December 4, 1941, in which the cross-complaint of appellant was dismissed for want of equity and a divorce granted to appellee. In this decree the court adjudicated and settled property rights of the parties, gave to appellant possession until June 1,1942, of the home where she and the children resided, divested her of all interests in the real estate of appellee and vested same in appellee, and made a temporary order with reference to the custody and maintenance of the minor children, from which is this appeal.
Appellee has filed in this court a motion to dismiss the appeal for the reason that the testimony of witnesses taken in open court was not transcribed and filed during the term at which the case was tried, but was filed May 18, 1942, after both the January and April terms of the Benton chancery court had intervened, and chiefly relies upon the case of Elvin v. Morrow, ante, p. 456, 162 S. W. 2d 892.
We are unable to agree with this contention. This case was tried upon depositions which had been taken pursuant to agreement, and also upon the oral testimony of witnesses' in open court. At the beginning of the trial the following stipulation was entered: “It is agreed by and between the parties hereto that the evidence may be taken orally in open court in shorthand by Bernice L. Bottens and by her transcribed to typewriting upon request of either party and when the evidence is so transcribed to be filed either in term time or in vacation as depositions in the case, and when so filed by her to become a part- of the record herein.”
It will be observed that under the terms of the stipulation the evidence could be transcribed and filed either in term time or in vacation, and the fact that same was not transcribed and filed during the term when the trial was had and the decree entered did not preclude the filing thereof after the term had lapsed. We have so held under somewhat similar facts. See McCall v. McCall, ante, p. 836, 165 S. W. 2d 255.
The evidence showed that appellant and appellee were married in Benton county, Arkansas, in January, 1924, and lived together as husband and wife in Benton county, Arkansas, until some time during the year 1936, when appellee left the state of Arkansas, and thereafter obtained work in oil fields in Nansas, Oklahoma, New Mexico, Texas and Illinois.
Two children were born to this union, Don Orba, a son, who was 13 years of age, and Dawna, a daughter, who was nine years of age at the time of the trial. Appellee owned a farm near 'Bella Vista, upon which they lived and which constituted the homestead. When appellee left, appellant and the children continued to reside there. Thereafter they went to various places where appellee was working, and lived with him for short periods of time. They lived together in Seagraves, Texas, during the fall of 1937, and from this place appellant and the two children tvere sent by appellee to their home in Benton county, where they have since resided.
Appellee and numerous witnesses testified that he and appellant have not lived and cohabited together as husband and wife since January 7, 1938; that he returned to Benton county from time to time to see the children, but that he and appellant did not live and cohabit together as husband and wife.
The court made the following findings of fact:
“The court finds from the evidence that the plaintiff is entitled to an absolute divorce from the defendant on the two grounds as alleged in the complaint and that the cross-complaint of the defendant should be dismissed for want of equity.
“The court finds from the evidence that the plaintiff and defendant have lived separate and apart without cohabitation at all times since January 7, 1938.
“The court finds that it is proper, under the existing conditions, that the defendant should have the custody of said children until the 1st day of June, 1942, and that the plaintiff pay to said defendant for the care, custody and maintenance of said children the sum of $30 per month, from date until June 1, 1942, at which time the plaintiff is to have the care, custody and control of said minor children until the third Thursday in August, 1942, at which time the court will make permanent orders as to said children and allowances, depending upon the situation of the parties existing at said time.
“The court further finds from the evidence that the defendant is awarded, as her share of the plaintiff’s property, all household goods now situated upon the premises occupied by the defendant belonging to the plaintiff and all personal property now on the farm except the ten calves owned by her son, Don Orba Howard, and is to have the automobile now in her possession, and that the defendant is permitted to occupy the farm of the plaintiff without committing any waste thereon until June 1, 1942, at which time the plaintiff is to have possession thereof. ”
A decree was entered in conformity with these findings.
It would serve no useful purpose to set out in detail the evidence in this case. Suffice it to say that in our opinion the court’s finding that appellant and appellee had lived separate and apart without cohabitation for more than three years prior to the filing of the complaint was supported by a preponderance of the evidence which justified granting a divorce on this ground under subdivision 7 of § 2 of Act 20 of 1939.
In the case of Greer v. Greer, 193 Ark. 301, 99 S. W. 2d 248, this court said.: “As to the sufficiency of the evidence to support the chancellor’s finding, it may be stated at the outset, that the same rule applies in a divorce action as in other chancery actions, that the findings of fact by a chancellor will not be disturbed by this court unless such finding is against the preponderance of the evidence.”
According to the evidence, we think that both appellant and appellee were guilty of misconduct which no doubt was taken into consideration by the court in adjudicating their property rights as provided in said Act 20. We are unable to say that the action of the court in this respect was erroneous and not supported' by a preponderance of the evidence.
The decree dismissing the cross-complaint of appellant, but giving her certain personal property and divesting her of her interest in appellee’s real estate, and granting a divorce to appellee is affirmed.
Tlie decree appealed from, in so far as it affected the custody and maintenance of the minor children, was not final, it being specifically provided therein that the final order with reference thereto would be entered the third Thursday in August, 1942. The appeal was filed in this court on May 20, 1942, and therefore any order which may have been made subsequently is not before us.
While the evidence showed' that the appellee was born and reared in Benton county, Arkansas, and had always claimed that as his home and legal domicile, paying his taxes, including poll tax, there, and had never voted in any other state nor established or claimed a permanent home elsewhere, yet the undisputed proof was that he was in oil field construction work which necessitated his going from place to place in various states, thereby creating a situation which in our opinion would not be conducive to the best interests of the minor children were he to have their custody at this time. We are of the opinion that the interests of the minor children would be best served if their custody were awarded to appellant for the present, with provision for their adequate maintenance at the expense of appellee, and the further provision that appellee be permitted to visit them and have them visit him 'at all reasonable times. The chancery court will, of course, retain jurisdiction to make such further orders for the custody and support of the children as it from time to time may deem meet and proper.
The custody of the minor children is therefore awarded to appellant until such time as the chancery court may deem it to the best interests of the children to make other orders, and this cause is remanded to the lower court to the end that suitable and proper orders-for visitation and support of the minor children may be made in the premises.
The record does not affirmatively show that appellee has property in this state other than the rural acreage now occupied by appellant and the two children. Inasmuch as the interest of the children is the paramount consideration, appellee is enjoined from disposing of such property, or encumbering it except in such manner as may meet the approval of the chancery court — this for the benefit of the children as distinguished from appellant.
The costs of this case, including those on the appeal, will be assessed against appellee. | [
-80,
104,
-11,
109,
-86,
97,
104,
-86,
112,
-127,
39,
83,
-23,
82,
16,
121,
82,
45,
81,
122,
-59,
-75,
30,
67,
-14,
-109,
-15,
-43,
-76,
-35,
-27,
86,
76,
40,
-30,
-43,
66,
-54,
-59,
20,
-50,
-121,
-101,
-24,
-40,
-62,
52,
101,
122,
13,
117,
-2,
-77,
44,
25,
-57,
72,
108,
78,
-71,
-48,
32,
-98,
13,
63,
102,
-77,
4,
-102,
4,
-64,
-21,
-104,
48,
1,
-83,
115,
-106,
-106,
118,
102,
-71,
8,
36,
98,
3,
-115,
-25,
-104,
9,
62,
54,
13,
-89,
-16,
80,
72,
0,
-74,
-111,
125,
-48,
47,
122,
109,
-115,
29,
100,
40,
-117,
-74,
-111,
-114,
-26,
-68,
27,
-21,
-94,
21,
112,
-53,
-90,
93,
103,
49,
-101,
-114,
-111
] |
Humphrey, J.
On September 19, 1938, tbe State of Arkansas, through its attorney general, Jack Holt, brought suit in the Pulaski circuit court against Ed F. McDonald, the Fidelity & Deposit Company of Maryland and the American Surety Company of New York wherein judgment was prayed against each of said defendants for the sum of $5,996.12, with interest at the rate of six per cent, from May 12,1938.
The complaint alleged that Ed F. McDonald was elected secretary of state for' the term beginning. 1933 and ending January, 1935; that he executed two general or official bonds in the sum of $5,000' each, one being signed by the Fidelity & Deposit 'Company of Maryland and the other being signed by the American Surety Company of New York, and that the Fidelity & Deposit Company of Maryland, on December 29, 1932, signed a disbursing agent’s bond in the sum of $6,000 for Ed F. McDonald; that all three bonds were signed, approved and filed in accordance with law prior to the time Ed F. McDonald entered upon his duties as secretary of state; that the two general or official bonds contained the following recital: “Whereas, the above bounden Ed F. McDonald, was on the 8th day of November, 1932, elected to the office of secretary of state for a period beginning January 9, 1933, and ending January 9, 1935.
“Therefore, the condition of the above bond is such that if the said Ed F. McDonald shall well, truly and faithfully discharge and perform the duties of his office, and at the expiration of his term of office shall render unto his successor in office a correct account of all sums of money, books, goods, valuables, and other property, as it comes into his custody, as such secretary of state, and shall pay and deliver to his successor in office or any other person authorized to receive the same, all balances, sums of money, books, goods, valuables, and other property, which shall be in his hands, and due by him, then the above obligation shall be null and void; else the same to remain in full force and virtue.”
It was further alleged that the disbursing agent’s bond contained the following recital: “The conditions of the above bond is such that if the said Ed F. McDonald as such disbursing agent, or anyone he may designate to act for him, shall well, truly and faithfully disburse appropriations of said office according to laws- governing-same and especially Act 781 of the 1923 General Assembly. At the expiration of his term of office he shall render unto his successor in office a correct account of all sums of money, books, goods, valuables and other property which shall be in his possession as such disbursing agent of said office. And shall, further, pay and deliver to his successor in office, or any other person authorized to receive same,'all balances, sums of money, books, goods, valuables and other property, which shall be in his possession and due by him, then the above obligation shall be null and void; else the same to remain in full force and virtue”; that the two general or official bonds were required to be and were executed, approved and filed under the provisions of § 5406 of Pope’s Digest which is as follows: “The secretary of state shall, before he enters upon the discharge of his duties, enter into bond, with good and sufficient security, to the governor and his successors in office, in the sum of five thousand dollars, to be approved by the governor, conditioned that he will well and truly perform and discharge the several trusts and duties of secretary of state, and in all things touching and concerning the said office shall well, truly and faithfully execute and perform the same; which bond shall be filed with the auditor”; that the disbursing agent’s bond executed by Ed F. McDonald was signed, approved and filed under § 4366 of Pope’s Digest, which is as follows: “Each disbursing agent shall be required to give bond, in such amount as shall be deemed necessary by the auditor of state, and said bond shall be protection to the state or any of its creditors in case of losses sustained by reason of the action of said person. The bond shall be made by a surety company and the premium shall be a proper charge against the state. The bond shall be approved by the governor and filed hi the office of the state auditor. Each disbursing agent shall select a person to act for him in his absence and the actions of snob person shall be considered tbe actions of tbe disbursing agent and tbe disbursing agent shall be responsible under bis bond for same. Tbe disbursing agent shall notify tbe auditor of state of tbe selection of such person. Id. § 3.”
It was further alleged that during tbe period Ed F. McDonald servéd in office as secretary of state, from January 9, 1933, and by virtue of said office as disbursing agent, he purchased certain supplies for the state in tbe total sum of $5,996.12,- for which vouchers were issued and paid in tbe sum of $5,996.12, but which were never delivered to tbe state or received bjr tbe state although both the vendors and Ed F. McDonald stated that tbe goods were delivered to tbe state in first class condition at tbe state capitol.
Tbe prayer of tbe complaint was that tbe state of Arkansas have judgment against the secretary of state and tbe two surety companies and each of them in tbe total sum of $5,996.12 with interest.
Tbe American Surety Company of New York filed an answer containing a general denial of all liability on its bond for any acts of Ed F. McDonald.
Ed F. McDonald filed an answer denying each and every material allegation in the complaint.
While this suit was pending tbe surety companies effected a settlement of tbe alleged liability in tbe sum of $3,264.70, or $1,632.35 each. At tbe time of tbe compromise and 'settlement, each surety company contended that tbe other was liable for- tbe full amount of the debt, but they agreed to make tbe settlement, and that each would contribute one-half, and that they would submit the question of their liability at a later date. This was done, and tbe circuit court of Pulaski county adjudged that each should pay one-half of tbe amount of tbe compromise, from which judgment tbe American Surety Company of New York duly prosecuted an appeal to this court.
According to tbe stipulation of facts and tbe complaint in this case, tbe disbursing agent McDonald pur 'chased the merchandise for which vouchers were issued and paid and the merchandise was never delivered to or' received by the state of Arkansas. It follows that the disbursing agent’s bond was initially and primarily responsible for the shortage or fraud practiced upon the state.
Appellee argues and contends that the statute under which the disbursing agent’s bond and the bond itself is responsible only for any fraud or shortage that exceeds the amount of any particular appropriation for any. department of the state. We do not think this a fair construction of the statute authorizing the disbursing agent’s bond or of the conditions of the bond itself. The disbursing agent’s bond was for $6,000 and the conditions thereof were such that “if the said Ed F. McDonald as such disbursing agent, or anyone he may designate to act for him, shall well, truly and faithfully discharge appropriations of said office according to laws governing same and especially Act 781 of the 1923 General Assembly. At the expiration of his- term of office he shall render unto his successor in office a correct account of all sums of money, books, goods, valuables and other property which shall be in his possession as such disbursing agent of said office. And shall, further, pay and deliver to his successor in office, or any other person authorized to receive same, all balances, sums of money, books, goods, valuables and other property, which shall be in his possession and due by him, then the above obligation shall be null and void; else the same to remain in full force and virtue.” These conditions applied to the appropriations made for any department of government and did not limit the liability to excess expenditures above the appropriation. Such was not the purpose of Act 781, approved March 28, 1923. That act declared its own purpose. Said act {% 4373 of Pope’s Digest) reads as follows:
“The purpose of this act is to fix a definite responsibility on some one person to act for each agency of the state government in disbursing the funds appropriated to it by the general assembly. Tbe auditor of state, with the consent and approval of the governor, is hereby authorized to make such rules and regulations, in addition to the specific provisions of this act and not inconsistent therewith, as are necessary to carry out said purpose. Id., § 10.”
We do not mean to say or intimate that the only protection the state had'against fraud or shortages was the disbursing agent’s bond. We think the state was also protected by the general or official bond or bonds for all shortages or frauds under the conditions of and the statute authorizing the execution of the general or official bond or bonds of the secretary of state. The general or official bond or bonds protected the state against shortages or frauds which were not or could not be collected under the disbursing agent’s bond and for any shortages or frauds in excess of the amount of guaranty of the disbursing agent’s bond.
This court ruled in the case of Briggs v. Manning, 80 Ark. 304, 97 S. W. 289, (quoting syllabus 4) that: ‘ ‘ The bond of a sheriff executed in his capacity as public administrator is primarily liable for any losses resulting from his failure to comply with its conditions, and remedies on it must be exhausted before recourse can be had to his official bond as sheriff.”
We think the rule announced in Briggs v. Manning, supra, should be applied in the instant case and, as applied, the disbursing agent’s bond with the Fidelity & Deposit Company of Maryland as surety is primarily liable for shortages or frauds in the wrongful disbursement of moneys up to and including the sum of $6,000.
In the instant case the liability did not exceed $6,000. It was much less. In fact, under the compromise agreement, it was only $3,264.70. The amount of' the bond will not be exhausted by the payment of the total sum, and the circuit court should have, under the undisputed facts, adjudged the total loss against the Fidelity & Deposit Company of Maryland instead of adjudging that each of the surety companies should pay one-half of the shortage.
It follows that judgment must be rendered here in favor of the American Surety Company of New York against tlie Fidelity & Deposit Company of Maryland for $1,632.35.
The judgment is, therefore, reversed and judgment is entered here against appellee in favor of appellant for $1,632.35. | [
-76,
109,
-8,
108,
-118,
96,
58,
-102,
51,
-127,
-76,
83,
-7,
100,
4,
101,
-13,
109,
-51,
105,
-57,
-73,
119,
74,
-13,
-77,
-87,
-59,
53,
95,
-28,
87,
72,
40,
98,
81,
-90,
-94,
-61,
24,
-54,
40,
43,
-24,
-33,
-39,
48,
-1,
48,
9,
101,
-66,
-13,
58,
-105,
107,
109,
46,
-53,
-88,
-48,
-79,
-119,
13,
125,
21,
-127,
86,
-104,
7,
-64,
62,
-104,
49,
-43,
-72,
122,
-90,
-58,
84,
103,
-99,
40,
98,
34,
58,
-127,
-27,
-116,
12,
38,
-69,
-99,
-90,
-122,
105,
11,
15,
54,
-99,
59,
16,
6,
-14,
-86,
-107,
18,
108,
5,
-118,
-42,
-93,
-116,
116,
28,
27,
-25,
-121,
48,
113,
-116,
-30,
76,
71,
60,
23,
-121,
-15
] |
Humphreys, J.
Appellees herein were plaintiffs below in an ejectment suit brought by them in the circuit court of St. Francis county against Will Carbage alleging that they were the owners and entitled to the possession, under the will of E. C. Hughes, deceased, of the following described land in St. Francis county, Arkansas, to-wit:
“Southeast quarter of section 32 and the south half of tlie southwest quarter of section 33, township 4 north, range 4 east, containing 240 acres, more or less. ’ ’ A copy of the will was-attached to the complaint.
They alleged in their complaint that "Will Carbage was in the unlawful possession of the land and had been since March 23, 1941, and in addition to the prayer for the recovery of the land they prayed for damages for the rental value thereof from March 23, 1941, until final disposition of the cause.
Will Carbage, the defendant in the ejectment suit was the tenant of the appellants and filed no answer.
Appellants intervened in the case and caused themselves to be made parties defendant. In their intervention they denied that appellees were the owners of said land under the will of E. C. Hughes, deceased, but on the contrary alleged that they were the owners of the land under the will of E. C. Hughes, deceased, through mesne conveyances from Lorena Utley (Hughes-Taylor) who took the title to said property in fee simple absolute under the will of E. C. Hughes, deceased, and in 1904 conveyed same to J. B. Terry in their chain of title.
Appellees filed an answer to the intervention of appellants and denied each and every material allegation contained therein.
Appellants and appellees waived the right of trial by jury and agreed that the cause might be tried before the circuit court sitting as judge and jury.
In accordance with the agreement, the court heard the case upon the complaint and exhibits thereto, the intervention and exhibits thereto, the testimony adduced by the respective parties and the éxhibits thereto, from which he found that E. C. Hughes departed this life on September 13,1897, and at the time of his death was the owner of the fee simple title and entitled to the possession of the land described in. the complaint arid under his last will and testament it was devised by E. C. Hughes to Lorena Utley (Hughes-Taylor) for the term of her natural life only, with remainder therein at her death to her brothers and sisters in equal shares; that because of said devise in said last will and testament, the said Lorena Utley (Hughes-Taylor) having departed this life, appellees are the owners of said land in fee simple and are entitled to possession thereof.
Based upon these findings the court ordered and adjudged that appellees are entitled to the possession as owners in fee simple of the land described in the complaint and that the costs of the action be adjudged against the interveners (appellants herein) and further ordered that the interveners (appellants herein) pay the appellees the sum of $356.25 rent for the year 1941 and the sum of $34.81 for the 1940 taxes.
A motion for a new trial was filed and overruled and thereafter an appeal was duly prosecuted to this court.
Both appellants and appellees state that the sole issue presented by the record in the case for determination by this court is whether Lorena Utley (HugliesTaylor) acquired fee simple title or merely a life estate under said last will and testament of E. C. Hughes, deceased. The will appears in the record and that portion thereof before us for construction is as follows: “The balance of my personal property and all my real estate, consisting of the Linden Farm, Jones place, the Casteel place, all in St. Francis county, Arkansas, I give to Lorena Utley during her life, and at her death to be equally divided between her brothers and sisters, I mean her legal heirs.”
The exact clause of the will involved in this case was construed by this court in Taylor v. Manley, 151 Ark. 635, 237 S. W. 464, to the effect that the testator intended for Lorena Utley (Hughes-Taylor) to have a life estate in the real estate, and in the event of her death that the estate should go to her brothers and sisters, who, both at the time of the execution of the will and at the time of the testator’s death when the will took effect, were the next of kin or legal heirs of Lorena Utley (Hughes-Taylor). This court said that the clause in the will, to-wit: “I give to Lorena Utley during her life and at her death to be equally divided between her brothers and sisters, I mean her legal heirs, has the same meaning as if it had been written as follows: ‘I give (the estate named) to Lorena Utley during her life, at her death to her brothers' and sisters, who are her legal heirs to be equally divided between them.’ In other words, the term 'legal heirs’ was intended to describe her brothers and sisters at the time of the execution of the will. It was the evident purpose of the testator, we believe, to provide for those who were in being at the time of the will and not for those who were then unborn.”
After a very thorough consideration and analysis of the identical clause in the will of E. C. Hughes, deceased, which is involved in the instant case, we are convinced that the construction given by this court in the case of Taylor v. Manley, supra, should be adhered to under the doctrine of stare decisis.
The judgment, therefore, is affirmed. | [
113,
108,
-16,
60,
-72,
-31,
120,
-86,
-46,
-121,
54,
83,
-17,
88,
0,
45,
-29,
77,
-11,
123,
-25,
-73,
95,
96,
82,
-45,
113,
69,
-80,
73,
-28,
-42,
88,
32,
106,
5,
-58,
96,
-51,
28,
-98,
-95,
-119,
100,
89,
72,
48,
-87,
84,
15,
101,
-82,
-14,
46,
53,
107,
105,
46,
79,
-83,
64,
120,
-34,
69,
27,
7,
32,
102,
-102,
1,
106,
56,
-112,
48,
8,
-88,
115,
-90,
-110,
84,
73,
-103,
40,
118,
66,
10,
-83,
-89,
-84,
9,
6,
-70,
25,
-90,
-26,
73,
65,
73,
-98,
-111,
122,
80,
70,
-2,
-19,
-107,
84,
40,
-89,
-49,
-44,
-77,
15,
56,
-108,
3,
-13,
47,
48,
113,
-49,
-26,
92,
71,
58,
-101,
-114,
-46
] |
Holt, J.
Wharf Improvement District No. 1, embracing the real property within the city of Helena, Arkansas, was organized in 1918 under the general statutes of this state authorizing the formation of improvement districts in municipalities. The validity of this district was approved by this court in Solomon v. Wharf Improvement District, 145 Ark. 126, 223 S. W. 385. Benefits were assessed, levied and collections begun in 1926 to continue over a period ending in 1944. Five per cent, interest bearing bonds were issued by the district in the amount of $225,000. The proceeds from the sale of these bonds were used in constructing a river and rail terminal at Helena, Arkansas.
Prior to 1938, some of the taxpayers within the district, including appellant, Sam Papa, became delinquent.
March 23,1938, the district under the powers granted by the terms of act 100 of the Acts of 1933, sold all the property of the Wharf Improvement District to the Inland Waterways Corporation, a government agency operating what is known as the “Federal Barge Lines” on the Mississippi river, for a consideration of $100,000: At the time this sale was consummated, the outstanding bonded indebtedness of the district amounted to $167,000.
Shortly after the consummation of this sale in 1938, the Wharf Improvement District brought suit in the Phillips chancery court against appellant, and other delinquent property owners, to foreclose the respective tax liens. Foreclosure decree was entered and sales made by the commissioner and duly confirmed, and the decree contained an order authorizing and directing the clerk of the chancery court to issue writs of assistance to enforce compliance with its orders. Appellant .made no defense to this foreclosure suit.
On December 21, 1941, appellant filed the present suit against P. P. Kitchens, sheriff of Phillips county, and J. B. Lambert. He alleged in his complaint, among other things, that appellant is the owner of property within the improvement district in question; “That on the 14th day of November, 1941, the circuit clerk, and ex-officio chancery clerk of said Phillips county, issued a writ of possession directed to said P. P. Kitchens, as sheriff of said county, authorizing and directing him to take possession of said real estate of the plaintiff herein (■appellant here), and on the 24th day of July, 1939, said defendant, J. B. Lambert, was appointed receiver, and authorized and directed to collect the rents from said real estate of the plaintiff, and apply the same to the payment of delinquent assessments due and owing by the plaintiff to the said Helena Wharf Improvement District.
“Plaintiff alleges that the writ of possession issued by said clerk, and the appointment of said -J. B. Lambert as such receiver were void for the following reasons:
“That said Wharf Improvement District was organized pursuant to the laws of the state of Arkansas . . .; that . . . the .improvements . . . constituting said Wharf Improvement District were duly constructed and completed . . .
‘ ‘ That by Act 100 approved March 16,1933, the legislature of the state of Arkansas authorized the sale of ‘Wharves, River and Rail Terminals, equipment and appliances incidental to the operation thereof, owned and operated by any Wharf Improvement District in this state. ’
“That said act provided among other things that no sale of the property of such district shall be made for less than the amount necessary to pay all of the outstanding indebtedness against the, district. . . .
‘ ‘ That the provisions of said Act 100 relating to the adoption of the resolution by the board of commissioners of said district, that it 'would, be to the best interest of the district that, said property be sold, and the petition of the majority of the owners of property located within said district, asking that such sale be made, and the publication of the notice of the contemplated sale, and all other preliminary requirements of said act were duly complied with.
“That pursuant to the action of the board of commissioners of said district, and the action of a majority of the owners of property located in the district, ordinance No. 2206 was adopted by the city council of said city of Helena, authorizing the sale of the property constituting the Helena Wharf Improvement District, and directing a deed to be executed conveying said próperty to the Inland Waterways Corporation.
“That on March 23, 1938, pursuant to the action of said board of commissioners and pursuant to the action of the said city council, a warranty deed was executed by D. T. Hargraves as mayor and R. Gr. Howard as city clerk conveying all the property of said Wharf Improvement District to said Inland Waterways Corporation for a cash consideration of $100,000.
“Plaintiff alleges that said Wharf Improvement District had no power or authority to sell the property belonging to said district, except in accordance with the terms and provisions of said Act 100, and that upon the sale of said property, the board of commissioners had no power or authority to levy any further assessments on any of the property located in said district, or to collect any assessments that may have been theretofore levied.”
And (quoting from appellant’s brief) “It further alleges that said F. F. Kitchens as sheriff is threatening to take possession of the property of the appellant by virtue of said writ of possession and that said J.' B. Lambert as such receiver is interfering with the possession of the tenants of the appellant, and appellant asks that said writ of possession be quashed and that said receiver be discharged.”
To this complaint, appellee filed demurrer alleging “(1) the complaint shows upon its face that the court has no jurisdiction of this cause of action; (2) the-complaint does not state facts sufficient to constitute a cause of action. ’ ’ Upon a hearing the demurrer was sustained and appellant refusing to plead further, the complaint was dismissed for want of equity. This appeal followed.
Appellant’s primary contention here is stated in his brief in this language: “Said district had no power or authority to sell the property belonging to said district except in accordance with the provisions of Act 100, and that upon a sale of the property, the board of commissioners had no power or authority to levy any further assessments on the property located within the district, or to collect any assessments that may have been theretofore levied.”
It is true, as appellant contends, that the power of the district to sell the property in-question is derived from Act 100 of the Acts of 1933 (now §§ 7740-7744, Pope’s Digest). The sale was duly made under the terms of the act by the district of its terminal property to the Inland Waterways' Corporation on March 23, 1938. Appellant does -not question the city’s power to make this sale under the act in question, but he does question the power of the board of commissioners of the district to collect any delinquent -assessments on appellant’s property within the district that were due and unpaid prior to the date of sale.
It is our view, however, that under the terms of the act, supra, the power was given to the district to enforce payment of all delinquent taxes against property within the district prior to March 23, 1938, the date of sale. We think this power must be inferred from the provisions of § 4 of the act which provides: “If the properties authorized to be sold hereunder should sell for more than the secured and unsecured indebtedness of the district, then such excess shall be apportioned and paid by the board of improvement back to the then owners of record of the real property of the- district in the same proportion that each parcel of said property has contributed in taxes for the acquisition, construction and operation of said improvement. ”
Clearly this section contemplates that when all indebtedness against the district has been paid, any excess shall be refunded by the district to all taxpayers in proportion to the amount of improvement taxes paid by each. No equitable distribution could be made until all taxpayers within, the district had paid all taxes assessed and due at the time of the sale in question.
Here appellant’s property was properly foreclosed to satisfy the lien for all delinquent taxes that had accrued prior to March 23, 1938. No effort has been made to assess or collect taxes from appellant subsequent to the date.of sale. "We find nothing in Act 100, supra, which would prevent or bar the enforcement of the payment of these delinquent taxes against appellant which had accrued and were due the district prior to and at the time of the sale of the terminal property on March 23, 1938. Appellant, a recalcitrant taxpayer, cannot be permitted to profit by reason of the fact that other taxpayers in the district have paid their taxes in full in order to discharge the district’s obligation.
The question presented has been very thoroughly considered and discussed by this court in the recent case of Ingram v. Board of Commissioners of Street Improvement District No. 5, 197 Ark. 404, 123 S. W. 2d 1074. That decision is adverse to appellant’s contention here. In that ease many previous decisions of this court are reviewed and there it is said: “It appears to be true that if the collection of the delinquent taxes here sued for is enforced, the commissioners will then have in their hands a sum greater than is necessary to discharge the obligations of the district, and the court has reserved for future decision the disposal of this excess. But this fact constitutes no defense. When appellant has paid or been compelled to pay the taxes here sued for, he will then have paid no more than any other property owner in the district has been compelled to pay.
“This question has been decided adversely to appellant’s contention in several different cases. These pay ments by others were not voluntary payments. It was said in the case of Thibault v. McHaney, 127 Ark. 1, 192 S. W. 183, that ‘The ascertainment by the court of the amount necessary to assess against the property was a mere estimate, and the payment by the property owners was upon the implied assurance that the amount in excess of what was required to discharge the obligations of the district would be refunded projata to the property owners. Now these recalcitrant taxpayers say that they should be permitted to profit by the fact that they held back and refused to pay until the other property owners paid substantially enough to discharge the joint obligations. The position is wholly untenable, and the doctrine invoked has no application, which is based entirely upon the theory of estoppel — that one who pays money voluntarily, .and with full knowledge of the facts will not be heard to assert the right to recover it back. In this instance the property owners undoubtedly paid voluntarily with knowledge of the facts, but, as already stated, they paid upon the implied assurance that all of the taxpayers would be required to respond in like proportion, and that any sum in excess of the amount required to discharge the obligations would be refunded.”
There the court, after reviewing the decisions of Paving District No. 5 v. Fernandez, 142 Ark. 21, 217 S. W. 795, and that of Chicago Mill & Lumber Co. v. Drainage District No. 17, 172 Ark. 1059, 291 S. W. 810, concludes with this language: . . this result (payment of debts of district) has been achieved by certain landowners paying their taxes, while others declined to do so, and when appellants have paid delinquent taxes against their lands, they will then have done no more than other property owners have already been required to do.- . . . When all have paid their taxes the court, as in the Fernandez case, supra, may do equity. It cannot do so before.” See, also, Haraway v. Zambie, 203 Ark. 550, 157 S. W. 2d 504.
Finding no error, the decree is affirmed. | [
-16,
79,
-12,
110,
-6,
66,
10,
-71,
-45,
-71,
-27,
87,
-27,
103,
16,
101,
-57,
125,
-11,
120,
-89,
-78,
3,
99,
-37,
-13,
-3,
-59,
-70,
93,
-28,
-42,
72,
49,
-62,
-107,
-122,
-32,
-49,
-104,
70,
-127,
11,
109,
89,
64,
52,
111,
98,
15,
53,
-83,
-69,
41,
20,
106,
77,
47,
73,
63,
81,
-5,
-88,
-100,
91,
6,
-127,
100,
-104,
21,
-64,
8,
-80,
53,
20,
-88,
123,
54,
-122,
87,
65,
-39,
12,
38,
98,
3,
101,
-17,
-24,
40,
22,
-1,
-87,
-90,
-128,
121,
2,
67,
-67,
-100,
94,
22,
-106,
-2,
-1,
-59,
95,
108,
-121,
-50,
116,
-109,
38,
-96,
21,
19,
-41,
27,
48,
116,
-55,
-30,
95,
-57,
87,
-101,
-122,
-79
] |
McLIanby, J.
The southeast half of section 2, township 16 north, range 1 east, Lawrence county, forfeited in 1929 for the taxes of 1928 and was sold to the state, and, not having .been redeemed in the time provided by law, was certified to the state in 1931. On November 12, 1931, appellant applied for and received a donation certificate to said land from the State Land Commissioner, entered into possession thereof ancl made certain improvements thereon, his intention being to perfect his donation and get a donation deed thereto. Prior to his accomplishment' of this purpose, the legislature of 1934, in special session, by Act 2,' extended the time for redemption by owners of lands theretofore sold for taxes to April 10, 1934. On April 3,1934, E. D. Wells, the then record owner of the lands above described, redeemed same from the state. Wells conveyed same to appellee Massey.. Said Act 2 further provides that if land is so redeemed, and there is a donee in possession thereof that has made improvements or betterments thereon, he shall be remitted to the courts to establish his rights, if any.
Appellant brought this action on July 14, 1936, against Wells and appellee in the chancery court, alleging the above facts and that he had made improvements on said lands of the value of $837, for which amount he prayed judgment, and that same be declared a lien on said lands and the lien foreclosed and the land sold, if same is not paid in a reasonable time to be fixed by the court. Appellant evidently filed an amendment to his complaint before an answer was' filed by appellee. An amendment was filed January 5, Í938, alleging that said Act No. 2 of 1934 is unconstitutional for three reasons: 1, that it was not in the Governor’s call; 2. that it violated vested rights; and 3, that it was not the intent of the act to pre vent the Land Commissioner from carrying out the terms of laws then existing.
Appellee answered with a general denial, except he admitted he was the owner of the land and that he had redeemed it from said tax sale, and specifically denied the unconstitutionality of said Act 2, or that appellant had made improvements of the value alleged, or that they were subject to donation. He further alleged by way of cross-complaint that appellant had been in possession thereof since 1932, receiving all the rents and profits and all government payments, which amounts are greatly in excess of the value of improvements and he prayed judgment for such excess, which, in an amendment, was alleged to be $300.
On a trial on conflicting evidence the court found that appellant had received all the rents from 1932 to the time of trial and that such rents, including government payments, were of a greater value than all of the improvements placed thereon by appellant, and that decree should be for appellee who is "the legal owner in fee simple of said lands and who is entitled to possession thereof together with all of the rents and government benefits therefrom for the year 1941. That judgment over for excess rents would probably be uncollectible.” Possession was continued in appellant until January 1,1942, at which time he should surrender same, or appellee should have a writ of assistance. Judgment was entered accordingly. This appeal followed.
This is an action for betterments under Act 2 of the Special Session of 1934. Appellant was in possession-under a donation certificate which had not ripened into title and was not even color of title. Young v. Pumphrey, 191 Ark. 98, 83 S. W. 2d 84. Appellee redeemed under the provisions of said act. The State Land Commissioner canceled the donation certificate and refunded appellant his donation fee of $10 which he accepted without objection. He brought this action under the provisions of said act to recover the value of his improvements. He did not allege in any pleading that he claimed to own said land, but on the contrary alleged that Wells, the record owner, had redeemed under said act, thereby affirmatively recognizing Wells as the owner who was entitled to redeem as also the validity of said act. All the testimony, both for appellant and appellee, was directed to the value of the improvements made and to the value of the rents and profits. The court found the latter exceeded the former, but declined to give a judgment over, because probably uncollectible. Appellee makes no complaint of this action of the court and appellant could not. The burden of appellant’s complaint is that the court offset rents and profits against the value of the improvements. He says: “Our conclusion is that Rodgers should receive pay for the value of his improvements, without interest, .to date of decree, and without deduction for rents.” And he asserts that in no event should he be charged with rents prior to April 3, 1934, when a redemption was effected. We cannot agree. The betterment statute, § 4658, Pope’s Digest, in ejectment actions, provides that any person who, believing himself to be the owner of land, under color of title, improves same and which is judicially determined to belong to another, shall be paid by the successful party the value of such improvements. “It is essential that the improvements be made under color of title. ’ ’ Nunn v. Lynch, 89 Ark. 41, 115 S. W. 926, 16 Ann. Cas. 852. A donation certificate, not being color of title, appellant could not recover for improvements, except under said Act 2 of 1934. No tender of the value of improvements was necessary as appellant held under a donation certificate. Beloate v. State, ex rel. Atty. Gem’l, 187 Ark. 17, 58 S. W. 2d 423. This was not an ejectment action, nor one for the possession and, therefore, no tender was necessary under § 4663 of Pope’s Digest, and Act No. 7 of 1937, digested as 8925 of Pope ’s Digest, has no application, because this is not a possessory action. Moreover, the latter is a statute of limitations and was not pleaded, was not even mentioned by appellant until in his reply brief.
We think the court correctly offset the improvements with the rents and profits. In Emerson v. Voight, 196 Ark. 129, 116 S. W. 2d 348, it was held to quote a headnote: “Since the state’s tax deed constitutes color of title, appellants purchasing from the state land forfeited for taxes and sold at a void tax sale were entitled to a return of the taxes paid and improvements made by them (Pope’s Digest, § 4568); but the evidence being sufficient to sustain the finding that the rents and profits were equal to or greater than the taxes paid and improvements made, there was no error in refusing to render a money judgment in favor of appellants.”
We cannot say, from the court’s decree, that appellant was held for rents for 1932 and 1933, while in possession under his donation certificate, and prior to redemption, but, if so, it is not shown that the rents for the other years did not equal or exceed the improvement.
Affirmed. | [
-15,
-51,
-7,
61,
-118,
64,
42,
-98,
83,
-79,
-90,
83,
111,
-46,
4,
125,
-31,
109,
81,
122,
-60,
-89,
23,
35,
-112,
-77,
-23,
87,
-79,
93,
-26,
87,
12,
48,
10,
21,
-58,
0,
-51,
92,
-114,
-125,
11,
78,
-40,
64,
60,
109,
80,
-117,
81,
-82,
-93,
42,
84,
70,
105,
44,
-49,
43,
1,
-72,
-65,
-123,
127,
7,
33,
7,
-104,
1,
-56,
-70,
-104,
52,
-128,
-24,
127,
-74,
-42,
-12,
15,
-103,
40,
102,
102,
33,
-99,
-17,
-96,
-39,
14,
114,
-115,
-91,
-48,
80,
98,
100,
-67,
-100,
116,
-42,
78,
116,
-20,
-123,
29,
44,
7,
-117,
-44,
-109,
77,
124,
-120,
3,
-37,
35,
50,
112,
-52,
-10,
93,
103,
56,
-101,
-113,
-48
] |
Holt, J.
Appellants, C. K. Call, Jr., and others, resident landowners in Oak Forest Subdivision, adjacent to the city of Little Rock, Arkansas, proceeding under the provisions of §§ 9495-9496 of Pope’s Digest, filed petition in the Pulaski county court for annexation of the property described in their petition. Appellees, A. F. Wharton and others, answered the petition protesting annexation. Upon a hearing, the county court granted the petition and ordered annexation.
Appellees then filed petition in the Pulaski circuit court,-third division, for review of the county court’s action and sought to prevent annexation. In this petition appellees, among other things, alleged: “There is no question of fact. Petitioners do not claim to have a majority of the landowners of the said territory who live in Pulaski county, and remonstrants do not deny that the petition contains a slight majority of the resident landowners of said territory. The sufficiency of the number of legal voters living within the said territory is not questioned. The controversy is purely a question of law • — remonstrants contend that the county court erred in its holding which permits a majority of the resident owners of the territory proposed for annexation to ignore the wishes of property owners of the territory who do not live therein but who do live in Pulaski county.”
Appellants in their answer to appellees’ petition in the circuit court admit, “as stated in the petition, of the remonstrants, that no question of fact is presented in this controversy. The petition for annexation in the county court contained a majority of the resident property owners of the affected territory, but did not contain a majority of the landowners of the affected territory who live in Pulaski county; and the sufficiency of the number of legal voters living within the affected territory who signed the petition is conceded.”
In addition to the allegations contained in the pleadings, the parties stipulated that the petition for the proposed annexation filed in the county court by appellants contained the signatures of a majority of the landowners residing in the affected territory, but did not contain a majority of tlie landowners in the affected territory irrespective of their residence and did not contain a majority of the signatures of the landowners in the affected territory who live within Pulaski county.
Judgment was entered in the circuit court in favor of appellees (remonstrants) and this appeal followed.
The facts are not in dispute. The question presented here is one of law. Appellants present the issue in this language: “It is admitted that the annexation petition was signed by a majority of the resident qualified electors owning real estate in the affected territory. It is also admitted that a majority of the real estate owners residing in and out óf the affected area did not sign the petition, but protested favorable action of the county coxxrt.
“If, under the language of 9495-6, the resident electors who own real estate control in the annexation, this court will decide for appellants. If the majority of the owners of real estate in the area whether residing in or out of the area control, this court will decide for appellees.”
The sections of Pope’s Digest, sikpra, are as follows:
“Section 9495. Whenever a majority of the real estate owners of any part of a county, contiguous and adjoining any city or incorporated towrn, shall desire to be annexed to such city or town, they may apply by petition in writing to the county court of the county in which said city or town is situated and they reside, and shall name the person or persons authorized to act on behalf of the petitioners.
“Section 9496. When such petition shall be presented to said court, they shall cause the same to be filed, and like proceedings shall be had for the hearing thereof as is prescribed in §§ 9787- and 9788. After such hearings, if the court shall be satisfied that at least six qualified voters, having a freehold interest in the territory proposed to be annexed, actually reside within the limits prescribed in the petition, axid that said petitioix has been signed by a majority of them; that the said limits have beexx accurately described, axxd axx accurate map thereof made axxd filed, axxd that the prayer of the petition is right and proper, and that said petition should be granted, then it shall make and indorse on said petition, an order, to the effect that the territory described may be annexed to, and become a part of the city or town named in said petition, which said order, shall be recorded by the clerk of the county. ’ ’
In interpreting and construing the meaning of statutes, the guiding rule is very clearly announced by the late Judge Hart in Berry v. Sale, 184 Ark. 655, 43 S. W. 2d 225, in this language: “This court has uniformly held that, in the construction and interpretation of statutes, the intention of the legislature is to be ascertained and given effect from the language of the act if that can be done. In doing this, each section is to be read in the light of every other section, and the object and purposes of the act are to be considered. Miller v. Yell and Pope Bridge District, 175 Ark. 314, 299 S. W. 15; and Berry v. Cousart Bayou Drainage District, 181 Ark. 974, 28 S. W. 2d 1060.
“The reason is that statutes are written to be understood by the people to -whom they apply, and their words and phrases are considered and used in their plain and ordinary, as distinguished from their technical, meaning, where the language is plain and unambiguous. In such cases it is said that, where the intention of the legislature is clear from the words used, there is no room for construction, and ho excuse for adding to or changing the meaning of the language employed.”
We think it clear under the first section of the statute, supra, that when annexation is desired of any part of a county, contiguous to a city or incorporated town, the first stop required is the filing of a petition with the county court, which petition must be signed by a majority of the real estate owners of the subdivision sought to be annexed and also signed by a majority of the real estate owners of the affected area -who are residents within the county in which the municipality and subdivision are located.
After the preparation and filing of the petition, then under the terms of § 9496, when it is presented and heard by the- county court, and the court shall be satisfied that at least six qualified voters own property in the territory sought to be annexed and in addition reside within said territory, and it shall further find that a majority of the six resident landowners have signed the petition, and other conditions set'out in the section complied with, it would be the duty of the court to grant the petition for annexation.
On the undisputed facts here, appellants constitute a majority of the resident landowners- in the territory sought to be annexed, but do not constitute a majority of the landowners within the subdivision who live in Pulaski county. We think the judgment of the circuit court was correct, and accordingly it is affirmed. | [
117,
-20,
-12,
60,
-88,
64,
50,
-93,
66,
-125,
103,
83,
109,
-39,
24,
49,
-29,
125,
85,
121,
68,
-74,
85,
66,
112,
-73,
107,
69,
-76,
-55,
-28,
-44,
72,
33,
-38,
-43,
-60,
106,
-27,
94,
-18,
9,
11,
72,
-47,
-48,
60,
111,
82,
11,
53,
-114,
-14,
44,
80,
-63,
105,
44,
91,
40,
81,
-38,
-100,
85,
-51,
7,
1,
-28,
-120,
-127,
-64,
106,
-112,
49,
-128,
-4,
119,
54,
-122,
100,
7,
-103,
12,
36,
103,
11,
-83,
-9,
-88,
-120,
14,
90,
-115,
38,
-46,
73,
107,
64,
-74,
-97,
124,
80,
7,
122,
-81,
5,
93,
108,
-83,
-26,
-42,
-77,
21,
32,
-99,
3,
-29,
-61,
20,
117,
-55,
-10,
92,
-57,
16,
-101,
-98,
-48
] |
Lyle Brown, Justice.
Bill Stout was tried on a first degreei murder charge for the fatal shooting of Winfred Lee Jones. From a conviction of manslaughter he appeals. Eight procedural errors are urged for reversal.
Stout and Jones, both in their thirties, were friends. Both were family men and they visited in each other’s homes. On the day of the shooting, Jones went to the Stout home in Fort Smith and the two men drank some beer. Stout said he consumed two beers. Stout was working on a cabinet and Jones helped with the task. Stout went to work on a 4:00 p.m. shift and when he left home about thirty minutes earlier, Jones remained at the Stout home. Shortly after six o’clock Stout received a call from a member of his family, informing him that Jones was still at the home, and was belligerent and insulting. Stout obtained a short leave and went home. He asked Jones to leave and the latter refused. Stout went to a nearby telephone and called the police. Officer Hamlet declined to answer the call unless Stout would come in and swear out a wjarrant. It was Stout’s testimony that he returned to his home; that he sent word in to Jones to come outside; that Jones refused; whereupon Stout walked inside the door. Jones arose from a couch and “went tp his left-hand pocket again.” It was at that point that Stout fired his pistol, fatally wounding Jones. The defendant testified he knew Jones had a knife and thought he might have a pistol.
Stout testified that he had no intention of shooting Jones. He stated that his only purpose in firing the shot was to shoot over Jones’ head and frighten him into leaving the house. The single shot entered the front part of the left chest and lodged in the rear of the right chest. It tore the left pulmonary artery and transgressed the upper aspect of the left lung. Death followed within a matter pf minutes.
The case was submitted to the jury on first and second degree murder and manslaughter. The manslaugh ter conviction carried a sentence of two years. We reverse on Point I, but because of a possible retrial we will enumerate and discuss seven of the points raised.
Point I. The trial court erred in refusing to require the prosecuting attorney to produce the written statements of the defendant and Witness Tommy Rco/y Thomas. When Stout was taken to the sheriff’s office he made an oral statement to Sheriff Vickery, explaining his version of the incident in detail. Shortly thereafter the prosecuting attorney arrived and took a written statement. When Sheriff Vickery was testifying as to the oral statement made to him, counsel for appellant inquired if the written statement was the same as the oral statement. To that question the prosecutor replied that they were generally similar. At that point appellant’s counsel.asked that the written statement be introduced through the sheriff. The request was denied on the ground that its introduction was a matter for the prosecuting attorney to decide.
Later the same matter arose. Appellant was being cross-examined by the prosecuting attorney. He challenged the truth of appellant’s contention that appellant received a report by telephone that Jones was still at the house, drunk and belligerent. The prosecutor asked: “How does it happen in your [written] statement that there is no mention of it?” At that point appellant’s counsel objected to the prosecutor picking out parts of a statement and withholding the rest; he suggested that the proper procedure would be to introduce the statement. The court overruled the objection. The prosecutor continued to ask the witness questions concerning the contents of the written statement, the clear insinuation being that accused told the truth when he gave the statement but not so when he was testifying.
The prosecutor used the written statement as a tool to impress upon the jury his contention that inconsistencies existed between that statement and the testimony of the accused. With the credibility of the witness being so placed in jeopardy, we think the request by the accused that the jury be permitted to evaluate the contents of the statement should have been granted. The prosecutor accused Stout of denying portions of his written statement. How could the jury determine the accuracy of that accusation unless they were permitted to examine the statement? By introducing the statement on appellant’s motion the State would not necessarily be bound by its contents. It could also be introduced for the limited purpose of determining if any inconsistencies existed between its contents and Stout’s testimony. Stout had in fact testified; that the two were the same except for details. The prosecuting attorney’s attempt to establish inconsistencies was in effect an effort to impress portions of the written statement in the minds of the jurors. In Adkins v. Hershy, 14 Ark. 442 (1854), the court said:
“The admission must be taken as a whole, and if the plaintiff proves only a part, the defendant may call for the entire conversation on cross-examination. The rule is, not that the plaintiff is concluded by the entire admission, but that it is competent evidence for the defendant to go to the jury, who are the proper judges of its credibility, and may reject such portions if any, as appear to be inconsistent, improbable or rebutted by other circumstances in evidence. ’ ’
It is true the> State did not formally introduce parts of the written statement but the effect was the same. We therefore hold that the same rule should apply, namely J that the defendant should be permitted to prove other relevant portions. Whitten v. State, 222 Ark. 426, 261 S. W. 2d 1 (1953).
It was Pot error to permit the sheriff to testify as to the oral statements made to him by the accused. The written statement was taken by the prosecuting attorney and not by the sheriff. Those were tVo different statements. Finn v. State, 127 Ark. 204, 191 S. W. 899 (1917).
Point II. The court erred in refusing to suppress< oral statements made by the defendant at his home and before he was advised of his constitutional rights. Officer Hamlet, with whom Stout had previously conferred on the telephone, was the first officer to arrive after the shooting. He could see the deceased lying on the floor. He inquired of appellant as to the whereabouts of the weapon. Appellant’s wife located it and brought it to the officer. Hamlet then inquired of the accused if that gun was used in the shooting; to which the latter replied in the affirmative. That was the sum total of their conversation.
Shortly thereafter the sheriff arrived. The only conversation between the sheriff and the accused was summarized by appellant: “He asked me what was going on and a few simple questions.” At that point the sheriff told Stout he would have to go to town with him.
Appellant relies on Miranda v. Arizona, 384 U. S. 436 (1966), contending he was not given the required warnings prior to the two recited interviews. Mircmda does not apply here. The police were responding to a call from the defendant and found a dead body. The officers ’ investigation had not reached an accusatory stage. Mircmda warnings are required when the investigation reaches custodial interrogation of a suspect. The officers testified that immediately on reaching headquarters, and prior to that interrogation, defendant was fully advised of his'rights.
Points III and VI. It was error to refuse appellant’s requested Instructions 1 and 2. Both instructions embodied the theory of justifiable homicide by killing in self-defense. Stout’s version of the cause for the killing was that he went in the house with the gun with the intention of scaring Jones from the home. Stout testified tha,t he meant simply to shoot over Jones “and kind of bluff him and shoo him on out of the house.” He said he didn’t intend to shoot Jones; he only wanted to frighten him; Stout asserted he never intentionally hurt anyone in his life.
Justifiable homicide embodies an intent to kill but under circumstances which render the act proper. “. . . excusable homicide is that which takes place under such circumstances that the party can not strictly be said to have committed the act willfully and intentionally, and whereby he is relieved from the penalty annexed to the commission of a felonious homicide.” Warren on Homicide, V. 1, p. 616 (1938). Killing in necessary self-defense is our statutory definition of. justifiable homicide. Ark. Stat. Ann. § 41-2231 (Repl. 1964).
Since Stout’s defense was not based on a willful and intentional killing in self-defense, he was not entitled to the proffered stock instructions on self-defense. His assertion that the killing was unintentional is inconsistent with the concept of self-defense. State v. Hale, 371 S. W. 2d 249 (Mo. 1963). The law of self-defense is not involved, only the right of self-defense. Curry v. State, 97 S. E. 529 (Ga. 1918). Consonant with his right of self-defense, he would have been entitled to an instruction covering excusable homicide. A suggested instruction under very similar circumstances is summarized in Curry, supra. It involves the law of excusable homicide as applied to the evidence in the particular case, which narrows down to accidental homicide.
This court recognized the rule in the Curry case in Jordan v. State, 238 Ark. 398, 382 S. W. 2d 185 (1964). However, in that case the rule was held not applicable because it was Jordan’s intention, according to his testimony, to shoot his assailant to save himself from being shot. Jordan was therefore entitled to an instruction on self-defense.-
Point IV. The covert erred in permitting the widow of the deceased to testify because she was permitted to remain in the courtroom, notwithstanding the Rule had been invoiced, and because her name had not been furnished as a witness for the prosecution. In chambers, and before the beginning of the trial, appellant’s counsel reminded the court that Mrs. Jones had been called as a witness and he asked that she be excluded from the courtroom. His motion was overruled. When the trial shortly began, Mrs. Jones was called as the first witness. At that point, the only motion made by appellant’s counsel was that Mrs. Jones not be permitted to testify because her name was not on the list of witnesses. Specifically, he did not renew his objection to her testifying on the ground that she should have been placed under the Buie. The failure to so object constituted waiver. Mrs. Jones was the first witness called and she was never recalled to the stand, so she heard no testimony from other witnesses. If the court committed error, it was clearly not prejudicial. Williams v. State, 237 Ark. 569, 375 S. W. 2d 375 (1964). Furthermore, she testified only to the age, height, and weight of the deceased, the number of children in the family, and the fact that the Joneses often visited in the Stout home. In other words, she testified to no facts really material to the case.
As to the second objection, the requirement of endorsing the witnesses has long been held merely directory, assuming it applies to prosecution by the filing of an information. It should also be said that the prosecutor advised appellant’s counsel on the morning of the trial that he intended to call Mrs. Jones to testify to matters which were not material.
Point V. The court erred in instructing the jury on first degree murder. A discussion of this point is unnecessary because Stout cannot again be tried for a crime greater than manslaughter.
Point VII. The prosecuting attorney was permitted to improperly cross-examine the defendant and his witness, Ed Baker. The prosecutor inquired of Stout concerning several alleged misdemeanors. On more than one occasion Stout denied having been convicted. Since those were collateral matters, each denial should have concluded that inquiry; however, the prosecutor would not accept the denial but would proceed to press the matter further. That practice should be avoided on retrial; nor should such questions be propounded in argumentative and accusatory form.
Point VIII. The court erred in refusing to permit Witness Ed Baker to testify as to the past actions of Winfred Lee Jones when the latter was drinking. Ed Baker was foreman at a plant where Jones was at one time employed. If permitted, he would have testified that Jones was discharged by Baker because he was intoxicated on the job, was “loud and belligerent, rude and very disrespectful.” There was evidence to the effect that decedent was intoxicated when he was shot and that he was belligerent. Appellant contends that Jones’ acts of belligerency at the time he was discharged would tend to show that drunkenness always brought on belligerency on the part of Jones. To establish such a pattern of conduct by a single prior act is too illogical to require comment.
Reversed.
FoglemaN, J., dissents. | [
49,
-1,
-31,
-98,
9,
-32,
8,
-36,
-46,
-61,
119,
115,
-19,
-33,
65,
121,
57,
95,
85,
41,
-112,
-105,
55,
65,
-78,
-77,
3,
-57,
-78,
-53,
-68,
-33,
93,
96,
66,
85,
-94,
72,
-25,
92,
-82,
-124,
9,
-32,
3,
80,
32,
111,
86,
3,
33,
-82,
-13,
42,
18,
-55,
73,
44,
79,
-86,
64,
113,
-48,
-115,
-51,
20,
-127,
-57,
-100,
6,
112,
62,
89,
49,
24,
-4,
115,
-90,
-126,
116,
109,
-119,
-116,
-30,
96,
32,
-35,
-51,
40,
-119,
15,
126,
-99,
-121,
24,
113,
75,
45,
-106,
-33,
127,
-12,
22,
112,
-27,
93,
89,
96,
-124,
-34,
-76,
-79,
-49,
32,
-42,
123,
-29,
5,
32,
117,
-51,
98,
92,
69,
113,
-37,
-121,
-48
] |
Smith, J.
The question here presented for decision is whether a judge of this court has the jurisdiction and power to issue a search and seizure warrant. Section 3327, Pope’s Digest, attempts to confer this power, so that the ultimate question for decision is whether this legislation, as related to judges of the Supreme Court, is valid and constitutional. This section, § 3327, reads as follows: “Search warrants. It is hereby made and declared to be the duty and required of the judges of the Supreme Court, the judges of the circuit courts and of the justices of the peace, on information given or on their own knowledge, or where they have reasonable ground to suspect, that, they issue their warrant to some peace officer, directing in such warrant a search for such gaming tables or devices hereinbefore mentioned or referred to, and directing that, on finding any such, they shall be publicly burned by the officer executing the warrant. ’ ’
It is said that the act has twice been held to be constitutional, first in the case of Garland Novelty Co. v. State, 71 Ark. 138, 71 S. W. 257, and later in the case of Furth v. State, 72 Ark. 161, 78 S. W. 759. These cases did hold that the legislation is not void, hut neither held that it is entirely valid.
In each of those cases a circuit judge had issued a seizure warrant, directing the sheriff of the county to whom it was issued to seize certain gambling instrumentalities. The jurisdiction of the circuit judge was not and could not be successfully questioned. A hearing was accorded in each of those cases to the owner of the seized property as to the nature and use of the instrumentalities seized, and the. action of the circuit judge in holding that the paraphernalia were gambling devices was affirmed in each case on the appeal to this court.
The question was not involved in either of those cases whether a judge of the Supreme Court had the jurisdiction and power to issue such a warrant, and that question was, therefore, neither considered nor decided. It was decided in both of those cases that the act was constitutional in so far as it conferred upon circuit judges the power to issue these warrants.
An act may be unconstitutional in part and yet be valid as to the remainder. Many cases so hold, and the following quotation from Cooley’s Constitutional Limitations' appearing in the case of Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77, has been many times approved by this court: “ ‘, . . Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in the subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be' contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. The point is not whether they are contained in the same section; for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the un constitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated, within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still 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 invalid 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.’ Cooley’s Constitutional Limitations, 6th ed., p. 210. This rule has been followed in innumerable cases in the various courts, and by this court in the following cases: L. R. & Ft. Smith Rd. Co. v. Worthen, 46 Ark. 312; State v. Marsh, 37 Ark. 356; State v. Deschamp, 53 Ark. 490, 14 S. W. 653; Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707; Wells Fargo & Co., Express v. Crawford County, 63 Ark. 576, 40 S. W. 710, 37 L. R. A. 371.
We think it obvious that the General Assembly would have enacted this law even though judges of the Supreme Court had not been included, as the General Assembly was imposing a duty upon courts engaged in enforcing the criminal laws of the state, and it is apparent that duty would have been imposed upon courts having jurisdiction to enforce the criminal laws, although that duty was also imposed upon a court which could not exercise that jurisdiction. Conway County Bridge District v. Williams, 189 Ark. 929, 75 S. W. 2d 814; State v. Hurlock, 185 Ark. 807, 49 S. W. 2d 611.
Article 7 of the Constitution of 1874 deals with the judicial department of the state, and § 4 of that article reads as follows: “The Supreme Court, except in eases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warrmto, and other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the state, and shall severally have power to issue any of the aforesaid writs.”
It was said in the case of Batesville & Brinkley Railroad Co., Ex parte, 39 Ark. 82, that the phrase ‘ ‘ appellate jurisdiction,” as used in this section of the Constitution means the review by a superior court of the final judgment, order, or decree of an inferior court.
This section of the Constitution confers upon the Supreme Court a general superintending control over all inferior courts of law and equity, and in aid of this appellate and supervisory jurisdiction power is given to issue the writs there named; but the power to issue these writs is in aid of the appellate and supervisory jurisdiction of the court.
The last sentence of this section provides that the judges of "the Supreme Court shall be conservators of the peace throughout the state, and shall severally have power to issue any of the aforesaid writs.
Now, one judge, as well as all the judges, may issue the writs above named, but whether issued by a judge acting severally or by all the judges acting collectively, they may only be issued in aid of the court’s appellate aud supervisory jurisdiction. These writs have meanings well known to the profession, and their respective functions have been defined in innumerable cases.
Certain it is that they have no relation to search and seizure warrants, and if any power has been conferred upon a judge of the 'Supreme Court to issue a search and seizure warrant, that power must be found in some other provision of the Constitution.
Now, this section quoted above does make the judges of the Supreme Court conservators of the peace throughout the state. But who and what is a conservator of the peace? Many definitions of the term, “conservator of the peace,” are to be found under that title in Words and Phrases, and the one most frequently given is that term, “conservator of the peace,” is synonymous with the term, “peace officer.” The origin of this office and the functions of that official are there defined as follows: “ ‘Conservator of the peace’ was the name of a common-law officer, which, prior to St. 1 Ed. iii, c. 16, authorizing the appointment of justices of the peace, were elected by the people. They were common-law officers, and their duties as such were to prevent and arrest for breaches of the peace in their presence, but not to arraign and try the offender. Smith v. Abbott, 17 N. J. L. (2 Har.) 358, In re Barker, 56 Vt. 14.” Vol. 8, Words and Phrases (Permanent Edition), p. 645.
Judges of the Supreme Court are not the only conservators of the peace or peace officers.- Sheriffs, constables and policemen are also conservators of the peace or peace officers. These latter have powers which are local, while those of a judge of the Supreme Court in this respect are state-wide.
There appears but little, if any, basis for the contention that a peace officer may issue search and seizure warrants. There is no authority in the law for a peace officer to issue such a warrant, the issuance of which involves a judicial function. Section 15 of art. 2 of the Constitution definitely settles that question. It reads as follows: “The right of the people of this state to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person.or thing to be seized.”
It was held in Bryan v. State, 99 Ark. 163, 137 S. W. 561, Ann. Cas. 1913A, 908, that a search warrant was a judicial writ, and that resistance to it constituted a contempt of the court which issued it.
Only judicial officers may issue search and seizure warrants, and these officials may do so only upon the conditions and under the circumstances stated in the provision of the Constitution above quoted. Certainly, a mere peace officer has no such power.
At § 155 of Cornelius on 'Search and Seizure, 2d ed., p. 357, it is said: “A clerk of a court has no jurisdiction to issue a search warrant, neither has a- prohibition agent, and since the issuance of a search warrant is a judicial act, it naturally follows that no other ministerial officer has jurisdiction to issue such a warrant, . . . ”
Now, as has been said, § 3327, Pope’s Digest, does attempt to conf er the power to issue these warrants upon the judges of the Supreme Court. And if that power is exercised by a judge of the Supreme Court, he acts in his official judicial capacity, because he is discharging a duty imposed by the act upon the judges of the Supreme Court, and in doing so he exercises no appellate or supervisory jurisdiction, and issues no writ in aid of that jurisdiction. The issuance of such a writ is an act of original jurisdiction, a jurisdiction which has not been conferred by the Constitution upon this court, but which has been expressly denied by that instrument, as will be more fully shown.
The issuance of this writ and the seizure of the property described in it is not the end of the proceeding. It is rather the means by which the proceeding is begun. The writ is issued upon an ex parte affidavit, and is not made conclusive of the character of the property to be seized. The act does not undertake to make it so. If it did, it would be unconstitutional for that reason as violative of § 21, art. 2, of the constitution, which article is frequently referred to as the “Bill of Bights.”
Justice Biddick defines the proper practice under this act in the Harlan d Novelty Company, case, supra. He there said: “The object of the warrant was not to empower the officer to search, but to empower him to seize the slot machine (the gambling device there in question), and to summon the owners thereof to appear and show cause why it should not be condemned and destroyed. ”
The learned justice in the same opinion said: “The statute does not authorize the seizure and destruction of tables or other useful furniture simply because they may be found in a gambling house, or because they may be used in playing cards or other games upon which money is bet,, but it permits the destruction of those tables and devices only that are made and kept solely for the purpose of carrying on a business which the law forbids. ’ ’
The owner of the device seized has the right, therefore, to be heard upon the question whether the property seized is a gambling device. The property here involved was seized at the owner’s place of business in the city of North Little Rock, and he insists that this property, called a ticker teleg-raph machine, is not a gambling device. There is, therefore, here, and might be in any case, a question of fact as to whether the property seized was a gambling device. The determination of that question of fact involves the exercise of an act of original jurisdiction which judges of the Supreme Court do not possess. Had the warrant in question, here been issued by any one of the circuit judges presiding in Pulaski county, or by any one of the many .justices of the peace holding office in that county, these officers, or any of them issuing the writ, could determine this question of fact by exercising the original jurisdiction given them by the constitution.
In the very early history of this state, and in the first volume of the decisions of this court, at page 279, in the case stjded The State v. Chester Ashley, et al., the court had occasion to consider distribution of the judicial power among the courts of the state. The litigants were among the most prominent citizens of the state, and the litig’ation involved the control of the principal branch of the Real Estate 'Bank of this state, a question of wide public interest and then regarded as of paramount importance, and the opinion reflects a decision upon greatest consideration.
Our first constitution, that of 1836, was then in force, and art. VI thereof related to the “Judicial Department.” Sections 2 and 4 of art. VII of our present constitution were taken from § 2 of art. VI of the Constitution of 1836, § 2 of which defined the jurisdiction of the Supreme Court in language substantially identical with § 4 of our present constitution, except that in enumerating the writs which the Supreme Court may issue in aid of its appellate and supervisory jurisdiction the present constitution names prohibition as a writ which may be issued which was not named in the Constitution of 1836, but this was, of course, a remedial writ which the 1836 constitution authorized. So, therefore, the jurisdiction of the Supreme Court under our present constitution is identical with that of the Constitution of 1836. It follows, therefore, that what was said of the jurisdiction of our courts in the Ashley case, supra, is as applicable to our present constitution as it would have been had our present constitution then been in effect. Both constitutions conferred the power upon the Supreme Court to issue ‘ ‘ other remedial writs, ’ ’ and in defining that power the Supreme Court in the Ashley case, supra, said:
“"We will now examine what jurisdiction or power this court can derive from the term, ‘other remedial writs,’ as used in the constitution. The terms here used are general, and their application is left indefinite. Did the convention intend thereby to authorize this court to issue every writ of a remedial nature known to the law, and to hear and determine the same? If they did, their declaration that this court ‘shall have appellate jurisdiction only, except in cases otherwise directed by the constitution,’ as well as their special grants of powers, to issue certain enumerated writs, each of which is of a remedial nature, is wholly unmeaning, if not positively absurd; and besides that, it would produce a direct conflict of authority between the several judicial tribunals, and involve them in the utmost confusion. It would destroy every vestige of harmony in the whole system, and virtually repeal every other grant of judicial power made by the constitution. It would draw to this forum original jurisdiction co-extensive with the state, of every civil controversy; for it must be observed, that in respect to the sum or amount involved, there is no restriction whatever imposed by the constitution, in any case in which this court can exercise original jurisdiction; therefore, if it can, under any authority derived from this general grant, take original jurisdiction in any case, it may of all cases falling within the same general class. These consequences are clearly not within the object and intention of the convention, but in opposition to both. And it is a rule founded upon the dictates of common sense, admitted by all jurists, that in construing a constitution or fundamental law of government, no construction of a given power is to be allowed, which plainly defeats or impairs the avowed objects.''
The able discussion, of which we have copied only a part, concludes with this statement of the law: “It therefore results from the view taken of this subject by the court, that the Supreme Court cannot, under any power conferred upon it by the constitution, exercise original jurisdiction in any case where the proceeding is, or must necessarily be of a criminal nature; its original jurisdiction being expressly, limited and restrained by the constitution, to such matters of a civil nature as may be properly brought before the court, by some one of the writs expressly enumerated in the constitution; and the proceeding by information, in the nature of a quo warranto, being properly a criminal proceeding, this court cannot entertain original jurisdiction of it. And for this reason, the motion in this case must be denied and the rule refused.”
In this connection, it may be called to mind that . § 11 of art. VII of our constitution provides that “The circuit court shall have jurisdiction in all civil and criminal cases the exclusive jurisdiction of which may not be vested in some other court provided for by this constitution.”
The distribution of jurisdiction among the courts of the state, and especially the jurisdiction of the Supreme Court, was again considered in the case of Isaac N. Jones, ex parte, 2 Ark. 93, where the Ashley case was quoted from more extensively than we have done-here. The court again considered the meaning of the constitution in conferring jurisdiction to issue ‘ ‘ other remedial writs, ’ ’ and the limitations upon that power. After quoting article 4 (6), § '2, it was there said: “The obligation to exercise a jurisdiction that is conferred, and to refrain from exercising it where it is denied, is of equal obligatory force. By an analysis of the powers conferred upon the Supreme Court, as prescribed by the constitution, it will be readily perceived that all its constitutional jurisdiction, as derivative from the grant of its creation, and nearly all of its powers, are strictly of an appellate character. The constitution first designed to make it what in truth it is — a court of error and of appeals, whose practice might be regulated and prescribed by legislative enactments; but whose constitutional existence, organization, and jurisdiction, could in no essential point or manner be changed or altered by the legislature. This proposition seems to our minds to be clearly deducible, not only from the particular clause of the constitution we are now considering, but from the general frame and nature of the government itself, as organized and established by the convention. Then, it clearly follows, from these plain and obvious principles, that the Supreme Court possesses no constitutional power and authority to issue any other writs than those expressly enumerated and embraced in the constitution, or such as are necessarily implied and contained in that enumeration.”
Among other cases consonant with the Ashley and Jones cases, supra, are the following: Byrd v. Brown, 5 Ark. 709; Allis Ex Parte, 12 Ark. 101; Marr Ex Parte, 12 Ark. 84; Carr v. State, 93 Ark. 585, 122 S. W. 631; Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S. W. 481.
It is easily conceivable that in any case where the writ authorized by § 3327, Pope’s Digest, had been served the question might arise whether the articles seized were gaming devices. Indeed, that question did arise in both the Garland Novelty Company and the Furth cases, and the finding of fact was made by the circuit judge issuing the writs that the articles seized were gaming devices.
The same question, is raised here, and its decision involves the exercise of original jurisdiction, which any one of the circuit judges of Pulaski county, or any one of the justices of the peace who may issue such a writ, could determine. They have that original jurisdiction, but, in our opinion, this court does not have it.
It is, therefore, ordered that the writ of seizure heretofore issued be quashed.
Griffin Smith, O. J., and Gbeenhaw, J., dissent.
McHaney, J., not participating. | [
53,
-24,
-11,
-68,
72,
96,
18,
-104,
67,
-69,
71,
-77,
109,
34,
20,
117,
-61,
-69,
53,
105,
-42,
-106,
7,
72,
50,
-13,
-37,
-57,
-68,
107,
-18,
-34,
72,
32,
-18,
-43,
70,
123,
-123,
-34,
-118,
41,
-120,
-23,
113,
80,
44,
42,
-58,
31,
-47,
-33,
-29,
44,
24,
67,
-23,
14,
-37,
-68,
65,
121,
-98,
-97,
77,
16,
-109,
53,
-84,
5,
-24,
108,
-40,
25,
0,
-8,
115,
-76,
-110,
84,
109,
-5,
41,
98,
98,
-127,
48,
-25,
-96,
-120,
54,
47,
-105,
-90,
-110,
105,
99,
44,
-106,
-99,
124,
16,
10,
-2,
-29,
-43,
87,
108,
15,
-114,
-108,
-89,
-121,
109,
-102,
114,
-61,
-13,
84,
116,
-52,
-6,
94,
69,
17,
13,
-50,
-124
] |
John A. Fogleman, Justice.
In this case the propriety of the action of the trial court in directing a verdict is questioned.
Appellant^ negotiated the purchase of a house in Paragonld sometime prior to a conveyance to them on March 24, 1966. Appellees were the plumbing su! contractors engaged by the general contractor building the house. A part of their contract was the installation of a- water heater therein. During construction, an LP (liquid petroleum) water heater was erroneously placed in the house by appellees’ subcontractor but was removed and replaced with a natural gas unit before appellants moved into the house. "When the change was made, a vent pipe, which was connected with the LP gas heater and which extended from three to six inches above the ceiling, was found to be unsuitable for the natural gas heater. It was removed and placed on the bathroom floor. Oss Fletcher remarked to someone at the time that he would replace this vent pipe later. There was no gas line from the street to the house at this time.
Appellants moved into the house on March 3, 1966, having started cleaning it on the preceding day. Work was still being done on the house when the Rays moved in, and unidentified workmen were in and out from time to time. The water supply was not turned on until March 5th, after appellant Virginia Ray had called the real estate agent handling the sale of the house. They did not have any hot water until about four weeks later. Appellant Virginia Ray did not know by whom, or under what circumstances, the hot water heater was started or the gas supply turned on, as she discovered that they had hot water one day when she came home from work. She only knew that her husband had put up the necessary deposit and that they had requested that the gas be turned on. There was no other testimony as ta the time or circumstances with reference to the water supply being turned on or the heater started. Appellant Larry Ray did not testify.
On March 5th it was necessary to repair the light in the hall immediately next to the closet housing the water heater and furnace. There were electrical fixtures and electrical wires in the wall between this closet and the kitchen. This wall was burned by the fire.
On May 2nd, Mrs. Bay noticed the smell of smoke and went to the back part of the house where she saw smoke in the bathroom. She opened the closet wherein the water heater and furnace were installed. Seeing smoke and ñames around the vent pipe of the water heater in the ceiling, she called the fire department. Mrs. Bay had been using her electric washing machine, which was adjacent to the closet wall, about 30 minutes before she noticed the fire. As a result of the fire, the ceilings in the bathroom and kitchen were damaged and the walls “smoked.’’ Mrs. Bay didn’t look in the attic to see where the fire was burning, nor did she look there after the fire. After this occurrence, a photograph was made of the wall and ceiling of the closet. This photograph shows two holes in the ceiling, through one of which a metal pipe appears to extend from an object identified as a water heater into the attic. Through this hole appears what seems to be a charred ceiling joist. The other hole is smaller and appears to be nearby and to the viewer’s right of the vent pipe. There is also a hole in the wall behind the vent pipe, near the junction of the wall and ceiling.
The Paragould Fire Chief said that the fire was in the bathroom when the fire department arrived. Upon opening the closet, he looked up and saw that there was no vent of the hot water heater reaching from the ceiling to the roof. The firemen tore some of the sheetrock off the ceiling around the place that appeared to be burned around the vent pipe and tore out some of the insulation in the ceiling. According to the Chief, the hole to the right of the vent was made by the firemen attempting to determine the extent of the fire. He did not know whether the one in the wall was burned there or put there by the firemen. He thought that the furnace was in the attic.
Ted Gardner, a fireman, testified that the vent pipe did not extend more than two or three inches above the ceiling.
Wilson B. Cox, who supervised the repairs after the fire, testified that the attic was burned throughout.
Viewing the evidence in the light most favorable to appellants and considering all inferences favorable to them which might be drawn from the testimony, we find no error in the direction of the verdict. We do not find any evidence making a question of fact for the jury, either as to negligence or proximate cause.
There is no evidence whatever that appellees were responsible for the condition of the hot water tank or its vent. Neither of them nor any of their agents, subcontractors, or employees are shown to have been about the premises at any time after the vent for the LP tank was left on the bathroom floor when there was neither a water supply nor gas supply for the substituted water heater. The appellants moved into the uncompleted house and caused these supplies to be turned on. There is not even any evidence that the vent pipe was connected to the water heater when they moved in or any suggestion of the identity of the person who connected the vent pipe. (Mrs. Ray testified that she did not even notice a vent pipe when they moved in, either on the floor or on the water heater.) Under these circumstances, we do not feel that any reasonable view of the evidence could justify a finding that there was any negligent act or omission on the part of appellees.. From all we can gather from this record, it is .just as likely that appellants caused the vent pipe to be placed on the water heater as it is that appellees did.
Even if we found evidence of negligence to make a jury question, we could not say that there was sufficient evidence, even circumstantial, to show the cause of the fire so as to remove a jury determination from the realm of speculation and conjecture. No one testified as to the function of the vent pipe or that any flames or sparks would ever pass from the burning gas through that pipe. The furnace was located in the vicinity of the water heater and no one testified as to its type, its fuel, or its condition before or after the fire. Electrical wires passed through the wall of the closet, and there had previously been a failure of a light in the adjacent hall which called for repairs of some' sort. Just 30 minutes before the fire, appellee Virginia Ray had used her electric washing machine which was against the wall between the kitchen and the closet. While there were flames around the vent pipe at the ceiling when Mrs. Ray discovered the fire, there was also a hole in the wall, which may, for all the evidence shows, have been the point of origin of the fire. It was necessary that appellants offer evidence by which the jury could say, without speculation or conjecture, that the fire was caused by the deficiency in the vent pipe. Beeves v. Arkansas Louisiana Gas Co., 239 Ark. 646, 391 S. W. 2d 13. Here, the jury would have to speculate as to the origin and cause of the fire.
A second point asserted for reversal is the alleged error of the trial judge in refusing to permit one offered as an expert witness to testify as to the cause of the fire in Paragould.
There are at least two reasons that we cannot hold the court’s exclusion of the testimony of the fire chief as to the cause of the fire to be erroneous. The witness was asked to state an opinion as to the cause of the fire without showing any qualifications or experience to make his opinion admissible, other than the fact .that he had been a fireman for 18 years and chief for three of those years. Later it was shown that he was a full-time employee of a furniture store and only a part-time fireman. The determination of the qualifications of an expert witness to express an opinion is within the discretion of the trial judge, and we will not reverse his decision unless it appears that he abused that discretion. Smith v. State, 243 Ark. 12, 418 S. W. 2d 627. We find no abuse of discretion here. Further more, we cannot consider this point because there was no offer of proof or other showing of what the testimony of the witness would have been. Barnes v. Young, 238 Ark. 484, 382 S. W. 2d 580. Thus, it is unnecessary that we determine whether or not an expert found to have been properly qualified should have been permitted to express an opinion as to the cause of the fire under the facts and circumstances of this case.
The judgment is affirmed. | [
-112,
124,
-40,
-82,
8,
96,
42,
-40,
102,
-76,
117,
-41,
-17,
-62,
-100,
105,
-105,
127,
-15,
121,
-47,
-77,
23,
66,
-46,
-101,
81,
-43,
-79,
93,
-12,
-33,
76,
32,
-54,
-43,
-58,
10,
-41,
84,
-122,
5,
8,
-32,
-39,
-46,
48,
59,
114,
7,
5,
-114,
-93,
46,
17,
-50,
105,
44,
-21,
61,
64,
-16,
-110,
-99,
111,
6,
-79,
103,
-106,
-121,
-24,
46,
-104,
49,
0,
-24,
115,
-90,
-41,
116,
7,
-81,
8,
96,
98,
2,
-123,
-21,
-24,
-7,
47,
-34,
-115,
-90,
51,
40,
-119,
41,
-73,
-99,
124,
58,
39,
114,
-25,
-43,
95,
108,
18,
-121,
-74,
-15,
9,
117,
-98,
3,
-18,
7,
36,
116,
-49,
-86,
92,
70,
115,
31,
14,
-65
] |
Lyle Brown, Justice.
Summers Appliance Co. and the six other appellants are holders of Class 1 permits issued by the Arkansas Liquefied Petroleum Gas Board. They are LP gas distributors in an area comprising six counties in Northwest Arkansas. George’s Gas Co., Inc., was granted a Class 1 permit by the LP Gas Board. George proposes to operate in the same general area. The Board was affirmed on appeal to the circuit court. Appellants contend that the LP Gas Act requires a determination of public convenience and necessity as a prerequisite to the issuance of the permit and that no such showing was made.
The business of distributing butane and propane gas (liquefied petroleum substances) is substantial and statewide in Arkansas. Because of the dangers inherent in the handling of those substances we have had a safety feature law since 1939. Our present law is Act 31 of 1965, Ark. Stat. Ann. §§ 53-701-34 (Supp. 1967).
The requirements for a Class 1 permit set up detailed and rigid specifications covering every phase of handling, storage, and distribution. A certificate of competency must be renewed annually. In addition to the predominant safety features of the act there is a provi sion which was inserted in 1959 and carried over into Act 31. It is significant to this litigation:
§ 53-723 (A) (7) . . . . “In determining whether to grant a Class 1 Permit, the Board shall take into consideration the convenience and necessity of the public.”
The appellants urge this court to interpret the quoted language “to require the same proof of public convenience and necessity for a permit to sell and distribute butane and propane gas as is required to sell natural gas.” That necessitates a comparison of certain phases of the two laws, namely, the Public Utilities Act under which natural gas companies operate, and the Act under which hutane and propane distributors are licensed.
1. Laws Regulating Natural Gas Companies. The Public Service Commission is vested with the power, jurisdiction, and duty to “supervise and regulate every public utility in this Act defined.” Ark. Stat. Ann. § 73-202 (Eepl. 1957). The antecedent section (definitions) refers to public utilities as including those who furnish gas to the public for compensation. However, from a study of the entire chapter, the amendments thereto, and the rules and regulations of the PSC, it is clear that those laws and regulations presently govern natural gas. It is mandatory upon those companies to make a showing of public convenience and necessity and obtain a certificate from the PSC evidencing the public need. Ark. Stat. Ann. § 73-240 (Supp. 1967). That has been the law at least since Act 324 of 1935. When it is proposed to operate a new public utility in an area already served, the applicant must show either “(a) that the present service is inadequate; or (b) that additional service would benefit the general public; or (c) that the existing [facility] has been given an opportunity to furnish additional service as may be required.” Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907 (1945).
2. The Law Regulating the LP Gas Business. Act 31, heretofore cited, contains all the statutory law per taining to LP gas and deals exclusively with that subject. It deals almost entirely with two subjects, namely, the financial stability and technical competency. Suffice it to say that we are dealing with one of the most comprehensive codes of law and regulations in force in this State. Those provisions governing the granting of a Class 1 permit will later be discussed.
The Legislature has not declared the LP gas business to be a public utility. It has not imposed on LP gas distributors the mandatory duty to obtain a certificate of public convenience and necessity. It has merely directed the LP Gas Board to consider public convenience and necessity. That phrase is not so rigid in meaning as to require that it be interpreted to mean the same thing in every legislative act in which it is used. In the Public Utilities Act it is used with reference to those utilities— natural gas companies, public carriers, and electric power companies — operations devoted to public use to the extent that their use is thereby granted to the public. So much so that matters such as their rates, their territories, and methods of detailed operation must be supervised by the sovereign. In turn, those utilities enjoy exclusive privileges which the Legislature has declared, in the public interest, such as long-term franchises, the right of eminent domain, and security of their enormous investment from unnecessary competition.
The legislative directive that the LP Gas Board consider public convenience and necessity was not intended to vest in the Board the power to regulate competition in a field of private endeavor. There are many commodities just as inherently dangerous as butane and propane. We need only point to dynamite, drugs, and gasoline as some examples. Stringent regulations governing the manufacture and distribution of those items are required and justified under the police power. When it is considered necessary for the public welfare to remove those pursuits from the field of free enterprise, it should certainly be spelled out and justified. The mere insertion of one sentence, in a code .devoted entirely to safety and competence, directing the administrative board to “consider public convenience and necessity” is not sufficient.
Having determined that we are not dealing with a declared public utility, we turn to the application of the term “public convenience and necessity” as it is used in the LP Act. Public utilities do not have a monopoly on the use of the phrase. All authorities recognize the words “convenience” and “necessity” as being relative and elastic, rather than absolute. We conclude that § 53-723 (A) (7) directs the Gas Board to consider the public welfare within the scope of its authority under Act 31 and the approved regulations. Here are some of the many “musts” to be met by a Class 1 applicant who desires to enter all phases of the liquefied petroleum gas business:
Furnish evidence of his financial condition, character, and ability to engage in the business; file a certificate of intended insurance which covers six fields of possible liability; all his employees in charge of operations, servicemen, installation men, and truck drivers, to pass an examination and receive a certificate' of competency; file a current financial statement prepared by a public accountant; provide a bulk storage capacity of not less than 15,000 water gallons, the location to he approved by the Board in advance; provide all necessary equipment satisfactory to the Board; provide approved unloading facilities; furnish a storage container of not less than 1,000 gallons; submit an inventory of all trucks and that equipment must be inspected and approved; provide service station facilities acceptable to the Board; provide blueprints for all gas containers for the Board’s examination and approval; and the products he proposes to handle to be approved by the Board.
The discharge of the enumerated responsibilities, as well as the others pertaining to issuing a Class 1 per •mit, are not purely ministerial acts. Most of them require the exercise of considerable judgment and discretion. In making those judgments the Legislature directed the Board to consider the public welfare in the fields of public safety and the stability of the applicant.
We have not arbitrarily substituted the phrase “public welfare” for the term “public convenience and necessity.” The latter phrase has been described by this court as “what will conduce to the general public welfare.” Arkansas Elec. Coop. v. Ark-Mo Power Co., 221 Ark. 638, 255 S. W. 2d 674 (1953). The safety of the public and the assurance that the applicant can render competent sérvice are by Act 31 made primary; the right of the individual to possess a permit is declared sec-' ondary.
The Board certified toAlie circuit court that it considered the matter of public convenience and necessity and that its determination on that point, along with all other matters set forth in the transcript, favored the granting of George’s permit. From the record we conclude that the Board applied the same construction to the convenience and necessity clause as outlined in this opinion. That assumption is based on the absence of any testimony proffered by George’s in line with the public utility rule of convenience and necessity.
Since we do not apply the construction urged by appellants, we do not reach the attack by appellees on the constitutionality of the convenience and necessity provision.
Affirmed. | [
113,
-22,
-56,
12,
30,
97,
26,
-69,
83,
-77,
-27,
83,
47,
-36,
-99,
35,
-109,
127,
-11,
89,
-125,
-78,
3,
64,
-44,
-37,
-103,
-59,
53,
95,
108,
-33,
72,
96,
-54,
-43,
-122,
-62,
-59,
-36,
6,
33,
43,
104,
89,
-46,
38,
107,
-42,
11,
97,
-99,
-13,
45,
24,
-49,
105,
36,
-119,
45,
-47,
-16,
-86,
-107,
109,
22,
33,
100,
26,
-123,
-24,
12,
-100,
17,
8,
-24,
114,
-94,
-42,
-12,
15,
-69,
-88,
98,
99,
3,
49,
-89,
-20,
-88,
-114,
-98,
-83,
-90,
-48,
57,
-93,
10,
-97,
22,
90,
18,
6,
126,
110,
-107,
95,
124,
-106,
-114,
-100,
-77,
5,
97,
-100,
25,
-21,
-89,
48,
117,
-49,
-70,
84,
71,
22,
91,
-114,
-46
] |
Carreton Harris, Chief Justice.
W. H. Creekmore died testate in April, 1913, and his will was admitted to probate. Creekmore was survived by his widow, N. J. Creekmore, and four sons, W. M. Creekmore, John W. Creekmore, Fred G. Creekmore, and C. C. Creekmore. Included in the will were the following provisions:
“I give to my woman N. J. Creekmore the NW/4 of the SE/4 of Sec. 31, 11, 29 during her life, at her death to go to and be the property of W. M. Creekmore if he should die without any heirs then one of the other boys to take the land and pay the other 2/3 of its value. I don’t want it to go out of the family.”
N. J. Creekmore died many years ago (date not shown in record), and in 1937 John W. Creekmore, Fr.ed G. Creekmore and C. C. Creekmore, together with their wives, conveyed their interest in the land hy quitclaim deed to W. M. Creekmore.
W. M. Creekmore died testate on March 18, 1966, having been predeceased by C. 0. and Fred. John W. Creekmore, father of appellant, J. M. Creekmore, died approximately three weeks after W. M. Creekmore, and it is agreed that presently there are no closer relatives than nephews and nieces. In his will, W. M. Creekmore devised the above mentioned property to a nephew, Earnest Gregory; J. M. Creekmore contends that W. M. Creekmore was not the owner of the lands devised to Gregory, and accordingly had no right to include this devise in his will. The trial court disagreed, and the sole question on this appeal is the proper construction of the clause in the will of W. H. Creekmore, heretofore quoted.
The trial court ruled correctly. In Harrington v. Cooper, 126 Ark. 53, 189 S. W. 667, the court was called upon to construe the following provision of the testator, George Wood:
“I give to my beloved wife, Mary Jane Wood, during her natural life and to our daughter, Georgia Anna Wood, that portion of the tract of land on which we reside, lying north and east of Jacks Creek containing about five hundred acres, including the dwelling and gin house and other improvements as a joint support for my wife and at the death of my wife I desire and intend that my daughter, Georgia Anna Wood, shall take in her own right the entire interest should she survive her mother and shall my said daughter, Georgia Anna Wood, die childless then in that case the whole shall revert to my estate and be equally divided between my other children or their descendants of the same, the children of such as may he dead taking the interest that the parent would be entitled to if living.”
This court said:
“It seems clear that the defeasance relates to the. time of the death of the mother of appellants. That is the time fixed, for her remainder interest to take effect. The words ‘die childless’ mean without having had or without leaving a child. In this way and in no other can every clause of the will be harmonized and have force and effect. It is perfectly clear that the testator intended that his daughter, Georgia Anna, should take a fee simple when he used the words, ‘ shall take in her own right the entire interest, ’ and it is also clear that he intended the estate to vest when her mother died by using the words, ‘should she survive her mother.’ The last clause already quoted by using the words ‘die childless,’ etc., means that if Georgia Anna should die without haying a child or leaving a child before her mother’s death, that the whole shall revert to the testator’s estate and be equally divided among the testator’s other children. In short it meant that the remainder in fee should be vested in Georgia Anna at her mother’s death and in case Georgia Anna should die without leaving a child before her mother’s death the estate should revert to the testator’s estate and be divided among his other children. This is in application of a rule that where an estate is devised to one for life, with remainder to another, with the further provision that, if the remainderman should die without having a child, then to a third person, the words ‘die without having a child’ are restricted to the death of the remainderman before the termination of the particular, estate.’
When we apply that holding to the instant litigation, the words, “without any heirs” (instead of “die childless”), are restricted to the death of W. M. Creekmore, the remainderman, before the termination of the particular estate, i. e., the life estate of N. J. Creekmore. See Lewis v. Bowlin, 327 Ark. 947, 377 S. W. 2d 608, which explains the distinction between this rule and those cases that are governed by Ark. Stat. Ann. § 50-405 (1947).
Affirmed.
It is apparent that this sentence should be interpreted as though a semi-colon appeared after the name, “W, M. Creekmore."
There is no necessity to discuss the effect, if any, of the deeds.
It is of interest to note the comment in Simes and Smith, The Law of Future Interests, § 540, pp. 629-31:
“The disposition 'to A and his heirs, bnt if A die -without issue, then to B and his heirs’ has 'been, considered, and the two possible constructions have been indicated. Suppose, however, that a testator devises property ‘to X for life, remainder to A and his heirs, but if A die without issue (or children) remainder to B and his heirs.' Three constructions are now possible: First, that ‘die without issue’ means ‘die without issue before the death of the testator;’ second that ‘die without issue’ means ‘die without issue before the death of X, the life tenant;’ and third, that ‘die without issue’ means ‘die without issue at any time.’ The first two are fairly termed substitutional constructions; the third, obviously, is not. The Restatement, and the weight of authority adopt the second view where this situation is presented.
“In a. jurisdiction which prefers the substitutional construction when there is no preceding life estate, it would seem likely that the same preference would be adopted in construing the limitation here under consideration. All of the reasons for preferring the substitutional construction are still applicable. The only question is whether the substitutional date is the death of the testator or the death of the life tenant. Some courts continue to apply the substitutional rule at the death of the testator. A greater number of courts, however, apply the substitutional rule at the death of the life tenant. The latter construction seems preferable, since it gives full weight to the preference for making interests absolute as early as possible and still reflects the normal wishes of a testator.”
This jurisdiction, of course, follows the second view. Harrington v. Cooper, supra, is cited as an example of the substitutional rule at the death of the life tenant. | [
115,
108,
-100,
124,
26,
-32,
10,
48,
98,
-93,
37,
83,
45,
82,
16,
97,
-29,
109,
85,
97,
-26,
-93,
6,
-48,
-46,
-13,
81,
-116,
-15,
-51,
-89,
-41,
77,
32,
-56,
93,
-30,
-54,
-51,
-44,
-114,
-52,
11,
-31,
89,
80,
53,
103,
58,
95,
85,
-98,
-77,
42,
53,
-26,
-20,
44,
73,
-88,
72,
56,
-118,
6,
-1,
21,
16,
-121,
-102,
-117,
72,
10,
-40,
17,
-128,
-28,
91,
54,
-42,
-12,
11,
-85,
40,
98,
103,
48,
-51,
-17,
-80,
-102,
15,
110,
-123,
-89,
54,
24,
3,
97,
-73,
-79,
121,
84,
-17,
112,
-26,
29,
92,
40,
4,
-113,
-42,
-95,
-119,
-72,
-120,
2,
-5,
39,
112,
113,
-55,
-22,
77,
65,
113,
-101,
-122,
-112
] |
Paul Ward, Justice.
This is an appeal from the trial court’s judgment reversing the action of the Arkansas Commerce Commission (appellant) wherein it denied the Kansas City Southern Railway Company (appellee) authority to close its station located at Winthrop in Little River County.
The above proceeding was initiated and prosecuted in accord with the provisions of Ark. Stat. Ann. § 73-809b. (Supp. 1967) which, in parts material here, reads:
“b. Any railroad operating in this State may file with the Arkansas Commerce Commission a notice of discontinuance, ... of any of its agency stations together with a statement... to the effect that such agency station had been operating at a financial loss according to standard accounting procedures for not less than one [1] year immediately preceding . . . and such agency station may thereupon he closed . . . ninety [90] days after date of filing of such notice unless a petition for the re-establishment of such . . . station, signed by at least twenty-five [25] qualified electors residing in the city, town or political subdivision where the same is located, is filed with the Arkansas Commerce Commission within sixty [60] days after date of filing of the notice aforesaid. The Arkansas Commerce Commission is authorized, empowered and required to hear and consider all petitions for the re-establishment of any agency station discontinued ... by the railroad under authority of this Act [section,] which hearing shall he held Avithin sixty [60] days following filing of petition ... In determining whether an agency station should be discontinued . . . the standard to be employed is whether the railroad has operated the agency station at a financial loss according to standard accounting procedures for not less than one [1] year immediately preceding the filing of the notice of discontinuance, dualization or modification, or lohether operating economies would result therefrom.” ^Our Emphasis)
It is not disputed here that both parties followed the procedural steps outlined in the statute. That is: appel-lee gave the notice and statement; twenty-five qualified electors filed a petition, opposing the closing of the station, with appellant, and; in due time a hearing was held.
The Commission (appellant), on June 19, 1967, found: (a) The continuance of the station is required by the public convenience and necessity, and; (b) Discontinuance of the station should not be granted, and it was so ordered. This order was appealed to the Pulaski Circuit Court which, after reviewing the record, reversed the Commission and directed it to enter an order allowing appellee to discontinue the Winthrop agency station.
On appeal appellant relies on two separate points for a reversal. One, the trial court erred in finding the station was operated at a loss for one year, and; Two, the trial court erred in finding that operating economies will result to appellee consistent with public convenience and necessity if the station is closed.
One. The decisive issue here is whether appellee showed, by “standard accounting procedures”, that the station operated at a loss (as required by the statute).
It is undisputed that the exhibits introduced by ap-pellee before the Commission showed the station did operate at a loss for the required time. The only question then is, was the showing arrived at “according to standard accounting procedures”? This was one of the decisive issues in the case of CRI&P RLD. Co. v. Ark. Commerce Comm., 243 Ark. 661, 420 S. W. 2d 917. There the Commission and the trial court held against appellant because no such showing was made. There we said: “There was no testimony to show that the method used by appellant . . . was according to standard accounting procedures required” ... by the statute. That is not the situation in the case here under consideration, as is shown by the undisputed testimony of appellee’s witness, Mr. Johnson.
“Q. Is this allocation of 50% to origin and destination stations standard railway accounting procedure ?
“A. Yes, sir, it is.
“Q. Is the allocation of system expenses which yon have described in Exhibits No. 1 and No. 2 standard railway accounting procedure?
“A. Yes, sir.”
No evidence was offered by appellant to contradict Johnson’s testimony, and none to show he was not competent and qualified to testify.
Since we conclude the trial court must be affirmed on this point it becomes unnecessary to discuss point Tivo which is only an alternative ground for an affirmance but not for a reversal.
Affirmed. | [
116,
-26,
-44,
-36,
10,
-32,
50,
-86,
83,
-85,
100,
83,
-83,
-118,
17,
123,
-26,
61,
-12,
41,
-58,
-77,
83,
43,
2,
-13,
81,
-27,
-70,
93,
-12,
-106,
76,
49,
-22,
-43,
70,
76,
-51,
28,
-114,
35,
-101,
100,
81,
0,
56,
110,
18,
15,
21,
46,
-5,
40,
24,
-55,
73,
44,
111,
-25,
80,
58,
-118,
-57,
119,
4,
49,
36,
-102,
-121,
120,
59,
-112,
16,
0,
-68,
115,
-90,
-122,
116,
41,
91,
8,
42,
99,
2,
1,
-17,
-84,
40,
6,
-6,
29,
-122,
-80,
25,
67,
9,
-106,
-107,
93,
-108,
6,
-2,
-25,
-123,
-37,
44,
-125,
-50,
-80,
-93,
92,
97,
-105,
27,
-1,
-79,
50,
116,
-50,
-26,
93,
86,
50,
27,
-114,
-44
] |
Conley Byrd, Justice.
Appellant Arkansas State Highway Commission brings this appeal from a jury verdict and judgment for $20,000 following the taking of 29.59 acres out of 130.59 acres owned by appellees.
Appellant urges that the trial court erred in permitting the landowners’ witnesses to testify that their values were based upon this land having public access without showing that there was public access to the property, and in not striking the testimony of appellees ’ expert witnesses after appellees failed to show there was public access to the property.
One of the landowners and appellees’ two expert witnesses' testified that they had in the past entered the property on the old Military Road which had been in existence since the Mexican War, running from Helena to Arch Street Pike in Little Rock. The location of the road shows up on aerial photos introduced in evidence. Mr. C. V. Barnes testified that he had used the old Military Road to get to the property as early as 1929 or 1930, that the road was not now passable by car, that a four-wheel drive vehicle was necessary, and that the road was no paved highway, but it was access, which no longer existed since the new highway had cut it in half. Mr. Lincoln, one of the landowners, stated that he bad been on the property a number of times, and that when he heard about the proposed highway, he and an adjoining landowner had gone in on the old Military Road by pick-up truck and had seen hunters and picnickers on the property. Mr. Lloyd Pearce also testified that before the taking the road was passable by four-wheel drive vehicle, but after the taking one could not use the road because the non-access highway bisected it, and that the old Military Road had been some type of access before the taking.
There was proof, both oral and documentary (photographs), that the old Military Road existed and had existed for a number of years. Testimony also showed that this road, had been used for access to the subject property for some years — rough, unpaved, even primitive access, but aócess it was, now severed by a limited access highway. - Generally speaking, an easement acquired by grant or prescription cannot be lost by mere nonuser for any length of time, no matter how great. The nonuser must be accompanied by an express or im plied intention to abandon, 25 Am. Jur. 2d § 105, which intention was not shown here.
Appellant’s second point is that the trial court erred in not striking the before and after values of Mr. C. V. Barnes because he based his market for rock on sales that took place after the date of taking.
This court has long adhered to the rule that a con-demnor should not be required to purchase property at a price enhanced by the particular public project for which the property was taken. Arkansas State Highway Comm. v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495 (1967); 4 Nichols, Eminent Domain § 12.3151 (3d ed. 1962). There is no testimony in this record that the construction of this piece of highway increased the value of lands in the area. Mr. Barnes testified that the property has granite and that his research showed that from 1950 to 1962 the United States market for granite had increased 300 per cent, due to factors such as increased river development and highway construction throughout Arkansas.
The subject property was taken in February 1962; trial was held in 1966. Mr. Barnes testified in detail about nine sales of similar property, both before and after the taking. The three sales before February 1962 ranged from $300 to $1,000 per acre; the sales after the taking (with one exception) ranged from $1,000 to $1,-850 per acre. He explained how he charted these sales and arrived at the conclusion that as of February 1962 the low trend was $750 per acre and the high $1,125 per acre. He then testified that the February 1962 value of the land taken was $22,192.50 (about $740 per acre), and damage to remaining land was $10,557.57, a total of $32,750.
Although 5 Nichols, Eminent Domain § 21.31(2) (3d ed. 1962) states that evidence of sales made subsequent to the taking is not admissible unless the sales were made almost simultaneously with the taking, the treatise prefaced this general rule with the statement that “there is ample authority to the contrary.” Simply stated:
“There is authority for the admission of evidence of sales of comparable land made subsequent to the date of condemnation where the sales considered involve land that was not benefitted or its market value affected by the public improvement causing the condemnation.” State v. Williams, (Texas 1962), 357 S. W. 2d 799.
We see no error in the court in its discretion admitting comparable sales, not too remote in time, and not having been enhanced or decreased in value by the project or improvement which prompted the taking.
Appellant’s third point is that the court committed reversible error in permitting Mr. Barnes to testify as to what the price of one foot of granite per acre would be at five cents a ton.
4 Nichols, Eminent Domain § 13.22 (3d ed. 1962), “The rule is widely prevalent in this country that the existence of mineral deposits in or on land is an element to be considered in determining the market value of such land.” (Arkansas State Highway Comm. v. Elliott, 234 Ark. 619, 353 S. W. 2d 526 [1962]).
We have permitted market value of minerals to be determined by multiplying the mineral quantity by its fixed price per unit in an unusual situation such as occurred in Arkansas State Highway Comm. v. Cockran, 230 Ark. 881, 327 S. W. 2d 733 (1959), where the land taken had been leased at royalty for mining a certain mineral. However, that was unusual, and this court in Arkansas State Highway Comm. v. Stanley, 234 Ark. 428, 353 S. W. 2d 173 (1962) fortified the general rule that market value of land may not be determined simply by multiplying the estimated quantity of mineral by a unit price. In the case at bar, this error did not occur.
On cross-examination of appellees’ expert, Mr. Barnes, the state asked him if he knew about a 1957 Brazil sale. Barnes testified that “it wasn’t an outright sale . . . The consideration was $278 per acre plus a 5-cent per cubic yard royalty on all rock quarried off the property.” Barnes admitted that he did not know whether that consideration was stated in the deed, but that' he had verified the agreement with both parties to the transaction and that the purchaser thought the property, considering royalty, was costing him $2,000 per acre. On re-direct, Mr. Barnes was asked what the 5-cent royalty meant where an acre of ground had granite one foot deep. Mr. Barnes replied that in the Brazil sale the royalty was 5 cents per cubic yard, which would figure approximately $150 per acre, oné foot deep.
The fact that the Brazil property had sold for $278 per acre plus a 5-cent per cubic yard royalty was already before the jury without objection. The testimony here objected to did nothing more than make a mere calculation which the jury itself could have made. Since no effort was made to capitalize this into market value of either the Brazil property under discussion or the subject property, we fail to see any prejudicial error.
Appellant finally urges that there was no substantial evidence to support the verdict. We do not agree. One of the landowners and two expert witnesses testified for appellees to damages of $40,000, $32,750, and $33,000 to appellees; appellant’s two experts testified to damages of $6,850 and $7,000. The qualifications of all the witnesses were admitted, and the jury had the advantage of detailed examination and cross-examination nf each witness before reaching its verdict.
Affirmed.
Harris, C. J., Brown and Jones, JJ., dissent. | [
113,
-17,
-11,
60,
59,
64,
24,
-120,
88,
-85,
36,
83,
-81,
74,
20,
113,
-17,
-65,
100,
105,
-57,
-78,
71,
51,
82,
-13,
123,
69,
56,
-35,
-28,
118,
76,
33,
-54,
21,
100,
72,
-49,
88,
-50,
-126,
-101,
77,
-39,
-64,
56,
47,
20,
79,
49,
-97,
-29,
38,
28,
-61,
109,
46,
75,
-83,
89,
56,
42,
13,
-33,
4,
49,
38,
-104,
1,
-8,
8,
-104,
49,
8,
-72,
119,
-90,
-106,
100,
75,
-103,
8,
96,
98,
1,
109,
-9,
-8,
-116,
14,
-6,
-115,
-91,
-62,
16,
67,
97,
-97,
-107,
121,
64,
67,
126,
-18,
-51,
89,
108,
39,
-53,
-108,
-79,
-28,
56,
-108,
3,
-21,
15,
18,
116,
-57,
-62,
89,
69,
115,
-101,
-113,
-112
] |
Paul Ward, Justice.
The sole question here is: When did an automobile liability insurance policy, issued by the Southern Farm Bureau Casualty Insurance Company, become effective?
The following pertinent facts are not in dispute.:
(a) Appellant, the above named insurance company, issued its policy to W. B. Isgrig, Jr. (appellee herein) covering an automobile owned by appellee and involved in a collision, causing injury to Regina Lorene Byrd.
(b) The term of the policy was “from the effective date 06/02/65 to 12/02/65 12:01 a.m. ...”
(c) The collision occurred at 10 or 10:15 on the morning of June 2, 1065.
This particular litigation began when appellee filed a complaint in chancery court asking it to declare the policy in force and to coyer the accident, and to direct appellant to defend a lawsuit brought against him by Regina Lorene Byrd.
In its answer appellee admitted issuing the policy as set out above and admitted the date of the accident, but alleged “that said policy of insurance was issued after said accident occurred . . . .”
The trial court found that “said policy was in full force and effect and afforded protection for said accident”.
An unusual set of facts are here involved, and a somewhat unique issue is presented, but we have concluded the case must be reversed.
It is admitted: (a) that the accident happened on June 2', 1965 not later than 10t30 a.m.; (b) that the insurance policy in question had not been actually written or issued at that time, but was issued, paid for and delivered later on the same day of the accident; (c) that all these facts were known to appellees and to the agent of appellant; (d) that no fraud or deception was practiced by either party, and; (e) that the policy contains this clause — “The term of the policy shall be from the effective date 06/02/65 to 12/02/65, 12:01 a.m.
It is our opinion that clause (e) above is not clear or decisive as to the exact hour and minute on June 2, 1965 the policy became “effective”. That being true, it is our further opinion that we can and must consider oral testimony to resolve the ambiguity.
The casé of Kansas City & Memphis Railroad Co. v. Smithson, 113 Ark. 305, 168 S. W. 555 concerned a dispute over the subject matter of a contract, and we said:
“No rule of evidence was violated in permitting ap-pellee to prove this state of facts, for it did not vary or contradict the terms of the contract, but only explained the subject-matter thereof. It clearly establishes a mutual mistake on the part of both participants in the negotiation as to what they were really contracting about, that is to say, the purpose for which the acquired right-of-way was to be used.”
The subject matter here is the “effective date” of the insurance policy, so we now consider the testimony relative to that point.
Mr. Isgrig, Jr. testified, in substance; that on the day of the accident he went to the agency office of appellant and reported it to Joe Rodman, an employee.; that he was told he did not have insurance; that he was sent to see Miss Milligan; that he had applied previously for insurance but did not know whether a policy had been issued since he had not paid for it.
Joe Rodman, appellant’s agent, testified in substance : I talked to appellee on the day of the accident; I asked him if he had coverage, and he said “no” but that he needed coverage for the rest of the time. I told him he could go by the office and “pay his premium and coverage would be in effect then but not at the time of the accident”.
Miss Milligan, a secretary of appellant, testified, in substance: Appellee came to the office on the day of the accident to get the policy; I knew of the accident and “I told him he didn’t have any coverage at the time of the accident”; she further testified: “He said, ‘well he knew that but it was a relief to get some insurance.’ ”
Since the insurance policy itself does not state the exact time it was to take effect but only when it would expire, and in view of the testimony set out above, we are forced to conclude that the weight of the testimony shows the policy was not to be in effect when the accident happened.
The decree is therefore reversed, and the cause of action is dismissd.
FoglemaN, J., not participating. | [
116,
109,
-35,
-83,
10,
96,
112,
10,
115,
-55,
-92,
83,
-19,
-29,
93,
53,
-33,
41,
-27,
8,
-12,
-125,
19,
50,
-14,
-13,
-37,
71,
-105,
89,
100,
127,
77,
48,
2,
69,
-28,
74,
-123,
28,
-54,
-118,
-70,
-28,
88,
-48,
56,
122,
20,
15,
97,
-113,
-15,
-82,
88,
86,
41,
46,
75,
-95,
-14,
33,
-122,
5,
119,
2,
49,
68,
-72,
37,
112,
11,
-100,
49,
32,
-8,
114,
-90,
-42,
-124,
101,
-119,
0,
34,
99,
35,
37,
-19,
-20,
-104,
22,
-10,
15,
-122,
-78,
89,
35,
12,
-65,
31,
117,
17,
-121,
-20,
-20,
69,
28,
32,
1,
-117,
-110,
-80,
-17,
-30,
30,
11,
-17,
-127,
-78,
117,
-49,
-30,
85,
85,
118,
-109,
-106,
-95
] |
Conley Byrd, Justice.
This appeal by Joe F. Rush-ton, M. D., is one of a number of lawsuits arising from the dismissal of W. C. Blewster as president of appellee First National Bank of Magnolia. Dr. Rushton contends that in endorsing certain notes for Numark Manufacturing Company he was acting as trustee for the benefit of the bank. The trial court found against Dr. Rushton because (1) the acts, if they had occurred, would be ultra vires and not binding on the bank; (2) Dr. Rushton failed to prove the facts alleged; (3) Dr. Rushton was barred by the “clean hands” doctrine; (4) Dr. Rush-ton, having recognized his liability as personal, was estopped to assert the trusteeship or guaranty of the bank; and (5) Dr. Rushton’s claim was barred hy the statute of frauds. In addition to denying relief, the trial court entered judgment against Dr. Rushton upon the bank’s counterclaim for $158,230.47, which included a note for $97,787.77, dated April 3, 1963, and signed by Dr. Rushton as trustee.
For reversal Dr. Rushton relies upon several points, but since there was error that calls for a complete new trial, we deal only with the alleged error of the trial court in permitting William A. Eckert, Jr., an attorney of record, to testify over Dr. Rushton’s objection that the rule had been invoked and that Mr. Eckert had remained in the courtroom throughout the trial.
UNCONTROVERTED FACTS
The record fairly establishes the following facts:
1. W. C. Blewster was president of the First National Bank of Magnolia from July 1942 until his termination on November 1, 1964. During his tenure the bank had suffered no large losses and had foreclosed only twice prior to the foreclosure of the Magnolia Wood Products property. The bank had grown from $856,000 Avlien he became active manager to $22,550,000 at the time of his termination. Mr. Blewster spent much of his time as hank president in trying to secure industries for Magnolia. In the words of Mr. T. A. Monroe, who succeeded Mr. Blewster as hank president, “Mr. Blewster ran the First National Bank of Magnolia. It was substantially a one-man hanking operation.”
2. Appellant Dr. Joe F. Rushton was a physician and surgeon in Magnolia, Arkansas. He had been a stockholder in the First National Bank of Magnolia since 1936 and a director since 1937 or 1938. He engaged in a number of enterprises — some with W. C. Blewster and some with Congressman Oren Harris, now U. S. District Judge for the Eastern District of Arkansas. His financial statement, as prepared by the First National Bank of Magnolia, on October 1, 1963, showed a net worth of $1,701,493.00.
3. T. A. Monroe, an insurance man, had been a director of the bank since 1951 and vice president from 1956 to 1964. Upon Mr. Blewster’s termination, Mr. Monroe became president and served until September 1965. As president, he was a member of the bank’s Executive Committee along with Mr. Eckert.
4. William A. Eckert, Jr., of Magnolia, Arkansas, had been attorney for the bank some fourteen years and a director since 1957. He served on the bank’s Executive Committee along with Mr. Monroe, after Mr. Blew-ster’s termination. He signed some of the pleadings herein as attorney for the bank, but most of the subsequent pleading's were signed by Graughan & Laney. He did not examine any witnesses during the trial, but is shoAvn here as counsel for appellee bank.
5. Odyssey Trailer Company was a corporation which Mr. Blewster was instrumental in organizing to build trailers. At one time Mr. Blewster prevailed upon Dr. Bushton to take $2,500 in stock and later asked him to please take another $2,500, as that was all the city of Magnolia lacked to get the company started. After Odyssey was organized, Mr. Blewster and others prevailed upon the Columbia County Industrial Commission to erect a building for it through a bond issue. Odyssey was financed through the First National Bank of Magnolia. After some forty trailers had been built, it became apparent that their cost was too high and the company was a sick industry. Dr. Bushton and Mr. Blewster were on Odyssey’s board of directors and had personally endorsed a note for $35,000 to the Bepublie National Bank of Dallas which was renewed several times.
6. Magnolia Wood Products Company was another industry that Mr. Blewster secured for Magnolia and that was financed by the First National Bank of Magnolia. This industry became sick, too; a friendly foreclosure was had; and on January 11, 1963, the foreclosure sale to First National Bank of Magnolia for .the amount of its judgment debt of $52,705.45 plus interest and attorney’s fee was confirmed.
7. Numark Manufacturing Company was the name given to the new venture resulting from a merger between Odyssey and Magnolia Wood Products Company. The Numark stockholders were the same as the stockholders of Odyssey and Magnolia. Dr. Bushton was elected president in his absence and urged to serve in that capacity by Mr. Blewster. Mr. Blewster was also on its board of directors. Numark obtained government contracts and operated until after Blewster’s dismissal as president of the bank. It went into bankruptcy some time before trial of this case.
8. The minutes of the January 16, 1963, meeting of the Numark board of directors, with reference to the issues here involved, showed the following:
“W. C. Blewster stated that the Firsts National Bank of Magnolia, Magnolia, Arkansas, had, by foreclosure proceedings, acquired title to all of the assets of Magnolia Wood Products Company, and that the bank is leasing the property to the corporation for a rental of $250 per month. He further stated that he and Mr. Drew had high hopes of arranging for the company to obtain an ABA loan so as to enable the corporation to purchase all of the assets of the old Magnolia Wood Products Company from the bank.”
The minutes of the special meeting of the Numark board of directors on March 6, 1963, reflected the following :
“Mr. Blewster stated that the First National Bank of Magnolia had conveyed all assets of the old Magnolia Wood Products Company to Joe F. Rushton, Trustee, that Numark Manufacturing Company was in possession of the old Magnolia Wood Products properties under a lease agreement entered into by and between Joe F. Rushton, Trustee, as lessor, and Numark Manufacturing Company, as lessee. It was explained that it was anticipated that Numark should attempt to obtain from the Area Redevelopment Administration a loan in the amount of $200,000, so that the corporation might purchase from the Trustee all assets of the Old Wood Products 'Company. After a full and complete discussion of the matter, a motion was made by Charles Viering and seconded by Felton Roberson that the corporation should attempt to borrow $200,000 from ARA, with which to purchase all of the assets of Magnolia Wood Products Company and other property related thereto, title to which is now in Joe F. Rushton, Trustee.”
9. On March 1, 1963, the First National Bank of Magnolia conveyed to Dr. Joe F. Rushton, Trustee, the property acquired in the Magnolia Wood Products Company foreclosure.
10. On April 3, 1963, Dr. Joe F. Rushton, Trustee, executed a deed of trust to Carl Black, Trustee for First National Bank of Magnolia, covering the property acquired from Magnolia Wood Products Company. This deed of trust was given to secure a note due 120 days from date, in the amount of $97,787.77, and signed hy Joe F. Rushton, Trustee.
11. On April 3, 1963, Numark Manufacturing Company executed a note to the Texarkana National Bank for $35,000. This note was endorsed by Dr. Rushton and Mr. Blewster.
12. From April 3, 1963, to September 26, 1964, Nu-mark was financed by First National Bank of Magnolia tlirough overdrafts which had accrued in the amount of $225,000 as of September 26, 1964. On that date Numark executed a note for $225,000 to the First National Bank of Magnolia. Texarkana National Bank participated in the $225,000 note to the extent of $125,000 upon a personal guaranty of Dr. Rushton and Mr. Blewster. In addition Dr. Rushton pledged as collateral 24,675 shares of Berry Asphalt Company.
13. On October 26, 1964, Numark executed a note for $35,000 to Texarkana National Bank. This note Avas endorsed by Dr. Rushton and Mr. BleA\ster.
14. On November 1, 1964, Mr. Blewster A\as dismissed as president of the bank.
15. On NoAember 23, 1964, Numark executed to Republic National Bank of Dallas, Texas, a note for $35,-000, endorsed by Dr. Rushton and Mr. Blewster.
16. After Mr. Blewster’s dismissal, Mr. T. A. Monroe found in Blewster’s desk drawer an unexecuted instrument wherein Numark was mortgaging the Magnolia Wood Products to First National Bank as security for the $225,000 note. Realizing that the bank had no security for its part of the $225,000 note and that title to the property was in Joe F. Rushton, Trustee, the hank, at Mr. Eckert’s suggestion, joined with Joe F. Rushton, Trustee, in conveying by deed on December 20, 1964, the Magnolia Wood Products Company property to Numark Manufacturing Company, and simultaneously caused the unexecuted deed of trust from Numark in favor of the bank to be executed. This removed this security from the $97,787.77 note signed by Dr. Rushton as Trustee and placed it on the $225,000 note of Numark.
17. On December 28, 1964, Numark executed to Republic National Bank of Dallas its note for $37,390.69, endorsed by Dr. Rushton and Mr. Blewster.
18. On January 25, 1965, Numark executed to Republic National Bank of Dallas its note for $19,000, also endorsed by Dr. Rushton and Mr. Blewster.
19. On February 25, 1965, Dr. Rushton signed an instrument acknowledging that he was indebted to the First National Bank for, among other things, the $97,-787.77 note as trustee. In addition he pledged as collateral security 10,500 shares of Berry Petroleum Company capital stock and 140 shares of Magnolia Broadcasting Company capital stock.
20. After Dr. Rushton had parted with the 10,500 shares of Berry Petroleum stock and 140 shares of Magnolia Broadcasting stock, W. A. Eckert, Jr., the bank’s attorney, suggested to Dr. Rushton that he should employ his own counsel.
21. From the time Mr. Blewster was dismissed from the bank until Dr. Rushton made his collateral pledge with the bank, all transactions between the bank and Dr. Rushton were handled by T. A. Monroe and W. A. Eckert, Jr., usually together.
CONTROVERTED FACTS
W. C. Blewster on direct examination testified that Dr. Rushton became trustee in the transaction leading up to and involved in this lawsuit because he, as president of First National Bank, asked him to act as trustee; that in attempting to keep Numark going he was trying to prevent First National Bank from having a substantial loss,- that this transaction was for the bank’s benefit and at Ms suggestion, and it was not his intention for Dr. Rushton to be personally liable; and that up until this Numark transaction First National Bank liad never sustained large losses and everything was going well until the ARA ran out of money and he was forced to resign. Mr. Blewster stated that First National Bank had had other trusteeships to work out situations like this one and they had never been questioned by the bank examiners.
Dr. Rushton testified that when it became apparent that Odyssey was not going to make a go of the trailer business, he told the board of directors that the best thing to do was to shut it down and let it fold up. Mr. Blewster then suggested that Mr. Drew, manager of Odyssey, take a look at the Magnolia Wood Products property and see if business could be continued with a merger of the two companies. The bank had taken a loss in both companies and Mr. Blewster did not want to see that happen. At Mr. Blewster’s suggestion, Mr. Drew decided that perhaps he could put the two companies together, go into wood products manufacturing and pull the situation out of the fire. Dr. Rushton stated that he could not attend the meeting after the merger because of surgery, and that when he called Mr. Blewster to see what they had decided, he found that they had elected Mm president. He reluctantly accepted the office at Mr. Blewster’s request. Mr. Blewster told him that through Hamilton Moses^ they were going to arrange an ARA loan; that Mr. Blewster wanted him to act as trustee to make loans to this new company so the bank could get its money back from the ARA loan. Dr. Rushton stated that his position as trustee was explained at a meeting of the bank’s board of directors; that the bank had asked him to act as trustee for it so the bank could arrange for him to pay off its indebtedness on notes it was about to lose; that this was the same arrangement the bank had used before with Mr. Shanehouse and Mr. Varner and one or two others who had served in the same capacity as had Dr. Rushton; that all the time endeavors were being made to secure an ARA loan and that while he himself had nothing to do with it, he knew it was being done because the bank had helped in filling out the forms.
"With respect to the February 25, 1965, collateral pledge (see item 20 above) Dr. Rushton testified.
After Mr. W. C. Blewster had resigned, I put up my stock in Magnolia Broadcasting Company and the rest of the stock I had in Berry Petroleum Company to secure the $97,000 mortgage. I did not receive any money or consideration for the warranty deed to Numark Manufacturing. The reason I put up this security for the trustee mortgage in 1963 was that T. A. Monroe called me to come to the Bank. I went down there and Mr. Eckert told me I was in serious trouble. He said that W. C. Blewster was going to the penitentiary and I might be going with him. He said I had better clear my name at the First National Bank; that I was part of the whole thing. He asked me what I did with the money, and I said I never got any of the money, and he said the money is somewhere and you might be investigated by the Federal Government and you will lose everything you have; your home and clinic and everything, and I thought I was doing the right thing. I followed the advice of the Bank’s attorney and put up this security. I was subsequently advised by legal counsel that I did not have to do that. I put up my stock in Magnolia Broadcasting Company and about 10,500 shares of Berry Petroleum. This was after the blowup at the Bank. I did not put up any security in 1961 when I signed the Odyssey note. The Magnolia Broadcasting Company stock and the Berry Petroleum stock was typed on that note without my consent, and I did not know it was on there.
I was coerced into putting up the security on the Bank note. Mr. Eckert was acting as my legal advisor while he was acting as legal advisor for the Bank. I was not paying him any fee. We had been close friends for 10 or 15 years and I had no reason not to trust him.
Mr. T. A. Monroe testified:
In some ways, the whole board of directors had been derelict in their duty but in other ways they did not fail because they did not know some of the 'things that were going on. . . I did not tell Dr. Rushton in the executive meetings between myself, Mr. Eckert and Dr. Rushton that his activities were in violation of federal law and he was in serious trouble. I did not hear Mr. Eckert tell him that. I might have gone out of the meetings or been called out. I don’t know. But Mr. Eckert was advising Dr. Rushton on his legal liability ... We told him if he put up securities it would be his free and voluntary act. .. We merely asked him to secure the loan to prevent, him from being embarrassed before the board of directors. We wanted the securities brought in but I don’t think we mentioned voluntary. . . It was more just appealing to him to help us get his loan straight. We did not tell him it would be his free and voluntary act.
Later Mr. Monroe testified:
I don’t recall saying to Dr. Rushton “what did you do with that money” a number of times. It did come up on one or two occasions. I didn’t emphasize. A statement like that might carry its own emphasis. I told Dr. Rush- ton tlie FBI was investigating the bank, bnt if he put up property and securities, it would take the heat off. I don’t think Dr. Rushton was threatened to the extent of being intimidated.
“Q. When was the first time you heard Doctor Rushton state to anyone in your presence that he was acting as trustee for the First National Bank of Magnolia, in taking this Numark property?
A. That was in our first meeting with him.
Q. That was in your first meeting with Doctor Rushton?
A. Yes sir.
Q. When Mr. Laney asked you this question on direct examination, every time he asked you this question you answered ‘no.’ You had heard him tell other people in your presence that he was acting as trustee for the bank, had you not?
A. Yes sir, but not in a Board Meeting. Mr. Lan-ey asked me if I had heard him say that in a Board Meeting.
Q. Then all of your answers of ‘no’ pertained only to Board Meetings, Mr. Monroe?
A. Yes sir.
Q. Mr. Laney told you that he was going to ask those questions and would put in the word ‘Board Meetings’?
A. Yes, but I knew he would have to ask that.”
Following Mr. Monroe’s testimony, W. A. Eckert was called as a witness to testify for defendant. At the time he was called, counsel for Dr. Rushton made the following' objection:
“I want to object to Mr. Eckert testifying. He has sat here during the entire testimony and we asked for the rule on the witnesses and he did not leave the Courtroom, Your Honor.”
The court overruled this objection and thereupon Mr. Eckert testified that he was at several conferences with Dr. Rushton over a period of time from December 1964 to February 1965 and the first time he ever heard about Dr. Rushton claiming he had been authorized to act as agent or trustee for the bank was when the complaint was filed in the instant suit; and that no one had ever coerced anyone in his presence in connection with the Dr. Rushton affairs. Mr. Eckert stated that he had regularly attended the bank’s board meetings and had never heard any discussion at any of them that the bank liad agreed to hold Dr. Rushton harmless in connection ivitli his endorsement of papers or notes for Numark.
Following direct examination of Mr. Eckert, counsel for Dr. Rushton refused to cross-examine him and made the following motion:
“Your Honor, we ask that the testimony of this witness be stricken from the record. By his own testimony, he has admitted that he is Counsel for the bank and, therefore, he is ineligible to testify. He was a known witness and he was allowed to remain in the Courtroom. Mr. Rogers was announced to be the representative of the defendant bank, Your Honor, not Mr. Eckert.”
Appellant’s argument with reference to the rule is as follows:
“At the beginning of this case the plaintiff asked ‘the rule’ on the witnesses. The defendant announced that the president of the bank, Mr. Rogers, would be the representative of the defendant cor poration who was permitted to remain in the court room. Counsel for Dr.. Rushton pointed out that Mr. W. A. Eckert was sitting at the counsel’s table and that Mr. Eckert had participated in a number of these transactions and would undoubtedly be called as a witness. Counsel for the bank announced that Mr. Eckert would participate as an attorney and would not be called as a witness.”
* * *
“We recognize that the trial court has a great deal of discretion in applying the rule but that discretion is not without limitation. When it is called to the attention of the Court and counsel that an obvious witness is in the courtroom and specific objection is made to that witness, it is an abuse of discretion for the trial court to permit that witness to participate in the trial of the case and then take the witness stand and testify.”
Appellee in its argument states the matter as follows:
“It is true this case was conducted under ‘the rule.’ This did not exclude Mr. Eckert who was an attorney of record for the Appellee. He had every right to be present and it was his duty to be there having been the bank’s attorney through all the- years during which the involved transactions occurred. The actual trial of the case was conducted by other counsel.
“As we see it the only question which could possibly be involved is whether Mr. Eckert’s testifying was proper under Canon 19 of the Canons of Professional Ethics. This Canon reads:
‘When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in Court in behalf of his client. ’
“In the opinion of bank’s counsel conducting the trial it was ‘essential to the ends of justice’ that Mr. Eckert testify and he was called as a witness. If trial counsel was in error in his appraisal of what was ‘essential to the ends of justice’ then he is subject to criticism but we fail to see anything else involved. ’ ’
CONCLUSION
The participation of counsel and his partners in a case in which one of them is a witness is dealt with at length in Formal Opinion 220 of the American Bar Association’s “Opinions of the Committee on Professional Ethics.” As there pointed out, it puts counsel in the position of both advocate and witness, one of which requires the lawyer to be partisan and the other of which requires him to be factual. It thus robs the trial of that appearance of fairness which should characterize every court hearing. Morgan v. Roberts, 38 Ill. 65 (1865); Gajewski v. United States, 321 F. 2d 261 (1963).
Ark. Stat. Ann. § 28-702 (Repl. 1962) provides, “If either party requires it, the judge may exclude from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of the other witness.” In construing this statute, Arkansas Motor Coaches, Ltd. v. Williams, 196 Ark. 48, 116 S. W. 2d 585 (1938) and Oakes v. State, 135 Ark. 221, 205 S. W. 305 (1918), we have consistently held that it is within the discretion of the trial court to permit a lawyer to testify in a case even though the rule has been invoked. The above cases, however, do not show the situation that developed in this case. Here the record conclusively establishes that Mr. Eckert was one of only three key witnesses in this lawsuit from the beginning. Nor can we agree with appellee that it became necessary to the ends of justice during the trial for Mr. Eckert to testify. Rather, it appears that the bank took a calculated risk that Dr. Rushton could not make out a case.
Upon both grounds we hold that the trial court abused its discretion in permitting Mr. Eckert to testify, for Dr. Rushton’s whole lawsuit depended upon the credibility of the testimony of Dr. Rushton, T. A. Monroe and W. A. Eckert during the meetings held from December to February.
Usually chancery cases such as this are tried de novo in this court but in such instances we have the benefit of a complete record. Here it is obvious that the bank would like to have the testimony of Mr. Eckert. Furthermore, according to Dr. Rushton’s reply brief, he would like to have the opportunity to show that the bank lias taken Dr. Rushton’s position in a lawsuit against U. S. Fidelity & Guaranty Company in the U. S. District Court for the Eastern District of Arkansas, Western Division. Thus we find that we are in much the same position as that involved in Cline v. Miller, 239 Ark. 104, 387 S. W. 2d 609 (1965). Therefore, we are reversing and remanding the case for a complete new trial unprejudiced by any findings heretofore made.
Reversed and remanded.
ADDENDUM FORMAL OPINION 220
(July 12, 1941)
CANONS INTERPRETED: PROFESSIONAL ETHICS 6, 19
The opinion of the committee was stated by Mr. Drinker, Messrs. Miller, Phillips, Brown, and Jackson concurring, Mr. Houghton and Mr. Brand dissent.
A former member of this Committee has questioned the soundness of certain generalizations in our Opinions 33, 50, and 185 relating to the conduct by a lawyer of litigation in which one of his partners has been or may be a material witness, and has propounded to us the following specific questions:
A member of a law firm has represented a decedent in connection with a gift subject to federal gift tax, having drawn all the papers, calculated and paid the tax, and given an opinion to his client that the gift was proper and not made in contemplation of death. The lawyer also represented the decedent in connection with the drafting of his Will, and was expected by the decedent to represent his estate, which the Executor and the family of the decedent also desired.
After the client’s death, the attorney and his firm are retained to represent the estate. Subsequently, claim is made by the Federal Government that the gift was made in contemplation of death, and a tax is assessed. The attorney who represented the decedent is a necessary witness to defend the gift.
Is it unethical for his partner to continue to represent the estate in opposing the claim of the Federal Government?
In cases involving the question as to whether one member of a firm may represent a client in a case where his partner is a necessary witness, should a distinction be drawn between:
(a) Cases where the lawyer must take a position adverse to that supported by his partner as a witness, and cases where the lawyer supports his partner’s testimony?
(b) Cases in which the partner is required to testify in connection with matters concerning his professional duties, as distinguished from cases involving testimony relative to other matters?
Is not the problem involving participation by a lawyer in litigation where his partner is a necessary witness, one which should not be covered by a general rule of ethics, but by a more flexible provision such as would involve the addition to Canon 19 of the following paragraph!
“It is improper for an attorney to act as counsel in a matter as to which he or his partner has testified or will be required to testify, except by special permission of the tribunal in which he is to appear as counsel.”
Canon 19 provides as follows:
“When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.”
In Opinion 33 we held that where a law firm had represented an imbecile in procuring relief for her by reason of her imbecility, it was unethical for any member of the firm subsequently to accept employment involving the assertion that she was not an imbecile. We there said that
The relations of partners in a law firm are so close that the firm, and all the members thereof, are barred from accepting any employment, that any one member of the firm is prohibited from taking.
In Opinion 50, without stating the facts of the case before us, we referred to Court decisions condemning generally, as a breach of the rules of professional conduct, the acceptance of employment by a lawyer who knows that he will be a material witness for his client, or his testifying, where already, employed, “except in those rare cases where, from some unforeseen event occurring in the progress of a trial, his testimony becomes indispensable to prevent an injustice.”
We further said that, even though his zeal as a lawyer might not influence his testimony as a witness, the public might suspect that it would, — a situation which the lawyer should avoid. After referring to the principle of Opinion 33 that a lawyer is precluded from accepting or continuing in a case in which any of his partners could not properly be employed, we stated broadly that a lawyer may not properly accept a case in which he has reason to believe that he or any of his partners will be a material witness and must ordinarily withdraw if and when, in the course of the proceedings, such becomes apparent.
In Opinion 185 we held, referring to Opinions 33 and 50, that it was improper for a lawyer to accept employment in a case where it would be his duty to attack the essential testimony to be given by his partner on behalf of the other side.
On February 10, 1941, the Committee on Professional Guidance of the Philadelphia Bar Association rendered an opinion on facts substantially similar to those involved in the case now submitted to this Committee. The Philadelphia Committee discussed our Canon 19 and our Opinions 33, 50, and 185. While expressing high regard for our Opinions, the Philadelphia Committee declined to follow the statements in Opinion 50 whereby a lawyer is broadly precluded from accepting or continuing employment in a ease in which his partner has been or will be a material ydtness. The Philadelphia Committee agrees with the conclusions in our Opinions 33 and 185 that a lawyer may not assume or continue a position adverse 'to that for which his partner has been or will be a witness, and agrees that a lawyer should not himself conduct a litigation in which he himself must be a witness, unless the ends of justice clearly require it. The Philadelphia Committee constructs Canon 19 as not, on its face, precluding the “other counsel” from being a member of the partnership with which the witness is affiliated. It holds, however,
We are unable to agree with the reasoning which attaches any impropriety to the participation of a lawyer as a witness and his partner as trial counsel in a matter where the partners have represented the client from the outset and where they are not engaged upon opposing or conflicting sides of the controversy.
This committee is also of the opinion that the opposing counsel and trial judge should be advised as to the status of the partner as a witness.
The Philadelphia Committee further holds that, in cases in which a partner appears as a witness, it would be improper for the lawyer to conduct the case for a contingent fee.
With the decisions in Opinions 33 and 185, where the lawyer would have been required to attack his own testimony or that of his partner, we are still in entire aceord. To accept or continue such employment would necessarily place the lawyer in the inconsistent position condemned by Canon 6.
We are also in accord with the position that where a lawyer will necessarily be a material witness as to matters not relating to his professional duties, he should not, in the first instance, accept employment in the case.
The Committee as at present constituted is of opinion, however, that a distinction may often properly be drawn in cases where a partner’s testimony relates to matters occurring in the course of his professional duties, and also in cases where the lawyer has long and intimate familiarity with the details of the matter in litigation, so that his withdrawal will necessarily deprive his client of knowledge and experience of peculiar and irreplaceable value.
We therefore consider both unwarranted and unwise the broad generalizations in Opinions 33, 50 and 185 to the effect that a lawyer may never properly accept employment where his partner is likely to be a witness and that he must withdraw from a case when snch probability develops.
The question frequently arises in connection with cases like that here propounded. In such cases the lawyer for the decedent has prepared all the papers, knew the decedent, and knew exactly why he did what he did. His firm, however, naturally represents the decedent’s estate, which properly relies on them to sustain the gift. By reason of their knowledge of the decedent’s affairs they are peculiarly qualified to do so, and unless they can d#o so the estate will be deprived of their valuable services.
In such cases there does not appear to be any impropriety in the lawyer who drew the papers and knew the testator testifying to the facts surrounding the execution of the deed of gift, and in his partner representing the estate to sustain it. The possibility of the witness moulding his testimony in order to secure a higher fee for his firm is more than balanced by the injustice to the client of depriving the latter either of a necessary witness or of a specially qualified lawyer. The possible interest of the witness would merely affect his credibility. While it is true that such a situation might require the lawyer for the estate to argue the veracity of his partner, this would be equally the case where the witness was his friend or his near relation. Actually, if the partner of the witness withdrew from the case and asked one of his colleagues at the bar to take his place, the latter would be not less assiduous in standing up for the witness’ reputation as would the latter’s partner.
We do not construe the words “other counsel” in Canon 19 as necessarily excluding a partner of the lawyer who must become a witness.
In our opinion, therefore', it cannot properly be said in every case that a lawyer may not properly appear in a caso where his partner' could not: hut that each case should depend on its own facts.
Like many other problems arising in the course of professional employment, this involves questions of good taste as well as of ethics, its solution depending largely on the surrounding circumstances, in the light of which each case must be resolved, within the limits above outlined, by the lawyer, with, of course, full disclosure to opposing counsel and to the tribunal.
For brevity, we have used appellant’s abstract of Dr. Rush-ton’s and Mr. Monroe’s testimony on this point.
Formal Opinion 220 is attached hereto as an addendum. | [
54,
-8,
-8,
-100,
26,
-32,
62,
26,
75,
40,
-73,
83,
-23,
-36,
13,
109,
-9,
77,
-47,
97,
-11,
-121,
83,
97,
-62,
-78,
-39,
-59,
52,
122,
-12,
-35,
12,
56,
-54,
-43,
-90,
-64,
69,
84,
-50,
9,
41,
100,
93,
-60,
48,
42,
112,
11,
17,
-98,
-13,
46,
61,
78,
104,
46,
107,
56,
80,
-80,
-118,
76,
125,
21,
50,
5,
-104,
55,
120,
46,
-120,
48,
1,
-8,
122,
-74,
-126,
84,
99,
-67,
12,
34,
98,
-125,
125,
-17,
-120,
-104,
7,
79,
-113,
-58,
-110,
65,
-117,
45,
-73,
-98,
123,
24,
6,
-4,
110,
-59,
14,
44,
9,
-113,
-42,
-93,
-116,
-12,
-100,
27,
-13,
99,
52,
113,
-113,
-30,
93,
7,
121,
-69,
-114,
-11
] |
George Rose Smith, Justice.
James W. Dunlap, at his death in 1957, was a resident of Faulkner county, where Ms will was probated. Two-tbirds of bis estate, consisting of lands in WMte and Faulkner counties, was left to tbe appellant as trustee, with directions that he pay $150 a month to the appellee, Dunlap’s widow, during her lifetime, with remainder to other beneficiaries. The will provided that in the event of “unusual economic inflation, it is my desire that the Chancery Court shall have authority to adjust the amount of income. . . to he turned over monthly to Nina P. Dunlap.”
In 1967 Mrs. Dunlap filed this proceeding in the Faulkner Chancery Court, asserting that as a result of inflation her payments should he increased to $300 a month. The trustee, who resides in Lonoke county and was served with a summons in Pulaski county, questioned the venue and also defended the case on its merits. After a hearing the chancellor held (a) that he had jurisdiction, because Dunlap’s estate had been administered in Faulkner county, (b) that the payments should be increased to $200, and (c) that the trustee should file in the Faulkner Chancery Court proceeding a copy of the will and an inventory of the trust property and should thereafter submit annual accountings for the court’s approval. By direct appeal the trustee questions all three rulings; by cross appeal Mrs. Dunlap insists that her payments should be fixed at $300 a month.
(a) We do not agree with the chancellor’s conclusion that the venue was properly laid in Faulkner county. Yenue is governed by statute. This is not a local action within Ark. Stat. Ann. § 27-601 (Repl. 1962), because it does not involve the title to the trust realty. Nor is there any statutory basis for holding that merely because the trust was created by a will probated in the Faulkner Probate Court some ten years earlier, the Faulkner Chancery Court thereby inherited jurisdiction of tMs suit. The chancery court and the probate court are separate tribunals, each having its own jurisdiction. Ark. Const., Amendment 24; Lewis v. Smith, 198 Ark. 244, 129 S. W. 2d 229 (1939). Neither court derives its jurisdiction from the other.
If the testator had expressed a desire that the Faulkner Chancery Court should have authority to adjust the trust income, it might he said that the appellant agreed to that venue by accepting the appointment as trustee. But the testator referred merely to “the Chancery Court.” Some other chancery court might have proved to be the right forum — if, for example, all the interested persons were residents of another county. By elimination we conclude that this proceeding is a transitory action that should have been brought in the county where the defendant trustee resided or was summoned. Ark. Stat. Ann. § 27-613.
With respect, however, to this particular case, as distinguished from others that ,may arise later on, we agree with the appellee’s contention that the trustee waived his objection to the venue. He first appeared specially to file a motion to quash the service, which was overruled. He then filed an answer in which he attempted to preserve his special appearance. The trouble is that he included this request for affirmative relief: ‘ ‘ Defendant further pleads by way of his answer that his fees as trustee should be made current and the court should fix a reasonable attorney’s fee to be paid from the trust estate as costs in defending this action.”
In Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S. W. 2d 696 (1928), we explained why a demand for affirmative relief enters one’s appearance: “But one cannot come into court, assert a claim, ask the court for affirmative relief, and then, when there is an adverse judgment, claim that the court had no jurisdiction over his person. If this could be done, the appellant would have the opportunity and advantage of prosecuting its claim and, in case it recovered judgment, it could collect and at the same time take no chances of a judgment against itself.”
In that case we were referring to jurisdiction of the person, which is what is involved here. A defeat of venue goes to jurisdiction of the person and therefore may be waived. Gland-O-Lac Co. v. Greekmore, 280 Ark. 919, 327 S. W. 2d 558 (1959). That is manifestly the right view, there being no sound reason why a defendant should not be at liberty to enter his appearance and try the case in a county other than the one designated by the venue laws.
The point is not argued, but we have not overlooked the possibility that in some situations a defendant might, as a practical matter, be compelled to ask affirmative relief to avoid the risk of losing his rights under the statute that makes the assertion of a counterclaim mandatory. Ark. Stat. Ann. § 27-1121; Shrieves v. Yarbrough, 220 Ark. 256, 247 S. W. 2d 193 (1952). We do not reach that question here, because the trustee’s request that his fees be made current was not a proper counterclaim against the life beneficiary of the trust. Such a request involves primarily the trust property, as the beneficiaries are not personally liable for expenses of the trust. Restatement, Trusts (2d), § 249 (1959). The beneficiaries of the remainder interest in the trust should have been brought into the case if the trustee’s compensation was to be determined and paid from the trust assets. Hence, for want of all proper parties, the trustee’s failure to ask that his fees be fixed in this proceeding would not have precluded him from seeking that relief at a later date. It is therefore evident that the filing of the appellant’s request for affirmative relief was not mandatory under the counterclaim statute. (Even though the request was later withdrawn, it was effective as an entry of the trustee’s appearance.)
(b) The extent to which economic inflation called for an increase in the monthly payments to the testator’s widow was a question of fact in the court below. The trustee relied upon the Government’s cost-of-living figures to show that the increase had been only 18.1% since the testator’s death. The appellee’s proof would have supported much greater liberality in the award. Much of her testimony, however, went to show that, disregarding her other sources of income, she is unable to live on less than $300 a month. That is not the test, the issue being the extent to which economic inflation demands an increase in the monthly allowance. On conflicting proof we cannot say that the chancellor’s decision was against the weight of the evidence.
(c) The chancellor, on his own initiative, decided to supervise the administration of the trust from now on. Had the trustee requested such supervision of his stewardship, the court’s action would have been proper. Restatement, supra, % 260. But no such request was made. Judicial supervision of a trust unavoidably involves added expense in court costs and attorneys’ fees. In the absence of a direction by the creator of the trust that it be so supervised and of any peculiar facts suggesting the desirability of such judicial scrutiny, we are of the,opinion that the issue should not be raised by the court on its own motion, however desirable the court may think that course to be. True, the appellee now asks that the court’s directive be upheld, but she did not establish even a hint of misconduct on the trustee’s part that might call for an annual accounting’ in the chancery coiurt. We are of the opinion that the decree should be modified to delete the directive that in effect domesticates the trust in Faulkner county.
As so modified the decree is affirmed.
Fogleman AND Byed, JJ., dissent. | [
118,
-20,
-28,
124,
-38,
-16,
24,
-120,
82,
96,
37,
83,
105,
72,
21,
105,
-93,
11,
-27,
105,
-31,
-73,
7,
96,
-40,
-13,
-19,
-59,
-80,
-35,
-28,
-41,
76,
40,
74,
-35,
-57,
-28,
-57,
92,
30,
8,
73,
110,
89,
-63,
50,
103,
22,
11,
5,
-82,
-9,
-87,
57,
106,
104,
46,
121,
-86,
72,
-21,
-114,
4,
127,
5,
17,
71,
-110,
6,
72,
14,
-104,
21,
8,
-24,
59,
-90,
-126,
116,
103,
-103,
13,
-16,
98,
8,
-83,
-49,
-72,
-84,
7,
-74,
-99,
-90,
-58,
89,
98,
14,
-74,
-108,
124,
68,
7,
116,
-90,
68,
-36,
8,
41,
-50,
-42,
-127,
-124,
56,
-114,
19,
-13,
-49,
48,
113,
-51,
-94,
124,
71,
52,
-101,
7,
-7
] |
Gr. David Walker, Special Justice.
The issue in this case is the correct zoning classification of property situated at the Northeast Corner of the intersection of Kavanaugli and Oak Streets in Little Rock ¡which was formerly the homestead of two prominent Little Rock citizens, the late Mr. & Mrs. J. F. Loughborough. Appellants contend that the property is properly classified as “D”, Apartment, and appellee contends that the proper designation is “F”, Commercial.
At the outset it should be pointed out that this is not a rczoning case. All parties acknowledge that the original zoning of the property in question has not been legally changed. The question for determination is how the property was originally zoned.
The difficulty arises out of the manner in which the various classifications were depicted upon the “District Map” which was adopted in the original Zoning Ordinance of the City of Little Rock in 1937. The respective classifications were established only by being shown on this map in different colors, which were apparently placed on the map with an ordinary crayon. It would appear that the best judgment was not used in choosing the contrasting colors because, to some eyes at least, there appears to be a minimum of difference between the shadings of the different classifications. The passage of time has rendered this difference more difficult to distinguish.
On June 19, 1937, the original Zoning Ordinance of the City of Little Rock was published in the Arkansas Gazette together with a reproduction of the District Map. Since the colors could not be reproduced in the newspaper print, the zoning classifications were shown by cross hatching or different slantings of lines on the published map. On this published map the zoning of the property in question was shown as “D”, Apartment District.
In 1950 the City of Little Rock adopted Ordinance 8489 which recited:
“Whei;eas, the original Zoning Map of the City of Little Rock has become worn and unusable, and
“Whereas, the City has purchased three copies of the Bagley map of the City of Little Rock upon which the zoning of all property has been designated, which zoning has been verified by the Planning Commission,
* * * “The three copies of the Bagley map now owned by the City of Little Rock and upon which has been transcribed the present zoning of all property and land within the City of Little Rock are hereby approved and adopted as the official Zoning Map of the City.”
The Bagley map so adopted consists of two books in which various tracts or portions of the City are shown as separate sheets which can be removed or redrawn as zoning changes take place. The Bagley map showed the property in question as “F”, Commercial District.
In 1964 this property was placed upon the market and the appellee, Sunray DX Oil Company, became interested in purchasing it as a filling station site. It inquired of Mr. Henry M. DeNoble, Director of the Department of Community Development of the City of Little Rock, which is the department in charge of zoning matters, as to the correct classification of the property and on August 24, 1964, Mr. DeNoble wrote a letter to appellee advising that the property was zoned “F”, Commercial District. After receipt of this letter appel-lee immediately consummated purchase of the property.
Shortly thereafter appellee applied for a building-permit to commence construction of the proposed filling station. This application was denied on the sole ground that the property was zoned “D”, Apartment District, and use for filling station was prohibited. It is stipulated that the application for building permit was otherwise proper and the permit should have been issued if the property was classified “F”, Commercial District, being a proper use under that classification.
It appears that after his letter of August 24, 1964, Mr. DeNoble made some investigation of the matter and decided that the Bagley map was incorrect and thereupon undertook to revise the map to set forth his determination. This was done after appellee’s purchase and apparently without any knowledge of or notice to appellee. In oral argument it was admitted that Mr. De-Noble had authority to make such changes only in the event of action by the zoning authority and that his attempted revision of the map was unauthorized.
When the building permit was refused, appellee instituted the present suit praying a mandatory injunction directing the City and its agents to issue the building permit and restraining the City and its agents from interfering with appellee’s use for the property for the construction and maintenance of a filling station. Numerous property owners with residences in the vicinity of the property intervened in opposition to appellee’s petition. The Chancellor ruled in favor of appellee and issued the injunction as prayed. This appeal followed.
The Bagley map was never filed with the recorder of Pulaski County nor was there ever any notice or hearing of any change in the original classification of the property. These matters are immaterial, however, because appellee does not contend that the Ordinance of 1950 adopting the Bagley map was a change in the original zoning of the property. It is appellee’s contention that the property was always zoned “F”, Commercial and that the Bagley map and the Ordinance adopting it are merely a verification of that fact.
It is fundamental that the Chancellor ’s findings will not be set aside on appeal unless against the preponderance of the evidence, and it is incumbent upon ap pellants to establish that the findings of the lower Court were erroneous. High v. Bailey, 203 Ark. 461, 157 S. W. 2d 203; Woods v. Spann, 190 Ark. 1085, 82 S. W. 2d 850 and cases there cited. We are not convinced that the Chancellor’s findings were erroneous.
Appellants first argue that an inspection of the original District Map will reveal that the color designation of the Loughborough property corresponds with that of “D”, Apartment District. It may be observed that acuity of color vision is not one of the constitutional or statutory qualifications for a Supreme Court Justice. However, even among those members of the Court who profess accurate color perception there is a difference of opinion as to the interpretation of the faded colors of the original District Map. It might well be argued that in such a case we should not substitute our color vision for that of the Chancellor. -
Moreover, even if the colors presently are apparently those designated for “D”, Apartment, it does not follow that they were always such. A witness, Arthur Mills, a real estate man who was an Alderman in the City of Little Rock at the time of the passage of the Ordinance adopting the Bagley map as the official zoning map and who had served on the Planning Commission, testified that at the time the Bagley maps were adopted in 1950 he was familiar with the property in question and knew that it was designated “F”, Commercial, both on the original District Map and on the Bagley map. He had a business interest in the vicinity which impressed the matter on him. He was not contradicted or impeached.
The Bagley map, adopted by an Ordinance, which recites that the zoning therein reflected had been verified by the Planning Commission, is most persuasive that this was the classification set forth in the original Ordinance. In the view which we take of this case, it is not necessary to pass upon the argument advanced by appellee on this point to the effect that the findings so made are conclusive upon the Court but, to say the least, such findings are presumptively correct and highly persuasive on the Court. See 37 Am. Jur., Mvmoipal Corporations, Section 177, p. 812. The Ordinance of 1950 contained a finding that the original Ordinance, then thirteen years old, “has become worn and unusable” and further that the Bagley map “zoning has been verified by the Planning Commission”. It would not seem that the original map has become any more reliable in the seventeen years which have passed since it was found to be worn and unusable. Fortunately the Bagley map was prepared in such manner that the classification would not fade.
Appellants argue the map published in the Arkansas Gazette at the time of the adoption of the original Ordinance as evidence that the original map showed this to be “D”, Apartment property. In the first place the published map was not the original map but a copy of it and there is no showing by whom or by what authority the copy was made. Obviously there was an error either in this published copy or in the Bagley map. Three copies of the Bagley map were prepared and verified. It should be noted that the Loughborough property involved in this suit is a corner tract and was the only part of the block which was alleged to have been zoned as “F”, Commercial, the rest of the block being unquestionably “D”, Apartment. It would appear logical that it would be more likely that an error would be made in the preparation of the published map by failing to note the small tract which was classified “F” than in the three Bagley maps, which would have required a conscious addition of a small tract to a block otherwise entirely in the “D” class. To have made such a change on the Bagley maps required a deliberate act, whereas in the preparation of. the published map it would have been quite easy to have overlooked the small tract differently classified, particularly in view of the slight differentiation in coloring; hence, we believe it more likely that the Bagley map was the correct interpretation of the original map.
These views make it unnecessary to consider other points argued in able briefs of counsel.
The Decree of the Court below is correct and is affirmed.
Harris, O. J. and Jokes, J., dissent.
George Rose Smith, Ward and FoglemaN, JJ., not participating.
Special Justices Louis Ramsay and J. S. Brooks join in this opinion. | [
115,
-17,
-12,
110,
90,
72,
24,
-66,
67,
-127,
-91,
91,
111,
-50,
28,
101,
-93,
121,
85,
105,
-91,
-73,
83,
98,
114,
-45,
75,
69,
-72,
93,
100,
-122,
78,
32,
-54,
-11,
-58,
72,
-51,
30,
78,
-123,
11,
76,
-39,
65,
52,
43,
88,
7,
69,
-116,
-78,
45,
52,
-63,
45,
44,
-55,
45,
80,
-6,
-120,
-99,
127,
7,
1,
100,
-102,
-123,
114,
8,
-112,
113,
0,
-88,
115,
-90,
-106,
124,
5,
-101,
9,
32,
98,
10,
9,
-1,
-16,
9,
6,
-66,
-115,
-90,
-110,
25,
75,
10,
-97,
-107,
125,
64,
70,
-2,
119,
-59,
27,
108,
-115,
-18,
-44,
-79,
-25,
56,
0,
3,
-21,
71,
-80,
112,
-53,
-94,
-4,
98,
18,
-101,
-122,
-48
] |
Conley Byrd, Justice..
This appeal by Harry A. Bel-ford puts before us the issues of the permanency of the injuries of appellee Brenda Humphrey and the exces-siveness of the $78,000 jury verdict in her favor. The litigation stems from an automobile collision in which Belford’s vehicle struck the rear of appellee’s “Thunderbird” with such force that both sides were “bucked out” and the left front seat was broken.
Following the collision on June 3, 1965, appellee, age 25, was hospitalized under the care of Dr. H. G. Lanford until June 10, 1965. During hospitalization she was treated for a whiplash injury of her cervical spine. Her treatment consisted of cervical traction, muscle relaxants and medication for pain. She was removed from Crittenden Memorial Hospital in West Memphis, Arkansas, to her home in McCrory by ambulance.
The day following her return from'the hospital the pain was so unbearable that she screamed when her bed was moved. A local doctor was called about 3:00 to 4:00 a.m., who gave her a shot to relieve the pain. The pain continued to such an extent that she was returned to the hospital on June 17, 1965, where she again was put in traction and given muscle relaxants and pain medicine. She was discharged on July 1, 1965. At the time of her August 26, 1965, visit to the doctor, she was unable to return to work. Dr. Lanford testified that at that time she had a severe whiplash injury and he did not know what would be the outcome. For eight to ten months thereafter she slept in traction. Exercise and weight lifting were subsequently prescribed. At the time of trial on January 30, 1967, appellee still complained of pain when she bent her neck forward as one does when ironing and typing, she was still on muscle relaxants, and had an appointment with her doctor some two weeks hence. Hospital 'and medicaH>ills had accumulated in excess of $1,426.63 and were still accruing.
Testimony showed that appellee had been self-sustaining from her high school graduation in 1959 to the date of the accident. At that time she had been working at the General Electric plant in Memphis, Tennessee, where she earned in excess of $300 per month. Her job had required the bending of her neck to look down while testing light bulbs. iShe was in touch with General Electric for a year after the accident before they mailed .her her separation papers.
"When the doctor advised appellee that she could try to work, some three months before trial, she applied for employment ait the Little Stock employment office, Timex, the Little Rock Police Department as a meter maid, the Newport Telephone Company, and the Augusta Corporation. Each time application was made she was asked to state why she had left her last job and to give her physical history. By trial date, she had been unable to obtain employment although she understood she was first up for the next available meter maid job with the Little Rock Police Department at a monthly salary of $235.
Prior to the accident appellee enjoyed 'bowling, but this she cannot do any more. She also liked to hunt and fish, but is unable to do this without pain.
Dr. H. G. Lanford testified that appellee had had pain during the entire course of her treatment. This he based on both subjective and objective symptoms, so that he did not rely solely upon her credibility to determine that she had pain. Her first real improvement was in November 1966 and resulted from exercises de signed- to strengthen her neck muscles. Dr. Lanford testified that he had examined her in January 1967 before the trial and that she had suffered a personality change; also, that with the history of her injury and the long recovery period involved, she would have difficulty in finding employment anywhere a physical examination was given. On cross examination he stated emphatically that she would have prolonged pain for several hours when she held her head forward for any period of time. The doctor believed appellee incapable of any work involving the bending of her neck forward or backward.
Appellant introduced evidence to the contrary, but because review of a jury finding is limited to the substantial evidence rule, we have stated the facts in the light most favorable to appellee.
The issue of permanency arises through an objection to the instructions on the issue of damages, the mortality table and present value. Appellant points to our cases such as St. Louis, I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S. W. 104 (1913). and Midwest Bus Lines v. Williams, 243 Ark. 854, 422 S. W. 2d 869 (1968), and argues that the issue of permanency should not have been submitted to the jury in the absence of expert medical testimony that the injuries were permanent to a reasonable degree of certainty.
Appellee argues that the injury here was such that a permissible inference of permanency was demonstrated by the evidence. See Missouri Pac. Transp. Co. v. Mitchell, 199 Ark. 1045, 137 S. W. 2d 242 (1940), and Bailey v. Bradford, 244 Ark. 8, 423 S. W. 2d 565 (1968).
Where the injury is only subjective in character and of such a nature that laymen cannot with reasonable certainty know whether there will be future pain and suffering, it is obvious the courts must demand expert opinion testimony. On the other hand, when the injury is objective in nature, such as when a limb is severed, it is obvious that expert opinion testimony is not a prerequisite to submission of the issue of permanency to the jury. See 31 A.tp. Jur. 2d, Expert and Opinion Evidence, § 119. Between the two' extremes are gray areas in which the issue of permanency becomes a matter of judgment.
Here the injuries had persisted for some twenty months; appellee had suffered a personality change; she was unable to perform certain movements without pain; she will have difficulty obtaining employment where a physical examination is required; and she was still taking eight muscle relaxant pills per day at time of trial. After reviewing the record, we are unable to say that it was error to submit the issue of permanency to the jury.
Appellant also complains of error in submitting to the jury the issues of diminished earning capacity in the future and future medical expenses. We hold these contentions to be without merit. The record shows that appellee had sought employment before the trial date and that if she had been able to find employment within her capabilities, the remuneration would not have been equal to her income at the time of her injury. Regarding future medical expense, appellee was and had been continuously under the doctor’s treatment — in fact she had an appointment with him two weeks following the trial. Since the jury had before it the medical expenses that had accrued, it would not have been pure speculation for the jury to calculate the future expense upon the history of the expense to the date of trial.
Appellant filed two motions for new trial. The first, in addition to the issues above discussed, raised the issue of excessiveness of the verdict. The second alleged that subsequent to the trial appellee, on March 1, 1967, went to work as a meter maid at the monthly rate of $235, and that she had not missed any work up to and including July 4, 1967. Except for the excessiveness of the verdict, hereinafter discussed, we hold that the trial court did not abuse its discretion in overruling tbe motions for new trial.
On tbe excessive verdict issue, the record shows special damages in the nature of medical expense and lost wages in excess of $8,000. In addition appellee suffered the injuries heretofore set forth. After reviewing the record in detail, we are unable to find sufficient evidence to sustain a verdict in excess of $58,000. If appellee will enter a remittitur for $20,000 within seventeen juridical days, the judgment will be affirmed. Otherwise it will be reversed and remanded for new trial.
BrowN, Fogleman and Jones, JJ., dissent. | [
80,
-23,
-75,
-84,
27,
99,
2,
26,
115,
-125,
53,
83,
-81,
-51,
77,
41,
-89,
47,
-27,
111,
-39,
51,
87,
57,
-45,
-13,
107,
69,
-109,
74,
-12,
-11,
77,
48,
-118,
69,
-26,
-54,
-51,
90,
-52,
-112,
-7,
-20,
89,
-110,
56,
127,
-44,
7,
113,
-97,
-57,
46,
24,
71,
109,
40,
107,
41,
-64,
96,
-118,
5,
-49,
6,
33,
-124,
-98,
-89,
-4,
14,
-104,
49,
32,
-8,
112,
-10,
-126,
84,
97,
-119,
4,
96,
98,
36,
13,
-11,
-8,
-72,
14,
-66,
-115,
-122,
43,
17,
83,
1,
-65,
-99,
122,
84,
29,
124,
-8,
69,
92,
40,
-125,
-49,
-106,
-79,
79,
32,
-98,
18,
-25,
45,
50,
81,
-50,
-14,
92,
69,
123,
-101,
83,
-102
] |
Paul Ward, Justice.
In this litigation Edward Turn- ©r, appellee, sought to collect damages to his truck allegedly caused by the negligence of an employee while servicing it at a filling station. The managers of the station were Bobby Jones and Larry Stafford, and Webster Henton was the employee — all appellants here.
In his complaint appellee alleged that he took his truck to the station to be serviced; that it was necessary for Henton to remove the plug from the oil pan, and that he negligently failed to properly replace the same; that a few days later, while driving the truck, the plug fell out, and allowed the oil to drain, and; that, consequently, the truck was damaged in the amount of $750. In their answer appellants denied the allegations of negligence and the extent of the damages.
The case was tried before the judge, sitting as a jury. At the close of appellee’s testimony appellants moved for a dismissal of the plaintiff’s case for the reason that any judgment would be based on speculation. The motion was denied, and then each of the appellants took the stand and testified. At the close of all the testimony the judge (as a jury) found in favor of appellee, and fixed the damages at $651.55.
On appeal appellants contend the judge erred in three respects. One, in refusing to grant the motion to dismiss; Two, in admitting expert testimony from a non-expert witness, and; Three, in failing to require ap-pellee to meet the burden of proof.
One. The trial court was correct in refusing to dismiss at the close of appellee’s testimony. When appellants’ Motion was denied, they all took the stand and testified. By doing so they waived any alleged error. In Grooms v. Neff Harness Company, 79 Ark. 401, 96 S. W. 135, this Court said:
“The defendant may, however, at the close of the plaintiff’s evidence, test its legal sufficiency by a request for a peremptory instruction in his favor. If, after a denial of the request, he introduces evidence which, together with that introduced by the plaintiff, is legally sufficient to sustain the verdict, he waives the error of the court in refusing to give the instruction.”
The Grooms case was cited with approval in Fort Smith Cotton Oil Co. v. Swift & Co., 197 Ark. 594 (p. 598), 124 S. W. 2d 1.
Two. It is here contended by appellants that the trial court erred in considering the testimony of B. F. Willingham, a witness for appellee who had approximately 39 years experience as an auto mechanic, and who was familiar with this particular truck. He was familiar with the oil pans and the plugs on similar trucks. It was his opinion that the plug came out of the oil pan in this instance because it “just wasn’t properly tightened”. Q. “Do you have an opinion that one can come out under any circumstances”? A. “I have. Let me say that if the plug was properly tightened at the time he changed oil, it would have stayed there forever.”
It is our conclusion that the court had a right to consider this testimony. In Lee v. Crittenden County, 216 Ark. 480 (p. 485) 226 S. W. 2d 79, this question arose out of what caused a temporary structure to fall. There, this Court said:
“From the above, we hold that the court did not abuse its sound discretion in permitting witness Goodwin to testify and express his opinion or expert judgment, in the circumstances, for the reason that he had shown himself to possess sufficient qualifications and information to qualify him to state an inference or give his expert judgment.”
To the same effect see Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684 and Ratton v. Busby, 230 Ark. 667, 326 S. W. 2d 889.
Three. In onr opinion the record contains substantial evidence to support the judgment of the trial court, sitting as a jury. Except for the testimony of Willing-ham referred to above, appellants do not challenge other testimony on behalf of appellee. This “other” testimony was to the effect that no on© touched the “plug” after it was inserted by Henton.
Cross-Appeal. We find no merit in appellee’s contention that the trial court erred in fixing the damages at $651.55 instead of $750 — the amount asked for in his complaint. Willingham who was appellee’s own witness, upon recall, stated to the court that the damages amounted to $651.55. This testimony was not denied and we think it constitutes substantial evidence to support the finding of the judge — sitting as a jury.
Therefore, the case is affirmed on direct and cross-appeal.
Byrd, J., concurs. | [
-16,
-20,
-24,
-115,
8,
-31,
82,
26,
69,
-93,
117,
83,
-27,
-38,
12,
103,
-18,
29,
117,
43,
-41,
-77,
3,
114,
-62,
-77,
-7,
69,
-75,
75,
-12,
-42,
72,
112,
-54,
-43,
38,
64,
-59,
92,
-50,
-92,
-87,
108,
-39,
-118,
48,
96,
6,
71,
49,
-84,
-29,
46,
25,
-57,
105,
44,
127,
56,
-63,
112,
-54,
5,
127,
0,
-79,
36,
-98,
1,
120,
62,
-112,
49,
56,
-8,
58,
-90,
-125,
-12,
41,
-69,
8,
38,
99,
34,
9,
-51,
124,
-88,
15,
-98,
15,
-92,
-14,
105,
75,
43,
-74,
-99,
114,
22,
12,
-2,
123,
21,
92,
108,
3,
-50,
-108,
-127,
13,
32,
-100,
27,
-17,
-121,
20,
117,
-51,
-30,
92,
71,
22,
-97,
-57,
-78
] |
Conley Byrd, Justice.
Occidental Life Insurance Company of California appeals from a verdict upon its disability policy in favor of appellee Jules Vervack. The points relied upon for reversal are:
I. The plaintiff failed to establish total disability in that his doctor never said that he was totally disabled, only that he could not work full time, and the plaintiff simply concluded that he was unemployable on less than full time without supporting facts or basis of any kind.
II. Plaintiff elected to act contrary to doctor’s advice that he could return to work part time, could bowl, fish, hunt, and generally carry on usual activities, refraining from strenuous work or emotional upset, and was not necessarily confined within the meaning of the policy.
III. Instruction No. 6 told the jury that certain events would not prevent a recovery, and authorized the jury to find for plaintiff, without requiring the jury to find either total disability or confinement.
IY. The court erred in giving Instruction No. 5A.
The record shows that Occidental had issued to Yer-vack its disability policy containing both a TOTAL DISABILITY AND NON-CONFINEMENT clause and a TOTAL DISABILITY AND CONFINEMENT clause. The non-confinement clause, referred to as section A, provides:
“A. If such sickness shall wholly, necessarily and continuously disable and prevent the Insured from performing each and every duty pertaining to his occupation, the Company shall continue to pay the monthly sickness indemnity for a period, not exceeding twelve consecutive months, the Insured shall be so disabled and necessarily under the regular care and attendance of a legally qualified physician or surgeon other than himself. No indemnity shall be payable under this Part for the first seven days of any period of disability. ’ ’ The total disability and confinement clause, section B in the policy, provides:
“B. If such sickness shall continue beyond the period of twelve consecutive months specified in Section A of this Part and shall wholly, necessarily and continuously disable and prevent the Insured from performing each and every duty pertaining to his occupation, the Company shall continue to pay the monthly sickness indemnity for the period the Insured shall live and be so disabled and necessarily and continuously confined within the house and therein regularly visited and attended by a legally qualified physician or surgeon other than himself.”
Yervack’s first heart attack occurred on April 23, 1965. Following this he operated his taxicab until a second heart attack on November 12, 1965. Occidental paid the benefits under the TOTAL DISABILITY AND NON-CONFINEMENT clause but refused to make payments on the TOTAL DISABILITY AND CONFINE MENT clause because it denied that Vervack was “so disabled and necessarily and continuously confined within the house and therein regularly visited and attended by a legally qualified physician or surgeon other than himself. ’ ’
I and II
Dr. Robert J. Thompson testified that Mr. Vervack had arteriosclerotic heart disease, a hardening of the arteries with coronary insufficiency, which meant that his coronary arteries were incapable of carrying an adequate amount of blood to the heart muscle to allow him to do what would be considered normal physical activity. He stated that Vervack had a serious form of heart disease and it was necessary that he see a doctor once a month for the rest of his life. Vervack also, was going to the hospital every three weeks to have the clotting ability of his blood tested. When questioned about activities or exercises recommended, the doctor stated:
“A. Yes, we have recommended — this has to be more or less on a trial and error basis because there is no way of knowing from an original injury or heart attack how much exercise an individual will tolerate following a heart attack, so we have recommended that they take exercise or Mr. Vervack take exercise up to the point of tolerance, that is, to where he does not have pain. We feel that walks, up to the point of tolerance, are quite important as far as therapy for this type heart disease.”
After pointing out that the patient determines the tolerance, Dr. Thompson stated that he did not believe Mr. Vervack’s failure to work indicated any type of malingering. His reason was the precipitation of episodes of angina with such things as emotional upsets, taking a shower, etc.
Jules Vervack stated that he had attacks of angina if he stayed out of bed too long, that he could not stay up over three or four hours without chest pains, that if he walked too far he would develop angina pains and have to stop and rest, that he got short of breath quickly and that he could not work ten minutes without having to quit. He tested his exertion tolerance in his walks and in playing around the yard with the dogs, and found that he had to go sit down in ten or fifteen minutes. He had been driving his car for the last ten or twelve months to the doctor’s office, on his wife’s errands to the beauty shop and things of that nature, but when he went shopping with his wife he avoided any exertion such as pushing a loaded basket or reaching up and getting groceries off the shelf. He went to three high school football games in 1966 and two in 1967, and sometimes to the movies.
Mrs. Vervaek testified that her .husband’s angina attacks were very frequent, and that they were sometimes brought on by activities and other times occurred during his sleep. She stated that he sometimes got very weak in the shower and that they used a lawn chair in the shower so he could sit down and bathe.
We conclude that there was sufficient evidence to submit to the jury the question of Mr. Yervack’s total disability and confinement within the meaning of the policy.
Appellant argues that Yervack acted contrary to the doctor’s advice in failing to work, bowl, hunt or fish. However, as we understand the doctor’s testimony, the question relative to the patient’s tolerance was a fact issue.
Ill
Instruction No. 6 of which appellant complains reads as follows:
“Under the law, ‘continuously confined within the house ’ as contained in this policy does not mean literally that the plaintiff must remain continuously in his house in order to recover.
“You are instructed that if you find from a preponderance of the evidence and all of the instructions of the court that the plaintiff, Jules Vervack, was advised by a reputable physician or physicians, that it was to the best interest of his health, both mental and physical, and particularly to the best interest of the treatment of the diséase from which he suffered, that he take a reasonable amount of exercise, subject himself to fresh arr and sunshine, and engage in non-strenuous activities on a limited and reasonable basis, and you further find that he did take exercises and engage in activities in reliance on the advice of his physician or physicians, then the court tells you that even though he may have occasionally performed said events, these events would not prevent you from finding that the plaintiff was totally disabled, necessarily and continuously confined within the house and therein regularly visited and attended by a legally qualified physician or surgeon other than himself, and your verdict may be for the plaintiff.” (Emphasis supplied.)
We do not agree with appellant that this instruction is inherently erroneous. The same, or a similar, instruction has been given and approved in Mutual Benefit Health & Accident Ass’n. v. Murphy, 209 Ark. 945, 193 S. W. 2d 305 (1946), and Mutual Benefit Health & Accident Ass’n v. Rowell, 236 Ark. 771, 368 S. W. 2d 272 (1963). We are therefore unwilling to say that the trial court erred in giving this instruction under the issues of this case. Appellant’s argument that the instruction amounts to a comment on the evidence, while not persuasive enough to reverse our prior cases, leads us to suggest that in the future the italicized portion thereof be omitted.
When the instructions are read as a whole, we think the issues relative to total disability and confinement within the terms of the policy were adequately submitted to the jury.
IV
The Instruction No. 5A of which appellant complains reads:
“Under the law ‘regularly visited therein (within the House) and attended by a legally qualified physician or surgeon other than himself’ as contained in this policy does not mean literally that the doctor must visit or attend the plaintiff at his house, hut only that he he under regular treatment at whatever place the doctor directs.”
We find no error in this instruction. Appellant readily concedes that it was given and approved in Colorado Life Co. v. Steele, 101 F. 2d 448 (8th Cir. 1939). The text writers are in general agreement. See 15 Couch, Insurance, § 53:158 (2d ed. 1966).
This is a liberal interpretation of the house confinement clause in appellant’s policy, hut in this we are not alone. According to the annotation in 29 A. L. R. 2d 1408, the great majority of the courts follow the construction here given.
Affirmed. | [
16,
-4,
-43,
31,
25,
-96,
58,
18,
80,
-118,
39,
81,
-21,
-41,
-107,
59,
-13,
111,
101,
107,
-41,
-93,
23,
10,
-14,
-41,
19,
-123,
-79,
111,
-28,
-43,
77,
56,
-126,
81,
-58,
73,
-59,
28,
-56,
4,
-120,
105,
25,
20,
48,
60,
80,
75,
49,
-114,
-61,
38,
31,
79,
44,
40,
90,
-79,
-64,
-16,
-21,
13,
-21,
17,
-95,
5,
-100,
103,
-48,
22,
-102,
-79,
0,
-24,
50,
54,
-58,
52,
98,
-103,
-124,
102,
99,
-96,
17,
119,
-32,
-104,
62,
-34,
15,
-123,
-77,
16,
75,
68,
-74,
-99,
86,
12,
14,
120,
-20,
-36,
28,
108,
3,
-97,
-106,
-77,
-51,
-32,
-68,
-125,
-1,
3,
53,
113,
-54,
-8,
92,
65,
123,
-97,
-2,
-102
] |
Paul Ward, Justice.
This is a Workmen’s Compensation casev The Commission adjudged Hershel Abbott (appellant) to have received a 30% permanent- disability to his body as a whole. On appeal to circuit court the award was reduced to 20%, hence this appeal. The case arose out of the facts presently mentioned.
On November 4, 1964 appellant suffered a com-pensable injury while in the employment of C. H. Leav-ell & Company (appellee). While working with a piece of construction machinery it came in contact with a power line, causing injury to his back and left foot. Appellee paid medical and disability benefits until a hearing was held.
Seeking a reversal of the circuit court, appellant makes only one contention, viz:
‘ ‘ There is substantial evidence to support the award of the Workmen’s Compensation Commission.”
It is conceded of course that the word “evidence”, as used above, means evidence or testimony which the Commission had a right to consider.
It must also be conceded that, if appellant is correct, the trial court erred in reducing the percentage of disability. In Arkansas Workmen’s Compensation v. Sandy, 217 Ark. 821 (p. 826), 233 S. W. 2d 382, there appears this statement:
“On tli© whole case, there is substantial evidence to support the Commission’s finding of fact, and the Circuit Court erred in setting aside the order of the Commission.”
In the recent case of Bradley County et al v. Samuel Adams, 243 Ark. 487, 420 S. W. 2d 900, the rule was emphasized in these words:
“We have held, in cases too numerous to mention, that it is not our province to decide contested issues of fact in compensation cases, that it is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, and that the Commission’s findings have the force of a jury verdict.”
Therefore we now proceed to examine the testimony relative to appellant’s disability.
Appellant was employed by appellee for one year and three days before he was injured. His principal duties were to drive a motor crane, grease it, and look after an air compressor. His pay was $2,675 per hour. After being hospitalized and treated he returned to work for two months before the job ivas finished, and his employment was terminated. Shortly thereafter he found a similar job with the Continental Engineering Co., and is now receiving $2.80 per hour. It is not disputed that appellant received an injury to liis back and to the lower part of his left leg and particularly to his left foot,- necessitating the amputation of the big toe and the toe next to it. He is now wearing a special shoe on the injured foot.
Five doctors examined appellant, and their testimony was presented to the Commission. Since there is no contention here that appellant is not entitled to an award of 20% and since the sole issue here is whether there is substantial evidence to support the Commis sion’s award of 30%, we set out only the results of the doctors’ findings. One doctor fixed appellant’s permanent partial disability at 5%, one at 35% and the others ranged from 10% to 17%.
We first point out that appellee correctly (at page 5 of its brief) agrees that the above percentages fixed by the doctors “were made on the basis of physical impairments only and did not purport to consider claimant’s wage loss disability”, although they made it clear he should be able to return to gainful employment in his former occupation.
After all the testimony had been presented the Commission made the following findings:
“The preponderance of the medical evidence is that the claimant’s anatomical impairment is in the neighborhood of 15 to 18 percent to the body as a whole.” (Emphasis supplied.)
“Based upon the entire record, the Commission concludes that claimant’s wage earning capacity has, nevertheless, been diminished and that by combining claimant’s anatomical impairment and hi3 probable loss in wage earning capacity, his permanent partial disability to the body as a whole is 30 percent.” (Emphasis supplied.)
It is our conclusion that the record contains testimony which the Commission had a right to consider and which constitutes substantial evidence to support its finding of a 30% disability. Portions of that testimony are mentioned and discussed below.
(a) Attention is called to the fact that one doctor evaluated appellant’s disability at 35 %. Certainly it must be conceded that medical evaluation is not an exact science, with no chance for error. This case demonstrates the verity of that conclusion, since no two doctors agreed on the percentage. It is also verified by nearly every case of this kind which reaches this Court. Who then, other than the Commission, has the duty of evaluating such testimony, who is in a better position to do so, and on whom do the statutes impose that responsibility? The answer is too obvious for comment. True, the appellate courts have the last say, as a matter of law, what constitutes “substantial” evidence.
(b) This Court has many times held that certain testimony, other than medical, can be considered in this kind of case. See: Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685; Wilson & Co., Inc. v. Christman, 244 Ark. 132, 424 S. W. 2d 863; Ark. Best Freight v. Brooks, 244 Ark. 191, 424 S. W. 2d 377, and; Jones Furniture Mfg. Co. v. Evans, 244 Ark. 242, 424 S. W. 2d 880. In the Glass case, in construing Ark. Stats. Ann. § 81-1313 ,(d), (Repl. 1960), we said it “. . . does not mean merely functional disability but includes, in varying degrees in each instance, loss of use of the body to earn substantial wages”. In that case we also said it was error to consider only medical evidence, but that the Commission should also consider the claimant’s “age, experience, education, and other matters affecting wage loss”. The Wilson case approved the Glass decision, and; there, we also said that the Commission has never been limited to medical evidence only in arriving at permanent partial disability of a claimant, but that it should consider all competent evidence relating to his incapacity to earn the same wages he was receiving at the time of his injury.
Appellee’s contentions for an affirmance of the circuit court, as we understand them, are: one, the Commission could consider only the medical testimony; two, the undisputed proof shows appellant was, at the time )f the hearing, receiving 12% cents per hour more than he was receiving before the injury. For reasons previously stated, we find no merit in the first contention, and, for reasons presently stated, we find no merit in the other contention.
Appellee’s contention here is largely, if not entirely, based on Ark. Stat. Ann. § 81-1302 (e) (Repl. 1960) which reads:
“ ‘Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.” (Emphasis supplied.)
We do not, for two reasons, agree with appellee’s interpretation of the above section, as applied to the facts in this case.
(1) Construing the above statute in the light most favorable to appellant, as we must, it is emphasized: because appellant is making as much money now as he did before does not necessarily mean he has the “capacity” to earn that much. There is undisputed evidence from which the 'Commission could well have found, as it did, that appellant did not have such “capacity”. One, before the injury appellant was a “driver” and an “oiler”, whereas now he can no longer function as a “driver”. Two, his present job is that of an “oiler” but he cannot do that job without assistance from his fellow workers.
There is another feature of this case which appellee apparently would exclude but which we think the Commission had a right to consider. It is the position of ap-. pellee that the requirement of the statute is met if appellant is now making as much money as he did before without any regard for how long he will be able to do so. We think this is a too narrow construction, and would place a great handicap on a claimant. The testimony shows that he has become exceedingly emotional and is in continuous fear of losing his job. Whereas he was a strong, healthy man before and never showed any emotionality, now he cries almost every day when he reaches home, and, at the least provocation, he often cries on the job.
We think the Commission had a right to consider all this evidence, and that it constitutes substantial evidence.
Reversed.
Harris, C. J., disqualified.
BrowN & FoglemaN, JJ., concur. | [
84,
-24,
-11,
-67,
10,
-31,
90,
-118,
65,
-122,
39,
123,
-17,
-41,
17,
39,
-19,
61,
81,
43,
-36,
-77,
19,
75,
-30,
-73,
123,
-41,
-79,
107,
-26,
-108,
79,
56,
-62,
-47,
-26,
72,
-27,
16,
-54,
-114,
-85,
111,
121,
-108,
56,
46,
-42,
79,
17,
-98,
-69,
42,
24,
-61,
45,
46,
91,
58,
80,
-32,
-118,
13,
-51,
17,
-79,
4,
-100,
99,
-40,
62,
-104,
49,
0,
-4,
114,
-74,
-62,
52,
107,
-103,
12,
98,
99,
18,
16,
-11,
-24,
-72,
31,
-90,
-99,
-92,
-110,
120,
10,
11,
-105,
-99,
122,
4,
14,
126,
-10,
69,
92,
100,
3,
-121,
-74,
-79,
77,
100,
-106,
-118,
-21,
-119,
-110,
117,
-52,
-78,
92,
71,
83,
-101,
54,
-102
] |
Paul Ward, Justice.
This is an appeal by Marion Bobo (appellant) from a chancery decree denying him a lien for material and labor under the provisions of Ark. Stat. Ann. §§ 50-601 et seq. (1947). The factual situation out of which this litigation arises, and about Avhich there is no dispute, is summarized below.
FACTS. In February, 1966 Mr. G. C. Sebree, his wife and her mother (appellees) contracted with A. F. Kelley to construct a dwelling on a parcel of land owned by them and located in Spring Lake Addition south of Pine Bluff. To finance the project, appellees borrowed $20,41.4 from a savings and loan association. Appellant, as a subcontractor, furnished and installed 178 yards of carpeting in the dwelling for which he charged $1,613.15.
Before construction was completed Kelley encountered financial difficulties which caused certain materi-almen to file a suit on November 4, 1966 to perfect liens on the property. On December 9, 1966 appellant filed an Intervention which contained, in substance, the following allegations:
(a) On July 25, 1966 he sold to appellees and Kelley the carpeting as stated above.
(;b) The carpeting was used in the dwelling on ap-pellees’ property (described in detail).
(c) On October 5, 1966 notice was given to appel-lees that a lien would be filed against the property on or after October 15, 1966.
(d) On October 20, 1966 said lien was filed in the office of the Circuit Clerk in Jefferson County.
(e) Appellees are indebted to him in the amount of $1,613.15 which is a first lien on said property.
The prayer was for judgment and a lien.
Appellees, in answer to above Intervention, stated that appellant had not substantially complied with the statutory requirements for perfecting his lien.
After a hearing, based on testimony and exhibits, the trial court, in a written statement, found: “In view of the fact that the materialmen’s lien law is in derogation of the common law, it must be strictly construed. See Dix v. Olds, 242 Ark. 850, 415 S. W. 2d 567.” Accordingly the court held that appellant was entitled to a judgment against Kelley for the amount prayed, but that such judgment did not constitute a lien on the property of appellees. The reason given by the court for said holding was that the Notice “did not state from whom the same (the amount) is due.”
On appeal appellant contends that the trial court erred in holding that the “Notice of claim” did not substantially comply with Ark. Stat. Ann. § 51-608 (1947). For reasons hereafter stated, we agree with appellant.
Section 51-608, in all parts material here, reads:
“Every person, except the original contractor, who may wish to avail himself of the benefit of the provisions of this act . . . shall give ten days’ notice before the filing of the lien, as herein required, to the owner, owners or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount and from whom the same is due.”
We now examine the “Notice” to determine if it did in fact constitute a compliance with the above statute. We are here concerned with only two items; (a) the amount due appellant and (b) who owed the amount to appellant. The Notice began with “Marion Bobo . . . claimant and sub-contractor” and was direct to appel-lees (naming them) as property owners, and to A. F. Kelley as the contractor, and was, in form and substance, as follows:
Notice is hereby given: that appellant has a claim against the following property (describing appel-lees’ property) to secure the amount of $1,613.15 for furnishing and installing said carpeting.
The Notice was signed by appellant’s attorney.
Item (a), the amount claimed, presents no problem since the trial court, in the written opinion, specifically found that the Notice “stated the amount of the claim”.
(b) In considering the issue here presented, we should first determine whether the lien section involved must be strictly construed or whether it should be liberally construed. It is our conclusion that, in this case, the section should be liberally construed to effect its purpose.
There are many decisions by this Court wherein it was stated that the lien statute should be strictly construed and there are many decisions where we said it should be liberally construed. Among the first classifications are: Flournoy v. Shelton & Co., et al, 43 Ark. 168; Van Etten v. Cook. 54 Ark. 522, 16 S. W. 477; St. Louis Iron Mountain & Southern Ry. Co. v. Love, 74 Ark. 528, 86 S. W. 395, and the recent case of Dix v. Olds, 242 Ark. 850, 415 S. W. 2d 567 relied on, apparently, by the trial court. Among the cases which applied to the liberal construction rule or hold a substantial compliance with the statute is sufficient, are: Anderson v. Seamans, 49 Ark. 475, 5 S. W. 799; Buckley v. Taylor, 51 Ark. 302, 11 S. W. 281; Speer Hardware Co. v. Bruce, 105 Ark. 146, 150 S. W. 403; Bruce Brown, v. Turnage Hardware, Inc., 181 Ark. 606, 26 S. W. 2d 1114; and, Geisreiter v. Standard Lbr. Co., 187 Ark. 893, 63 S. W. 2d 347.
The above apparent conflicts., in the decisions are not as real as they appear. Briefly stated, it appears from the noted opinions, that the strict construction applies where there is a doubt as to whether the subject matter comes within the purview of the statute. For example, in the Dix case, supra, the claimant sought a “lien on all the lands . . . and improvements described in the bill of assurance” for work performed “on a street or roadway surfacing contract”. There we properly applied the strict const ruction rule, and denied the lien. This Rule is very well stated in 18 R. C. L., at page 879, in these words “. . . . though a mechanic’s lien is said to be a favorite of the law, a statute cannot be so extended as to be applied to cases which do not fall within its provisions.”
In the ease under consideration here we do not have a situation like that in the Dix case. Here, no one questions the facts; that appellant furnished appellees’ home with carpeting: that it cost $1,613.15; that appel-lees knew he furnished it; that he filed his Notice in due time, and; that the Notice appraised appellees of all these facts, and they were in no way misled.
Applying the rule of liberal construction and substantial compliance, we conclude the case must be, and •it is hereby, reversed.
Harris, O. J., not participating.
Foolemak & Byru, JJ., dissent. | [
80,
110,
-40,
124,
-118,
-32,
42,
-118,
123,
-96,
117,
87,
-19,
-58,
84,
35,
-30,
93,
117,
121,
69,
-77,
19,
72,
82,
-69,
115,
85,
-71,
77,
-12,
-97,
76,
0,
-54,
-43,
-58,
-120,
-59,
-40,
14,
-115,
-117,
108,
-39,
64,
52,
47,
48,
15,
49,
-89,
-78,
44,
49,
75,
73,
44,
125,
56,
80,
-72,
-102,
21,
-1,
7,
49,
69,
-104,
-63,
120,
26,
-112,
16,
0,
-88,
115,
-74,
-122,
116,
75,
-103,
8,
34,
99,
2,
-119,
-17,
-56,
-104,
15,
-2,
-99,
-90,
-14,
25,
10,
105,
-73,
-100,
121,
0,
6,
118,
110,
-123,
89,
108,
-118,
-18,
-44,
-80,
13,
112,
-107,
19,
-17,
7,
-80,
117,
-115,
-122,
93,
34,
51,
-101,
-122,
-7
] |
JOHN A. Fogleman, Justice.
The issuie here is whether appellant’s claim for additional compensation is barred by the terms of Ark. Stat. Ann. § 81-Í318(b) (Repl. 1960). The subsection reads :
"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 [1] year from the date of the last payment of compensation, or two [2] years from the date of accident, whichever is greater.”
Appellant suffered a compensable injury on May 7, 1960. He was examined and treated by Dr. Richard M. Logue over a period extending from June 15, 1960, until his discharge on January 15, 1963. On Janulary 21, 1963, the doctor made a report in letter form to United States Fidelity & Guaranty.. Company, the insurance carrier. The concluding paragraph includes a statement that a bill for services is enclosed. The final payment to appellant for temporary total and permanent partial disability was made on May 6,1964, and the Workmen’s Compensation Commission showed the matter closed" on September 17, 1964. On November 1, 1965, Dr. Logue sent claimant a statement for $715.00 for medical services rendered during the period from January 2, 1962, to January 15, 1963. The statement was not sent to the Commission, but was paid by the carrier on November 19, 1965, without any order of the Commission ever having been made. Subsequently, Dr. Logue rendered a statement for $10.00 for an examination of appellant on January 18, 1965. Appellees did not know of this examination and did not pay the bill therefor. Appellant filed a claim for additional compensation on April 26, 1966. The referee, Commission and circuit court all held that the claim was barred by § 81-1318 (b).
Appellant contends that the payment of the bill for medical services on November 19, 1965, was the “last payment of compensation” in the sense of the statutory provision, so that his claim was well within the statutory period. We do not agree.
The employer (or his insurance carrier) is required to furnish medical service to an injured employee. Ark. Stat. Ann. § 81-1311. Compensation under the act includes such medical services. Section 81-1302 (i); Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S. W. 2d 524. Appellant says that the holding of this court in Reynolds Metals Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211, supports his contention. We do not so construe this decision. The opinion in that case points out that the holding in the Bagon case followed the general rule that the furnishing of medical services constitutes payment of compensation within the meaning nf § 81-1318(b) and that such “payment” suspends the running of the time for filing a claim for compensation. The decision is not in any respect based on the time at which the medical bills were paid. This holding is sound because the claimant is “compensated” by the furnishing of the services and not by the payment of the charges therefor.
Later, in Phillips v. Bray, 234 Ark. 190, 351 S. W. 2d 147, this court held that a position identical to that of appellant here was erroneous. The claimant there sought to avoid the bar of the statute by showing that a doctor’s bill had not been paid by the employer. The Workmen’s Compensation Commission and the Grant Circuit Court found that the bill had not been, but should be, paid. In holding against the claimant’s contention, this court said:
“* * * Although appellant has not specifically pointed out just how and why this would toll the statute, we assume it is because medical bills are a part of compensation and therefore the one year limitation would not begin to run until the last bill is paid. If this contention is sound, then appellant still has time in which to file his new claim. For reasons set out below, we have concluded that the above contention is not tenable.”
The court then interpreted § 81-1311 to require a doctor to present his charges to the Workmen’s Compensation Commission for approval before the claim is finally-processed. The opinion states that the burden was on the claimant to show that the unpaid medical bill had been duly filed with the Commission, since “otherwise his claim ivas obviously barred by the one year statute of limitations.” No effort was made here to show that Dr. Logue’s bill had ever been presented to the Commission. We cannot see how the payment of this just bill for medical services furnished more than one year prior to the filing of appellant’s claim for additional compensation changes the situation prevailing in the Phillips case. That it does not do so is plainly indicated by the court’s affirmance of the trial court and the Commission there. The- court clearly stated that there was no inconsistency in its opinion and the' findings of the Commission and the circuit court that the employer was indebted to the doctor for the amount of his unpaid bill. The opinion stated that the Commission had the authority to order payment of a just bill whether filed in accordance with the statute or not, but nevertheless held that _ claimant was barred.
Appellants cite cases from other jurisdictions claiming support for their position.. While we find it unnecessary to resort to these holdings, in view of our own decisions, it is noted that most of them also recognize that it is the furnishing of the Imedical service, not the payment therefor, which constitutes the “payment of compensation. ’ ’
The judgment is affirmed. | [
16,
120,
-107,
-51,
11,
97,
42,
-102,
95,
2,
37,
89,
-3,
70,
-107,
37,
-9,
111,
113,
114,
94,
-77,
19,
96,
-46,
-109,
121,
-43,
-79,
79,
-92,
-44,
13,
40,
-54,
-45,
-26,
72,
-51,
30,
-34,
-122,
-85,
-19,
-7,
-96,
48,
109,
-56,
75,
49,
-98,
-29,
46,
24,
-49,
108,
44,
90,
34,
-16,
-96,
-126,
13,
111,
0,
-79,
70,
28,
5,
80,
26,
-112,
49,
113,
-88,
114,
-74,
-58,
52,
59,
-103,
8,
98,
98,
33,
-99,
-3,
-4,
-72,
14,
-118,
-113,
-90,
-112,
105,
75,
9,
-74,
29,
122,
20,
44,
126,
-12,
84,
21,
44,
1,
-114,
-106,
-79,
-49,
100,
-98,
-121,
-25,
-121,
16,
113,
-50,
-94,
92,
71,
107,
-101,
19,
-110
] |
George Rose Smith, Justice.
In 1963 Harold E'. Meek and Clint Spencer organized a corporation, M & S Royal Tire Service, Inc., and entered the service statjon and tire business together. In order to establish the corporation’s credit with United States Rubber Company the two men and their wives executed agreements with the latter company, guaranteeing to pay any amounts that might be owed by M & S' Royal to United States Rubber Company for merchandise. In 1964 Meek withdrew from M & S Royal and sold his stock therein to Spencer. Thereafter M & S Royal was adjudicated a bankrupt and was discharged of its indebtedness.
United States Rubber Company then brought this action against the Meeks and the Spencers to enforce their guaranties with respect to the unpaid balance of the M & S Royal open account, amounting to $19,546.31. Upon facts established by requests for admissions the trial court granted a motion for summary judgment against'all four defendants. The Meeks have appealed, urging three grounds for reversal.
First, it is contended that United States Rubber Tire Company is not the proper plaintiff, because the guaranty agreements were made with United States Rubber Company. The record does not support this contention. The complaint describes the plaintiff as “United States Rubber Tire Company, a Division of United States Rubber Company.” There is no indication that United States Rubber Tire Company is a separate corporation. Quite the contrary. The complaint alleges that the- defendants executed guaranty contracts with the plaintiff, a corporation. The guaranty contracts themselves, which are exhibits to the complaint, refer only to United States Rubber Company. Thus the complaint and the exhibits, construed together, identify the plain tiff as United States Rubber Company. Moreover, the Meeks’ answer expressly admits that they executed a guaranty in favor of “the plaintiff.” Inasmuch as tlie plaintiff’s status as a corporation was not specifically denied, it must be taken as admitted. Ark. Stat. Ann. § 27-1121 (Repl. 1962). There is at most some slight elaboration of the plaintiff’s exact corporate name, but such an error is immaterial when no separate party is actually involved. Evans v. List, 193 Ark. 13, 97 S. W. 2d 73 (1936).
Secondly, the Meeks argue that United States Rubber Company waived its rights under the guaranty contracts by asserting in its claim in the bankruptcy court that it was an unsecured creditor of M & S Royal. That statement, however, was true, because in bankruptcy law a secured creditor is one who holds a direct or indirect security interest in property of the bankrupt. The existence of a guaranty agreement by a third person, who holds no security interest in the bankrupt’s property, does not render the primary creditor “secured.” Collier on Bankruptcy, § 1.28 (14th Ed. 1967).
Thirdly, the Meeks insist that their liability under the guaranty contract was discharged when Mr. Meek sold his stock in M & S Royal and withdrew from the business, because in that transaction Meek and Spencer signed an agreement which recited that Spencer assumed the debts of the corporation and agreed to hold Meek “blameless and free” from any such liabilities. The trouble is that United States Rubber Company was not a party to that release and thus was not bound by its provisions. The Meeks argue in substance that United States Rubber Company was bound by the Meek-Spencer contract, because it knew about the transaction and nevertheless' continued to deal with M & S Royal. Even so, the record is completely devoid of facts to indicate any conduct on the part of the appellee that would raise an estoppel or otherwise preclude it from enforc ing its guaranty contract. We find no merit in this defense.
Affirmed. | [
-76,
124,
-24,
124,
8,
96,
56,
-38,
90,
-23,
117,
-46,
-51,
-57,
21,
57,
-30,
95,
116,
122,
-11,
-93,
83,
96,
-41,
-109,
-7,
-51,
-79,
111,
-20,
84,
12,
48,
-86,
-107,
-30,
-112,
-59,
30,
-50,
4,
1,
-20,
-39,
-112,
52,
75,
20,
77,
65,
-114,
-77,
46,
-105,
75,
41,
44,
107,
41,
-8,
-47,
-117,
7,
-3,
85,
33,
4,
-112,
39,
72,
28,
-120,
49,
1,
-32,
18,
-74,
-122,
116,
35,
25,
-116,
38,
99,
-126,
1,
-19,
-98,
-100,
30,
-38,
-115,
-121,
-74,
97,
35,
105,
-74,
-99,
122,
11,
-121,
-4,
-34,
68,
28,
104,
3,
-53,
-10,
-126,
47,
-26,
-34,
-117,
-17,
-122,
48,
113,
-52,
-96,
92,
38,
124,
-101,
7,
-15
] |
Paul Ward, Justice.
This is an appeal from a decree, issued by the Chancery Court (3rd Div.) of Pulaski County, which enjoined and restrained the City of Little Rock from awarding a contract to purchase a “crawler tractor”.
Facts. The City, acting through its manager, An-cil Douthit, and other officials (hereafter referred to ns appellants) published an “Invitation to Bid” in proceeding to purchase the tractor. All prospective bidders were furnished a description of the tractor and minute details of pertinent terms and conditions. When the bids were opened on June 22,1967 the only response was that made by J. A. Riggs Tractor Company. Previously this litigation had been instituted.
Thomas L. Allen (appellee), a citizen and taxpayer of the City, filed a complaint against appellants, alleging that the Invitation to Bid (with specifications) is illegal and in excess of the authority delegated to said defendants for the following reasons:
(a) The Invitation violates the City Code and certain statutes;
(b) Appellee has no remedy at law.
The prayer was for an order permanently enjoining appellants from awarding a contract under the Invitation to Bid. Attached to the complaint, as Exhibit A, are the Invitation, the bond, and detailed specifications — constituting nineteen pages in the record.
After a temporary restraining order was issued, appellants answered, denying all material allegations in the complaint.
On July 17, 1967 the trial court, after hearing testimony, entered a decree, holding, in substance:
(a) The Invitation to Bid together with Exhibit A is in violation of the City Ordinances and the State statutes relating to competitive bidding;
(b) The threatened acts of the City in awarding a contract are illegal and in excess of its authority under said ordinances and statutes;
(c) The 'City is permanently enjoined from awarding a contract pursuant 'to the “Invitation to Bid set out in Exhibit A.”
It is the contention of appellants, in seeking a reversal, that; (1)' Thé hid procedures employed do not violate Amendment 10 of the State Constitution; (2) “The construction placed upon the contract offered for bids was erroneous.”
For reasons presently mentioned we have concluded that the decree of the trial court must be affirmed. First, however, it is pointed out that appellee makes no contention here that the City has violated, or will violate', Amendment 10 to the State Constitution.
We find it necessary to consider only two phases of the proposed purchase contract. One relates to repairs on the tractor, and Two relates to a resale of the tractor to the successful bidder.
One. Under the City’s proposal the successful bidder must guarantee that the maximum cost of repairs on the tractor for a period of five years would not exceed $20,000. Item 2 E. provides, in effect, that regardless of the amount involved on any repair job, the City and the bidder could agree on the costs. Obviously this procedure violates City Ordinance § 2-43 and § 2-44 which requires competitive bidding “Where the amount of expenditure for any purchase or contract authorized . . . exceeds the sum of one thousand dollars ...”
Two, Item 3B. of the specifications provides, in effect, as follows: Any time within five years after delivery of the tractor or at the end of 15,000 operating hours the successful bidder is bound, at the option of the City, to repurchase the tractor for the sum fixed in the specifications. Thus, again, this places the City in a position to dispose of an expensive piece of property without the safeguard of competitive bidding, and is in violation of Ordinances § 2-42 and § 2-44.
In addition to what -we have said above, we think there is another aspect which also calls for an affirmance.
Robert J. Wilson, vice-president of a local machinery company, gave several reasons why his company could not submit a bid in this instance. His reasons are set forth in a letter to the City as follows:
(a) There are six indefinite items which a bidder would have to consider in connection with cost of repairs. 1 — price increase on repair parts over a period of five years; 2 — cost of labor; 3 — competency of City service personnel; 4— competency of operating personnel; 5 — how tractor would be used, and; 6 — major repairs.
(b) Requirement of bidder to repurchase tractor —for a fixed amount after five years imposed questionable and indefinite factors; 1 — mechanical condition of machine; 2 — -economic conditions; 3 — local market conditions; 4— technical improvements in machinery, and; 5 — his company’s inventory of machinery.
We think the trial court could have properly found that these uncertainties, inherent in the specifications, would tend to stifle competitive bidding and would not, therefore, be in the public interest. In the early case of Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S. W. 7 this Court said that “Any arrangement which excludes competition prevents a letting to the lowest bidder. . .” In 43 Am. Jur., Public Works and Contracts, § 23, et seq., in a discussion of this same matter there appears this statement:
“Experience has shown, however, that the interests of the public are best conserved by offering con tracts for public work to the competition of all persons able and willing to perform it, and in most, if not all, jurisdictions there are mandatory and peremptory, constitutional and statutory provisions, as well as provisions of municipal charters and ordinances, which prescribe competitive bidding by all persons who wish to obtain such contracts, and the letting by public authorities of the contracts to the lowest bidders. . .”
It is our conclusion therefore that the decree of the trial court should be, and it is hereby, affirmed.
FoglemaN, J;, not participating. | [
117,
-19,
-12,
76,
10,
-62,
56,
-69,
81,
-95,
101,
83,
-81,
-50,
20,
123,
-21,
125,
116,
107,
-47,
-74,
97,
114,
-46,
-13,
-5,
-57,
-67,
-49,
-26,
60,
-40,
96,
-54,
-107,
-122,
-54,
-124,
92,
-54,
1,
11,
108,
-47,
67,
52,
-93,
116,
3,
53,
-98,
-13,
44,
25,
66,
-19,
108,
-7,
45,
-47,
-103,
-39,
13,
125,
6,
-127,
36,
-104,
5,
122,
94,
-112,
49,
9,
-8,
114,
-94,
-126,
116,
73,
91,
8,
34,
-30,
2,
-119,
-49,
-52,
-88,
20,
-6,
-113,
-90,
-80,
25,
42,
75,
-106,
-105,
16,
18,
6,
-2,
63,
100,
29,
108,
10,
-58,
112,
-77,
47,
96,
-108,
1,
-21,
-121,
18,
117,
-51,
-10,
94,
70,
50,
-101,
-122,
49
] |
George Rose Smith, Justice.
Roy Walker was convicted of involuntary manslaughter and sentenced to imprisonment for three years. According to the State’s proof, Walker was driving a truck on a highway in or near Eureka Springs at such a high speed that he lost control of the vehicle and struck and killed Otto Miller, a pedestrian. The information charged that Walker was intoxicated at the- time. For reversal Walker contends that the court erred in allowing the prosecution to introduce evidence of a blood test that showed Walker to have been intoxicated.
After the accident Walker, who was injured, was taken by someone to a hospital in Eureka Springs, where he was treated as an outpatient. There K-ichard Stall-man, a laboratory technician, took a sample of Walker’s blood without having asked his permission and sent it to a pathologist in Fayetteville for analysis. The pathologist testified that the sample contained .140 percent of alcohol when taken and that the percentage would probably have been higher an hour earlier, when the accident occurred.
The appellant, citing Schmerber v. California, 384 U. S. 757 (1966), and other cases, insists that the taking of the blood sample amounted to such an unreasonable search and seizure as to be prohibited by the federal and state constitutions. It does not appear, however, that Stellman acted either at the direction of the police or by prearrangement with them. The seareh-and-seizure clauses are restraints upon the government and its agents, not upon private individuals. People v. Potter, Cal. App., 49 Cal. Rptr. 892 (1966); State v. Brown, Mo., 391 S. W. 2d 903 (1965); State v. Olsen, Ore., 317 P. 2d 938 (1957). Hence the proof does not establish a denial of Walker’s constitutional rights.
Complaint is also made of the court’s refusal to give an instruction informing the jury that the decedent was under a duty to keep a proper lookout. We doubt the applicability of such a civil standard to a criminal case, but in any event the point was not included in the motion for a new trial and so is not available to the appellant in this court. Dokes v. State, 241 Ark. 720, 409 S. W. 2d 827 (1966).
Affirmed. | [
112,
-22,
-12,
62,
59,
97,
-70,
-102,
-46,
-117,
36,
49,
-81,
-53,
69,
35,
-29,
-65,
117,
57,
-59,
-89,
23,
73,
-14,
-77,
-8,
-105,
115,
-53,
108,
-4,
13,
112,
-118,
-11,
102,
72,
-59,
-46,
-116,
20,
-87,
-32,
-62,
-110,
48,
106,
84,
6,
-15,
-97,
-21,
46,
28,
-61,
41,
44,
91,
-75,
64,
-71,
-103,
-99,
-1,
6,
-93,
102,
-100,
-91,
-8,
58,
-40,
49,
0,
-8,
50,
-74,
-122,
-44,
45,
-103,
12,
98,
99,
-87,
21,
-19,
-96,
-120,
-81,
38,
-99,
-121,
28,
32,
65,
-83,
-106,
-35,
106,
48,
14,
-8,
-1,
85,
93,
124,
17,
-49,
-74,
-111,
-19,
48,
-122,
119,
-53,
-123,
48,
117,
-51,
98,
92,
69,
81,
-101,
-121,
-106
] |
Carleton Harris, Chief Justice.
In May, 1955, Charles Joe Elliott purchased a 32-foot Lufkin semitrailer in Springfield, Missouri, from Fruehauf. From September 20, 1956, through February 3, 1960, Elliott borrowed money from appellant, Bank of Dardanelle, and executed several chattel mortgages, including, along with other personal property, this trailer as collateral. Elliott died in May, 1960, at which time he was still indebted to the bank. Appellant learned that Bibler Brothers, appellee herein, had possession of the trailer, and made demand for same. However, appellee claimed ownership of the trailer and appellant instituted suit. On trial, the court dismissed the bank’s complaint for want of equity and, from the decree so entered, comes this appeal.
The evidence reflects that Elliott had been employed by appellee for a long number of years, and that, at the time the trailer was purchased, Bibler Brothers furnished the money in the amount of $420.00 to enable Elliott to make the down payment. Title remained in Fruehauf until August 5, 1957, at which time, title was transferred to Bibler Brothers by Elliott. Testimony on behalf of appellee was to the effect that the title transfer was made to secure debts owed appellee by Elliott, monies having been paid to him, or on his behalf, over a period of several years. According to the evidence, Elliott was still, at the time of his death, indebted to Bibler Brothers in excess of $3,000.00 (and the Chancellor so found). Further testimony was offered that appellee had no knowledge of the bank’s claim until after Elliott’s death.
As earlier stated, Elliott gave a chattel mortgage to the bank (.including this trailer) on September 20, 1956, and five subsequent chattel mortgages likewise included the trailer. Mr. Robert Holland, cashier of the bank, testified that Elliott was indebted to the institu tion in the amount of $2,920.00 at the time of his death, and Holland stated that he specifically remembered that part of the money lent to Elliott was to enable the latter to pay off the indebtedness on the trailer. Holland said that the mortgages were filed in the office of the Pope County Circuit Clerk, but no copies were filed with the Motor Vehicle Division of the State Revenue Department. He also stated that he was aware of the fact that Bibler Brothers held title to the trailer, this information being shown on the pink slip submitted by Elliott (in order that the bank might obtain the serial number of the trailer). Holland testified that the reason given by Elliott for the title being in Bibler Brothers was that this was necessary in order to comply with I.C.C. regulations. The witness said that he “checked with another lumber man who hauls to various states,” to verify the procedure. Holland did not seek to ascertain from Bib-ler Brothers the reason for the trailer being in the name of appellee.
The failure to comply with Ark. .Stat. Ann. § 75-160 (Supp. 1967) and § 75-161 (Repl. 1957) is controlling in this litigation. Provisions are as follows:
“(a) No conditional sale contract, conditional lease, chattel mortgage, or other lien or encumbrance or title retention instrument upon a registered vehicle, other than a lien dependent upon possession, is valid as against the creditors of an owner acquiring a lien hy levy or attachment or subsequent purchasers or encumbrances with or without notice until the requirements of this article [§§ 75-160, 75-161] have been complied with.
“ (¡b) There shall be deposited with the department [Revenue Department] a copy of the instrument creating and evidencing such lien or encumbrance, which instrument is executed in the manner required by the laws of this State with an attached or indorsed certificate of a notary public stating that the same is a true and correct copy of the original and accompanied by the certificate of title last issued for such vehicle.”
* # * #
“ (a) Such filing and the issuance of a new certificate of title as provided in this article [§§ 75-160, 75-161]"shall constitute constructive notice of all liens and encumbrances against the vehicle described therein to creditors of the owners, to subsequent purchasers and encumbrancers except such liens as may be authorized by law dependent upon possession. * * *
“(b) The method provided in this article [§§ 75-160, 75-161] of giving* constructive notice of a lien or encumbrance upon a registered vehicle shall be exclusive except as to liens dependent upon possession and any said lien or encumbrance or title retention instrument filed as herein provided and any documents evidencing the same are hereby exempted from the provisions-of law which otherwise require or relate to the recording or filing of instruments creating or evidencing title retention or other liens or encumbrances upon vehicles of a type subject to registration hereunder.”
In West, Sheriff v. General Contract Purchase Corporation, 221 Ark. 33, 252 S. W. 2d 405, we pointed out that this statutory method of giving* notice is exclusive, and we mentioned that there was no longer any necessity for the documents to be recorded. This holding was reiterated in Francis v. Thomas, 232 Ark. 547, 338 S. W. 2d 933.
While the mortgage was good, as between the parties (Elliott and the bank), Anderson v. First Jacksonville Bank, 243 Ark. 977, 423 S. W. 2d 273, there was no notice of the encumbrance to third parties. The fact that appellant filed these mortgages with the Circuit Clerk is of no benefit whatsoever to the bank. Under the statutes, and our cases, herein cited, no notice was given to Bibler that appellant had any sort of claim on the trailer.
Appellant argues that the evidence was insufficient to sustain the Chancellor’s holding that Elliott was indebted to Bibler Brother's. While the proof, in many instances, is not bolstered by documentary evidence, we think it entirely sufficient to justify the Chancellor in reaching his conclusions.
It is several times mentioned by appellant that the title to the Lufkin trailer was placed in Bibler Brothers simply because of I.C.C. regulations. However, we are never advised as to the regulations allegedly involved, nor is there any evidence that this was the reason, other than Mr. Holland’s statement that Elliott so told him.
Other matters are argued, but we do not consider them pertinent to a decision in this case.
Affirmed. | [
-15,
-26,
-120,
76,
26,
-128,
42,
26,
124,
-95,
-11,
83,
-21,
70,
4,
97,
-11,
45,
-59,
106,
-26,
-77,
39,
-16,
-47,
-13,
-39,
-35,
-80,
77,
108,
69,
76,
48,
-118,
93,
-26,
-120,
-59,
-36,
94,
-124,
-70,
-63,
-33,
80,
60,
-70,
20,
15,
69,
-65,
-61,
42,
29,
111,
109,
44,
-37,
41,
-48,
-80,
-117,
23,
127,
23,
-79,
4,
-104,
1,
-40,
46,
-104,
-79,
32,
-7,
122,
-90,
-58,
116,
34,
-113,
9,
38,
103,
22,
21,
-49,
-4,
-104,
14,
-46,
-105,
-122,
-106,
25,
10,
109,
-74,
-99,
125,
16,
22,
126,
-18,
21,
92,
104,
7,
-50,
-106,
-79,
13,
112,
-98,
2,
-5,
-123,
32,
113,
-51,
-30,
92,
69,
56,
19,
-122,
-78
] |
John A. Fogleman, Justice.
This case involves a determination whether the trial court was correct in finding that certain instruments executed by certain Mc-Kellar heirs conveyed their interests in an undivided one-fourth working interest in oil, gas and minerals to J. H. Carmichael, Jr. and J. C. Stevens.
Appellant is the successor in interest to some of the McKellar heirs who were parties to these instruments. He filed this action for a declaratory judgment to determine the interests of Carmichael and Stevens and their respective wives under the instruments and for partition of all surface and mineral interests. Inasmuch as the evidence bears ont factual recitations contained in these instruments, and the intention of the parties to the instrument must be gathered from its four corners, we set out pertinent portions thereof:
‘ ‘ THIS CONTRACT, made and entered into on this 13 day of May, 1940, by and between* * * (hereinafter called clients) and J. H. Carmichael, Jr. and J. C. Stevens, Attorneys at Law, (hereinafter called attorneys) -WITNESSETH: That the said Clients own the following described lands, to-wit: * * *
THAT, "Whereas, there were executed certain oil, gas, and mineral leases on said lands, and there was discovered oil on said lands, and said lessees and assigns have failed to carry out the terms and conditions, both expressed and implied, in connection with said lease agreements, and have failed to properly develop and operate said lease, which has caused the said Clients to suffer great loss and damage.
THAT said failure on their part amounts practically to abandonment, for a period of over twelve (12) months. They have permitted said lands to be drained and said lease should forfeit to the original owners, and in addition they are entitled to damage in a large sum, sufficient to compensate them for all their loss.
WHEREAS, the said Clients are desirous of prosecuting their claims in every way possible, in order to recover their seven-eighths (7/8) working interest in said lands and in addition all claims of damage, and all other matters connected with said property and the clearing of the title, and for these purposes the said Clients hereby employ J. H. Carmichael, Jr. and J. C. Stevens to represent them in these matters and agree to pay them as their fee two-eighths (2/8) of their seven-eighths (7/8) interest, leaving said Clients five-eighths (5/8) working interest, and in addition agree to pay them the same proportionate amount of all sums recovered by way of damage or in any other way, said fee to be paid whether recovered in court action or by compromise.
SAID Attorneys are empowered and directed to take any and all steps they deem necessary to prosecute said claims and do any and all things desired in handling said matters. Said attorneys hereby accept the employment and fee as set out above and agree to represent said Clients to the best of their ability. NOW, THEREFORE: KNOW ALL MEN BY THESE PRESENTS:
That We,* * *for and in consideration of the sum of One Dollar ($1.00), cash in hand paid, receipt of which is hereby acknowledged, and other valuable consideration, do hereby grant, bargain, sell, and convey unto the said J. H. Carmichael, Jr. and J. C. Stevens, and unto their heirs and assigns forever, an undivided one-fourth (1/4) working interest as set out above, in and to all of the oil, gas, and other minerals in, under, and upon the following described lands lying within the County of Miller and State of Arkansas, to-wit* * *
TO HAVE AND TO HOLD the above described property, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said J. H. Carmichael, Jr. and J. C. Stevens, and unto their heirs and assigns forever.
And We,* * *for and in consideration of the said sum of money and other valuable consideration, do hereby join in the execution of the foregoing conveyance and do hereby release and relinquish unto the said grantees all of our rights and claims to dower and homestead in and to the above described property, to the extent of the rights and interest hereinabove described.
WITNESS our hands and seals this 13 day of May, 1940.
* * * CLIENTS.”
Carmichael and Stevens were associates in the practice of law at the time of the execution of the instruments. Carmichael testified that the two of them performed legal services for the heirs who signed the documents in proceedings in bankruptcy in the Federal Court in Little Rock and in a suit in the Chancery Court of Miller County to recover working interests given other parties by numerous standard oil, gas and mineral leases. He also stated that all services called for by the contract were performed by him and Stevens after the expenditure of years of time and thousands of dollars of money, for which they had received no compensation or reimbursement. The instruments were prepared by Carmichael and Stevens. Records in the Federal Court in Little Rock indicated that there was production of oil from the lands. Carmichael testified this was stopped at the time he and Stevens filed an intervention on behalf of their clients in the Federal Court. It is stipulated that neither Carmichael nor Stevens has ever attempted oil or gas development, executed or received leases or any agreement or contract with any other party dealing with the mineral interests. Carmichael said that he had paid taxes on the mineral rights for almost twenty years. There was no oil or gas lease on the property when this action was filed.
Appellant states twelve points on which he relies but all relate to the validity and construction of the instruments. He contends that the instruments are not deeds of conveyance but simply contracts of employment not creating any present interest, but if they were, the interest transferred was simply a lease without a term which had been abandoned by failure of appellees to develop for oil, gas and minerals within a reasonable time. Other contentions are that if this lease has not been abandoned, appellees are obligated to develop the properties when called upon to do so and that the instruments were void as contravening the rule against per-petuities.
Appellant places stress upon the following factors to sustain his position that there was no conveyance, or, at best, only a conveyance in the nature of a lease:
1. The instruments are labeled “CONTRACT ”.
2. That all Carmichael and Stevens were to receive was a one-fourth “working interest” or two-sevenths of the rights the lessees had under leases in existence at the time of the employment — the right to develop for oil, gas and minerals and to retain seven-eighths of .the proceeds.
3. That the only result of the activities of Carmichael and Stevens was the loss by the McKellar heirs of such production as they then had.
4. That the contract was drawn by Carmichael and Stevens and should be construed more strongly against them.
5. That the instruments were so vague and uncertain as to render them -void and inoperative.
A deed, or any other contract, should be examined to determine the intention of the parties. Smart v. Gunnels, 234 Ark. 567, 353 S. W. 2d 153. We find that it was the intention of the parties that the instrument convey, and that it did convey the grantors’ interests in an undivided one-fourth interest in the oil, gas and minerals under and upon the lands involved. The instrument names the parties as grantors and grantees. It has a granting clause using the words “grant, bargain, sell and convey.” The habendum clause is in the form commonly utilized in conveyances. The instrument conveys the grantors’ interests in the one-fourth interest not only in oil and gas, but in other minerals in, under and upon the lands. There is no provision for a time when drilling shall be done or provision for delay payments contained in the usual oil lease. It is hardly reasonable to suppose that these lawyers would have accepted employment which they could reasonably assume would require their services over a long period of time and the expenditure of considerable sums of money for compensation contingent upon profitable production on the lands obtained, if at all, through their efforts and expenditures. Nor is it plausible that they would, after performing the required services, do nothing at all to obtain production if they had accepted such a contract. It seems unlikely that the parties who signed this agreement, being already dissatisfied with production by a lessee in the business, would be satisfied to risk their possibility of improvement to two lawyers. It is also unlikely that parties who were so anxious to cancel leases on which they had unsatisfactory production would delay so long in asking cancellation of a contract abandoned by the opposite party. It is the terms of an instrument, not its name, which determine its character.
A portion of the preamble to the instrument having significance is the clause setting out specifically what Carmichael and Stevens are to do — represent the signers in prosecuting certain claims. Nothing whatever is said about their doing anything else. The “whereas” clauses set forth the reasons or inducements for entering into a contract and must be considered in determining the true intentions of the parties thereto. United States Fidelity & Guaranty Co. v. Sellers, 160 Ark. 599, 255 S. W. 26. There is no language in the instrument that places any other responsibility on the lawyers. It seems logical to us that if they had also had the responsibility of developing the lands for oil and gas, this would also have been stated somewhere in the preamble.
We recognize that in their ordinary use, the words ‘‘working interest” mean that interest acquired by a lessee. In this sense it is the lessee’s interest in the oil and gas produced over and above the owner’s interest or royalty interest. It is a settled doctrine of equity, however, that the form of a transaction will never preclude inquiry into its real nature and that the intention of the parties must govern, irrespective of the form. This court has applied this rule in holding what appeared to be absolute deeds to be mortgages only. Coleman v. Volentine, 211 Ark. 594, 201 S. W. 2d 592. By application of this maxim of equity it has been said that a “contract of sale” could actually be a mortgage. Maners v. Walsh, 180 Ark. 355, 22 S. W. 2d 12. Language used in the opinion in the case last cited is particularly appropriate here:
“Another maxim of equity is that equity regards the substance rather than the form, or that equity regards the substance and intent, not- the form. This principle is well established and is expressed in more or less similar language in many cases.* * * This maxim is as applicable at the present time as it was when it was first formulated. By force of principle equity goes behind the form of a transaction in order to give effect to the intention of the parties, either to aid an act abortive at law because formally defective or to impose a liability as against an evasion by a formal concealment of its true character. In the construction of a written instrument, equity always attempts to get at its substance, and to ascertain, uphold, and enforce the rights and duties that spring from the real intention of the parties. In doing so, while it will of course not change the words of the instrument, the court of equity will look into all the circumstances under which it was made, in order to determine the proper meaning of the transaction, It will do this not only to sustain a just claim but to defeat an unlawful demand. 21 C. J. 204, '205.
Equity looks beyond the mere form in which the transaction is clothed and shapes its relief in such way as to carry out the true intent of the parties to the agreement, and to this end all the facts and circumstances of the transaction, the conduct of the parties thereto, and their relations to one another and to the subject-matter are subjects for consideration. ’ ’
In construing a contract the court must, if possible, give effect to the intention of the parties as far as that can be done consistently with legal principles, and this intention must be ascertained from the whole contract. Dent v. Industrial Oil & Gas Co., 197 Ark. 95, 122 S. W. 2d 162; American Snuff Co. v. Stuckey, 197 Ark. 540, 123 S. W. 2d 1063.
To arrive at the intention of the parties to a contract, courts may acquaint themselves with the persons and circumstances and place themselves in the same situation as the parties who made the contract. American Snuff Co. v. Stuckey, supra. This is so the court can view the circumstances as they viewed them, so as to judge the meaning of the words and the correct application of the language to the things described. Taylor v. Taylor, 240 Ark. 376, 399 S. W. 2d 498. The court should arrive at the sense in which the words used would naturally be understood, taking into consideration the circumstances surrounding the making of the contract, the situation and relation of the parties. Scrinopskie v. Meidert, 213 Ark. 336, 210 S. W. 2d 281. Doing this, it would not be unreasonable to believe that not only Carmichael and Stevens construed this instrument to convey the grantors’ interests in an undivided one-fourth interest in oil, gas and minerals, but that the clients (grantors) and their successors in interest must have too. The construction that the parties have placed on a contract is entitled to great weight in interpreting it. Owen v. Merts, 240 Ark. 1080, 405 S. W. 2d 273. The intention of the parties is to he gathered, not from some particular phrase, hut from the whole context of the agreement. Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S. W. 2d 98, The language of a contract, as a whole, should be so construed as to make apparently conflicting provisions reasonable and consistent and so as not to give one of the parties an unfair and unreasonable advantage over the other. Scrinopskie v. Miedert, supra.
When we apply these well known rules of construction, we must come to the conclusion that there was a conveyance of an interest in the oil, gas and minerals. As we have construed the instrument, there was a conveyance of a present interest so the rule against per-petuities is not applicable. Hanson v. Ware, 224 Ark. 430, 274 S. W. 2d 359.
Appellant contends alternatively that the court should have granted his prayer for partition and cites Ark. Stat. Ann. § 34-1801, et seq., (Repl. 1962). This statute provides for partition on petition of any person having any interest and desiring a division of land held in common. There can be no doubt that under our construction of the contract, the interest of appellees is an interest in land. This court has held that a mineral deed placed of record constitutes a constructive severance of the minerals from the surface and makes two titles, one the surface and the other the mineral title. Shelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S. W. 2d 425. It has also been said that the sale of an undivided mineral interest operates as a severance of soil interest from the surface and creates two separate and distinct estates. Neilson v. Hase, 229 Ark. 231, 314 S. W. 2d 219. The interest of appellees would not be an interest held in common with the owners of the surface in the sense of § 34-1801. On the other hand, the ownership of the minerals would be such an interest and the statute would be applicable to a division of the mineral interests, on the petition of the owners of the surface and an undivided interest in the minerals. This holding seems to be in keeping with the weight of authority, it being generally held that minerals, as a part of the real estate, if held in cotenancy, may be the subject of partition. See Annot., 173 ALR 854.
Generally, partition, either by partition in kind or by sale and division of proceeds, is something to which each contenant has an absolute and unconditional right, under both common law and statute. Freeman on Coten-ancy and Partition, § 433, p. 571; Knapp on Partition, p; 27; Annot., 15 Ann. Cas. 778; 2 Williams & Meyers Oil & Gas Law, § 506.2, p. 601. The basis for such right is well expressed in Dall v. Confidence Silver Mining Co., 3 Nev. 531, 93 Am. Dec. 419 (1867) where it was said:
“* * *As the law deems it against good morals to compel joint owners to hold a thing in common, a decree of partition may always be insisted on as an absolute right. It is not necessarily founded upon any misconduct of the co-tenants or part owners. Hence, in decreeing a partition, the rights and equities of all the parties are respected, and the partition decreed so as to do the least possible injury to the several owners; and ‘courts of equity,’ says Mr. Story, ‘may, with a view to the more convenient and perfect partition or allotment of the premises, decree a pecuniary compensation to one of the parties for owelty or equality of partition, so as to prevent any injustice or unavoidable inequality’, Story’s Eq. Jur., sec. 654.”
See, also, Holland v. Shaffer, 162 Kan. 474, 178 P. 2d 235 (1947).
The fact that interests in oil, gas and minerals are involved does not change the problem. Of this situation, Kuntz, in The Law of Oil & Gras, § 5.7 at p. 121, says:
“Where the ownership of oil and gas rights is divided among various owners, the possibility of an unknown or uncooperative cotenant presents difficult problems for a cotenant who wishes to develop the land for oil or gas purposes or who desires to lease it for operation by another.”
See, also, Allies Oil Co. v. Ayers, 152 La. 19, 92 So. 720 (1922).
It has long been recognized in other states that the owners of undivided interests in minerals are entitled to either partition or sale against the remaining owners, even under statutes worded as § 34-1801 was before the 1941 amendment. Canfield v. Ford, 16 How. Pr. 473 (N. Y. 1857), 28 Barb. 336 (1858) Brown v. Challis, 23 Colo. 145, 46 Pac. 679 (1896). See, also, Hughes v. Devlin, 23 Cal. 501 (1863).
A Mississippi statute provided for partition by tenants in common of any joint interest in the freehold. The Supreme Court of Mississippi held that under this statute the owner of the entire surface and an undivided one-half interest in the minerals was entitled to have a partition of the mineral interest. Wright v. Ingram-Day Lbr. Co., 195 Miss. 823, 17 So. 2d 196.
The Court of Appeals of Kentucky held that the owner of the surface in fee simple and of an undivided one-half in oil, gas and other minerals was entitled to partition of the mineral rights under their partition statute which required the showing of a vested possessory estate in land which is jointly held in any manner. Terteling Bros., Inc. v. Bennett, 287 S. W. 2d 607 (Ky. 1956).
The Texas Court of Appeals, in Henderson v. Chesley, 273 S. W. 299 (Tex. Civ. App. 1925), aff’d 116 Tex. 355, 292 S. W. 156 (1927), held that the owner of an undivided one-half interest in mineral rights was entitled to partition against the owner of the fee and an undivided one-half interest in the minerals under a statute which gave any joint owner or claimant of any real estate or any interest therein the right to compel partition.
It is suggested by appellees in their brief, however, that it would be a great injustice to them to partition the mineral interest in kind and that there is no need to require this interest to be sold. It has been said that this absolute or unconditional right cannot be defeated by showing that a partition would be inconvenient, injurious or even ruinous to a party in interest. Freeman on Cotenancy & Partition, § 433, pp. 569, 571; 2 Williams Oil & Gras Law, § 506.2, p. 601, § 506.3, p. 602.
The manifest hardship arising from division of property of an impartible nature has been generally and almost universally avoided by statutes authorizing sale of the property when its division in kind would tend to greatly depreciate its value or otherwise seriously prejudice the interests of cotenants. Freeman on Cotenancy & Partition, § 433, p. 571; Annot., 15 Ann. Cas. 778, 779; Richardson v. Monson, 23 Conn. 94 (1854). This was the object of such statutes. Wilson v. Bogle, 95 Tenn. 290, 32 S. W. 386 (1895). See, also, 2 Williams Oil & Gas Law, § 506.2, p. 601, § 506.3, p. 603. This purpose was reconized in Sutton v. McClain (on rehearing), 193 Ark. 49, 99 S. W. 2d 236, 241. This court has also recognized that, in any case to which Ark. Stat. Ann. § 34-1801 (Repl. 1962) is applicable, the right to partition or sale is absolute, no matter how small the interest of the owner seeking partition or how great the majority who object. Overton v. Porterfield, 206 Ark. 784, 177 S. W. 2d 735. We do not have here the type of partition suit provided by Ark. Stat. Ann. § 53-401 et seq, (Act 15 of 1935), which is designed to provide for a sale of the “oil and gas lease rights” or “leasehold estate only” and not of the interest in oil, gas and minerals which we have found were conveyed by the instrument in question here. The interest of appellees is clearly covered by the language of § 34-1801 and if there is any conflict, the present language of the latter section must control, for it was adopted in 1941.
Dictum in Overton v. Porterfield, supra, wherein partition and sale of the oil and gas leasehold were involved, expressed the thought that, in such case .as was there involved, § 53-401 et seq. did not impose upon a court of equity the imperative duty to order a sale whenever a proper petition was filed. The court said that a rule adopted in Oklahoma might apply in this type of case under certain circumstances. That rule, quoted in the opinion from Wolfe v. Stanford, 179 Okla. 27, 64 P. 2d 335 (1937), is that the court should be vested with discretion to grant or deny relief in order to prevent the right to partition from becoming a weapon of oppression and fraud in the hands of the financially fortunate who might use the right as a means of foreclosure of an owner of limited means. The Oklahoma Court clearly qualified this discretion as existing only in cases where there was no disagreement between the parties rendering co-ownership impractical and stated specifically that inability of a cotenant to purchase should not constitute a defense in the absence of approaching development or rapidly increasing values. The qualification was applied in Henson v. Bryant, 330 P. 2d 591 (Okla. 1958).
But even in those cases wherein the doctrine that the equity court has the discretion to deny either partition or sale to prevent the remedy from becoming an instrument of fraud or oppression, it is generally held that the matter is one of defense to he pleaded and proved as such. Henson v. Bryant, supra; Colonial Royalties Co. v. Hinds, 202 Okla. 660, 216 P. 2d 958 (1948); Williams v. Neal, 207 Okla. 552, 251 P. 2d 785 (1952); Holland v. Shaffer, 162 Kan. 474, 178 P. 2d 235 (1947); Gillet v. Powell, 174 Kan. 88, 254 P. 2d 258 (1953). In this case, appellees did not plead their present contention that a decree of partition or sale would constitute fraud or oppression against them, nor did they offer any evidence tending to support such a claim.
We therefore, modify the decree of the chancellor to award appellees an undivided one-fourth interest in oil, gas and minerals, to the extent of the undivided interest conveyed by the grantors in the “contracts.” Appellees’ interests were found by the trial court to he 13/27 of Vé of %. Neither party questions this finding. We affirm the decree as modified, except as to the failure to grant partition of the mineral estates. We remand the case for appropriate proceedings for partition of the mineral interests, either in kind or by sale. In its proceeding, the trial court should bear in mind the peculiar nature of the property rights involved. Upon remand, the trial court should correct its decree so as to conform to this opinion.
Affirmed as modified and remanded.
There are two virtually identical documents, differing only in that some of the heirs signed one and some the other.
Treatment of the words “working interest” as meaning something other than their purely technical definition is not novel. In disposing of a similar problem, the Supreme Court of Oklahoma has given recognition to the fact that the term “working interest” is not always used in its technical sense and that it is often used to denote merely an interest in the mineral rights, particularly when a conveyance has specified the proportionate interest in royalty or mineral rights to be held by the grantor and the grantee, when consistent with the other provisions of the instrument as a whole. Colonial Royalties Co. v. Keener, 266 P. 2d 467 (Okla. 1953).
A discussion of judicial partition relating to oil and gas rights will be found in § 6.3, et seq., 1 Kuntz, Law of Oil & Gas.
Although the statute had been amended, at the time of this decision, to specifically cover the interest involved, there was a contention that the amendment did not apply in this case. The court said that it made no difference which statute applied, because the original statute authorized the action. | [
112,
105,
-40,
45,
42,
96,
42,
-38,
105,
-29,
119,
87,
-23,
-34,
12,
113,
-21,
125,
113,
110,
-73,
-93,
18,
98,
-45,
-77,
-103,
-59,
48,
94,
-2,
-41,
12,
40,
-54,
81,
-62,
10,
-57,
28,
-50,
-123,
-86,
-24,
-7,
16,
52,
57,
16,
79,
97,
-98,
-29,
38,
29,
110,
73,
46,
-21,
41,
-55,
-8,
-69,
12,
95,
16,
-111,
66,
-104,
5,
-24,
30,
-104,
52,
8,
-88,
122,
-90,
-60,
-12,
7,
-85,
-88,
102,
98,
41,
-55,
-25,
88,
56,
38,
-6,
-99,
-92,
70,
88,
-93,
105,
-105,
21,
122,
65,
-114,
126,
-12,
-107,
28,
-84,
49,
-117,
-42,
-93,
13,
124,
-99,
27,
-21,
-89,
54,
116,
-55,
-86,
92,
70,
118,
-101,
14,
-111
] |
Carleton Harris, Chief Justice.
This is the second appeal in this case. In Crouch v. Crouch, 241 Ark. 447, 408 S. W. 2d 495, this court, in reversing the Chancery Court decree, held that tax deeds, obtained by two heirs of W. M. Crouch, deceased, to a certain 160 acres of land in Greene County, Arkansas, amounted only to a redemption for all heirs of W. M. Crouch, the two being co-tenants with the others. The two who had purchased the tax titles deeded the property to Harold J. Conrad and wife, appellees herein, endeavoring to convey absolute ownership. The appellees cleared the 160 acres, and farmed the land in 1964. The Greene Chancery Court, following our opinion, held on April 3, 1967, that appellants owned collectively an undivided 5/7 interest in the 160-acre tract, and that Conrad and wife owned a 2/7 interest, and it was determined that a partition sale should be held. No testimony was taken at that time, and the court, on the basis of the evidence at the first trial (.before the reversal), held that the Conrads should have compensation for the clearing of the acreage, from the sale proceeds, to the extent of $200.00' per acre, totaling $32,000.00. It was found that the value of the lands before the clearing was $150.00 per acre ($24,000.00), and that the total value of the lands, as of the time of the order, was $350.00 per acre, totaling $56,000.00. The sale was held on June 3, 1967, with appellees being the highest bidders, the amount of the bid being $28,500.00, approximately $178.00 per acre. Pursuant to a motion filed by appellants, and after a hearing, the court set aside all portions of its April 3 decree with respect to the amount which the Conrads were to receive for clearing the lands, and refused to confirm the sale due to the inadequacy of the bid. A new hearing was set for August 2, 1967, at which time ap pellants asked that the hearing be postponed on the matter of improvements until after another sale (which request had also been made at the April 3 hearing). The court refused the request, and proceeded to take evidence relating to the value of the land. At the conclusion of the hearing, the court found that the value of the lands was $48,000.00, holding that the value of same before being cleared was $24,000.00, and that the clearing had given an additional value of $24,000.00. Though the Conrads had not complied with the provision of the April 3 decree which required them to account for rents they had received since 1963 (this particular provision not having been vacated), the court awarded appellees a lien on the proceeds of the sale to the extent of the first $24,000.00 received therefrom, and authorized the Conrads to bid at the new sale without making any bond, except as to bids in excess of $24,-000.00. At the sale, the Conrads were again the highest bidder, the bid, however, this time, amounting to only $25,100.00, or approximately $157.00 per acre. The Greene Chancery Court overruled appellants’ objection to this sale, and refused to vacate or modify its findings of August 2. This appeal is from the August 2 decree, it being contended that the court erred in awarding the Conrads a lien upon the first $24,000.00 received, and that the court should have held that the primary equity was the right of appellants to receive 5/7 of this amount; further, that the award to appellees for clearing the land should have been based upon the actual sale price obtained at the sale, and that the court should have required appellees to render an accounting for any rents or profits before ordering the sale.
Though, as pointed out by appellants, the fact that the sales only brought the prices of $28,500.00 and $25,-100.00 somewhat indicates that the values established by the Chancellor were erroneous, it is not necessary to discuss that phase, of the case in this opinion, for we think clearly that the court erred in not first requiring appellees to account for any rents or profits derived from farming the lands. Ark. Stat. Ann. § 34-1423 (Eepl. 1962), the first section of the “Betterment Act,” provides that any person who, believing himself to be the owner, under color of title, has peaceably improved any land, which shall judicially be determined to belong to another, shall be entitled to the value of improvements made, and the amount of taxes paid. Section 34-1424, the second section of the act then provides:
“The court or jury trying such cause shall assess the value of such improvements in the same action in which the title to said lands is adjudicated; and on such trial the damages sustained by the owner of the lands from waste, and such mesne profits as may be allowed by law, shall also be assessed, and if the value of the improvements made by the occupant and the taxes paid as aforesaid shall exceed the amount of said damages and mesne profits combined, the court shall enter an order as a part of the final judgment providing that no writ shall issue for the possession of the lands in favor of the successful party until payment has been made to such occupant of the balance due him for such improvements and the taxes paid; and such amount shall be a lien on said lands, which may be enforced by equitable proceedings at any time within three [3] years after the date of such judgment.”
It is at once apparent that appellees are not entitled to any lien until it is established that the value of the improvements exceed any profits made, or any damage to the land.
Under this statute, appellants were entitled to receive credit for 5/7 of any rents and profits realized before the sale was held. Of course, appellees were given an advantage in being permitted to bid with a credit of $24,000.00, for they were only required to give bond for any amount in excess of that figure. Then too, the amount awarded actually was, in effect, a judgment against the appellants, and they were entitled to the proportionate stare of rents and profits more or less as an offset against the amount awarded for clearing the land. This view was expressed as early as 1909 in the case of McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88, which probably has been cited more than any other Arkansas case in litigation involving the betterment act. The case is comprehensive, and covers most, if not all, questions that might arise under this statute. Relative to rents and profits, the court further said:
“The various rules that have been formulated by courts of equity in attempting to make equitable adjustments of the rights of the occupant, on the one hand, to the value of the improvements and the taxes paid, and, on the other hand, of the owner to the rents and profits, were based upon such principles of equity as in the opinion of those courts were right. In the uncertainty of these decisions, the betterment act was enacted to definitely fix these respective rights, and it fixed as a substantive right for the owner of the land the rents of the lands for the period therein named, with the improvements which the lands then possessed. The general rule adopted by the courts for the measure of damages in cases for the recovery of mesne profits is the fair rental value of the lands during the period of the withholding. Analogous to that ruling, the betterment act is the fair rental value of the lands in their improved condition during the period named in the betterment act. This means the net rents — -that is to say, the amounts expended for necessary repairs and for such necessary expenses as under the custom of the country have been paid for management and collection of the rents should be deducted from the gross rental value.”
Appellees argue that appellants have lost their right to prosecute this appeal, and are estopped to challenge any findings of the lower court set out in the original decree (April 3), or amendment thereto. This argument is based on the fact that appellants had filed a notice of appeal to the original decree of April 3, but did not prosecute same. The sale was held and subsequently set aside by the trial court, which amended its decree on August 2. We do not agree with' appellees’ contention. The court had a right to set aside the sale, and, at any rate, appellees are not in a position to complain, since they did not appeal from the order setting aside the sale and amending the April 3 decree. Appel-lees further state that appellants did not make a super-sedeas bond, but permitted the commissioner to proceed with the sale, and actually took part in the bidding. We do not consider this last fact (taking part in the bidding), since this does not appear in the original reclord, and is offered as a supplement to the transcript through the affidavit of Gerald Phillips, Chancery Court Clerk and Commissioner in Chancery. The affidavit relates to matters that took place at the sale, was not offered into evidence at any hearing, and was not designated by either side as a part of the record for the purpose of this appeal. As to the failure to make a supersedeas bond, it may well be that appellants were unable to make this bond, and were therefore pSweriess to prevent the sale. Of course, it is quite likely that, if the property had been purchased for a price commensurate with the value placed upon it by appellees (and found by the court), this appeal would not have been pursued, but, feeling aggrieved at the findings of the court, appellants are entirely within their legal rights in bringing this appeal.
Because of the court’s error, as herein pointed out, the decree is reversed, and the cause remanded for further proceedings. | [
-11,
110,
-7,
12,
26,
64,
42,
-70,
80,
-91,
36,
83,
-17,
27,
1,
121,
-125,
61,
100,
104,
-10,
-77,
115,
81,
80,
-13,
-53,
-51,
53,
93,
-82,
-42,
76,
32,
-54,
21,
66,
-126,
79,
92,
-42,
10,
-101,
109,
89,
98,
60,
43,
20,
11,
117,
-66,
-13,
40,
29,
-53,
76,
44,
-53,
48,
17,
-72,
-86,
4,
63,
7,
32,
100,
-102,
-125,
72,
110,
-112,
113,
0,
-24,
115,
-74,
22,
116,
15,
-39,
12,
34,
-26,
1,
101,
-17,
-80,
-120,
38,
-33,
-115,
-25,
-48,
24,
98,
64,
-98,
-99,
124,
20,
-53,
-10,
-20,
-123,
29,
108,
-123,
-113,
-108,
-95,
-91,
-8,
-104,
3,
-5,
13,
48,
113,
-49,
-30,
92,
71,
59,
-101,
-114,
-16
] |
J. Feed Jones, Justice.
Mrs. Artalee Webb filed suit in the Monroe County Circuit Court against A. F. Lace-field alleging damages as a result of personal injuries sustained by Mrs. Webb in an automobile collision caused by the negligence of Mr. Lacefield. Lacefield denied liability and pleaded contributory negligence. A jury trial resulted in a verdict and judgment for Mrs. Webb in the amount of $300.00. Upon denial of a motion for a new trial, based on inadequacy of the award, Mrs. Webb appeals to this court, relying upon the following point for reversal:
“The court erred in denying appellant’s motion for new trial because the jury verdict was contrary to the law and evidence, in that said verdict was inadequate and was less than the uncontroverted and actual out-of-pocket medical expenses incurred by the appellant and therefore was plainly the result of mistake, passion and prejudice as a matter of law. Further, that the verdict of the jury completely disregarded the instructions of the trial court with respect to awarding compensation for pain and suffering and lost wages.”
The injuries complained of occurred when appellant drove her automobile into a parking lot at a grocery store and the appellee backed his pickup truck from a parking space and struck the left front fender and door of appellant’s automobile. There is considerable conflict in the testimony as to the force of the impact and as to the severity, extent, and duration of appellant’s injuries. The evidence is not conclusive that appellant’s expenditure. of $530.00 for drugs and medical treatment was entirely for treatment as a result of her injuries.
The jury verdict, as reflected in the judgment on page 18 of the transcript, referred to by appellant, is as follows:
“We the jury, find for the plaintiff, Mrs. Artalee Webb and assess her damages at $300.00.”
Without objection, the trial court gave its own instruction No. 2, as follows:
“If you find for the plaintiff the form of your verdict should be: ‘We, the jury, find for the plaintiff, Mrs. Artalee Webb and assess her damages at the amount you think she is entitled to receive under the proof of this case.’ ”
Ark. Stat. Ann. § 27-1902 (Repl. 1962) provides as follows:
“A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.”
This court has held when the undisputed evidence shows that plaintiff is entitled to recover substantial damages, a judgment will be reversed which awards only nominal damages, because a judgment for nominal damages is, in effect, a refusal to assess damages. Dunbar v. Cowger, 68 Ark. 444, 59 S. W. 951. The rule is otherwise where substantial damages, rather than mere nominal damages are awarded. We have not deviated from the rule reiterated in the case of Smith v. Arkansas Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411, where we said:
“Where substantial damages are awarded, a judgment will not be reversed because of inadequacy, if there be no other error than that committed by the jury in measuring the damages.”
The evidence as to damages is not undisputed in the case at bar, and the verdict for $300.00 damages was for more than a nominal amount in this case. We find no abuse of the trial court’s discretion in denying appellant’s motion for a new trial, and we conclude that the judgment of the trial court should be affirmed.
Affirmed. | [
-112,
-20,
-68,
45,
8,
64,
34,
10,
65,
-127,
54,
83,
-81,
-57,
88,
47,
-93,
-1,
97,
105,
87,
-93,
5,
34,
-46,
-101,
123,
-59,
-67,
-53,
-12,
-4,
76,
48,
-53,
-43,
70,
74,
-59,
88,
-50,
-126,
-117,
124,
73,
-30,
120,
39,
20,
25,
53,
-100,
-61,
43,
55,
-61,
73,
44,
91,
57,
18,
-79,
-128,
7,
127,
17,
-79,
36,
-98,
3,
90,
56,
-104,
49,
8,
-8,
114,
-74,
-126,
84,
105,
-101,
12,
98,
99,
49,
21,
-19,
-72,
-116,
39,
-2,
-113,
-89,
-40,
73,
-53,
11,
-74,
-100,
127,
20,
15,
-2,
120,
-43,
93,
108,
3,
-50,
-112,
-79,
-113,
124,
-44,
11,
-21,
15,
20,
97,
-52,
-30,
92,
-124,
31,
-69,
-49,
-73
] |
Paul Ward, Justice.
This litigation is over the ownership of a city lot. Appellant sued to quiet title on the ground of adverse possession. The trial court held in favor of appellees who held the record title. The background facts, set out below, are not in dispute.
On July 30, 1947 appellee, Bill D. Stobaugh, received a warranty deed to lots 94, 95, and 96 in Park-dale Addition to the City of Morrilton, Arkansas. On March 7, 1949 he sold lots 94 and 95 to I. E. Halbrook. On June 7, 1954 Halbrook sold lots 94 and 95 to Mr. and Mrs. Frank G. Thomas. There was a dwelling on lots 94 and 95 which abutted lot 96 to the south. While Hal-brook lived on lots 94 and 95 he had permission from Stobaugh to make use of lot 96. Mr. Thomas died in 1956.
On May 1, 1967 Mrs. Thomas, appellant, filed a pe^-tition in chancery court to quiet title to lot 96, alleging : She acquired title to said lot by proper conveyance, and by adverse possession for more than ten years during which time she paid taxes on the lot. In answer to the petition appellee alleged he was the owner of lot 96, and that appellant was not in possession of said lot.
After presentation of testimony on the issues joined, the trial court found and held: The defendants ('Sto-baugh and wife) hold record title to lot 96; plaintiff had permissive use of said lot but did not give appel-lees notice of adverse holding, and; plaintiff “did not have possession sufficient to constitute notice to defendants of adverse possession”.
On appeal, for a reversal, appellant relies on one point: “The findings of the trial court are against the preponderance of the evidence.” For reasons hereafter mentioned, we are unable to agree with appellant.
Both sides here have cited and discussed several decisions and authorities relating to acquisition of title to real estate by adverse possession, but, after careful consideration, we feel that the rules applicable to the facts in this case have been adequately announced in two decisions of this Court.
In Gee v. Hatley, 114 Ark. 376, 170 S. W. 72, where a fact situation similar to the one here was presented, the Court made the following statement:
“And it is true that it having been shown that Brooks entered into the permissive possession of the land, the presumption is that his subsequent possession and that of those claiming under him was in subordination to the church’s title and pursuant to this permission. But this presumption may be overthrown by the evidence, and the jury should find that it was overthrown, and that the possession was adverse, if they should find the fact to be that the trustees of the church had actual notice of this adverse possession, or that defendants’ occupancy had been so inconsistent with the presumption of a permissive possession as to impute knowledge to the trustees of that hostility.”
The above decision has been cited with approval by this Court many times. In Dial v. Armstrong, 195 Ark. 621, 113 S. W. 2d 503, where the Gee case was cited and approved, the Court also said-:-.
“The rule is that where the entry is permissive the statute will not begin to run against the legal owner until an adverse holding is declared, and notice of such change is brought to the knowledge of the owner.” ,(citing cases)
An application of the above rules here calls for an affirmance of the trial court unless the weight of the evidence shows: (a) appellees had actual knowledge that appellant was claiming title to lot 96, or; (b) appellant’s acts of possession were sufficient to impute such knowledge to appellees. It is our conclusion that the case must be affirmed on both grounds.
(a) It is not even contended by appellant that she or anyone else ever actually told appellees (or either of them) that she was claiming title to lot 96. Mr. Sto-baugh denies that he had such notice, and we find nothing in the record to the contrary.
(b) A much closer question is here presented. It is not questioned by appellees or anyone else that appellant and her husband exercised acts of control and possession over lot 96. They planted a garden each year; they tore down old buildings; they mowed the grass, and; they put a hedge across the front. However, there were other facts and circumstances which, we think, justified and support the trial court.
When Halbrook moved on lots 94 and 95 he was given permission to use lot 96, which, apparently, was unsightly because of old buildings and undergrowth. Consequently Stobaugh gave him permission to use it in any way he desired. When appellant (and her husband) moved in they used lot 96 as previously indicated. Mr. Stobaugh testified that all this was agreeable to him. The record shows that appellees had moved away from Morrilton in 1947 and did not return until 1959. Also, the trial court could have concluded that appellant was confused as to certain matters. She stated they were supposed to get title to lot 96, but their warranty deed ((Transcript p. 20) plainly shows otherwise. Appellant stated they had paid taxes on lot 96 from 1955 to 1959, but tax receipts attached to the record show otherwise. This discrepancy, however, is explained by the record so as not to reflect on the integrity of appellant.
The close question therefore is: Were the above acts of possession, when viewed together yith all the attending circumstances, sufficient to constitute notice to appellees that appellant was claiming absolute title to Lot 961 The trial court found they were not sufficient, and we are unable to say such finding is against the weight of the evidence.
Affirmed.
Byrd, J., dissents. | [
112,
110,
-59,
60,
26,
-32,
24,
-69,
97,
-85,
103,
83,
47,
-62,
93,
45,
-90,
57,
-15,
104,
-59,
-74,
35,
-62,
80,
-69,
75,
-59,
-67,
94,
-26,
-41,
76,
32,
-62,
117,
70,
64,
-19,
30,
-50,
-127,
27,
85,
-39,
80,
52,
63,
80,
15,
17,
-97,
-78,
-84,
17,
-53,
73,
44,
73,
37,
80,
-8,
-118,
-124,
-1,
6,
51,
20,
-72,
1,
-8,
8,
-112,
57,
0,
-88,
51,
54,
-126,
116,
9,
-97,
8,
38,
98,
2,
109,
-25,
-16,
-104,
14,
-2,
13,
-90,
50,
72,
66,
97,
-74,
-108,
117,
16,
64,
-2,
-20,
-123,
24,
108,
13,
-49,
-44,
-79,
15,
-88,
-122,
19,
-9,
37,
52,
112,
-49,
-58,
93,
71,
19,
-101,
-100,
-44
] |
George Rose Smith, Justice.
This action arose from a collision between a car being driven by Ezell Walters and a trudk being driven by the appellee, Michael Robertson. Clayton Moore, a passenger in the Walters car, was killed, and Wallace Montgomery, another passenger, was injured. This action for wrongful death and for personal injuries was brought by two of the appellants, Moore’s widow and Montgomery. Moore’s daughter later intervened as a plaintiff. There were ultimately three defendants in the case: The appellee Robertson, who was driving the truck, Jim Ritchie, who owned the truck, and J. 0. Ashcraft, who was Robertson’s regular employer. The plaintiffs -alleged alternatively that at the time of the collision Robertson was acting as the agent of each of his codefendants.
Robertson failed to plead to the complaint within the time required by statute. The court entered a default judgment against Robertson, reserving the issue of damages for a later determination. Later on, however, the court set aside the default judgment and allowed Robertson to defend the suit. Upon a trial on the merits the court found in favor of all three defendants, finding specifically that none of the three defendants was negligent and that Robertson was not acting as agent for either Ritchie or Ashcraft at the time of the collision.
When the trial court announced his decision counsel for the plaintiffs made a rather unusual request, asking that the court, despite his decision in favor of the defendants, nevertheless find the amount of the plaintiffs’ damages, to provide for the possibility that on appeal the court’s action in setting aside the default judgment against Robertson might be reversed. With some reluctance the court acceded to that request and made offhand findings of damages totaling $24,620.60.
Counsel for the plaintiffs proved to be a good prophet, for on the first appeal we held that the court should not have set aside the default judgment. We remanded the case “for reinstatement of the default judgment.” Moore v. Robertson, 242 Ark. 413, 413 S. W. 2d 872 (1967). Upon remand the trial court heard a number of witnesses on the issue of damages and made awards to the plaintiffs totaling $9,200.00. The case now reaches this court for the second time, on appeal and cross appeal.
On direct appeal the plaintiffs insist that on remand the trial court had no choice except to make awards totaling $24,620.60 in accordance with its findings at the end of the first trial. That same argument was made on the first appeal and was rejected, our direction on remand being only that the default judgment be reinstated. That conclusion is now binding as the law of the case. Storthz v. Fullerton, 185 Ark. 634, 48 S. W. 2d 560 (1932). We may appropriately add that we are still of the same opinion as we were then. To allow the losing litigant to encumber the appeal with contingent or provisional issues would needlessly complicate the proof in the trial court, the responsibilities of counsel on appeal, and this court’s consideration of the Controlling question. Moreover, as this record demonstrates, the trial court’s treatment of semifictitious issues is apt to have all the disadvantages of a curbstone opinion, with hardly any countervailing benefit.
On cross appeal Robertson first contends that the trial court’s decision in favor of his codefendants, on the merits, should enure to his benefit as well. That contention is based upon a common-law rule that where one defendant answers and another defaults, a decision on the merits in favor of the v answering defendant — upon a defense common to both defendants — -operates as a release of the defaulting defendant. Burt v. Henderson, 152 Ark. 547, 238 S. W. 626 (1922).
The appellee’s contention is not now available to him, because it could and should have been made on the first appeal. The rule is that the decision on the first appeal is conclusive of any arguments that were or could have been made at that time. Storthz v. Fullerton, supra. The case at bar confirms the wisdom of the rule. If the appellee’s contention has merit — a point which we do not decide — its assertion on the first appeal would have done away with the necessity for a second trial and a second appeal, with their attendant expenditure of time and money. Such waste can be effectively prevented only by a strict adherence to the principle that points not urged upon the first appeal are not available later on.
The appellee also contends on cross appeal that the several awards made by the trial court are all excessive. For the most part we regard them as somewhat modest —so much so that a discussion of each award would be of no value as a precedent. We must, however, sustain the contention that the proof does not support the.allowance of $500 to Mabel Edwards as compensation for mental anguish occasioned by the death of her father. It was settled by Peugh v. Oliger, 233 Ark. 281, 345 S. W. 2d 610 (1961), that compensable mental anguish means something more than the normal grief occasioned by the loss of a loved one. Mrs. Edwards’s father was 74 years old at his death; she was a mature woman with grown children. There is no proof of any special ties of affection between Mrs. Edwards and her father. In fact, the sole proof pertinent to the issue of mental anguish consists of a single question and answer: “Q. You had love and affection for your father? A. Yes, I did.” Under the rule adopted in the Peugh case that meager proof is not sufficient to support any award for Mrs. E’dwards’s mental anguish. To that extent only the judgment must be reversed and the cause of action dismissed.
Affirmed on direct appeal; reversed in part on cross appeal. | [
-14,
110,
-128,
-84,
41,
98,
42,
106,
117,
-31,
117,
83,
-83,
-53,
4,
43,
-6,
127,
117,
107,
-9,
-93,
23,
-78,
-5,
-77,
-13,
-63,
-73,
-49,
108,
92,
76,
112,
-50,
93,
38,
8,
-59,
-2,
-50,
-110,
-39,
109,
-7,
64,
-80,
122,
0,
15,
97,
-98,
-49,
46,
26,
70,
105,
42,
121,
-87,
-47,
-79,
-50,
5,
-1,
21,
-77,
68,
-98,
33,
120,
25,
-48,
49,
8,
-8,
50,
-124,
-126,
-12,
105,
-103,
8,
34,
99,
-128,
85,
77,
-68,
-72,
39,
-2,
31,
-122,
-98,
25,
9,
101,
-74,
-67,
123,
20,
12,
-4,
-2,
93,
93,
40,
65,
-53,
54,
-127,
-51,
51,
-102,
11,
-21,
3,
50,
113,
-56,
-54,
93,
69,
112,
-45,
7,
-106
] |
John A. Fogleman, Justice.
Appellant asserts error on the part of the trial court in granting a motion for summary judgment. It contends that its answer to a request for admissions, even though verified by its attorney only, constituted a denial and thus preserved questions of fact for determination.
Appellant, a corporation, brought this action for foreclosure of a deed of trust executed by appellees to secure the payment of a promissory note executed by appellees to K-V Builders, Inc. 'While the note was payable to the order of K-V Builders, Inc., the deed of trust secured appellant, Delta Discount Company. Appellees first filed a general denial and then an amendment. The amendment asserted that the contract appellant sought to enforce was usurious and that neither appellant nor the payee in the note was incorporated under the laws of the State of Arkansas or authorized to do business in the state as a foreign corporation on the date of the execution of the note or deed of trust or on the date the amendment was filed. Appellees asked that the note and deed of trust be declared void for usury, that the complaint be. dismissed and that they have judgment for payments made. Appellees filed and served three separate requests for admissions. The last request asked appellant to admit that neither appellant nor K-V Builders, Inc. was incorporated or authorized to do business under the Arkansas statutes on the date of execution of the note and deed of trust, or on January 31, 1966. The answer to this request was signed and verified by one of appellant’s attorneys. Appellees, on January 25, 1967, filed and served a motion for summary judgment based upon the assertion that failure of appellant to properly verify its response to the request for admission constituted a failure to answer and left no genuine material issues of fact. No response was made to this motion which was granted on September 21, 1967.
The sole* argument for reversal is that this court has adopted the rule that answers to requests for admissions must be verified by the responding party, rather than by his attorney, upon an erroneous assumption that this view is supported by the weight of authority. Appellant asserts that the weight of authority supports the view that a sworn statement by the attorney for the party whose admissions are requested constitutes a sufficient response.
While it appears that there is a division of authority on the question, we need not now engage in a process of weighing these authorities for the rule has been clearly stated, adopted and followed in this state. Young v. Dodson, 239 Ark. 143, 388 S. W. 2d 94; B & P, Inc. v. Norment, 241 Ark. 1092, 411 S. W. 2d 506. Appellant argues that our adherence to the rule does not give proper consideration to the fact that a corporation can act only through its officers, agents and employees and that the particular questions involved here could only be answered by attorneys. Perhaps it is necessary in many instances that there be consultation between a party (either individual or corporate) and his attorney before such requests may properly be answered, but we see no reason why the requests could not have been answered by an officer of the corporation who had knowledge of the facts. We previously applied the rule to a corporate plaintiff who was served with virtually identical requests for admissions in B & P, Inc. v. Norment, supra.
Since it must be taken as admitted that both appellant and K-V Builders, Inc. are foreign corporations, not authorized to do business in Arkansas, the decree is affirmed.
It should be noted that during this eight-month period appellant made no effort to obtain permission to properly verify its answer, as permitted under the authority of Kingrey v. Wilson, 227 Ark. 690, 301 S. W. 2d 23. | [
20,
-20,
-16,
126,
-119,
96,
40,
-118,
-47,
-119,
39,
83,
-17,
-54,
-124,
121,
-26,
29,
-47,
120,
85,
-77,
7,
104,
-46,
-77,
-40,
-43,
-80,
111,
-28,
-105,
76,
-96,
-54,
-43,
-58,
-118,
-57,
92,
-50,
6,
-102,
-60,
-39,
-127,
48,
19,
82,
7,
49,
-98,
-13,
41,
25,
66,
-24,
44,
107,
-83,
65,
-71,
-102,
-115,
127,
7,
-79,
101,
-104,
69,
-8,
38,
-112,
48,
1,
-8,
114,
-74,
-122,
116,
43,
25,
44,
98,
99,
33,
-119,
-25,
-72,
-120,
6,
62,
-115,
-26,
-45,
72,
73,
45,
-73,
-99,
120,
16,
14,
126,
-18,
-116,
31,
109,
3,
-49,
-10,
-77,
-103,
124,
24,
-117,
-1,
-77,
48,
113,
-50,
-32,
93,
102,
26,
-101,
-114,
-111
] |
John A. Fogleman, Justice.
This appeal is taken from a decree of the trial court dismissing appellant’s complaint seeking to set aside a deed dated August 17, 1956, from one E. E. Hodges and his wife, Olga, tor appellee Hazel Ella Helms, one of their seven children living at the time of the execution of the deed.
This deed conveyed lots in Vilonia on which the Hodges home was located. It was recorded on November 16, 1956. The consideration recited is $1.00 and other valuable considerations. A reservation in the deed is worded as follows:
“Retaining a dower interest for the said E. E. Hodges & Olga A. Hodges for the use and possession during their natural life.”
The attack on this deed is twofold; i. e., (1) breach of a continuous promise by appellees of future support to appellant’s ward and his wife, and (2) fraud in procurement. Appellees deny that a promise of future support to E. E. and Olga Hodges constituted any part of the consideration for the deed and assert that any claim for cancellation of the deed is barred by the statute of limitations and laches.
At the time of the trial, E. E. Hodges was 91 years of age, 10 years older than he was when the deed was executed. He had built a modest home on these lots which he had owned since 1906. The deed in question had been drawn by an attorney at Beebe and the acknowledgment thereof was before him.
. Mrs. Olga Hodges died April 30, 1960, having resided on the property until her death. E. E. Hodges resided there after the execution of the deed, except for absences due to surgery and a broken hip, because of which he was a patient in hospitals and nursing homes. He was in hospitals and nursing homes in the latter part of 1963 and early 1964. "When he returned home, the appellees had gone to California. He remained at home for six or seven, months during their absence. A short time before this case was filed, he broke his hip and went to a hospital, after which his son, Doyle, took him to a nursing home where he was at the time of the trial. His maintenance cost there exceeds the welfare department allowance by $70 per month, the payment of which is borne by appellee Hazel Helms and three of her brothers in rotation.
When , the deed was executed, appellees had sold a motel at Beebe and were apparently in good financial condition. At least six years before the execution of the deed, the parents had executed a will or wills devising and bequeathing everything they owned to appellee Hazel Helms. This was done with the acquiescence of most, if not all, of the Hodges children. One of them, Doyle (W. E.) Hodges (who admits having promoted this suit), claims to have instigated and encouraged this testamentary action. It is clear that it was not contemplated at that time that the Helmses would ever live with the parents at the family home. It is certain that there was no agreement at this time that they would support the father and mother.
The Hodges family was raised in comparative poverty. ¡Several of the children left home at early ages to seek employment. Hazel was probably the first to leave when she was 14 of 15 years of age. There seems to be no dispute about the fact that thereafter she made substantial contributions to the maintenance and support of the family, particularly to her mother and father. The only dispute is about the extent of these contributions.
Hazel Helms testified that she and her husband moved in with her parents, at their invitation and urging, after the sale of the Beebe Motel, although she and her husband had previously planned to build their own home. She said that the move was considered by her mother and father for four or five months. The well at the Hodges homestead had gone dry and the parents were persistent about the need for alterations. The will or wills had previously been made, but Hazel said she told her mother that if she and her husband were going to spend money, for the home place, she would prefer a deed rather than a will. After the parents approved, she related, they went to the attorney’s office in Beebe. While they wanted a will, she insisted on “a dower right.” She stated that her parents voluntarily gave her the property, except for their right to live there.
After the execution of the deed, appellees moved into the parents’ home, remodeled it and made substantial improvements thereto. They have maintained the property and paid all taxes thereon since that time. While appellees were apparently in good financial circumstances when the deed was executed, adversity has come upon them lately. These adverse conditions were attributable, at least in part, to the poor health of Walter Helms which has resulted in his becoming a wheel chair invalid since he had a leg amputated in 1964. So far as the record reveals, the only income of appellees is $300 per month from social security payments and veteran’s pension payments to the husband. The wife says that she is unable to seek employment because of her husband’s need for her attention.
Not long after the execution of the deed, the mother and father qualified for welfare grants and E. E. Hodges is still receiving a welfare check.
Appellees endeavored to sell the property in 1964 and 1966, but apparently were impeded by the reservation. in the deed. It is admitted that appellee Hazel Helms offered Doyle $500 to obtain their father’s signature on a quitclaim deed which would make a conveyance of title to the property possible. Hazel Helms testified that her father was to have whatever the law allowed for his life estate from the proceeds of the sale.
No attempt was ever made by E. E. or Olga Hodges to rescind or cancel this deed. Appellant’s complaint seeking to do so was filed April 24, 1967. The exact date of Ms appointment as guardian of E. E. Hodges does not appear, but it seems to have been subsequent to the appellees ’ listing of the property for sale by Mm as a real estate agent in January 1967.
Although one other son testified on each side, the real controversy is between Doyle Hodges and appel-lees. It seems clear that this brother has known of the existence of this deed since 1959. His brother who testified for appellant recalled having gone with his sister to a lawyer’s office to discuss the drawing of such a document. The brother who testified for appellees said that he knew of the deed earlier, although he lived in California and had lived on the west coast since 1936.
The testimony as to the existence of an agreement on the part of Hazel Helms to support her parents for the rest of their lives is sharply conflicting. Most of it was given by Doyle Hodges and relates to statements of Ms sister after the deed to her was executed. When first asked about conversations with Ms sister about her responsibilities under the deed, he told of an occasion when Hazel, sitting with their mother and father, spoke on the subject. He said: “She says I promised to take care of — you only have a lifetime dower in it. Now wnat that means, I don’t know.” He also stated: “There’s nothing I can recite about the commitment of the defendant if you want me to.” In response to the trial judge’s question whether his mother or father ever told him what constituted the consideration for the deed, he answered, in part:
“Said they were going to care for them. You know didn’t make it very strong. Did — says this is disagreeable here. One statement from mother says Son, I wish we had a little home off to ourselves. I said if I ever get the money and in shape, I’ll get it for you. If they won’t let you build it here, I’ll build it somewhere else. Said they were supposed to take care of us but she don’t cook half of the time. ’ ’
The date or dates of such statements are not given. Doyle Hodges and his wife also testified that on one occasion they got Hazel Helms off the street when she was intoxicated and driving an automobile. They said that, after taking her to their home, they went to the home of the oldest Hodges daughter where the two sisters got into a quarrel, after which Hazel was said by Doyle to have responded to their sister’s accusation that she took their mother’s home by saying that she took it because she had agreed to take care of them the rest of their lives. Doyle’s wife’s version was that Hazel said that she had taken the place and would keep it and would take care of “Mama” and “Papa” as long as she (Hazel) lived. Doyle testified that on another occasion, while his mother was living, his sister Hazel cursed their father and called him a “s.o.b.” and other names, and said to him, “[Y]ou can only have a lifetime dower and I agreed to take care of you, but you can take care of yourself.” Harold Hodges, who was younger than either Doyle or Hazel, was the son who testified on behalf of appellant. He moved to California in 1936, but visited at his father’s home almost every summer. His sister had talked to him about getting the property conveyed to her about 1955 or 1956, and said the home was “made” to her and the “folks” would have a place to stay and would be well taken care of as long as they lived, according to his understanding. He went with her to the attorney in Beebe to talk about drawing up a will or deed for the place to go to her when their parents passed away, their having a home there as long as they lived. Later, in response to questioning by the trial judge, Harold testified that Hazel said, in the absence of their father and mother, that in order to get this property, she would see that the folks were well taken care of as long as they lived.
On the other hand, Hazel Helms vehemently and repeatedly denied any such agreement.
I. 0. Lee Hodges testified on behalf of appellees. He had left home in 1936, when about 21 years of age, and had lived in Oregon and California since that time. He stated that in 1957 or 1958, after extensive improvements had been made, he asked his mother if there was any “setup” to protect Hazel’s interest. His mother replied, he said, that a will and the necessary papers had been made to protect her. His mother said to him that Hazel had done so much for them that she hoped she could be repaid. Mrs. Hodges’ concern, said I. 0. Lee, was a home near Hazel. He had known that Hazel had the deed since 1957 or 1958, having been told of it by his mother.
E. E. Hodges, the grantor, testified after the court adjourned to Meadow Lake Nursing Home upon invitation of appellees’ counsel and following testimony by Doyle Hodges that his father could clearly reveal the situation. He denied knowing what he had signed but said he learned for sure what it was after about two years. On examination by appellant’s counsel, he denied that Hazel ever used any language around him indicating that she would take care of him the rest of his life. He never talked to her about the matter since he discovered that he signed a deed.
A mere preponderance of the evidence is not sufficient to establish an alleged unperformed agreement on the part of the grantee in a deed to support the grantor where that consideration is not expressed in the deed. Viesey v. Wooten, 220 Ark. 962, 251 S. W. 2d 593; Hammett v. Cannon, 226 Ark. 300, 289 S. W. 2d 683. Evidence to engraft upon a deed a consideration other than that expressed therein must be clear, cogent and convincing. May v. Alsobrook, 221 Ark. 293, 253 S. W. 2d 29. Evidence to justify the cancellation in equity of a deed properly executed and acknowledged must also be something more than a mere preponderance. It must be clear, strong and conclusive, or clear, cogent and convincing, or clear, unequivocal and decisive. Williams v. Shaver, 100 Ark. 565, 140 S. W. 740; Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253; Johnson v. McAdoo, 222 Ark. 914, 263 S. W. 2d 701; Swim v. Brewster, 177 Ark. 1171, 9 S. W. 2d 560. Especially is this burden applicable when fraud is alleged as the basis of cancellation. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517; Herr v. Murphree, 240 Ark. 834, 402 S. W. 2d 393.
In a letter constituting his findings, the trial judge found all issues of law and fact in favor of appellees. Tbe court’s decree contained these specific findings of fact:
‘‘That certain Warranty Deed executed by E. E. Hodges and wife, Olga Hodges, on the 17th day of August, 1956, and recorded in Deed Record Book 140 at page 217 in the office of the Recorder within and for Faulkner County, Arkansas, was executed for a valuable consideration, and that said deed should not be cancelled nor set aside. That said deed was not executed in return for any continuing promise of support by the defendants herein to E. E. Hodges or his wife, Olga Hodges, and that the said Hazel Ella Helms took title to the following described property subject to a life estate in E. E. Hodges and his wife, Olga Hodges, who is now deceased. ’ ’
When we consider the testimony showing the contributions made by Mrs. Helms to her mother, father, brothers and sister, before the execution of the deed, the improvements made by the Helms on the property after the deed, and the fact that the mother and father resided in the-home as long as, and whenever they de sired to do so, we cannot say that the chancellor, who saw and heard the witnesses and observed their manner and demeanor while testifying, erred in finding that appellant failed to meet his burden. We cannot, for that matter, say that his findings are against the preponderance of the evidence. Thus, it is not necessary that we consider the very conflicting testimony relating to manner of performance of the alleged contract.
The decree of the lower court is affirmed.
It is another of life’s sad stories of acrimonious controversy among siblings over the disposition of property acquired by their parents.
While this reservation may seem ambiguous, it is not questioned that the correct construction of the clause effects the retention of an estate for the life of the survivor of E. E. and Olga Hodges. | [
81,
108,
-112,
63,
59,
-31,
10,
-104,
114,
-89,
55,
87,
-17,
66,
84,
105,
-23,
45,
117,
106,
-57,
-13,
7,
32,
19,
-77,
-29,
-43,
-19,
-51,
-26,
-43,
76,
32,
-126,
21,
-58,
-62,
109,
24,
78,
-121,
-117,
69,
-103,
-46,
49,
63,
88,
79,
81,
-98,
-5,
41,
52,
111,
108,
44,
91,
41,
72,
-24,
-86,
12,
91,
7,
-110,
71,
-100,
-121,
-24,
74,
-112,
53,
-128,
-24,
82,
-90,
-106,
116,
67,
-99,
24,
34,
99,
0,
-51,
-3,
-8,
-104,
14,
118,
-115,
-89,
22,
120,
113,
109,
-67,
-99,
120,
-108,
46,
126,
-4,
-99,
93,
-32,
40,
-113,
-42,
-77,
-68,
-72,
-99,
26,
-25,
33,
48,
113,
-49,
-88,
92,
103,
115,
-101,
14,
-110
] |
Darrell Hickman, Justice.
This is an appeal of a personal injury lawsuit from Pulaski County Circuit Court. William J. Duncan sued Roger M. Foster and United States Fire Insurance Company for injuries which Duncan suffered as a result of an automobile accident July 1, 1977. The accident occurred on Geyer Springs Road in Little Rock, Arkansas. This case was tried before the trial court sitting without a jury. At the time of the accident, Foster was an employee of the State of Arkansas which is the reason that United States Fire Insurance Company is a joined defendant. After hearing the evidence, the court entered specific findings of monetary damages of $20,000.00. The damages were reduced by 30% when the court found that Foster was 70% at fault and Duncan was 30%.
On appeal five arguments are raised. All arguments concern the court’s discretion and the weight of the evidence. On appeal of such a case, this court looks to see whether the findings were clearly erroneous. Rules of Civil Procedure, Rule 52. After reviewing the record in this case we cannot say that the trial court was clearly erroneous in any of its findings. We affirm the judgment.
First, it is argued that the court should have found damages because Duncan had to hire an employee in his business. Duncan was in the business of cutting and removing trees. He began operating his own company in March of 1977, and he testified as to his gross and net income in 1977 and his gross and net income for 1978. The percentage between gross and net income for those years was about the same. However, in 1978 his net income increased by $14,-000.00. He offered no evidence of what his past earnings were. He said that the employee cost him $12,900.00 from July, 1977, until, March, 1979. The court was unconvinced that the employee was necessary. It was not clear whether the addition of the employee was related to the injury, or whether Duncan would have employed the extra help anyway. Duncan had suffered a knee injury which bothered him before the accident in question. In fact, he had complained that he was having difficulty climbing trees and this was an integral part of his job. Duncan conceded that age made the job more difficult. There was some medical testimony that Duncan could have, in fact, perhaps done more after the accident than he did. In view of this evidence, we cannot say the trial court was clearly wrong.
The second argument is that the court was wrong in apportioning the negligence. Duncan was proceeding south on Geyer Springs Road which has four lanes of traffic and Foster cut across in front of him. The trial court observed in its detailed findings, “Mr. Duncan had the right of way but the mere fact you have the right of way on a street or highway doesn’t give you the right to just be blind to everything that is going on around you.” He indicated that Mr. Duncan may not have been keeping a proper lookout. Furthermore, there was a question of speed. Certainly we could not substitute our judgment for that of the trial court in view of the testimony we could not say the court was clearly wrong.
The third argument is that the court should have compensated Duncan for loss of earning capacity for future income. This would have required speculation on the part of the court. Duncan’s orthopedic surgeon testified that some people in Duncan’s position could work and some could not. It was a question of tolerance of pain. There was no evidence at all that Duncan’s earning capacity would be diminished. The only evidence offered was the amount of income and ex penses for 1977 and 1978; those figures showed an increase not decrease in earnings. Consequently, we cannot say the trial court was clearly wrong.
The fourth argument is that the court did not compensate Duncan for past, present, and future pain and suffering. The court made a finding that pain and suffering would be $7,500.00 of the $20,000.00 award. The court observed that there was evidence of a pre-existing degenerative disc and that Mr. Duncan obviously had a mental problem in relation to the accident. Furthermore, there was the question of a previous knee injury. We cannot say the award was clearly wrong.
Finally, Duncan argues that there was no award for future medical expenses. The orthopedic surgeon was convinced that part of the problem was mental, which is not unusual in such cases. In fact, Duncan sought the services of a psychologist in connection with his recovery. The orthopedic surgeon flatly testified that he could not determine the amount of medical care and expense that Duncan would have to incur in the future. An award for damages cannot be made on the basis of speculation. Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405 (1976). Consequently, this argument has no merit.
Affirmed.
Purtle, J., not participating. | [
-12,
-20,
-8,
-116,
-120,
96,
58,
30,
81,
-55,
-91,
83,
-17,
-59,
69,
107,
-26,
-71,
69,
107,
-33,
-77,
23,
-93,
-126,
-69,
59,
-59,
-79,
75,
-12,
-108,
85,
56,
74,
-43,
-94,
8,
-59,
16,
-50,
4,
-85,
125,
-39,
0,
56,
-1,
52,
7,
53,
-98,
-69,
40,
16,
-64,
76,
44,
123,
-87,
-46,
-15,
-62,
5,
126,
16,
1,
68,
-102,
35,
88,
12,
-112,
49,
0,
-8,
114,
-78,
-122,
116,
39,
-119,
68,
-92,
102,
48,
17,
-49,
-24,
8,
39,
-66,
15,
-90,
-106,
41,
27,
9,
-65,
-105,
126,
20,
23,
120,
-10,
76,
28,
108,
-121,
-114,
22,
-15,
-49,
100,
28,
3,
-21,
7,
52,
113,
-50,
-30,
92,
5,
123,
-37,
-121,
-38
] |
Richard B. Adkisson, Chief Justice.
The issue presented in this case is whether the appellant, Arkansas State Securities Commissioner, had either a statutory or common law basis to seek an injunction to prevent appellees from performing the following acts in regard to carrying on their business of tutoring applicants for license as broker-dealers under the rules of the Municipal Securities Rulemaking Board:
(1) Acquiring, or attempting to acquire, a copy of any examination given, or proposed to be given, by any government body or self-regulatory agency;
(2) Failing promptly to report to the appropriate government body or self-regulatory body the receipt of any portion of what is represented or which appears to be an examination given, or proposed to be given, by such a body or agency;
(3) Asking students to memorize and report back a specific test question(s), portions of a test, or otherwise relate verbatim portions of an examination;
(4) Providing specific questions for applicants to learn by rote as preparation for the examination;
(5) Having a staff member, officer, agent, or employee take an examination other than for a bona fide, full-time position within the securities business and as required for such association;
(6) Having a staff member, officer, agent, or employee in the testing room or in the halls, rest rooms, or other rooms and areas immediately adjacent to the testing room;
(7)Rebating fees, waiving fees, rewarding or otherwise paying for questions on, or reputed to be on, official examination;
(8) Representing that material used in the course of instruction is, or has been, on official tests, except where true and revealed as such by the testing body or agency;
(9) Conducting post-test, debriefing or other systematic debriefing practices which seek to determine specific questions and/or answers used on the test. Post-test conduct shall be limited to persons personally tutored for the examination and shall not be initiated, pursued or encouraged on the examination day;
(10) Conducting such a business without complying with Act 416 of the 1965 General Assembly, as amended.
The Pulaski County Chancery Court denied this requested injunction, holding that the Arkansas Securities Commissioner had no standing to bring the complaint, and that the statutory and common law basis cited and argued by appellant in support of his action related only to matters involving the “exchange, trading or sale of securities.”
Upon trial de novo in this court, we review three points which appellant relied on in the trial court and on appeal. Appellant claims a basis for injunctive relief under each of these points.
First, appellant claims statutory authority for relief under Ark. Star. Ann. § 67-1235(3) (Repl. 1966), which provides:
It is unlawful for any person, in connection with the offer, sale or purchase of-any security, directly or indirectly
(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
However, since none of the acts complained of, if true, are in connection with “the offer, sale, or purchase of any security, directly or indirectly,” the statutory basis for the injunction is nonexistent.
Second, appellant claims a “violation of general law and Rules and Regulations of Securities Department,” citing Ark. Stat. Ann. §§ 67-1238(f), 67-1240(a)(2)(I), 67-1240 (b)(6) (Repl. 1966), and Rule 4.01(C). The statutory and regulatory authorities cited apply to applicants or registrants as defined within the Act and are inapplicable to appellees, who only train persons to take examination.
Also, we find appellant’s theory of “general law” as a basis for relief to be without merit. Appellant cites no authority for his broad assertion that various cases construing the Arkansas Securities Act, Ark. Stat. Ann. § 67-1235 — 1262 (Repl. 1966), have created a general common law prohibition against any wrongdoing by any person however remotely related to the specific provisions of the Act.
Third, appellant alleges appellees’ tortious interference with a contractual relationship between the National Association of Securities Dealers and the Arkansas Securities Department which administered the test.
Under this contract, the commissioner received a nominal fee to proctor the examination administered to applicants for registration. Even assuming that a valid contract existed between these parties, there is a total lack of proof in the record to establish an actionable interference with the contract by appellee resulting in damage to appellant. Also, we find no proof that the acts complained of either caused or were intended to cause any party to fail to perform the contract. See Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543 (1969).
Affirmed. | [
116,
-18,
-28,
-36,
10,
96,
58,
-70,
81,
-81,
103,
-45,
41,
-46,
20,
101,
-105,
47,
116,
104,
-42,
-74,
23,
104,
70,
-5,
-101,
-57,
-73,
79,
-12,
-97,
72,
48,
-54,
-43,
-58,
74,
-61,
26,
-114,
1,
-117,
77,
-39,
-64,
40,
35,
22,
79,
17,
-34,
-29,
44,
29,
-54,
109,
108,
75,
-4,
64,
-79,
27,
15,
127,
4,
17,
37,
-98,
5,
-40,
46,
-36,
58,
-119,
-23,
114,
-90,
-46,
-60,
41,
-7,
40,
34,
34,
9,
0,
-25,
-104,
-116,
62,
-1,
-83,
-78,
-110,
73,
107,
9,
-105,
-107,
110,
16,
6,
-4,
-94,
84,
26,
124,
7,
-49,
-58,
-77,
21,
-19,
-104,
-125,
-29,
-61,
16,
117,
-49,
-10,
86,
79,
51,
19,
-50,
-12
] |
Darrell Hickman, Justice.
The question here is one of statutory construction. The statutes in question relate to eligibility for parole by inmates.
Charles Joseph Poe was convicted of burglary and grand larceny in 1976 and is serving twenty-one years on those charges. He claims that the Department of Correction determined wrongfully that he is not eligible for parole.
He sued the Department of Correction in Jefferson County Circuit Court, seeking a writ of mandamus. Both parties filed for summary judgment and relied on the same law. If Poe’s interpretation of the law is correct he is entitled to be considered for parole after serving one-third of his time; if the Department of Correction is correct, he will not be eligible until he has served one-half of his time. The circuit court judge held for the Department and the same issue is now before us. We affirm the judgment.
Poe committed his crimes on December 29, 1975. He pled guilty and was sentenced on February 13, 1976. His sentencing took place two days after the General Assembly passed Act 1161 which related to eligibility for parole of individuals serving a term for years. Under Act 1161 an individual in Poe’s situation had to serve one-half of his time before being eligible for parole.
The next year the General Assembly passed Act 93 of 1977. The purpose of this Act was to “Establish the parole eligibility for persons convicted of committing a criminal offense after April 1, 1977.” However, Act 93 provided in Section 2 (A) that:
Persons who committed felonies prior to April 1, 1977, and were convicted and incarcerated for the same, shall be eligible for release on parole in accordance with the parole eligibility law in effect at the time such crime was committed. [Emphasis added.]
It is this section that Poe argues changed his status. Before he committed the crime on December 29, 1975, before Act 1161 was passed, he claims he is eligible for parole under the provisions of Act 94 of 1969. This would allow him to be eligible for parole after serving only one-third of his time. If Section 2(A) controls, he is right and that is not disputed.
In summary, everyone concedes Poe was legally sentenced under a law that requires him to serve one-half his time, but if Section 2(A) is read literally, Poe’s status was changed. Did the General Assembly intend that? This does not appear to be the intention of the General Assembly when you study both acts in their entirety, construe them together, and reconcile them if possible. Larey v. Wolfe, 242 Ark. 715, 416 S.W. 2d 266 (1967). This was not the intention if the statutes are to be given a common sense construction. Dozier v. Ragsdale, 186 Ark. 654, 55 S.W. 2d 779 (1932). Poe’s position might prevail if repeal by implication were a favorite of the law, but it is not. Shay v. Welch, 209 Ark. 519, 191 S.W. 2d 253 (1945).
Act 93 of 1977 was intended to apply to persons convicted after April 1, 1977. That was its purpose, as stated in the Title:
AN ACT to Establish the Parole Eligibility for Persons Convicted of Committing a Criminal Offense After April 1, 1977-, and for Other Purposes. [Emphasis added.]
The meat of the Act is contained in Section 2(B).
Persons who commit felonies on and after April 1, 1977, and shall be convicted and incarcerated for the same, shall be eligible for release on parole as follows:
It goes on to provide for terms which are more severe than those of previous acts for those persons who have prior convictions. The emergency clause says that the present laws do not adequately deter crime and that the habitual criminal should have his parole eligibility bear a direct relationship to the number of times he was convicted.
With those provisions in mind, we must determine whether the General Assembly intended to repeal Act 1161 as it was applied to Poe. He was legally sentenced under that law and knew he would have to serve one-half his time. Dio the General Assembly intend, in enacting a harsher law, for inmates already sentenced and serving to receive a lesser punishment?
That intent can only be reached by an approach using blinders, reading literally Section 2(A) and ignoring everything else. That approach can be used only if it is found that the acts cannot be reconciled. If the General Assembly intended to change the parole eligibility for those already convicted and serving a sentence, it would undoubtedly have said so.
Usually the parole laws applied are the ones that are in effect when a person is sentenced. Certainly a law could not be passed which would limit one’s right to parole after he had been sentenced since this would violate the ex post facto provision of the constitution. Davis v. Mabry, 266 Ark. 487, 585 S.W. 2d 949 (1979). But that is not the case with Poe. He is not prejudiced by our decision.
Affirmed.
Purtle, J., dissents. | [
48,
-6,
-33,
-66,
10,
-128,
10,
-104,
74,
-29,
36,
81,
-83,
-98,
1,
57,
-7,
99,
85,
89,
-100,
-73,
55,
35,
-78,
-13,
-101,
87,
59,
77,
-26,
-4,
14,
52,
-62,
-48,
-26,
-56,
-23,
90,
-118,
-125,
-103,
-23,
-111,
64,
52,
46,
-64,
-114,
121,
-50,
-94,
46,
16,
78,
105,
108,
-55,
-81,
88,
-86,
-109,
-113,
107,
36,
-93,
-90,
-69,
7,
114,
13,
-100,
57,
0,
-22,
115,
-106,
-122,
117,
111,
-111,
-92,
98,
102,
-127,
125,
-1,
-88,
-95,
15,
58,
-83,
-89,
-103,
89,
75,
100,
-115,
-35,
126,
-44,
39,
108,
102,
-60,
117,
44,
5,
-114,
-68,
-111,
77,
96,
-114,
-29,
-53,
37,
96,
113,
-50,
-26,
86,
119,
107,
91,
-113,
-44
] |
Frank Holt, Justice.
Appellant and two others were jointly charged with capital murder, Ark. Stat. Ann. § 41-1501 (Repl. 1977), and aggravated robbery, Ark. Stat. Ann. §§ 41-2102 and 41-2103 (Repl. 1977). A severance was granted. A jury acquitted him of the murder charge but convicted him on the alleged robbery charge and imposed a five year sentence. Appellant challenges the introduction of his in-custody statement and contends without it the evidence was insufficient to support the verdict; therefore, the cause should be dismissed. We affirm.
On December 14, 1978, at approximately 7 a.m., Morris Lillard was shot and killed at his general store and post office at Charlotte, Arkansas, and his cash register stolen. Appellant was arrested that evening for a prior unrelated burglary. Following a Miranda warning, he was interrogated at 3:20 a.m. the next day on the murder and robbery offenses, at which time he gave a non-incriminating statement as to his activities on the 14th. He received a visit later that day from his girl friend at her request. She told him she had made a statement implicating herself and him. Shortly thereafter, being again advised of his constitutional rights, he gave a second statement in which he admitted transporting his twin brother Donald and David Weaver to Charlotte around 6 a.m. on the 14th with the knowledge they were armed and going to rob Lillard. Also, he had taken them there the previous day for the same purpose, but the two were thwarted due to the number of people in the store. After the alleged robbery and murder, appellant and his girl friend disposed of the murder weapon.
Appellant first moved to suppress the statement on the grounds of involuntariness due to duress, enticement, mis representations and encouragement. This motion was denied after a hearing. Appellant filed an amended motion to suppress on the grounds the statement was obtained at a time when appellant was illegally incarcerated and as a pretext for questioning. This motion was also denied. The officers involved in the arrest and questioning testified at these hearings that appellant was initially arrested on a burglary charge. An officer had received information from an informant, whom he had successfully used before, that appellant was a “good suspect” for the burglary of a local grocery store several weeks earlier. Another officer understood that the informant buttressed his knowledge by stating he had heard the appellant talking about committing the burglary. The latter was refuted by the officer who was the recipient of the information. The officer, who made the decision to bring appellant in, admitted appellant was arrested because he thought appellant might also be involved in the Lillard case. He was one of several suspects, and the investigation had focused on him as a prime suspect. It was established that appellant had not, as yet, been charged with the burglary of the store, nor was he ever questioned concerning that incident. The only record of the arrest, the log book at the jail, showed appellant had been arrested for capital felony murder. The court ruled there were two arrests, the initial one being for the burglary and the second for murder and aggravated robbery after evidence came to light that appellant was connected with this offense.
Appellant contends the statement was obtained as the result of an illegal arrest and incarceration in violation of the Fourth Amendment and was inadmissible evidence, because the officers lacked probable cause to arrest him for the burglary or the murder. He argues the arrest was merely a pretext to provide an opportunity to question him, and the statement taken while he was illegally incarcerated was an exploitation of that arrest. He cites Brown v. Illinois, 422 U.S. 590 (1975), and Dunaway v. New York, 442 U.S. 200 (1979), in which that court held statements there should have been excluded as fruits of illegal arrests when there were insufficient intervening circumstances “attenuating the taint of arrest.”
Ark. Rules of Criminal Procedure, Rule 4.1 (Repl. 1977) provides:
a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed (i) a felony; ... (d) A warrantless arrest by an officer not personally possessed of information sufficient to constitute reasonable cause is valid where the arresting officer is instructed to make the arrest by a police agency which collectively possesses knowledge sufficient to constitute reasonable cause.
In Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976), we said:
. . . [P]robable cause is only a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the accused committed a felony, but not tantamount to the quantum of proof required to support a conviction . .. The existence of probable cause depends upon the facts and circumstances of which the arresting officer has knowledge at the moment of the arrest . . .
Determination of probable cause is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act. . .
. . . Constitutional standards permit common sense, honest judgments by police officers in their probable cause determinations.
There we also recognized that, on appeal, “all presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests upon appellant.” When we view the totality of the facts here from the standpoint of common sense and with a pragmatic approach, the evidence is sufficient to constitute probable cause for appellant’s initial arrest.
Even though it be said that his initial arrest was illegal, as contended, we think there was a sufficient intervening cir cumstance which attenuated any taint of that arrest. As discussed previously, the appellant’s first statement was exculpatory and non-incriminating. Subsequently, a significant intervening act occurred; i.e., appellant’s girl friend, at her request, was permitted to see him. She reported to him she had told the officers about their involvement in the alleged offense, after being led to believe he had admitted his complicity. He responded that he had not. However, shortly thereafter, he decided to give the incriminating statement that is now claimed to be inadmissible because it is tainted by his asserted illegal arrest and incarceration.
In Sanders v. State, supra, we said:
. . . The United States Supreme Court did not hold that the taint of the illegal arrest, followed by the giving of the Miranda warnings, reached any and every such statement made by the arrested person regardless of the circumstances. Rather, that court stated that it is entirely possible that persons arrested illegally frequently may decide to confess as an act of free will unaffected by the initial illegality, that the question of voluntariness must be answered in each case upon the particular facts of the case . ..
Surely, Brown v. Illinois, supra, and Dunaway v. New York, supra do not require that, in these circumstances, that evidence is inadmissible after appellant was twice acquainted with his Miranda rights and had had considerable time, approximately 24 hours, for reflection and deliberation as to any statement he should make.
We next consider appellant’s argument that without the confession there was insufficient evidence to corroborate the testimony of Weaver, an accomplice, who detailed appellant’s complicity before and after the alleged offense. He correctly cites the rule that one cannot be convicted of a felony upon the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1977). Section 41-303 provides, inter alia, that one is an accomplice to the commission of an offense if, for the purpose of facilitating it, he aids another person in planning or committing it. When we consider appellant’s confession, which we hold voluntary, together with his testimony at trial where he admitted the truthfulness of his confession, except having knowledge of the criminal purposer of his codefendants, we find no merit in appellant’s argument there was insufficient corroboration of his accomplice’s testimony. Olles & Anderson v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976).
Affirmed. | [
48,
-23,
-16,
-100,
42,
-32,
58,
-72,
-13,
-94,
-32,
83,
-27,
77,
69,
41,
127,
77,
117,
105,
-100,
-73,
103,
97,
-14,
-13,
80,
-43,
-78,
-49,
-20,
-100,
76,
98,
-54,
-45,
102,
72,
-61,
88,
-114,
-127,
-87,
-16,
-13,
20,
32,
46,
92,
15,
49,
-100,
-13,
42,
22,
-56,
73,
40,
74,
-67,
96,
57,
-120,
5,
-3,
20,
-77,
38,
-70,
5,
-16,
12,
-104,
49,
0,
-24,
115,
-106,
-126,
84,
111,
25,
12,
98,
98,
36,
-115,
-50,
-88,
8,
14,
58,
-65,
-89,
-104,
105,
67,
77,
-74,
-99,
123,
16,
10,
-16,
115,
76,
29,
108,
6,
-49,
-108,
-79,
1,
56,
-106,
123,
-5,
7,
48,
113,
-115,
-30,
84,
87,
112,
-5,
30,
-43
] |
James H. Pilkinton, Judge.
This appeal is by plaintiffs below from the findings and judgment, of the circuit court denying damages to them for alleged medical malpractice and negligence.
Margaret and Charles McClain, husband and wife, brought this case against Dr. Wilbur A. Giles of Little Rock alleging that appellee, as surgeon, has used a surgical knife for a purpose that was not proper, and that Dr. Giles had used excessive force in the use of the knife in lumbo-sacral disc surgery which he performed on the left side of Margaret McClain’s spine. It was specifically alleged that such acts constituted negligence and caused the knife blade to break inside her spine. It was also alleged that the broken part of the blade was left in the patient’s spine at the conclusion of the surgery, and that all of these acts resulted in damages to appellants. The Baptist Medical Center System, where the surgery was performed, and the manufacturer of the blade in question, Becton, Dickinson and Company (Bard-Parker Division) were also made parties defendant; however, appellant voluntarily dismissed their claims against those entities after pre-trial discovery revealed that the blade manufactured by the firm, and supplied for use in the operating room by the Baptist Medical Center System, was not defective in any respect.
After November 22, 1974, the date of the surgery in which the blade was broken, the fragment of the broken blade migrated out of the spinal interspace in which it been left and was surgically removed from Mrs. McClain’s back in a second operation performed by Dr. Giles on December 9, 1974.
Mrs. McClain later became symptomatic on the opposite side from where her original complaints arose, and she sought and obtained medical treatment from Dr. Casey Patterson, a neurosurgeon in Dallas, Texas. Dr. Patterson,, on June 4, 1975, performed disc surgery on Mrs. McClain at the same space, but on the opposite side — the right. Dr. Giles had operated on the left side. Mrs. McClain claims that for a short period of time after June 4, 1975, she was asymptomatic but again developed lower back and lower extremity pain, which remained through the trial.
A jury being waived, the trial court found that Dr. Giles was not negligent in the manner in which he used the knife in question and that he had not used the knife for an improper purpose.
Appellants complain on appeal that the circuit court erred in (1) not making specific findings of fact and con elusions of law; and, (2) the findings in the judgment are clearly against the preponderance of the evidence. After determining as a matter of fact that the plaintiffs had failed to prove by a preponderance of the evidence that Dr. Giles was negligent in any manner, the court further found as conclusions of law that the issues of proximate cause and damages were moot; and judgment was entered in favor of the defendant.
Appellant correctly points out that the trial court, upon timely request, under the provisions of Rule 52(a) of the Arkansas Rules of Civil Procedure is required to make specific findings of fact and conclusions of law and to file the same with the clerk of the trial court so that such findings may be made part of the record. In the case before us, the request was not timely. Such motion was filed on October 25, 1979, after a decision letter had been written on October 3, 1979. Appellants’ motion to amend the findings was likewise untimely in that it was filed more than ten days after the entry of the judgment. See Rule 52(b). This subsection is not mandatory, even if a request is filed within the ten-day period. We suspect that part of the problem here resulted from the fact that this case was tried on the 26th day of March, 1979, taken under advisement by the court, and not decided until December 20, 1979. Why this delay occurred is not clear from the record, but it was certainly undesirable procedure.
In the type of surgery performed on Mrs. McClain, the patient is placed face down on the operating table, and the patient’s back is opened up. The most common procedure is to then remove a portion of the laminea or covering of the disc interspace over the nerve on the affected side. The bone is removed and the nerve is identified and lacerated medially. The ruptured disc material, which should be beneath the nerve, is then located. A pituitary rongeur is introduced down into the space and the fragments pulled from beneath- the nerve. A-pituitary rongeur is a long instrument that has an open mouth on the end. There are numerous types of mouths that can be used. The most common one is a mouth that opens straight forward like jaws. Others have down-biting jaws and up-biting jaws which are used to seize and remove disc material from the interspace after the fragments have been removed and the space opened.
There is a ligamentous covering over the disc space, and a No. 15 blade knife is often used to open this covering so that the surgeon can get the other instruments down into the space. Dr. Giles testified that he cut through the ligamentous structure with the knife blade. He described some of the disc material as being tough like crab meat, and with age and degeneration it becomes more fibrous and forms hard scar-ring material within the cartilage structure. He said it was this type of material that he was excising at the time the blade broke.
The operation in question had progressed routinely until the incident involving the broken blade. Dr. Giles describes the occurrence as follows:
Toward the end of this operative procedure, after I had proceeded with decompression of the space to my satisfaction, I again explored the nerve both above and below, up above the space and below the space to make sure that there were no other fragments out that had not been identified. I then retracted the nerve root as far medially as I could. I felt that there was still possibly some disc material in the mid-line area. I then took the No. 15 blade knife once again and introduced it through the ligamentous covering which is in the mid-line area, down into the interspace once again and drew it across the interspace. When I withdrew it from the interspace I realized that the tip of the blade was ruptured and broken off.
Dr. Giles testified that he put the pituitary rongeur back down into the space and felt around gently but could not feel the tip of the knife blade. He then had an x-ray machine brought into the operating room to determine the position of the broken blade. After reviewing the x-ray that had been made, he found that the tip of the blade was lodged deep within the interspace and more over to the patient’s right side. He further said:
In attempting to probe for the broken blade I used a long, straight curette, which is a long instrument that we curette material off with, to try to feel with it. I could not feel the blade with it, so I then took the straight-mouthed pituitary rongeur which is also long and used to retract the fragments with. I felt around with it and could not feel in any form metal on metal. I introduced those two instruments as far down into the interspace as I could and felt around without putting any pressure in any form. I did not retrieve the blade.
After the broken tip of the knife blade could not be retrieved, Dr. Giles called in one of his senior associates, Dr. Adametz, who agreed with Dr. Giles that he did not think it would present a problem to the patient based on what Dr. Adametz had been told. It was decided to leave the fragment in the back rather than risk damage to the nerve, or incur other risks involved, by further probing. The patient said she was not advised of the situation, but this was disputed by appellee. Dr. Giles also said he told Mr. McClain the next day about the incident and the fact that the fragment was still in Mrs. McClain’s back.
Dr. Giles testified that he was not applying pressure to the knife at the time it broke but simply placed the blade in the interspace, attempting to draw it across the ligament laterally in a cutting fashion. He further testified that the procedure he followed in the surgery on Mrs. McClain did not deviate in any way from proper standards and was done according to good medical practices. Dr. Giles expressly denied that any misuse of the knife was a factor in causing it to break. Dr. Casey Patterson of Dallas, Texas, testified by deposition that, based on the history of the case, in his opinion Dr. Giles’ activities in declining to probe further for the lost blade, and leaving it in the cavity, were according to good medical practices. Such testimony, in a case of this nature, is not conclusive evidence that Dr. Giles was not negligent. It was the court’s function in this case, as fact finder, to determine whether Dr. Giles’ acts constituted negligence. In the case before us, the proper purpose of the knife in question, and the standard of care required in using a surgical knife of the type involved in this operation were not contradicted. Only the facts concerning how Dr. Giles used the knife were in question. Thus, the court here, sitting as a jury, was free to accept or reject any of Dr. Giles’ assertions that the alleged negligent acts did not occur.
We agree that the testimony and circumstances in this case, as shown by the record, are sufficient to establish an issue of fact on the question of negligence. Graham v. State, 248 Ark. 6, 449 S.W. 2d 949 (1970). However, it must be remembered that this case was not disposed of when the plaintiffs rested, but was tried to a conclusion. Only then did the trial court accept the defendant’s version and find that the surgeon was not negligent. The fact finder thus resolved the disputed issue of negligence against the appellant, and we are not at liberty to review that finding de novo.
This case was tried before July 1, 1979, the effective date of Rule 52, Arkansas Rules of Civil Procedure, but was not decided by the trial judge until after the rules became effective. Regardless of the test applied on appeal, this case must be affirmed. There is substantial evidence to support the court’s findings, if the old test applies. Taylor v. Richardson Construction Company, 266 Ark. 447, 585 S.W. 2d 934 (1979). And, if the new rule applies, we are unable to say on this record that the court’s finding of no negligence is clearly erroneous (clearly against the preponderance of the evidence). Rule 52, supra.
It must be remembered that appellant as plaintiff below had the burden of proof to show by a preponderance of the evidence that Dr. Giles was negligent. The trier of facts found against appellant on this crucial fact question and, under the circumstances, we must affirm.
Wright, C.J., dissents.
The Rule does not place a severe burden upon the trial judge, for he needs only to make brief, definite, pertinent findings and conclusions upon the contested matters. | [
-79,
109,
-99,
-116,
24,
-25,
48,
10,
83,
-85,
101,
115,
-19,
-65,
77,
111,
99,
125,
65,
101,
-1,
50,
66,
37,
-46,
51,
123,
-41,
-79,
-17,
-12,
-75,
77,
104,
-54,
-59,
66,
10,
-59,
28,
-58,
22,
-85,
-19,
89,
-125,
56,
46,
-100,
7,
117,
-98,
-25,
43,
53,
-57,
104,
40,
75,
60,
16,
-80,
-112,
13,
-33,
16,
-112,
-90,
-104,
35,
-4,
60,
-48,
48,
18,
-24,
114,
-78,
-125,
85,
70,
-103,
12,
98,
38,
36,
9,
-19,
40,
-88,
47,
44,
-115,
-122,
-118,
41,
-16,
10,
-66,
-67,
102,
92,
4,
84,
108,
-36,
30,
108,
-55,
-117,
20,
-109,
-17,
112,
-100,
2,
-5,
15,
22,
81,
-51,
-30,
93,
7,
59,
-102,
26,
-110
] |
George Rose Smith, Justice.
On August 29, 1980, separate petitions were filed in the office of the county clerk of Drew county, seeking a wet-dry election in two townships in the county. On September 8 the county clerk certified the petitions to be sufficient. Not until October 3 did the two appellants file separate actions in the circuit court challenging the county clerk’s certifications on various grounds. The circuit court, after consolidating the cases, sustained motions to dismiss on the ground that the actions should have been filed within 15 days after the clerk’s certifications. Act 4 of 1935, § 9, compiled as Ark. Stat. Ann. § 2-310 (Repl. 1976).
The appeal comes to this court under Rule 29(l)(g). We announced our affirmance on October 31, before the General Election, and are delivering this opinion because the case presents a point under the election laws upon which the reasons for our decision should be stated.
The local option law directs that petitions for such elections shall be prepared in the form provided for in a specified statute, and in all other respects “such petitions shall be circulated and sufficiency thereof shall be determined, and may be reviewed in the same manner and procedure,” as provided in Act 4 of 1935,supra. Act 431 of 1977; Ark. Stat. Ann. § 48-801.1 (Repl. 1977). It is true, as argued by the appellants, that Section 9 of Act 4 of 1935, requiring a contest of lcoal option petitions to be filed within 15 days after the county clerk’s certification of their sufficiency, was repealed by a still later statute, Act 742 of 1977, § 117. But the point is, before that repeal the 1935 statute had already been adopted as part of the local option procedure. In that situation, where one statute specifically adopts the provisions of another statute as distinguished from adopting the law generally in force on the subject, the operation of the adopting statute will not be affected by a later repeal of the adopted statute. Howard v. State ex rel Stuckey, 223 Ark. 634, 267 S.W. 2d 763 (1954).
We cannot sustain the appellants’ subordinate argument, that the 15-day limitation does not control because they are challenging not merely the clerk’s certification of the sufficiency of the petitions but also his apparent failure to transmit that certification to the county board of election commissioners. § 2-303. First, we think any question about the regularity of the procedure must be raised within the 15-day limit. Second, the certification obviously reached the election commission, because we advanced this case on our docket in response to the appellants’ positive statement that the wet-dry issues were to be submitted to the voters at the General Election on November 4; so the election procedure must have been carried through.
Affirmed. | [
116,
-18,
-11,
92,
14,
-64,
16,
-82,
90,
-85,
-27,
83,
-81,
-64,
28,
121,
-69,
43,
117,
121,
-60,
-78,
87,
106,
38,
-13,
-55,
-41,
-1,
73,
-12,
-11,
76,
49,
-54,
-43,
70,
-58,
-115,
-40,
-26,
2,
11,
100,
-40,
-45,
58,
-30,
96,
11,
117,
-74,
-32,
-81,
24,
67,
73,
12,
-39,
-84,
72,
-15,
-98,
-123,
125,
4,
-79,
-59,
26,
-123,
-40,
46,
-100,
20,
48,
-8,
114,
-90,
-122,
116,
13,
57,
8,
106,
98,
2,
-79,
-17,
-88,
-86,
14,
50,
29,
-90,
-46,
8,
106,
14,
-74,
-67,
108,
16,
2,
126,
-32,
4,
25,
60,
4,
-114,
-46,
-73,
15,
96,
14,
3,
-25,
119,
-112,
117,
-56,
-18,
94,
71,
49,
27,
-58,
-48
] |
Steele Hays, Justice.
The issue raised by this appeal is whether two sons are pretermitted children under the will of their mother within the meaning of Ark. Stat. Ann. § 60-507(b) (Repl. 1971). The lower court held that they are and, as such, entitled to share in the estate. We consider the holding to be correct.
Appellant, Betty Wood, is a half sister of appellees, James E. May and John P. Mays. The Mayses are children of the first marriage of Edna King Kreager and Betty Wood is the child of a second marriage. All were living when Mrs. Kreager executed her will in Missouri, where she resided. Her death occurred some two weeks later.
The will made no mention of James or John Mays; it left the entire estate to Betty Wood, but if she failed to survive, then to her husband, John, and their two sons, John and Steven, in equal parts. If none of these survived, paragraph 4(c) of the will provided that the estate would devolve to those persons who would be entitled to share in the distribution of the estate in accordance with the laws of descent and distribution of the State of Missouri.
Mrs. Kreager owned lands in Arkansas and ancillary administration was begun here, where appellees petitioned for a determination of heirship, raising the issue of pretermitted children. The pertinent proviso of 60-507(b) is that if, at the time a will is executed, there is a living child whom the testator “shall omit to mention or provide for, either specifically or as a member of a class” then such child shall take as if there had been no will.
The Probate Court held that appellees were pretermitted children and appellants have appealed, urging that the will sufficiently provided for appellees as members of a class within the meaning of the statute.
Appellants concede that appellees are not specifically mentioned in the will, but they argue that they are identified as those persons whom the testatrix intended to take under paragraph 4(c) if Betty Wood and the other named devisees did not survive.
It is correct that if all of the Wood family predeceased Mrs. Kreager with no afterborn children, the estate would pass to the appellees under the combined language of paragraph 4(c) of the will and laws of descent and distribution of Missouri. But is this sufficient under 60-5 07(b)? We think not.
The purpose of this statute is not to interfere with the right of a person to dispose of his property according to his own will, but to avoid the inadvertent or unintentional omission of children (or issue of a deceased child) unless an intent to disinherit is expressed in the will. Branton v. Branton, 23 Ark. 569 (1861). Thus, where the testator fails to mention children or provide for them as member of a class, it will be presumed that the omission was unintentional, no contrary intent appearing in the will itself. In Cockrill v. Armstrong, 31 Ark. 580 (1876), the presumption is described in these terms:
So strong is the presumption that a father would not intentionally omit to provide for all his children, that in case the name of one or more of the children is left out of the will, by statute it is held to be an unintentional oversight, and the law brings them within the provisions of the will, and makes them joint heirs in the inheritance.
Appellants concede the absence of exact precedent for their position, but rely on Powell v. Hayes, 176 Ark. 660, 3 S.W. 2d 974 (1928) and Taylor v. Cammack, 209 Ark. 983, 193 S.W. 2d 323 (1946). In both cases, children of the testator were not specifically mentioned, but were held to be contemplated by the testator in using the term “heirs” in the will. In Powell the language considered was “the balance of my property to my wife and heirs, as the law provides.” The court observed that “heir,” when used in its technical sense, includes more than just children, but is often used in a nontechnical sense to mean children and held that it was in this sense that the testator used the word, thereby mentioning his children as a class.
Similarly, in Taylor v. Cammack, the court held that in using the word “heirs” the testator referred to his children, noting that his only heirs were the children.
But we are unwilling to further extend the reasoning of these decisions by accepting appellants’ argument, especially when to do would be to work against the purpose of 60-507(b), rather than with it. The decision in neither Powell nor Taylor resulted in the disinheritance of some children to the preference of others as appellants would have us do. This, we believe, would be the antithesis of 60-507(b).
Besides, we cannot with confidence arrive at the conclusion that Mrs. Kreager had her sons so clearly in mind as to have met the requirements of the statute by providing that if her other devisees predeceased her, her estate should pass to those undesignated persons who would be entitled to share in her estate under the laws of descent and distribution of Missouri. Appellants contend that this intent by Mrs. Kreager must be presumed, because of the view first announced in Moody v. Walker, 3 Ark. 147 (1840) and in Crittenden v. Lytle, 221 Ark. 302, 253 S.W. 2d 361 (1952), that a testator is presumed to understand the meaning of technical phrases used in a will.
The rule is sound, but where, as here, it conflicts with the presumption against disinheritance, then it must yield, as in Armstrong v. Butler, 262 Ark. 31, 553 S.W. 2d 453 (1977). The former presumption is judicially created to aid in construing wills, whereas the latter is statutory. In Armstrong the court stated that 60-507 “goes much further than creation of a presumption. It states the effect of omission of a child or the issue of a deceased child in clear and distinct language, without admitting of any exception.”
Appellees point to the most telling errancy of appellants’ position, and that lies in the dicta of the cases they rely on. The reasoning of Powell and Taylor is that the testator used the word “heirs” in a colloquial sense to mean children, and not in the strict sense, which would not comply with 60-507. Clearly, the language of paragraph 4(c) of the will, on which appellants depend, is technical and in making reference to the laws of descent and distribution, the usage contemplates heirs in the literal sense.
We think the Probate Court was mindful of the strong presumption against disherison and the requirement that wills are to be liberally construed to reach a just conclusion and, hence, we affirm. Brown v. Nelms, 86 Ark. 368 (1908).
Affirmed. | [
113,
-17,
-51,
124,
24,
96,
106,
25,
118,
-29,
37,
83,
-49,
-97,
84,
125,
119,
77,
81,
106,
-62,
-73,
7,
-64,
-45,
-77,
-79,
-42,
-79,
73,
53,
118,
76,
96,
10,
-43,
66,
-54,
-51,
80,
-98,
0,
-120,
-31,
91,
-46,
52,
-25,
90,
7,
-75,
-66,
-77,
41,
60,
-58,
108,
46,
89,
56,
64,
-80,
-118,
5,
127,
18,
19,
-122,
-72,
-123,
72,
110,
-40,
48,
0,
-19,
115,
-74,
-122,
52,
107,
9,
9,
98,
103,
17,
-91,
-19,
-104,
8,
14,
-58,
-67,
-89,
-46,
25,
3,
11,
-74,
-98,
125,
0,
10,
-2,
-26,
13,
12,
-4,
8,
-114,
-42,
-79,
-120,
-8,
-104,
11,
-21,
69,
34,
113,
-39,
34,
93,
-57,
113,
-101,
-58,
-68
] |
George Rose Smith, Justice.
The appellant Lacy was charged with aggravated robbery and with being an habitual criminal with four prior felony convictions. He was convicted by a jury and sentenced to life imprisonment. He contends that the trial court erred in admitting into evidence two statements made by him after he was taken into custody and, second, that the State failed to adduce sufficient corroboration of the testimony of Edward Sherman, an accomplice. We find no merit in either contention, nor any other reversible error.
For the State, employees of an El Dorado store testified that Lacy held them up on the night of October 13, 1979. When one of the employees, Jewell Darden, reached under a counter for a hammer, Lacy pointed his pistol at Darden and snapped the trigger twice. The gun failed to fire. Lacy, pursued by Darden, ran out of the store, got into a waiting car, and drove off with another person. Sherman, the accomplice who drove the car, gave testimony identifying Lacy as the robber.
Sherman was quickly arrested and implicated Lacy. When Lacy learned that the police were looking for him, he called in and asked that his cousin, Officer Moody, pick him up. At a Denno hearing Moody testified that he did pick up Lacy, took him to police headquarters, and booked him. Moody, in filling out an arrest report, obtained routine information from Lacy, such as his address, date of birth, and place of employment. When Moody told Lacy that he was being charged with armed robbery, Lacy made , the first of the statements in question: “How could I be charged when I haven’t taken anything?” The second statement was made a short time later, when Lacy was washing his hands after having been fingerprinted. He then saw the accomplice, Sherman, also in custody, and said to Officer Murphree: “I don’t know what you’re talking to him for. He didn’t have anything' at all to do with this.” Neither of the officers was interrogating Lacy when the statements were made. To the contrary, Officer Moody testified that he did not normally participate in interrogations, and Officer Murphree said he merely showed Lacy where to wash his hands.
It is argued that the statements were inadmissible, because Lacy was in custody and no Miranda warnings had been given. True, but the important point is that Lacy was not being interrogated as a suspect, with respect to his possible guilt, when the statements were made. Both statements were spontaneous. On this issue the case is controlled by the Supreme Court’s decision earlier this year in Rhode Island v. Innis, 100 S. Ct. 1682 (1980). There Innis was arrested as a suspect and given Miranda warnings, but he asked for a lawyer. The court held that his spontaneous statements to the arresting officers were admissible, because the special Miranda safeguards are not required until the suspect is subjected to interrogation. The cases are parallel in that statements in response to interrogation would not have been admissible in either instance — here because the Miranda warnings had not been given, there because the suspect had responded to those warnings by asking for a lawyer. But the statements in both cases were spontaneous and therefore admissible.
Our holding in Reeves v. State, 258 Ark. 788, 528 S.W. 2d 924 (1975), does not support the appellant’s position. There is was undisputed that Reeves was interrogated by a police officer without having been warned of his rights; the disputed issue was whether he was under arrest. Here the situation is just the opposite: Lacy was indisputably under arrest, but he was not being interrogated. Not even the dissenting judges in Rhode Island v. Innis, supra, contended that Miranda warnings are required whenever a person is arrested. That necessity arises only when interrogation begins.
As to Lacy’s argument that Sherman’s testimony was not corroborated, a complete answer, is that Darden identified Lacy as the person who robbed him. Darden’s credibility on that point was of course an issue for the jury.
Affirmed.
Purtle, J., dissents. | [
112,
-22,
-24,
-65,
57,
-32,
42,
-72,
-45,
-126,
118,
19,
-83,
73,
1,
49,
-7,
127,
85,
113,
-36,
-89,
71,
33,
-14,
115,
114,
-43,
-77,
-51,
-66,
-4,
13,
112,
74,
-47,
102,
8,
-25,
88,
-116,
5,
-80,
83,
-78,
-112,
100,
42,
36,
15,
97,
-100,
-29,
2,
18,
-49,
73,
45,
11,
-65,
96,
121,
-106,
-115,
-51,
20,
-77,
22,
-97,
39,
-8,
30,
88,
49,
16,
120,
123,
-106,
-126,
116,
109,
11,
44,
102,
-30,
32,
-23,
110,
-20,
-95,
-65,
126,
-105,
-89,
-44,
64,
67,
45,
-74,
-35,
106,
4,
-82,
-24,
99,
86,
124,
100,
-85,
-49,
-68,
-110,
-51,
124,
-106,
-5,
-37,
55,
0,
112,
-49,
-94,
92,
101,
121,
-37,
7,
-44
] |
John F. Stroud, Justice.
The state brings this interlocutory appeal from the trial court’s granting of appellees’ motion to suppress from evidence a certain automobile and its contents. As we find that the trial court erred, we reverse the ruling.
Appellees were arrested on the 1-430 bridge over the Arkansas River on August 11, 1979, approximately six minutes after the early morning robbery of a convenience store in western Little Rock. Officer Farris Henslee of the Little Rock police stopped appellees’ vehicle, a two-tone Ford Torino (one of the colors was yellow), in response to a radio call describing the robbery suspects’ car as “possibly a yellow Ford Torino.” Officer Henslee testified that as he was removing appellees from the vehicle, he observed a .45 caliber pistol wedged between the back cushion and the seat cushion of the rear seat. He said he removed the pistol from the seat, and, while doing so, observed a red shirt protruding from underneath the right side of the front seat, which he also seized. He also found a set of keys on the floor of the vehicle. Another officer who arrived at the scene while Officer Henslee was taking appelees into custody assisted in an inventory of the car and summoned a wrecker to tow appellees’ vehicle to storage. The clerk of the store which had been robbed was summoned to the police station that same morning to view a lineup, at which time he identified appellees Hardin and Turley as the men who had committed the robbery.
A hearing was held on March 11, 1980, on appellees’ motions to suppress their identification by the store clerk and to suppress from evidence those items seized during their arrest. After hearing the testimony of the store clerk identifying two of the assailants and pointing out that one of them had on a red shirt, and the testimony of several officers of the Little Rock Police Department, the trial court denied the motions. A few days before trial, the attorneys for appellees learned that the impounded vehicle had been inadvertently sold. Subsequently, on March 19, two days before the scheduled trial, appellees filed a new motion requesting that the trial court order the State to produce appellees’ impounded vehicle for their inspection, which the trial court granted. On the day of trial several motions in limine were presented by appellees, the most significant of which was their request that the State’s witnesses be prevented from mentioning the description of the car in which appelees were riding at the time of their arrest since the State had not complied with the Court’s order to produce the vehicle. Unbeknownst to the State, the wrecker service storing the automobile had sold it, presumably to a salvage yard. After a lengthy, and rather disjointed, discussion of the loss of the vehicle and its effect upon the trial, the trial court ruled that the vehicle and any description of it would be suppressed from evidence, as well as the pistol, shirt and any other items seized from the car. From the ruling of the trial court suppressing the pistol and shirt from evidence, the State brings this interlocutory appeal.
The State contends that the trial court’s ruling that the pistol and red shirt could not be used as evidence at trial due to the sale of the automobile was much too severe a sanction against it, for nowhere in the record is there any evidence of connivance or bad faith on the part of the State in the loss of the vehicle. Appellees, on the other hand, argue that the ruling was proper and that it was the State’s responsibility to maintain possession of the automobile until final disposition of the case, and that the loss of it prevented appelees from effectively cross-examining the police officers who made the arrests and seized the evidence. Appellees attack the credibility of Officer Henslee, and contend that the pistol could not ahve been stuck in the back seat as he testified at the supression hearing. They argue that if the vehicle had been available, an examination of the construction of the seat might have supported their position. Appellant pointed out, however, that although the vehicle had been available for inspection for six months, appellees made no effort to examine it until a few days before trial when they learned it was unavailable. Appellant also argues that apellees were not prejudiced inasmuch as an identical make and model vehicle could be examined, and if any modifications are asserted they could be testified to by appellees or appellee Hardin’s mother, who actually owned the vehicle. While we agree that the State has the responsibility of storing and maintaining property which may be useful as evidence in a criminal proceeding, we do not think that the facts and circumstances of the present case, when viewed in their totality, require suppression of all testimony concerning the missing vehicle and suppression of all items removed from the vehicle subsequent to the arrests.
We agree with the well-reasoned opinion of the Supreme Court of Arizona in State Ex Rel. Hyder v. Hughes, 119 Ariz. 261, 580 P. 2d 722 (1978), which although factually distinguishable, resolved an issue quite similar to that involved in the present case. That case involved a defendant who had previously entered a plea of guilty to rape and later successfully collaterally challenged the plea. On the day of retrial, the defendant informed the trial court that most of the evidence against him, including a knife and bedspread, had been inadvertently disposed of by the State since his plea of guilty. He moved the court to suppress any references to the lost evidence, and the motion was granted. In reversing, the appellate court held, Hyder v. Hughes, supra at 725, the following:
We therefore hold that where, as here, a defendant has had the opportunity to inspect the evidence, there is no bad faith or connivance on the part of the State and it does not appear that a defendant has been prejudiced by the loss of evidence, there is no compelling reason to either dismiss the charge or charges against him or to suppress any reference to otherwise competent evidence. If prejudice is claimed after a trial and conviction, it will then become the court’s duty to look at the circumstances of the case, [citation omitted], and determine the fairness thereof.
Our acceptance of the holding in Hyder v. Hughes, supra, does not constitute a significant deviation from our decisions in like cases, for we have often held it not to be error for the trial court to admit testimony concerning property seized from a defendant even though the property itself is not produced or is inadmissible. Harris v. State, 260 Ark. 420, 540 S.W. 2d 859 (1976); cert. den. 430 U.S. 932 (1977); Maynard v. State, 252 Ark. 657, 480 S.W. 2d 353 (1972).
As we are reversing the ruling of the trial court and remanding this cause, we take this opportunity to point out that at trial both sides should be permitted to put on testimony concerning any characteristic of the missing automobile. We also hold that the pistol and red shirt should not be suppressed from evidence because of the inadvertent disposal of the auotmobile.
Reversed and remanded.
Fogleman, C.J., concurs.
Purtle, J., not participating. | [
112,
-19,
-32,
60,
26,
-32,
50,
-66,
83,
-89,
101,
-109,
-83,
74,
5,
121,
-17,
127,
116,
113,
-36,
-74,
103,
48,
-14,
-77,
121,
-59,
-69,
75,
44,
-12,
94,
112,
-22,
-35,
68,
-56,
-123,
88,
-50,
1,
-69,
-30,
-15,
88,
36,
42,
100,
15,
113,
-114,
-30,
46,
18,
-64,
105,
44,
-53,
40,
81,
115,
-119,
77,
-17,
20,
-93,
48,
-102,
5,
-16,
27,
-100,
49,
49,
-72,
115,
-94,
-118,
116,
107,
-101,
-116,
102,
98,
0,
-23,
-49,
-84,
-88,
14,
58,
-113,
-89,
-112,
65,
10,
77,
-106,
-99,
111,
16,
14,
-4,
123,
92,
85,
108,
7,
-50,
-108,
-109,
45,
48,
22,
27,
-21,
37,
52,
112,
-115,
-30,
92,
85,
115,
-101,
-122,
-44
] |
George Rose Smith, Justice.
James Leo Bates, charged as an habitual criminal with the offense of rape and burglary, was found guilty by a jury and sentenced to life imprisonment and a $15,000 fine for the rape and 30 years and a $15,000 fine for the burglary. We find no merit in the only point for reversal that is argued, nor any other error in the record.
The point for reversal relates to the admission into evidence of a statement made by the prosecutrix to the police. The statement was first mentioned by defense counsel, who cross-examined the prosecutrix about that statement and about another statement made to defense counsel. On redirect examination the prosecuting attorney sought to introduce both statements, on the ground that the admission into evidence of part of each statement made the entire statements admissible. Defense counsel at first objected to the use of either statement, but he withdrew his objection to the statement to the police, saying: “If they want to read their statement into the record, that’s fine. I anticipated they would anyhow.” The objection having been withdrawn, the case stands as if no objection was made. Hence no reversible error is shown, for an objection is necessary even when the sentence is life imprisonment. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980); Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), cert. den. 434 U.S. 984 (1977).
The State concedes that the appellant is entitled to credit for 173 days of pretrial jail time; so the judgment is modified and the cause remanded for the entry of that credit. Carey v. State, 268 Ark. 392, 596 S.W. 2d 688 (1980).
Affirmed as modified and remanded. | [
-80,
-18,
-51,
-2,
43,
32,
-70,
-84,
-62,
-125,
-94,
-13,
37,
69,
0,
123,
-93,
109,
84,
105,
-42,
-73,
23,
-29,
-10,
-13,
123,
-43,
-73,
-51,
-20,
-44,
12,
112,
-62,
-15,
102,
-120,
-43,
88,
-50,
-123,
-72,
-31,
-45,
84,
96,
12,
80,
15,
49,
-98,
-93,
42,
21,
-53,
41,
44,
107,
-83,
104,
-71,
-110,
13,
-21,
52,
-93,
-74,
-98,
7,
88,
36,
-98,
25,
0,
120,
51,
-106,
-122,
-12,
111,
25,
-84,
98,
98,
8,
-47,
78,
-88,
-128,
-114,
106,
-67,
-90,
25,
64,
73,
101,
-82,
-39,
38,
16,
47,
120,
101,
-36,
125,
44,
1,
-113,
-80,
-77,
-115,
44,
-114,
-5,
-5,
37,
48,
113,
-49,
-22,
93,
87,
120,
-37,
-122,
-41
] |
John F. Stroud, Justice.
Appellant was charged with the aggravated robbery of a Conway supermarket on April 24, 1979- After three employees of the store testified that he was definitely the man who had committed the robbery and a fingerprint expert identified a thumb print on the cash register as appellant’s, he was convicted by a jury on November 15, 1979, and sentenced to imprisonment for 50 years. The jury was polled at the request of appellant and all of the members indicated that this was their verdict, although one juror, Mrs. Nutter, seemed hesitant in her response. She was then allowed to explain her hesitancy, stating:
I really would like to answer. We felt like this sentence — he would not be kept there the full time if he made improvements in his character, and we felt like it was up to him.
Appellant subsequently filed a motion to set aside the verdict, alleging that it was based on prejudice and passion and that at least one juror improperly considered the possibility of parole in determining his sentence. From the denial of this motion by the trial court, appellant brings this appeal. We think the trial court did not abuse its discretion in rejecting the motion and we affirm the conviction.
The sole question on this appeal is whether juror Nutter’s statement concerning a possible early release of appellant reflected an impermissible consideration of Arkansas’ parole system by the jury in the determination of his sentence. Appellant contends that our holding in Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971), requires a finding of reversible error on this point. In Andreivs, supra, this court held that information concerning the parole system was not to be given the jury, and if asked about it the trial court should instruct the jury that the matter is one with which they need not be concerned. In the present case there is no allegation that the trial court, or any other officer of the court, imparted any information to the jury concerning parole eligibility. We do not think Andrews, supra, is applicable here. If the jury, or any of them, did take the possibility of parole into consideration in their determination of appellant’s sentence, any information they had concerning parole was independent knowledge which they had prior to trial. Arkansas Model Instructions Criminal, 103, given to the jury by the trial court in the present case without objection, provides:
In considering the evidence in this case you are not required to set aside your common knowledge, but you have a right to consider all the evidence in the light of your own observations and experiences in the affairs of life.
We still adhere to our statement in Woods v. State, 260 Ark. 882, 884, 545 S.W. 2d 912 (1977), wherein this court noted:
... it is hardly possible that even one person, much less twelve, old enough to serve on a jury would not know that Arkansas has a parole system.
A jury can be polled pursuant to Ark. Stat. Ann. § 43-2160 (Repl. 1977), but the inquiry should be limited to determining that the verdict is that of each juror and “Whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Ark. Stat. Ann. § 28-1001, Uniform Rules of Evidence, Rule 606(b). It would be highly unrealistic for this court to think that jurors do not consider the possibility of parole in arriving at a sentence in a criminal case. The outward expression of that by a juror is not grounds for a new trial.
Accordingly, we cannot say the trial court abused its discretion in refusing to set aside the verdict of the jury.
Affirmed.
Purtle and Mays, JJ., dissent. | [
16,
-18,
-51,
-65,
56,
-64,
58,
-100,
80,
-121,
38,
-101,
-17,
67,
1,
121,
-77,
127,
-43,
113,
-40,
-74,
103,
-64,
50,
-13,
82,
-59,
-77,
75,
-92,
-44,
12,
48,
-54,
81,
-26,
-56,
-25,
28,
-82,
-125,
-87,
81,
112,
-104,
32,
110,
4,
15,
49,
-98,
-93,
42,
30,
-49,
105,
44,
73,
47,
80,
-55,
-54,
15,
-53,
20,
-77,
37,
-69,
7,
-16,
44,
-104,
49,
0,
-24,
115,
-122,
-126,
116,
111,
-101,
12,
100,
98,
0,
28,
111,
-20,
-95,
-114,
122,
-83,
-89,
-104,
65,
75,
77,
-105,
-43,
122,
20,
4,
-4,
113,
28,
125,
108,
1,
-106,
-76,
-111,
-115,
60,
-108,
-69,
-5,
21,
16,
117,
-50,
-30,
85,
70,
115,
83,
-114,
-44
] |
Richard L. Mays, Justice.
The appellant, James French, was charged with two counts of rape and incest of his granddaughter when she was ten and four counts of rape .and incest when she was eleven. After viewing a video cassette film of one of the occasions which was visually recorded by appellant as he committed an offense, the jury convicted appellant and sentenced him to 15 years on one count of rape and five years on each of the other five, as well as six years on one count of incest and two years on the other five. The trial judge directed that the sentences be served consecutively, making a total sentence of 56 years. The appellant now contends that his convictions should be set aside because the trial judge wrongfully denied him a continuance and improperly admitted evidence, including the video cassette film. We disagree and, therefore, affirm.
Appellant, 61 at the time, was arrested on March 7, 1979 after his wife, son and daughter contacted the prosecuting attorney and turned over a video cassette film which appellant had made of himself as he performed cunnilingus on his granddaughter. His granddaughter had further disclosed that appellant had forced her to submit to such acts on six separate occasions over a 14 month period, beginning in January of 1978 and ending in March of 1979.
On March 26, 1979, appellant was psychologically evaluated by the state mental hospital which found him to be without psychosis in early April. On May 4, 1979, appellant’s counsel filed a motion for continuance indicating that he needed time beyond May to prepare for trial, assemble defense witnesses, and evaluate medical evidence. No affidavit accompanied the motion. At a hearing on this motion on May 8, 1979, appellant’s counsel indicated that he had primarily filed the motion because he had other, criminal and civil trials scheduled toward the end of May and that he needed additional time to obtain the results from certain psychological tests which appellant was undergoing from a private psychiatrist. However, when the judge asked whether there would be a defense of mental disease or defect, appellant’s counsel responded, “In essence, Your Honor, no” and then went on to intimate otherwise. The motion was denied.
On May 25, 1979, appellant’s counsel renewed his motion for continuance, attaching a statement from a psychiatrist who was psychologically treating and evaluating appellant. All the statement indicated was that the doctor needed more time to render an evaluation. The record does not reveal that this motion was acted upon before appellant’s counsel announced ready for trial on May 31, 1979. Appellant was subsequently convicted on all counts and sentenced to the penitentiary.
It is well established that a trial court has wide latitude in granting a continuance, and its judgment will not be reversed absent a clear abuse of discretion. Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516 (1968); Grissom v. State, 254 Ark. 81, 491 S.W. 2d 595 (1973). Among the factors to be considered by the trial court in ruling on a motion for continuance are the diligence of the movant, the probable effect of any evidence which the movant alleges is unavailable, and the filing of an affidavit establishing the legitimacy of the evidence to be produced. Kelley v. State, 261 Ark. 31, 545 S.W. 2d 919 (1977).
Even if it is conceded that appellant was properly diligent, a concession which is probably unnecessary under the facts before us, appellant’s motion was not accompanied by an affidavit and did not state the probable effect of the psychological evidence which appellant alleged was not yet available. Moreover, the psychological evidence which was available indicated that appellant was legally sane, and appellant’s counsel indicated to the court that he was not going to rely on a defense of insanity. These circumstances do not justify a finding that the trial judge abused his discretion in denying appellant’s motion for continuance.
Appellant’s second argument concerning the improper admission of evidence is twofold. First, he contends that the state’s evidence should have been excluded because of a private agreement between the prosecuting attorney and appellant’s relatives not to prosecute appellant for the crimes revealed by their disclosures to the prosecutor. Even if such an agreement were legal, we simply find no factual basis in the record to support its existence. At the very least, the trial court was justified in disregarding any such agreement since the prosecuting attorney disclaimed any knowledge of it. Second, the appellant contends the obscene film depicting appellant’s shocking conduct should have been excluded because its probative value was substantially outweighed by its prejudicial effect. We disagree. The young victim was reluctant to testify against her grandfather and was extremely vague and indefinite in her responses to the prosecutor’s questions. She repeatedly stated that she could not remember what had happened and had to be continually prompted by references to her written statement. Under these circumstances, we think the film’s probative value outweighed any prejudice to appellant.
Affirmed.
Fogieman, C.J., and Hickman, J., concur.
Purtle, J., dissents. | [
48,
-24,
-51,
62,
11,
97,
106,
60,
114,
-30,
55,
-46,
-81,
-58,
4,
105,
-69,
125,
84,
99,
-47,
51,
55,
-63,
-65,
-5,
-38,
-44,
-77,
77,
-28,
-44,
72,
112,
10,
-79,
98,
-56,
-39,
82,
-114,
5,
-71,
-24,
80,
82,
36,
123,
74,
14,
53,
-98,
-89,
14,
20,
-50,
9,
44,
91,
60,
72,
57,
-109,
5,
-55,
48,
-77,
6,
62,
12,
-8,
46,
88,
49,
-128,
-20,
59,
-74,
-122,
116,
76,
-87,
44,
98,
98,
-92,
77,
-18,
-67,
-55,
-97,
30,
-99,
-121,
88,
65,
67,
77,
-74,
-41,
100,
84,
47,
122,
97,
76,
117,
100,
74,
-49,
-106,
-125,
-51,
124,
-52,
120,
-5,
35,
112,
113,
-49,
-32,
92,
81,
113,
91,
-114,
-77
] |
Marian F. Penix, Judge.
Woodrow Larrick died June 27, 1979- His widow Verna Larrick, the appellant, petitioned to be appointed administratrix of Woodrow Larrick’s estate, stating Woodrow Larrick died intestate. On July 23, 1979 the Probate Court of Cleburne County appointed Verna administratrix. On September 4, 1979, Arthur Larrick, brother of Woodrow Larrick, petitioned for the admission to Probate of the Last Will and Testament of Woodrow Larrick. Verna Larrick responded to the petition stating the Last Will and Testament had been destroyed thereby rendering it null and void. On February 29, 1980 the Probate Court found that Woodrow Larrick personally destroyed the original Will by tearing and burning it and that at the time of the destruction his intent was to immediately make a new will. However, he died suddenly. The Court found further the destruction was a revocation conditioned upon his making a new will and that he would prefer the terms of the destroyed will to intestacy. The Court applied the doctrine of dependent relative revocation and ordered the will admitted to probate. The widow Verna Larrick appeals.
Howard Speraw testified by deposition on behalf of Verna. He stated Woodrow Larrick, the day before his death, told him “I tore up my old Will and I have got to get one made out down here. I have got to get down and see a lawyer.” He stated Woodrow at one time had told him his brothers were all well to do and had all they needed.
The widow Verna testified she observed Woodrow tear up the Will and set fire to it about a week before his death. She further testified she was the one who went to Hoyt Thomas’ office, the lawyer who had prepared it, and took it home to Woodrow. She said he kept it two or three days before tearing it up. She said also Woodrow was planning to make a new will which he said would be quite a bit different from the destroyed will.
Hoyt Thomas testified for Verna. He testified several weeks prior to Woodrow’s death, he talked to Woodrow in front of the bank. Woodrow asked him how to effectively destroy his will. He admitted telling a Kansas lawyer, Mr. Grimshaw, he had not prepared a will for Woodrow. He said at the time he forgot having prepared the destroyed 1978 will. He went to the bank with Verna to look for a will but none was found. He then located a copy of the will in his office.
Verna, upon recall, testified she had misunderstood when she first testified having gone to Thomas’ office and picking up the will and taking it to Woodrow prior to his death. She said she actually took Woodrow to the bank in the truck to get the will, but didn’t go into the lock box with him. Verna’s testimony reveals some inconsistencies and confusion.
Hoyt Thomas’ secretary testified Verna had not been to his office to pick up a copy of the will within two weeks of Woodrow’s death. She said she prepared the petition and other necessary papers necessary for appointing Verna Administratrix. She said she pulled the copy of the will and it became mislaid. She also said Thomas probably never saw the copy. She testified she didn’t know at the time she prepared the Petition for Appointment of Administratrix whether or not the copy of the will was in the Larrick file.
Sam Morton, an employee of the Cleburne County Bank, testified for Arthur Larrick. He introduced the lock box rental form which had several signatures of Woodrow Larrick. The last signature “Woodrow Larrick” on June 5, 1979 appears to be different from the others. This was 22 days prior to Woodrow’s death. Verna Larrick’s name was not authorized to be on the lock box until after July 9, 1979. This authorization came from Jerome Johnson, president of the bank. He further testified the bank’s policy was not to admit anyone but the person whose name appears on the lock box lease in the box.
Darlene Williams, a bank employee, testified she once let Verna sign Woodrow’s name and enter the lock box. She also testified she matched signatures of customers she let into lock boxes and that the last signature of Woodrow Larrick did not match the others.
Arthur Larrick, appellee, testified as to how close he and Woodrow had been as brothers down to 1974 when Verna and Woodrow married. He said Woodrow told him he had a will under which he, Arthur, would receive $30,000. Woodrow told Arthur “ . . . I have made a will and I have left you $30,000 and the rest goes to Verna, and I want you to be sure that you get this.” This conversation occurred March 20, 1979, three months prior to Woodrow’s death. He testified seeing Woodrow twice again between March 20 and his death and Woodrow did not mention he was going to destroy his will or make any changes in it. He said he called Verna on August 10, after receiving notice in a letter from Hoyt Thomas Woodrow had died intestate, and was told Woodrow had destroyed his will.
Jerome Johnson, president of the Cleburne County Bank, testified as to Verna’s reputation for truthfulness and honesty and that her reputation is good. He also testified to having seen both Verna and Woodrow together when Verna would get the lock box and hand it to Woodrow.
It is the contention of Verna, the appellant, Woodrow intended to destroy the will and there is clear, cogent and convincing evidence he intended to destroy the will. Ark. Stat. Ann. § 60-406 provides:
Revocation by Written Will or by Act on Document. Except as provided in Section 23 [§ 60-407], a will, or any part thereof, can be revoked only
a. By subsequent will; or
b. By being burnt, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator himself or by another person in his presence and by his direction. . . .
The testimony of Verna Larrick was that Woodrow
Larrick destroyed his will because of conversations he had had with members of his family during his last trip to Kansas which indicated Verna was to get nothing. This testimony regarding destruction of the will is corroborated by the testimony of Howard Speraw. The Court found as a matter of fact Woodrow destroyed his will. We find substantial evidence to support this.
Verna further contends the Court’s application of the doctrine of dependent relative revocation is in error. Verna contends the doctrine is not the law in Arkansas.
The Probate Judge, having found the will was destroyed, then applied the doctrine of dependent relative revocation. This is defined as:
The doctrine which regards as mutually dependent the acts of one destroying a will and thereupon substituting another instrument for distribution of estate, when both acts are result of one plan, so that, if second act, through incompleteness or other defect, fails to accomplish its in tended purpose, and it thereby becomes evident that testator was misled when he destroyed his will, act of destruction is regarded as bereft of intent of revocation and way for probate of destroyed will is opened. Black’s Law Dictionary, Revised Fourth Edition, P. 525.
Wills — Dependent Relative Revocation, 8 Arkansas Law Review 193 (1953):
Dependent relative revocation has long been a significant doctrine in the law of both England and the United States (cites omitted). The result of an application of this principle is that the efficacy of the revocation of an original will or some part thereof is relative to and dependent upon the validity of a new disposition. This doctrine is only invoked in the event that the testator intended to make another will, made an invalid will, or effected an invalid alteration of the original will; and proper application raises a rebuttable presumption that the deceased would prefer the original will to intestacy
In Section 267, 95 C.J.S. 35 at page 36 ... .
the doctrine is subordinate to the rule which makes the intention of the testator paramount, so that its application is limited to cases in which it can operate in furtherance of the intention of the testator .... The doctrine should be applied with caution; and, it has been said, the tendency of modern cases is clearly to narrow the scope of its application. Thus, the mere fact that the testator intended to make a new will, or made one which failed of effect, will not alone, in every case, prevent a cancellation or obliteration of a will from operating as a revocation; and the doctrine can only apply where there is a clear intent of the testator that the revocation of the old will is made conditional on the validity of the new one.
There is some question whether or not this doctrine has ever been applied in Arkansas. In Starnes v. Andre, 243 Ark. 742, 421 S.W. 2d 616 (1967) Justice Fogleman stated the Court did not know of the doctrine having been applied in Arkansas and were unable to find facts to justify its application. Again in Armstrong v. Butler, 262 Ark. 31, 553 S.W. 2d 453 (1977) Justice Fogleman writing about the doctrine stated: “There is no place for the application of the rule here, as we understand it.”
We can find no instance in Arkansas when this doctrine has been applied. Ark. Stat. Ann. § 60-408 seems to prevent the application of the doctrine here in Arkansas, even though there is some evidence in the record Woodrow intended to make a new will following the destruction of the 1978 will. Section 60-408 provides:
No will or any part thereof which shall be revoked, or which shall be or become invalid, can be revived otherwise than by re-execution thereof, or by the execution of another will in which the revoked or invalid will or part thereof is incorporated by reference.
As was said above, this statute would seem to preclude the application of the doctrine of dependent relative revocation here in Arkansas.
In the 1979 case of Parker v. Mobley, 264 Ark. 805, 577 S.W. 2d 583 Justice Purtle wrote:
If the decedent desired to reinstate his 1973 will, he could have easily followed the provisions of Ark. Stat. Ann. § 60-408. . . .
The Probate Judge found as a matter of fact that a few days before his death Woodrow Larrick personally destroyed the original of said will by tearing and burning it. The Judge further found it was Woodrow Larrick’s intent to make a new will as a substitute for the will he was destroying, however, he died from a sudden attack before he made a new will. We, as appellate court, find substantial evidence to support the Probate Court’s findings of fact. However, we disagree with the Court’s application of the law to those findings of fact.
The intentional physical destruction of the . . . will, in the manner required by law, left the testator without an existing will. Everyone is presumed to possess knowledge of the legal consequences of his acts or omissions. Whatever reason the decedent had, he failed to re-execute either of his known wills or publish a new one. Therefore, he died intestate. Parker v. Mobley, Supra at Page 586.
We find the Probate Judge erred as a matter of law in applying the doctrine of dependent relative revocation. Since we hold the doctrine cannot be applied to these findings of fact, the presumption Woodrow Larrick intended to revoke his will has not been overcome nor rebutted. We find it to be error to admit to probate the copy of the revoked will. We therefore reverse and remand to the Probate Court for proceeding with the administration of Woodrow Larrick’s estate which we find to be intestate.
Reversed and remanded.
Newbern, J., concurs. | [
-15,
72,
-43,
30,
-104,
32,
26,
-72,
-12,
-93,
37,
94,
-21,
-62,
16,
107,
114,
75,
-11,
115,
-60,
-121,
23,
-108,
-41,
123,
-15,
-57,
51,
95,
-12,
-43,
77,
34,
-118,
85,
-90,
-118,
-59,
-44,
-124,
64,
-23,
96,
-51,
73,
58,
51,
118,
-113,
85,
62,
-9,
43,
54,
110,
74,
110,
-1,
-120,
90,
-79,
-33,
7,
121,
19,
-79,
-122,
-104,
9,
88,
47,
-112,
53,
-127,
-8,
115,
-90,
-106,
116,
7,
-55,
8,
118,
-74,
56,
85,
-19,
-96,
-120,
-121,
-90,
-65,
-121,
-38,
25,
51,
101,
-98,
-35,
117,
-12,
7,
124,
-20,
86,
76,
40,
-56,
-118,
-42,
-79,
8,
-34,
-100,
27,
-5,
-19,
34,
85,
-103,
-82,
93,
70,
48,
-101,
-49,
-46
] |
John A. Fogleman, Chief Justice.
Appellant William Hicks and Eugene Morris, Jr., were charged with breaking and entering and theft of property. Both were charged as habitual offenders. They were tried jointly in a court trial, without a jury, on December 6, 1979, found guilty of the charges, found guilty of having been previously convicted of four or more felonies, and sentenced to imprisonment for five years, with credit for time served. Among other arguments advanced by Hicks is his contention that the evidence was insufficient to support his conviction for either breaking and entering or theft of property. We agree, reverse the judgment and dismiss the charge.
The offenses were alleged to have been committed on August 7, 1979, at the 7-11 Store at 4400 West 12th Street in Little Rock. The trial court admitted into evidence an unexpurgated confession of Eugene Morris, Jr. This statement was:
Me, William Hicks and Brenda Harper went into the 7-11 store at 12th and Peyton to get some cigarettes. The dude went down and left the cash register open like he didn’t care so I made my move and snatched ten dollars. Hicks was going to snatch him some but never did make his move.
Phillip Arnold, the store manager, testified that, between 7:00 and 8:00 a.m. on August 7, when he had a good many customers in the store, a black lady came in and bought a Coke. He said that she leaned over the counter behind which he stood, and pointed to something she wanted, causing him to turn his back to her and to the counter on which the cash register rested. He said that, while he had his back turned, she would keep changing her mind about what she wanted and kept asking for something different. He said that two black males, the defendants, were with her. He stated that when he turned back around, the three left immediately. He testified that he then noticed that a packet of money (two one dollar bills and one five dollar bill) which had been placed in the cash register, as “bait money,” was missing. According to him, this packet has been placed over a transmitter which served to trip a surveillance camera whenever the packet of money was removed. When he discovered that the money was missing, he called the police camera division by telephone. According to Arnold, $60 was missing from the register. Arnold viewed photographs developed from the camera and identified both defendants in them. He said that Hicks had returned to the store on August 9th and 10th and that the camera had been activated while Hicks was in the store on August 9th.
Appellant moved for a directed verdict of acquittal at the conclusion of the evidence on behalf of the state. The defense rested without offering any evidence and again moved for an acquittal. The trial judge found both defendants guilty.
Even with unexpurgated statement of the co-defendant, the evidence in this case gives rise to nothing more than a strong suspicion that Hicks was an accomplice of Morris and the woman. Even when the co-defendant’s statement, qualifiedly admitted over appellant’s objection, is considered, it does nothing to incriminate Hicks, other than to state Morris’ own subjective evaluation of the intent of Hicks, and to say that the three, whom Arnold placed at the counter, had gone into the store together. No other testimony puts Hicks in the company of Morris and the woman until the store manager saw tham at the counter near the cash register. The photographs developed from the film taken from the surveillance camera show the woman leaning on the counter at all times. The first one shows Morris, standing next to the woman, reaching across the counter into the cash register drawer and Hicks standing behind the register, glancing toward the cash drawer and holding a piece of currency in this right hand. The next picture shows Morris, apparently passing something to the woman or into her purse, and Hicks still looking at the cash drawer. The next photograph shows Hicks, still holding the paper money, turned toward Morris, looking toward Morris’ hands which were above the counter but below Morris’ waist. The state says that this picture “appears” to show Morris handing or having handed money to Hicks. We simply see nothing to justify such a conclusion. None of the photographs, taken at the rate of more than 20 per minute, show Morris passing any money to Hicks or justify any inference that he did. Morris is not identifiable in any of the remaining pictures introduced. Hicks, still holding the piece of paper money in his hand, moved into the position where Morris had previously stood next to the woman and then walked behind her and stood at the counter on her right side, away from the still open cash register. Morris definitely did not appear in the photographs showing Hicks walking behind the woman or standing on her right side. The money Hicks held in his hands appeared in every photograph in which he appears near the counter. Finally the photographs show Hicks walking away from the counter, leaving the woman still leaning over it. The last two photographs show the woman alone at the counter, still leaning over it. Neither Hicks nor Morris, nor any other person appears anywhere in these photographs. Although the store manager said that Morris and Hicks were with the woman, he apparently did not see any of the three until they were at the counter. There is actually no clear evidence that the three entered the store or left it togethere, except for the statement of Morris which should not have been considered by the trial judge as to Hicks. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed. 2d 476 (1968); Grooms v. State, 251 Ark. 374, 472 S.W. 2d 724. The fact that the case was tried before a judge without a jury does not affect the rule. See Hickey v. State, 263 Ark. 809, 569 S.W. 2d 64.
The state contends that appellant and the unidentified female were accomplices and that appellant was liable for the actions of Morris because he was aiding Morris to commit a theft, relying upon Ark. Stat. Ann. § 41-303 (1) (b) (Repl. 1977). Under the section of the statute, Hicks would be an accomplice of either of the other two persons if, with the purpose of promoting or facilitating the commission of the offenses charged, he aided, agreed to aid, or attempted to aid one or both of them in planning or committing the offenses or either of them.
We agree with the state that the guilt of an accomplice may be shown by circumstantial evidence. That evidence must, however do more than arouse suspicion; it must not leave the fact finder to speculation and conjecture alone. Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434. No one should be deprived of his liberty on mere suspicion or conjecture, however suspicious the circumstances may be. Ravellette v. State, 264 Ark. 344, 571 S.W. 2d 433.
The term accomplice does not embrace who had guilty knowledge or who is morally delinquent; it includes only one who takes or attempts to take some part, performs or attempts to perform some act or owes some legal duty to the victim of the crime to prevent its commission; and mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of some legal duty to act, concealment of knowledge or failure to inform officers of the law, is not sufficient to make an accomplice. Wilson v. State, 261 Ark. 820, 552 S.W. 2d 223; Ark. Stat. Ann. § 41-303 (Repl. 1977).
Not only must we reverse the judgment, the case must be dismissed. Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L.Ed. 2d 15 (1978).
Reversed and dismissed. | [
48,
-20,
-24,
124,
24,
-32,
58,
-66,
67,
-93,
117,
-78,
-95,
87,
21,
121,
-47,
125,
-44,
105,
-52,
-73,
47,
-28,
-30,
-77,
-7,
-123,
48,
75,
-84,
-43,
76,
112,
-58,
57,
70,
-64,
-25,
86,
-118,
33,
-70,
82,
-9,
64,
32,
59,
4,
15,
49,
-100,
-13,
46,
18,
-50,
105,
44,
75,
62,
80,
-5,
-101,
13,
109,
20,
-125,
39,
-77,
5,
-8,
44,
-100,
113,
32,
56,
115,
-90,
-126,
116,
93,
-101,
-115,
98,
98,
16,
-51,
-21,
-96,
-127,
62,
-85,
-115,
-89,
-102,
72,
75,
37,
-65,
-107,
110,
1,
10,
120,
-13,
84,
25,
108,
1,
78,
-12,
-127,
-87,
104,
12,
58,
-21,
35,
48,
113,
-49,
-30,
93,
86,
82,
-117,
14,
-107
] |
Robert H. Dudley, Justice.
Appellant was charged with the rape of his ex-wife’s eleven-year-old daughter. The jury found him guilty of carnal abuse in the first degree and set the sentence at ten years in the Arkansas Department of Correction and a fine of $10,000.
Appellant contends that the evidence presented at the trial was insufficient to support a conviction for carnal abuse.
The credibility of the witnesses and the weight of the evidence are matters to be determined by the trier of fact and not by the appellate court. Thomas v. State, 266 Ark. 162, 583 S.W. 2d 32 (1979). The test on appeal is whether there is substantial evidence to support the verdict. Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156 (1977). There is substantial evidence in this case to support the verdict. The eleven-year-old prosecuting witness testified that the appellant had intercourse with her. The medical testimony was that although there was no evidence of physical trauma in the vaginal area, there was evidence of intercourse. This evidence supports the jury’s verdict.
Appellant next contends that the trial judge abused his discretion in permitting leading questions. The witness was eleven years of age. The trasncript shows that she was nervous and upset at the intimate nature of the questions. Arkansas Uniform Rules of Evidence 611 (c), Ark. Stat. Ann. § 28-1001 (Supp. 1977) allows the trial judge some discretion in permitting leading questions under these circumstances.
As stated in Hamblin v. State, 268 Ark. 497, 597 S.W. 2d 589 (1980).
“. . . In cases involving very young females, who are alleged to have been victims of crimes of this nature, this court will not disturb the action of the trial judge in permitting leading questions to be asked by the prosecution, if it appeared to him to be necessary to elicit the truth, unless his discretion has been abused. Crank v. State, 165 Ark. 417, 264 S.W. 396.”
The questions were proper under the circumstances.
Appellant’s third issue concerns a dialogue with the jury. During deliberations, the jury returned to the courtroom to seek clarification of some factual issues. After the foreman asked the first question, a colloquy took place with the judge and attorneys for the appellant and the state, all attempting to answer the questions. At one point the foreman asked, “Who brought the complaint to the state ... ?” One of the prosecuting attorneys, during the dialogue responded, “It’s just a legal technicality.”
The appellant’s attorney participated in the discussion at the trial and now, on appeal, objects to the colloquy. Appellant waived this issue by his attorney attempting to answer the questions of the jurors.
This case is being affirmed on its particular facts but should serve as a caveat. After deliberations have begun the court alone should answer questions from the jury.
After the verdict, the appellant employed his present attorney who filed a motion for new trial. The motion states that appellant was denied the effective assistance of counsel prior to and during the trial. The trial court denied this motion and it is properly in this court on direct appeal.
The circuit judge found that the trial attorney acted within the range of competence demanded of attorneys at trial. The totality of the evidence does not show the decision of the lower court is erroneous and it is affirmed.
Determining incompetency of an attorney during trial is a difficult matter because highly competent, experienced and skilled attorneys might disagree as to matter of trial tactics and strategy. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973). During this trial the attorney had to make an infinite number of decisions: whether to object; whether to offer a particular witness; how to cross-examine an eleven-year-old prosecuting witness; whether to put the defendant on the stand; and how to argue the case. As pointed out in Leasure, supra, 254 Ark. at 965, almost every person convicted can envision areas where his or her lawyer could have taken a different course.
Prior to trial the defense attorney must, at a minimum make some effort to prepare himself or herself and the client for trial. Normally this would include either interviewing the prosecuting witness or reviewing the statements given by the prosecuting witness and contained in the prosecuting attorney’s file. Neither of these was done in this case, but the trial attorney had known the young prosecuting witness for a number of years and decided not to interview her. Instead the Attorney conducted three interviews with the prosecutrix’ mother. While no formal discovery motions were filed asking for the prosecutrix’ statements, the defense attorney informally conducted discovery by questioning the deputy prosecuting attorney. The defense attorney testified, “I don’t think I have ever filed a motion and the reason is that Mr. Williams has always made anything he has available to me.”
Appellant complains that the attorney who tried the case did not talk to his alibi witness and made the decision not to use that witness without the benefit of an interview. The appellant’s alibi witness was his mother. The trial attorney testified that he knew all the members of appellant’s family and concluded that using appellant’s mother might well antagonize the jury.
Although effectiveness of trial counsel is not equated with success, it is meaningful that in plea bargaining the only offer by the state was a life sentence upon a plea of guilty to the charge of rape. The trial resulted in a ten year sentence and a $10,000 fine for carnal abuse.
Affirmed. | [
48,
-26,
-20,
-68,
9,
64,
122,
60,
51,
-121,
-11,
-13,
-83,
-42,
4,
121,
-94,
-37,
84,
97,
-41,
-73,
21,
81,
-94,
-14,
-8,
-57,
-77,
-53,
-92,
-44,
76,
112,
-56,
-47,
-94,
-54,
-17,
88,
-122,
24,
-104,
86,
66,
-122,
36,
115,
98,
7,
49,
-98,
-29,
42,
29,
-49,
73,
44,
75,
-65,
88,
17,
-104,
7,
-49,
52,
-77,
38,
-98,
5,
120,
44,
-36,
49,
1,
-4,
115,
-110,
-126,
-44,
105,
-103,
-84,
96,
-30,
1,
44,
-57,
41,
-119,
103,
127,
-116,
-89,
-102,
104,
67,
77,
-65,
-47,
102,
20,
12,
-2,
119,
92,
80,
100,
11,
-113,
-108,
-71,
13,
44,
90,
48,
-29,
-71,
16,
117,
-49,
-30,
84,
69,
91,
-37,
-114,
-74
] |
George K. Cracraft, Judge.
The appellant was charged in the Washington County Circuit Court with 1) two counts of Theft of Property in violation of Ark. Stat. Ann. § 41-2203 (2) (b) (Repl. 1977); 2) unlawful possession of a firearm in violation of Ark. Stat. Ann. § 4l-3103(l)(a) (Repl. 1977); and 3) being a habitual offender pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977). A jury found him guilty on all counts. The appellant was sentenced to three years on each of the two Theft of Property charges and one year on the Felonious Possession of a Firearm charge. The Court ordered that the Theft of Property sentences be served consecutively and the Felonious Possession of a Firearm be concurrent to those. It is from this verdict, sentence and judgment that the appellant brings this appeal, asserting 1) that the conviction on the two counts of Theft of Property and the count of Felonious Possession of a Firearm were based upon defective search warrants and evidence obtained by warrantless search; 2) that the enhancement of the sentences was based upon an Information containing insufficient allegations of the charges; and 3) that the state failed to prove the value of the hubcaps to be in excess of $100.
The appellant was arrested by campus security officers at 3:00 a.m. on September 29th, 1979, after having been observed by them in the act of stealing hubcaps in the University of Arkansas parking lot in Fayetteville. The officers saw him take several sets of hubcaps and place them in the trunk of his car. Later that day a warrant was issued authorizing a search of his automobile. The appellant was taken into custody at the scene in the early hours of the morning, but the search warrant was not obtained or executed until later that day.
While the appellant was in custody, but before the application for the search warrant, appellant stated to the officers that there was a pistol in the trunk of his automobile. All of the officers admitted that they heard the statement and that they knew he was a convicted felon. Both the applicaion and the warrant listed only hubcaps as the articles sought. No mention of the gun was made.
Prior to the trial the defendant requested and was granted a hearing on an oral motion to suppress certain statements made by him while in custody and evidence of the weapon found in his car. No other issues were raised or ruled upon.
The defendant now urges that the warrant was defective in other respects and that all the fruits of the search should have been suppressed. As the questions of the service of the warrant and inventory upon the defendant were not raised in the court below, they may not be raised on appeal for the first time. Halfacre and Duty v. State, 265 Ark. 378, 578 S.W. 2d 237 (1979); Jeffers v. State, 268 Ark. 329, 595 S.W. 2d 678 (1980). The officers were not questioned about the service at any stage of the proceedings and the appellant testified that at the time of his arrest and for a period of time thereafter his memory was so faulty due to a prescription drug he was taking, that he could recall little of what had taken place.
Though we hold that the warrant was valid and the initial intrusion to search for hubcaps was lawful, we conclude that the seizure of the weapon during that search was warrantless, and evidence based upon it should have been suppressed.
That weapon itself was not specifically described in the warrant or the affidavit and cannot be validated under the “plain view rule.” The “plain view rule” applies only if 1) the initial intrusion resulting in the plain view discovery was lawful, 2) the discovery was inadvertent, and 3) the incriminating nature of the object was immediately apparent. Gatlin v. State, 262 Ark. 485, 559 S.W. 2d 12. Here the officers all knew for hours before the warrant was issued and the search pursuant to it, that the appellant had stated that the weapon was in the trunk of the car. In these circumstances the discovery of this weapon was not “inadvertent,” but to the contrary “advertent.”
Appellant further urges that the enhancement of his sentences pursuant to the Arkansas Habitual Offenders Statutes should be reversed as it was based on insufficient allegations of the offenses in the Information. The felony information filed by the prosecuting attorney is as follows:
“furthermore, the defendant, William Thompson Terry has been previously convicted of more than one felony offense and should be subject to the sentencing provisions of Ark. Stat. Ann. § 41-1001.”
Ark. Stat. Ann. §41-1001(1) (Repl. 1977) provides for enhancement of sentence for “1) a defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, ***.” The Information in question correctly states the elements of the offense for which enhanced sentence may be imposed. There was evidence introduced at the trial that the appellant had been convicted and sentenced on three prior felony offenses. It is clear then that this appellant was correctly charged with having been convicted of “more than one” felony offense as provided in the statute.
The appellant further contends that his conviction for Theft of Property must be reversed because the state failed to prove the value of the eight hubcaps stolen exceeded $100. This contention is meritless.
Ark. Stat. Ann. § 41-2203 (2) (b) (i) (Repl. 1977) states:
“Theft of Property is a class C felony if the value of the property is less than $2500 more than $100.”
Here the proof shows that the appellant appropriated two sets of hubcaps. The first set was taken from a 1978 Thunderbird belonging to Sherry Goodner who had bought the car less than 13 months before the hubcaps were stolen.
An expert testified that the replacement cost of each hubcap was $67.40, and tat the value of the four hubcaps was $269-60.
The second set of hubcaps were taken from an automobile of Nancy Cassidy, who owned a 1978 Monte Carlo and had purchased it less than a year before the theft.
An expert testified that the cost of each of the four hubcaps was $57.25, a total of $229 for a set of four. No objection was made by the appellant to this testimony.
Ark. Stat. Ann. § 41-2203 (3) (Repl. 1977) defines the amount of a theft as the “amount involved in a theft shall be deemed to be at the highest value, by any reasonable standard, of the property or services which the actor obtained or attempted to obtain.”
We conclude that this evidence was sufficient to establish that the value of each set of the hubcaps stolen by appellant was in excess of $100, the requisite amount for a conviction of Theft of Property. Evidence of purchase price of property may be evidence of market value when admitted without objection, and we do not feel that the date of purchase of the articles in question is too remote. Cannon v. State, 265 Ark. 271, 578 S.W. 2d 20 (1979); Boone v. State, 264 Ark. 169, 568 S.W. 2d 229 (1978).
We affirm the sentences imposed on the two Theft of Property convictions and reverse the conviction on the charge of Felonious Possession of a Firearm.
Cooper, J., dissents. | [
48,
-22,
113,
60,
10,
65,
58,
-72,
82,
-89,
-28,
19,
-91,
71,
5,
121,
97,
95,
116,
121,
-42,
-73,
55,
97,
-112,
115,
-69,
-59,
59,
107,
-20,
-44,
92,
112,
-58,
85,
4,
-124,
-27,
92,
-114,
0,
-69,
112,
80,
80,
44,
46,
20,
15,
113,
-97,
-30,
46,
22,
-53,
105,
44,
-53,
-83,
64,
-37,
-55,
13,
-1,
22,
-93,
4,
-117,
5,
-16,
44,
-100,
49,
0,
-8,
115,
-94,
-126,
117,
111,
-97,
12,
38,
34,
0,
45,
-45,
-72,
-120,
78,
122,
-81,
-90,
-104,
65,
75,
1,
-106,
-107,
111,
-110,
14,
-6,
99,
110,
81,
108,
7,
-50,
-112,
-79,
13,
105,
-58,
-78,
-21,
103,
112,
113,
-51,
-26,
93,
21,
121,
-101,
-122,
-10
] |
Robert H. Dudley, Justice.
Freddie C. Moss, the appellant, while employed by the appellee, suffered a compensable injury that eventually resulted in the loss of his senses of taste and smell. He filed a claim under the Arkansas Workers’ Compensation Act and was paid medical expenses and temporary total disability benefits. The administrative law judge denied benefits for permanent disability as the loss of the senses of taste and smell is neither a scheduled injury as set out in Ark. Stat. Ann. § 81-1313 (c) (Repl. 1976) nor one which diminshed appellant’s earning capacity. There was no appeal from that decision.
Appellant then filed a common law tort suit against the appellee asking $500,000 damages for the loss of the senses of taste and smell. The trial court granted summary judgment on the basis that appellant’s injury was compensable under the Workers’ Compensation Act and the remedies provided are exclusive. Ark. Stat. Ann. § 81-1304. This appeal is from the summary judgment.
The gist of appellant’s argument is that for every wrong or injury there must be a remedy. He contends that he has suffered a permanent injury and has received no remedy. Hence, he should be allowed to proceed in circuit court.
Appellant admits that the Workers’ Compensation Act is an exclusive remedy for injuries which are covered and correctly contends that the act does not cover all injuries suffered by employees on the job. For an example, an employee has recovered against an employer in a slander action, Braman v. Walthall, 215 Ark. 582, 225 S.W. 2d 342 (1949), and in an assault action, Heskett v. Fisher Laundry and Cleaners, 217 Ark. 350, 230 S.W. 2d 28 (1950).
However, these cases allow recoveries for wrongs or injuries suffered outside the scope of the act. In the present case the injury is within the act, and a basis for compensation was found to exist. The appellant recovered temporary total disability benefits, and his medical expenses were paid. He did not receive all the additional benefits to which he feels entitled, but he has been provided a remedy, and that remedy is exclusive under our act. Ark. Stat. An. § 83-1304.
If this exclusivity could be evaded, the results would be extreme. For example, the act affords no benefit for pain or suffering. Yet these elements of damages are recoverable in a common law tort action. Under appellant’s theory, an injured employee could maintain a common law tort action against his employer as a result of a compensable injury because no benefits are paid for pain and suffering. We do not find the language of the act subject to such an interpretation. The law has never favored the splitting of causes of action.
Affirmed. | [
-112,
-20,
-35,
-116,
8,
97,
10,
22,
67,
-125,
101,
83,
-25,
-43,
21,
101,
-29,
-101,
85,
43,
-37,
-93,
17,
2,
-54,
-33,
-53,
69,
-67,
75,
-28,
-36,
77,
32,
78,
-43,
-25,
-24,
-55,
92,
-54,
1,
-86,
109,
121,
0,
56,
46,
-64,
83,
49,
-98,
-22,
46,
25,
-49,
76,
108,
89,
60,
112,
-32,
-118,
13,
125,
16,
-93,
4,
-100,
15,
86,
78,
-104,
49,
1,
-20,
112,
-74,
-122,
116,
107,
-103,
4,
98,
97,
-80,
17,
-89,
104,
-88,
6,
-66,
-115,
-92,
-80,
41,
107,
15,
-106,
-99,
122,
20,
28,
-8,
-8,
29,
87,
44,
-126,
-114,
-108,
-77,
-113,
40,
-36,
33,
-17,
63,
60,
101,
-49,
-30,
92,
71,
123,
-33,
23,
-106
] |
Fi. William Allen, Special Chief Justice.
After several years of planning and effort, appellee City of Fayetteville (City) by agreement with the Arkansas State Highway Department acquired sufficient federal funds to proceed with a project to extend and widen North Street in order to straighten the nearby intersection of Arkansas Highways 112 and 16 West. The project required a number of telephone poles and gas meters of appellants Southwestern Bell Telephone Company (SWB) and Arkansas Western Gas Company (AWG) to be relocated from their positions in the existing North Street right-of-way. Some of SWB’s poles were relocated within the existing right-of-way and some within the new right-of-way acquired for the project. All of the affected AWG meters were moved to locations within the new right-of-way.
The City brought an action seeking a declaratory judgment that SWB and AWG were liable for the costs of relocating their facilities. To expedite construction SWB and AWG agreed to relocate the facilities, preserving for determination by the courts the issue of whether the City or they are liable for relocation costs. The parties stipulated the facts and filed cross-motions for summary judgment. On February 6, 1980 the Washington County Chancery Court entered a decree declaring SWB and AWG liable for their relocation costs. It is from this decree that SWB and AWG appeal.
All the parties and the chancellor cite and rely upon three previous decisions of the court. They are: Ark. Stat. Hy. Comsn. v. Ark. Pow. and Light Co., 231 Ark. 307, 330 S.W. 2d 77 (1960); Ark. State Hy. Cmsn. v. Ark. Pow. and Light Co., 235 Ark. 277, 359 S.W. 2d 441 (1962); and City of Little Rock v. Ark. La. Gas Co., 261 Ark. 347, 548 S.W. 2d 133 (1977). In each case the utility was awarded its relocation costs.
In the I960 AP&L case we held that when a State Highway Commission project required the removal of power company poles entirely from the right-of-way it occupied in the City of El Dorado, Arkansas, the utility had been ousted from its property right and was entitled to recover its relocation costs from the Commission. The opinion in this case contained the following dicta which is relied upon by appellee here:
“Hence, if the city or county should change the right-of-way of a public street or road, or widen it, or relocate it, the Company could be required to change its poles and wires without compensation so as not to ‘unnecessarily and unreasonably impair or obstruct’ the street. But here it is not a question of requiring the Power Company to relocate its poles so as not to unnecessarily or unreasonably impair or obstruct the traffic. The Commission has demanded that the Company remove its facilities entirely from the right-of-way.” 359 S.W. 2d 441 at 442.
In the 1962 AP&L case the power company’s poles were located on right-of-way easements of two streets within the city of North Little Rock, Arkansas. The Commission subsequently engaged in the construction of an interstate highway which crossed these two streets and required the relocation of the affected poles further back on the existing right-of-way easements but outside of the new right-of-way acquired by the project. Because the poles were merely moved from locations on the existing right-of-way to other locations on the same right-of-way the Commission argued that the quoted language from the I960 case applied and the utilities should bear the cost of removal. However, the Court held that the right-of-way referred to in the quoted portion of the I960 AP&L case was not the existing right-of-way but the new right-of-way. Because the project removed and excluded the poles from the new right-of-way, the court ruled an ouster had occurred and the Commission was-required to reimburse the utility’s cost.
At this stage of the development of the cases, it might well have been assumed that the quoted dicta in the 1960 case still had substantial viability and would apply in situations where removal of utility facilities was within a street project’s newly created right-of-way. However, in the 1977 case of City of Little Rock v. Ark. La. Gas, supra, the Court rejected, at least by implication, any prospect of affording a different treatment to relocations of utility facilities depending upon whether the facilities were moved to points inside or outside a new right-of-way. The Arkla case dealt with a street improvement project where only the existing right-of-way was involved. The gas company, in the face of certain federal highway commission requirements, chose to remove its gas line from under the pavement or the street and relocate it along the side of the street, still within the existing right-of-way. The federal requirements included a prohibition against cutting the pavement for installing service connections for a period of five years and a restriction on Aridas use of its manholes to the hours between 8 p.m. and 6 a.m. This court found that the relocation to the side of the street was compelled by the limiting conditions placed on Arkla and that the requirements amounted to an ouster requiring compensation to the utility.
After reviewing these three cases, the chancellor below justified the conclusion that the utilities must bear their own relocation costs on the basis that, unlike the previous cases, there was no showing here:
“. . . That SWB or AWG had been ousted from easement rights altogether nor have any limiting conditions been placed on either in respect of access to, maintenance of or delivery of service from, their respective lines as relocated.”
We do not believe the case here can be distinguished from the Arkla case on the basis that in the latter limiting conditions were imposed and that no such conditions were imposed here. In this case the utilities were instructed to move their facilities outright — an even more drastic action than indirectly requiring their removal by imposing restrictions on access. We cannot affirm the lower court without overruling the Arkla case which we decline to do. Even if we were inclined to overrule the Arkla case, we could not condone a holding that reimbursement of a utility depends on whether it is directed to remove its facilities inside or outside of a new right-of-way. It is undoubtedly removal itself which causes the utility its primary harm in most cases, rather than the position of the relocation (assuming that the new location is in the near vicinity of the old location). It would be unfair to have a rule which would allow a municipality to gerrymander a new right-of-way in such a manner as to avoid reimbursing a utility.
We recognize the evolution of our decisions has departed to a substantial extent from the dicta of the I960 AP&L case relied upon by appellee. We further recognize that this case and the Arkla case depart from the general common law rule that a utility bear its own relocation costs when the changes are required by public necessity. McQuillin on Municipal Corporations, Third Ed. (1970) (Rev. Vol.) Vol. 12, Sec. 34, 74a (p. 183). However, the treatise does recognize exceptions to the general rule and that it may be changed by contract or legislation.
It is admitted by appellee that this project was constructed under the federal-aid urban system program and that if reimbursement is permissible under state law, the federal government will pay 70% of the reimbursement costs in issue. Two acts of the United States Congress have made provision for the reimbursement of relocation expenses occasioned in federally funded projects. The first is in the Uniform Relocation Assistance Act, 42 U.S.C. Sec. 4601 et seq. This Act provides reimbursement protection for “persons” who have been displaced of property rights as a result of federally funded or federally assisted programs. Appellee argues that utilities are not “persons” entitled to benefit from that Act as there is another federal statute dealing more specifically with utility relocation, the Federal Aids Urban System Act, 23 U.S.C. Sec. 103 et seq. Sec. 123a of that Act provides:
“When a state shall pay for the costs of relocation of utility facilities necessitated by the construction of a project on the Federal Aid Primary or Secondary Systems or on the Interstate System, including extensions thereof within urban areas, federal funds may be used to reimburse the state for such costs in the same proportion as federal funds are expended on the project. Federal funds shall not be used to reimburse the state under this section when the payment to the utility violates the law of the state or violates a legal contract between the utility and the state.”
There is no contract in this case that would be violated if these utilities are reimbursed, so the only issue here is whether state law would be violated. The only expression of the Arkansas legislature relating to relocation expenses is Ark. Stat. Ann. Sec. 14-1001 (Repl. 1979) and it reflects an intent to encourage the payment of costs of relocation in order to take full advantage of the federal payments provided by 42 U.S.C. 4601 et seq. Thus, in the only instance the legislature has spoken, it has reflected a general intent in favor of reimbursing relocation expenses.
We do not hold that in all cases of utility relocation the governmental authority must reimburse the utility for its costs, and we leave exceptions for future determination. Municipalities are not helpless in this regard. Ark. Stat. Ann. Sec. 73-208 grants cities and towns the right to provide for reasonable terms and conditions upon which a public utility may occupy the streets, highways or other public places within the municipality. For example, in this case SWB holds its property right under Ark. Stat. Ann. Sec. 73-1801 but appellee passed an ordinance setting the terms and conditions of SWB’s occupancy and pursuant thereto and in lieu of other taxes SWB makes an annual payment of $100,000 to appellee. AWG holds it property right under a franchise granted by appellee for which it pays a percentage of its revenues to appellee. The allocation of utility relocation costs could well be left to more specific legislation or negotiations between municipalities and utilites at the time of new construction or on the renewal of existing franchises.
We deem it unnecessary to discuss SWB’s contention that the federal government and not the city was the moving force in the project.
The decision of the chancellor is reversed and remanded for judgment to be entered in favor of the appellants for their costs of relocation.
Fogleman, C.J., not participating.
George Rose Smith and Stroud, JJ., dissent. | [
-48,
106,
-16,
108,
-118,
-63,
18,
-100,
91,
-95,
37,
83,
-81,
73,
-105,
113,
-29,
123,
-11,
121,
-59,
-89,
7,
106,
-110,
-77,
51,
71,
-38,
95,
100,
-41,
76,
65,
-54,
-99,
68,
-64,
-51,
-36,
-18,
0,
-101,
100,
-55,
-61,
36,
106,
6,
-57,
117,
-115,
-9,
44,
48,
-58,
104,
62,
121,
44,
67,
122,
-118,
-98,
111,
6,
1,
-28,
26,
5,
-8,
60,
-112,
-75,
40,
-84,
115,
-90,
-122,
-31,
1,
-35,
8,
-88,
-30,
0,
4,
-17,
-24,
-88,
6,
-66,
-99,
-92,
0,
57,
3,
3,
-97,
20,
-56,
22,
5,
-2,
-18,
-115,
91,
108,
-123,
-50,
-73,
-31,
-114,
-96,
-127,
23,
-49,
35,
48,
116,
-53,
-62,
95,
79,
114,
-97,
-122,
-47
] |
Per Curiam
The Arkansas Bar Association has petitioned for a modification of Canon 3(a)(7) of the Code of Judicial Conduct. That Canon generally prohibits the broadcasting and photographing of trial proceedings.
The time has arrived, in our judgment, where it may be possible for a trial to be photographed or broadcast without disruption and without prejudice to the parties, witnesses, or the jurors. More than half the states have adopted one plan or another whereby this may be accomplished. The best practice seems to be the approval of a trial period during which trial judges may, under circumstances deemed appropriate and pursuant to rules we have adopted, permit broadcasting and photographing.
We do not perceive this matter to be a First Amendment issue. The right of the public to attend trials in Arkansas has been one consistently protected by this court. In fact, trials in Arkansas are probably more public than in any other state. This principle was first emphasized in Commercial Printing Co. v. Lee, 262 Ark. 87, 553 S.W. 2d 270 (1977), where we said:
The public has every right to ascertain by personal observation whether its officials are properly carrying out their duties in responsibly and capably administering justice . . .
Later in Shiras v. Britt, 267 Ark. 97, 589 S.W. 2d 18 (1979), we emphasized that the law in Arkansas provides that “The sittings of every court shall be public, and every person may freely attend the same.” Ark. Stat. Ann. § 22-109 (Repl. 1962).
There is no doubt that it is in the public interest for some trials to be available to the public either through photography or broadcasting. On the other hand, there are some trials that should not be broadcast or photographed. Cases of adoptions, guardianships and domestic relations fall in. the latter category. Arkansas law already protects these proceedings to a degree. Ark. Stat. Ann. § 22-404.1. That does not necessarily mean that these trials are closed. They are open to the extent they have always been open. However, these trials involve subjects that normally would be of no concern to the public and the broadcasting of which might result in harm to innocent people. Our primary concern in such cases is for the litigants, who are quite often before the court contrary to their wishes. The parties, their relatives and friends are present because the law requires it. Children who are not even present may be affected by these proceedings and could be harmed or hurt by the publicity. The child custody case is an example of such a case.
The workings of the courts should be known to the public and it is our judgment that the media have reached the stage of electronic sophistication that they can, in most cases, photograph and record trial proceedings without disruption and without prejudicing the rights of the parties. Yet there rests in the judiciary a role that is just as important as that of conducting trials in public and that is that decorum must be maintained in the courtroom. Furthermore, the courtoom must be a place where individuals can come for the solution of their problems in an atmosphere removed from the clamor of public passion and prejudice. The courtrooms of this land represent a place of tradition, dignity and objectivity. The preservation of such a forum is important if we are to maintain the principle that this a country of rule by law. That is the reason we leave to the trial judge the decision of whether it would be fitting and proper to permit photographing and recording of trial proceedings. While the parties and witnesses have to give their prior consent and while certain rules have to be followed before broadcasting and photograph should be permitted, the final decision must rest with the trial judge. It is on that office that the law places a duty and responsibility to see that the parties receive the full attention of the law, and that office must see that the law considers the case before it as the most important thing at that time. In other words, the courts are not in the entertainment business and obviously trials should be conducted with that in mind.
This is an experiment which we hope will work. However, both the judiciary and media must want it to work and that will require a degree of tolerance and flexibility by both parties.
We have modified the Arkansas Bar Association’s request to the extent that it will apply to all courts, municipal, trial or appellate, but it will not apply to juvenile court for obvious reasons. While the canon and the rules speak in terms of the judge or a trial, the application of the canon and the rules may be to the courts we have enumerated.
For a period of one year, beginning January 1, 1981, Canon 3 (A) (7) will be amended to permit broadcasting and photographing of trials. A committee of this court is formed and charged with the responsibility of monitoring this subject for this period of time. That committee will consist of Richard Mays as Chairman; Randall Williams, Circuit Judge; John Lineberger, Chancellor; Dennis Shackleford, attorney, and, Frederick K. Darragh, a layman.
CODE OF JUDICIAL CONDUCT
Canon 3: A JUDGE SHOULD PERFORM THE DUTIES OF HIS OFFICE IMPARTIALLY AND DILIGENTLY.
The judicial duties of a judge take precedence over all his other activities. His judicial duties include all of the duties of his office prescribed by law. In the performance of these duties, the following standards apply:
A. ADJUDICATIVE RESPONSIBILITIES
(7) A judge may authorize broadcasting, recording, or photographing in the courtroom and areas immediately adjacent thereto during sessions of court, recesses between sessions, and on other occasions, provided that:
(a) the participants will not be distracted nor will the dignity of the proceedings be impaired;
(b) all parties and attorneys, whether depicted or not, and all witnesses that may be depicted or recorded have given written consent; the jurors shall not be depicted nor recorded;
(c) the broadcasting, recording or photographing of any court proceeding will be in compliance with the rules adopted by the Arkansas Supreme Court.
(d) trials in juvenile court or concerning adoptions, guardianships and domestic relations shall not be subject to broadcasting, recording or photographing.
RULES
1. The court shall direct that the news media represen tatives enter into a pooling arrangement for the broadcast, recording or photographing of a trial. The media pool will first select one of its members to serve as pool coordinator. The media pool will establish its own procedures, not inconsistent with these rules or the wishes of the court, with the pool coordinator arbitrating any problems that arise. If a problem arises that requires the assistance of the trial court, the pool coordinator alone will be responsible for coordinating with the trial court. A plan for the placement of the broadcast equipment will be prepared and filed by the pool coordinator, subject to the final approval of the trial court.
2. The court retains ultimate control of the application of these rules over the broadcast, recording or photographing of a trial. Decisions made as to the details are final and are not subject to appeal. The court may in its discretion terminate the broadcasting, recording or photographing at any time. Such a decision should not be made in an effort to edit the proceedings but only as one necessary in the interest of justice.
3- The following persons or proceedings shall not be broadcast: minors without parental or guardian consent; victims in cases involving sexual offenses; undercover police agents or informers; witnesses, parties, or attorneys that have not given written consent to having their participation in the proceedings broadcast; in camera proceedings except with the consent of the court; other matters determined by the Arkansas Supreme Court to be restricted. Failure to abide by this provision can result in a citation of contempt against the news representative and his agency.
4. The media pool may have two cameramen in the courtroom during the course of a trial. One camerman will be responsible for still photography and one camera will be responsible for television photography. Both cameramen will remain in stationary positions outside the bar of the courtroom. Videotape recording and other electronic equipment not a component part of the earners will be located in an area remote from the courtroom. This area will be done designated by the trial court.
5. One additional audio system for radio broadcasting will be permitted provided that all microphones and related essential wiring will be unobtrusive and located in places designated in advance by the basic courtroom plan. The pool coordinator will permit the installation of a pickup distribution box to be located outside the courtroom area to allow additional agencies access to the audio feed.
6. Only television or photographic equipment that does not require distracting sound or light shall be employed to cover court proceedings. No artificial lighting device shall be employed in connection with television cameras. Any approved alterations in existing lighting or wiring will be accomplished by and at the expenses of the media pool.
7. Camera and audio equipment may be installed or removed only when the court is not in session. Film changes shall not be made while court is in session. No audio equipment will record conversations between attorneys and clients, or conversations between attorneys and the trial court held out of the hearing of the jury.
8. The Arkansas Supreme Court shall designate a committee to work with the bar and media groups to evaluate the success of the program. This committee shall also be responsible for setting the standards for the equipment that can be used during the course of court proceedings. Any matters that either bar or media groups wish to raise concerning the broadcast, recording or photographing of trials shall first be directed to this committee for decision, provided that legal issues raised on appeal shall continue to lie within the exclusive jurisdiction of the appellate courts.
Consent for Media Coverage
Consent is hereby given to broadcast, electronically record or photograph my participation in the proceedings of the above-styled case, pursuant to the rules for media coverage of trials approved by the Arkansas Supreme Court, and the plan for coverage of this trial approved by the trial judge. I understand that once this consent is entered it cannot be revoked without a showing of just cause.
Date: _
Judge
Attorney
Attorney
Party
Witness
[Sign the appropriate space] | [
48,
-20,
-44,
124,
107,
99,
52,
-98,
114,
-29,
-94,
81,
-81,
90,
5,
-17,
-93,
43,
118,
65,
76,
-66,
23,
66,
-62,
-5,
-110,
-58,
-6,
-21,
-27,
-65,
76,
104,
-54,
-43,
70,
-52,
-115,
22,
-114,
2,
27,
81,
-48,
64,
48,
53,
82,
-97,
49,
-97,
-29,
-84,
30,
-61,
44,
20,
75,
-65,
81,
16,
-104,
95,
-17,
6,
-93,
-76,
27,
-121,
120,
104,
-40,
25,
9,
-20,
115,
-90,
-122,
53,
107,
-71,
8,
114,
98,
0,
108,
-61,
-68,
-88,
103,
123,
-115,
-89,
-110,
105,
9,
12,
-74,
-73,
104,
16,
7,
-6,
103,
85,
94,
44,
37,
79,
22,
-75,
-57,
107,
-28,
114,
-21,
103,
-112,
85,
-63,
-10,
82,
95,
19,
-45,
-114,
-75
] |
Darrell Hickman, Justice.
Olga Collyard, a seventy- three year old woman, sued the American Home Assurance Company for injuries that she alleged resulted from a slip and fall at the Hot Springs YMCA. The suit was filed directly against the insurance company because the YMCA is a charitable organization.
The Garland County Circuit Judge granted the insurance company’s motion for summary judgment, which we find to have been in error.
The appellant filed a complaint alleging that the YMCA was negligent in permitting water to remain on the floor and that such negligence caused the accident. The insurance company simply filed a general denial and set up specifically the defense of contributory negligence and assumption of risk. The company’s motion for summary judgment was not supported by an affidavit or by any evidence that the YMCA was not negligent; it was supported only by the deposition of Collyard.
In the deposition, Collyard did state that she did not know how the water got there or how long it had been on the floor. Because of this statement the judge ruled that the fact was not an issue as to whether the YMCA had acted negligently. This decision was based on several of our cases which hold that the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence. It must be proved that the substance was negligently placed there or allowed to remain. LeMay v. W. & R. Corp., 262 Ark. 530, 558 S.W. 2d 154 (1977). While that is a correct statement of the law it does not relate to whether summary judgment should have been granted.
The trial judge ruled that since the appellant did not respond to the motion by a counter-affidavit or proof that the water had been negligently placed there or allowed to remain there, the fact was not in issue. Rules of Civil Procedure, Rule 56, was cited for this conclusion.
Rule 56 makes no such requirement. The appellant alleged negligence on the part of the YMCA. The appellee never controverted this allegation by affidavit or other proof. It simply offered the deposition of Collyard that she did not know how the water got there or how long it had been there. The appellee and trial judge mistakenly presumed that the burden was on Collyard to come forward with additional proof on this issue. The burden in a summary judgment proceeding is on the moving party; it cannot be shifted when there is no offer of proof on a controverted issue. The object of a summary judgment is not to try the issues but to determine if there are issues of fact. Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1967).
Whether the YMCA was negligent remained a fact in issue. If appellant had offered proof that the YMCA was not negligent, then Collyard would have had to produce a counter-affidavit or proof refuting the offer. But that was not the case. The appellee based its motion only on the deposition of Collyard, the plaintiff. The allegation in the complaint remained uncontroverted and Collyard should be permitted to present other evidence on that fact.
The trial court implied that Collyard’s own negligence caused the accident. It is wrong to say as a matter of law that she is barred from recovery because of her own negligence simply because she saw the water before the fall. That is a jury question.
Reversed and remanded. | [
-14,
108,
-56,
-115,
-104,
97,
56,
18,
67,
-123,
-27,
19,
-1,
-59,
12,
119,
-30,
111,
-11,
51,
-41,
-93,
19,
10,
-42,
-109,
113,
-43,
36,
127,
-12,
-20,
76,
49,
-114,
-43,
-26,
-117,
-57,
90,
-122,
12,
26,
-31,
-103,
-60,
96,
123,
68,
7,
113,
-115,
-29,
45,
-108,
-53,
41,
44,
89,
-67,
-16,
113,
-118,
5,
123,
5,
-77,
36,
-102,
103,
122,
8,
-44,
49,
0,
-24,
50,
-74,
-110,
52,
8,
-101,
4,
98,
103,
-96,
13,
-21,
-87,
-104,
47,
62,
13,
-90,
18,
0,
91,
13,
-89,
-99,
112,
0,
46,
122,
-18,
-44,
91,
108,
19,
-117,
-106,
-79,
-83,
-28,
29,
-89,
-49,
-93,
48,
116,
-50,
-32,
92,
71,
113,
27,
-33,
-110
] |
Richard L. Mays, Justice.
The only question presented by this appeal is whether the evidence is sufficient to sustain a conviction of burglary.
On the evening of July 25, 1979, shortly after the sound of breaking glass was heard, appellant, Freddie Norton, was observed opening from the inside the front door of an office building, which had been secured for the night, and speaking to two acquaintances who were walking by. When later that evening the owner of the building discovered the front door open, a window broken out, glass on the floor, and her window drapes down, a police investigation ensued. It was learned that nothing was taken from the office building, although the only potential valuables located in the building were boxes of undisclosed items belonging to two dentists who were in the process of relocating. The investigation also revealed that on the very same evening a house located near the office building had been illegally entered, apparently through a bedroom window, and several valuables taken.
The appellant was arrested and charged with two counts of burglary and one count of theft of property. The same person who had seen appellant in the doorway of the office building also testified that she saw a man from behind who looked like appellant standing on a bucket beneath the window of the home which had been burglarized. The jury acquited appellant on the charge of burglary of the home and the theft of property but convicted him of burglary of the office building. Since appellant had also been charged under the Habitual Criminal Act, Ark. Stat. Ann. § 41-1001 et seq (Repl. 1977), the jury imposed a sentence of 15 years after finding that he had been convicted of at least two previous felonies.
On appeal of a criminal conviction, we view the evidence in the light most favorable to the state and affirm if there is substantial evidence to support the conviction. Lunon v. State, 264 Ark. 188, 569 S.W. 2d 663 (1978). Evidence is substantial if it is of sufficient force and character to compel a conclusion with reasonable and material certainty. Jones v. State, 269 Ark. 119, 589 S.W. 2d 748 (1980).
A person commits burglary when he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977). Appellant primarily contends that his burglary conviction 'should be reversed because there is no evidence other than that of his entry which establishes that he intended to commit an offense punishable by imprisonment. Since a specific intent, as well as illegal entry, are both elements of the crime of burglary, appellant argues that independent proof of each is required and that the existence of one cannot be presumed from the existence of the other.
The appellant’s argument is grounded in the United States Supreme Court decision of Mullaney v. Wilbur, 421 U.S. 684 (1975). There, it was held that the Due Process Clause of the 14th Amendment requires that the prosecution prove beyond a reasonable doubt every element of the crime charged. The Court invalidated a Maine homicide statute which implied malice aforethought in any criminal prosecution of an intentional homicide unless the defendant established by the preponderance of the evidence that the homicide was committed in the heat of passion. In commenting on the Mullaney holding in a subsequent case, Patterson v. New York, 432 U.S. 197, 215 (1977), the Supreme Court said:
Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. . . . Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
The well established principles enumerated by the United States Supreme Court in Patterson and Mullaney are controlling upon us today. Accordingly, we hold a specific criminal intent, which is an essential element of the crime of burglary, cannot be presumed from a mere showing of illegal entry of an occupiable structure. The prosecution must prove each and every element of the offense of burglary beyond a reasonable doubt and cannot shift to the defendant the burden of explaining his illegal entry by merely establishing it. Not only is illegal entry an independent element of burglary, but it also constitutes a separate crime punishable as criminal trespass. Ark. Stat. Ann. § 41-2004 (Repl. 1977). By implying a specific criminal intent from mere evidence of illegal entry, the state not only evades its constitutional evidentiary burden in criminal prosecutions but imposes upon a defendant the responsibility to prove he only committed a criminal trespass or stand in jeopardy of a conviction of burglary.
We are not unmindful that our decision in Grays v. State, 264 Ark. 564, 572 S.W. 2d 847 (1978), may suggest that the specific intent requirement of burglary may be presumed from the unexplained illegal entry of an occupiable structure. In Grays, however, the defendant fled, eluding the police officers, when his presence was discovered in the occupiable structure. We have consistently suggested that the flight of an accused to avoid arrest is evidence of his felonious intent. See, e.g., France v. State, 68 Ark. 529, 60 S.W. 236 (1900), Smith v. State, 218 Ark. 725, 238 S.W. 2d 649 (1951), Russell & Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977). Notwithstanding our holding in Grays, however, we find no evidence here other than appellant’s illegal entry to sustain a conclusion that appellant’s entry was for the purpose of committing an imprisonable offense. Certainly, the evidence of the other neighborhood crimes is immaterial since appellant was acquitted of those charges. At most, the evidence revealed that appellant was standing inside the doorway of an office building which he had illegally entered and from which nothing was taken, speaking to his friends passing by. Although criminal intent is by nature subjective and usually provable only by circumstantial evidence, it remains an independent and indispensable element of the crime of burglary and cannot be presumed from another fact, the establishment of which is also essential to a conviction of burglary.
Reversed. | [
113,
-18,
-4,
60,
10,
98,
122,
-20,
67,
-123,
113,
-45,
-91,
-64,
84,
97,
-108,
127,
85,
97,
-39,
-73,
115,
3,
-30,
-69,
122,
-43,
-67,
79,
-11,
-107,
77,
33,
-54,
85,
-126,
72,
-59,
80,
-118,
15,
-70,
-26,
117,
82,
44,
43,
-24,
15,
-79,
-98,
-25,
43,
16,
-50,
75,
44,
75,
57,
112,
-39,
-118,
29,
-1,
22,
-93,
101,
-101,
5,
-8,
28,
-100,
49,
0,
-24,
115,
-90,
-122,
116,
119,
-101,
12,
96,
98,
2,
9,
43,
-32,
-119,
38,
96,
-115,
-89,
-104,
9,
75,
109,
-105,
-97,
117,
0,
4,
-2,
-31,
84,
93,
108,
-113,
-33,
-112,
-109,
9,
97,
18,
-88,
-29,
49,
112,
97,
-52,
-30,
92,
113,
113,
-101,
-114,
-45
] |
John F. Stroud, Justice.
This is an appeal by a former Arkansas State Trooper from the termination of his employment for an alleged violation of a rule of the Department. As we find ample evidence to support the rule violation, we affirm the action of the Commission and the Circuit Court.
On September 10, 1975, at the instruction of his sergeant, appellant took custody of a 1974 Yamaha motorcycle which reportedly had been stolen in Missouri. He thereafter prepared and filed a form indicating that the motorcycle had been seized and was being stored at a wrecker company in Marshall, Arkansas. However, due to a lack of space at the wrecker company, it was actually stored by appellant in a leased building near his residence in the country. He testified that he talked to his sergeant two or three months later and was told to hold the motorcycle and someone would come after it. No one did come, and appellant had the motorcycle licensed in his name in May of 1976 by inserting his name in a pre-notarized open title seized with the motorcycle and by presenting the title to the local office of the Department of Finance and Administration. Appellant admitted that he rode it in the country something less than 100 miles during the summer of 1976. In August of 1976 the Arkansas State Police Rules and Regulations were revised, providing in Rule 11, as follows:
No confiscated property, property held as evidence, property awaiting court disposition or other property not specifically or legally conferred to a member of this Department shall be converted by any member of this Department to the member’s use and/or benefit.
Appellant testified that when he became aware of Rule 11 he put the motorcycle back in storage and did not drive it again, although he did admit that he thereafter renewed the license in his name in 1977 and 1978.
Arkansas State Police investigators conducted an investigation into the circumstances surrounding appellant’s storage and usage of the motorcycle, resulting in his dismissal from the State Police by Colonel D. W. Harp, Director of the Department, for violation of Rule 11. Appellant appealed his termination to the Arkansas State Police Commission and, following a hearing on May 25, 1978, the decision of the director was affirmed. From that decision appellant appealed to the Pulaski County Circuit Court which, also, affirmed the decision to terminate his employment. Alleging that the circuit court erred in affirming the action of the Commission, appellant brings this appeal.
Appellant contends that the Commission’s findings were unsupported by substantial evidence and that its affirmance of his dismissal was arbitrary, capricious and characterized by an abuse of discretion. These contentions, if established, would justify reversal pursuant to the Administrative Procedure Act. Ark. Stat. Ann. § 5-713 (h)(5) and (6) (Repl. 1976). Conversely, appellee asserts that there was ample evidence to support appellant’s dismissal and that the action of the Commission was in all respects proper. It is well-settled that we must affirm the decision of an administrative agency if there is substantial evidence of record to support it. Substantial evidence is valid, legal and persuasive evidence; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980); Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W. 2d 21 (1978). In reviewing the entire record of the hearing before the Commission, we find there was sufficient evidence adduced of appellant’s misconduct, particularly his own testimony, to support the findings of the Commission.
Appellant’s other contention, that the Commission’s action was arbitrary, capricious and abusive of its discretion, must be addressed within a more narrow standard of review. Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis. First National Bank of Fayetteville v. Smith, 508 F. 2d 1371 (8th Cir. 1974); White Co. Guar. S. & L. v. Farmers & Merchants Bank, 262 Ark. 893, 562 S.W. 2d 582 (1978). To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was “willful and unreasoning action,” without consideration and with a disregard of the facts or circumstances of the case. First National Bank of Fayetteville v. Smith, supra; White Co. Guar. S. & L. v. Farmers & Merchants Bank, supra. In the present case, appellant admitted riding the motorcycle and licensing it in his name, but contended that he did nothing to violate Rule 11 after he became aware of its adoption. The record does not indicate the rule in existence before Rule 11 was adopted, but it is quite clear that appellant did violate Rule 11 by continuing to license the motorcycle in his name after the revision in the rules was made known to him. Therefore, it was not error for the Commission to uphold appellant’s dismissal from the Arkansas State Police, nor for the circuit court to affirm that decision.
Affirmed. | [
48,
-18,
120,
60,
10,
64,
50,
-76,
81,
-115,
100,
19,
37,
66,
5,
57,
-21,
-1,
116,
121,
-57,
-74,
87,
9,
66,
-13,
-7,
-59,
-65,
79,
-28,
118,
94,
48,
-54,
85,
-124,
72,
-115,
88,
-58,
0,
-69,
113,
89,
-112,
44,
41,
4,
15,
113,
-113,
-30,
46,
17,
-49,
-19,
44,
-55,
41,
80,
113,
-117,
13,
-17,
16,
-77,
-64,
-102,
5,
-48,
60,
-108,
49,
17,
-8,
115,
-74,
-114,
116,
103,
-103,
12,
34,
98,
3,
124,
-17,
-4,
-88,
14,
58,
-115,
-90,
-104,
121,
11,
77,
-97,
-99,
107,
-111,
13,
-4,
99,
85,
87,
100,
15,
-50,
-108,
-111,
109,
32,
-106,
-117,
-21,
-63,
54,
113,
-50,
-26,
85,
69,
115,
-101,
-122,
-10
] |
Donald L. Corbin, Justice.
Appellants and representative plaintiffs below, Sonya Howard and Morgan Cole, appeal an order of the Sebastian Chancery Court dismissing with prejudice their complaint against appellee, the City of Fort Smith. We find no error and affirm.
Appellants’ complaint asserted a class action claim challenging the city’s collection of the occupation tax authorized by Ark. Code Ann. § 26-77-102 (1987). Appellants moved for summary judgment stating the only issues to be determined were whether the proration provisions of the city’s occupation license and tax ordinance violated the Equal Protection and Due Process Clauses of the Arkansas and United States Constitutions. Appellee responded to appellants’ motion by agreeing there was no genuine issue of material fact and asking for summary judgment in its favor. Appellee’s response included an affidavit of the city’s tax collection supervisor.
The parties waived both a hearing on the motions and the right to present any further evidence and requested the chancellor to decide the matter on the record before him. The chancellor wrote a well-reasoned order finding that the proration provisions of the ordinance did not violate appellants’ rights of equal protection and due process. The chancellor denied appellants’ motion for summary judgment and dismissed their complaint with prejudice. On appeal, appellants assert as error the chancellor’s findings that neither their equal protection nor their due process rights were violated by the ordinance.
Fort Smith Ordinance No. 3230, as amended by Fort Smith Ordinance No 8-90, establishes the city’s occupation license and the procedure for the collection of the accompanying tax. The tax is $150.00 per year for professionals and $75.00 per year for other persons engaged in any trade, business, or vocation. The tax year is from April 1 to March 31. However, as a benefit to the taxpayer, the city allows the tax to be paid in two installments due April 1 and October 1.
The “proration provision” of Ordinance 3230 challenged in this appeal provides that:
Fractional parts of the last half of the tax year shall be charged on a pro rata basis from the date of issuance of the license and date of payment of tax to the last day of March, provided that no license shall be issued or tax paid for less than one-fourth of the annual license fee or tax amount. [Emphasis added.]
Fort Smith, Ark. OrdinanceNo. 3230, § 5 (January 7,1975). The ordinance does not provide for proration of the tax for licenses issued in the first half of the tax year.
Appellants argue the ordinance is constitutionally defective because it only allows for proration of the tax in the latter half of the tax year. Appellants contend that the proration provision results in the disparate treatment of similarly situated taxpayers. Specifically, appellants’ claim that persons purchasing a license on any date between April 1 and September 31 are denied equal protection of the laws and due process because they must pay the full amount of the tax for the respective period while those persons purchasing a license on any date between October 1 and March 31 must only pay an amount of tax prorated to the respective time remaining in the latter half of the tax year, subject to the one-fourth limitation as quoted above.
Appellee responds with the argument that the difference in treatment for proration purposes is rationally related to the objective of administrative efficiency. Bill Hon, appellee’s collection supervisor, stated in his affidavit that, based on his experience, it would be inefficient to collect the tax on a non-uniform tax year with each taxpayer having a different individual tax year. Hon also stated in his affidavit that the options provided in Section 5 of Ordinance 3230 for the issuance and payment of the annual license and tax in six-month periods and for the proration of the tax during the second half of the annual tax year are equally and uniformly applied to all taxpayers.
EQUAL PROTECTION
With respect to the equal protection claim, appellants contend Ordinance 3230 treats similarly situated taxpayers differently and therefore does not provide all taxpayers with equal protection of the laws. We disagree with the contention that the taxpayers receiving dissimilar treatment are similarly situated.
Regardless of any asserted disparate treatment, the rational basis test is the analysis applicable to an equal protection challenge of tax legislation. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). “Under the rationality standard of review, we must presume the legislation is constitutional, i.e., that it is rationally related to achieving a legitimate governmental objective.” Id. at 213, 655 S.W.2d at 463. The United States Supreme Court has stated that the power to discriminate in taxation is inherent in the power to tax, Leathers v. Medlock, _ U.S. __, 111 S. Ct. 1438 (1991), and that courts should defer to local legislative determinations as to the desirability of imposing discriminatory measures. City of New Orleans v. Dukes, 427 U.S. 297 (1976). Governing bodies have always been given wide discretion in selecting the subjects of taxation, particularly in the area of occupational taxes. New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 (1938). Thus, in order for an appellate court to strike down a classification made by taxation legislation, the classification must be purely arbitrary and the discrimination must be invidious. Dukes, 427 U.S. 297.
Applying the foregoing rules of law, we have very recently stated that “ [i] f a taxation statute discriminates in favor of one class it is not determined to be arbitrary so long as the discrimination is based upon a reasonable distinction, and if there is any hypothesized set of facts to uphold a rational basis.” Medlock v. Leathers, 311 Ark. 175, 179, 842 S.W.2d 428, (1992). In the present case, the taxation legislation classifies taxpayers only according to the date on which they purchase their licenses. All taxpayers purchasing licenses on the same date are treated similarly. To achieve the objective of efficiency, the establishment of a uniform tax year is certainly rational. In addition, it is rational for the city to conclude that those persons purchasing licenses for the first time in the first half of the tax year will receive a reasonable value for their tax dollar through their receipt of a license valid for more than half the year and therefore should not be allowed proration. Those persons purchasing licenses for the first time in the latter half of the tax year will be receiving a license valid for less than half of the tax year; thus, it is rational for the city to conclude that these purchasers would not receive a reasonable value for their tax dollar unless the tax was prorated.
In short, we disagree with appellants’ contention that those taxpayers purchasing licenses in the first half of the tax year are similarly situated to those taxpayers purchasing licenses in the second half of the tax year. The latter group is not receiving a license valid for more than half a year; thus, the city could rationally conclude that they are entitled to proration of the tax. Any difference in the treatment of the taxpayers is based on a rational distinction, is not arbitrary, and does not result in invidious discrimination.
As the party attacking the taxation legislation, it is appellant’s burden to negate very conceivable basis which might support it. Madden v. Kentucky, 309 U.S. 83 (1940). The chancellor determined that appellants had not met their burden of negating the efficiency theory advanced by appellee. We agree with the chancellor. Appellants have not met their burden of showing the lack of a rational basis for the ordinance.
DUE PROCESS
With respect to taxation legislation, the due process analysis is the same as the equal protection analysis. See Johnson v. Sunray Services, Inc., 306 Ark. 497, 816 S.W.2d 582 (1991). The chancellor likewise concluded that appellants had not met their burden of proving any due process violation. We agree with the chancellor.
The judgment is affirmed.
Brown, J., concurs with the result. | [
-112,
-18,
-28,
94,
-66,
64,
10,
-67,
83,
-125,
36,
83,
45,
-118,
20,
123,
-29,
25,
113,
105,
-49,
-77,
5,
10,
-14,
-77,
-85,
-43,
-68,
79,
-28,
-28,
92,
49,
-21,
-35,
2,
-22,
-81,
90,
70,
0,
-119,
109,
-7,
68,
20,
42,
50,
15,
21,
-97,
-7,
44,
24,
-63,
77,
46,
73,
-96,
-14,
-13,
-120,
13,
79,
21,
-79,
116,
-40,
71,
82,
8,
-112,
49,
72,
-24,
51,
-74,
-126,
116,
47,
-103,
44,
104,
100,
-128,
5,
-9,
-72,
-116,
46,
-2,
-115,
-91,
-109,
57,
123,
13,
-74,
-107,
125,
16,
-49,
-6,
-26,
21,
29,
108,
-113,
-50,
84,
-95,
-89,
-23,
-112,
3,
-1,
3,
16,
113,
-59,
-30,
-34,
79,
59,
-117,
-57,
-40
] |
Jack Holt, Jr., Chief Justice.
The issue in this case is whether the trial court erred in its decision granting summary judgment to General Electric Capital Auto Lease, Inc. (GECAL) and Jones Toyota Volvo (Jones) on a contract to lease. We find no error and affirm.
In February, 1987, Robert and Cindy Wilson signed a contract to lease a 1987 Toyota Camry from Jones for a period of five years. The contract was later assigned to GECAL.
The Wilsons claimed that Jones’ leasing manager, Cliff Wright, made false representations to them that they could return the car to the dealership in three years, two years before the contract ended, and they could walk away not owing anything. They also alleged that Mr. Wright advised them that they would not need to purchase excess mileage coverage over the 75,000 mile limitation contained in the contract since they would be returning the car in three years.
After three years, the car reached the 75,000 mile mark and the Wilsons attempted to return the vehicle. GECAL and Jones would not take it back. The contract contained a clause, “K. Early Termination,” which provided a formula for an early termination charge should the party contracting to lease the car want to terminate the contract before the five year term ended.
Three years and four months after executing the contract, the Wilsons filed a complaint in federal court. This case was dismissed and the Wilsons refiled it in Pulaski County Circuit Court alleging intentional misrepresentation and usury. GECAL and Jones replied, among other defenses, that the statute of limitations had run on their claims.
Both GECAL and Jones filed motions for summary judgment which were granted after a hearing. The trial court ruled that the contract was a lease and not an installment sale contract so no usury was practiced; that the Wilsons’ claims of misrepresentation were barred by the statute of limitations; and that Mr. Wright’s statements were opinion and not fact. Since we agree with the trial court that the Wilsons’ claims were barred by the statute of limitations, we restrict our opinion to this issue.
The standard of review for summary judgment is whether the evidentiary items presented by the appellee in support of the motion left a material question of act unanswered. Barraclough v. Arkansas Power & Light Co., 268 Ark. 1026, 597 S.W.2d 861 (1980). In appeals from the granting of summary judgment, we review facts in a light most favorable to the appellant and resolve any doubt against the moving party. Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991). Here, the pivotal question is whether there is any genuine issue of material fact concerning the statute of limitations. Hickson v. Saig, 309 Ark. 231, 234, 828 S.W.2d 840, 841 (1992).
The applicable statute of limitations to this appeal is three years. Ark. Code Ann. § 16-56-105 (1987). See Scroggins Farms Corp. v. Howell, 216 Ark. 569, 226 S.W.2d 562 (1950). The Wilsons’ argued that although more than three years had elapsed from the contract date until the filing of the first complaint in federal court, Jones and GECAL perpetuated and concealed the intentional misrepresentation of Mr. Wright and thus tolled the statute of limitations. We conclude otherwise.
We have long held that where affirmative acts of concealment by the person charged with fraud prevent the discovery of that person’s misrepresentations, the statute of limitations will be tolled until the fraud is discovered or should have been discovered with the exercise of reasonable diligence. Walters v. Lewis, 276 Ark., 286, 634 S.W.2d 129 (1982); Williams v. Purdy, 233 Ark. 275, 265 S.W.2d 534 (1954); Meacham v. Mid-South Cotton Growers Assn., 196 Ark. 78, 115 S.W.2d 1078 (1938). See also Williams v. Hartje, 827 F.2d 1203 (8th Cir. 1987). We have said that the “classic language on this point in Arkansas” is:
No mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute bar. There must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiffs cause of action concealed, or perpetrated in a way that it conceals itself. And if the plaintiff, by reasonable diligence,might have detected the fraud, he is presumed to have had reasonable knowledge of it.
Scroggins Farms Corp. v. Howell, 216 Ark. 569, 572-3, 226 S.W.2d 562, 565 (1950) (quoting McKneely v. Terry, 61 Ark. 527, 545, 33 S.W. 953, 957 (1896)). The same rationale holds true today.
Even assuming that GECAL and Jones actively con cealed a fraudulent misrepresentation, and there was no proof of this presented, the statute of limitations was suspended only until the alleged victims of the fraud discovered the fraud or “should have discovered it by the exercise of reasonable diligence.” Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988) (quoting Hughes v. McCann, 13 Ark. App. 28, 678 S.W.2d 784 (1984)). See also Wrinkles v. Brown, 217 Ark. 393, 230 S.W.2d 39 (1950); City Nat’l Bank v. Sternberg, 195 Ark. 503, 114 S.W.2d 39, cert. denied, 305 U.S. 614, reh’g denied, 305 U.S. 671 (1938). The depositions of Robert and Cindy Wilson filed with the court revealed that the Wilsons did discover or should have discovered the alleged fraudulent misrepresentations, and so there was no genuine issue of material fact concerning the running of the statute of limitations. The Wilsons made no effort to read the clause on the back of the contract which would have contradicted the “claims” purportedly made by Mr. Wright. Mr. Wilson testified:
Q. Did you ever read the document after Mr. Wright handed it to you?
A. No, I did not. Well, it was never handed to me. I signed it, but actually carrying it around with me, I did not.
Q. Have you ever read it,to this day?
A. To this day, I have — just recently, I’ve looked over the back of it. When my wife said something about what kind of payoff we had on the thing and after she discovered that there was (sic) some things pertinent to us, I kind of looked over it a little bit, but as far as actually having read every word on the back, I still haven’t.
Q. Now, you’ve heard your wife indicate that at about the 24-month period in the lease, she inquired of GECAL and that was the first time she was aware that there was something on the back of the — or on the reverse side of the document.
A. Right.
Q. Did you become aware at that same time that there was language on the other side of the lease?
A. I was aware to the point that I knew that there was some printing of some kind on the back the day we did the deal. Now, as far as I — I did not know there was anything that I should be aware of or be made aware of on the back of it. You know — I just assumed it was like a lot of other forms that have — for lack of a better word — a bunch of crap on the back — that other documents we’ve signed have been like. But I did know that there was some printing on the back of it.
Mrs. Wilson testified that she had “just stuck [the contract] in her purse and left” the dealership after it was signed, then “stuck it in [her] drawer at home.” Most importantly, Mrs. Wilson testified that two years after the contract was signed, she called GECAL and was advised about the early termination change and then immediately read the termination provision section of the lease. Nevertheless, it was one and a half years after she called GECAL and over three years after the contract was signed before the Wilsons filed any complaint.
In sum, the Wilsons did not fulfill their duty to exercise reasonable diligence in examining the contract they executed to uncover what they alleged was a fraudulent misrepresentation by the leasing manager, so they cannot now complain that the statute of limitations should have been tolled. To the contrary, the evidence shows that they knew or should have know of the contract’s actual provisions, so there was no genuine issue of material fact precluding summary judgment.
Affirmed.
Brown, J., not participating. | [
112,
106,
92,
-52,
8,
0,
58,
-102,
-5,
-22,
37,
-109,
-83,
-54,
4,
122,
-29,
127,
117,
106,
-43,
-77,
55,
49,
81,
-77,
-39,
-43,
-96,
-49,
100,
92,
76,
32,
-54,
-59,
-26,
-54,
-59,
86,
78,
-124,
-71,
108,
-7,
65,
52,
56,
16,
15,
65,
12,
-29,
46,
25,
79,
105,
40,
105,
41,
-48,
-16,
81,
-123,
127,
22,
-78,
4,
-100,
9,
120,
14,
16,
48,
56,
-24,
114,
-74,
-62,
-4,
105,
-103,
40,
38,
102,
-94,
4,
87,
-36,
-104,
14,
-38,
15,
-121,
-46,
120,
10,
7,
-73,
-68,
126,
16,
36,
-2,
110,
5,
31,
97,
7,
-49,
116,
-95,
13,
-32,
-102,
8,
-9,
-125,
48,
113,
-51,
-26,
92,
23,
115,
-77,
6,
-42
] |
Richard B. Adkisson, Chief Justice.
This is apparently an appeal from a Cross County Chancery Court order dated July 11, 1979, denying appellant’s petition to proceed in forma pauperis.
The questions argued on appeal concern the chancellor’s ruling of July 5, 1979, holding that appellant could not proceed as an indigent pursuant to Rule 18 of the Uniform Rules for Circuit and Chancery Courts (Ark. Stat. Ann., Vol. 3A, Repl. 1979, p. 519) without first meeting the requirements of Ark. Stat. Ann. § 27-402 (Repl. 1979).
Since appellant’s abstract and briefs are not in compliance with Rule 9(b), (c), or (d), we must affirm the trial court under Rule 9(e)(2) of the Rules of the Supreme Court of Arkansas (Ark. Stat. Ann., Vol. 3A, Repl. 1979, p. 485). Bank of Ozark v. Isaacs, 263 Ark. 113, 563 S.W. 2d 707 (1978).
Appellant’s abstract did not contain a concise statement of the case without argument as required by Rule 9(b).
Rule 9(c) provides, in part: “Following his statement of the case the appellant shall list and separately number, concisely and without argument, the points relied upon for a reversal of the judgment or decree.” Generally, a point for reversal should be limited to a one-sentence statement of the error committed by the trial court. Appellant’s “Points and Authorities” covers one full page without setting forth what the trial court did wrong.
Also, Rule 9(c) provides: “Either party may insert under any point not more than two citations which he considers to be his principal authorities on that point.” However, appellant’s “Points and Authorities,” which he divides into three sections, contains a total of at least 17 citations of authority.
Rule 9(d) requires:
The appellant’s abstract or abridgement of record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. .. . Not more than two pages of the record shall in any instance be abstracted without a page reference to the record.
Appellant’s abstract is not in compliance with the above provisions of Rule 9(d) in the following particulars:
First, appellant’s abstract begins with a narrative explanation, unsubstantiated by the record, of the events leading up to the chancellor’s letter of June 26, 1979, ordering the chancery clerk to assign a number to the appellant’s complaint.
Second, appellant has not abstracted the affidavit of indigency relied upon in the trial court to support his in forma pauperis petition. The affidavit supporting his assertion of indigency is required to be filed by Rule 18 of the Uniform Rules of Circuit and Chancery Courts. Ark. Stat. Ann., Vol. 3A, (Repl. 1979).
Third, appellant has failed to abstract the order of July 11, 1979, from which he has appealed.
Fourth, appellant’s four-page abstract makes no page reference to the record.
In numerous cases this court found it necessary to affirm for noncompliance with Rule 9. Dyke Industries, Inc. v. Johnson Construction Co., 261 Ark. 790, 551 S.W. 2d 217 (1977); Smith v. Smith, 263 Ark. 578, 567 S.W. 2d 88 (1978); Wade v. Franklin-Stricklin Land Surveyors, Inc., 264 Ark. 841, 575 S.W. 2d 672 (1979); Perry v. Cox, 266 Ark. 402, 585 S.W. 2d 33 (1979).
Affirmed.
Purtle and Hays, JJ., dissent. | [
54,
-18,
-4,
92,
8,
97,
58,
-118,
81,
11,
103,
83,
-19,
-33,
20,
127,
-30,
43,
116,
121,
-42,
-73,
22,
65,
102,
-13,
-79,
-43,
-75,
127,
-28,
-12,
72,
112,
-54,
-107,
70,
-54,
-55,
92,
-50,
11,
-120,
69,
-8,
68,
56,
39,
64,
15,
53,
-42,
-29,
45,
28,
-61,
-87,
108,
89,
-84,
64,
-104,
-102,
15,
127,
20,
-79,
53,
-102,
5,
88,
40,
-104,
61,
1,
-24,
50,
-90,
-122,
-44,
107,
91,
8,
106,
98,
2,
56,
-53,
-72,
-88,
38,
27,
29,
-89,
-104,
-127,
75,
9,
-105,
-103,
101,
16,
7,
-2,
-22,
-51,
27,
108,
7,
-114,
-48,
-91,
-97,
124,
-104,
11,
-29,
-61,
16,
117,
-59,
-25,
93,
-41,
51,
-101,
-122,
-112
] |
Darrell Hickman, Justice.
John Wesley Shaw was con victed of the capital felony murder of two elderly people and sentenced to life imprisonment without parole. He argues on appeal that three errors were committed at his trial. All of his allegations are without merit. We have examined the record for any other errors, as we are required to do, and finding none, affirm the judgment. The State’s theory of the case was that Shaw, an itinerant worker, became acquainted with the couple and visited with them at their cabin in Monte Ne, Benton County, Arkansas. Shaw killed the couple with a shotgun and hid their bodies in a cistern. He stole their pickup truck and shotgun and went to Oklahoma. The State’s evidence showed that a shotgun had been discharged through a screen door three times and that both people were killed with a shotgun. Shaw was later seen in Oklahoma driving a truck similar to the elderly man’s truck. He also was seen with a shotgun like the one belonging to the elderly man. Shaw later made statements denying that he had such a truck or shotgun and denying he was present when the killings occurred. Before the trial, Shaw learned that a jailmate of his was to become a witness against him and was prepared to testify that Shaw had admitted killing the couple.
After this incriminating evidence was introduced, Shaw made a detailed statement to the authorities in the presence of his lawyer. In this statement Shaw admitted that he had known the couple for some time and had stayed with them occasionally. On the day in question he said that both elderly people were drinking and arguing and that the woman got a gun and shot the man. Shaw said that he tried to grab the gun from the woman and shot the woman accidentally. He admitted dumping the bodies in a cistern. He also admitted taking the pickup truck and a shotgun, later selling the truck in Oklahoma.
Two alleged errors relate to the prosecuting attorney’s argument. The prosecutor’s remarks that are emphasized below were objected to by the defendant. The prosecutor said in his opening statement:
. . . They began to share the same roof a few years before their deaths. You will hear testimony concerning their affection for each other, their lifestyle. Off and on they came back to the old homestead, the old cabin at Monte Ne and lived there bothering no man, causing no one any problems whatsoever. They had worked their working lives and were now in retirement. If they had one fault, it was that they were willing to lend a helping hand to . . . [Emphasis added.]
In closing the prosecutor referred to the fact that Shaw gave a detailed statement to the police after the State had gathered considerable evidence. The prosecutor offered his opinion as to why Shaw had made this inculpatory statement. First, he argued that it was to offset the evidence discovered against Shaw. Finally, the prosecuting attorney said:
... I submit to you that it’s totally permissible for you to conclude that he agrees he involved himself in one of those deaths, but not two in order to beat the capital murder rap.
These statements in our judgment were within the limits permitted to advocates. The test is whether there was a manifest abuse of discretion by the judge in failing to properly act on an objection to improper remarks. Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979). We cannot find such an abuse in this case.
The court admitted into evidence a letter that the elderly lady apparently had written on the day of the killings. The State argued that its purpose was to show the woman’s state of mind on that day in order to refute Shaw’s statements that the couple had been arguing, drinking and fighting just prior to the killings.
The letter was an ordinary letter about the weather and contained only small talk. It may not have met the criteria for state of mind evidence envisioned by Rule 803, Uniform Rules of Evidence, [Ark. Stat. Ann. § 28-1001 (Repl. 1979)] but it was certainly harmless. Judgments are not reversed for harmless error. Harrington v. California, 395 U.S. 250 (1969).
Affirmed.
Dear Sis
Sat A.M. drop a few lines before it gets to hot. Just got back from town getting money orders & Gro. Sure been hot & dry as heck. Yard & everything burning. Things sure did wilt yesterday & I guess again today. Been having mower trouble all wk. but finally got it to going. Hope it holds up. Hade 3 glasses R B Jelly Wednesday. Another batch to work up. Do that today. Alva went to see Springer to mow the field, said he would. Thought maybe he’d be here today, but guess not after 10 o’clock. Boy this deal over here by Durr Ranch going to be some deal. Big thing. Roads all over that hill clear to lake. Started a big building at front. Well let this do for now. Got to get around & clean the house out a little & make up my berries.
by by Love Sis & Alva. | [
112,
-22,
-55,
62,
40,
-32,
42,
-100,
-41,
-110,
-16,
83,
-51,
-51,
69,
105,
123,
105,
93,
105,
-44,
-105,
103,
33,
-62,
-77,
121,
-59,
48,
77,
-76,
-44,
72,
96,
-54,
73,
98,
0,
-57,
-40,
-114,
5,
-120,
-14,
-14,
18,
116,
111,
-124,
7,
101,
12,
-30,
43,
86,
-61,
73,
40,
75,
-82,
81,
49,
10,
-105,
-52,
50,
-125,
37,
-102,
4,
-8,
44,
-44,
49,
0,
104,
115,
-110,
-126,
117,
109,
-119,
12,
98,
98,
32,
-36,
-23,
-88,
-128,
63,
-1,
-115,
-81,
-100,
0,
75,
69,
-97,
-35,
98,
112,
46,
-16,
-11,
116,
93,
96,
-108,
-34,
-108,
-127,
-19,
40,
-98,
-69,
-5,
37,
100,
117,
-51,
-22,
125,
101,
24,
123,
-117,
-74
] |
George Rose Smith, Justice.
In this action for personal injuries and property damage suffered by the appellants in a traffic collision, judgment for the defendant, Whittington, was entered pursuant to a jury verdict apportioning negligence in the ratio of 60% in Ferrell, one of the drivers, and 40% in Whittington, the other driver. A motion for a new trial, on the ground that the verdict was against the preponderance of the evidence, was denied. This appeal is solely from that denial and comes to this court as a tort action. Rule 29 (1) (o).
The case is argued as if the test on review were whether the trial court abused its discretion in denying the motion. True, that is the test when the trial judge grants such a motion, finding the verdict to be contrary to the preponderance of the evidence. Smith v. Villarreal, 253 Ark. 482, 486 S.W. 2d 671 (1972). But the trial judge is in a far better position than we to weigh the evidence, which he has heard; so if he denies the motion we determine only if the verdict is supported by substantial evidence. Brady v. City of Springdale, 246 Ark. 1103, 441 S.W. 2d 81 (1969). The grounds for a new trial were not changed by the Rules of Civil Procedure. Rule 59 and its Reporter’s Note 2.
The collision occurred at the intersection of U.S. Highway 64 and State Highway 5, in White county. Whittington was traveling south on Highway 5 and unquestionably stopped in obedience to a stop sign and a flashing red light. Such signals require a motorist to stop and indicate that the other street has the preferential right of way. Ark. Star. Ann. §§ 75-506 (1) and 75-645 (Repl. 1979). There was also a flashing yellow light facing traffic on Highway 64, requiring Ferrell, who was approaching from Whittington’s left, to proceed through the intersection with caution. § 75-506 (2).
Whittington and his passenger both testified that, after stopping, they looked to their left and saw nothing and looked to their right and saw a car some distance away. Whittington testified he had plenty of time to get .across and entered the intersection. He did not see Ferrell’s car until he heard the squealing of brakes. The front of Ferrell’s car struck the side of the Whittington car with such force that Ferrell’s car was “totaled.” Whittington testified that he had no way of knowing Ferrell’s speed, as he did not see the car, but he said he believed “if the speed had been within the range of the sign down the road, 40 miles per hour, that he could have stopped or gone back of me.” After the collision, which momentarily lifted the Whittington car on two wheels, the front of that car was six feet past the center of the intersection.
Ferrell, as the plaintiff, had the burden of proof, but his own testimony, even if accepted, did not negative the possibility of negligence on his part. He said he did not see a speed limit sign as he approached the intersection. A police officer had testified that the yellow caution light was visible from a distance of 500 feet or more. Ferrell said he was traveling 50 to 55 miles an hour when he saw the caution light and began to reduce his speed, but he made no attempt to say how far from the light he was when he saw it. He could not say to what speed he had slowed when he saw the other car begin to cross the highway. He did say, three times, that at that point he “got on” his brakes, but he could not avoid the collision. His car left only 66 feet of skid marks.
The appellant designated an abbreviated record, without the court’s instructions, but we must assume that the jury was correctly instructed. Under AMI 905 Whittington, after stopping, was required to yield the right of way to vehicles which were approaching so closely “as to constitute an immediate hazard.” If Whittington so yielded and had time to cross the highway (as he testified), the drivers of other vehicles were required to yield the right of way to him. AMI Civil 2d, 905 (1974); see also Brown v. Barker, 217 Ark. 700, 233 S.W. 2d 64 (1950); Casenote, 7 Ark. L. Rev. 413 (1953). Moreover, under AMI 907 the jury were presumably told that a driver cannot obtain the right of way by negligent conduct.
We do not review a jury’s apportionment of comparative negligence if fair-minded men might differ about it (which is essentially the same test as that of substantial evidence). McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753 (1972). Here the jury could reasonably have found that Ferrell was negligent in not seeing the 40-mile sign, that he did not reduce his speed sufficiently when he should have seen the caution light, that he did not apply his brakes at all until it was far too late, and that the “totaling” of his car indicated that he was still traveling at high speed when the collision occurred. On the other hand, Whittington could be found to have entered the intersection with some care after he had first stopped. There is ample substantial evidence to support the jury’s conclusion that Ferrell’s negligence was greater than Whittington’s.
Affirmed. | [
-16,
-6,
-28,
44,
95,
64,
18,
-102,
-32,
-21,
-11,
19,
-83,
-53,
21,
55,
-25,
117,
85,
43,
-10,
-125,
7,
-93,
-78,
-13,
107,
71,
-65,
-53,
108,
81,
78,
48,
-53,
-43,
38,
-55,
-123,
90,
-50,
-108,
-88,
100,
88,
18,
-88,
41,
2,
31,
69,
-98,
-29,
46,
24,
-61,
-23,
40,
91,
-76,
-64,
-71,
-48,
15,
127,
16,
-79,
52,
-98,
75,
88,
56,
-104,
49,
8,
-40,
50,
-74,
-110,
-44,
97,
-71,
12,
-96,
99,
1,
25,
-19,
-68,
-72,
38,
126,
13,
-90,
26,
9,
73,
10,
-106,
-5,
123,
18,
14,
122,
124,
85,
89,
104,
3,
-113,
-74,
-95,
-59,
48,
-128,
19,
-21,
-121,
20,
112,
-50,
-6,
94,
69,
123,
-37,
-121,
-108
] |
Jack Holt, Jr., Chief Justice.
The primary issue in this case is whether the Arkansas State Plant Board’s administrative action refusing to renew A.B.C. Termite and Pest Control’s license was correct. We find that it was and affirm the trial court. A.B.C. also complains that the trial court erred in not making findings of fact and improperly limited its scope of review. We disagree.
In April, 1990, Melber Wright, owner and operator of A.B.C. Termite and Pest Control, was sent an Order and Notice of Hearing from the Pest Control Committee of the Board advising him that an administrative hearing would be held in connection with the status of his pest control license. The Notice had four counts: (I) alleged Mr. Wright was in violation of the terms of a probation period imposed in 1988; (II) alleged he failed to correct substandard work on sixteen specified buildings which were found by the Plant Board to lack minimum requirements; (III) alleged that he failed to file required monthly reports of work done on certain property; and (IV) alleged he had not paid reporting and reinspection fees totalling $3,753.00. Mr. Wright had previously been placed on probation for two years by order of the Board dated December 9,1988 based on a finding pursuant to Ark. Code Ann. § 17-30-217(l)(1987) that he “misrepresented for the purpose of defrauding the consumers of the State of Arkansas by entering into agreements to perform termite pretreatments on [twenty-five buildings] when, in fact little or no chemical application was made by Wright or his registered agents.”
On May 24, 1990, an evidentiary hearing was held by the Pest Control Committee of the State Plant Board. The Committee made the following findings of fact and conclusions of law:
(a) Melber Wright failed to correct substandard work on 16 buildings found not to meet minimum treating requirements for Termite and Other Structural Pests, so he is guilty of violating Ark. Code Ann. § 17-30-217(9)(1987).
(b) Melber Wright did not file reports of work performed as required by law, so he is guilty of violating Ark. Code Ann. § 17-30-221(c), (1), (3). He did not pay reporting and reinspection fees in violation of Ark. Code Ann. § 17-30-217(6).
The Committee recommended to the Board that Mr. Wright’s license not be renewed unless the fees were paid and the work was brought to compliance by July 1, 1990. They also recommended that the Board sequester A.B.C.’s bond until the fees were paid. The order specifically advised Mr. Wright of his right to appeal the Committee’s action to the Full Board at its June 7, 1990, meeting by “filing a written request at the Plant Board office no later than June 2, 1990, stating his desire to appeal.” No written request was filed, nor did he or his attorney appear before the full Board meeting.
At its June 7 meeting, the Board adopted the recommenda tions of the committee without change. On July 6, 1990, Mr. Wright filed a petition for judicial review in Pulaski County Circuit Court pursuant to the Administrative Procedure Act, Ark. Code Ann. § 25-15-212 (1992), alleging that the Plant Board acted in violation of constitutional or statutory provisions, in excess of its statutory authority, using unlawful procedure, and abusing its discretion. Mr. Wright filed a separate motion to stay enforcement of the agency’s decision. The court found Mr. Wright would be irreparably harmed and entered an order granting his request for a stay of the nonrenewal of his license during the pendency of this proceeding.
The trial court affirmed the actions of the Board and found that the committee system used by it to review Mr. Wright’s license was lawful, that substantial evidence supported their findings of fact made, and that the action of the Board was not arbitrary. The court provided in its order that if Mr. Wright appealed, the stay previously granted would remain in effect pending appeal.
One month after the hearing was held on the merits, Wright filed a motion asking the trial court to make findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52(a), which states, “If requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon.” A hearing was held on the motion but the court denied it and accepted an order drafted by the Plant Board pursuant to the court’s directions.
The Plant Board countered that under Ark. Code Ann. § 25-15-212(h)(l)-(6)( 1992) and Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984), the Arkansas Rules of Civil Procedure do not apply to civil actions brought under the Administrative Procedure Act. We held in Whitlock that the Administrative Procedure Act is an exception to the Arkansas Rules of Civil Procedure under Rule 81(a), and we have repeated this rule in more recent cases. Sunbelt Couriers v. McCartney, 303 Ark. 523, 798 S.W.2d 92 (1990); McEuen Burial Ass’n v. Arkansas Burial Ass’n Bd., 298 Ark. 572, 769 S.W.2d 415 (1989). Based on this rule, Ark. R. Civ. P. 52(a) is inapplicable tot his judicial review, and the trial court was not bound to provide Mr. Wright with a finding of fact or conclusion of law.
By contrast, the Plant Board did fulfill its requirements under the Administrative Procedure Act that a final decision be rendered that “shall include findings of fact and conclusions of law, separately stated.” Ark. Code Ann. § 25-15-210(b)(l-2)(1992). The Pest Control Committee made specific findings of fact and conclusions of law which the Board adopted. The Pest Control Act allows adjudicatory hearings to be held by the board or an authorized committee of the board. Ark. Code Ann. § 17-30-220(a)(1987). This process had been recognized by this court in Thomas v. Committee “A”, Ark. State Plant Bd., 255 Ark. 517, 501 S.W.2d 248 (1973). The findings of the Pest Control Committee were adequate and were duly adopted by the Board.
Mr. Wright next argued that the rationale the court gave for affirming the Plant Board’s decision was inadequate because the court improperly limited the scope of its review to only one of the six grounds givenat Ark. Code Ann. § 25-15-212(h) (1987), that is, that it found substantial evidence to support the action taken.
Substantial evidence is one of the six bases for judicial review given by the Administrative Procedure Act:
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the agency’s statutory authority;
(3) Made upon unlawful procedure;
(4) Affected by other error or law;
(5) Not supported by substantial evidence of record; or
(6) Arbitrary, capricious, or characterized by abuse of discretion.
Ark. Code Ann. § 25-15-212(h)(1992)(emphasis added).
Mr. Wright argued that the other five standards of review should have been applied. However, Mr. Wright provided no authority supporting his position or any logical reasons why these other five rationale should be applied.
The trial court’s order reflected that the trial court did take three of these factors into consideration: whether supported by substantial evidence (§ 25-15-212(h)(5)), whether made upon unlawful procedure (§ 25-15-212(h)(3)), and whether there existed arbitrary and capricious procedure (§ 25-15-212(h)(6)). This was more than sufficient to satisfy the Administrative Procedure Act.
Mr. Wright’s main argument was that the trial court’s decision was clearly erroneous for a variety of reasons. “Clearly erroneous” is not the correct standard of review applicable here: when reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion. In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992); Singleton v. Smith, 289 Ark. 577, 715 S.W.2d 437 (1986); Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984); Arkansas Alcoholic Beverage Control Bd. v. King, 275 Ark. 308, 629 S.W.2d 288 (1982). We have recognized that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition 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. First Nat’l Bank v. Arkansas State Bank Comm’r, 301 Ark. 1, 5, 781 S.W.2d 744, 746 (1989); Arkansas State Hwy. Comm’n v. White Advertising Int’l, 273 Ark. 364, 620 S.W.2d 280 (1981); Arkansas Beverage Control Bd. v. King, supra; Gordon v. Cummings, 262 Ark. 737, 561 S.W.2d 285 (1978).
To determine whether a decision is supported by substantial evidence, we review the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Livingston v. Arkan sas State Medical Bd., 288 Ark. 1, 701 S.W.2d 361 (1986); Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d. 23 (1980). To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusions. Beverly Enters.-Ark., Inc. v. Arkansas Health Servs., 308 Ark. 221, 824 S.W.2d 363 (1992); Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983). Substantial evidence is valid, legal and persuasive evidence. Independence Sav. & Loan Ass’n v. Citizens Fed. Sav. & Loan Ass’n, 265 Ark. 203, 577 S.W.2d 390 (1979).
At the Committee hearing, the procedure and rules for regulating pest control operators were outlined. These gave a standard procedure for inspection, notice, and sanctions where the Board’s rules and regulations are violated. If a Board inspector inspects a site and finds substandard pest control work, the Board sends a “Report of Substandard Termite Treatment,” or pink slip, to the pest control operator, after which the operator has fifteen days to rectify the situation. The site will be reinspected, and if the work is still not done, another pink slip may be issued. Fees are charged for notice and reinspection. Testimony at the Committee hearing revealed that the fees were based on an analysis of the overall operating cost of the Pest Control Division.
In Mr. Wright’s situation, there was ample evidence to support the agency’s action. First, there was evidence presented at the lengthy Committee hearing regarding the substandard conditions of all sixteen buildings named in the original Notice and Order. An inspector employed by the Board testified that he inspected one house four times and had caused three pink slips to be issued as well as a letter to Mr. Wright. Similar testimony as to the other buildings followed. In most instances, three pink slips, the maximum number, were sent to Mr. Wright and at least three reinspections occurred per property, although one property had only one pink slip issued.
Secondly, the terms of the 1988 order which put Mr. Wright on probation for two years were read into the record and it was clear that this previous agreement between the Board and Mr. Wright had been violated. The two terms of his probation were (1) that he violate no statute of the Professional Practice Act or the Rules and Regulations of the Arkansas State Plant Board and (2) that he rectify the customers’ complaints included in the notice. Mr. Wright failed to abide by both these terms by violating the rules and regulations as evidenced by the numerous pink slips issued and by failing to rectify one of the substandard jobs complained of 1988. In reviewing the record of the hearing before the Committee, the hearing before the Board, and the trial, it is obvious there was sufficient evidence of Mr. Wright’s misconduct to support the action of the Board.
We need not decide whether the Board’s action was arbitrary and capricious since it automatically follows that where substantial evidence is found, a decision cannot be classified as unreasonable or arbitrary. Independence Sav. & Loan Ass’n v. Citizens Fed. Sav. & Loan, 265 Ark. 203, 211, 577 S.W.2d 390, (1979).
Mr. Wright makes several arguments on appeal which we are not bound to address because they were not raised before the Board. In Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985), we said it is essential to judicial review under the Arkansas Administrative Procedure Act that issues must be raised before the administrative agency appealed from or they will not be addressed by this court:
A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the matter, make its ruling, and state the reasons for its action.
Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 192, 685 S.W.2d 511, 513 (1985)(quoting Unemployment Compensation Comm’n v. Aragon, 329 U.S. 143 (1946)). Mr. Wright was given notice of his right to appear before the full Board but declined to appear and raise these issues. See Truck Transp., Inc. v. Miller Transp., Inc., 285 Ark. 172, 685 S.W.2d 798 (1985).
Considering the deference this court gives to administrative decisions of agencies, we find that the Board’s decision to not renew Mr. Wright’s license was not arbitrary or capricious and was, in fact, supported by substantial evidence. See Edwards v. Arkansas Alcoholic Beverage Control, 307 Ark. 245, 819 S.W.2d 271 (1991).
For the foregoing reasons, we affirm. | [
52,
110,
-17,
-100,
8,
-31,
56,
-100,
67,
-53,
-25,
83,
-17,
-125,
29,
41,
67,
109,
116,
121,
-58,
-74,
115,
98,
66,
-13,
-5,
-59,
60,
79,
-12,
-100,
72,
53,
-62,
-41,
-122,
-64,
-51,
-40,
-122,
33,
11,
97,
-47,
86,
32,
-83,
86,
15,
53,
-66,
-77,
47,
17,
-61,
73,
44,
-39,
45,
81,
-15,
-102,
29,
127,
20,
-109,
100,
-116,
7,
120,
46,
-112,
57,
1,
-24,
115,
-96,
-128,
68,
15,
-103,
12,
38,
98,
35,
-115,
-17,
-88,
-120,
6,
-69,
15,
-90,
-110,
104,
107,
35,
-98,
-108,
80,
22,
6,
-2,
99,
-59,
29,
108,
10,
-114,
-108,
-125,
-113,
-124,
-100,
24,
-17,
-121,
48,
117,
-119,
-26,
125,
71,
19,
91,
-122,
-108
] |
James H. Pilkinton, Judge.
The appellant, Faye Avington, and the appellee, Jessie Paul Newborn, own ad joining lands in Clark County, Arkansas. In the summer of 1979, Mrs. Avington had a survey made to determine the location of her east boundary line. There was an old fence, located somewhat west of where appellant thought her east boundary line was located. After appellant had the boundary surveyed, she took down the old fence, and had a new fence constructed just inside the survey line.
Mr. Jessie Paul Newborn, who now owns the property to the east, was in the U.S. Army and was stationed in Germany at that particular time. Mr. Newborn was notified by his aunt that the old fence had been taken down and a new one constructed. Mr. Newborn took a leave of absence and came back to Clark County, and filed this action in chancery court, asking for injunctive relief and damages for trespass. According to the pleadings, he based this, claim on adverse possession of the approximately five-foot strip in dispute.
The chancellor found in favor of appellee, determined the old fence to be the boundary line between the lands, and ordered Mrs. Avington to move the newly constructed fence to the old fence line. The chancellor also awarded judgment against the appellant in the sum of $ 1,500 for actual and punitive damages. Mrs. Avington has appealed from the decree of the chancery court.
The evidence is undisputed, that the old fence, now in question, was erected as a fence of “convenience” rather than as a boundary fence. Counsel for appellee phrases it in his brief as follows:
From the testimony of appellee’s witnesses it was apparent that in the early 1900’s, appellee’s grandfather moved his fence east to allow a lane for public use. Likewise, appellant’s predecessors in title moved his fence west to add to this lane.
The record is clear that there were originally two fences, which outlined a lane approximately ten feet in width, and that this lane was for the convenience of the parties who then owned the lands. The record further shows that over the years, the fence on the east side of this old lane deteriorated and passed out of existence, but Mrs. Avington and her predecessors in title ran cattle on their land, and for that reason maintained the fence on the west side of what was once the old lane. It is also clear that this strip in whole or in part was used as a lane for a second time at a later date, to afford ingress and egress to a house owned by the Newborns. The exact location of the house is not established by the record, and the evidence is unclear as to dates on any of these events which are critical to appellee’s claim of adverse possession. It is clear, however, that the true boundary line between the respective parties was the approximate center of the lane created by the setback of the fences.
The evidence indicates that Mrs. Avington is the record owner of the strip involved, i.e., the five or six feet of land immediately east of the old fence line as shown on the Whitfield survey. Appellee’s claim rests solely upon the existence of the old fence which, when he bought his land, he mistakenly assumed to represent the location of the true legal boundary. There is no contention here that Mrs. Avington did not put the new fence on her side of the correct line as established by Mr. Gary L. Whitfield, the only surveyor to testify. Mr. Newborn and Mrs. Avington both said they were attempting by this lawsuit to claim only to the correct legal line on the ground. And the prayer in appellee’s complaint seems to be in accord. It prays that the chancery court “enter a mandatory injunction directing the Defendant to replace the fence upon the historically accepted line, being the true boundary line between the properties owned by Plaintiff and the property owned by the Defendant.” (Emphasis supplied). Appellant therefore contends that any possession by Mr. Newborn was not adverse, on the theory that appellee intended to claim only to the true boundary, wherever that was, and was not claiming unconditionally the ownership of the land up to the old fence. See Wilson v. Hunter, 59 Ark. 626, 28 S.W. 419; and Goodwin v. Garibaldi, 83 Ark. 74, 102 S.W. 706. However, Mr. Newborn’s other testimony was to the effect that his claim was unconditional and he sought to prove that his possession to the old fence was under absolute claim of title. Thus although he stated on cross-examination, in response to a leading question, that he intended to claim only what his deed called for, at the same time he was very specific in his other testimony that at the time he bought the property from other members of his family he thought and assumed that the old fence represented the line. Appellee claimed he had never at any time recogni2:ed a possibility that the line might be anywhere else. Be that as it may, we can dispose quickly of the appellee’s claim of adverse possession. Until Mrs. Avington built the new fence and enclosed the approximately five feet of land in question, the record shows that this property was vacant and unenclosed. Hence appellee’s assertion of title by adverse possession rests solely upon the fact that his neighbor’s predecessor in title placed the old fence some five or more feet short of the common boundary. It is firmly settled, however, that “a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required number of years.” McLendon v. Johnson, 243 Ark. 218, 419 S.W. 2d 309 (1967); Brown Paper Mill Co. v. Warnix, 222 Ark. 417, 259 S.W. 2d 495 (1953). Here there is no semblance of actual hostile possession on the part of the appellee or his predecessors in title. Certainly there was no notice to Mrs. Avington that anyone was claiming the old fence as a boundary line. Under the circumstances here, appellee’s possession could not ripen into title by lapse of time, unless notice was in some way brought home to the true owner that the occupancy had changed from a permissive use for the convenience of the parties into a hostile use. In other words, if the holding of the strip, east of the old fence, began as an easement for a lane, by common consent, and for the convenience of the owners of both tracts, such holding could not change into an adverse or hostile status until notice was in some way brought home to the record owner, and the holding had continued adversely thereafter for the statutory period. Appellee admits that he never gave Mrs. Avington notice that he was claiming ownership to the “old lane fence” or that he considered it the west boundary line of his land. Harp v. Christian, 215 Ark. 833, 223 S.W. 2d 778 (1949).
After a careful consideration of the evidence, we have concluded that the decree of the chancery court is clearly erroneous (clearly against the preponderance of the evidence), and must be reversed. Rule 52, Ark. Rules of Civil Procedure. The evidence here falls far short of that required to establish title by adverse possession. Appellee is only thirty years of age, and knew nothing about the old lane. He claims that the fence still standing in 1979, which appellant tore down, was the same one that once existed on the east side of the lane. He had no personal knowledge of the lane, or which fence survived. Some of his witnesses did identify the fence still standing as “the same one that appellee’s grandfather built” but, on cross-examination, this evidence was weakened considerably as the witnesses admitted that they had not been on the land in recent years, and really were not sure whether it was the east or west lane fence which was still standing. Oh the other hand, appellant’s testimony concerning the old lane, the two fences bordering it, and the history of the surviving fence is clear and definite. While she is a party, and that must be taken into consideration in weighing her testimony, the evidence furnished by the surveyor corroborates the fact that it was the west lane fence that survived. Otherwise, the survey line would be five feet further west of the old fence. That would be inconsistent with appellee’s claim of adverse possession, as he would be the record owner of the strip in question. A careful review of the record clearly shows that the old fence, which appellant took down in 1979, was in fact the one originally built on the west side of the lane; and the finding of the chancellor to the contrary is clearly against the preponderance of the evidence.
It has been suggested that even though the evidence is not sufficient for appellee to prevail on the theory of adverse possession, this court should affirm the decree of the chancery court, on de novo review, on either the agreed boundary theory, or on a finding here that the fence had become a boundary line by long acquiescence. We find no merit in either of these suggestions. There is no evidence in this record to show that the fence still standing was an agreed boundary line. Appellee made no serious effort tó show an agreement concerning this fence as a boundary line. The record shows it was only a setback fence for a lane. The burden of proof was on appellee to show that the parties, or their predecessors in title, had agreed on a boundary other than that described in the respective deeds; and appellee made no serious effort to discharge this burden.
Neither do we find any merit in appellee’s suggestion that the fence had become a boundary line by long acquiescence. In all of the cases on boundary lines by acquiescence, there has been involved a peaceful adverse occupation of the lands up to the fence by the person claiming the boundary to be one by acquiescence. Council v. Clark, 246 Ark. 1110, 441 S.W. 2d 472 (1969) and cases there cited. Here the fence in question was built generally five feet off of the true boundary to accommodate a lane. The appellee failed to prove when the other lane fence passed out of existence, or the date the property ceased to be used as a lane. There is no basis upon which this decree could be properly sustained on the theory that the fence had become a boundary line by long acquiescence. The case was not tried on that theory, and there is no substantial evidence in this record to support that theory.
Appellant filed a cross-action below asking the trial court to settle her east boundary line in accordance with the Whitfield survey, and seeking to have appellant’s title to and possession of the disputed strip quieted and confirmed. She is entitled to that relief in light of the decision reached by this court. Therefore as title to land is involved, this case must be remanded for the entry of a final decree consistent with this opinion.
As this case is being reversed on another ground, the questions concerning damages have become moot.
Reversed and remanded. | [
-11,
109,
-12,
108,
24,
96,
24,
-104,
91,
-101,
113,
83,
-17,
-54,
20,
109,
-62,
57,
64,
105,
-61,
-77,
83,
-27,
114,
-13,
-101,
93,
-85,
76,
-12,
87,
72,
96,
-54,
-43,
98,
96,
-51,
-36,
-50,
2,
-117,
109,
-48,
-48,
56,
43,
52,
15,
49,
-65,
-77,
-82,
53,
-61,
41,
46,
-49,
44,
24,
122,
-82,
7,
127,
2,
-127,
38,
-70,
1,
-6,
122,
-112,
52,
-128,
-24,
115,
54,
-106,
116,
67,
-71,
40,
100,
98,
0,
76,
-1,
96,
8,
14,
122,
-119,
-90,
-16,
16,
67,
1,
-97,
-107,
121,
-64,
70,
126,
-26,
-51,
92,
72,
-123,
-54,
-112,
-79,
29,
56,
-108,
7,
-25,
-121,
51,
113,
-49,
-30,
93,
71,
51,
27,
-114,
-45
] |
George Rose Smith, Justice.
This is a taxpayer’s action brought by the appellant Moorman against the Pulaski County Democratic Party, its County Committee, the County Election Commission, the County Judge, and the County Quorum Court. Essentially, the complaint attacks the validity of two statutes, one permitting quorum courts to appropriate public funds to pay any part of the expenses of primary elections and the other permitting political parties to require candidates to pay ballot fees to run for nomination in a primary election. Ark. Stat. Ann. §§ 3-102 (g) and 3-109 (Repl. 1976 and Supp. 1979). The complaint asks that the statutes be declared unconstitutional, that Pulaski County (not a party to the suit) be awarded a judgment against the Democratic Party for amounts appropriated and paid by the County toward the expense of Democratic primaries in 1976 and 1978, and that the County be enjoined from making such payments in the future. This appeal is from a judgment sustaining the defendants’ motion to dismiss the complaint for failure to state a cause of action and dismissing the action.
We first consider the plaintiffs attack on the statute authorizing a county to contribute to the cost of a primary election held by any political party. Here the plaintiff s major premise, fundamentally and inescapably, is that such an expenditure is for a private purpose rather than for a public one. On that theory the complaint alleges that the Democratic Party is using its ballot fees to pay routine party expenses rather to pay the cost of its primary elections. Hence, it is asserted, the Party should reimburse the County for any amounts paid by it for the cost of primary electibns.
The flaw in this argument lies in the invalidity of its basic premise. More than 30 years ago we held that primary elections are part of the state’s election machinery and may therefore be paid for with public money. Adams v. Whittaker, 210 Ark. 298, 195 S.W. 2d 634 (1946). More recnetly the Supreme Court has expressed the same view, in this language: “But it is far too late to make out a case that the party primary is such a lesser part of the democratic process that its cost must be shifted away from the taxpayers generally. The financial burden for general elections is carried by all taxpayers and appellants have not demonstrated a valid basis for distinguishing between these two legitimate costs of the democratic process.” Bullock v. Carter, 405 U.S. 134 (1972). It follows that a political party is not under any constitutional obligation to pay the cost of its own primary elections. Hence the use of ballot fees to pay party expenses rather than election costs cannot be said to be an indirect means of applying public money to a private purpose.
Second, Moorman’s attack upon the statutory authorization for the imposition of ballot fees must also fail. In the Bullock case, just cited, the court held that the imposition of excessive ballot fees, ranging as high as $8,900 for a county office, was a denial of the equal protection of the law, because only a wealthy person could pay the fee and qualify as a candidate in the primary. Here Moorman alleges, as a conclusion of law, that the ballot fees collected in 1976 and 1978 “were unreasonably high.” No figures are given. In fact, the complaint alleges that Moorman does not know the total amount of the ballot fees collected. There is no assertion of any standard to support the allegation that the fees were unreasonably high. Moreover, Moorman does not state that he himself was a candidate or prospective candidate in a primary; he merely challenges the fees as a citizen and taxpayer. Our Civil Procedure Rule 8 requires that a pleading state “facts showing that the pleader is entitled to relief.” An allegation that a fee was unreasonably high is a conclusion, not a statement of fact. Hence Moorman has not asserted a factual basis for the allegation that the imposition of ballot fees by the Democratic Party in 1976 and 1978 was contrary to any principle of constitutional law.
We do not consider an issue argued in an amicus curiae brief, because such a person must take the case as he finds it and cannot inject new issues. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), cert. den. 434 U.S. 894 (1977).
Affirmed. | [
116,
-18,
-80,
124,
9,
98,
82,
14,
83,
-95,
103,
87,
-19,
98,
20,
63,
-69,
-65,
117,
105,
-59,
-77,
103,
98,
-80,
51,
-7,
-43,
-65,
73,
-84,
-12,
76,
57,
-54,
-43,
70,
6,
-51,
-40,
70,
10,
11,
77,
104,
-61,
52,
107,
114,
75,
53,
-26,
-5,
44,
16,
75,
72,
44,
-35,
35,
-64,
-69,
-98,
-123,
127,
7,
49,
87,
26,
-57,
-24,
40,
-104,
57,
72,
-24,
50,
-90,
2,
-92,
77,
-103,
-120,
-32,
96,
34,
-95,
-1,
-120,
-87,
30,
-73,
29,
-26,
-110,
121,
98,
15,
-74,
-99,
126,
16,
79,
126,
-28,
5,
-97,
108,
11,
-50,
-42,
-93,
-90,
96,
-114,
3,
-25,
2,
20,
117,
-52,
-14,
92,
71,
48,
-53,
77,
-124
] |
Tom Glaze, Judge.
The appellant, Olen Weaver, was convicted of first degree sexual abuse and the jury imposed a penalty of four years in the Arkansas Department of Corrections and a $2,500 fine. Weaver raises three points for reversal.
First, it is argued by Weaver that the trial court erred in overruling his motion for a mistrial when, during voir dire examination of a juror, the prosecutor stated:
This case involves, basically it boils down to the testimony of a little girl who was eight years old at the time of the offense, and of course, this adult who is sitting here is the Defendant. The fact that the girl, this little girl —
After the trial court overruled the motion for mistrial, the court gave a cautionary instruction to the jury to the effect that the prosecuting attorney would rephrase the last question, and that they should disregard the content of the last question. Weaver contends the prosecuting attorney’s comment violated his right not to testify under the Fifth Amendment to the United States Constitution, and because of the comment, he was compelled to testify. We disagree with this contention.
The law is settled that comment on the failure of a defendant to testify in a criminal case is a violation of the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution which is applicable to the States by the Fourteenth Amendment. Griffin v. California, 380 U.S. 609,85 S. Ct. 1229, 14 L. Ed. 2d 106 (1969). It is also clear that seeming violations may be harmless error where the State can show that it did not contribute to the verdict or that there was no reasonable possibility that the comment might have contributed to the verdict. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d (1967). In the Chapman case, the Court held that to determine whether a comment contributed to the verdict, the reviewing court must examine: (1) the strength of the evidence, and (2) the nature and extent of the comment.
In applying these criteria to the case at bar, we conclude that the evidence before the jury was substantial even if we were to limit our review to the testimony of the victim, Donna. Our Supreme Court has held that no corroboration of the victim’s testimony is necessary in a case involving an alleged sex offense. Kitchen v. State, 271 Ark. 1, 607 S.W. 2d 345 (1980).
Donna related to the jury how Weaver took her pants and shorts off, that he put his hand on her vagina and that he rubbed her from side to side. In addition to Donna’s testimony, we also examine the testimony given by her mother, who substantiated Donna’s version of what Weaver had done soon after the encounter occurred. Moreover, another witness called by the State testified that Weaver was in Donna’s house on the day of the crime.
The second criteria required by Chapman is the most important when we review the comment made on voir dire. After examining the statement made by the prosecuting attorney, it is difficult to understand how it prejudiced Weaver or, indeed, caused Weaver to feel he was in any way compelled to testify. To consider the prosecutor’s remarks in their proper context, we must review the questions, answers and comments before and after the challenged comment:
[BY THE DEPUTY PROSECUTING ATTORNEY:]
Q. I see from your jury questionaire that you have four children.
A. Right.
Q. How old are they?
A. I have a 19-year old, 16-year old, 10-year old — I’m sorry, I forgot the oldest. I have one that is 20.
Q. This case involves, basically it boils down to the testimony of a little girl who was eight years old at the time of the offense, and of course, this adult who is sitting here is the Defendant. The fact that the girl, this little girl —
# * #
THE COURT: The Deputy Prosecuting Attorney will rephrase the last question and you will disregard the content of the question that he just asked.
A. Yes, sir.
Q. The State intends to call as a witness an eight year old girl who was the victim of this offense. The fact that she is eight years old in and of itself, would that cause you to disbelive anything that she would have to say; just the sole basis of her age?
A. I don’t think so.
A. Of course, you would have to hear all the evidence and hear all — I understand you would have to hear everything she had to say and everything all the other witnesses that might testify would have to say, but just because of her age you would not hold that against her and feel she was not worthy of belief?
A. (Nods head in negative.)
[Emphasis supplied.]
From the colloquy above, one clearly discerns the sole purpose of the prosecuting attorney’s remarks was to elicit the juror’s expressed intentions on whether the juror would believe an eight year old girl’s testimony. There was no reference by the prosecutor to Weaver’s testimony or possible testimony. Rather, the prosecutor merely identified Weaver to the juror as the adult Defendant. The prosecutor then im mediately proceeded to inquire whether the fact the little girl is eight years old would cause the juror not to believe what she would have to say. If we were to conclude (as Weaver suggests) that the prosecutor’s statement was a comment on Weaver’s right to remain silent, we would be constrained not only to take the prosecutor’s statement out of context, but we also would be forced to give the words used a meaning different than that commonly understood and intended. After a review of the prosecuting attorney’s voir dire of all jurors, we are convinced beyond a reasonable doubt that the prosecutor’s comment was harmless.
The next argument of Weaver’s is that the trial court committed error when it allowed the mother to testify to information that she gained from Donna shortly after the offense occurred. This issue is controlled by our Supreme Court’s decision in Burris v. State, 265 Ark. 604, 580 S.W. 2d 204 (1979). In Burris, the prosecutrix testified Burris forced her into her apartment and raped her. She managed to escape and ran to a neighbor’s house and called the police. A police officer answered the call and later testified at trial that the prosecutrix was “very hysterical” and it took a few minutes to calm her down. The officer testified further that she then said that she had been raped by Burris. The prosecutrix also called her brother within fifteen or twenty minutes after the occurrence. The brother also testified at the trial that she sounded “really hysterical,” and he stated that she finally said that she had been raped by Burris. The Court in the Burris case held that the prosecutrix’s experience had been a “startling event,” that she was still under the stress of excitement when she made the statements to the officer and her brother and these statements were admissible as an excited utterance pursuant to Rule 803(2) of the Uniform Rules of Evidence.
The evidence in the record before us is comparable to, if not stronger than, that presented in Burris. Here, we have an eight year old girl who related that Weaver had hit her, undressed her, rubbed her vagina and took out his “private place.” He also told her to lie to her mother when she returned home. After Weaver let her out of his car, Donna went home, told her mother the lie that Weaver told her to tell, and when she did, Donna broke down crying and she then told the truth. As was true in Burris, we consider and view the above facts in light of Rule 803(2) of the Uniform Rules of Evidence, which provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
We have no problem in deciding that the mother’s testimony which was based on her conversation with Donna is admissible as an excited utterance under Rule 803(2) above. Without question, Donna had undergone a startling event and continued in an extremely emotional state of mind when she discussed the event with her mother.
The third and last issue argued by Weaver is that the trial court erred in instructing the jury that he could be guilty of rape. The evidence in the record was in conflict and reflects that Donna denied that Weaver penetrated her vagina with his finger. However, Donna’s mother testified at the trial that Donna told her that he had penetrated her. The court instructed the jury that Weaver could be guilty of rape, sexual abuse in the first degree, sexual solicitation of a child, or, of course, he could be found not guilty. The jury found him guilty of first degree sexual abuse. Weaver contends the evidence did not warrant an instruction on rape, and that the court in doing so prejudiced him by enhancing his punishment on the lesser included offense of sexual abuse in the first degree. In advancing this contention, Weaver cites no authority and virtually no argument except that “it is common knowledge that prosecutors often overcharge and file a higher type offense when they know the jury will find a lesser included offense.” We adopt the position taken by our Supreme Court in Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977), wherein it held:
Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken.
We feel the rule enunciated in Dixon is designed to dispose of the type assertion or contention as we have before us now. In view of our decision, it is unnecessary to consider the State’s other arguments that Weaver failed to object to the rape instruction in the trial court proceeding and that any such objection was rendered moot when the jury convicted him on the lesser charge of sexual abuse.
For the foregoing reasons, we affirm the judgment.
Affirmed.
Corbin and Cloninger, JJ., not participating. | [
48,
-24,
-35,
-68,
12,
97,
58,
-100,
80,
-125,
-78,
83,
37,
73,
20,
125,
-21,
123,
85,
97,
-42,
-78,
7,
-63,
-74,
-5,
-46,
-44,
-73,
-49,
-20,
-68,
78,
48,
74,
-47,
38,
-54,
-63,
86,
-114,
23,
-104,
-14,
66,
-108,
32,
63,
22,
11,
49,
-66,
-29,
42,
31,
-49,
105,
44,
75,
-67,
96,
17,
-98,
-121,
111,
16,
-77,
53,
-98,
7,
-8,
38,
72,
49,
1,
-24,
115,
-74,
-126,
-44,
107,
-103,
44,
98,
96,
1,
45,
99,
-84,
-127,
47,
111,
-67,
-89,
-40,
104,
75,
76,
-73,
-35,
34,
84,
46,
-22,
-17,
-36,
125,
108,
3,
-53,
-76,
-101,
-115,
124,
-44,
-78,
-29,
19,
16,
101,
-49,
-8,
92,
71,
59,
-37,
-82,
-9
] |
David Newbern, Judge.
The question here is whether the trial court should have granted a summary judgment because he found the appellant’s property which was destroyed by fire did not come within the description “usual or incidental to the occupancy of the [insured] premises as a dwelling.” We hold no summary judgment should have been granted, as this language contained in the homeowner’s insurance policy in question was ambiguous, and thus a material question of fact remained outstanding.
The appellant had left some of his personal property in a barn adjacent to the dwelling of Gerald Elmore who had his premises insured under a homeowner’s policy issued by the appellee Fireman’s Insurance Co. A fire occurred, and the appellant’s property was destroyed. The appellant’s property thus destroyed consisted of a wide variety of personalty, including items such as fishing equipment, a cement mixer, wrenches and motors. No facts were disputed except that the appellant wanted an opportunity to have a jury decide whether the appellant’s property was covered. The trial court denied that opportunity by deciding the property “was not property that was usual or incidental to the premises as a dwelling” and thus, on that basis alone, granted summary judgment.
Although his order does not say so, the judgment must have determined these words in the insurance contract were, as a matter of law, unambiguous. We disagree, as we consider the words highly ambiguous. What is or is not “usual” is a much more open question than, for example, the question where a “low boy” trailer comes within an insurance policy covering “motor trucks.” In a case where that was the issue, the New York Supreme Court Appellate Division held that summary judgment interpreting that term was improper, as it was a question of fact. Utica Carting, Storage & Contracting Co. v. World Fire and Marine Ins. Co., 277 App. Div. 483, 100 N.Y.S. 2d 941 (1950), reh. and app. den., 278 App. Div. 629, 102 N.Y.S. 2d 637 (1951).
When the intent of the parties as to the meaning of a contract is in issue, summary judgment is particularly inappropriate. Porter v. Deeter Real Estate, 255 Ark. 1057, 505 S.W. 2d 18 (1964); Peoples Outfitting Co. v. General Electric Credit Corp., 549 F. 2d 42 (CA7, 1977).
Reversed and remanded. | [
-14,
124,
-44,
-100,
-119,
32,
42,
-24,
65,
-91,
39,
83,
127,
-62,
20,
47,
-74,
121,
101,
66,
-43,
-93,
23,
2,
-42,
-77,
-45,
-60,
-80,
75,
100,
79,
76,
32,
-118,
-43,
-26,
-118,
-59,
84,
70,
-115,
-70,
97,
-35,
64,
52,
95,
120,
67,
17,
-99,
-93,
46,
-111,
-49,
105,
40,
75,
49,
-47,
-71,
-85,
15,
123,
1,
-77,
36,
-104,
35,
-40,
8,
-108,
49,
0,
-24,
115,
54,
-106,
116,
7,
-117,
-128,
102,
99,
16,
77,
108,
-20,
-104,
39,
-42,
15,
-25,
-74,
24,
-117,
41,
-65,
-99,
120,
32,
38,
126,
-17,
16,
93,
100,
23,
-114,
20,
-13,
-117,
108,
24,
-85,
-34,
-109,
49,
80,
-49,
-88,
92,
68,
85,
27,
-98,
-50
] |
George Rose Smith, Justice.
This appeal from a default judgment was certified to this court by the Court of Appeals. Rule 29 (4) (b).
When both parties were living in Florida the plaintiff Bailey, a race-horse trainer, agreed to train two horses owned by the defendant Turner, an attorney. In July, 1978, Bailey moved to Arkansas and brought the horses here. Two months later he brought this action on the contract, alleging that Turner owed $5,843.75 in training fees and necessary expenses. Constructive service was obtained by warning order.
Turner filed a motion to dismiss and then employed an Arkansas attorney, who filed an answer and counterclaim for Turner. That attorney, however, later asked the trial court for permission to withdraw, asserting that Turner had requested an immediate termination of the attorney’s services. On December 3, 1979, the court entered an order permitting the attorney’s withdrawal for just cause, striking all the defendant’s pleadings, allowing the defendant to file additional pleadings within 30 days to avoid being in default, and directing that the order be served upon the defendant by registered mail. It does not appear that the order was in fact served upon the defendant Turner.
On February 21, 1980, the court entered an order reciting that the issues had been joined and that a pretrial hearing was set for April 21, 1980. Turner appeared pro se at that hearing, but the court entered a default judgment for the amount sued for, finding that Turner had filed no pleadings within 30 days after receipt of notice to do so. This appeal followed.
The appellee's attorney, pursuant to Rule 10, has filed a letter stating that due to the nature of the case the appellee will not file a brief. We must therefore decide the case upon the record as abstracted by the appellant, it being the appellee’s responsibility to bring to our attention any matters justifying the judgment of the trial court. Murphy v. Wilson, 228 Ark. 727, 310 S.W. 2d 1 (1958).
The judgment appears to be erroneous, because Turner was not actually in default. He had appeared in the case by filing a motion to dismiss, an answer, and a counterclaim. Of course, the court may permit an attorney to withdraw from the case, but that alone does not justify the striking of all pleadings filed by him on behalf pf his client. Sterling v. Jones, 255 La. 842, 233 So. 2d 537 (1970); Bailey v. Coventry, 130 Misc. Rep. 269, 224 N.Y.S. 17 (1927). It does not appear that the order striking Turner’s pleadings and requiring him to plead anew within 30 days served upon him, as the order itself required. In the absence of any showing that Turner had notice of that order, the judgment finding Turner to be in default must be set aside.
Reversed and remanded for further proceedings. | [
-79,
-12,
-36,
60,
8,
-32,
56,
-102,
65,
-53,
119,
83,
-81,
7,
20,
123,
-61,
45,
117,
99,
84,
-77,
86,
100,
-14,
-13,
-63,
-43,
-67,
79,
-28,
-105,
76,
56,
-22,
85,
70,
-118,
-55,
88,
-122,
1,
-103,
108,
123,
65,
48,
105,
18,
15,
33,
-34,
-29,
46,
25,
67,
108,
44,
-37,
44,
-64,
-31,
-110,
13,
127,
4,
51,
21,
-65,
3,
88,
-82,
-128,
49,
1,
-23,
114,
-74,
-110,
84,
107,
59,
12,
114,
98,
33,
73,
-17,
28,
-100,
15,
124,
-97,
-58,
-46,
24,
11,
69,
-74,
-99,
105,
16,
-89,
-2,
-22,
-99,
28,
40,
11,
-50,
-106,
-77,
-114,
125,
-72,
15,
-25,
-105,
22,
116,
-114,
-86,
92,
86,
113,
-101,
-122,
-4
] |
Steele Hays, Justice.
On March 24, 1975, the appellant, Chester A. Treadwell, entered a plea of guilty to the charge of capital felony murder in the death of Lewis G. Boyd. In accordance with that plea, the court sentenced the appellant to life imprisonment without parole. On September 14, 1978, appellant filed a petition pro se for post-conviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure (Repl. 1977), seeking to withdraw his original plea of guilty and enter a plea of not guilty. The court below held a hearing on appellant’s Rule 37 petition and, after taking testimony, denied the petition.
The appellant now brings this appeal urging as his sole ground for reversal that there was insufficient evidence to establish a factual basis for the guilty plea under Rules of Crim. Proc., Rule 24.6 (Repl. 1977). Upon a review of the record in this case, we conclude that there was sufficient evidence of a factual basis for appellant’s original plea of guilty. The court below therefore properly denied the relief requested under Rule 37 and we affirm.
Rules of Crim. Proc., Rule 24.6, provides:
The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.
In the original proceeding of 1975, the prosecution made an extensive offer of proof in which the state named each witness the state would call and recited in detail the evidence that would be elicited to prove each element of the capital felony murder, should the case proceed to trial. After hearing the state’s offer of proof, the trial court inquired of the defendant as to his awareness of his rights. And after being assured by the defendant that he knew and appreciated the alternatives open to him, the court asked if the defendant still desired to plead guilty. The defendant answered that he did. The court then went on to ask if he wanted to plead guilty because he was in fact guilty of the charge. Again the defendant answered affirmatively.
Although we are disposed to find that this was sufficient to meet the requirements of Rule 24.6, we need not rely entirely upon that proceeding. As we have held in Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974), and again in Deason v. State, 263 Ark. 56, 562 S.W. 2d 79 (1978), any defect in the record under Rule 24.6 may be cured in a post-conviction Rule 37 proceeding. At the hearing on the defendant’s Rule 37 petition, the trial court inquired of the defendant’s knowledge of the facts and circumstances of the victim’s death. At the proceeding, the defendant testified that he had full knowledge of everything about the case.-The defendant also stated that he knew, at the time of his original guilty plea, all of the facts surrounding the homicide and that he knew of all the circumstances of Lewis G. Boyd’s death.
Taking both of these proceedings together, we are drawn to the conclusion that the court had before it sufficient evidence to establish a factual basis for the plea in accordance with Rule 24.6 and that the plea was knowingly and voluntarily entered. The trial court properly denied the appellant’s Rule 37 request to withdraw his original plea of guilty. We therefore affirm. | [
48,
-22,
100,
-83,
11,
-63,
26,
56,
-109,
-69,
102,
115,
-27,
-35,
0,
121,
35,
41,
85,
105,
84,
-73,
19,
65,
-94,
-73,
41,
-41,
53,
-17,
-66,
-108,
78,
112,
-62,
-43,
98,
-56,
-123,
88,
-82,
9,
-71,
96,
80,
66,
56,
46,
116,
15,
49,
-98,
-13,
42,
20,
-54,
-115,
44,
75,
-88,
72,
17,
-110,
31,
-4,
32,
-125,
-124,
-66,
3,
80,
57,
-40,
49,
1,
-8,
115,
-106,
-122,
-12,
105,
9,
40,
106,
99,
1,
20,
109,
-72,
-128,
126,
63,
-99,
-90,
-72,
80,
75,
45,
-106,
-75,
59,
52,
46,
-8,
108,
77,
92,
108,
4,
-49,
-76,
-79,
-85,
36,
-122,
83,
-21,
97,
-32,
117,
-51,
-26,
92,
71,
120,
-45,
-107,
-16
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.