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David Newbern, Judge.
The procedural morass which gives rise to this appeal yields an issue which is easier to decide than the facts are to describe. Basically, the question presented is whether the appellant should have been allowed to present an equitable counterclaim which was closely related to the main action and which arose after the issues had been joined in the circuit court. We hold the counterclaim should have been allowed and the entire matter transferred to chancery, and thus the case is remanded for that purpose.
In May, 1977, the appellant Toney, a realtor, purchased land from Weinstein, another realtor. In June, 1977, Toney and Haskins entered an agreement whereby Haskins was to purchase the same land from Toney. In July, 1977, Haskins gave Toney a note and mortgage. A first mortgage had been executed in favor of a bank. The mortgage to Haskins was a second mortgage for the purchase price in excess of that which the bank had agreed to lend.
In December, 1978, Haskins filed a complaint in the circuit court alleging that he and Toney had a fiduciary relationship and that Toney had obtained secret profits in purchasing the land from Weinstein and selling it to Haskins.
In his answer, Toney denied existence of any fiduciary relationship with Haskins and asserted a counterclaim basically sounding in abuse of process. In that pleading, Toney mentioned the note from Haskins to him and asked for attorney’s fees incident to defending the note. Haskins had not at that time failed to make any of his note payments to Toney.
In that same answer, Toney asserted a third party claim against one Roger Mears. Because it is not material to the outcome here, we will refrain from discussing that third party action except to say that it resulted in the filing of pleadings and motions and was ultimately dismissed with prejudice on March 27, 1980.
On March 28, 1980, Toney sought to supplement his answer to the original complaint by Haskins. He asserted a new counterclaim for foreclosure on the note, alleging Haskins had defaulted by failing to make a payment due July 31, 1979- In addition, Toney asserted third party claims against the other named appellees as persons having possible interests in the property subject to the mortgage. Along with this pleading, Toney moved to transfer the entire case to the chancery court, saying foreclosure could only be considered there and the initial claim was in the nature of an accounting which is also equitable in nature.
On April 18, 1980, the court entered an order which: (1) struck the foreclosure counterclaim from Toney’s revised pleading on the bases that it was not “timely filed” and violated Toney’s election of remedies to sue at law on the note; (2) dismissed the third party aspects of the pleading because Toney had not sought leave of the court to file against third parties and because the court lacked jurisdiction to entertain a foreclosure claim; and (3) denied the motion to transfer to chancery.
1. Appealable order.
Before discussing the main problem presented, we must deal with Haskins’ assertion that the court’s order is not appealable. We need only look to rule 2.(a)4., A. R. App. P., to see that any order which strikes a portion of a pleading is appealable.
On this point Haskins cites Davis v. General Motors Corp., 257 Ark. 983, 521 S.W. 2d 214 (1975), saying that, to be appealable, an order must affect a substantial right. While that case was decided long before the A. R. App. P. came into effect, it is consistent with rule 2.(a)2. which says an order is appealable if it effectively determines or discontinues the action. Here, the court, by striking the foreclosure claim against Haskins and dismissing it with respect to the third parties, refusing to transfer to equity and declaring its lack of jurisdiction in the matter has certainly effectively determined that claim. On oral argument Haskins asserted Toney had not been precluded from seeking a foreclosure in chancery, but Haskins cannot satisfactorily explain why Haskins would be precluded from asserting the election of remedies doctrine there if, as Haskins contends, it applies here.
Haskins also cites McConnell and Son v. Sadie, 248 Ark. 1182, 455 S.W. 2d 880 (1970), saying an appeal will not be permitted where taken piecemeal resulting only in delay. We can find nothing here to show this appeal is taken for purposes of delay. As the foreclosure claim has been effectively dismissed, we are in no position to agree that this appeal is “piecemeal” in the sense that term is used in the McConnell case.
2. Timeliness of counterclaim.
Haskins asserts the court was correct in striking the foreclosure claim because of Toney’s delay in asserting it. This brings into focus the court’s remark that the counterclaim was dismissed because it was not timely filed.
Apparently at the trial level, and certainly in their briefs and argument before this court, the parties disputed whether the court was correct in striking the counterclaim for foreclosure pursuant to the provisions of A. R. Civ. P. 15(a) which deals with amendments to pleadings.
Rule 15(a) is in no way applicable. Haskins argued that the filing of his suit for “secret profits” constituted an “anticipatory breach” of the note, thus giving rise to the foreclosure counterclaim at that point. No authority is cited for that novel argument, and thus we need not consider it. Cherokee Carpet Mills, Inc. v. Worthen Bank and Trust Co., 262 Ark. 776, 561 S.W. 2d 310 (1978); Shinn v. First National Bank of Hope, Arkansas, 270 Ark. 774, 606 S.W. 2d 154 (Ark. App. 1980). We will, however, say that as a matter of common sense we fail to see how a request for cash damages for the face value of an unpaid note, but a note on which no payment was due, could be other than an affirmance of the obligation represented by the note itself. Even had Haskins sought rescission of the agreement and cancéllation of the instrument, we would not necessarily translate that into a default occurring at the time the complaint was filed.
The default occurred when Haskins did not make the payment due July 31, 1979, long after the initial pleadings which were filed in 1978. Thus, the right to foreclosure alleged matured after Toney had answered the complaint. Rule 13 (d) provides that such a claim may be filed as a supplemental pleading or may be asserted in a separate action. As Toney attempted to assert the foreclosure as a counterclaim, it must be considered a supplemental pleading to which rule 15(d) applies and not an amendment to which rule 15(a) would apply.
Rule 15(d) requires leave of court to file a supplemental pleading. Apparently no motion was made by Toney. In some circumstances we would have to say that, given the failure to make a motion to be permitted to file the supplemental pleading, the court should have stricken it, but not here. The parties and the court were apparently oblivious to the distinction between an amendment and a supplemental pleading, and no issue arose over the failure of Toney to seek the court’s permission to file the pleading. Given these circumstances, we have no hesitancy in saying that had the court denied a motion to allow the pleading we would have considered that an abuse of his discretion. This is especially true in view of Haskins’ claim, and the apparent agreement of the court, that Toney was barred from asserting foreclosure by the election of remedies doctrine. As mentioned above, an inevitable extension of argument is that Toney could not have sought foreclosure as a separate action in chancery.
The trial court’s statement that the counterclaim was not “timely” made no reference to any requirement in the rules stating it must be “timely,” and we know of none except to the extent timeliness may play a part in the application of rule 13(d). The essence of rule 13(d) is that such a supplemental pleading should be permitted “upon such terms as are just.” Here it would most certainly have been “unjust” to have refused the pleading.
3. Election of remedies.
Haskins’ contention here is, and the court’s decision below was, that because Toney had elected to affirm and sue for damages at law on the note, he elected his remedy to the exclusion of his foreclosure alternative.
Our main difficulty with this argument is in finding the juncture at which such election was made. Other than the delay in asserting the foreclosure, with which we have dealt above, the only fact cited by Haskins showing an election is Toney’s request in his original answer for attorney’s fees.
In Toney’s original answer he defended the note and sought attorney’s fees, but that was solely in response to Haskins’ request for damages represented by the face value of the note as part of the “secret profits” allegedly obtained by Toney.
At no point in that pleading did Toney allege default on the note and seek acceleration and judgment for the full amount or any note payment. The telling reason is that he could not have done so, given that the note was not in default. As stated above, we know of no reason to say Toney was required to regard Haskins’ suit as an anticipatory breach or default on the note. Had Toney prevailed, he might well have chosen to leave the note intact, continuing to demand the annual payments.
The election of remedies rule is not favored by the courts. Owens v. Bill and Tony’s Liquor Store, 258 Ark. 887, 529 S.W. 2d 354 (1974). For it to be applied there must be concurrent, inconsistent remedies. Belding v. Whittington, 154 Ark. 561, 243 S.W. 808 (1922). Haskins’ only serious allegation on this point is that Toney made the fatal election when he answered Haskins’ original complaint. At that time there was really no remedy available to Toney as there had been no default, let alone concurrent remedies.
4. Failure to seek permission to sue third parties.
As one of its reasons for dismissing Toney’s third party complaint against the appellees, other than Haskins, who might have had an interest in the property subject to the foreclosure sought, the court cited that Toney had not complied with the requirement of A. R. Civ. P. 14(a) that a motion and notice be filed to bring in a third party if the defendant seeks to do more than ten days after filing an answer.
We need only point out that rule 14 deals with impleader by a defendant to a claim or counterclaim of a person or persons who “may be liable . . . for all or part of the plaintiff s [or counter claimant’s] claim against him.” That was not the purpose of bringing in these third party defendants to Toney’s counterclaim. Rather, his complaints against them fit precisely the joinder provision of rule 19(a), and if the foreclosure claim had been permitted to stand, as it should have, the court would have been required to join these other appellees as defendants, given the “feasibility” of joining them.
5. Transfer to chancery.
Although the action for “secret profits” could be characterized as a simple restitutionary action and thus one cognizable at law, as opposed to an equitable “accounting,” we agree that, as no argument has been made that the action to foreclose is one the circuit court should hear, and as it is clear the claims of the plaintiff and defendant are related and largely dependent on each other, the entire matter should be transferred to chancery pursuant to rule 18(b).
Reversed and remanded.
Supplemental Opinion delivered December 10, 1980
David Newbern, Judge.
The facts stated in paragraph two of the opinion were ascertained from exhibits filed with the pleadings. The statements are not in any way intended to be binding upon the trial court in any future proceedings. | [
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Richard L. Mays, Justice.
Petitioner, Robert Goodall, seeks a writ of prohibition to prevent the Conway County Circuit Court from trying de novo an appeal from the Arkansas Alcoholic Beverage Control Board by Conway County citizens who oppose an order by the Board granting petitioner a retail liquor license. The appeal was under Ark. Stat. Ann. § 48-311(E) (Repl. 1977), a part of the Thorn Liquor Law enacted by the legislature subsequent to the Administrative Procedure Act, Ark. Stat. Ann. § 5-701 et seq (Repl. 1976), another avenue of appeal, which expressly authorizes a de novo hearing. Since such hearings allow the circuit court to disregard the record below and try the entire case anew, petitioner contends that an appeal de novo from the Arkansas Alcoholic Beverage Control Board constitutes an unconstitutional exercise of executive powers by the judiciary. This issue was first raised in the circuit court by a motion to dismiss the appeal. When the circuit judge denied the motion, holding that the petitioner would have to establish his entitlement all over again, this petition followed.
The propriety of the writ of prohibition as an avenue of relief for petitioner under the circumstances alleged is not challenged by the respondent. A writ of prohibition is, of course, appropriate to relieve one from the onerous burden of litigation when the trial court is attempting to act wholly without jurisdiction or is threatening or about to act in excess of its jurisdiction. Midwest Lime Co. v. Independence Chancery Court, 261 Ark. 695, 706, 551 S.W. 2d 537 (1977).
We have had several occasions to comment on the scope of review of the circuit court of cases appealed from the Alcoholic Beverage Control Board pursuant to the Thorn Liquor Law, but in none of those cases was the constitutionality of de novo appeal challenged. Hewitt v. Gage, 257 Ark. 579, 519 S.W. 2d 749 (1975); Byrd v. Jones, 263 Ark. 406, 565 S.W. 2d 531 (1978); Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6 (1979). Of course we recognize that our state constitution divides governmental powers among three distinct departments: legislative, executive and judicial; each of which is prohibited from exercising powers properly belonging to either of the other two. Arkansas Constitution Article IV. Such a division of powers represents a familiar principle of our constitutional law, the enforcement of which is essential to preserve the orderly processes of government and its basic integrity.
Petitioner essentially contends that the issuance of liquor licenses is an exclusively executive function which cannot be delegated to the judiciary. Since a trial de novo allows the circuit court to substitute its judgment for that of the Alcoholic Beverage Control Board, petitioner asserts that such a trial sanctions judicial encroachment into an area constitutionally reserved to the executive.
The issue of the constitutional propriety of de novo review by the judiciary of administrative action primarily turns upon the character and legal status of the interests which are affected by administrative action. If the interests affected by administrative actions are constitutionally or statutorily preserved or preserved by private agreement, so that their enforcement is a matter of right, de novo review by the judiciary of administrative decisions altering these interests is appropriate. See Thornbrough v. Williams, 225 Ark. 709, 284 S.W. 2d 681 (1955); Civil Service Commission of Van Buren, Arkansas v. Matlock, 206 Ark. 1145, 178 S.W. 2d 662 (1944). On the other hand, if the interests affected are less than fixed or determined and their existence primarily depends upon executive or legislative wisdom, de novo review is inappropriate, and judicial review is basically limited to a determination of whether these interests have been arbitrarily or capriciously affected. See Wenderoth v. City of Fort Smith, 251 Ark. 342, 472 S.W. 2d 74 (1971). The doctrine of separation of powers therefore restricts the judiciary to a very limited review of those matters which are left to the wisdom of the executive in the application or execution of laws but imposes upon the judiciary the obligation to redetermine the matter when the executive redefines private rights.
Under Ark. Star. Ann. § 48-301 (Repl. 1977), the issuance of a liquor license depends upon the administrative determination of “public convenience and advantage.” It is not a determination which is judicially cognizable since the effort to obtain a permit hinges on executive discretion. Since the right of executive direction is constitutionally preserved, its exercise cannot be frustrated through the medium of trials de novo. We, therefore, hold that Ark. Stat. Ann. § 48-311(E) (Repl. 1977) is unconstitutional to the extent that it authorizes the circuit court to redetermine or disregard the factual base upon which the Alcoholic Beverage Control Board relies to issue a liquor license.
The writ is granted.
Purtle, J., concurs.
Stroud, J., dissents. | [
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George Rose Smith, Justice.
Upon a charge of theft of property having a value of more than $100 and of being an habitual criminal, the appellant was tried without a jury, found guilty, and sentenced to 10 years’ imprisonment. For reversal it is argued that the State failed to prove all the elements of the alleged theft and that proof of prior convictions should not have been mentioned before there was a finding of guilt or innocence. We find no merit in either contention.
For the State, employees of the J. C. Penney Company, a chain department store, testified that the appellant and two other women were observed together in a Penney store in North Little Rock. They first stood in the lingerie department, with their backs to the employee who spotted their activities, and stuffed merchandise under their clothing. They went together successively to three other departments, taking merchandise in the same manner. They then left the store without paying for anything. When they were apprehended by the store’s security guard in their car in the store’s parking lot, two of the women were taking merchandise from their clothing and throwing it into the back seat, where the third woman was putting it into a garbage bag. Fifteen articles were recovered and introduced in evidence. They all had J. C. Penney price marks and had a total value of $236.48. The defense offered no testimony.
Even though the store employees could not say which of the three women took any particular article of merchandise, the proof is amply sufficient to support the trial judge’s specific finding that the three women acted in concert. Such a concert of action to commit an unlawful act may be shown by circumstantial evidence, without direct proof of a conspiracy by prior agreement. Caton and Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972); Griffin v. State, 248 Ark. 1223, 455 S.W. 2d 882 (1970). Hence under the Criminal Code the appellant could properly be found guilty not only by her own conduct but also by that of the other two women, her accomplices. Ark. Stat. Ann. §§ 41-301, -302, and -303 (Repl. 1977). The proof therefore supports the conclusion that the appellant was guilty of taking all the articles, that they had a total value of more than $100, and that they came from the Pénney store in question.
As to the second point, when both sides had rested the prosecutor stated that he had “some proof’ of prior convictions. In response to an objection (which the court overruled) that it was prejudicial to refer to prior convictions before the court had passed judgment, the prosecutor conceded that perhaps the defense was right and asked the court to make a ruling. The court then found the appellant guilty, after which the State introduced proof of prior convictions for forgery and uttering.
No error occurred. The case is unlike Hickey v. State, 263 Ark. 809, 569 S.W. 2d 64 (1978), where the case was also tried without a jury. There, however, the State proved in its case in chief that the defendant had been convicted of burglary and was on parole when he committed the offense on trial. An objection and a request for a mistrial were overruled. Since it could not be said that the trial judge had not considered that evidence in finding the defendant guilty, we ordered a new trial under the doctrine of Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). In the case at bar the prosecutor should not have mentioned prior convictions before the judge made his finding, but even so, no actual proof was supplied before the finding of guilty was announced. For us to sustain the appellant’s argument would mean in effect that no case including a charge of habitual criminality could be tried without a jury, for it must be assumed that the trial judge is aware of the habitual criminal charge when the trial begins.
Affirmed.
Purtle, J., not participating. | [
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Ernie E. Wright, Chief Judge.
Appellants bring this appeal from orders of the trial court granting directed verdicts in favor of the respective appellees.
Appellants’ abstract and brief contains no abstract of the pleadings, findings and conclusions of the trial court, the orders from which the appeal stems or notice of appeal. The statement of the case in appellants’ abstract and brief makes reference to allegations in the suit but we do not accept such matters in the statement of the case as a substitute for the requirements of Rule 9 (d) that appellant’s abstract consist of an impartial condensation of material parts of the pleadings, facts, documents and other matters in the record as are necessary to an understanding of all questions presented for consideration on appeal.
From a review of the evidence, which is abstracted, it is evident this complicated case cannot be properly reviewed without a careful consideration of the pleadings, findings and conclusions or reasoning of the trial court and the others from which the appeal stems. The reasons for requiring an adequate abstract of the pleadings and proceedings to enable the appellate court to understand the issues are clearly set out in Bank of Ozark v. Isaac, 263 Ark. 113, 563 S.W. 2d 707 (1978), and we will not repeat those reasons here. The abstract is flagrantly deficient in failing to abstract crucial parts of the record necessary for a proper review of the issues as to whether the trial court erred in directing verdicts for appellees. Reliable Finance Company v. Rhodes, 252 Ark. 1077, 483 S.W. 2d 187 (1972).
Although we affirm for failure of appellants to comply with Rule 9 (d), we have reviewed the evidence as abstracted and considered the arguments in the briefs, and from a study of these matters we conclude appellants have failed to demonstrate the trial court erred in directing verdicts for appellees on the ground the evidence is insufficient to support verdicts for appellants based on misrepresentation or concealment on the part of appellees. | [
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George Rose Smith, Justice.
In 1977 the appellee brought this class action against a number of producing oil companies to obtain a determination of whether the tax credit allowed against the severance tax by Act 258 of 1957 is for the benefit of the oil producer only or is also for the proportionate benefit of the royalty owner. Ark. Stat. Ann. § § 53-131 through -137 (Repl. 1971). After the filing of many interventions and other pleadings the case was submitted to the trial court by agreement for final determination upon motions for summary judgment. This appeal is from a decree finding that the owners of royalty and of overriding royalty are entitled to share proportionately in the benefit of the statute. The Court of Appeals certified the case to us for decision.
We do not consider Act 258 to be an amendment to the severance tax statutes, but those statutes must be considered as the setting for Act 258. The severance tax is levied as a privilege or license tax upon the severance of natural resources from the soil or water in Arkansas. With respect to oil the tax rate is 4% or 5% of the market value of the oil, depending upon the volume of production. Ark. Stat. Ann. § § 84-2101 and -2102 (e) (Repl. 1980). The monthly tax reports are to be filed, and the tax paid, by the producer actually severing the oil from the soil, but the producer is required to deduct a proportionate part of the tax in making payment to the royalty owner. § 84-2105. Thus the owner of a one-eighth royalty interest bears his one-eighth of the tax burden.
Act 258 of 1957 provides a 75% credit against the severance tax as a bonus, an incentive, a reward, for the discovery of each new oil pool in Arkansas. The credit continues for a period of 5 or 10 years, depending upon the comparative depth of the new pool. The question is whether that bonus is only for the benefit of the producer, often called the “working interest,” or is to be extended to the royalty interest.
We are compelled to disagree with the chancellor’s conclusion, because our study of Act 258 convinces us that the bonus was intended only for the benefit of the producer. In fact, the entire act contains no mention of the royalty owner or any similar interest. To the contrary, every pertinent section of the act is applicable only to a producer, not to a royalty owner.
First, the title of the act states that it is to promote and encourage exploration for oil. The first section declares the legislative policy to be that of “stimulating the flow of money into the search and exploration for new sources of oil.” It is a matter of common knowledge that in the oil industry it is the producer, not the royalty owner, who incurs the entire financial risk in the exploration of unproven territory. The completion of a dry hole is wholly at the producer’s expense.
Second, the “owner” is defined as the person who has the right to drill and produce oil. “Person,” in turn, includes a natural person, corporation, partnership, and about every other entity. Section 2; § 53-131. Of course, it is the producer or working interest that has, under standard forms of oil leases, the exclusive right to drill and to produce oil.
Third, section 3 provides that any person who discovers a new commercial oil pool shall be entitled to the bonus “upon compliance with the provisions” of the act. § 53-132. The producer alone can bring in a discovery well and comply with the provisions of the act.
Fourth, under section 4, to become entitled to the benefits of the act a person must apply to the Oil and Gas Commission for a permit to drill the discovery well. § 53-133. Presumably such applications must be made by the working interest, not by the royalty interest.
Fifth, section 6 provides that upon receipt by the Commission within one year of evidence that a new pool has been discovered “by such person” in the drilling of the discovery well, the Commission shall issue to such person a certificate entitling that person to the benefits of the act. § 53-135. Only a producer could possibly qualify as the person in question.
Sixth, by section 7 the person receiving the certificate shall be entitled to receive from the Revenue Commissioner a credit against the taxes “otherwise due by such person” on account of oil produced from the pool from wells as to which such person was the owner. § 53-136. “Owner” is defined by section 2 as the person having the right to drill and produce oil. That person is the producer.
Act 258 is complete in itself; it is not an amendment to the severance tax statutes. Act 258 has a single purpose, the stimulation of the flow of money into the search for new sources of oil in Arkansas. To that end a tax credit is provided for certain persons. The only person entitled to such a credit is a person who as the “owner” of an area applies to the Oil and Gas Commission for a drilling permit, completes the drilling, discovers a new pool, and is certified by the Commission as having discovered a pool. At that time the holder of the certificate becomes entitled to a credit against the taxes thereafter otherwise due by that person on account of oil from the new pool from wells on land as to which the person was the owner. We find no indication in the act of a legislative intent to benefit anyone except the holder of the certificate of discovery. In so holding we express no opinion about whether the credit should be computed only with respect to that part of the tax actually borne by the producer, that question not being before us.
Reversed and dismissed.
Holt, Purtle and Stroud, JJ., not participating. Special Justice W. K. Grubbs joins in the opinion. Special Justice James B. Blair dissents. | [
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Steele Hays, Judge.
This suit was originated by Carl Plant to confirm his ownership of 67 shares of stock in Arkansas Land & Timber Company, Inc. Title to the shares was in his son, Max Plant, who died on November 11, 1977. Carl Plant had possession of the stock certificate representing the shares. Carl Plant asserts that he transferred the shares to his son on August 26, 1977, delivered the stock certificate to him and his son immediately returned the certificate to his father, but failed to endorse the certificate through an oversight. Named as defendants were Verna Plant, widow of Max Plant and executrix of his estate, who claimed ownership of the stock by gift inter vivos, the corporation and its president and secretary, Mr. & Mrs. Ellis Throckmorton.
The trial court found that no gift inter vivos of the 67 shares was intended by Carl Plant on August 26, 1977, when the certificate was issued, as it was not intended that the transfer of the stock be made without the right of recall. Verna Plant appeals on a number of points, the only one we need treat is the assertion that the finding of the trial court that no gift inter vivos was intended by Carl Plant is against the preponderance of the evidence.
Rule 52 (ARCP) provides that the findings of fact of the trial court will be affirmed unless clearly erroneous (clearly against the preponderance of the evidence). We have come to the conclusion that the evidence of a valid, irrevocable gift by Carl Plant to Max Plant on February 13, 1976, is clear and convincing, sufficient to meet the requirements of the law, and the trial court erred in failing to so find.
The facts are'not greatly disputed: prior to February 13, 1976, Carl Plant decided to transfer his ownership of 335 shares of stock in Arkansas. Land & Timber Company, Inc., to his sons, Max and Carl D. His reasons were his advancing years, poor health and the tax advantages of divesting his estate of this asset. His own testimony and that of Carl D. Plant bear witness to these purposes and no other. Carl Plant instructed Mr. Ellis Throckmorton of his desire to transfer the shares and gave him no qualifying instructions. Carl Plant’s original certificate was surrendered and two new stock certificates were issued on February 13, 1976, 168 shares going to Carl D. Plant and 167 shares to Max Plant. The actual, manual delivery of these stock certificates was carried out in Clarendon on February 13, 1976, at the home of Max and Verna Plant. Appellee’s brief makes the unsupported statement that the stock certificate was “at all times in the possession of Carl Plant.” But the testimony of Carl D. Plant clearly shows that the certificate was delivered to his brother at the February meeting and that either he or Max placed the certificates in a bank lock box to which all three Plants had independent access. Just when the certificate of Max Plant was removed is not disclosed, but prior to August 26, 1977, Carl Plant elected to sue the corporation and it was decided that 100 shares from Max would be transferred back to Carl Plant. The three men then made a trip to the office of the company’s lawyer in Jacksonville, Arkansas, where the certificate was voided and two new ones issued in its place: certificate number nine for 67 shares to Max Plant and a certificate for 100 shares to Carl Plant. Presumably, the oversight regarding endorsement by Max Plant occurred at this meeting on August 26, 1977, though that is not made clear in the testimony.
On November 11, 1977, Max Plant died of a terminal illness and on the day of his burial or soon after, Verna Plant received a check payable to Max Plant for $301 as a dividend on the 67 shares. Not certain what to do with the check, she took it to Carl Plant, who said, according to her testimony, that he would see that it was returned to her, which statement he did not refute. On January 9, 1978, Mr. Carl Plant endorsed the name of Max Plant by Carl Plant and received payment of the check. Thus, the dispute over ownership of the 67 shares arose and Carl Plant filed suit in November of 1978 to confirm his claim of ownership. The case law of gifts in Arkansas is copious. Both sides cite Bowling v. Gibson, 266 Ark. 310, 584 S.W. 2d 14 (1979), as a recent and definitive expression of the law on the subject:
To constitute a valid gift inter vivos there must be an actual delivery of the subject matter of the gift to the donee with a clear intent to make an immediate, unconditional and final gift beyond recall, accompanied by an unconditional release by the donor of all future dominion and control over the property so delivered. All of the elements of the completed inter vivos gift must be proved by clear and convincing evidence.
To begin with, there can be no real question but that in determining whether a gift was made the pertinent and significant event occurred on February 13, 1976, rather than on August 26, 1977, as the trial court found. Just how this misconception developed is not clear, but it is clear that the complaint, the judgment and the bulk of appellee’s evidence treat the August 26, 1977, transfer as if that were the crucial transaction in determining whether a gift had been made. Obviously, it is the earlier date that governs and the testimony of both Carl Plant and Carl D. Plant show intent and delivery. Carl Plant’s present intent to make a gift is best summarized in his own testimony: Q: “If you had died first, did you intend for that stock to go to Max?” A: “Well, I suppose so, at that moment and at that time, yes.” (T. 14)
The law is settled that a gift operates in the present and once made becomes irrevocable. In Hopson v. Buford, 225 Ark. 482, 283 S.W. 2d 337 (1955), it was said:
We have held in the case of Williams v. Smith, 66 Ark. 299, 50 S.W. 513, that, “If the gift be intended in presentí, and be accompanied with such delivery as the nature of the property will admit, and the circumstances and situation of the parties render reasonably possible, it operates at once, and, as between the parties, becomes irrevocable.”
When the circumstances surrounding the transaction of February 13, 1976, are examined in their entirety, we are convinced that Carl Plant intended to do the very thing he did, i.e., to transfer ownership of his shares of stock to his two sons as equally as numerically possible. The law places considerable emphasis upon the formalities of a transfer of shares of stock by the execution of a stock certificate and when, as here, the records of the corporation as to ownership on the instruction of the owner are properly followed, the original certificate submitted and voided, new certificates are issued in the name of the donee and then manually delivered into the possession of the donee, there can be no real doubt but that a gift in accordance with law is intended.
It is said that a man is bound by his acts [Williams v. Smith, 66 Ark. 299, 50 S.W. 513 (1899)] and the acts as well as the testimony of Carl Plant speak clearly that he intended to do something for his sons during his lifetime and his asser tions that it was always understood that the stock was to remain his are lacking in weight and plausibility. The utterances have all the appearance of afterthought, influenced no doubt by the fact that his son, Max, predeceased him and his own health improved.
Carl Plant contends that the certificate to the 67 shares remained in the name of Max Plant through oversight, but that argument is not convincing. It is implausible that Carl Plant and Max Plant would have made a trip to Jacksonville to arrange for the issuance of new certificates — one to Max for 67 shares and one to Carl for 100 shares — if they actually intended all 167 shares to belong to Carl Plant. Carl Plant’s claim to the 67 shares relies on this theory as the explanation of his possession of the certificate, but the testimony of both Carl Plant and Carl D. Plant is devoid of any description of this alleged occurrence. What was done with the certificate itself after August 26, 1977, is not clear, but the fair inference is that it was kept in a lock box to which all three men had unrestricted access.
It is argued that Carl Plant was entitled to receive any proceeds of the stock, bringing the case within the rationale of Bowling v. Gibson, supra. We agree that this is one circumstance to be considered; however, it is not controlling, but simply to be considered along with other circumstances. Miller v. Reigler, 243 Ark. 251, 419 S.W. 2d 599 (1967), for example. The point is not persuasive in this case, as the only dividend check issued (except for the one interpleaded) was made out to Max Plant, mailed to his address, and plainly belonged to his estate. Thus, the circumstances here are not those of Bowling v. Gibson. The fact that Verna Plant asked Carl Plant what to do with the check and gave it to him attests to nothing so much as her uncertainty as to what to do with the check. Besides, the records of the company showed Max Plant to be the owner without restriction and Mr. Throckmorton testified that so far as the corporation records were concerned Max was the owner.
It is also argued that Max Plant never attempted to sell the stock thereby giving weight to the argument that his father had the right to recall the stock and, too, that the August 26, 1977, transfer of the 100 shares-bears out that understanding. We attach no particular significance to the fact that Max did not attempt to sell the stock. Certainly, he had every legal right to sell the stock had he elected to do so and the purchaser’s title would be unassailable. The second point is of more concern, in the light of repeated assertions that Carl Plant always had the power to recall the stock. But the testimony on this point lacks weight and substance. It is essentially the conclusory utterances of Carl Plant and Carl D. Plant and we believe the law requires more than general assertions, some years after the event itself, in order to set aside the formal acts of conveyance. Examined on the whole, we think the evidence proves that when Max Plant returned the 100 shares as requested by his father, he was simply responding to a filial duty rather than a legal duty, not uncommon in many families.
We are not unmindful of the testimony of Carl D. Plant that Max Plant acknowledged in the presence of Verna, Mr. Throckmorton and others at the February meeting that his father might need help in his old age, saying, “We don’t get anything from it till such time as Daddy dies.” But Verna Plant and Mr. Throckmorton heard no such statement. However, even if Cgrl D. Plant’s memory was perfect, even if he was free of any bias on behalf of his father, and Max spoke the exact words testified to, this is not the sort of evidence, we think, as should be permitted to override and nullify the steps necessary to a complete and lawful conveyance of stock, as was done. If that were so, then one could make a gift of stock in accordance with all the requirements of the law, complete the delivery to the donee, and years later invalidate it simply by an oral assertion that he intended to retain the power to recall. That is not the law and surely ought not to be.
We find that the case law dealing with gifts of stock reflects a solemn emphasis on the formal execution of documents which are the subject of a gift, especially when followed by delivery of the certificate itself. Such transfer of all the indicia of ownership, i.e., both the formal title and the manual possession of the certificate itself, should not be readily disregarded. In Johnson v. Johnson, 115 Ark. 416, 171 S.W. 475 (1914), in considering a gift of stock, the Supreme Court stated that since the stock was transferred on the records of the company and appeared in the name of the donee, the burden was on the appellant to prove that the stock was not the property of the donee.
Similarly, in Owens v. Sun Oil Company, 482 F. 2d 564 (C.C.A.-lOth Circuit), applying the substantive law of Arkansas, it was held that where the donor directed a transfer of ownership of corporate stock for the purposes of a gift to a donee who died before completion of delivery, the fact that the donee’s name was on the certificate was prima facia evidence of his ownership.
In Aycock v. Bottoms, 201 Ark. 104, 144 S.W. 2d 43 (1940), an attempt was made to subject various assets, including stock, to a trust for the benefit of heirs of a decedent, the shares being held in the name of the widow. The court rejected the argument that delivery of the stock was not proven, essential to a gift, stating that the assignment to a donee by a holder is tantamount to delivery of the stock, though manual delivery may be wanting.
In Allan-West Commission Company v. Grumbles, 192 Fed. 287, it was said that even the transfer of the certificate alone is generally sufficient to transfer ownership of stock to a donee. See Miller v. Reigler, supra.
When the circumstances here presented are examined and reflected on in their entirety, we are satisfied beyond a reasonable doubt that Carl Plant intended to make a gift during his lifetime to his sons for tax purposes and for the satisfactions intrinsic in such acts, and he did all the things necessary to make a legal transfer of stock, followed by delivery of the certificate. In so doing, he performed an irrevocable gift. The evidence that such transfer carried the right of recall is uncertain at best and, therefore, we conclude that the findings of the trial court are clearly erroneous. The case is reversed and remanded for entry of a decree consistent with this opinion.
Reversed and remanded.
Penix and Newbern, JJ., dissent. | [
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Robert L. Brown, Justice.
The sole issue in this case is whether the circuit court abused its discretion in entering a default judgment against the appellant, Maple Leaf Canvas, Inc. We hold that it did not, and we affirm the judgment.
The appellees, Michael Rogers and Serena Rogers, reside in Hot Springs in Garland County, and Maple Leaf does business in North Little Rock in Pulaski County. In April 1989, Maple Leaf sold a 175-foot canvas canopy to the appellees. That canopy developed problems and was replaced under warranty a year later by the manufacturer, United Textile. The second canopy then began to leak, and the appellees demanded a second replacement. When that was not forthcoming, they filed suit in Garland County on May 22, 1991. Service on Maple Leaf was attempted by certified mail, return receipt requested in North Little Rock, but the letter was not received, and service was not effected.
An attorney ad litem for Maple Leaf was appointed in Garland County. That attorney sent a certified letter, return receipt requested, restricted delivery, to Maple Leaf on June 6, 1991, advising it of the lawsuit and of the fact that a warning order was being published and enclosing a copy of the complaint and summons. The letter was addressed to Maple Leaf Canvas, Inc., c/o E. Gordon Oates, registered agent for service. The green return receipt was addressed to E. Gordon Oates, Maple Leaf Canvas, Inc. The box on the receipt entitled “Restricted Delivery” was checked. The attorney also caused a warning order to be issued and published in the Sentinel Record in Garland County on June 18, 1991, and June 25, 1991, warning Maple Leaf to appear in court in thirty days.
On June 18, 1991, Ron West, vice president of Maple Leaf, accepted the certified letter and signed the receipt card as the addressee. He then delivered it that same day, unopened, to Gordon Oates, the registered agent for service of process. The unopened letter with complaint and summons languished on Oates’s desk until late August 1991, when he opened it and immediately contacted counsel.
The appellees moved for default judgment, and Maple Leaf responded that excusable neglect existed for the delay since service had not been properly effected on Maple Leaf. It further urged that it had a meritorious defense to the lawsuit. No challenge to the circuit court’s personal jurisdiction was mounted by Maple Leaf. The circuit court refused to find excusable neglect and awarded judgment to the appellees in the amount of $6,800.
Our standard of review for the granting or denial of a motion for default judgment is whether the trial court abused its discretion. B & F Engineering v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992); Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984). We have noted in our cases that default judgments are not favored in the law and that a default judgment may be a harsh and drastic result affecting the substantial rights of the parties. CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 572 (1991); Burns v. Madden, 271 Ark. 472, 609 S.W.2d 55 (1980). We have also stated that failure to attend to business is not excusable neglect. CMS Jonesboro Rehabilitation, Inc. v. Lamb, supra.
To accomplish service by mail under Rule 4 of the Arkansas Rules of Civil Procedure, the return receipt must be signed by the addressee or the agent of the addressee. We have stated that requirements under Rule 4, being in derogation of common law, müst be strictly followed. Cole v. First National Bank, supra; citing Wilburn v. Keenan Cos. 298 Ark. 461, 768 S.W.2d 531 (1989).
Personal jurisdiction is not at issue in this appeal because Maple Leaf does not contest it. Maple Leaf raises only the defense of excusable neglect due to the fact that the corporation’s registered agent, Gordon Oates, did not sign for the letter. Thus, the question confronting us concerns the identity of the addressee — Maple Leaf or E. Gordon Oates — because the letter was sent in care of Oates. The circuit court stated at the hearing that the letter spoke for itself on this point. We conclude, as the circuit court undoubtedly did, that Maple Leaf was the addressee. The letter was addressed to Maple Leaf, and Maple Leaf was the party defendant. In these circumstances, it is incumbent upon the entity seeking to utilize the defense of excusable neglect in order to set aside the default judgment to show that the receipt card was signed by someone other than the addressee or someone not authorized under Ark. R. Civ. P. 4(d)(5). Ron West, a vice president of Maple Leaf, signed the return receipt on the addressee line for Maple Leaf. Nothing in the record refutes Ron West’s authority to accept Maple Leafs mail. He then promptly turned the mail over to Gordon Oates, registered agent for service.
The mail sat on Oates’s desk for two months. No reason for the lapse is offered. Rather, Maple Leaf contends that no prejudice resulted to the appellees and that it has a meritorious defense. Maple Leaf, however, must first satisfy the court that a threshold reason exists for denying default judgment. The reason it presents is not convincing. The failure to answer the complaint seems due more to carelessness or, as in the case of CMS Jonesboro Rehabilitation, Inc. v. Lamb, supra, a result of not attending to business.
The circuit court did not abuse its discretion, and this court will not disturb the decision of the trial court absent an abuse of discretion. Wilburn v. Keenan Companies, Inc., supra.
Affirmed. | [
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Tom Glaze, Justice.
In this annexation case, the Town Council of Bethel Heights, pursuant to Ark. Code Ann. § 14-40-301 to-303 (1987), passed Ordinance No. 42, which submitted to the town’s voters the question of annexing seven separate tracts of land. After the election on November 6,1991, the Benton County Election Commission tabulated votes and certified all tracts had been approved except tract four, which the voters rejected by twelve votes. The Commission later discovered that only one or two (or less than ten) voters in precinct Washington A were qualified to vote on the tract four annexation question, so it invalidated the votes from that precinct, leaving 52 votes for annexation and 33 against. The Commission then certified this final tally, but later mistakenly filed the original certification with the Secretary of State’s office showing tract four’s annexation had failed.
On May 16, 1991, and after the Benton County Election Commission tabulated and certified Bethel Heights’ annexation election, Jeffery Lee Reeves, who owns property in the disputed tract four described above, petitioned pursuant to Ark. Code Ann. § 14-40-401 (1987) to have his property annexed to the City of Springdale. The Benton County Circuit Court subsequently entered an order granting Reeves’ petition. However, Bethel Heights then intervened requesting the annexation order be set aside based on the grounds that Bethel Heights had already annexed tract four. The City of Springdale, claiming an interest in the property, was also allowed to intervene.
The Benton County Circuit Court later set aside its earlier order and denied Reeves’ petition, finding the disputed tract four had already been annexed to Bethel Heights, and the court further held it could find no authority which allowed one city to annex a tract of land which belongs to another city at the time of the proposed annexation. While the trial court recognized Reeves’ and Springdale’s arguments that irregularities occurred in Bethel Heights’ annexation of the disputed tract, it concluded such irregularity claims were barred by applicable limitation statutes. We agree and therefore affirm.
In this appeal, Reeves and the City of Springdale raise several points for reversal, first, questioning the passage and validity of Ordinance No. 42 which submitted the annexation of tract four and the other tracts to the voters of Bethel Heights; second, arguing various other procedural reasons why Bethel Heights’ annexation should be invalidated; and third, contending Bethel Heights’ entry into the Springdale annexation proceeding was too late because no protest or objection was filed before the Benton County Circuit Court had entered its first order allowing annexation of Reeves’ property. Most of the appellants’ arguments are procedurally barred so we will discuss the' limitation issue first.
Appellants complain Bethel Heights council’s passage of its annexing ordinance No. 42 was defective because the council or its members failed to meet or violated certain by-laws and statutory requirements when adopting that ordinance. It is unnecessary to undertake a full discussion of each of appellants’ arguments in this respect because they are procedurally barred under § 14-40-304 which is controlling and provides as follows:
(a) If it is alleged that the area proposed to be annexed does not conform to the requirements and standards prescribed in § 14-40-302, a legal action may be filed in the circuit court of the county where the lands lie, within thirty (30) days after the election, to nullify the election and to prohibit further proceedings pursuant to the election.
(b) In any such action filed in the circuit court of the county where the lands lie, the court shall have jurisdiction and the authority to determine whether the procedures outlined in this subchapter have been complied with and whether the municipality has used the proper standards outlined in § 14-40-302 in determining the lands to be annexed. (Emphasis added.)
It is undisputed that no one filed suit under the foregoing provision to challenge the procedures followed by Bethel Heights in calling its annexation election. Clearly, the Benton County Circuit Court had the jurisdiction and authority to consider and decide such issues under § 14-40-304(b) above if a complaining party had filed suit within thirty days of the November 6, 1991 election. Since neither appellants nor others did so, appellants’ attempt now to raise such an issue in this collateral proceeding must fail.
Appellants also offer the argument that § 14-40-303(b)(B)(i) required Bethel Heights to file a description and map of the annexed area and the correct election results with the county clerk and Secretary of State and the Town’s failure to have filed such matters with the Secretary of State tolled the thirty-day requirement to bring suit under § 14-40-304 above. Such argument, however, ignores the language in paragraph (B)(ii) of the same provision that a municipality’s annexation shall be effective thirty days following its filing the description and map of the annexed property with only the county clerk. Here, Bethel Heights undisputably filed a description and map with the county clerk, therefore making appellants’ tolling argument meritless. Concerning appellants’ argument that Bethel Heights had failed to file the correct election returns with the Secretary of State, we note that nothing in § 14-40-303 requires the filing of such returns with the Secretary of State. We would further mention that while such election returns are required to be certified by the election commission, that was done in this case. See Ark. Code Ann. § 7-5-801 (1987).
Appellants further argue that Bethel Heights failed to file a timely objection in this proceeding and the circuit court’s first annexation order entered in this cause should prevail. In reviewing the record, we find appellant Reeves did object to Bethel Heights’ intervention, alleging the Town was barred by laches. In his same pleading, Reeves also alleged that the City of Springdale must be made a party and that Reeves had not previously been made aware of Bethel Heights having annexed his property. Of course, Springdale was made a party below and remains one in this appeal. However, the laches issue was not tried below, nor did the trial court rule on the issues. Appellants had an obligation to develop and to obtain a ruling on this matter below. We will not consider such matters raised for the first time on appeal. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). Regarding Reeves’ failure of notice issue contained in his response below, we note this question, too, was not presented to, or at least not ruled on, by the trial court. In any event, appellants do not assert this issue as one of their points for reversal. Based upon our review of the record, we conclude the trial court properly proceeded in this cause when it set aside its earlier annexation order and denied Reeves’ petition for annexation.
Finally, we are met with appellants’ argument which is somewhat related to their charge Bethel Heights was too late in challenging the circuit court’s first annexation order. Here, however, they suggest that regardless of the validity of Bethel Heights’ prior annexation of tract four and Reeves’ property therein, the law does not prohibit Reeves from voluntarily annexing the same land into the City of Springdale. As pointed out earlier, the circuit court held it could find no authority for allowing one city to annex to itself a tract of land already belonging to another city. We, too, find no such authority and appellants offer none. Certainly, the statutory provisions relied on by appellants do not specifically authorize one city to annex another’s land. Their failure to cite any authority in support of this argument merits its dismissal. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).
We note that § 14-40-304 sets out the procedure to challenge the municipality’s failure to comply with the annexation requirements and § 7-5-801 establishes the procedure to contest the election returns, e.g., whether the county election commission properly deducted the Washington A precinct returns. Both of these provisions were met and the limitations provision under each has run. | [
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Darrell Hickman, Justice.
Roger Lynn Stricker and Harold Michael Newton were convicted of theft by receiving and sentenced to two years imprisonment.
They were tried jointly but were defended by separate attorneys. On appeal each raises different arguments of error but both attack the constitutionality of the Theft by Receiving Statute, Ark. Stat. Ann. § 41-2206. Strieker’s other argument is that a livestock auction ticket was improperly admitted as evidence; Newton’s other arguments are that the evidence was insufficient to support his conviction and that an instruction given to the jury amounted to a comment on the evidence in violation of Article 7, § 23, of the Arkansas Constitution. Since we find no merit to any arguments of error, we must affirm their convictions.
Stricker owned a farm near Gentry in Bentori County, Arkansas. Newton is his stepson. According to the record, Stricker was twenty-five years old and Newton was twenty-three at the time these events took place. The evidence showed that they took five head of cattle, which had been stolen the day before in Arkansas, to a sale barn in Oklahoma. The livestock consisted of four Hereford calves and a Charlois heifer weighing about 600 pounds. The calves were only ten days old or less. Neither party disputed that the cattle were stolen — their defense was they did not know it.
They transported the calves to the sale barn in the back of a pickup truck which had a camper on it — an unusual mode of hauling cattíe. As they unloaded the calves at the auction barn, an employee became suspicious because of the type of vehicle, the age of the calves, and the absence of a vehicle tag on the truck. When Stricker was asked if it were not unusual to be selling such young beef calves, he replied that he had traded for them. It is not unusual to see young calves from dairy cows being sold, but it is to see such young beef calves being sold. The calves were listed for sale in the name of R. L. Summers, Route 1, Westville, Oklahoma.
Officers from the sheriffs office came to the barn and sought out Stricker and Newton. There was evidence that the suspects tried to evade the officers.
The Stricker camper-pickup truck was searched and evidence was discovered that it had been used to transport livestock prior to this time. The windows in the camper were covered on the inside with burlap sacks and a half gallon bottle with a nipple on it was found under the front seat. Stricker testified he did not know how the bottle got there. The bottle contained a small amount of fresh milk formula. There was testimony that such a bottle is often used to entice small calves away from their mothers. Also, a set of bolt cutters and Arkansas vehicle tags were found in the truck.
Both appellants gave written statements to the sheriffs office and both testified. Both said that the cattle belonged to R. L. Summers. Stricker said that he had done business several times before with Summers, selling him hay and straw, and that that morning Summers had come to his farm for hay. First Stricker said that Summers had offered to trade for the calves and finally that Summers had asked him to haul the calves to the sale barn for $20.00.
Two witnesses who were familiar with the vicinity of Route 1, Westville, Oklahoma, said they had never heard of R. L. Summers. Stricker said that while he had traded several times with Summers he had never been to Summers’ farm. R. L. Summers were never produced as a witness.
Newton argues that he was a mere bystander, that he knew nothing about cattle, and that the evidence did not warrant his conviction. However, there was sufficient evidence for the jury to find Newton guilty. Newton claimed to know R. L. Summers. Newton’s testimony in several regards was inconsistent with his original written statement. His written statement was “we loaded the cattle . . but his testimony was that he did not go to the barn until they were already loaded. He was with Stricker at the sale barn, helped unload the cattle and according to a sheriffs deputy tried to evade the uniformed officer. Newton contradicted Strieker’s statement that they stopped for gas enroute to the sale barn by saying that they bought no gas. No doubt Newton’s credibility suffered when he conceded a prior conviction for burglary and grand larceny. It was for the jury to determine the weight to be given such evidence, and we find substantial evidence to support their finding.
Both appellants argue that the Arkansas statute concerning theft by receiving is unconstitutional. The statute reads:
41-2206. Theft by receiving. — (1) a person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen, or having good reason to believe it was stolen.
The appellants contend that the phrase “or having good reason to believe it was stolen” is unconstitutional for two reasons: it is vague and it does not describe criminal misconduct, only negligent conduct.
There is no doubt that a penal statute must be in definite language to be constitutional. The test regarding vagueness is whether people of common intelligence have to guess at its meaning. Connally v. General Const. Co., 269 U.S. 385 (1926); Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975). The language of the statute should convey definite warning of the prohibited conduct when measured by common understanding and practices. U.S. v. Petrillo, 332 U.S. 1 (1947); Martin v. State, 261 Ark. 80, 547 S.W. 2d 81 (1977).
The Michigan court described the problem in discussing the words “good repair”:
It would be difficult, if not impossible, to lay down a rule of conduct in more exact terms which would at the same time cover the varying conditions presented in each individual case. . . . [T]here are many crimes on our statute books which must be defined by the use of words of a general and flexible meaning, and the existence or nonexistence of the essential elements of these crimes becomes a question of fact to be determined in each case. ... It is necessary to apply the rule of reason or common understanding to many statutes in order to carry out their purpose. People v. Samoff, 302 Mich. 266, 4 N.W. 2d 544 (1942).
The appellants cite the case of Davis v. Smith, 266 Ark. 112, 583 S.W. 2d 37 (1979) in support of their argument. In Davis we held that the phrase “a proper home,” was too vague. Obviously, what would be proper to one person would not always be proper to another. We do not find the Davis case controlling.
We do not deem the language of the statute in issue to be vague. A person of common intelligence would know what it means to receive stolen property and to have good reason to believe that it was stolen. How could such misconduct be described more clearly? No suggestion is made by the appellants as to how a statute could read more specifically.
The second line of attack on the constitutionality of this statute is that the statute proscribes only negligent conduct and not criminal conduct. That is, that in a criminal statute there must be some criminal intent for the statute to be constitutional; if the statute only describes negligent misconduct then it is not constitutional.
The case oi People v. Johnson, 564 P. 2d 116 (Colo. 1977), is cited as authority for that proposition. The Colorado Supreme Court held that the phrase “reasonable cause to believe,” in a statute similar to Arkansas’s was unconstitutional because it lacked the requirement of criminal intent. In addition to the Colorado case it is argued that there are no guidelines as to what “good cause to believe” means. It could mean one thing to one person and something else to another. Without any guidelines, the statute could mean that one person would be guilty of a crime whereas another would not be. In regard to this argument we adopt the view expressed by the Oregon court in State v. Redeman, 9 Or. App. 329, 496 P. 2d 230 (1972). The Oregon statute contains exactly the same phrase as the Arkansas statute, “having good reason to believe.” The Oregon court pointed out that the question was whether from the circumstances the defendant — not some other person — believed that the goods had been stolen. It is an individual test regarding the intent of the accused and not a test of whether a reasonable person would consider the goods stolen. The Oregon court held that the statute required actual knowledge or belief and was therefore constitutional.
In Hoard v. State, 80 Ark. 87 (1906), we said “. . . when nothing is shown to the contrary, the law presumes the defendant to be a person of ordinary reason, and holds him accountable as such.”
The Arkansas statute was adopted using the Oregon statute as a guide. See Commentary, Ark. Stat. Ann. § 41-2206. There is no doubt that the Arkansas General Assembly did relax the state’s burden of proof by adopting Ark. Stat. Ann. § 41-2206. It did so with the knowledge that convicting a “fence” had been difficult under the old law. A “fence” is a person who buys and sells stolen goods. Webster’s New World Dictionary. The language of the statute clearly describes the conduct of one who is known as a “fence” because such a person does not want to know if the goods are stolen. The same would be true of an individual who closes his mind to the facts, yet receives goods anyway, having good cause to believe the goods are stolen. The language describes conduct of one who has more than a suspicion that the property is stolen; it describes more than just carelessly receiving stolen property; it describes conduct which crosses those boundaries and becomes a wrongful act by a guilty mind.
Strieker’s other argument is that the State was allowed to introduce the receipt made for the cattle at the auction barn, when the document had not been provided to the defense before trial. The prosecuting attorney argued that the omission was an innocent oversight and the judge agreed. Such a matter is discretionary with the-trial court. Rules of Crim. Proc., Rule 19-7. Furthermore, no argument is made as to any prejudice that resulted from the introduction of the ticket. The ticket merely reflected that the cattle were owned by R. L. Summers, Route 1, Westville, Oklahoma, and listed five head of cattle. This evidence had already been offered in other forms to the jury.
Newton’s final argument is that an instruction was given which amounted to a comment on the evidence, a practice prohibited by Article 7, § 23, of the Arkansas Constitution. The section reads: “Judges shall not charge juries with regards to matters of fact . . .”, and it has been enforced consistently. Flynn v. State, 43 Ark. 289 (1884); Burgess v. State, 206 Ark. 157, 174 S.W. 2d 239 (1943).
The instruction given in this case was taken from Arkansas Model Criminal Instructions, Number 2206, and reads:
Harold Michael Newton and Roger Lynn Stricker are charged with the offense of theft by receiving. To sustain this charge the State must prove beyond a reasonable doubt that Harold Michael Newton and Roger Lynn Stricker acquired possession or control of or disposed of stolen property of another person, knowing or having good reason to believe that it was stolen.
Evidence that Harold Michael Newton and Roger Lynn Stricker were in unexplained possession or control of recently stolen property, may be considered by you along with all the other evidence in the case in deciding whether they knew or believed that the property was stolen. However, this evidence does not impose any duty upon you to find that Harold Michael Newton or Roger Lynn Stricker knew or believed that the property was stolen. [Emphasis added.]
Newton points out that the emphasized language in the instruction amounts to a comment on the evidence. There is no doubt that it was a jury question as to whether the defendants were or were not in unexplained possession of recently stolen property. Burgess v. State, supra. However, the question is, did the instruction comment on the facts.
In Petty v. State, 245 Ark. 808, 434 S.W. 2d 602 (1968), we approved an instruction concerning possession of recently stolen property which read:
The possession of property recently stolen without reasonable explanation of the possession is evidence which goes to you for your consideration under all the circumstances of the case to be weighed as tending to show the guilt of one in whose hands such property is found. But such evidence alone does not impose upon you the duty of convicting even though it be not rebutted.
When the instruction in the Petty case is compared to the AMCI instruction, it is noticed that the difference is not great. The AMCI instruction does not say there was evidence the appellants were in unexplained possession; it simply says evidence that they were may be considered by the jury. The only change that might be made to make the AMCI instruction read as the Petty instruction read, would be to add, “any” before the word evidence in the first line of the second paragraph, and “such” evidence rather than “this” evidence in the second sentence of that paragraph. The question to us is not which would be the better draftsmanship but whether the instruction given violáted the constitution. Since the AMCI instruction is not argumentative in form and does not comment upon the weight of evidence, we find it a proper instruction.
Affirmed.
Mays, J., dissents.
Purteje, J., not participating. | [
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Frank Holt, Justice.
Appellants brought suit to have a note and mortgage declared usurious and void, in violation of Art. 19, § 13 of the Constitution of Arkansas (1874), which restricts the charge of interest to 10% annually. Appellee responded that the loan, bearing 12% interest, was valid, because it came within the preemptive provisions of the Depository Institutions Deregulation & Monetary Control Act of 1980, 94 Stat. 132. Both parties filed a motion for summary judgment, which the chancellor granted in favor of appellee, holding that the note and mortgage were valid under the provisions of that congressional act. In reversing we held that § 501 (a) (1) of the act was an invalid legislative exercise of congressional power pursuant to the commerce clause. Succinctly, the issue on rehearing is the validity of this congressional act which suspends the state’s usury laws and, also, reserves to a state the right to veto by overriding the act. Further, if valid, is appellee’s loan to appellant usurious? We hold the act valid and appellee’s loan to appellants is not usurious.
Appellants purchased a residential lot in Hot Springs Village, Garland County, from appelee on July 31, 1980. They paid $650 down on the $6,500 purchase price, executing a note for the $5,850 balance with interest of 12% per annum, payable in 120 monthly installments of $84.94, beginning September 16, 1980. To secure the payment of this note, appellants executed a first mortgage to appellee on this lot. The parties stipulated that all lots sold by appellee at Hot Springs Village and Bella Vista Village in Arkansas are restricted to residential use by a recorded Declaration of Covenants and Restrictions. Furthermore, appellee, in its motion for summary judgment, included an uncontroverted affidavit showing it qualifies as a creditor as defined by 15 U.S.C. § 1602 (f) and stating it regularly, extends credit in connection with its sales of residential real property, secured by a mortgage on the propery; the property is real estate improved or to be improved by a dwelling structure or structures; appellee from April 1979 to August 31, 1980, made residential real property loans aggregating $35,778,000, and based upon its history, will annually make residential real estate loans aggreagating more than one million dollars.
Under § 501 (a) (1), the 10% urusy limit in our state would not apply to any loan, mortgage, credit sale, or advance which is secured by a first lien on residential real property, among other things, that is made after March 31, 1980. That section further sets out the requirement that such loan or mortgage must meet the description in § 527 (b) of the National Housing Act (12 U.S.C. 1735f-5 (b) [1976]) of a “federally related mortgage loan”. That section defines such a loan as one which is secured by residential real property designed principally for the occupancy of one to four families (this occupancy requirement being deleted for purposes of this legislation, see § 501[a] [1] [C] [i]), and meets certain other criteria, as pertinent here being made by a “creditor”, as defined in § 1602 (f) of Title 15 (15 U.S.C. § 1602 (f) [1976]), and who makes or invests in residential real estate loans aggregating more than one million dollars per year. Section 1602 (f) defines “creditor” as one who regularly extends, or arranges for the extension of, credit “which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, whether in connection with loans, sales of property or services, or otherwise.” This applies “to any such creditor, irrespective of his or its status as a natural person or any type of organization.” As indicated, we are of the view appellee has sufficiently met the requirements of the act.
We now consider whether this congresional act preempts our usury Jaws as to those areas covered by the act. Congress has power to do this by virtue of the Supremacy Clause, Art. 6, Cl. 2, Constitution of the United States. Congress has broad powers to legislate under the Commerce Clause of our Federal Constitution, Art. 1, § 8, Cl. 3, this power to legislate falling into, inter alia, the category concerning the regulation of activities affecting commerce. Perez v. United States, 402 U.S. 146 (1971). The U.S. Supreme Court has often noted the broad scope that Congress has to regulate economic affairs which have an impact on several states. In American Power Co. v. S.E.C., 239 U.S. 90 (1946), the court stated:
... we reaffirm once more the constitutional authority resident in Congress by virtue of the commerce clause to undertake to solve national problems directly and realistically, giving due recognition to the scope of state power. That follows from the fact that the federal commerce power is as broad as the economic needs of the nation.
Certainly, it cannot be disputed that congressional regulation of ;the availability and flow of money between the various states comes within the scope of the Commerce Clause.
The power of Congress to thus regulate under the Commerce Clause extends even to wholly intrastate activities which, standing alone or combined with like conduct of others similarly situated, might be a restraint of commerce or which might interfere with or injure interstate commerce. Fry v. United States, 421 U.S. 542 (1975). See also NLRB v. Fainblatt, 306 U.S. 601 (1939) (strike as affecting the movement of manufactured goods in interstate commerce.) This power includes intrastate activities which so affect interstate commerce as to make regulation an appropriate means to the attainment of a legitimate end, the regulation of interstate commerce. Katzenbach v. McClung, 379 U.S. 294 (1964). In Katzenbach the court noted the volume of goods purchased out-of-state by the family restaurant was insignificant in comparison with the total foodstuffs moving in commerce, but its contribution combined with that of many others similarly situated was far from trivial. See also United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942), (regulation of price of intrastate milk, as it was sold in competition with interstate milk and thus affected the price of the latter); and Wickard v. Filburn, 317 U.S. 111 (1943), (regulation of wheat grown for home consumption as the need would otherwise be satisfied on the open market; thus, it competes with wheat in commerce). Recently, in Neikirk v. State, 260 Ark. 526, 542 S.W. 2d 282 (1976), we held that a 55 m.p.h. speed regulation, established by Congress, subject to rejection by the states, was not violative of the Commerce Clause, nor the guarantee of due process, or equal protection.
If the class of activities is within the power of Congress to regulate under the Commerce Clause, the courts cannot “excise, as trivial, individual instances of this class.” Maryland v. Wirtz, 392 U.S. 183 (1968); Perez v. United States, supra; see also Katzenbach v. McClung, supra, that it is enough if the class of activities affects commerce, a case-by-case .determination not being required. Thus, proof that this particular loan had a significant impact on interstate commerce is not necessary. The purpose of the Commerce Clause is to ensure a national economy free from unjustifiable local entanglements. National Bellas Hess, Inc. v. Department of Revenue of the State of Illinois, 386 U.S. 753 (1967). A court should not substitute its judgment for that of Congress that the particular class of intrastate activities affects interstate commerce unless the relation and its effect are clearly nonexistent. See Stafford v. Wallace, 258 U.S. 495 (1922). There is a strong presumption of validity of an act of Congress. United States v. National Dairy Products Corp., et al, 372 U.S. 29 (1963). We have recognized that the character of regulations of commerce is left to the discretion of Congress, and it is “the duty of the courts to resolve all doubts in favor of the legislative action.” St. Louis & San Francisco R.R. v. Heyser, 95 Ark. 412, 130 S.W. 541 (1910). This discretion is limited only by the fact that the means chosen to regulate must be reasonably adapted to the regulation of interstate commerce. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
We now note that the testimony during the congressional hearings was that state usury laws have a signifi cant impact on the econony by diverting credit out-of-state, stagnating the housing industry and resulting in the inability of the farmers and small businessmen to borrow, all of which distorts and adversely affects local and national economy. See 126 Cong. Rec. H. 2273-2275 (daily ed. March 27, 1980); 126 Cong. Rec. S. 3170 - 3176 (daily ed. March 27, 1980). The legislative history of an act, as reflected by congressional hearings, is most significant.
In Stephens Security Bank v. Eppivic Corp, 411 F. Supp. 61 (W.D. Ark. 1976) (affirmed 553 F. 2d 102 [8th Cir. 1977]), the court had before it the question of whether the “Brock Bill,” Title II of P.L. 93-501, October 29, 1974 (predecessor to the Monetary Control Act here), preempted the Arkansas 10% constitutional usury limitation as to loan of $25,000 or more made by national banks, FDIC-insured state banks and FSLIC-insured savings and loan associations for business and agricultural purposes. The court found the bill preemptive. The court’s observations there are applicable here:
The legislative history reflects findings that the financial community in the affected states has suffered because of the high price it must pay for money as opposed to the limitation on the interest it may earn . . .
Testimony indicated that the usury ceilings were impacting heavily on the construction, small business and agricultural areas of the economies of the states, with a likelihood of severe shortgage or unavailability of credit to these classes in the economy. The report states, ‘. . . the evidence before the committee indicates that . . .[u]nless remedial action is taken in the very near future, these states could suffer from unemployment and business failures.
These are not local problems. It was found that there were substantial effects on interstate commerce by reason of outflow from the states of capital, unemployment and consequent direct and indirect effects on the Treasury through benefits to the unemployed, and a reduction in interstate trade and agricultural production. . .
Here, the Committee report with respect to the Monetary Control Act states:
The Committee finds that where state usury laws require mortgage rates below market levels of interest, mortgage funds in those states will not be readily available and those funds will flow to other states where market yields are available. This artificial disruption of funds availability not only is harmful to potential homebuyers in states with such usury laws, it also frustrates national housing policies and programs.
S. Rep. No. 368, 96th Cong., 1st Session.
The “Brock Bill” also had a provision, as does this legislation, allowing the state legislature to reassert the state’s usury provision and, thus, override the federal legislation. The court in Stephens quoted the committee report that this provision reflected “a congressional policy of. permitting a state the primary opportunity to determine its usury statutes . . . .” This same language appears in the committee report with respect to the act under consideration here.
An override provision has been a part of other acts including the Taft-Hartliey Act, see 29 U.S.C. § 164 (b); the Federal Bankruptcy Code, 11 U.S.C. 522 (b); and the Housing and Rent Act of 1947 as amended, 50 U.S.C. App. § 1881 et seq. This provision in the Taft-Hartley Act was upheld in Retail Clerks International Association v. Schermerhorn, 375 U.S. 96 (1963), in which the court noted any resulting conflict between state and federal law would be “conflict sanctioned by Congress with directions to give the right of way to state laws barring the execution and enforcement of union-security agreements.” See also Neikirk v. State, supra. Thus, the override provision, here, merely reflects a desire or accommodation by Congress to allow the states to continue to assert their usury limits if they so wish and does not reflect a lack of authority to legislate in this area. The methods which Congress employs to carry out its power are within its discretion. See Carolene Products v. United States, 323 U.S. 18 (1944). It is unquestioned that Congress may allow states to legislate in a field of commerce in which it has only partially exercised its power to legislate. Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 (1942). Of course, Congress may exercise its authority to legislate in whole or in part or it may refrain from exercising it at all. However, when it does choose to exercise its authority in an area previously deferred to the states, its actions preempt conflicting state legislation. Cloverleaf Butter Co. v. Patterson, supra; Bus Employees v. Wisconsin Board, 340 U.S. 383 (1951); and Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973). Consequently, the veto power reserved to the states, as here, does not invalidate the congressional act. The act is effective until our legislature deems it necessary to reinstate our 10% usury ceiling. So far, it has not seen fit to do so. Parenthetically, we note that our legislature adopted a resolution urging a reenactment of the “Brock Bill”, a predecessor to the Monetary Control Act here. Senate Concurrent Resolution 44 (March 8, 1979).
The dissents assail the act as being a denial of due process and equal protection of the laws under our federal constitution because of its application only to those who make loans in excess of one million dollars. This particular issue was never presented to the trial court nor is it actually argued by appellant on appeal. Even constitutional issues, if raised for the first time on appeal, will not be considered. Wilson v. Wilson, 270 Ark. 485, 606 S.W. 2d 56 (1980); Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979); Williams v. Edmondson & Ward, 257 Ark. 837, 520 S.W. 2d 260 (1975); and Kroha v. Kroha, 265 Ark. 170, 578 S.W. 2d 10 (1979). See also Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977). Here, suffice it to say, the dissents inject a gratuitous argument on an issue that was not before the trial court and, therefore, we do not consider it.
We hold the Monetary Control Act a valid exercise of congressional authority pursuant to the Commerce Clause and that the loan in question is not usurious. Therefore, the chancellor correctly awarded summary judgment in favor of appellee.
Affirmed.
Smith, Hickman and Purtle, JJ., dissent. | [
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Donald L. Corbin, Justice.
On May 12, 1988, appellant, Raymond Bushong, was cleaning a bathroom on the premises of Stewart Electric, his employer, in Jonesboro, Arkansas. Appellant was trying to remove grease from the bathroom floor and had used almost an entire gallon of undiluted Clorox without success when a co-employee, Greg Rollins, suggested he try using Vapco Brite’ Alum, an air conditioner coil cleaner. Greg Rollins poured approximately one-half (1/2) a cup of the Vapco Brite’ Alum on the floor directly on top of the Clorox Bleach which was already there. Vapco Brite’ Alum is a product sold to refrigeration and air conditioning wholesalers to clean condenser coils and refrigeration and air conditioning units. It is intended for use by professional refrigeration and air conditioning service personnel. Neither appellant nor Greg Rollins are professional refrigeration or air conditioning service personnel, although their employer, Stewart Electric, employed such people. Neither appellant nor Greg Rollins read the labels of either the Clorox Bleach or the Vapco Brite’ Alum. Appellant had never read the labels of any of the products he used in cleaning. At the time of the accident, appellant was a warehouseman who also did some cleaning for Stewart Electric and Greg Rollins was an estimator for Stewart Electric. Neither appellant nor Greg Rollins had ever used Vapco Brite’ Alum before, but both were aware it was used in cleaning air conditioners. After the Vapco Brite’ Alum was poured onto the floor, appellant continued to clean the floor in the bathroom, which was approximately four (4) feet by four (4) feet. Soon after, the mixture started to foam and a white fog vapor was coming up from the floor which appellant inhaled. Appellant claims the inhalation of these vapors caused him personal injury.
Appellant filed a complaint on April 5, 1990, against The Clorox Company, the manufacturer of Clorox Bleach, The Garman Company, the manufacturer of Vapco Brite’ Alum, and Greg Rollins. As to the Clorox Company and The Garman Company, appellant alleged they:
negligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected [the irrespective products] and the same combined to create a gaseous toxic cloud with the result that part of the cloud of gas was inhaled by [appellant] causing him great damages and injuries ....
. . . expressly and impliedly warranted that [their respective products] were fit for the purpose for which they were intended. . . .
... are absolutely or strictly liable in that they manufactured and marketed [their respective products] and failed to issue proper and necessary warnings when [they] knew or should have known that the combination of the gases created a defective condition that was unreasonably dangerous in that it could cause a toxic gas and injure a person who would in the ordinary course of his affairs be near or around the gas.
Appellant alleged Greg Rollins
was negligent in that he failed to use that degree of care exercised by ordinary and prudent persons under the same or similar circumstances and further, he knew or ought to have known by the exercise of ordinary care that the mixing of the aforementioned two chemicals would cause a cloud of fumes which would be harmful to Plaintiff.
Continental Casualty Company, appellant’s employer’s insurance carrier at the time of the accident, moved to intervene pursuant to Ark. R. Civ. P. 24 and Ark. Code Ann. § 11-9-410 (1987) of the Arkansas Workers’ Compensation Act. The order allowing the intervention was filed on July 25, 1990.
On October 9, 1991, appellee Clorox Company moved for summary judgment. On October 22, 1991, appellant filed an amended complaint re-alleging the same causes of action, but expanding the absolute or strict liability claim to allege:
[t]he defendants, Garman and Clorox, are absolutely or strictly liable in that they manufactured and marketed the products herein and failed to issue proper and necessary warnings when the said Defendants knew or should have known the combination of the gases created a defective condition that was unreasonably dangerous in that it could cause a toxic gas and injure a person who would in the ordinary course of his affairs be near or around the gas. The Defendants are also strictly liable in tort inasmuch as both produced a defective product. The Clorox product was defective in the fact that it contained sodium hypochlorite the brite alum was defective in that it contained hydrofluoric acid. Either chemical in combination with other chemicals could release a poisonous gas and were dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics. Both products would fail to perform as safely as an ordinary consumer would expect them to perform when used in an an intended or reasonably foreseeable manner. Further the benefits of the products do not outweigh the risks of danger inherent in their design.
On November 12, 1991, appellee Garman Company also moved for summary judgment.
On November 19,1991, the trial court found “the warnings on the labels for Clorox and Brite’ Alum, the respective products of Clorox Company and Garman Company, are adequate under the facts of this case and that Raymond Bushong and Greg Rollins failed to read the labels” and for that reason granted partial summary judgment in favor of Clorox Company and Garman Company on all allegations of failure to warn and improper labeling. Summary judgment was also granted on the breach of warranty issues upon appellant’s admission that they did not have a case for breach of express or implied warranties. On December 3, 1991, Clorox Company, filed a supplemental motion for summary judgment on the product defect and negligent manufacture issues. On January 8, 1992, the trial court granted the supplemental motion for summary judgment and found “all claims of plaintiffs and intervenor and all cross-claims of Greg Rollins against The Garman Company and The Clorox Company should be dismissed with prejudice.” Appellant’s and intervenor’s, Continental Casualty Company’s, claim against Greg Rollins was dismissed without prejudice pursuant to plaintiffs oral motion in open court for a voluntary nonsuit against Greg Rollins. This appeal followed. Since this case presents questions in the law of torts, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(o).
On appeal, appellant cites four points of error in the trial court’s granting of summary judgment to appellees The Clorox Company and The Garman Company. They are (1) the warning on the labels for Clorox and Brite’ Alum are not adequate as a matter of law; (2) the failure of appellant and Greg Rollins to read the labels is not dispositive of the adequacy of the warnings; (3) there are material issues of fact to be determined in this cause; and (4) the trial court erred in refusing to require separate appellee, The Garman Company, to produce a copy of the M.S.D.S. (Material Safety Data Sheet) on its product, Brite’ Alum, before ruling on the motion for summary judgment.
I. ADEQUACY OF THE WARNINGS
For his first point of error, appellant alleges the trial court erred in finding the warnings on the labels for Clorox and Brite’ Alum were adequate as a matter of law under the facts of this case. We need not reach this issue since we uphold the trial court’s granting of summary judgment on the failure to warn and improper labeling issues based on appellant’s failure to read the labels. We do note, however, that adequacy of a warning is generally a question of fact for the jury. See First Nat’l Bk., Albuquerque v. Nor-Am Agric. Prod., Inc., 537 P.2d 682 (N.M. Ct. App. 1975) (and cases cited therein), cert. denied; Uptain v. Huntington Lab, Inc., 685 P.2d 218 (Colo. Ct. App. 1984), aff'd en banc 723 P.2d 1322 (Colo. 1986).
II. FAILURE TO READ WARNINGS
For his second point of error, appellant alleges the failure of appellant and Greg Rollins to read the labels is not dispositive of the adequacy of the warnings and it was error for the trial court to grant summary judgment on this basis. We have not previously addressed this issue.
The parties have cited cases from various jurisdic tions which hold both that failure to read the label precludes a claim of inadequate warning and that it does not. We think the better rule is that failure to read the label does not automatically preclude a claim for inadequate warning. We find the rule applied in Safeco Ins. Co. v. Baker, 515 So. 2d 655 (La. Ct. App. 1987) particularly persuasive and we adopt the reasoning therein. Safeco holds the plaintiff originally has the burden of proving the warnings or instructions provided were inadequate. Once a plaintiff proves the lack of an adequate warning or instruction, a presumption arises that the user would have read and heeded adequate warnings or instructions. This presumption may be rebutted by evidence “which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances.” Safeco Ins. Co., 515 So. 2d 655, 657 (La. Ct. App. 1987); See also Johnson v. Niagara, 666 F.2d 1223 (8th Cir. 1981). In this case, appellant himself admitted that he had never read a label on a cleaning product during the three years he worked at Stewart Electric. Given this, we cannot say the trial court erred in finding appellant’s failure to read the label precluded his claim as any warning or instruction would have been futile since appellant would not have read it.
III. NEGLIGENCE AND DEFECTIVE PRODUCT CLAIMS
Appellant’s third point of error alleges it was error for the trial court to grant summary judgment on Counts V and VI, the negligent manufacture and the defective product claims. Appellant contends there were material issues of fact to be decided as to these claims and it was, therefore, improper for the trial court to grant summary judgment on these claims. In addressing this issue, there are two sub-issues which must be addressed: (1) was summary judgment proper as to the negligence claims; (2) were there material issues of fact to be decided as to the defective product claims against Clorox or Garman.
The negligent manufacture claims alleged
Garman and Clorox, by and through their agents and employees negligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected [their respective products] and the same combined to create a gaseous toxic cloud with the result that part of the cloud of gas was inhaled by the Plaintiff, Raymond Bushong causing him great damages and injuries as set out hereinafter.
The trial court dismissed this claim on summary judgment stating “all claims of plaintiffs and intervenor and all cross-claims of Greg Rollins against The Garman Company and The Clorox Company should be dismissed with prejudice.”
As we said in West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991), “ We sustain a trial court’s ruling if it reached the right result, even though it announced the wrong reason.” Summary judgment was proper, but dismissal of the claim with prejudice was not. Summary judgment should have been granted because this allegation is insufficient under Arkansas law. Arkansas is a fact pleading state and appellant’s negligence claim does not state facts upon which relief can be granted. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). Appellant’s complaint does not allege any facts which tend to prove appellees Clorox and Garman “negligently and carelessly designed, mixed, manufactured, marketed, packaged and inspected their products.” As we explained in Searle, summary judgment based upon failure to state a claim upon which relief can be granted is different from summary judgment based upon a lack of disputed material facts, which is the failure to have a claim. West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608. When summary judgment is granted because of failure to state a claim, the dismissal should be without prejudice in order to afford the plaintiff-appellant a chance to plead further. Id. Therefore, the summary judgment for The Garman Company and The Clorox Company on the negligence issue is modified to be without prejudice.
The next sub-issue which must be addressed is whether there was any material issue of fact regarding whether Clorox or Brite’ Alum was defective. Appellant alleged Clorox was defective because it contained sodium hypochlorite which, “in combination with other chemicals could release a poisonous gas and [was] dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics” and “would fail to perform as safely as an ordinary consumer would expect [it] to perform when used in an intended or reasonably foreseeable manner [such that] the benefits of the product[] do not outweigh the risks of danger inherent in [its] design.” Appellant alleged Brite’ Alum was defective because it contained hydrofluoric acid, which “in combination with other chemicals could release a poisonous gas and [was] dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge, and to the community as to its characteristics” and “would fail to perform as safely as an ordinary consumer would expect [it] to perform when used in an intended or reasonably foreseeable manner [such that] the benefits of the product [] do not outweigh the risks of danger inherent in [its] design.”
In order to prevail in a products liability claim, appellant must prove
(1) The supplier is engaged in the business of manufacturing, assembling, selling, leasing, or otherwise distributing the product;
(2) The product was supplied by him in a defective condition which rendered it unreasonably dangerous; and
(3) The defective condition was a proximate cause of the harm to person or to property.
Ark. Code Ann. § 4-86-102(a) (1987). “ ‘Defective condition’ means a condition of a product that renders it unsafe for reasonable foreseeable use and consumption.” Ark. Code Ann. § 16-116-102(4) (1987).
“Unreasonably Dangerous” means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumer, or user who acquires or uses the product, assuming the ordinary knowledge of the community or of similar buyers, users, or consumers as to its characteristics, propensities, risks, dangers, and proper and improper uses, as well as any special knowledge, training, or experience possessed by the particular buyer, user, or consumer or which he or she was required to possess.
Ark. Code Ann. § 16-116-102(7) (1987).
Summary judgment is an extreme remedy which is only proper when it is clear there are no issues of fact to be litigated. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). “Once the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact.” Anderson v. First Nat’l Bank, 304 Ark. 164, 166, 801 S.W.2d 273, 274 (1990). An affidavit stating only conclusions is not sufficient. Miskimins v. The City Nat’l Bank, 248 Ark. 1195, 456 S.W.2d 673 (1970). “The response and supporting material must set forth specific facts showing that there is a genuine issue for trial.” Id. at 1205, 456 S.W.2d at 679.
In its motion for summary judgment and supplemental motion for summary judgment, The Clorox Company supplied the affidavits and depositions of several witnesses. None of these supporting materials contained any proof that Clorox was supplied in a defective condition which rendered it unreasonably dangerous. The Garman Company supplied interrogatories and depositions in support of its motion for summary judgment. None of the supporting material provided by Garman indicated Brite’ Alum was supplied in a defective condition which rendered it unreasonably dangerous. In order to prove the existence of a material issue of fact as to the defective condition of Clorox and Brite’ Alum, appellant offered the affidavits of Dr. Ronald Wise, a biochemist, and Mrs. Carolyn Wise, stating that:
On giving my deposition on the 8th day of March, 1991, an inquiry was made as to whether or not the product, Clorox or Brite’ Alum, was defective. My answer to that was no if “defective” meant whether or not the products were defectively formulated. In essence I was stating that the product as constituted did not deviate from the norm.
If defective were to mean that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner then my answer would have been that it was, in fact, defective.
These affidavits are conclusory in nature and do not set forth any specific facts tending to prove either Clorox or Brite’ Alum was supplied in a defective condition which rendered it unreasonably dangerous. Miskimins, 248 Ark. 1194, 456 S.W.2d 673. Therefore, appellant did not present proof of a material element of his claim. Summary judgment is proper when an appellant fails to present proof of a material element of his claim. Irvin v. Jones, 310 Ark. 114, 832 S.W.2d 827 (1992). Thus, we affirm the trial court’s granting of summary judgment as to the defective product claims.
IV. MATERIAL SAFETY DATA SHEET
For his fourth point of error, appellant alleges it was error for the trial court to grant summary judgment before requiring appellee, The Garman Company, to produce a copy of the M.S.D.S. (Material Safety Data Sheet) on its product, Brite’ Alum. Even if the M.S.D.S. had been supplied, summary judgment was properly granted as to appellant’s claim against Garman. In order to withstand a summary judgment motion as to the defective product claims, appellant was required to produce proof that the product was supplied in a defective condition which rendered it unreasonably dangerous. Appellant claims he needed the M.S.D.S. to prove that Brite’ Alum was supplied in a defective condition. However, since appellant failed to supply proof sufficient to prove Brite’ Alum was unreasonably dangerous, Garman’s summary judgment motion was properly granted. Proof that Brite’ Alum was supplied in a defective condition would not cure appellant’s failure to supply proof Brite’ Alum was unreasonably dangerous. Appellant did not supply any proof of the
ordinary knowledge of the community or of similar buyers, users, or consumers as to [the] characteristics, propensities, risks, dangers, and proper or improper uses, [or] any special knowledge, training or experience possessed by the particular buyer, user, or consumer or which he or she was required to possess.
As was noted previously, an affidavit stating only conclusions, but failing to set forth specific facts is insufficient to show there is a material issue of fact. Miskimins, 248 Ark. 1194, 456 S.W.2d 673. Since appellant failed to prove this element of his proof, he could not withstand a summary judgment motion even had the M.S.D.S. revealed chemical elements which would have allowed appellant’s expert to determine the product was supplied in a defective condition.
Affirmed in part; modified in part.
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Robert L. Brown, Justice.
The appellant, Muskogee Bridge Company, Inc., raises five points for reversal in this appeal from a jury verdict finding it eighty percent at fault for an automobile accident which resulted in the death of Jim Lawson, husband of appellee Patricia Lawson, and injury to Patricia Lawson’s son, Justin Lawson, and to appellees Samantha and Cheryl A. Stansell. The points raised are without merit, and we affirm.
On the morning ofMayll,1985,Jim Lawson of Springdale prepared to go to work at George’s egg plant north of town and discovered that his truck would not start. He woke his wife, Patricia Lawson, and asked her to drive him to work. She agreed, placed the couple’s two-year-old son, Justin, in a child safety seat in the right-rear passenger seat of her car, and they left for the plant. Jim Lawson was expected to report for work at 7:00 a.m.
Prior to this time, Muskogee Bridge, an Oklahoma corporation, contracted with the Arkansas State Highway Commission to embark on a bridge construction project involving two bridges on U.S. Highway 71 just north of Springdale. The work was to be done in accordance with Highway Commission plans and specifications and under supervision of Highway Department personnel. A state-approved subcontractor, McClinton-Anchor Company, was to do the paving and asphalt work, also under Highway Department supervision.
At approximately 6:45 a.m., while still in Springdale, Patricia Lawson was heading north toward Rogers on U.S. Highway 71-Business. She approached the bridge construction area where Muskogee Bridge had closed the outside lanes on the bridge and permitted traffic only in the two inside lanes. Pylon barriers narrowed the road to a single lane leading north to the bridge. No employee of Muscogee Bridge was present at the time to direct traffic. No flashing arrow board or dip or bump signs were in place to warn drivers of danger.
Patricia Lawson, who was unfamiliar with the route, was exceeding the speed limit when she approached the bridge construction. The road surface for the bridge was higher due to resurfacing. This caused a bump as you entered the construction area and a drop-off after you crossed the bridge on the north side. Estimates of her speed ranged from forty to sixty-five miles an hour in a thirty-mile-per-hour zone at the construction site. At some point in the vicinity of the bridge construction, she lost control of the vehicle. Her skid and slide marks on the pavement began fifty to sixty feet from the end of the bridge construction according to Officer Kenneth Watson of the Springdale Police Department. Her car then jumped the median, crossed into the southbound lane, and crashed into an automobile driven by Cheryl Stansell and occupied by her daughter, Samantha Stan-sell. The impact destroyed the cars, killed Jim Lawson, and injured the appellees and their children.
Cheryl and Samantha Stansell filed a complaint in the Washington County Circuit Court, charging negligence on the part of both Muskogee Bridge and Patricia Lawson. Among the allegations asserted against Muskogee Bridge were failure to provide adequate warnings and “ [1] eaving an abrupt dip or bump in the roadway which created an unreasonably dangerous condition.” Patricia Lawson counterclaimed against Cheryl Stansell and cross-complained against Muskogee Bridge, advancing the same allegations against it that the Stansells made in their original complaint.
The case was tried before a jury over two days. The jury returned a verdict finding Muskogee Bridge eighty percent at fault in causing the accident and appellee Patricia Lawson twenty percent at fault. The jury awarded Cheryl Stansell, Samantha Stansell, and Justin Lawson the amounts of $25,000, $500, and $750,000, respectively.
I. SUBSTANTIAL EVIDENCE
Muskogee Bridge first contends that the jury’s verdict in favor of the appellees was founded solely upon sheer speculation and sympathy rather than upon substantial evidence. Substantial evidence is defined as that which is of sufficient force and character to compel a conclusion one way or another; it must force or induce the mind to pass beyond suspicion or conjecture. Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). We have held that we must affirm if there is substantial evidence to support the judgment below. Derrick v. Mexico Chiquito, Inc., supra; Handy Dan Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985).
In testing whether the evidence is substantial on appellate review, we need only consider the evidence on behalf of the appellee and that part of the evidence that is most favorable to the appellee. Derrick v. Mexico Chiquito, Inc., supra; Love v. H. F. Construction Co., 261 Ark. 831, 552 S.W.2d 15 (1977). The appellees asserted these instances of negligence: (1) the creation of a funnelling effect into the bridge with the reduction of four lanes to two lanes in a high-traffic, no-bypass area; (2) the creation of a “speed bump” at the south end of the bridge and a drop-off of several inches at the north end which caused Patricia Lawson to lose control; (3) the decision of Muskogee Bridge not to expend funds to pay for the installation of flashing arrow boards or additional warning signs; (4) the failure of Muskogee Bridge to comply with its contractual obligation to take “needed actions” to ensure the “safety of the public.”
The following evidence presented at trial supports a finding of negligence on the part of Muskogee Bridge:
Mike Webb, secretary-treasurer of Muskogee Bridge Company, conceded that “[w]e were responsible for traffic signs, yes, sir.” He acknowledged that there were no signs in place indicating either a “bump” or a “dip.”
Leon Brewer of the Arkansas Highway Department testified that in a letter he wrote denying Muskogee Bridge’s request for a flashing arrow panel he never said that such signs were not necessary but merely that they were not required by the Highway Department’s standard drawings. He insisted that the drop-off on the north end of the bridge could only have been an inch-and-a-half according to project specifications, but he agreed that if something there created the effect of a speed bump then something “was not right.”
Don Hooten, Muskogee Bridge’s project supervisor, admitted that the drop-off, which he contended was an inch-and-a-half as set forth in the project specifications, had not been measured. He also stated that flashing signs are typically used in “high traffic areas” and conceded that no “bump” or “dip” sign had been set up.
Officer Clyde Martin of the Springdale Police Department testified that he patrolled the area on a regular basis and estimated the drop-off on the north end of the bridge to be “anywhere from four to eight inches.” He said that the drop-off was there both before and after the accident.
Officer Herschel D. Hardin of the Springdale Police Department stated that he had been on the bridge as many as a dozen times or more per eight-hour shift during the period of construction. He said regarding the drop-off: “It reminded me of a speed bump, the severity of the height of it which could cause a care to lose control going over it and maybe not being too familiar with it.” He declared the condition to be “dangerous” because of the ramp on either side of the bridge. He estimated the drop-off at four to six inches.
Officer Kenneth Watson of the Springdale Police Department, who also patrolled the area with considerable frequency, recalled that “ [I] t was a pretty good rise onto the bridge and then again going off of the bridge in either direction.” He described the sensation of going over the ramp as “more like a speed bump than most anything else” and a “pretty good jump.” On one occasion, when he was in pursuit of a suspect in a shooting incident at a speed of more than one hundred miles an hour, his vehicle became “airborne” after crossing the bridge.
Teresa Jo Nagles, a teacher and volunteer fire fighter who arrived on the scene after being summoned by beeper, said that the bridge construction area was “pretty bumpy.” She also remarked that “if I hit it hard enough going faster than thirty miles an hour it would jar my car.”
Loretta Feagin, an eyewitness to the accident, testified that she observed Patricia Lawson’s car in the narrowed, two-lane area “weaving back and forth from one side to the other, back and forth. She was fighting it. She couldn’t hold it straight.” Loretta Feagin estimated Patricia Lawson’s speed at forty miles an hour.
Muskogee Bridge’s contract with the Highway Commission provided in a section titled “Safety; Accident Prevention” that:
The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on his own responsibility, or as the State Highway Department contracting officer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.
In a special provision entitled “Traffic Control Devices for Construction Zones,” the contract stated:
It will be the responsibility of the contractor to furnish all other signs, barricades, channelization devices or temporary traffic control other than those covered above. These types of traffic control devices are those required for temporary hazard protection , i.e., . . . drop offs . . . .
The evidence outlines above was substantial and sufficient to allow a jury to conclude that the condition of the construction area with the drop-off of four to eight inches and the absence of warnings of the drop-off, though not specifically required under the Highway Commission’s plans and specifications, constituted both negligence and a proximate cause of the accident. The jury had the right to believe or disbelieve all or any part of the testimony and was in a superior position to judge the credibility of the witnesses. Boyd v. Redick, 264 Ark. 671, 573 S.W.2d 634 (1978). This was a decision in which circumstantial evidence obviously played a significant role, because Patricia Lawson was unable to recall what happened after the crash. Nevertheless, any material fact in issue may be established by circumstantial evidence. MFA Mutual Ins. Co. v. Pearrow, 245 Ark. 795, 434 S.W.2d 269(1968); see also Interstate Freeway Services, Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992). The fact that evidence is circumstantial does not render it insubstantial as the law makes no distinction between direct evidence of a fact and circumstances from which a fact can be inferred. Thomas v. Allstate Ins. Co., 27 Ark. App. 27, 766 S.W.2d 31 (1989). We hold that the evidence was sufficient to support the verdict and judgment.
II. SOVEREIGN IMMUNITY
For its second point, Muskogee Bridge argues that it may not be held liable for negligence arising out of the requirements of its contract with the Highway Commission, the reason being that it was performing work for a sovereign in accordance with the sovereign’s specifications. The circuit court instructed the jury as follows on the effect that performance under a government contract has on negligence:
A contractor who performs in accordance with the terms of this contract with a governmental agency involved and under the direct supervision of that agency is not liable for damages resulting from that performance. However, a contractor is liable for damages resulting from negligence in the performance of the contract.
Muskogee Bridge then requested the following instruction which the court refused to give:
. . . you are instructed that if Muscogee Bridge Company complied with the plans and specifications of its contract and committed no negligent acts apart from its work pursuant to the contract, then Muskogee Bridge cannot be held liable for any injuries and damages resulting from its work done in compliance with those plans and specifications.
Muskogee Bridge’s proffered instruction is confusing as far as what is meant by “negligent acts apart from its work pursuant to the contract.” Moreover, the law was correctly stated by the instruction given. Accordingly, the circuit court did not abuse its discretion in refusing to give the proffered instruction. See Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991).
III. DIRECTED VERDICT
Muskogee Bridge moved for a directed verdict based on its contentions 1) that it was entitled to immunity under the terms of its contract with the Highway Commission; 2) that the jury would have to engage in sheer speculation about whether the bump caused Patricia Lawson to lose control; 3) that all the paving work was performed by McClinton-Anchor, a state-approved subcontractor; and 4) that no evidence was adduced to show that a reasonably careful contractor would have put up any additional warning signs.
A motion for a directed verdict should be granted only if there is no substantial evidence to support the verdict. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). We have already addressed the substantial evidence and immunity points. Suffice it to say that the mere fact that a subcontractor performed the work in question does not automatically relieve the general contractor of all liability. See, e.g., Construction Advisors, Inc. v. Sherrell, 275 Ark. 183, 628 S.W.2d 309 (1982). The Highway Commission contract also addresses this point when it says that subcontracting or assignment does not “relieve the contractor of any responsibility for the fulfillment of the contract.” Under the contract Muskogee Bridge was to provide safeguards to protect the public from dangerous conditions. But apart from the agreement, Muskogee Bridge, as general contractor, had a duty to protect the public against unreasonably dangerous conditions on the job site. Furthermore, the appellees were not required to present evidence of what a reasonably careful contractor would do. The circuit court correctly refused to direct a verdict.
IV. OFFICER OPINION
At trial, Officer Clyde Martin testified that he had been trained in accident investigation and that he had investigated approximately one hundred accidents a year. He then testified on direct examination by appellee Cheryl Stansell’s attorney regarding contributing factors to the accident:
Q. Do you have contributing factors to Mrs. Lawson?
A. On Mrs. Lawson I have two contributing factors. One was the wrong side of the road as a result of crossing the median and failure to maintain control of the vehicle.
There was no objection to this testimony. Later, on cross-examination by Patricia Lawson’s attorney, Officer Martin was asked about the bridge as a contributing factor:
Q. In your opinion, Officer Martin, was the bridge a contributing factor to this accident?
MR. COX: Your Honor, I am going to object. There is no foundation and it is expression of an opinion. There is not sufficient foundation.
MR. ROBINSON: Your Honor, under Rule 702 his knowledge, experience and training help determine a fact in in issue that goes to causation and not the ultimate issue of negligence. My asking Officer Martin’s opinion does not mandate a legal conclusion.
THE COURT: I’m going to allow him to testify over your objection as to the bridge. He has testified to his memory of it. Your objection will be noted, Mr. Cox. Ask the question again.
Q. [Mr. Robinson continuing:] In your opinion, sir, was the bridge a contributing factor to this accident?
A. The bridge or the construction itself:
Q. The drop off, the rise in the bridge and the drop off areas, sir.
A. Yes, sir, I would say it was one of many contributing factors.
Under subsequent questioning by Muskogee Bridge, Officer Martin testified that he did not list the bridge construction as a contributing factor in his report and could not say what caused Mrs. Lawson to lose control of her vehicle. He added under cross examination by Lawson that the drop-off could have been a contributing factor. But on re-cross examination by Muskogee Bridge, he admitted that he could only say it was “a possible cause” of the accident.
The next day, the circuit court reconsidered its previous ruling, admitted it had erred, and admonished the jury not to consider Officer Martin’s testimony on contributing factors. The court then struck the testimony. Muskogee Bridge asked for a mistrial, but the motion was denied.
The decision to grant a mistrial lies within the discretion of the trial court. Schroeder v. Johnson, 234 Ark. 443, 352 S.W.2d 570 (1962). Here, the circuit court, on the following day, admitted that it had erred in allowing Officer Martin to testify regarding contributing factors to the accident. We agree that this was error. The burden, however, is on the appellant to demonstrate that the circuit court committed prejudicial error. Error which does not result in prejudice is not reversible. Robinson v. Abbott, 292 Ark. 630, 731 S.W.2d 782 (1987).
Muskogee Bridge has not demonstrated that it was prejudiced. Officer Martin, though initially giving an opinion on contributing factors, later hedged in his testimony and said he could not say that the bridge construction was a cause of the accident. It was only a possible factor. Furthermore, the circuit court admonished the jury not to consider his testimony on contributing factors. Had the police officer been more demonstrative in assessing blame and the court not admonished the jury, our attitude would be diiferent. But here the circuit court made the appropriate decision to admonish the jury and go forward with the trial.
V. LAY TESTIMONY
Teresa Nagles testified that she crossed the bridge three or four times a week and that she experienced a jarring bump. She also testified that she told her father, jokingly, that she would sue the City if her wheels were knocked out of line. Her testimony was relevant under A.R.E. Rule 401 because it had a tendency to make the existence of the fact of a jarring bump more probable. After an objection from Muskogee Bridge, she limited her testimony to the time frame immediately before the accident. The circuit court committed no error in admitting this testimony.
Affirmed.
Hays, J., dissents. | [
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David Newbern, Justice.
Jeremiah Holland, the appellant, is charged with first degree murder in Searcy County Circuit Court. His motion to transfer to Juvenile Court was denied, and he has brought this interlocutory appeal. Holland argues the evidence he presented with respect to his mental immaturity and his prospects for rehabilitation in the juvenile system, as opposed to what he would face if convicted as an adult, warranted the transfer. We affirm the Trial Court’s decision not to transfer the case.
Holland was charged in Searcy County Circuit Court with killing his ten-year-old cousin, Sheera Fruitt. The Trial Court was presented with evidence that Fruitt was strangled with an electrical cord, and her body, which was weighted with large rocks, was recovered from a pond near the home where she lived with her mother and Holland.
At a hearing on the transfer motion the Trial Court was presented with two psychiatric reports from the State Hospital indicating Holland suffered from a conduct disorder and alcohol abuse. A clinical psychologist who examined Holland testified that his mental maturity was less than his chronological age, which was 17 at the time of the examination (16 at the time the offense was committed), and that while Holland’s intelligence was normal, he did not function normally in social situations. The psychologist also testified Holland’s prospects for rehabilitation were better in the juvenile system. The State introduced no evidence but asked the Court to take judicial notice of the psychological reports and the facts and circumstances surrounding the offense charged. The Trial Court denied the motion without stating reasons.
Arkansas Code Ann. §9-27-318(e) (Repl. 1991) sets out the guidelines for determining when an offense should be transferred from Circuit to Juvenile Court, and it provides:
In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors: (1) the seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense; (2) whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and (3) the prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
Cobbins v. State, 306 Ark. 447, 816 S.W.2d 161 (1991).
Subsection (f) of the statute requires a “finding by clear and convincing evidence that a juvenile should be tried as an adult.” We have, however, recognized that the serious and violent nature of an offense is a sufficient basis for trying a juvenile as an adult. Wicker v. State, 310 Ark. 580, 839 S.W.2d 186 (1992); Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). While the record does not demonstrate the consideration given by the Trial Court to the evidence Holland presented, we have held there is no requirement that every element mentioned in the statute be given equal weight. See, e.g., Cobbins v. State, supra; Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). In view of the most serious and violent nature of the offense charged in this case, we cannot say the Circuit Court’s decision to retain jurisdiction was clearly erroneous or clearly against the preponderance of the evidence. See Bradley v. State, 306 Ark. 621, 816 S.W.2d 605 (1991).
Affirmed. | [
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Donald L. Corbin, Justice.
Appellant, C.E. Wood, appeals a judgment of the Cleburne Circuit Court awarding appellee, Floy White, $15,000.00 compensatory damages and $15,000.00 punitive damages on her claim for assault, battery, and trespass. For reversal of the judgment entered pursuant to a unanimous jury verdict, appellant asserts four points of error in the trial, three of which have no merit. However, we find merit in appellant’s first argument and therefore reverse and remand for a new trial. At least one of appellant’s arguments involves a question in the law of torts; thus, our jurisdiction is pursuant to Ark. Sup. Ct. R. 29(l)(o).
Appellant and appellee own adjoining tracts of land in Greers Ferry, Arkansas. In a separate lawsuit, appellant sued appellee to determine ownership of a particular strip of land. Appellee testified in the present suit that while the dispute on the ownership of the strip was pending, she did not even cross the strip. Once the trial court determining the dispute over the strip rendered its order stating appellee was the rightful owner of the land in question, she attempted to resume caring for the strip of property by cleaning it of debris and trash. Appellee testified to three specific altercations between her and appellant that occurred on March 11,1989, when she attempted to haul trash from the strip down toward the lake in order to burn the trash. She stated that on those three occasions, appellant cussed her while yelling that she was on his property and he meant for her to stay off of it; appellant also came onto the strip, pried appellee’s hands off of her wheelbarrow full of debris, shoved her backward, pushed her wheelbarrow over to her patio and turned it over, spilling the debris on her patio. Appellee testified that she had no way of describing her feelings on those three occasions, but that she was scared of appellant and that she was “devastated of him.” She also stated that she was still scared of appellant, that she could not and did not go onto the strip of property when she knew appellant was home, and that she did not have the expectation of being able to move about freely on her property.
The present suit consists of only four witnesses, two for each side. There is the appellee and her only corroborating witness, neighbor Ruth Gadberry, against appellant and his wife. Not surprisingly, appellant and his wife have a completely different recollection of the events of March 11,1989, than do appellee and Mrs. Gadberry. Thus, this case is an example of the proverbial “swearing match.”
Appellant’s first assignment of error is in the trial court’s ruling excluding evidence of possible bias on the part of appellee’s witness and neighbor, Ruth Gadberry. While cross-examining Mrs. Gadberry, appellant inquired whether any annoying telephone calls were made from her phone to appellant’s phone. Mrs. Gadberry responded in the negative. Appellee objected to any further cross-examination concerning phone calls on the grounds that such calls were “extraneous matters.” Despite appellant’s response that the rule excluding extrinsic evidence of misconduct did not apply to an attempt at showing bias or prejudice, the trial court sustained appellee’s objection.
Appellant was allowed to proffer the testimonies of six witnesses who were either Southwestern Bell employees or local law enforcement officers and who investigated appellant’s report of an annoying phone call. The proffered evidence reveals that appellant was receiving annoying phone calls and reported this to the telephone company; that he had the phone company place a “trap” on his phone line; that on April 13, 1989, appellant received one of the annoying calls that activated the trap; that the phone company determined the trap to have “locked” Mrs. Gadberry’s phone onto appellant’s phone on April 13,1989; that Mrs. Gadberry’s phone did not have any devices such as a “stacked drop” or “cable pair” that would have allowed some other phone to cause hers to lock onto appellant’s phone; that both Mr. and Mrs. Gadberry were home all day on April 13,1989, but their phone was not locked onto appellant’s phone when law enforcement officials investigated the complaint late in the day on April 13, 1989.
Just as he argued below, appellant argues on appeal that the foregoing evidence shows Mrs. Gadberry was biased against appellant. Mrs. Gadberry’s alleged bias is particularly relevant, argues appellant, because her testimony was the only evidence appellee offered to corroborate her own testimony.
Our law is well settled that evidence of a witness’ bias or prejudice is not a collateral matter, and if a witness denies or does not fully admit the facts claimed to show bias, the attacker has a right to prove those facts by extrinsic evidence. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). This rule of law is applied to both criminal and civil cases alike. See Edward W. Cleary, McCormick on Evidence, § 40 (3d ed. 1984).
Hostility of a witness toward a party is evidence of bias and may be shown by the fact that the witness has had a fight or quarrel with the party. Id. Certainly, the testimonies proffered by appellant show that someone at the Gadberry household made an annoying .phone call to appellant’s home. It goes without saying that annoying phone calls are usually made as a result of some animosity or hostility toward the recipient of the call. At the very least, hostility toward appellant is something the jury could reasonably infer on the part of Mrs. Gadberry or someone in her household.
The proffered testimonies were evidence of Mrs. Gadberry’s possible bias or prejudice against appellant and it was error for the trial court to prevent appellant from presenting such information to the jury. Furthermore, given the fact that Mrs. Gadberry’s testimony was appellee’s only corroborating evidence of her claim, appellant was prejudiced by the trial court’s error. We therefore reverse and remand for a new trial. | [
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Steele Hays, Justice.
This is an original action for a writ of prohibition. Our jurisdiction exists pursuant to Ark. Const, art. 7, §§ 4 and 5. Petitioners are two corporate employers operating in Greene County, Arkansas. Respondents are three chancery judges serving the Second Judicial District of Arkansas, encompassing Greene County. On April 1,1991, respondents issued an administrative order affecting the procedure to be followed by employers remitting child support payments for certain of their employees subject to income withholding. The order reads:
All child support payments made by an employer for an employee under income withholding are ordered to make the checks payable to the custodial parent, those checks are to then be forwarded to the circuit clerk’s office for distribution to the proper person or agency.
Contending the order conflicts with federal and state law, petitioner Monroe Auto Equipment Company filed a petition for quo warranto in this court in July, 1991. That request was denied without prejudice to a later appeal. A similar petition by Darling Store Fixtures was also denied.
Petitioners next filed an action in the Circuit Court of Greene County for declaratory judgment to declare the administrative order void and unenforceable as being in conflict with 42 U.S.C.A. § 666(b)(6)(B) (West 1991) and Ark. Code Ann. §§ 9-14-222(d)(9) and9-14-228(b) (1987). The chancellors answered the complaint through their counsel, the Attorney General. Petitioners then moved for summary judgment and the circuit court granted summary judgment on their behalf. That development prompted two steps by the respondents — they filed notice of appeal to this court and issued a new administrative order essentially indistinguishable from the first. When this action in prohibition was filed we granted a temporary stay of the administrative order and asked the parties to submit their briefs. While that was in progress, respondents filed the record in their appeal from the declaratory judgment and moved to stay the briefing schedule, asserting that the issues in their appeal corresponded with the issues in this action for prohibition. Petitioners concurred in that request and we granted the motion.
Returning to the case at hand, petitioners pose four arguments for prohibition:
I.
The Respondents’ Conduct Constitutes An Impermissible Collateral Attack On The Court’s Judgment.
II.
The Respondents Waived Any Objection To Jurisdiction By Failing To Move to Transfer Or Object To The Circuit Court’s Action.
III.
Jurisdiction To Determine The Legality Of A Local Rule Has Not Been Specifically Assigned Nor Do The Chancery Courts Have Subject Matter Jurisdiction To Issue Local Rules.
IV.
The Petitioners Have No Adequate Remedy To Protect Their Rights In This Context.
We decline to address these arguments, as it appears they are formulated in the pending appeal and can be more appropriately addressed in that action than in this. That being so, it cannot be said there is no other adequate or appropriate remedy but prohibition. Street v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975). A writ of prohibition is an extraordinary writ and is granted only when the lower court is wholly without jurisdiction, there are no disputed facts, there is no adequate remedy otherwise, and the writ is clearly warranted. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983); Henderson v. Dudley, 279 Ark. 697, 574 S.W.2d 658 (1978). Our cases suggest that writs of prohibition are prerogative writs, extremely narrow in scope and operation; they are to be used with great caution and forbearance. Wade v. State, 264 Ark. 320, 571 S.W.2d 231 (1978). They should issue only in cases of extreme necessity. Smith v. Burnett, 300 Ky. 249, 188 S.W.2d 840 (1945).
A characteristic of prohibition is that it does not lie as a matter of right but as a matter of sound judicial discretion. Karraz v. Taylor, 259 Ark. 699, 535 S.W.2d 840 (1976). Finally, prohibition is never granted to prevent an inferior tribunal from exercising its jurisdiction erroneously, only where such tribunal is wholly without jurisdiction. Jones v. Coffin, 96 Ark. 332, 131 S.W. 873 (1910).
In light of those settled canons of the law applicable to prohibition, petitioners have not satisfied us that the issuance of this order, whatever might be said of its propriety or validity, affecting the collection of child support, is a usurpation of jurisdiction by the respondents, or that the issues common to these two proceedings are more appropriate to prohibition than to appeal. Accordingly, we deny the writ and dissolve the temporary stay. | [
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Jack Holt, Jr., Chief Justice.
The issue is whether the trial court erred by ruling in favor of the appellees, the Baxter County Election Commission and its members, with reference to its 1992 apportionment of quorum court districts within the county. We hold that it did not and affirm.
The appellants, Don Riley, Virginia Kilburn, and Susan Woods, registered voters of Baxter County (hereafter “the voters”), opposed a new quorum court redistricting plan for Baxter County on the basis that it would result in discrimination since the population varied among the districts by 10.149 % and this was greater than the acceptable 10 % variance set out by the United States Supreme Court in Brown v. Thomson, 462 U.S. 835 (1983), and earlier precedent.
Following a hearing, the Baxter County Circuit Court held:
The Court in reviewing the law, and in listening to the testimony of the Defendants, finds that the Defendants have given acceptable reasons for variance from a strict 10.0% deviation the Court [sic] further finds that the Baxter County Election Commission has substantially complied with the requirements of Ark. Code Ann. § 14-14-401 and therefore the claims of the Plaintiff for noncompliance are dismissed.
The general principle underlying this case is that unit voting systems which contain varying populations are unconstitutional per se because they deny residents equal representation ensured by the fourteenth amendment. Gray v. Sanders, 372 U.S. 368 (1963). The overriding objective of apportionment must be substantial equality of population among the various districts. Reynolds v. Sims, 377 U.S. 533 (1964). We have reiterated the rule that the primary consideration of reapportionment is the numerical equality of the districts, or “fair and effective representation for all citizens.” New York City Bd. of Estimate v. Morris, 489 U.S. 688, 701 (1989) (citing Reynolds v. Sims, 377 U.S. 533, 565-6 (1964)). See U.S. Dept. of Commerce v. Montana, 112 S.Ct. 1415 (1992); Taylor v. Clinton, 284 Ark. 170, 680 S.W.2d 98 (1984), Wells v. White, 274 Ark. 197, 623 S.W.2d 182 (1981). Since Baker v. Carr, 369 U.S. 186 (1962), the United States Supreme Court has “consistently adjudicated equal protection claims in the legislative districting context regarding inequalities in population between districts” and has developed and enforced the “one person, one vote” principle. Davis v. Bandemer, 478 U.S. 109, 118 (1986). Population variation among districts greater than 10 % is a prima facie violation of the equal protection clause. Brown v. Thomson, 462 U.S. 835 (1983); Connor v. Finch, 431 U.S. 407 (1975); Chapman v. Meier, 420 U.S. 1 (1975); Gaffney v. Cummings, 412 U.S. 735 (1973). After such a prima facie case is established, the burden of proof shifts to the defendant to justify the variances.
Although the voters raise five points for our review, there are, in essence, only two issues before us: whether the trial court erred in finding that the Election Commission justified the variance from “the 10 % rule” and whether the trial court erred in finding that the Election Commission substantially complied with our code requirements for apportionment.
I.
DID THE TRIAL COURT ERR IN FINDING THAT THE ELECTION COMMISSION JUSTIFIED THE POPULATION VARIANCE GREATER THAN 10% ?
At the hearing, all parties to the case stipulated to the 10.149% variance. The trial court stated that this was a prima facie case of discrimination, and the Election Commission then proceeded to explain why the variance exceeded 10%.
There must be some “rational policy” to justify a variance over 10%. Brown v. Thompson, supra. The testimony at the hearing revealed that the Election Commission had requested and received from the Attorney General the 10% variance guidelines in setting up quorum court districts, the Commission held several meetings, and the Commission sought to keep to the old district lines as much as possible to avoid inconveniencing the voters. One Commission member testified that the overriding principle they followed was equal representation. From maps with the new Decennial Census numbers, they took the total population and divided by eleven, the number of districts to be apportioned. The districts with population already closest to that number were kept the same, and the others were slightly modified, taking geography into account, to reach parity. The end result was that two of eleven districts were over the ten percent acceptable variance by four and three voters, respectively. Thus, a systematic approach taken by the Commission reveals a rational policy of redistricting in Baxter County.
Furthermore, the 10.149% variance is only slightly over the acceptable 10% variation. Applying Arkansas law, the Federal District Court for the Eastern District of Arkansas held that a population difference of 10.9% between proposed state Senate districts in Arkansas was not a “discrepancy sufficiently significantly to justify rejecting the [Board of Apportionment’s] plan . . . [which] represents official State policy.” Jeffers v. Clinton, 756 F. Supp. 1195, 1201 (E.D. Ark. 1990), aff'd 111 S.Ct. 662 (1991).
We cannot say that the trial court erred in finding that the Commission overcame the prima facie case of discrimination.
II.
WAS THE TRIAL COURT’S FINDING THAT THE ELECTION COMMISSION SUBSTANTIALLY COMPLIED WITH THE ARK. CODE ANN. § 14-14-401 — 407 (1987) CLEARLY ERRONEOUS?
Subchapter 4 of Title 14, Section 14 of the Arkansas Code Annotated governs the apportionment of quorum court districts. Ark. Code Ann. § 14-14-401 (a) states:
Each county of the state shall divide its land area into convenient county quorum court districts in a manner and at times prescribed by the General Assembly.
Testimony at the hearing revealed that in drawing the new lines, the Commission started with the 1980 districts and then adjusted their boundaries with their stated goal being population equality and convenience to voters. There is no evidence that the new lines were inconvenient for any voters. See In re Redistricting Voting Dists. of Ross Township, 557 A.2d 59 (Pa. Commw. 1989)(redistricting approved where trial court took into account election administration, topography, voter turnout, and convenience).
Next, the number of quorum court districts is determined by a population chart found at Ark. Code Ann. § 14-14-402. In the present case, Baxter County correctly created eleven districts.
The procedure for actually apportioning quorum court districts is found at § 14-14-403, titled “Apportionment of Districts”:
(a) The county board of election commissioners in each county shall be responsible for the apportionment of the county into quorum court districts. Until otherwise changed in the method set forth in this subchapter, the districts of each county shall consist of the territory of the township established by the county board of election commissioners on or before November 3,1975, pursuant to the provisions of Acts 1975, No. 128 [Repealed]. Thereafter, districts shall be apportioned on or before the first Monday after January 1, 1982, and each ten (10) years thereafter.
(b) All apportionments shall be based on the population of the county as of the last Federal Decennial Census, and the number of districts apportioned shall be equal to the number to which the county is entitled by law.
(c) The provisions of this subchapter shall not be construed to affect the composition of the county committees of the political parties, and the county committee of each political party shall designate the geographic area within the county from which county committeemen shall be selected.
The Election Commission complied with these requirements.
As additional requirements, § 404 orders the State Board of Apportionment to provide the Federal Decennial Census data to the county election commissions; § 405 requires county election commissions to file their plans setting forth boundaries and populations with the county clerk, and requires the plan to be published within fifteen days of that filing; and § 406 provides that a challenge of the plan may be made in the circuit court within thirty days of its publication. See Stack v. Clinton, 309 Ark. 400, 832 S.W.2d 476 (1992); Taylor v. Clinton, 284 Ark. 170, 680 S.W.2d 98 (1984); Goldsby v. Brick, 281 Ark. 58, 661 S.W.2d 368 (1983). The 1990 census data was provided and used in the redistricting, the plan was filed and published, and the voters’ present challenge was brought within 30 days.
Lastly, § 407 directs the county clerk to certify the plan and transmit it to the Secretary of State if no one has challenged it within the allotted time period. This has not been done due to the present ongoing challenge.
On review, this court will not reverse a finding of fact by a trial judge unless it is clearly erroneous, and we view the evidence, and all reasonable inferences therefrom, in the light most favorable to the appellee. Tuthill v. Arkansas County Equalization Bd., 303 Ark. 387, 797 S.W.2d 439 (1990). In so viewing the evidence, we cannot say the finding of fact that the Election Commission complied with the statutory requirements of Ark. Code Ann. § 14-14-401 — 407 (1987) was clearly erroneous. Ark. R. Civ. P. 52(a).
For the foregoing reasons, we affirm the trial court. | [
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Darrell Hickman, Justice.
James Jack Patton sued for damages for personal injuries caused by a motor vehicle accident with the appellee. At issue was which party ran a red light. The appellee intentionally injected the existence of insurance into this case, and we reverse and remand for a new trial.
During direct examination, Patton testified that he felt obligated to pay his doctor’s bill. The appellee’s attorney immediately seized upon the word “obligated” and said:
Now, your Honor, he’s opening the door into his obligation to pay a bill that perhaps already has been paid. If he wants to open that door ....
Then on cross-examination, the following occurred:
Appellee’s Attorney: I believe you also said that you are obligated, is that the word? You said you were obligated to pay these bills?
A: Yes, Sir.
Q. Your Honor, I again want to go into something I shouldn’t but you’ll recall, he did testify to that.
The court: I recall that, [attorney for appellee], I think you can go into it.
Q. Isn’t it true, sir, that $5,000 of those bills have already been paid? You’re not obligated to pay those, are you, sir?
Appellant’s Attorney: Your Honor, may we approach the bench? [A discussion at the bench ensured.]
The court: We’ll show your objection [attorney for appellant] for the record.
Q. Now the point is not that we owe you any of this, but the point is that you have told this jury today under oath one thing when, in fact, the truth is another thing. Five thousand of this has already been paid and you are not obligated to pay eight thousand, are you sir? (Italics supplied.)
A. Those bills are in my name.
Q. Sir, I’ve got the cancelled checks. Do you want me to produce those for you where five thousand of this has been paid?
A. You have the cancelled checks?
Q. Get the checks?
A. I didn’t say that.
Q. Okay. Now if you would tell a story about that, was the light green or was the light red? (Italics supplied.)
Those questions were not even a thinly veiled hint of insurance coverage: rather, the attorney was making an outright reference to the fact that the insurance company paid the bills. We have consistently held that the existence of insurance cannot be unnecessarily injected into a case and to do so is reversible error. Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30 (1982); Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973). That principle is part of the “collateral source rule” which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant. We have explained the reason for the collateral source rule: that is that recovery from other sources, if known to the jury, could result in prejudice to the plaintiff. See Pekin Stave & Mfg. Co.v. Ramey, 104 Ark. 1, 147 S.W. 83(1912); Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972). The rule serves one goal of tort law which is to reimburse the plaintiff for his losses and also prevents the defendant/tortfeasor from receiving the benefit of the collateral recovery. See 22 Am. Jur. 2d Damages § 206(1965); Vermillion v. Peterson, supra. The rule can have no meaning if it is skirted by the tactics used here.
The appellant was entitled to testify as to the amount of his medical bills although they may actually by paid by a collateral source. See Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). The error is aggravated because the appellee’s attorney used the situation to portray the appellant as a liar before the jury when in fact he told the truth. That the appellant later had to go into the matter in detail to show that insurance coverage did in fact result in payment of part of the bills does not waive the appellant’s original objection. The trial judge abused his discretion in allowing the appellee’s attorney to question the appellant as he did.
We find no merit in the other argument raised pertaining to the trial judge’s comments.
The appellees made no reference to a violation of our Rule 9; however, the appellant abstracted essentially verbatim the relevant portions of the transcript pertaining to testimony and colliquies that occurred on the two issues raised. The record was not abstracted in the first person as our Rule 9 requires. The.abstract consisted of only 12 pages and pages from the transcript were skipped by the appellant in so doing. Sometimes, particularly in the case of objections to court rulings, it is necessary to quote exactly from the record. In fact, we, ourselves, often find it useful to quote in part exactly what was said. We find no flagrant violation of Rule 9 as we did in Harris v. Ark. Real Estate Comm'n., 274 Ark. 537, 627 S.W.2d 1 (1982), where the appellant reproduced all of the transcript.
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Robert H. Dudley, Justice.
The first fourteen sections of Act 922 of 1983 contain an appropriation for the judicial retirement system. Sections 15 and 16 of the same act change Cleveland County from one judicial district to another. The appellee filed suit seeking to have Sections 15 and 16 of the act declared in violation of article 5, § 30 of the Constitution of Arkansas. That constitutional provision is as follows:
§ 30. General and special appropriations. — The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative ánd judicial departments of the State; all other appropriations shall be made by separate bills, each embracing but one subject. (emphasis added)
The trial court held that Sections 15 and 16 were in violation of the constitution but, because of the severability clause, • the remainder of the act was unaffected by the decision. We affirm. Jurisdiction to construe the act and the constitution is in this court. Rules 29(1 )(a) and (c).
Sections 20 and 22 of Article V of the Constitution of 1868, when construed together, constituted a provision similar to the one in our present constitution. In considering the purpose of the language in the earlier constitution, we held that there must be a unity of subject which prevents omnibus bills in which proponents of one subject could be united with the proponents of another subject and, together, the proponents of the various subjects would unite to carry through bills which, alone, could not have passed. Fletcher v. Oliver, 25 Ark. 289 (1868) and Palmore v. State, 29 Ark. 248 (1874). Under the present constitution, all appropriation bills must be limited to a unity of'subject. State v. Sloan, 66 Ark. 575, 53 S.W. 47 (1899). Changing Cleveland County from one judicial district to another is not related by subject matter to the appropriations for the judicial retire ment system because the separate provisions cannot be said to accomplish a purpose of one design. See Cottrell v. Faubus, 233 Ark. 721, 347 S.W.2d 52 (1961).
Affirmed.
Hollingsworth, J., dissents. | [
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George Rose Smith, Justice.
In this tort case, which comes to us under Rule 29(1 )(o), the only contention preserved by an objection below is that the court gave an instruction not relevant to the evidence. Inasmuch as the verdict in favor of the defendant, Mrs. Murphy, demonstrates that the error was harmless, we affirm the judgment.
The plaintiff, Perry Dwayne Ray, aged 25, was riding his motorcycle when he ran into the right side of Mrs. Murphy’s car as she was turning to her left in front of him at a street intersection in Fort Smith. She testified that she had a green arrow for her left turn; that the light would have been red for Ray as he came toward her; and that she saw him approaching and expected him to stop. Ray testified that he had a green light and expected Mrs. Murphy to yield.
The investigating officer testified without objection that Ray did not have the special driver’s license required for a motorcyclist or the required crash bars. Over the plaintiff’s obj ection the court instructed the j ury, in the format of AMI Civil 2d 601 (1974), that a violation of the statutes requiring a license and crash bars is evidence of negligence. The jury was otherwise properly instructed. The trial judge told the jury to put its findings on a printed form of verdict containing only the words, “We, the jury, find,” followed by blank lines. The jury completed the form to read: “We, The Jury, find that Mrs. Murphy is not guilty of negligence as charged.” The nine jurors who had signed the verdict were polled individually and affirmed the verdict. The court entered judgment for Mrs. Murphy.
The argument for reversal is that the challenged instruction should not have been given, because Ray’s failure to have the required license or crash bars was not a proximate cause of the accident. Perhaps so, but it is familiar law that the jury’s verdict may demonstrate that an error in the instructions was harmless. We quote from three of our many opinions on the point:
Billy Cates next contends that the trial court committed reversible error by the giving of an instruction on the standard of care for a contractor. A.M.I. Civil 2d 1204. There is no basis in the record for the instruction and it should not have been given. However, the verdict rendered the error harmless since the jury found against the appellees on the issue involved in the instruction. Cates v. Brown, 278 Ark. 242, 645 S.W. 2d 658 (1983).
But when the jury answered Interrogatory No. 2 as it did and found that Campbell 66 Express, Inc., “by its servants, agents and employees,” was not guilty of any negligence, then the verdict cancelled any error in the matter of the Comparative Negligence Instruction and rendered harmless the giving of the wrong Comparative Negligence Instruction. Sutton v. Nowlin & Sons Co., 232 Ark. 223, 335 S.W. 2d 292 (1960).
Irrespective of whether the instruction was erroneous it was harmless for the reason.both in finding for John Mosley, Jr., and John Mosley, Sr., the jury found that John Mosley, Sr., was not guilty of negli gence. Payne v. Mosley, 204 Ark. 510, 162 S.W.2d 889 (1942).
The jury’s specific finding that Mrs. Murphy was not negligent conclusively exempts her from any possibility of liability to the plaintiff. If the trial court cannot rest its judgment upon such an explicit verdict, our procedure for instructing juries becomes futile.
Affirmed.
Purtle, J., dissents. | [
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Per Curiam.
Petitioner Edward Charles Pickens was found guilty of capital felony murder in 1976 and sentenced to death. We affirmed the conviction and sentence. Pickens State, 261 Ark. 756,551 S.W.2d 212 (1977); cert. denied 435 U.S. 909 (1978). We also denied petitioner’s petition for postconviction relief. Pickens v. State, CR 76-186 (November 3, 1981).
Petitioner filed a petition for writ of habeas corpus in federal district court which was denied. Pickens v. Lockhart, 542 F. Supp. 585 (1982). On appeal, the Eighth Circuit Court of Appeals found ineffective assistance of counsel in the penalty phase and remanded to the district court with instructions to vacate the death sentence and either reduce the sentence to life without parole or conduct a new sentencing procedure. Pickens v. Lockhart, 714 F. 2d 1455 (8th Cir. 1983). On the State’s motion, we reinvested the Circuit Court of Prairie County with jurisdiction to resentence the petitioner.
After voir dire of the jury panel had begun, one of the State’s witnesses at the original trial, Harold Goacher, informed the prosecutor that what he had said petitioner Pickens had done during the crime, Antonio Clark did, and what he said Clark did, petitioner had done. Petitioner moved for a hearing to place Mr. Goacher under oath to explore the matter but the trial court refused the request.
Petitioner has now filed a petition in this Court for writs of mandamus, certiorari and error coram nobis. We find no ground for granting any of the writs.
Petitioner seeks a writ of mandamus to compel the trial court to conduct a hearing on Mr. Goacher’s testimony. Mandamus is an extraordinary writ issued to require an inferior court to act when it has improperly failed or declined to do so. It is never applied to control the discretion of a trial court, nor can it be used to correct an erroneous exercise of discretion. State ex. rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969). If petitioner concludes that the resentencing procedure has been rendered unfair by the failure to hold a hearing, his remedy is on appeal, not a mandamus action.
Citing our recent holding in Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), wherein we discussed error coram nobis as a remedy where there is newly discovered evidence, petitioner argues that he is entitled to an evidentiary hearing to determine if Goacher’s pronouncements warrant the granting of a new trial. Penn, however, concerns evidence discovered between the time for filing a motion for new trial has expired and the time the case is affirmed on appeal. In petitioner’s case, the guilt phase of his trial has been affirmed. The Eighth Circuit Court of Appeals ordered no new trial of that phase. We made it clear in Penn such information was not a basis for a new trial. According to our decision, such information must be presented in a clemency proceeding.
Furthermore, even if the petition for writ of error coram nobis were timely, the record does not indicate that there would be any difference in the outcome of the guilt phase. Mr. Goacher testified that both of the men he described as dark-skinned men (Clark and Pickens) did the shooting, although he did not separate their specific actions. Since Clark was also found guilty and received the death penalty, it cannot be said that the result of the guilt phase would have been different. If Goacher’s testimony would go to mitigation, it may be heard in the sentencing proceeding now in progress.
Finally, petitioner seeks a writ of certiorari to clarify jurisdiction and venue questions and to determine who should prosecute the case if a hearing is granted. Since we have addressed the issue of venue and jurisdiction in an earlier opinion, we decline to do so a second time. Pickens v. Circuit Court of Prairie County, et al, 283 Ark. 97, 671 S.W.2d 163, (1984). We also decline to decide who should be the prosecutor if the trial court elects to have a hearing. The trial judge may appoint a special prosecutor if he deems necessary.
Writs denied. | [
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P. A. Hollingsworth, Justice.
Charles and Mary Oliver, a married couple, and their daughter Grace are the appellees. Mr. and Mrs. Oliver are residents of Batesville and the appellant, Stifft’s Jewelers, is a Little Rock company engaged in the business of selling and repairing jewelry. On June 26, 1982, Mrs. Oliver brought three rings to Stifft’s to be repaired. They were described in testimony at the trial as follows: a .70 carat marquise diamond which was Mrs. Oliver’s engagement ring; a one-third carat diamond which Mr. Oliver’s mother had willed to Grace Oliver; and a one-fourth carat garnet which had originally belonged to Mrs. Oliver’s grandmother. At the trial the value of the three rings was established at approximately $3800.
On the same day, Mr. Oliver purchased a one carat diamond ring as an anniversary gift for Mrs. Oliver. Stifft’s agreed to mail all four rings after the repairs and proper cleaning were completed. The Olivers received a package in the mail from Stifft’s which they testified only contained the anniversary ring. When contacted by the Olivers, the appellant business maintained that all four rings were placed in the same box. The parties could not agree on a resolution. This action was brought by the Olivers seeking the replacement cost of the rings plus $50,000 in sentimental value. Stifft’s filed a motion for partial summary judgment seeking to have the prayer for sentimental value stricken which was denied by the trial court. The jury returned a verdict in favor of the Olivers for $4000 replacement cost and $4000 for sentimental value. This appeal is from the judgment of $4000 in sentimental value in favor of the Olivers. Because this case presents a question in the law of torts, this appeal is before us pursuant to Rule 29(1 )(o). We affirm and modify the judgment.
In order to determine correctly the measure of damages, the nature of the action must first be determined. While appellants have provided us with a tort theory, they are bound to proceed on a contract theory. In their brief, they stated their theory of the case relying on Bond v. A.H. Belo Corp., 602 S.W.2d 105 (Tex. Civ. App. 1980). In Bond, the Texas court awarded the appellant the sentimental value of pictures, birth records, and newspaper clippings lost by a newspaper reporter which pertained to her efforts to find her natural parents. The Texas court relied on an earlier Texas decision, Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963). The Brown case which was also relied upon by the trial court here, held that when personal property has its “primary value in sentiment” recovery for such sentimental value cannot be denied. We do not accept this approach.
The question here is the amount of damages that can be established with reasonable certainty under the facts of this case. Since there was a market value established for the rings, we must now determine whether a special or sentimental value is greater than the market value, and what the parties understood their obligations to be. We look to our holding in Morrow, et al v. First National Bank of Hot Springs, 261 Ark. 568, 550 S.W.2d 429 (1977) for guidance. There we reaffirmed the adoption of the “tacit agreement test” for the recovery of special damages for a breach of contract. We stated: “By that test the plaintiff must prove more than the defendant’s mere knowledge that a breach of contract will entail special damages to the plaintiff. It must also appear that the defendant at least tacitly agreed to assume responsibility.”.
Here the appellees have not pointed out where the appellant company was made aware of the sentimental value of the rings. Neither do they show any tacit agreement by appellant to assume responsibility.
There could be circumstances where the value of the property is primarily sentimental and the jury could determine that value, provided there was a tacit agreement by the parties. However, the circumstances do not exist here because no tacit agreement was made and the alleged sentimental value of the lost rings is so highly speculative in this case that it was not a proper element of damages for consideration by the jury. We strike that part of the judgment for sentimental value.
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Robert H. Dudley, Justice.
The plaintiff, William Gaulden, contends that the trial court erred by dismissing his amended complaint for failure to state facts upon which relief could be granted. Jurisdiction is in this court to construe the Arkansas Rules of Civil Procedure. Rule 29(1 )(c). We affirm the trial court.
In the amended complaint, plaintiff alleged that he was employed by defendant, Emerson Electric Company, as a truck driver and in September, 1982, “was laid off for lack of work”; that on December 15, 1982, defendant’s personnel manager requested that he return to work by 7:00 a.m. the next morning; and that he told the personnel manager that he had an illness which might prevent his return to work. Additionally, the amended complaint recited that on December 15th, he was taking the prescription drug Compazine, which caused him to experience dizziness. Additional averments were that he did not report for work at the designated time and place but, two hours later, telephoned defendant’s personnel manager to tell him that he would be a few hours late; that he was then told he was discharged for failure to “make the run on time and failure to notify the defendant of his illness.”
On appeal, plaintiff first contends that portion of the three count complaint, set out above, states a cause of action both in contract and in tort for wrongful discharge. See Comment: Wrongful Discharge of Employees Terminable At Will - A New Theory of Liability in Arkansas, 34 Ark.L.Rev. 729 (1980).
Almost a century ago we began to follow the common law rule that when a contract of employment does not bind the employee to serve for a specified time, the contract may be terminated at will by either party, even though the contract provides that the employee can be discharged only for cause. See St. Louis, I.M. & S. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897); Petty v. Missouri & Arkansas Ry. Co., 205 Ark. 990; 167 S.W.2d 895, cert. den. 320 U.S. 738 (1943). The harshness of this common law rule is being softened in many jurisdictions. See Annotation, 12 ALR4th 544 (1981). Twice, we have recognized the new trend without finding it necessary to explore this issue. Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982); Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984).
That part of the complaint set out above does not allege any facts which bring the plaintiff within any of the proposed exceptions to the employment at will doctrine. Rule 12(b)(6), which tests the sufficiency of the pleadings, provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted” while Rule 8, which deals with the content of the pleadings, provides:
A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim, or third party claim, shall contain... (2) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief . . . (emphasis supplied).
The sole allegation is that plaintiff told defendant that an illness might prevent him from making the trip the next day. The complaint does not aver that defendant was informed that plaintiff was taking prescription medication or was suffering from dizziness. Moreover, the complaint reflects that plaintiff failed to notify appellee that he would not be at work the next day. Since no facts were alleged which would have brought the plaintiff within any of the proposed exceptions to the employment at will doctrine, there is no need for us to further explore the exception issue, and we affirm for failure to state facts upon which relief can be granted. See Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981).
Plaintiff’s second point of appeal is that he was not a mere at will employee but had completed a probationary period and could be fired only for good cause. In this portion of the amended complaint plaintiff alleged that he contracted with defendant for probationary employment to be followed by employment which could be terminated only for good cause. He additionally alleged that he had completed his probationary period.
We have clearly stated that we will reexamine our doctrine when we are presented with a case in which the contract of employment provides for discharge only for cause and the employee is discharged arbitrarily or in bad faith. Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984). In fact, in Jackson we reversed the granting of a summary judgment in order that the facts of the case could be developed on this precise issue. However, in the case at bar, the plaintiff has not stated a cause of action, for even if we should decide to change our law to prohibit an arbitrary or bad faith discharge when the contract requires cause, this complaint shows that the defendant had good cause to discharge plaintiff. The complaint recites that defendant informed plaintiff that he was being discharged for “failure to make the run on time and because of his failure to notify defendant of his illness. . .” and the complaint further recites that plaintiff, in fact, did not report for work at the designated time and place.
Affirmed.
Hubbell, C.J., and Hickman, J., concur.
Purtle, J., and Hollingsworth, J., dissent. | [
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Darrell Hickman, Justice.
The only issue before us in this case is the extent of the City of Conway’s ownership of certain land condemned in 1955 to build the Beaverfork Reservoir for a water supply. The chancellor, in a declaratory j udgment action concerning this issue, declared that the city took the land in fee simple, and we find that he was right. We only have the city’s complaint and the order of taking to rely on, just as the trial court did, in making our decision.
The city had to condemn the land of John A. Robinette and his wife because thay would not sell. It filed a condemnation suit to “take and inundate” certain described land which is “below 301 feet above mean sea-level or which, being above said level, is within 20 feet of any lands that are below said level. ...” Twenty-five hundred dollars was deposited as damages for the taking. The lake was built. Undoubtedly, since then some adjoining landowners have used the lake for recreational purposes, because boat dock permits are issued to adjoining landowners by the City of Conway. The appellants argue this shows the use of the land. In any event, the appellants obtained a quitclaim deed from the Robinettes to the condemned land and claimed that, at the most, the city merely owned an easement and that they owned the land, especially the 20 feet not intended to be inundated. They filed this suit to determine the city’s interest in the land.
The appellants argue that a condemning authority may only take the estate in property that is necessary to satisfy the purpose, and since it did not need a fee simple, one was not taken. Young v. Gurdon, 169 Ark. 399, 275 S.W. 890 (1925). The 1955 order of taking does not state precisely what title the city took, whether the fee simple or easement, so we must look to the language of the order and the complaint to make our decision. We find the city took the land in fee simple for several reasons. It had the authority to do so. Ark. Stat. Ann. § 35-902 (Repl. 1962). The order of taking said it was necessary “to take and inundate” the land. The city asked “ . . . said lands be condemned and this court fix the value of said lands so taken.” (Italics supplied.) All of this confirms that the city sought the property in fee simple absolutely, not just for a use by prescription. The Robinettes did not challenge the order.
However, the appellants argue that at least the 20 feet should not be considered as taken in fee simple because it is not covered by the lake. But the order does not discriminate. Instead, in one unbroken sentence, it says all is taken together: “All that part . . . which is below 301 feet above mean sea-level or which, being above said level, is within 20 feet of any lands that are below said level ...”
A boat dock permit, such as the one used by the city, was added as an exhibit to show the current use of the property and also a letter from the manager of the city owned water system which says: '“[W]e feel that Beaverfork Reservoir should no longer be considered a part of the water supply system of the City of Conway and, unless some extreme emergency should arise, the Conway Corporation as operators of the city owned water system has no further interest in Beaverfork Reservoir.” We do not rule on the policy of the City of Conway or its treatment of landowners regarding boat dock permits; nor whether the city hás actually abandoned the lake for the purposes originally taken. Those issues are not before us. The trial court ignored this evidence, as we do, because the issue is what was taken in 1955, not what practice or use may exist today.
Affirmed.
Purtle, J., dissents. | [
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John I. Purtle, Justice.
Appellant was convicted of first degree murder and sentenced to life in prison. On appeal, he argues that the court erred: 1) in excusing a prospective juror for cause; 2) in admitting appellant’s two custodial statements in the absence of an effective waiver of his right to remain silent; and 3) in admitting the statements in the absence of proof that they were voluntarily made. We think the trial court was correct in all three instances and affirm.
The prospective juror, a Ms. Black, was challenged by the state for bias. Voir dire examination revealed that Ms. Black had been a defense witness in a recent criminal case in the same court and had been cross examined by the same prosecutor who tried the case at bar. Ms. Black had lived with the defendant in that case before his imprisonment, and she still considered herself his girlfriend. She felt that her boyfriend had been treated unfairly. She had visited her boyfriend in jail, and on two occasions, had spoken with the appellant there. Ms. Black’s sister regularly called the appellant and visited him in jail. There was no response to the court’s question to the entire panel of whether anyone was acquainted with the appellant, but it is fairly clear from the record that Ms. Black was not then in the courtroom.
Ms. Black did say that she could disregard her feeling that her boyfriend had been treated unfairly. She said that her sister’s relationship with the appellant would cause her no problem or embarrassment at home in the event appellant was convicted. She said that she was not prejudiced against the state and that she could render an unbiased verdict and consider the full range of punishments.
Ms. Black did not have “implied bias” as our statute defines the term. Ark. Stat. Ann. § 43-1920 (Repl. 1977). In cases of actual bias, the ruling is discretionary with the trial court. Ark. Stat. Ann. § 43-1919; Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983). We will not reverse a ruling on juror qualifications absent an abuse of discretion. Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971).
Arkansas Stat. Ann. § 43-1919 defines actual bias as “the existence of such a state of mind on the part of the juror, in regard to the case or to either party, as satisfies the court, in the exercise of a sound discretion, that he can not try the case impartially, and without prejudice to the substantial rights of the party challenging.” Jurors are presumed unbiased and the burden of proving actual bias is on the party challenging the juror. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984).
In Linell, and in Allen, supra, we stressed the trial court’s superior opportunity to observe the prospective j uror and assess his demeanor. We recognize that the trial court’s discretion is not unlimited. We also recognize that these facts do not present as clear a case of actual bias as some we have considered before. See, e.g., Grigsby v. State, 260 Ark. 499, 542 S. W.2d 275 (1976). We are not prepared to hold, however, that a prospective juror must admit his bias before the trial court may excuse him. In Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980),- we held that a juror’s candid answers indicating bias could not be overcome by routine statements to the effect that he would be fair. We see no abuse of discretion in the trial court’s decision to excuse the juror. We do not mean to imply that the state has the right to a jury of its own choosing because it does not.
The appellant made two custodial statements, each preceded by his execution of a “rights form.” The forms are used by the police to ascertain that an accused understands his rights under the law. They enumerate an accused’s rights to remain silent and to have the aid of an attorney. The last question on the forms at issue reads: “Do you understand, that you may waive the right to advice of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire?” Appellant answered this question in the affirmative before making each statement.
Appellant argues that since the forms contain no express waiver of his rights, none can be inferred from the forms. We agree with that proposition, but hold that there was sufficient independent evidence which, when considered with the forms, supports the trial court’s finding of a valid waiver.
We strongly feel that a form used to support the state’s contention that an accused knew and waived his rights should contain express language to that effect. See Conti v. State, 10 Ark. App. 352, 664 S.W.2d 502 (1984). On the other hand, it is clear that such a form is not a prerequisite to a finding that the statement is voluntary. North Carolina v. Butler, 441 U.S. 369 (1979); Cagle v. State, 267 Ark. 1145, 594 S.W.2d 573 (Ark. App. 1980). The issue on appeal is whether the trial court properly found, based on the totality of the circumstances, that the statements were voluntary. In this context, the statements were voluntary if the accused made a knowing and intelligent waiver of his right to remain silent. Cagle, supra.
Appellant was familiar with the criminal justice system. He had previously been arrested between 10 and 25 times and he repeatedly stated that he fully understood his rights. The last question on the forms, quoted above, carries a clear implication that one who proceeds to make a statement will have waived his rights. The statements in question were made immediately following execution of the forms and additional questioning by the police to ensure that appellant understood his rights. Appellant’s answers to those questions indicated that he knew the difference between understanding his rights and waiving them. The totality of the circumstances clearly supports the trial court’s ruling. The trial court did not err in admitting the statements into evidence. We agree with the trial court that the written form would be stronger evidence if an express waiver was included.
The appellant’s final argument is that the statements should not have been admitted into evidence because he was coerced and threatened into making them.
Custodial statements are presumed to be involuntary. The state has the burden to prove otherwise. This court makes an independent review of the totality of circumstances on the issue, and will reverse only if the trial court’s finding is clearly against the preponderance of the evidence. Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (supplemental opinion, 1984); Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983); Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975).
The testimony is in conflict on the issue of voluntariness. Appellant testified that he was struck on the head and threatened. Appellant’s mother testified that appellant had knots on his head and that appellant told her that he had been beaten. Appellant also testified that he was told that he was not waiving his rights by signing the forms.
Three police officers, on the other hand, testified generally, that the appellant was not threatened, beaten, enticed or coerced into making the statements. One officer testified that appellant and all officers who had come in contact with him had been treated for lice and that the medicine stuck to the hair and was difficult to wash out. A psychiatrist testified that appellant was of low average intelligence. Appellant had been arrested and read his rights many times before.
The conflicting testimony presented issues of credibility to be resolvéd by the trial court. State v. Graham, 277 Ark. 465, 642 S.W.2d 880 (1982).
The “totality of the circumstances” approach consists basically of two components: the statements of the officer and the vulnerability of the accused. Graham, supra. In this case, the statements of the officers were nothing unusual or illegal, at least according to their testimony. There were no promises, threats or coercive tactics. This accused was perhaps more vulnerable than some in one way, and less so in another. Appellant was of low average intelligence, suggesting some vulnerability, but he had been arrested many times, suggesting some sophistication in these matters. The trial court’s decision was hot clearly against the preponderance of the evidence on this issue.
Affirmed.
Hickman, J. concurs.
Hubbell, C.J., Hays and Hollingsworth, JJ., dissent, dissent. | [
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Per Curiam.
This litigation is pending in the Pulaski Chancery Court, Third Division. On October 26, 1984, the chancellor entered an order granting the plaintiff’s motion to certify the case as a class action. On November 26, Ford Motor Credit Company filed a petition in this court, No. 84-290, Ford Motor Credit Company v. Judith Rogers, Chancellor, seeking a writ of prohibition to prohibit the chancellor from proceeding with the case as a class action. The petition for prohibition was accompanied by a record of the pleadings and order in the chancery court, including Ford Motor Credit Company’s notice of appeal from the October 26 certification order, but not including the testimony at a hearing upon which the order was based. The petition for prohibition is still pending, only the petitioner’s brief having been filed.
On December 21 Ross Nesheim and others, self-styled appellees, filed a motion which was numbered by the clerk as 84-318 and captioned Ford Motor Credit Company, Appellant, v. Ross Nesheim et al., Appellees. The motion asked (I) that the record in the prohibition case be treated as the record in this appeal, and (2) that the appeal be dismissed for want of a final order in this court.
As Ford Motor Credit Company’s response points out, no appeal has been perfected from the October 26 certification order. The mere filing of a notice of appeal in the trial court does not transfer the case to this court. There being no appeal subject to dismissal, and no record in the case, the motion to dismiss the appeal is denied and this case, Number 84-318, is stricken from the docket.
(By inadvertence, the Court handed down a per curiam order on January 14, denying the motion to dismiss the appeal, but no opinion accompanied the order. The present opinion states the Court’s position in denying the motion to dismiss the appeal.) | [
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Darrell Hickman, Justice.
Allen Lynn Penn was convicted of the capital murder of Anthony Faherty, a service station and convenience store clerk, who was shot during a robbery on February 8, 1983, in Little Rock, Arkansas. The death penalty was waived by the state and Penn was sentenced to life imprisonment without parole.
Penn raises three arguments on appeal. First he makes the argument that since Arkansas’ capital murder and first degree murder statutes overlap, they are unconstitutional because one charged with murder during the course of a felony can either be charged with capital murder or first degree murder, depending on the whim of the state. We explained in Cromwell v. State, 269 Ark. 104, 598 S. W.2d 733 (1980), why the overlap was not unconstitutional under the void for vagueness doctrine. Penn also argues that the statute violates his right to equal protection. That argument was likewise rejected in Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981). It would serve no purpose to reiterate those views which we still hold.
Penn’s other two arguments are virtually inseperable. He challenges the sufficiency of the evidence but concedes this argument hinges on whether we rule that his in-court identification by an eyewitness should have been suppressed. He states that the identification by Joe Bailey, a taxi driver, was inherently unreliable and therefore resulted in a denial of due process.
To understand Penn’s argument a recitation of the facts leading to the identification is necessary. At about 2:30 a.m. on February 8, Joe Bailey pulled his taxi into the station where Faherty was working. He saw a man with a shotgun inside. The man turned and pointed the gun at Bailey. Bailey fled. Bailey encountered officer Valerie Staley and reported the incident. Bailey then returned to within about a half block of the scene to see what would transpire. The same morning the robbery occurred, Bailey described the gunman as being about 5'10" or 5'11". About four hours after the robbery, he was shown a lineup in which Penn was the second man. Bailey identified Penn and the first man as “look alikes” of the robber. The first man was 6' or 6'1". Bailey made no positive identification.
On February 10, two days after the lineup, two detectives took Bailey to the scene. One dececdve stood inside the store and raised and lowered himself so that Bailey could better determine the robber’s height. After that Bailey said the gunman was 5'8"or 5'10". On March 1 Bailey went to the police station and reported that he had recognized the gunman in the lineup but had decided to be silent because of fear of retaliation. He said after discussing it with his wife he decided to come forward. He identified Penn as the gunman and then verified that identification by viewing a photograph of the lineup. Bailey identified Penn at trial.
Prior to trial Penn moved that the identification be suppressed. He argued then and now that the procedure on February 10 to purportedly help Bailey determine the height of the gunman more accurately was merely a pretext to eliminate the number one man in the lineup and, therefore, make Bailey more likely to identify Penn.
The trial court held an omnibus hearing to determine whether the pretrial procedures tainted the in-court identification and ruled there was no taint. That preliminary ruling is a mixed question of law and fact, and we do not reverse the ruling unless it is clearly erroneous. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). Whether an in-court identification meets constitutional standards is a question for the trial court. Banks v. State, 283 Ark. 284, 676 S. W.2d 459 (1984). Factors for determining the reliability of an in-court identification include the witness’ opportunity to view the defendant, the time lapse between the crime and the identification, the level of certainty of the identification, and the accuracy of the prior description given by the witness. Banks v. State, supra. We do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of misidentification. Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984); Simmons v. United States, 390 U.S. 377 (1968). Once the trial court permits the use of identification testimony as evidence, it is for the jury to decide what weight it is to be given. Wilson v. State, supra.
We find no error in the admission of the identifiction testimony. Bailey testified that the lights were on in the store and that he was absolutely positive Penn was the man inside with the shotgun. There is no evidence at all that the police encouraged Bailey’s identification of Penn. Indeed, the police corroborated Bailey’s testimony that he came in voluntarily on March 1 to identify Penn.
Furthermore, James Franks testified that, as he passed the station, he saw a man inside with a shotgun robbing the clerk. He also saw a black and white cab pull into the station and leave quickly. That is the type of cab driven by Bailey. Franks was unable to identify the gunman. Officer Staley, whom Joe Bailey notified after leaving the scene, testified that she had seen Penn on the same corner where the station is about an hour before the robbery.
Bailey’s testimony, then, was corroborated to some degree by the evidence of the other witnesses. Whether Bailey’s reason for not identifying Penn earlier was credible was for the jury to decide. See Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980).
The only evidence Penn offered was through one of his cellmates and his cellmate’s girl friend. They both testified that they had been at the station about 1:30 a.m. the morning of the robbery and saw a man — not Penn — in the back of the store acting suspiciously. Again, this was a matter of credibility for the jury to decide. We find that the evidence was sufficient to support the conviction and that Penn received a fair trial.
In a related proceeding, Penn petitioned this court for a writ of error coram nobis, which we granted. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Penn had a hearing to determine whether a confession to the murder of Anthony Faherty by Donald Lewis would entitle him to a new trial. At the hearing Donald Lewis refused to testify and the judge ruled that Penn would not be allowed a new trial. Penn does not question the correctness of that ruling in his appeal.
Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. At the omnibus hearing, Penn’s counsel asked that Penn’s presence not be required so that Joe Bailey would not have “one free look” at Penn, and thus bolster his identification of Penn. The trial court refused the request and Penn objected. The record does not reflect whether Bailey was present, and there is no evidence that Bailey’s in-court identification of Penn was bolstered by this procedure. We find no prejudicial error in the points argued or in the other objections abstracted for review.
Affirmed. | [
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Robert H. Dudley, Justice.
The appellants, Dan Wallace and Loc Sec Kui, are the owners and operator’s of Sarg’s, a tavern and pool hall in Sebastian County. The appellee, Albert Dustin, was injured when appellant, Dan Walace, hit him in the back of the head with three pool cues. The facts surrounding the intentional tort are disputed but may be summarized as follows. The appellee testified that a person of the bar, Carl Fletcher, walked from the bar to the table, put his hands in his pockets, and said to the appellee “I want you.” Appellee perceived a threat from Fletcher’s words and actions and picked up a chair and threw it to one side of Fletcher. Appellant, Dan Wallace, who was tending bar, shouted at the two men to stop, and the potential combatants started walking toward the door. Appellant came around the bar and hit appellee on the back of the head with three pool cues. This version was corroborated by appellee’s daughter.
Appellant Dan Wallace’s account of the event was that he was cleaning the pool tables and picked up some pool cues to return them to the rack when he heard a crash. He turned and saw appellee throwing chairs. He came toward the appellee, who had another chair in his hand, and said “Al, put the chair down, don’t do that.” Appellee looked at appellant and started lifting the chair. When he did, appellant, who intended to strike him on the shoulder, hit him on the back of the head with the pool cues. Appellant Wallace contends that he was justified in taking such action because he was concerned for the safety of his other patrons. This version was corroborated by Fletcher.
The jury returned a verdict for $1,500.00 in compensatory damages and $1,500.00 in punitive damages. We affirm the judgment. Jurisdiction of this tort case is in this court pursuant to Rule 29(1) (o).
Appellants first contend that the trial court erred in •failing to grant the defendant’s motion for a directed verdict on punitive damages. An award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice might be inferred. Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983). “Before punitive damages may be allowed it must be shown that in the absence of proof of malice or willfulness there was a wanton and conscious disregard for the rights and safety of others on the part of the tortfeasor.” Dalrymple v. Fields, 276 Ark. 185, 188, 633 S.W.2d 362, 363 (1982). Negligence alone is not sufficient to support an award of punitive damages. Id.
In reviewing the denial of a motion for directed verdict, this court looks to whether there is any substantial evidence from which the jury could possibly find for the party opposing the motion. The evidence is viewed in the light most favorable to the party opposing the motion. We will affirm if there is any substantial evidence to support the jury’s findings. Lindsey v. Watts, 273 Ark. 478, 621 S.W.2d 679 (1981).
When viewed most favorably to appellee, the proof is that the appellee, in response to a provocative remark by Fletcher, began throwing chairs in Fletcher’s direction. Appellant Wallace told the man to leave. Appellee was on his way out of the bar and had his back turned when Wallace struck him on the head with three pool cues. Wallace admitted hitting appellee on the shoulder and that appellee had not made any move to leave the bar.
This evidence is sufficient to go to the jury on the issue of whether appellant intentionally struck appellee with conscious indifference to the consequences and was subject to an award of punitive damages. See Freeman, supra. The motion for a directed verdict was properly refused, and the trial court’s decision on this point is affirmed.
Appellants next contend that the j ury instructions were erroneous. They argue that the jury should not have been instructed on the definition of negligence when negligence was not alleged in the complaint and was not proven. However, at trial appellants did not object to the instruction which defined negligence. A party’s failure to object to an instruction at trial precludes argument here that the instruction was improper. Baxter v. Grobmyer Bros. Const. Co., 275 Ark. 400, 631 S.W.2d 265 (1982). Appellant argues that the standard for awarding punitive damages was not set out in an instruction for the jury. Again appellants failed to object to the instruction or to proffer one of their own. This failure at trial precludes their agrument on appeal. See Baxter, supra. Appellants next contend that the instructions do not make it clear that the defense of justification may be used to mitigate an award of punitive damages as well as compensatory damages. Again, this argument was not raised below and will not be considered on appeal. See Baxter, supra.
Appellants assert in their final point that there was no substantial evidence to support the verdict for compensatory damages. Appellants point to inconsistencies in the appellee’s proof and to appellant Wallace’s defense of justification and argue that there is no substantial evidence to support the verdict. They argue that the state of the evidence indicates that the jury was prejudiced against them.
This case hinges on the credibility of various witnesses’ testimony. It is a well settled rule of appellate review that it is not the function of the appellate court to judge the credibility of witnesses; that is the function of the jury. Warren v. State, 272 Ark. 231, 613 S.W.2d 97 (1981). In determining the sufficiency of the evidence, the appellate court reviews the evidence and all reasonable inferences therefrom in the light most favorable to appellee. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983). While it is true that a tavern keeper is under a duty to use reasonable care and vigilance to protect guests or patrons from reasonably foreseeable injury, mistreatment, or annoyance at the hands of other patrons, Ind. Park Bus. Club v. Buck, 252 Ark. 513, 479 S.W.2d 842 (1972), the jury could reasonably have believed that appellant Wallace went beyond “reasonable care and vigilance” when he intentionally struck appellee. Appellee suffered a cut on his head which required eighteen stitches to close; he was out of work for eight days; and there was testimony that he made $425.00 per week. Lastly, he complained of headaches and dizziness for some period of time after the incident. This evidence is sufficient to support an award of compensatory damages.
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Webb Hubbell, Chief Justice.
Appellants, heirs at law of Mills O. Pierce, deceased, appeal from a consolidated proceeding where the court below declared valid a will, a deed, and two trusts, all executed by Mills O. Pierce. Appellants argue that: (1) the trial court erred in finding that Mills O. Pierce was competent at the execution of his will and in finding that the execution of the will was a free and voluntary act done without undue influence; (2) the court erred in refusing to shift the burden of proof; (3) the court erred in finding the deed was supported by consideration. We affirm.
Mills O. Pierce, aged 89, and his brother Vernon Pierce, aged 82, had lived all their lives on their family farm until Vernon’s death on April 9, 1979. After Vernon’s death, Delma Dunn, a neighbor, moved in and stayed with Mills Pierce for seven to ten days. Shortly thereafter Mr. Dunn took Mills Pierce to Walter Niblock, an attorney in Fayetteville who had represen ted Mr. Dunn in the past. The purpose of the first visit to Walter Niblock was to discuss Vernon’s estate. Mills Pierce made several subsequent visits to Mr. Niblock where the disposition of Mr. Pierce’s property was discussed. These discussions led to Mr. Pierce’s execution of a will, a deed, and two trusts. The deed conveyed to Delma D. Dunn and Ann Dunn, appellees, the 160 acre farm owned by Mills Pierce for $ 1.00 and appellees’ promise to provide a home for Mr. Pierce until medical determination of his need for nursing home care. The will devised Mr. Pierce’s cash, bank account balances, and certificates of deposit to two trusts and the residuary of the estate to appellees. The two trusts provided scholarships for graduates of Prairie Grove High School. The trustees are Delma Dunn, Robert Shulstad, and Walter Niblock.
Ordinarily the party challenging the validity of a will is required to prove by a preponderance of the evidence that the testator lacked mental capacity or was unduly influenced at the time the will was executed. Thompson v. Orr Estate, 252 Ark. 377, 479 S.W.2d 229 (1972); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).
Undue influence which avoids a will is not the influence which springs from natural affection or kind offices, but is such as results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property, and it must be specially directed toward the object of procuring a will in favor of particular parties. Green, Guardian v. Holland, 9 Ark. App. 233, 657 S.W.2d 572 (1983); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963); McCulloch v. Campbell, 49 Ark. 367, 55S.W. 590 (1887). The mere fact that a beneficiary is present while a will is made does not give rise to a presumption of undue influence. Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971).
Appellants first argue error in the trial court’s finding that Mills O. Pierce was mentally competent and executed his will by free and voluntary act without undue influence The question of undue influence and mental capacity are so closely interwoven that they are considered together. Neal v. Jackson, 2 Ark. App. 14, 616 S.W.2d 746 (1981); Phillips v. Jones, 179 Ark. 877, 18 S.W.2d 352 (1929).
When Mr. Pierce could not definitely make up his mind about the beneficiaries of his will, the attorney asked him to go home, figure out what he wanted to do, and then come back. At the next meeting, the attorney testified that, although Dunn was present during the initial discussion, he asked Dunn to leave in order to satisfy himself that Mr. Pierce knew what he wanted to do. The attorney stated that he broached the subject of leaving the property to family members but that “I was put in my place in a hurry.” He further stated that Mr. Pierce was “firm in his convictions as to what he wanted to do.” Mr. Pierce’s physician testified that he examined him for arthritis a few days after the execution of the will. The doctor stated he found evidence of a small stroke, but went on to state: “You suspect some of these things, and particularly in a man of his age, but as far as affecting his competency, I did not feel that it did in any way, shape, or form.” Mr. Pierce’s banker testified that Mr. Pierce had always handled his own affairs, had a mind of his own, and made his own decisions. He further stated that during the same month Mr. Pierce was visiting the attorney, Mr. Pierce continued to do his own banking and, in his opinion, was competent. We cannot say the trial court was clearly erroneous in finding that Mr. Pierce had both the testamentary capacity and freedom of will to execute a valid will.
The law regarding mental capacity in the execution of a will is also applicable to the execution of a deed and the creation of a trust. If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without promptings, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument, Garis v. Massey, 270 Ark. 646, 606 S.W.2d 109 (Ark. App. 1980); Pledger v. Birkhead, 156 Ark. 443, 246 S.W. 510 (1923). The mental capacity oí the maker of a trust or deed is presumed, and the burden rests on the contestants to prove incapacity by a preponderance of the evidence. Union National Bank of Little Rock v. Smith, 240 Ark. 354, 400 S.W.2d 652 (1966); Gibson v. Gibson, 156 Ark. 528, 246 S.W. 845 (1923). Thus a finding of requisite mental capacity to execute a will must equally apply to a deed created on the same date as the will and a trust recited in the will.
Probate and chancery cases are tried de novo on appeal, but we will not reverse the findings of the probate judge or the chancellor unless clearly erroneous. ARCP 52. After giving due deference to the superior position of the chancellor to determine the credibility of the witnessess and the weight to be given their testimony, we cannot say his finding that appellants failed to prove undue influence by a preponderance of the evidence was clearly erroneous.
Appellants further contend the trial court erred in refusing to shift the burden of proof. In the case of a beneficiary who procures the making of a will, a rebuttable presumption of undue influence arises which places on the beneficiary the burden of proving beyond a reasonable doubt that the testator enjoyed both required mental capacity and freedom of will. Park v. George, Pers. Rep., 282 Ark. 155, 667 S.W.2d 644 (1984); Greenwood, Guardian v. Wilson, Adm’x., 267 Ark. 68, 588 S.W.2d 701 (1979). A threshhold question, then, is whether appellees, who were residuary beneficiaries of the will, procured the making of Mills O. Pierce’s will. In the case of Park v. George, Pers. Rep., 282 Ark. 155, 667 S.W.2d 644 (1984), an attorney who named himself as a beneficiary in the amount of $10,000.00 drew a will for an 88 year old woman who had been hospitalized and sedated and who appeared confused and upset. In the case at bar, Delma Dunn merely drove Mr. Pierce to the attorney’s office and participated in the initial discussions concerning making a will. The court found that Mr. Pierce was possessed of both testamentary capacity and freedom of will. Where a competent individual freely and voluntarily executes his own will, it cannot be said that another procured the making of that will.
Even had the trial court found that Delma Dunn had procured the making of Mr. Pierce’s will, the trial court would have been correct in ruling that the presumption of undue influence in the case of a beneficiary who procures the making of a will does not shift the ultimate burden of proof. In Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970), we were asked to hold that where a proposed will is drawn by a beneficiary, the burden of proof will shift. In Hiler we said, “We hold this burden, in the sense of the ultimate risk of non-persuasion, never shifts from the contestant. This does not, however, conflict with the rule concerning the burden of going forward with the evidence or the burden of evidence.” The result of the presumption of undue influence in the case of a beneficiary who procures the making of a will is merely to shift the burden of proving lack of capacity or undue influence by a preponderance of the evidence remains on the party challenging the will.
Appellants last argue that the chancellor erred in holding the deed was supported by consideration. For $1.00 and the promise of the Dunns to provide a home and care for him for the rest of his life, Mills quitclaimed his 160 acre farm to appellees reserving a life estate for himself. Support deeds are unquestionably valid in Arkansas. Welch v. Brewer, 267 Ark. 763, 590 S.W.2d 325 (1979); Wood v. Swift, 244 Ark. 929, 428 S.W.2d 77 (1968). The owner of property who is mentally competent may dispose of it as he sees fit. O’ Conner v. Patton, 171 Ark. 626, 286 S.W. 822 (1926). When a conveyance is voluntary and absolute on its face, then the question of consideration is immaterial. See Whatley & Wright v. Corbin, 252 Ark. 561, 480 S.W.2d 142 (1972); Szklaruk v. Szklaruk, 251 Ark. 599, 473 S.W.2d 853 (1971). Inadequacy of consideration does not afford grounds for setting aside a voluntary conveyance. Leake v. Garrett, 167 Ark. 415, 268 S.W. 608 (1925). Moreover, the appellees actually provided for over two years the support and care promised in consideration for the property conveyed. The trial court did not err in holding the deed was supported by adequate consideration.
Affirmed.
Purtle, J., dissents. | [
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Per Curiam.
Appellant Donald Webster was found guilty by a jury of aggravated robbery, burglary and theft of property. The trial court set aside the judgment on the theft charge and sentenced appellant to consecutive prison terms of 40 years and 6 years. Appellant brings this appeal.
Pursuant to Anders v. California, 586 U.S. 758 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within SO days. See Rules of the Supreme Court, Rule 11 (h), Ark. Stat. Ann. Vol. SA (Supp. 1985). He did not file a brief. The state concurs that the appeal has no merit.
After midnight on March IS, 1985, a Brinkley couple were awakened by a man standing in the door of their bedroom. The man, who was armed with a knife, demanded money. The couple later identified appellant as the man who had robbed them.
A venireman was excused by the court on the ground that his religious scruples might interefere with his willingness to consider the full range of penalties set by the law. Another prospective juror was excused on the ground that she was evasive in her responses and expressed the intention to do things her way rather than conform to the law. Appellant objected that he was being denied a cross-section of the community as jurors and requested a mistrial. He also charged that the court had unfairly limited voir dire so as to eliminate questions to veniremen about how much credibility they would deem a particular witness to have.
It is well settled that the question of a juror’s qualification lies within the sound judicial discretion of the trial judge and that the appellant has the burden of showing the prospective juror to be unqualified. That discretion will not be disturbed unless it is abused. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). We find no abuse of discretion here. Both jurors had expressed reservations about their ability to conform to the law. An accused is not entitled to a jury with persons who may not be able for whatever reason to follow the instructions of the court. Where the veniremen’s answers are tentative or equivocal, the trial court is in a better position than the appellate court to gauge the attitude of the prospective jurors and decide whether each will weigh the evidence and, if appropriate, consider the penalties provided by law. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983).
There was also no abuse of discretion in the court’s refusal to allow specific questions in voir dire about the credibility of witnesses expected to testify at trial. The trial court may limit questioning once it is established that a juror is or is not qualified. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Appellant’s general objection to the limits placed on his voir dire was not sufficient to establish that he was forced to accept any unqualified juror.
Appellant asked that the state be precluded from using a prior felony conviction to impeach him if he testified. It was argued that Ark. Stat. Ann. § 28-1001, Rule 609, required the trial judge to exercise discretion and weigh the prejudicial effect the prior conviction could have against its probative value. Since the conviction was for grand larceny, a crime involving dishonesty, Rule 609 does not require that the trial court consider the prejudicial effect the use of such conviction may have. James v. State, 274 Ark. 162, 622 S.W.2d 669 (1981). Such consideration is required only when a prior conviction is admissible because of the seriousness of the offense and the offense does not involve dishonesty.
After the defense had pronounced itself ready for trial and the jury had been impaneled, appellant requested a continuance to secure the appearance of a “material” witness. The motion was denied. The decision to grant or deny a continuance is a matter within the trial court’s discretion. The decision will not be reversed on appeal absent an abuse of that discretion. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). Appellant here had ample time to prepare for trial and subpoena witnesses. Moreover, he gave no specific reason for requiring the witness’s testimony. The burden is on the appellant to demonstrate that the trial court erred in refusing to grant the continuance. Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982). Appellant has not met that burden.
Appellant filed a motion to suppress evidence of a lineup. The motion was denied, but since no evidence of the lineup was introduced at trial, no prejudice could have accrued as a result of the ruling.
The court also denied appellant’s motion that he be allowed to sit somewhere in the courtroom besides at the counsel table when the victims were asked to make an in-court identification of their assailant. The apparent basis for the request was the possibility that the in-court identification would be less reliable if the defendant were seated in the place where a defendant ordinarily sits.
The trial judge may control the seating arrangement in the courtroom. Unless appellant suffered some prejudice as a result of being seated with counsel, he has no ground for complaint. See Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984). Reliability of the in-court identification is the key in determining its admissibility. The appellate court will not hold an in-court identification inadmissible without a showing from a totality of the circumstances that clear error occurred. Whitt v. State, 281 Ark. 466, 664 S.W.2d 876 (1984). Here, the victims saw the man for several minutes and were able to describe him to the police. Their in-court identification was positive. When the totality of the circumstances is considered, it was not clearly error to admit the in-court identification. The location of the appellant in the courtroom was not enough to taint the evidence and make it unreliable.
Appellant moved to quash the arrest warrant on the ground it did not specifically name him as having committed the crime. Appellant did not claim that any evidence should be suppressed by virtue of an illegal arrest. Even if the original arrest warrant were defective, a flaw in the manner of arrest is not sufficient cause to set aside a judgment of conviction. Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974).
After the jury was empaneled, defense counsel informed the court that appellant desired new counsel. Appellant explained that he also wanted a different judge and prosecutor because the judge was a Nazi and a Klansman and the prosecutor was a German. He implied that because his counsel was Jewish, he could not receive a fair trial. Appellant was unable to point to any specific instances of bias on the part of the court or prosecutor or incompetence on the part of appointed counsel. An accused is guaranteed a fair trial with competent counsel, not a trial that meets with his approval. See Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982).
From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.
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Darrell Hickman, Justice.
Kenneth Cross, a sergeant with the North Little Rock Police Department, filed suit seeking promotion to the rank of lieutenant. Randy Johnson, who was promoted ahead of Cross, was a named defendant. The circuit court upheld the promotion and denied Cross any relief, finding that Johnson was at the top of a valid list at the time of the promotion. We affirm the court’s decision for to do otherwise would mean a civil service promotion list would be valid for more than one year, a procedure contrary to statute. This is a case of first impression and to our knowledge there is no controlling case law. The facts are important.
The initial promotion list was certified January 21, 1982, with the first three officers eligible for promotion listed in the following order: Bob Scarborough, Don Gilbert and Cross. No promotions were made from this list. The second list was issued December 9, 1982, listing the same officers in the same order. Scarborough was promoted to lieutenant on February 21, 1983, and Gilbert on September 14, 1983. This left Cross at the top of the list. But a third list was certified on December 8, 1983, and Cross was again third, behind officers Randy Johnson and Jerry Lamberson. It was from this list that Randy Johnson was promoted on January 10, 1984.
Cross’ argument is essentially this: there can only be one list for promotion, the list must remain in effect for one year, and a new list is not valid until the old list has expired. Therefore, under his argument the first list made January 21, 1982, could not have been superseded until January 21, 1983; consequently, the second list, while issued on December 9, 1982, actually was effective from January 21, 1983, until January, 1984, making Cross at the top of the eligibility list at the time of Johnson’s promotion. Simply stated, the issue is whether there can be more than one list in effect simultaneously.
The controlling statute, Ark. Stat. Ann. § 19-1603 4th (Repl. 1980), is part of a civil service system governing the police and fire departments in the state. That statute, which provides for eligibility lists for promotion, does not expressly dictate the result in this case. It merely states:
These rules shall provide: ....
4th. For the creation of eligible lists for each rank of employment in said departments in which shall be entered the names of the successful candidates in the order of their standing in the examination. No person . shall be eligible for examination for advancement from a lower to a higher rank until he shall have served at least one (1) year in the lower rank except in the case of emergency, which emergency shall be decided by the Board of Commissioners. All lists for appointments or promotions as certified by the Board of Civil Service Commissioners shall be and remain in force and effect for the period of one (1) year from the date thereof and at the expiration of said period all right of priority under said lists shall cease.
The statute in no way precludes the existence of more than one list. Cross concedes that no promotions were made while two lists were in existence. There are sound reasons why the department should not be limited to one list. Vacancies cannot be foretold with certainty and a valid list must be available at all times. The maintenance of more than one list insures that if the prior valid list is exhausted, then the second list can be used. If Cross’ reasoning were adopted, then the December 9,1982, list would not take effect until January 21, 1983, and would be in effect until January 21, 1984. That means that the December 9, 1982, list would have a life of more than one year, a result clearly not contemplated by the statute, which requires that lists expire after one year. The lists are based on examinations and the one year limitation makes sure that the list accurately reflects the officer’s current qualification to be promoted. We hold that the maintenance of two eligibility lists is not improper and that each should expire one year after it is certified.
We emphasize that there is no evidence, or even a suggestion, that the city used the existence of more than one list or the vacancy to deprive Cross of the position. There is no evidence of manipulation which could conceivably be a vehicle for discrimination.
Affirmed.
Purtle, Dudley and Hollingsworth, JJ., dissent. | [
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Robert H. Dudley, Justice.
The sole issue in this case is whether the petitioner was brought to trial within the period required by the speedy trial rules. A.R.Cr.P. Rules 27 through 30.2. Petitioner, Carolyn Chandler, was arrested for murder on August 14, 1981. She told the arresting officers that she resided on Battery Street in Little Rock. Three days after her arrest she was taken before the Little Rock Municipal Court to have the amount of bond set. By that time she had decided to move back to her mother’s home at 624 North Wood in Stuttgart. Her mother, Amelia Scott, posted a cash bond for her, and petitioner told the police and the municipal court personnel that she was moving back to Stuttgart. The bond release form clearly shows her address as 624 North Wood, Stuttgart, phone number 673-4209, and that her local relative, Amelia Scott, had the same address and telephone number. Petitioner was released on the cash bond and bound over to the circuit court. The municipal court clerk forwarded the bond, but not the bond release form, to the circuit clerk. On October 6,1981, the circut court mailed a notice to petitioner, at the former Little Rock address, advising her that her plea and arraignment was set for October 14, 1981. Notice was not sent to her at the Stuttgart address. She did not appear for plea and arraignment, and an alias warrant was issued. Her bond was forfeited without notice. It is undisputed that petitioner resided at the Stuttgart address from the time of her release on bond until she was arrested on an alias warrant in March, 1984. The circuit court refused to dismiss for failure to grant a speedy trial and set the case for trial on the merits. Petitioner seeks a writ of prohibition. We grant the writ because the speedy trial rules have not been followed.
An accused, the victim, and the public are entitled to have criminal trials promptly held. Accordingly, we have promulgated the speedy trial rules. In order to ensure compliance, the speedy trial rules provide that an accused, if not promptly tried, will be absolutely discharged. Rule 30.1(a).
In the case at bar, the petitioner should have been tried within eighteen months from the date of her arrest. Rules 28.1(c) and 28.2(a). Since she was arrested on August 14, 1981, and trial was not scheduled until September 10, 1984, the charges must be absolutely discharged unless one of the authorized periods of exclusion is applicable. Rule 28.3. The burden is upon the State to show good cause for an untimely delay in the trial. Williams v. State, 275 Ark. 8, 627 S.W.2d 4 (1982). The State contends that the period during which petitioner was in Stuttgart should be an excluded period because petitioner’s whereabouts were unknown to the circuit court. See Rule 28.3(e). The argument is premised upon the failure of the municipal clerk to forward to the circuit clerk the bond release form which contained petitioner’s Stuttgart address.
The State has a duty to make a diligent, good faith effort to bring an accused to trial. The failure of the State to check the available court records or otherwise demonstrate any diligence in locating the accused over a two and one half year period can not be excused. To hold otherwise would encourage needless delays in the trial of criminal cases.
The writ of prohibition is granted. | [
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Hart, J.
On the 24th day of November, 1905, L. & E. Wertheimer brought suit before a justice of the peace in Chicot County against E. C. Jackson for $292.50 alleged to be due them by Jackson for whisky and other merchandise sold to him.
Jackson answered and admitted the indebtedness. He also filed a cross complaint against H. F. Bailey and Gaines Robinson, alleging that he had purchased the license, stock of goods and place of business of said H. F. Bailey for the sum of $4,812.20, on which he had paid, in three monthly installments, $1,800; that, becoming dissatisfied with the business and aware that he had paid a grossly excessive price for same, he surrendered to said Bailey the said business, in which he had invested $300 of his own money and turned over to said Bailey, $230 that he had in cash in the bank at the time, submitting to the said Bailey invoices of all goods purchased and all unpaid bills; that, in consideration of his surrendering said business and all of his interest in the $300 of his personal funds invested therein and the $230 check for cash in bank, the said Bailey was then and there to assume and pay off the outstanding indebtedness of Jackson, consisting of the claim of the Wertheimers and another small claim, amounting to less than $30. He further alleged in his cross-complaint that Bailey had on the same day traded said business to Gaines Robinson for a sum amounting to $3,544.20, being $815 in excess of the amount due Bailey from Jackson, which said excess was to cover the outstanding bills and to pay for some goods used by Jackson in his business which were not covered in the original trade between Jackson and Bailey. He asked that he be grant- eel judgment against Bailey and Robinson for the sum of $292.50, the amount claimed by the Wertheimers.
On November 29, Bailey answered the cross-complaint, denying that he assumed the unpaid bills of Jackson, including that of the Wertheimers, and alleging that Jackson had on his books outstanding accounts amounting to about twice as much as Jackson owed for goods, and that the assumption was by Robinson, and not by himself, Bailey, and he further undertook to account for the $815 excess, in which he included $320 for four months’ rent, being for the months of September, October, November and December, 1905, when Jackson surrendered possession of the premises on September 6, delivering the same into the possession of H. F. Bailey, who placed Gaines Robinson in possession.
The court rendered judgment in favor of T. & E. Wertheimer against E. C. Jackson for $292.50, and rendered judgment on the cross complaint in favor of E. C. Jackson and against H. F. Bailey and Gaines Robinson for the same amount. From this judgment Bailey appealed to the circuit court, giving bond with John G. B. Simms as surety. Execution was issued on the judgment in favor of Wertheimer and against Jackson. The same was stayed for six months, and then .paid by Jackson and" his sureties. .......*
During his lifetime, Jackson assigned and transferred his' judgment against Bailey to Samuel Burgie and Samuel Epstein, who had advanced him money, and upon his death, same having been suggested to the court, Samuel Burgie was appointed special administrator to conduct the suit in circuit court. In the circuit court the cause was treated by the parties as a suit by Jackson against Bailey for $292.50, the amount which L. & E. Wertheimer had recovered against him.
Jackson introduced in evidence the original contract of purchase from Bailey to him. It read as follows: “This agreement between H. F. Bailey & Co., of the first part, and E. 'C. Jackson, of the second part, witnesseth: Said first parties hereby sell and transfer to second party all its stock of whisky, beer, cigars and fixtures, unexpired license at cost, with 10 per cent, added as cost of carriage on said stock. This sale is conditional, and considered as a lease during the period of installment payments herein agreed upon, and said-business is to continue under the old firm name and by Jackson as agent. Said Jackson shall pay for said property in equal monthly installments at the end of each month, beginning June the first next, the amount to be specified in the notes to be fixed by the invoice of said property, and said notes and invoice are a part of this contract. Said Jackson agrees to pay the rent due by the said first parties at the rate of $100 per month in advance, and .to have possession of all rented property. Said Jackson agrees to conduct an orderly business, and, if he fails so to do, to return said property to first party. Said first parties agree to aid and assist in every way they can to secure said business to be a success, and if the trade of the business becomes at any time so dull as to hinder second party in his monthly payments, first party agrees to extend same a reasonable time. Said second party agrees to use from the warehouse of the first party exclusively such goods as are stored therein, and pay cost for the same, or cost and 10 per cent, carriage, as they are withdrawn and needed by second party in the business. It is understood the invoice of the stock of goods and fixtures, which are situated in the Robinson building, and which are the goods leased hereby, amounts to $4,812.50, and the unexpired license amounts to $800. The second party’s notes are eight in number, and for $601.50 each, and when said notes are paid the property belongs to the said Jackson, and said Bailey & Company will execute a bill of sale for all the same, and all of said notes draw 8 per cent, interest from date until paid. The jugs and bottles are included in this sale, and are partly in warehouse.”
He also introduced W. D. Hauptman and C. M. Mathews, who testified in substance the matters hereinbefore set out in his cross-complaint.
Bailey, who became a witness for himself, denied the matters set up in Jackson’s cross-complaint, and in substance said that he had not agreed with Jackson to pay his outstanding indebtedness, incurred while he was running said saloon. He also introduced the written contracts between Jackson and Robinson, and between Robinson and himself. They read as follows:
“Know All Men by These Presents:
“That, whereas, Gaines Robinson, party of the first part, desires to purchase from T. C. Jackson, party of the second part herein, the saloon business now owned by the said party of the second part, and situated in the Robinson building in the town of Lake Village, Arkansas; and, whereas, the said party of the second part is indebted to one H. F. Bailey in the sum of $3,544.20 (thirty-five hundred and forty-four and 20-100 dollars), now the party of the first part agrees to assume said indebtedness and pay the same unto the said H. F. Bailey according to the tenor of a certain contract now existing between the said H. F. Bailey and said party of the second part, bearing date the first day of May, 1905, where the said Bailey sold unto the said party of the second part the aforesaid saloon property, and the said party of the second part for the consideration aforesaid agrees to and by this contract does sell, transfer, assign and convey unto the said Gaines Robinson, party of the first part hereto, all merchandise, goods and wares, and all fixtures and book accounts in said saloon building, and also transfers unto the said Robinson his lease upon said building, and all other rights, things and property which the said Jackson acquired from the said Bailey by the aforedescribed contract, and the said Jackson does immediately upon the signing of this contract deliver the possession of the aforedescribed property unto the said Robinson.
“In testimony whereof witness our hands this 6th day of September, 1905.
“L. C. Jackson,
“Gaines Robinson.”
“Know All Men by These Presents:
“Whereas, L. C. Jackson has this day sold and transferred his saloon business, situated in the Robinson building, unto Gaines Robinson, and the said Gaines Robinson has agreed to and with the said Jackson to assume the said Jackson’s indebtedness to me, amounting to thirty-five hundred and forty-four and twenty-one hundredths dollars, and the said Gaines Robinson does sign this instrument, and agree and covenant with me that he will assume and pay said sum of money. Now, in consideration of the premises above set out, I hereby release the said L. C. Jackson from any further and all liability to me on account of said indebtedness, and I, Gaines Robinson, hereby agree to and with H. F. Bailey that I will pay unto the said H. F. Bailey the aforesaid indebtedness.
“Witness our hands and seals this the 6th day of September, 1905.
(Signed) “Gaines Robinson,
“H. F. Bailey.”
Bailey then moved the court to strike out the testimony of Hauptman and Mathews because it varied the terms of the written contract. The court excluded the testimony. Jackson then offered to prove by Gaines Robinson and by Allen Beadel, the attorney who prepared the contracts, that the sale was made by Bailey to Robinson, and that Bailey agreed to pay the debts incurred by Jackson in running the business, but the court refused to permit the introduction of the testimony. The jury was then instructed to return a verdict for Baile)', which was accordingly done. Jackson has duly prosecuted an appeal from the judgment rendered.
The court erred in excluding the testimony of Hauptman and Mathews, and in refusing that of Robinson and Beadel. The testimony did not go to the extent of varying or contradicting the written contracts. It tended to show a separate and independent verbal contract between Bailey and Jackson, and was admissible for that purpose. Ramsey v. Capshaw, 71 Ark. 408.
It was not a collateral undertaking on the part of Bailey to answer for the default of Jackson, but it was an original undertaking on his part for a valuable consideration to pay the debts Jackson incurred while running the business, and was not required to be in writing. The question of the truth or falsity of the testimony should have been submitted to the jury. Gale v. Harp, 64 Ark. 462.
For the error in excluding the testimony.as indicated the judgment is reversed, and the cause remanded for a new trial. | [
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FrauRnthar, J.
This was a suit brought by the plaintiff, T. W. Steele, against the defendant, A B. Briggs, for the foreclosure of a real estate mortgage. The complaint alleged that on January 2, 1905, the defendant executed to plaintiff three notes, aggregating $500, for merchandise and moneys which were thereafter to be furnished; that plaintiff made such advances to the amount of said notes and also additional advances, upon which was a balance due of $901.16; that on the day of the execution of the notes defendant and his wife duly executed to plaintiff a mortgage upon certain land to secure the above indebtedness. He sought a recovery for the above alleged balance and a foreclosure of the mortgage. The defendant filed an answer, in which he admitted the execution of the notes and mortgage, but in general terms denied that he was indebted to plaintiff and pleaded payment. Subsequently, by way of amendment to his answer, he interposed a plea of usury.
The clause in the mortgage which described the indebtedness which it secured is as follows:
“The foregoing conveyance is on condition that whereas the said A. B. Briggs is justly indebted to the said T. W. Steele in the sum of five hundred dollars for money loaned the said Briggs, as evidenced by three certain promisory notes of date of January 2, 1905, as follows towit: One note for two hundred dollars due and payable January 1, 1906; one note for two hundred dollars due and payable on or before -January 1, 1907; and one note for one hundred dollars, due and payable on or before January 1, 1908, each note bearing interest at the rate of ten per cent, per annum from date until paid.
“Now if the said A. B. Briggs shall pay or cause the said notes to be paid with interest, according to the tenor and effect thereof, then this instrument shall be null and void.”
The only evidence adduced in the trial of the case was the testimony of the plaintiff and his book-keeper. They testified to the correctness of the indebtedness claimed by plaintiff, and that sometime before the institution of the suit the defendant examined with them each item of- the indebtedness and admitted and agreed to its correctness; and that defendant promised to arrange the matter by executing to plaintiff a deed to the land and receiving from the plaintiff a bond for title therefor, which in effect would have given defendant time in which to make redemption from such conveyance; and they testified that instruments of writing were drafted in accordance with that promise, but that afterwards defendant failed and refused to comply with that promise.
It would appear from the testimony that at the time of the execution of said notes and mortgage the defendant was only indebted to the plaintiff in the sum of $30.69, and that the notes and mortgage were given to cover merchandise and moneys which plaintiff would thereafter advance. The three notes were executed respectively for $200, $200 'and $100, and matured respectively on January 1, 1906, 1907 and 1908, and each of the notes bore ten per cent, interest from date. The plaintiff furnished to - defendant from time to time during the above years merchandise and moneys upon the consideration of said notes, and also furnished merchandise and moneys in addition thereto, and this additional indebtedness, together with the advancements made on the notes, amounted to the aggregate sum of $1,192.65. In addition to the claims for indebtedness for the said merchandise and moneys, the plaintiff testified that defendant owed for two notes which had been executed by defendant to the father of plaintiff on January x, 1900, and which notes were then the property of plaintiff. These last two notes with interest amounted at the time of the trial to $322., Plaintiff also testified that defendant owed him.$5 for drafting the written documents in 1908.
It appears from the testimony that the plaintiff was to charge interest on -all moneys advanced at the rate of ten per cent, per annum, and that upon all merchandise furnished he should charge in the way of profit a commission upon the price paid by him to jobbers and wholesale dealers, the commission to be ten per cent, for the first year and twenty per cent, for the second year. The defendant made several payments from time to time, which aggregated $634.12.
The chancellor rendered a judgment in favor of the plaintiff for the total sum of $901.16, in which were included all of said notes, and decreed the same a lien upon the land by virtue of said mortgage and a foreclosure thereof.
It is urged by the defendant that, 'by virtue of the above agreement providing for a charge for interest and commissions, the indebtedness, and mortgage were tainted with usury, and are therefore void.
To constitute usury, there, must either be an agreement between the parties by which the borrower promises to pay, and the lender knowingly receives, a higher rate of interest than the statute allows for the loan or forbearance of money; or such greater rate of interest must be knowingly and intentionally “reserved, taken or secured” for such loan or forbearance. It is essential, in order to establish the plea of usury, that there was a loan or forbearance of money, and that for such forbearance there was an intent or agreement to take unlawful interest, and that such unlawful interest was actually taken or reserved.
The wrongful act of usury will never be imputed to the parties, and it will not be inferred when the opposite conclusion can be reasonably and fairly reached. Scruggs v. Scottish Mortgage Co., 54 Ark. 566; Garvin v. Linton, 62 Ark. 370; Leonhard v. Flood, 68 Ark. 162; First National Bank v. Waddell, 74 Ark. 241; Citizens’ Bank v. Murphy, 83 Ark. 31; Eldred v. Hart, 87 Ark. 534.
In -this case there is no evidence that there was any agreement to charge for the loan of the money a greater rate of interest than ten per cent, per annum; and the commission that was charged on the goods was for the purpose of securing a profit on the goods, and not an usurious rate of interest on money loaned. The plaintiff purchased the goods from jobbers and wholesale dealers, and he sold them to the defendant at a profit of from ten to- twenty per cent, on the cost price to him. Such a transaction, if made in good faith for the purpose of securing a profit on the goods sold, and not for the purpose of evading the usury law, is not itself usurious and invalid. Brakefield v. Halpern, 55 Ark. 265.
In addition to this, the charges do not exceed the rate of ten per cent, per annum when the interest is calculated upon the moneys for the actual time that had run. The .chancellor made a finding that the transaction w.as not usurious, and we are of opinion that his finding is well sustained by the evidence.
But -the mortgage in this case was executed to secure the ■payment of $500, evidenced by three notes, which are described therein, and the mortgage does not provide for the security of any other indebtedness. A mortgage which expressly states that it was given as security for an indebtedness which is specifically named in amount and kind cannot be made to cover other obligations and liabilities. It cannot be made to cover other debts or a larger amount of indebtedness than that which is expressly stated therein. It cannot be enlarged by parol agreement made at the time of its execution, and a parol agreement made subsequently to enlarge the indebtedness which it is to secure will be inoperative. Whiting v. Beebe, 12 Ark. 482; Johnson v. Anderson, 30 Ark. 745; Martin v. Halbrooks, 55 Ark. 569; Moore v. Terry, 66 Ark. 393; Hughes v. Johnson, 38 Ark. 285.
When a mortgage is executed for the express purpose of securing a particular indebtedness therein named, the holder of the mortgage cannot “tack” to that indebtedness any other debt or demand he has against the mortgagor, so as to stretch the security of the mortgage to cover that also. It therefore follows that the mortgage herein did not cover the two notes executed by the defendant to T. W. Steele on January 1, 1900, nor the charge of $5 for the drafting of the deed and instruments in 1908.
The defendant in his answer also pleaded payment, but generally, and without stating in what -manner payments were made or the amounts thereof. He introduced no testimony whatever. In their reply brief, counsel for appellant for the first time refer to this issue, and attempt to sustain it upon the testimony of the plaintiff. But in his testimony the plaintiff denied that the indebtedness was paid. The burden of proof to show and establish payment was on the defendant. This has not been done.
The total amount of all the debt, including interest, as represented by all the notes and account to the date of the decree below, was $1,519.65. The payments of $634.12, applied to the debts not represented by notes, reduce that total to $885.53. In this balance are included the two notes executed in 1900 and the charge of $5 for the drafting of papers in 1908, and these with the interest calculated thereon amounted to $327; and this, being deducted from the last above sum, leaves $558.53, which is the amount due upon the notes described in and covered by the mortgage, with interest to the date of the decree. To that extent only should a lien be declared upon the land by virtue of the mortgage. For the said sum of $327 the plaintiff should have a personal judgment only against the defendant.
The decree is reversed, and the cause is remanded with instructions to enter a decree in accordance with this opinion.
Opinion delivered October 11, 1909. | [
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Hart, J.,
(after stating the facts). Counsel for appellant assigns as error the action of the court in instructing the jury as a matter of law that appellant was guilty of contributory negligence in riding upon the pilot of the engine, although the conductor or engineer told him to do so.
In support of their contention of the correctness of the ruling of the trial court, counsel for appellee rely chiefly on the case of Railroad Company v. Jones, 95 U. S. 439; but the facts developed in the present case are more nearly like those in the case of El Dorado & B. Rd. Co. v. Whatley, 88 Ark. 20. In the Jones case the servant was returning from work on the main line of the railway company, which was a common carrier, where the meeting of trains and the consequent danger from running into other trains was much more imminent than in the present case. In the instant case, appellant testified that the engine always run backward on its return to the camp; that it was customary for employees to ride upon the pilot, and that it had ■been fitted up with a flat top extending forward from the front of the boiler for that purpose; that but one train ran on the track, and that he understood the engine would start back to the camp when it moved. Under these circumstances, the court should have left i-t to the jury to say whether he was guilty of contributory negligence; for they might have found that there was no more reason for him to anticipate danger in riding on the pilot § than on any other part of the.train. It is only when the court can say from the facts and circumstances detailed in evidence that reasonable and fair-minded men could not believe that the plaintiff was acting as an ordinarily prudent person would have acted under the attendant circumstances that the question of plaintiff’s contributory negligence is one of law for the court. As stated in the case of El Dorado & B. Rd. Co. v. Whatley, supra: “Upon the facts of this case reasonable minds might reach different conclusions as to whether the danger of riding the pilot was such an imminent and obvious one that no prudent man would undertake it.”
Therefore the court erred in taking from the jury the question of plaintiff’s contributory negligence, and for this reason the judgment must be reversed, and the cause remanded for a new trial. | [
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Hart, J.
On the 18th day of August, 1907, A. C. McComb, by an instrument in writing, leased his sawmill and machinery to S. E. Austin, who was at the time doing business under the firm name of the Young Land & Lumber Company, and the same instrument also contained a contract whereby McComb sold to Austin the timber from certain .of his lands.
On November 1, 1907, Austin sent to McComb at Oshkosh, Wis., his check for $767.57 on the Judsonia State Bank in pay ment for timber cut off said lands. The bank refused to pay the check and returned it.
On the 16th day of November, 1907, McComb brought suit in the White Circuit Court against S. E. Austin and the Young Land & Lumber Company to recover said sum of $767.57, alleged to be due for the purchase price on-said timber, and sued out a specific attachment under sections 4996 and 4967 of Kirby’s Digest, and caused it tQ be levied on the said timber, which was then at Austin’s mill, and which is now the subject of this litigation. \
On January 22, 1908, S. E. Austin, by his attorney, H. P. Cleveland, filed his answer to the suit, in which he admitted the indebtedness to McComb, and asked for a dissolution of the attachment on the ground that he had given a chattel mortgage to the Judsonia State Bank on said property, and that after the execution of said mortgage, on the 14th day of November, 1907, he had given said bank a bill of sale of said property.
On December 7, 1907, the Judsonia State Bank filed its complaint in the White Chancery Court against A. C. McComb et al., in which it asked for a receiver to take charge of said property, and also asked that its mortgage be foreclosed. After-wards, by order of the court, S. E. Austin was made a party to the suit, and through H. P. Cleveland, his attorney, entered his appearance to the action.
On January 23, 1908, the Judsonia State Bank asked to be made a party to the suit of McComb v. Austin, pending in the White Circuit Court, and at the same time asked that the cause be transferred to the chancery court and consolidated' with its suit to foreclose its mortgage. The transfer was made, and the causes were consolidated.
On March 14, 1908, McComb filed his answer to the chancery suit brought by the bank, in which he set up collusion between the bank and Austin, and asked to have his attachment sustained, and his debt for purchase money of the logs paid to him before any part of the money arising from the sale of the logs should be paid to the said Judsonia State Bank.
Will Darden was appointed receiver to take charge of and to sell the property in controversy. The property was sold by him for the sum of $2,042.68, and the sale was duly confirmed by the court. The bill of sale b)^ Austin to the bank reads as follows:
“Know all Men by These Presents:
“That the undersigned, S. E. Austin, being indebted to the Judsonia State Bank in the sum of twenty-one hundred forty-five dollars and sixty-eight cents, which is secured by deed of trust on certain lumber, ties and logs now on the mill yard at the mill near 'Barber Lake, in the county of White, better known as the McComb mill, and for the purpose of avoiding the expense of advertising and selling the same, and further for the purpose of avoiding the excitement that will naturally follow with the laborers, I, this day, for and in consideration of the said sum of ($2,145.68), the sum due the Judsonia State Bank, and for the further sums due for labor which will be by law declared a lien against the lumber, ties and logs, sell, transfer, assign and deliver to the Judsonia State Bank all the lumber, ties and logs now located at the mill yard at the McComb mill near Barber Lake, to it to have and to hold as its own forever, with the distinct understanding that, if any liens are declared against said lumber, ties and logs for labor, said amount shall enter into and become a part of the purchase price of said lumber, ties and logs.
“S. E. Austin.”
“The foregoing instrument was signed in my presence on the 14th day of November, 1907.
“H. P. Cleveland.”
The chancellor found that the bill of sale was valid, and that the attachment sued out by McComb was subsequent to the date of the bill of sale.
A decree was therefore rendered, in which the attachment of McComb was dissolved, and his cross complaint dismissed for want of equity. McComb has duly prosecuted an appeal to this court.
The first contention made by his counsel is that the mortgage from Austin to the bank is of no validity, as far as the rights of McComb are concerned, for- the reason that the ac knowledgment to it was taken by C. M. Erganbright, who at the time was president of the bank, its business manager and one of its directors and stockholders. Assuming their contention to be correct, it does not help them any. The decree of the chancellor was based upon the bill of sale from Austin to the bank and not upon the mortgage.
The chancellor found that the bill of sale. was valid, and was prior in point of time to the suing out of the attachment by McComb, and we can not say that his findings are against the weight of the evidence. The evidence clearly shows that, on the 16th day of October, 1907, when the mortgage was executed, Austin was indebted to the bank in the sum of $800: and that on the 14th day of November, 1907, the date of the exectuion of the bill of sale, his indebtedness to the bank amounted .to $2,145.68.
The testimony on the part of the bank shows that the bill of sale w.as at once delivered to H. P. Cleveland, who was then the attorney for the bank, and that the bank, through Claud Taylor, immediately took possession of the property embraced in the bill of sale. Taylor, up to the time of the execution and delivery of the bill of sale, had been an employee of Austin, but it is not shown that he had any interest, either in the sawmill or in the property involved in this controversy. The attachment of McComb against the property was not sued out until the 16th day of November, 1907.
It is also contended by counsel for McComb that the bill of sale was of no effect for the reason that at the time of its execution the bank did not know how much it was paying for the property, and that Austin did not know how much he was receiving. In support of their contention, they rely upon that clause of the bill of sale, which reads as follows: “With the distinct understanding that, if any liens are declared against said lumber, ties and logs for labor, said amount shall enter into and become a part of the purchase price of said lumber, ties and logs.”
In the case of Flask v. Tindall, 39 Ark. 571, the court held: “A sale of goods, to be fraudulent as to creditors, must be made with the fraudulent intent to cheat, hinder or delay them, and there is no fraud in selling and delivering a stock of goods at cost, leaving the aggregate price to be ascertained by an inventory. The delivery completes the sale.”
So, in the present case how much was due for labor which had been performed on the property was capable of definite ascertainment. Moreover, the statutes gave the laborers a lien for their services performed in getting out the logs and manufacturing them into lumber, which could not have been defeated by the terms of the bill of sale.
Again, it is urged by counsel for McComb that the rights of Austin under his contract with McComb had been forfeited. In support of this contention, they rely upon the provisions of the contract which provide that Austin shall remit to McComb the money for the. timber cut on the first of each month, and that “if the second party (Austin and the Young Land & Lumber Company) fails to do so on the first of each month he and they forfeit all rights hereto, and invalidates this lease and contract.” It is not necessary to decide whether this language is sufficient upon which to base a right of forfeiture, for no forfeiture was declared or attempted to be asserted by McComb. As stated iu Braddock v. England, 87 Ark. 393, there can be no nunc pro tunc forfeiture.
Instead of declaring the contract at an end when default was made under it, McComb was endeavoring to assert his rights thereunder by suing out a specific attachment against the property under sections 4966 of Kirby’s Digest. Before this proceeding to impound the property had been instituted, the property had been sold to the bank for a valuable consideration.
In the case of Neal v. Cone, 76 Ark. 273, the court held: “The statutory remedy authorized by Kirby’s Digest, § § 4966, 4967, in favor of the vendor of chattels, to enforce payment of the purchase money, is not a lien, and can not be enforced where the property has passed into the hands of purchasers for value, even though they may have had notice before their purchase that the purchase money had not been paid.”
Finding no prejudicial error in the record, the decree is affirmed. | [
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Wood, J.,
(after stating the facts). The evidence adduced by appellee tends to show that appellant fired upon Lawhorn as the latter rushed toward appellant, and that appellant stooped down behind the fence and continued firing at him; that Lawhorn was unarmed, and threw his hands to his breast and bent forward at the first shot, and as he straightened up appellant fired again and again till he had fired four shots. The evidence on behalf of appellant tended to prove that Lawhorn drew his pistol when appellant did not see him draw it, and ran toward appellant and fired two shots at him, and that appellant ran up to Lawhorn and begged him to stop shooting, pushed him back in the yard, and then stooped down behind the gate post, when Lawhorn “stuck his pistol around the gate post as though he were going to ¡•hoot at Sellers again,” before the latter began firing on him.
The testimony for the State thus tends to show that appellant killed his adversary when he, appellant, was in no danger of death or great bodily harm. According to the testimony for the State, there was no excuse or justification for the killing. But, according to the testimony for appellant, he slew Lawhorn in necessary self-defense. In this conflict of the evidence was it error to allow the photographs to be used in evidence? -Two of the photographs represent one of the persons as having his coat on and with pistol in hand in a stooping position aiming at the other who is standing in the yard a few feet away in his shirt sleeves with one hand on the gate and the other hanging loosely by his side and making no belligerent demonstrations.
The photographs were taken at the instance of the relatives of Lawhorn. These relatives placed the respective parties to the fatal rencounter in the positions they conceived them to occupy at the time the fatal shots were fired. The appellant was not present when the photographs were taken, and had no one present to represent him. The photographs might have been considered by the jury as tending strongly to corroborate the testimony of the witnesses for the State.
The court having admitted them, the jury doubtless considered them accurate representations of the positions of the actors in the tragedy at the time the'shots were fired. They could have done so, there being no evidence to the contrary. But the photographs were not verified by any witness before their introduction. No one who was a witness to the tragedy testified that they were reproductions of the situation of the parties and the place and conditions connected with the fatal rencounter, which they purported to portray. This was essential primarily to the relevancy of the photographs as evidence. 1 Wigmore, Ev., § § 790-792.
“As a general rule, photographs are admissible in evidence when they are shown to have been accurately taken, and to be correct representations of the subject in controversy, and are of such a nature as to throw light upon it.” 9 Enc. of Ev., 771; Wharton’s Crim. Ev., § 544; Blair v. Pelham, 118 Mass. 420; Church v. Milwaukee, 31 Wis. 512; Underhill on Criminal Ev. 551. The general objection to the photographs as evidence was sufficient to raise the question of their relevancy. Photographs are admissible as primary evidence upon the same grounds and for the same purposes as diagrams, maps and plats. Under-hill’s Crim. Ev., § 50; 1 Wig. Ev. 792. They aid the jury to understand the evidence of the witnesses by illustrating the situation of the persons, places or things connected with the subject-matter of the inquiry. People v. Buddensieck, 103 N. Y. 487. The placing of persons about the scene of the rencounter in positions shown by the witnesses to have been occupied by the participants does not render a photograph, showing such positions, irrelevant that in other respects is shown to be relevant. This could be no more hurtful than a witness illustrating his testimony 'while on the witness stand by pointing out situations and placing persons in the relative positions and attitudes which he testifies were similar to those occupied and assumed by the actors in the real tragedy or occurrence which he is describing, or by illustrating with the use of a map, plat or diagram the situation of persons, places or things referred to in his testimony. Ragland v. State, 71 Ark. 65; Vance v. State, 70 Ark. 272; Underhill on Ev. 64; Shaw v. State, 83 Ga. 92; State v. O'Reilly, 126 Mo. 597; People v. Jackson, 111 N. Y. 362; Blair v. State, 69 Ark. 558.
The Supreme Court of Mississippi in a similar case holds the photographs inadmissible. Fore v. State, 75 Miss. 727. But the weight of authority, and the better reason, we believe, sustain the doctrine we have announced.
But, in the absence of testimony showing that the photographs faithfully represented the objects and situations portrayed, they should not have been used in evidence. This having first been shown, they were then admissible in evidence, but subject to impeachment. Underhill on Ev., § 57, and cases cited in note 2.
For this error the judgment is reversed, and the cause is remanded for new trial. | [
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McCulloch, C. J.
Appellant, Charles Latourette, was indicted by the grand jury of Craighead County for the crime of having carnal knowledge of a girl under the age of consent, and on a trial before a jury he was convicted and sentenced to the penitentiary for a term of three years. The evidence adduced at the trial was undisputed as to the fact of the appellant’s having cohabited with the girl for a time and had sexual intercourse with her, but there was some conflict as to the girl’s age. The evidence was sufficient to warrant the finding that she was under the age of consent. The jury fixed the punishment at ten years, and the court reduced it to three years.
Appellant’s -counsel urge two grounds for reversal: One that the court erred in refusing to permit certain witnesses to testify at the hearing of the petition for change of venue; and the other that the court erred in overruling, after the verdict and judgment, a motion to quash the indictment. We consider these questions in the order in which they are argued.
The petition for change of venue was in due form, and was supported by the affidavits of two persons. The State challenged the credibility of the two supporting affiants, and they were examined by the court. It has been repeatedly held by this court that it is proper for the trial court, in considering a petition for change of venue, to examine the supporting affiants in open court and to hear any other testimony bearing upon the question of their credibility, and to decide whether or not they are credible persons. It would serve no useful purpose to cite all the cases. They are cited and reviewed in Duckworth v. State, 86 Ark. 57. We have examined and considered the evidence adduced before the court, and conclude that there was enough to warrant a finding against the credibility of the two affiants.
The bill of exceptions recites that, after the petition for change of venue was overruled, counsel for appellant requested “permission to introduce four additional witnesses to corroborate the two witnesses who made the affidavit,” and that the court denied this request, stating to counsel, however, that if the proffered witnesses desired to make any additional affidavits, and go upon the witness stand to support them, they would be permitted to do so. Error is alleged in the refusal of the court to allow these witnesses to testify. The rule has been established by this court that where error is assigned in the refusal of the court to hear testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial. Meisenheimer v. State, 73 Ark. 407. In other words, it devolves upon the appellant to show by the record here, before he can complain of the ruling of the court as being prejudicial, that the offered testimony was relevant to the issue and should have been admitted.
Now, the offer made by appellant’s counsel was to introduce witnesses to corroborate the supporting affiants on the petition for change of venue. The language in which this offer is couched in its ordinary acceptation is understood to mean an offer to introduce evidence in corroboration of the testimony of the two witnesses. Understood in this way, the testimony was not relevant. The only issue before the court was that of the credibility of the two supporting affiants. It was not competent to go into the question of the truth or falsity of the statements of their affidavits. White v. State, 83 Ark. 36; Strong v. State, 85 Ark. 536. We find no error of the court in this respect.
After the jury returned a verdict of conviction, the appellant filed his motion to quash the indictment on the alleged ground that there was no legal evidence adduced before the grand jury to warrant the finding of an indictment. On the hearing of this motion, the appellant offered to prove by a member of the grand jury that no evidence was presented to that body except a transcript of the testimony heard at the examining trial. The court refused to hear this evidence, and overruled the motion.
The statutes of this State declare that a grand jury can receive none but legal evidence, and should find an indictment when all the evidence before it would, when taken together, if unexplained, warrant a conviction by a trial jury. Kirby’s Digest, § § 2203-2204. But an indictment is merely an accusation against a defendant, and any irregularity in the finding and return of it by the grand jury does not deprive the accused of any substantial right. Worthem v. State, 82 Ark. 321. The failure of the grand jury to receive legal evidence was a mere irregularity, and was waived by the plea of not guilty. The question could not be raised after the trial and verdict. Carpenter v. State, 62 Ark. 286; Hamilton v. State, 62 Ark. 543, and cases therein cited.
Appellant undertook to show that he did not know, and had no means of ascertaining, until after the trial the character of the testimony heard by the grand jury. This does not alter the rule that irregularities in the finding of an indictment are waived by a general plea. It is the duty of the accused party and his counsel, before entering a plea of not guilty, to investigate the fact to their satisfaction whether or not the indictment has been regularly returned. The statute fixes the time when this question is put at rest, and hopeless confusion would arise by permitting questions as to irregularities in the finding of the indictment, which do not affect any substantial right of the accused, to be raised after the judgment of conviction is rendered.
It is unnecessary for us to pass on the question whether it was competent to show by a member of the grand jury the character and quantum of testimony introduced before that body.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) There was no error in the instructions. The first instruction was a definition of perjury in the language of the statute. The second instruction did not tell the jury that the alleged false evidence must not only be shown to be false, but also material to the issue. This, how ever, was not necessary upon the undisputed facts of this record. For, if the alleged false evidence was given, it follows as matter of law that at least a part of it was material to the issue. The charge against appellants in the police .court was using a room for prostitution. It was therefore material as to whether Wm. Brent was occupying the room with Hallie Stewart on the night alleged. Where the undisputed evidence shows that the alleged false matters sworn to were material, it is not error to fail to instruct that such matters must be material to the issue. See State v. Nees, 47 Ark. 553. There being no dispute about the facts sworn to, the question of materiality was for the court. Grissom v. State, 88 Ark. 115.
Appellants’ counsel contends that the third instruction is erroneous because it fails to tell the jury that appellants could not be -convicted upon the uncorroborated testimony of one witness.
In Thomas v. State, 51 Ark. 138, this court announced the rule as follows: “On a trial for perjury, the oath of the defendant which is charged to have been false is to be considered equal to that of a credible witness. .One witness is sufficient to prove what he swore, but not to establish its falsity; and where there is only one accusing witness, his testimony must be corroborated, not merely as to slight or immaterial circumstances, but as to some particular false statement. See Grissom v. State, supra.
But where the uncontradicted testimony shows that there was corroborating evidence as to some particular false statement, the failure of the court to tell the jury that there must be corroborating -evidence is not prejudicial error.
It is also urged that the evidence is not sufficient to sustain the verdict.
This contention is well taken as to appellant Hallie Stewart, but not as to Grant Brooks. We .have set forth the evidence in detail in the statement, and a close scrutiny of it fails to disclose any corroboration of the testimony of the witness William Brent to the effect that he was with Hallie Stewart in the room on the night that it was alleged that the room was used for immoral purposes. The testimony of Brent was the -only evidence that he was in the room of Hallie Stewart that night except the statement of Grant Brooks. But the statement of Grant Brooks can not be taken as evidence against Hallie Stewart.
As to appellant Brooks, however, the testimony of Eliza Brent tending to prove that he admitted being at Hallie Stewart’s on the night alleged, and admitted seeing Wm. Brent there and having a fight with him, is sufficient corroboration of the testimony of Wm. Brent that he saw Grant Brooks at the room of Hallie Stewart on the night mentioned, and is sufficient corroboration of the testimony of Wm. Brent as to the falsity of the testimony of Brooks to the effect that he was not at the room of Hallie Stewart on the alleged night and did not see Brent there. The judgment as to Hallie Stewart is therefore reversed, and the cause as to her is remanded for new trial.
The judgment as to Grant Brooks is affirmed. | [
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AVood, J.
(after stating the facts). The judgment against appellant under the above facts was erroneous.
First. It is contended by appellee that, inasmuch as Baker, the assignor, was not made a party to the suit by the assignee, Miller, against the appellee, Vanderberg, and the appellant as garnishee, the judgment rendered against appellant in that sum can not defeat appellee’s recovery in this suit. Section 598 of the Revised Statutes of Missouri provides: “The defendant may demur to the petition when it shall appear upon the face thereof that there is a defect of parties plaintiff or defendant.” Section 602 provides: “When any of the matters in section 598 do not appear upon the face of the petition, the objection may be taken by answer. If no such objection be taken either by demurrer or answer, the defendant shall .be deémed to have waived the same, etc. 1 vol. Revised Statutes of Missouri, 1899, PP- 252, 2S3-
Appellee failed to raise the objection of a defect of parties in the manner pointed out by these statutes, and has therefore waived same.
Second. The situs of the debt sued on for the purposes of garnishment was in Missouri as well as Arkansas, as had been held by the Supreme Court of the United States and by this court. Kansas City, Pittsburg & Gulf Ry. Co. v. Parker, 69 Ark. 401, and authorities cited; Stone v. Drake, 79 Ark. 384, and Chicago, R. I. & P. Ry. Co. v. Sturm, 174 U. S. 710, a parallel case where the principles controlling here are fully discussed. Wyeth Hardware & Mfg. Co. v. Lang, 127 Mo. 242.
Counsel for appellant correctly interprets our decisions when he says: “Garnishment is in the nature of a proceeding in rem; service of the process on the garnishee creates a lien in favor of the plaintiff on the money due from the garnishee to the defendant, and upon constructive service the court may ascertain the amount due from the garnishee to the defendant, and subject such money to the satisfaction of the plaintiff’s claim.” Desha v. Baker (1842), 3 Ark. 509; Johnson v. Poster (1901), 69 Ark. 617; Stone v. Drake, supra, and Chicago R. I. & P. Ry. Co. v. Sturm, supra.
Third. The exemption against the debt due Baker and assigned to Miller was a personal privilege which appellee alone could plead and prove. It could not have been set up by the appellant, as garnishee, for the appellee in the suit against appellee and appellant in Missouri.
Exemption can not be pleaded by a garnishee in behalf of a non-resident defendant, and the defendant can only avail himself of his privilege by following the procedure prescribed by the statute. Such is the law here and in Missouri. Dinkins v. CrundenMartin Woodenware Co., 99 Mo. App. 310; Kirby’s Digest, § § 3904-6. See also secs. 3162-3, 3158, Rev. Statutes Mo. and in addition to authorities supra, Baxley v. Laster, 82 Ark. 236; Conley v. Chilcote, 25 Ohio St. 320; Osborne v. Schutt, 67 Mo. 712; Garrett v. Wagner, 125 Mo. 450.
While there is no showing that the judgment against appellant in Missouri had been paid at the time of the trial in this case below, yet under the Revised Statutes of Missouri it was enforceable against appellant, and must be given the full faith and credit of a valid or enforceable judgment of a foreign State (Rev. Stat. U. S., § 905 (2 Ed.), and thus barring appellees of any right to recover here. Secs. 3443, 3452> 4°32> 4039> Revised Statutes of Missouri.
Appellee’s contention is that the judgment is invalid, not that it was unpaid or unenforceable. The judgment is therefore reversed, and the cause is dismissed. | [
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Hart, J.
This is an action in equity instituted in the Monroe Chancery Court by J. A. Conoway and Goldman & Company against the Newman Mill & Lumber Company, R. L. Newman, J. D. Atkinson and H. Greenwald.
Goldman & Company is a partnership, composed of J. D. Goldman, W. L. Jeffries and S. Bacharach. The Newman Mill & Lumber Company is a partnership, composed of the plaintiff, J. A. Conoway, and the defendants R. L. Newman and J. D. Atkinson. They were engaged in operating a sawmill in Monroe County, Arkansas, during the year 1907. Their assets consisted chiefly of the sawmill outfit complete and 21 head of oxen, wagons, etc. On the 30th day of September, 1907, the members comprising the firm of the Newman Mill & Lumber Company executed a mortgage on their partnership property in favor of H. Greenwald to secure an indebtedness of $3,000. The indebtedness secured was the individual debt of R. L. Newman, one of the partners. During the course of operating the mill, the Newman Mill & Lumber Company became indebted to various creditors, among whom was the plaintiff Goldman & Company. On the 18th day of December, 1907, Goldman & Company brought suit against them for the sum of $755.89 in the Monroe Circuit Court, and sued- out a writ of attachment against their -property.
The object of the present suit was to have the partnership of the Newman Mill & Lumber Company dissolved and its affairs wound up on account of insolvency; and to have the debt of Greenwald postponed until the partnership debts were settled. The -appointment of a receiver was asked for, and J. B. Hogins was appointed receiver. He at once qualified, and took charge of the property and assets of the firm.
The complaint was filed December 30, 1907, and, in addition to the matters above set forth, alleged that the mortgage to Greenwald was procured by deceit and fraud.
Greenwald answered the complaint, and denied that he had procured the execution of the mortgage by deceit and fraud. He also denied that -the debt secured thereby was the individual debt of Newman, but averred it to be the debt of the partnership. Newman and Atkinson, although duly summoned, failed to answer.
The chancellor found the issues in favor of the defendant Greenwald, and declared that his mortgage was a prior lien on the property embraced in it. A decree was therefore entered in his favor, in which the property was ordered sold and the proceeds applied, first, to the payment of his debt and interest and the remainder, if any, to the other creditors of the Newman Mill & Lumber Company. Judgment was also rendered in his favor for his debt of $3,000 and the accrued interest.
The plaintiffs have duly prosecuted an appeal to this court.
The Newman Mill & Lumber Company was insolvent at the time the mortgage to Greenwald was executed; but in the case of Reynolds v. Johnson, 54 Ark. 449, it was held that an insolvent firm may mortgage their partnership property to secure individual, in preference to partnership, debts. Counsel for plaintiffs urge us to overrule this case, and contend that it is against the weight of authority. The two lines of decisions were discussed in that opinion, and the rule above announced was deliberately adopted. It has been followed ever since by this court. It has become a rule of property, and we decline to disturb it.
It is also contended by counsel for plaintiffs that the mortgage of the Newman Mill & Lumber Company to Greenwald was procured by deceit.
The testimony for the plaintiff shows that, when the firm of the Newman Mill & Lumber Company was formed, Newman put in $1,500; Atkinson put in $500; and Conoway, nothing; that the agreement between them was that Newman should be first paid back the amount paid in by him with interest, and then that Atkinson in like manner should receive back the amount paid in by him; that at the time the mortgage in question was executed the amount, principal and interest, owed to Newman was $1,600; that, to induce them to sign the mortgage, Greenwald told them that Newman would draw out of the firm if they did not execute the mortgage, but that if they did execute it he would advance the firm more money; that Newman had traded with Mrs. Greenwald for some hotel property, and the mortgage was in part payment of it; that Newman afterwards denied that he had authorized I. Greenwald, the husband and agent of H. Greenwald, to represent to plaintiff Conoway that he would advance the firm more money.
Greenwald denied that he made the statement about Newman making further advances to the Newman Mill & Lumber Company, or withdrawing from the firm if the mortgage was not executed. This was not a false statement upon which fraud may be predicated. Such fraud must be of existing facts, or facts which previously existed, and cannot consist of mere promises as to future acts, although such promises are subsequently broken. The facts adduced in evidence by plaintiffs could only establish a breach of contract, but they do not sustain an action for fraud or deceit. The representations here complained of relate solely to promises as to matters in future. 20 Cyc. 20, and cases cited.
We find no prejudicial error in the record, and the decree will stand affirmed. | [
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McCurroch, C. J.
This is an appeal from the judgment of the circuit court of Miller County refusing to make an order prohibiting the sale or giving away of intoxicating liquors within three miles of a school house in the city of Texarkana. The county court had refused to make the order prayed for, and an appeal was taken to the circuit court. The case was heard in the circuit court on oral evidence. The petition was in due form prescribed by law, and described the house which was to mark the center of the prohibited area as “the Public School Building situated on block 34, in the city of Texarkana, Miller County, Arkansas.”
The first point to which attention should be directed was that raised by appellees (persons who were permitted by the court to appear and make themselves parties for the purpose of remonstrating against granting the prayer of the petition) whether or not the appeal from the judgment of the county court was properly granted. The record shows that the petitioners, which of course means all of them, prayed an appeal to the circuit court, and that the affidavit for appeal was made by B. B. Thomas, one of the petitioners and appellants.
The appellees filed a motion in the circuit court to dismiss the appeal on the ground that Thomas had never been an inhabitant of the territory in question; that he was only temporarily there at the time the petition was signed and presented to the county court, and that he had removed to a distant part of the State before the case came up for hearing in the circuit court. The court overruled the motion to dismiss the appeal, and we think that was a correct ruling.
It is unnecessary for us to decide, in passing on this ruling-of the court refusing to dismiss the appeal, whether or not Mr. Thomas was in fact an inhabitant of the three-mile area within the meaning of the statute. He did, in fact, sign the petition, and was entitled to be heard, with the other petitioners, when the county court considered the matter; and when the court by its judgment denied the prayer of the petition, he was one of the persons aggrieved by the judgment within the meaning of the statute, and he, as well as the other petitioners, was entitled to prosecute an appeal to the higher court. In other words, the right to take an appeal depended2 not on the right of the petitioners to the relief prayed for, but on the right to be heard in the appellate court when relief was denied in the inferior court; and when Mr. Thomas signed the petition which was filed in the county court, he became a party to that record, and was guaranteed the right of' appeal by the Constitution and laws of the State, as much as any other petitioner, even though it should finally be decided that he was not eligible as a petitioner. Of course, if Thomas had been the only person who took an appeal, and it appeared on the hearing that he was not eligible as a petitioner, and therefore had no interest in the further prosecution of the case, the question would arise as to whether or not t’he court should consider the case and grant the relief solely on his request. But no such question arises on the record, as it shows that all of the petitioners appealed/and the, affidavit was made by Thomas as one of the parties aggrieved.
There are only two other questions in the case necessary for us to decide. One is this: The school house named in the petition is less than three miles distant from the State line, and the circuit court held that “all of the adult- inhabitants residing within the radius of three miles of such center must be counted in ascertaining the total number of adult inhabitants within said district, irrespective of the State line.” This court has decided to the contrary, and the ruling of the circuit court is incorrect. Lindley v. State, 90 Ark. 284.
The remaining question is as to the correctness of the court’s declaration of law and finding of fact concerning the designation of the school house which was to mark the center of the proposed prohibition territory. The petition, as already shown, named “the Public School Building situated on block 34, in the city of Texarkana, Miller County, Arkansas,” as the center of the proposed territory. There was no conflict in the evidence on this branch of the case, and it is'undisputed that there'are two buildings on block 34, both used for public school purposes. The two buildings .are situated about thirty feet apart' (or about 100 to 150 feet from center to center), and are under the supervision of the same superintendent and the same corps of teachers. In other words, there are two buildings, about thirty feet apart, used in conducting one school by one- superintendent and corps of teachers. One of the buildings is shown to be the main building, situated near the center of the block, and the other, which is a smaller one, is referred to as the “annex.”
Upon this showing-, the court found that there were two public school buildings on block 34, and that the petition failed to designate the particular one which was to form the center of the -proposed area. This was one of the grounds on which the court denied the prayer of the petition.
The statute prescribes that “whenever the adult inhabitants residing within three miles of any school house, academy, college, university or other institution of learning, of of any church house in this State, shall desire to prohibit the sale or giving away of any vinous, spirituous or intoxicating liquors of any kind,” etc., and a majority thereof shall petition the county court of the county “wherein such institution of learning or church house is situated,” said court shall make an order, etc. Kirby’s Digest, § 5129. This phase of the statute has never been passed on by the court except in the following cases, which do not reach to the particular question now under consideration: Williams v. Citizens, 40 Ark. 290; State v. Bailey, 43 Ark. 150; Gazola v. State, 45 Ark. 458; Lindley v. State, supra.
In Williams v. Citizens, supra, the petition named as the center of .the proposed area two churches situated about two hundred yards apart. This court held that that rendered the proceedings void. Judge Eakin, speaking for the court, said:
“Two points, as centers of circular areas, cannot be designated in the same petition, signed without distinction, by a majority of the adult inhabitants living within three miles of both points, or of either one or the other point. In the first case the area would be less than one with a radius of three miles, and in the second case it would be greater. The statute confers no authority to make such an order as would result in either case. Every adult inhabitant residing within three miles of any particular school house, church, etc., should be counted in determining the majority, that is in theory, and as nearly practically as possible, and no one living more than three miles from that particular house should be. This cannot be effected by designating two or more distinct buildings more or less widely separated, without any indication of one as the center for all. Where they are close together, it would probably make little difference, but embarrassments would grow as the distance widened, and the court cannot fix the limits within which the practice would be permissible.”
The next two cases cited above arose upon indictments for selling liquor within three miles of two churches, and the court, citing the Williams case, held that the orders were void.
In Lindley v. State, supra, the petition described the center of the proposed area as “the new stone public school house situated on block 23, in the town of Mammoth Spring,” and it was afterwards shown that fhe house was situated on block 22 instead of block 23 as stated in the petition. The court held that the defect did not render the proceedings void, and that it “was sufficient to describe it in the language of the statute with such reasonable certainty as to identify it as the point marked from which the radius was to extend in designating the territory to be embraced in the order.”
Now, it is manifest that the framers of the statute had in view two things in shaping the form of the proceedings: one, that a definite object should mark the center of the prohibition area to be created; and the other that the radius of this area should extend three miles from this center. This necessarily means that the center shall be definitely and accurately pointed out, so that there should be no uncertainty as to the limits of the area. But absolute accuracy in the description is not required. Reasonable certainty is sufficient. This is demonstrated in Lindley v. State, supra, in which it was held that an error in describing the school house in the wrong block was immaterial, as the building was otherwise sufficiently described.
Applying the descriptive language of the petition in this case to the facts shown to exist with reference to the buildings on block 34, there can be no doubt that it means the principal or main building, and not the so-called “annex.” The descriptive words in their ordinary acceptation cannot mean anything else. Parol evidence is admissible of course to show the surroundings, so as to identify the particular building intended to be described —to fit the description to the building. Paragould v. Lawson, 88 Ark. 478. The petition, therefore, named only one building as the center of the proposed area, and we are of the opinion that the learned judge erred in his' conclusion that two buildings were named.
Appellants ask that we make a finding here of the fact as to whether or not the petition contained a majority of the adult inhabitants residing within three miles of the school building mentioned in the petition, and render a final judgment without remanding the case for further trial. We do not deem it proper to do this on the conflicting testimony in the record. The circuit judge made no finding of fact as to whether the petition contained a majority of the adult inhabitants residing in this State within the 'three-mile limit, and we think the case should be remanded for new trial in accordance with the law herein stated. It is so ordered.
Battle and Hart, JJ., dissenting. | [
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Wood, J.,
(after stating the facts). Section 4919 of Kirby’s Digest provides: “When any notice or advertisement relating to any cause, matter or thing in any court of record shall be required by law or the order of any court to be published, the same when duly published shall be paid for by the party at whose instance it was published, which payment, or so much thereof as is deemed reasonable, may be taxed as other costs otherwise allowed by the proper courts in the course of the proceedings to which sqch advertisement relates.”
Section 4921 provides: “When any law, proclamation,-advertisements, order or notice shall be published in any newspaper for the State or for any officer on account of the State, or for any county or for any officer on account of any county, or for any legal advertisement for any individual, there shall not be allowed for such publication a higher rate than one dollar per square of ten lines (two hundred and' sixty-eight ems) of nonpareil type for the first insertion, and fifty cents per square for each subsequent insertion, fractional squares and parts of squares to be counted as whole squares.”
Neither of the above sections prevents any individual at whose instance any legal notice is published from contracting with the publisher to publish such notice at any price they may agree upon. And, as between the individual and publisher, the contract would be binding upon them. The individual in a suit between him and the publisher’ would be liable for whatever amount he had contracted to pay for the publication. The provisions of the statute were not intended to limit the power of any private individual to pay any amount he might contract to pay for any legal publication that was made at his instance. Section 4919 clearly indicates that, as between the individual at whose instance the publication is made and the publisher, they are left to contract for any amount they may agree upon, which amount the individual having the publication made shall pay. But, after he shall have paid it and asks to. have amount so paid by him taxed as other costs by the courts in the course of the proceedings to which such advertisement relates, then the court shall not allow for such publication a higher rate than that prescribed by section 4921, supra, which sum the lawmakers evidently deemed a reasonable charge for the character of work prescribed. For it will not be presumed that the Legislature fixed as a maximum charge an unreasonable amount. Taking the two sections together, we are of the opinion that section 4921 was a declaration by the Legislature of the sum that it deemed reasonable for the court to allow as costs wherever the party at whose instance the publication was made had paid that or a larger sum. In other words, under the statute, when fixing the sum paid for legal publication as costs, unless the sum so paid exceeded the amount authorized to be charged by section 4921, supra, it could not be held unreasonable.
Appellant has submitted without objection to having the amount claimed by him for publishing the notices taxed as costs in the chancery proceeding to confirm; otherwise the court would have had no jurisdiction. Treating the case as the parties have treated it as a motion to tax as part of the costs in the suit to confirm 'the claim of appellant against appellee, we are of the opinion that under the statute the court should have adjudged the cost of the publication of the notices at the sum claimed by him in his response to the motion, which sum was the amount,authorized under the provisions of the statute supra.
But, if the statute authorizes the court to fix any amount it may deem reasonable under the amount prescribed by section 4921, as contended by the appellee, we are then of the opinion that the finding of the court as to what was a reasonable sum was against the clear preponderance of the evidence. For it was not unreasonable that appellant should charge for his services the regular and customary price charged and paid for such work. It would be unreasonable to expect or require appellant to receive less for his work than others engaged in similar business would have charged appellee for the same work under the same circumstances. Yet, according to the clear preponderance of the evidence, that is what the decree of the chancellor does. For, judging by the record, a great majority of the publishers would have charged the same as appellant.
In the absence of any-express contract, appellees must be held to have impliedly agreed, when it requested appellant to do the work for it, that it would pay the regular and usual price. The evidence tends strongly to show that appellee knew from previous transactions with appellant what the price would be and made no objections to it. The decree is reversed and remanded with directions to enter a decree taxing the cost of the publication of the notices at the sum of $1,148, with interest on same at 6 per cent, from December 17, 1907. | [
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Battue, J.
Daniel W. Smith brought an action against the Texas & Pacific Railway Company, before a justice of the peace of Miller County, to recover eighty-five dollars for damages caused by an alleged negligent killing of two burros by defendant. After trial and judgment in a justice’s court it was taken by appeal to the Miller Circuit Court, where a jury trial was had on the 29th of June, 1908, and judgment was rendered against the defendant in favor of the plaintiff for twenty-five dollars and costs. After the rendition of the judgment an order was made allowing the defendant until the fourth day of July following within which to file a motion for a new trial, but'no motion was filed, and the judgment became final. The court ait the June, 1908, term, adjourned on the fourth of July, 1908, and thereafter, on the 14th day of the same month, the following motion for a new trial, based upon newdy discovered evidence, was filed by the defendant:
“Comes the defendant herein, in vacation, as provided by law, and files this, its motion for a new .trial of this case, with the prayer that the verdict of the jury and the judgment of the court rendered herein be set aside, and the case be tried anew.
“In support of this motion the defendant respectfully shows that since the trial of this case and the adjournment of the June, 1908, term of this court, it has discovered new evidence bearing on the issues of this case, which evidence is material to the defense herein, and which, after reasonable diligence, it could not and did not discover and produce at the trial.
* * * * >¡c sjc * * i¡: * ijj
The defendant shows that, since said trial and the adjournment of said court, it has discovered evidence to .the effect that either the day before or the afternoon or evening when they were struck, .the plaintiff led them upon the defendant’s right of way and within the inclosure surrounding same; that he led them upon said right of way 'and within the enclosure surrounding same by pushing down the bottom wire of the fence, and lifting up the upper wire, permitting .them to go upon the right of way between .-said wires; that at such time they were tied together with a rope, and were .left within said inclosure, grazing, exposed to the danger of being struck by passing trains, with no chance to escape if upon trestle or curve.
“The defendant shows that said testimony is essentially material to its defense in that it shows that the plaintiff’s own negligence and carelessness caused and contributed to such damage as he sustained, and that such negligence and carelessness, even if negligence were proved against the defendant, which was not, would preclude a recovery by the plaintiff in the case.
“The defendant shows that it could not, with reasonable diligence, have discovered and produced this .testimony at the trial of this case, and says that it made a special effort prior to this trial to get at all the facts and all the merits of the claim involved in this suit. That it sent its special .agent to the place where the damage was alleged to have been done, and undertook to ascertain, through said" special agent, not only all the facts and circumstances connected with the injury, but also everything relating to the value of' the animals; that said special agent spent some time in said vicinity, went to see every man who was reputed to have known anything of the claim, and used every diligence he could to ascertain all the facts about the matter. It says that said special agent never heard it intimated by any one, nor did any one else connected with this defendant hear it intimated by any one, prior to the trial of this cause, that plaintiff had in any manner been responsible for t'he animals being upon the defenddant’s right of way, and that after the trial, and after judgment had been rendered and the term of this court had adjourned, a credible person of his own volition, and thinking that the matter had been concluded and terminated, apprised the defendant’s agent of the testimony hereinafter'set out, and stated to said agent that he himself had observed and seen defendant lead the said animals from -the woods and admit them to the defendant’s right of way between said wires of said fence and leave them within said enclosure tied together.
“The defendant says that it expects to have the testimony of said witness at another trial of this case, and now files this its petition for a new trial, and prays that summons may be issued as provided by law, on same, requiring the plaintiff to appear and answer on or before the first day of the next term, that the judgment rendered in this case be set aside, and that a new trial be granted herein, and for such other and further relief as the plaintiff may be entitled to.
“The defendant further shows to the court that the plaintiff in this case is irresponsible financially, and that, if permitted to execute the judgment heretofore rendered and hereinbefore complained of, the defendant will not be able, in the event a new trial is granted, to force the plaintiff to return and restore to it the money collected on such judgment; and further that, unless prevented, .the plaintiff will proceed with the collection and enforcement of said judgment, and thus render of no effect and consequence a judgment setting aside the verdict of the jury hereinbefore rendered and the judgment of this court as herein-before rendered, if this motion be granted and the said judgment set aside; that, in order to make the judgment herein prayed for effectual, and in order to prevent great wrong and damage and injustice to the defendant, and in order to give force and effect to the judgment that may be rendered by this court on this motion, it is necessary to restrain the plaintiff from the execution of said judgment. Defendant therefore prays that, pending a final hearing of this matter, your honor direct your most gracious writ of injunction to issue, enjoining and restraining plaintiff from proceeding with the collection of said judgment until final determination of this motion.”
This motion or petition was supported by an affidavit, and on the 15th day of August, 1908, was submitted to the judge of the circuit court, who, after hearing the testimony adduced in support of it, made an order directing the clerk to issue an order restraining plaintiff from collecting the' judgment recovered by him. The motion came on to be heard by the court for final decision at the November term of the circuit court following, and the defendant adduced testimony- of witnesses supporting his motion, which was contradicted by the testimony of the plaintiff, and the court overruled the motion, and from the order overruling the motion the defendant appealed to this court.
The record in the case -shows the following facts: “That the killing of the burros was not denied, nor was there any defense urged at the trial, except such as related to the value of the animals. That the issue as to the value was submitted under appropriate instructions of the court; no other issues being submitted, and no other fac-t being investigated in the case.”
A new trial is defined by the -statute t-o be “a re-examination in the same court of an issue of fact after a verdict by a jury or a decision by the court.” Kirby’s Digest, § 6215. It may be granted for “newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” Ib., subdiv. 7. The newly discovered evidence must be material to the issue tried. Olmstead, v. Hill, 2 Ark. 346; Robins v. Butler, 2 Ark. 133; White v. State, 17 Ark. 404; Bourland v. Skinner, 11 Ark. 671. Unless it was relevant to the issue, it could not be material, and was not admissible if it -had been produced at the trial without an amendment of the pleadings. The newly discovered evidence in the case at bar was not relevant to any issue in the original case, and therefore not material and no ground for a new trial. But the defendant is not without remedy. He 'has his remedy in equity. Mr. Pomeroy, upon this subject -says: “It frequently happens that a party, through no fault of his own, is ignorant of facts constituting a defense -to the action. The rule in such oa-se-s is that equity will relieve if the party could not, by the exercise of reasonable diligence, have obtained the evidence. But if there has been an ample opportunity to discover the evidence, and it is not then forthcoming, relief will be denied.”
Judgment affirmed without prejudice to appellant’s right to institute a suit in equity for relief. | [
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McCueeocpi, C. J.
Appellant, Tee Clampett, stands convicted of the crime of obtaining property under false pretenses, the charge being that he obtained from the agent of the railway company at Cherry Valley, in Cross County, Arkansas, upon the false and fraudulent representation that he was then the holder of a bill of lading therefor, a lot of personal property which had been consigned to the Merry Machine Works. The evidence establishes the fact that appellant had ordered from the last-named concern at Memphis, Tenn., the property in question (a lot of machinery and appliances for a sawmill), which was shipped from Memphis to Cherry Valley, Arkansas, to the order of the shipper, and the latter sent the bill of lading, attached to a draft on appellant for the purchase price of the property, to a bank at Cherry Valley, to be delivered to appellant on payment of the draft. Appellant paid the freight charges and received the property from the agent of the railway company, and hauled it to. the mill without paying the draft and without procuring the bill of lading and surrendering it to the agent of the railway company. He has never paid for the goods at all.
The railway agent testified that appellant represented that he held the bill of lading, and that the consignment of freight was delivered to him on the faith of such representation. Appellant denied that he made any such representation; his contention being that he was not aware of the property having been consigned to the shipper’s order. This was the issue involved in the trial of the case. The evidence was conflicting, but the jury has settled the issue by the verdict.
Appellant relies for a reversal of the case on the alleged error of the court in .overruling his motion for continuance of the case to the next term, in order to procure the attendance of an absent witness, Tom Stevens by name. He set forth in his motion what he alleged to be the testimony of the absent witness, and the court, in overruling the motion, required of, the prosecuting attorney an admission before the jury that the witness would give the testimony thus set forth. This was read to the jury as the testimony of the absent witness.
The court, in passing on the -motion for continuance, heard testimony as to the diligence of the appellant and his attorney in attempting to procure the attendance of the absent witness. It appears from said testimony that the only thing done £>y appellant or his attorney .was to hand to the clerk, four or five days before the trial, a list of his witnesses -containing the name of this witness, with the word “Smackover” written opposite, indicating his residence to be.at that place. Smackover is a railroad station in Union County, and the clerk issued a subpoena directed to the sheriff -of that county, and delivered the same to a deputy sheriff of Cross County; the last-named officer mailed the subpoena in an envelope -directed to “Officer at Smackover.” The writ was never returned, and nothing was ever heard of it. The deputy sheriff stated that he was informed by Tom Stevens’s father, who resided at Cherry Valley, that the witness resided at Smackover.
This -court has repeatedly held that the matter of postponement of trials is left to a considerable extent to the discre-tion of trial judges. This must necessarily be so, as the trial judge who hears such motion is in a much better position than the appellate court -to determine whether or not the motion is made in good faith and whether an honest, diligent effort ’has been made to prepare for trial. It is only when it -appears that there has been an abuse of discretion by the trial judge that the appellate -court will disturb such ruling.
Now, in the present instance we cannot say that the trial court abused its discretion in refusing t-o postpone the trial of the case. Proper care had not been exercised by the appellant or his attorney in sending the subpoena to an officer who would serve it promptly. The Cross County deputy sheriff was blamable for not sending it to the proper officer of Union Coünty; but appellant was not free from blame, as it does not appear that he took pains to give directions for forwarding the writ. He should not have relied on the officer entirely without specific directions to send it properly in order to get it served in time. However honest, intelligent and well-meaning public officers may be, they are often without the experience which suggests to them the best course to pursue in obtaining the speedy service of process; and a proper degree of diligence on the part of those interested in the service requires that they give directions, under circumstances similar to those shown to exist in this instance. Courts must hold litigants to a strict degree of care and diligence in preparing for trial. Otherwise the orderly dispatch of business of the court would be hindered.
This subpoena should have been sent to the sheriff of Union County, to whom it was directed, with information as to where the witness could be found in his county. If this had been done, doubtless the writ would have been served, and the witness present when the case was called. The only disputed point in the testimony of the absent witness is that appellant, some time after he obtained the property from the agent of the railway company (Miss McLin), offered to return it to her. He was of course entitled to prove this as tending to show good faith and a lack of criminal intent on his part. It was proved by undisputed evidence, however, that after. Miss McUin ceased to be the agent of the company at Cherry Valley, and was succeeded by Stevens, appellant offered to return the property to the latter as such agent on condition that the freight charges which he had paid be refunded to him.
Upon the whole we are of the opinion that appellant was accorded a fair trial, and was convicted upon sufficient evidence. So the judgment is affirmed. | [
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Wood, J.,
(after stating the facts). The instructions were misleading. To constitute the crime of an assault “with intent to murder or kill” under the statute (Kifby’s Dig., § 1588) a specific intent to take the life of the person assaulted must be shown. See Lacefield v. State, 34 Ark. 275; Scott v. State, 49 Ark. 156; Chrisman v. State, 54 Ark. 283. It takes both the “evil intent and the simultaneous resulting act” to complete a crime of this nature. 1 Bish., Crim. Daw § § 729-30-31-35.
AVhere the offense can be committed only by doing “a particular thing with a specific intent, it may be shown that at the time of doing the thing charged the accused was so drunk that he could not have entertained the intent necessary to constitute the crime.” Chrisman v. State, supra; Wood v. State, 34 Ark. 341.
In Byrd v. State, 76 Ark. 286, which the Attorney General cites to sustain the ruling of the court, we held that, “if one voluntarily becomes too drunk to know what he is about, and then without provocation assaults and beats another to death, he commits murder in the second degree, just as if he was sober.”
But the case is not applicable here for the reason that it was a case of murder in the second degree, and there may be cases of murder in the second degree where no specific intent to kill is shown. As Judge Riddick says: “No specific intent to kill is necessary to constitute the crime of murder in the second degree under our statute.” “To commit murder (in the second degree) one need not intend to take life, but to be guilty of an attempt to murder he must so intend. It is not sufficient that his act, had it proved fatal, would have been murder.” 1 Bishop, Cr. Law, § 730.
The court erred in its charge. The judgment is therefore reversed, and the cause is remanded for new trial. | [
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Mehaeey, J.
The appellant was charged in the circuit court of the Chi chas awha district of Mississippi county, Arkansas, with the crime of murder in the first degree for the killing of P. C. Kitsmiller on September 30, 1941; was tried and convicted of the crime of murder in the second degree, and his punishment fixed at ten years in the state penitentiary. An appeal is prosecuted to this court to reverse said judgment.
The killing for which appellant was tried occurred on September 30, 1941. On that day there was held, in the city of Blytheville, Arkansas, the annual National Cotton Picking Contest. Many people attended this meeting. The killing occurred in what is known as the Midnight Inn, which is approximately one and a half miles north of Blytheville on U. S. highway No. 61. In leaving the scene of the cotton picking contest, it was necessary for appellant to pass the Midnight Inn on his way home in Pemiscot county, Missouri. On his way home appellant stopped at the Midnight Inn and went inside. The owners and operators of this inn were absent at the time of the killing and were operating a stand on the grounds at the Cotton Picking Contest, selling drinks and sandwiches. There were, at the inn, Edith G-rizzell and Eloise Parks. The appellant did not know Kitsmiller before this time. At the time appellant entered the Midnight Inn there was no one in the cafe part except the two waitresses. The appellant ordered a bottle of beer, and it was served to him at the counter by the Parks girl. After drinking a portion of the beer appellant got up from the stool at the counter, went around the end of the counter and into the rest room. As he was going around the end of the counter he passed a man whom he did not know. He later learned that this was Kitsmiller. When appellant opened the door to the rest room the G-rizzell woman was standing at the lavatory. The appellant owned and operated a place of business in Holland, Missouri.
It is alleged that the appellant has enemies who had several times sought to take his life, and that for that reason he went armed at all times. There is some conflict in the evidence as to what was said between the appellant and the Grizzell woman when he went into the rest room, 'but the Grizzell woman slapped the appellant, and about this time Kitsmiller came into the rest room, struck appellant in the back of the head, knocking him across the rest room and into the bathtub.'
There is evidence that the appellant apologized both to the Grizzell woman and Kitsmiller and shook hands with the deceased, and shortly thereafter left the building and deceased took his seat at the counter. Appellant shortly thereafter returned and, as he entered the door of the cafe, brandished a pistol and stated, in effect, that he was taking charge, walked over to Kitsmiller and shot him and then leaned over him and fired two more shots.
Information was filed by the deputy prosecuting attorney charging appellant with murder in the first degree. No preliminary hearing was had in the municipal court where the information was filed, but the circuit court convened in Blytheville on October 27, 1941, and appellant was arraigned on a charge of murder in the first degree on information filed by the prosecuting attorney in circuit court.
Thereafter, the appellant filed in the circuit court a motion for a continuance in which he alleged in substance that he had not had reasonable opportunity between the date on which Kitsmiller was killed and the date set for his trial in which to interview material witnesses nor to make any proper investigation in the preparation of his defense, nor to properly prepare for his defense.
The motion for continuance is quite long, and after a hearing, it was overruled by the court.
The court did not err in overruling appellant’s motion for a continuance. This court has many times held that the question of a continuance in a criminal case is within the sound discretion of the court, and its action will not be disturbed on appeal, except where there is a clear abuse of discretion, which amounts' to a denial of justice. Smith v. State, 192 Ark. 967, 96 S. W. 2d 1; Adams v. State, 176 Ark. 916, 5 S. W. 2d 946; Martin v. State, 194 Ark. 711, 109 S. W. 2d 676.
In the case of Banks v. State, 185 Ark. 539, 48 S. W. 2d 847, 82 A. L. R. 1051, this court said: “The first assignment of error is that the court erred in refusing to grant the defendant a continuance. The granting or refusing of continuance is within the sound legal discretion of the court, and this court will not interfere where there has been no abuse of that discretion.” In support of this rule, the court cited the following cases: Golden v. State, 19 Ark. 590; Edmonds v. State, 34 Ark. 720; Jackson v. State, 54 Ark. 243, 15 S. W. 607; Goddard v. State, 78 Ark. 226, 95 S. W. 476; Morris v. State, 102 Ark. 513, 145 S. W. 213; Bruder v. State, 110 Ark. 402, 161 S. W. 1067; Sease v. State, 155 Ark. 130, 244 S. W. 250; Adams v. State, supra.
After the appellant had filed his motion for a continuance, he filed a petition for a change of venue.
Section 10 of art. 2 of the Constitution of the state of Arkansas, after providing for a trial in the county in which the crime shall have been committed, continues as follows: “provided that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of accused, in such manner as iioav is, or may be prescribed by law; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to be heard by himself and his counsel.”
Section 3917 of Pope’s Digest provides that any criminal cause may be removed to the circuit court of another county whenever it shall appear, in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. It is then provided hoAV the application for change of venue shall be made.
Section 3918 reads as follows: “The application of the defendant for such order of removal shall be by petition setting forth the facts on account of wdiich the removal is requested; and the truth of the allegations in such petition shall be supported by the affidavits of two credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way. Reasonable notice of the application shall be given to the attorney for the state. The court shall hear the application and, after considering' the facts set forth in the petition and the affidavits accompanying it and any other affidavits or counter affidavits that may be filed and after hearing any witnesses produced by either party, shall either grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence.”
The Constitution expressly provides that the venue may be changed to any other county of the judicial district in which the indictment is found upon the application of accused “in such manner as now is or may be prescribed by law.” The court has'a right not only to receive counter affidavits and ■consider them, but he' has a right to hear the witnesses produced by either party, • and shall either grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence.
The Constitution having provided that the change of venue may be had in the manner provided by law, it was perfectly proper for the court to consider not only the counter affidavits, but to hear the witnesses offered. The court is authorized to determine the truth of the matter, and he is certainly better qualified to pass on the application for a change of venue than is any one else.
This court recently said: ‘ ‘ This court has ruled that, in order for an affiant to qualify as a credible person under the statute, he must be cognizant of the prejudice existing throughout the whole county, and not merely in portions thereof.” Hedden v. State, 179 Ark. 1079, 20 S. W. 2d 119. The following cases are cited in support of the above rule: Dewein v. State, 120 Ark. 302, 179 S. W. 346; Speer v. State, 130 Ark. 457, 198 S. W. 113; Williams v. State, 162 Ark. 285, 258 S. W. 386; Mills v. State, 168 Ark. 1005, 272 S. W. 671. See, also, Avey v. State, 149 Ark. 642, 233 S. W. 765.
“The statute contemplates that the subscribing witnesses shall have fairly accurate information concerning the state of mind of the inhabitants of the entire county toward the dfendant.” Speer v. State, supra. This case also holds that it has been uniformly held that unless the trial court has abused its discretion in overruling a motion for change of venue, the order is conclusive on appeal. To support this rule the following cases are cited: Bryant v. State, 95 Ark. 239, 129 S. W. 295; Ford v. State, 98 Ark. 139, 135 S. W. 821; McElroy v. State, 100 Ark. 301, 140 S. W. 8. See, also, Dame v. State, 191 Ark. 1107, 89 S. W. 2d 610.
“Where local prejudice rendering impossible an impartial trial is made a cause for change of venue only in case its existence is established to the satisfaction of the judge holding the court, it is the consensus of opinion in criminal cases that the presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed, and that in order to overcome this presumption the defendant must show clearly that this cannot be done. Indeed, a change of venue in a criminal prosecution must be deemed a wrong to the public unless the necessities of justice to the accused require it, and before a court is justified in sustaining an application therefor on account of the prejudice of the inhabitants of the county, it must affirmatively appear that there is such a feeling of prejudice prevailing in the community as will be reasoxxably certain to prevent a fair and impartial trial.” 27 R. O. L. 815.
The appellant has called attention to some cases iix other jurisdictions. In some of those states the trial court has xxo discretion, but this court has repeatedly held that the judge, in passing on this motion, does have discretioxi and unless there is an abuse of this discretion, the judgment of the trial court will not be disturbed.
■ We have very carefully examined all the evidence and have reached the conclusioxx that the tiral court did not err in admitting or rejecting testimony. There is ample evidexxce to support the verdict and finding of the court.
The judgment is affirmed. | [
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Wood, J.
This is the second appeal in this case. 173 Ark. 714, '293 S. W. 19. On the first appeal the cause was reversed, and remanded for a new trial because of th© error of the trial court in refusing certain prayers of the appellant for instructions.
The facts were stated on the former appeal as follows: “In October, 1925, appellant, who had previously served as chief of police of the city of Texarkana, and Virgil Grigson, who was at the time constable of the township in which that city is located, were engaged in the retail meat and grocery business in Texarkana. Grigson had invested about $3,000 in the business and appellant about $160. They had disagreed and had quarreled, and, on and prior to the day on which Smith was killed, both had been drinking heavily. On the morning of the killing appellant Went to the home of Osborne Carpenter to get a large pistol, which he had previously exchanged with Carpenter for a smaller one, and, in examining the pistol to ascertain whether it was loaded, it was accidentally discharged. Appellant told Carpenter he wanted the pistol to shoot beeves with, ¡as he had only a single-action one, and on one occasion he had shot a beef with a smaller gun, and the bullet glanced off the head of the beef and came near hitting the man who was employed, to help appellant butcher the beef. In addition to this pistol, Grigson had a Winchester rifle, which was kept at the store for the same purpose. Grigson and appellant- had a quarrel in the store, and appellant and his sons took Grigson’s pistol away from him. Appellant offered several times that day to fight Grigson, but the challenge was not accepted. Grigison attempted to telephone the police from the store, but appellant refused to permit Mm to use the telephone. Grigson directed Ms son to call the police, but the sons of appellant refused to permit him to do so. Grigson went to his car, but appellant took the key-out of the car, and would not permit Grigson to leave in it. Grigson then went to a filling station a-block away from the store,'and attempted-to call the police headquarters, but got no response. Grigson then called the sheriff’s office, and requested the sheriff to come to the filling station where he then was. In a short time Lish Barber, the sheriff of the county, and Bob Smith, his deputy, drove up to the filling station in separate cars! Grigson told the officers about the difficulty he had had with appellant, whereupon the sheriff, Ms deputy and Grigson drove to the -store. It was-admitted that appellant and his sons knew that Grigson. had gone to call the officers. When the party reached the store they walked in, Grigson leading, the -sheriff next, and Smith behind, and, as they came into the store, Wallace Adams, k son of appellant, remarked, ‘Daddy, there is Lish Barber,’ and appellant replied, ‘Damn Lish Barber — nobody is going to arrest me.’
“The State’s testimony is to the effect that Allen Adams, a younger son of- the appellant, was also in the store, when the officers came in, and that Adams and his sons placed themselves as follows: Wallace Adams was behind a counter, near the front door, armed with his father’s pistol; Allen Adams, the younger son, was in another corner of the store, armed with the Winchester rifle; and appellant was near the center of the store, behind a -small counter, armed with a knife. Ruth Shumaker, a young lady whose home was near appellant’s store, testified that she saw Barber get out of his car, and that he spoke to her, and smiled. Barber walked near the center of the store, and in a friendly way said, ‘Hello, Hendricks.’ The testimony is sharply conflicting as to what then occurred, and the State’s version was not developed until after the appellant had put on his testimony, and one of the errors assigned is the order in which the State was permitted to develop its case. "We state this testimony at this time to preserve the proper chronology. According to appellant and his sons, who testified in their father’s behalf, Barber’s first remark was to inquire, ‘What is the matter with you and the big Irishman?’ meaning Grigson. Appellant answered, ‘ The big son-of-a-hitch was trying to' run me out of my business, and nobody can do that.’ Appellant testified that, when he said this, Grigson jumped back and began to curse, and, as appellant turned towards Grigson, Barber shot appellant, the ball going through appellant’s-arm, penetrating his body aiid lodging in his lung. Appellant further testified, that as soon as Barber shot him, Wallace Adams seized Barber’s -pistol, and -a scuffle for its possession ensued, and that Barber struck Wallace over the head with the pistol. Appellant then took the rifle from the hands of his younger son, Allen, and, as he did so, Barber threw Wallace from him and started towards appellant with his pistol drawn on him, whereupon appellant shot Barber with the rifle. Barber then turned and ran through the screen door, and this was the last appellant saw of Barber.
“Grigson, who was called in rebuttal, :and whose testimony was objected to upon the ground that his testimony was not rebuttal, stated that, when Barber entered the store, Adams came from behind the counter with the knife in his hand, and advanced on Barber, who slowly retreated, pushing appellant back, and telling appellant to drop his knife, but appellant advanced, and struck at Barber with Iris knife, cutting Barber’s hand and left wrist to the bone, and, when Barber drew his pistol, Allen Adams and Barber both fired, and Wallace Adams shot Smith, inflicting a slight flesh wound. All three shots were fired so near together that you could not tell who fired first. Grigson fell down behind the counter, and went out the back door. The shot fired 'by Allen Adams knocked Grigson’s hat off his head. Appellant denied catting 'Barber, and denied that Barber was cut, but several witnesses, including the undertaker who prepared Barber’s body for burial, testified to the.existence of the knife wounds.
“Grigson testified that Smith and Barber left the store, and appellant followed them, and while Barber, who had got into the street, was backing away, appellant shot Barber just above the heart, and Barber died in á few minutes. Just'as this fatal shot was fired, Smith, who was about two-thirds 'across the street, fired two or three shots at appellant as appellant was advancing on Barber. Smith then passed behind an automobile parked on the side of the street, and from there he went along the walk to the house of a man named Whitney, through whose yard he walked, coming out at the rear of Whitney’s lot. Smith then went to the store of J. H. Scott, and appellant saw Smith enter the store. Appellant admitted that, after shooting Barber, he went back into the store, but, in a short time, he came out again and started for Scott’s store with the rifle under his arm. Some boys who saw appellant coming remarked, ‘Yonder he comes, and he will kill all of us.’ Smith and Scott heard this remark, and they came to the door of Scott’s store, and Smith cried out to appellant, ‘Henry, I give up, I throw my gun away,’ and as he said this he drew his pistol from his holster and pitched it in the street, six or eight feet beyond the sidewalk. Appellant called -Smith a vile name and said, ‘Yes, give your soul to God,’ and shot Smith. Appellant denied hearing the remark Smith made about giving up, but two witnesses, who were further from Smith than appellant was, testified that they heard the remark. Smith ran out of the store, and, as he was passing out the "rear door, appellant again shot -Smith, who died the following day. Scott remonstrated with appellant, who said, ‘I’ll kill every damn one of them. ’ ’ ’
At the last trial a witness for the defendant by the name of Wead testified that he saw Bob -Smith go across the street from Mrs. Shumaker’s house. He turned right down toward Gr'igson’s store, went about thirty feet in that direction, then -turned around and started (back toward old man Scott’s store. ■
Mrs. Jenkins, a witness for the defendant, testified that she saw Bob Smith come out of the back of Scott’s store and run. She heard a lot of shooting — couldn’t say that she heard a shot just as he came out. He didn’t, fall, but ran awfully fast. He ran down by the side of Mrs. Edwards’ house and On into Jackson Street, near the welding shop. He didn’t run like he was hurt. Witness didn’t hear him holler when he came out of the back door. She was close enough to have heard him holler if he had done so.
Clyde - Hicks, a witness for the defendant, testified that he took Smith to the hospital after he was shot. Smith told him that Henry Adams shot him, and that he (Smith) emptied his gun at Adams. Witness was holding Smith u-p in the automobile at the time. Smith said that he thought he was dying.
Dr. Hunt, witness for the defendant, testified that he was called to see Bob Smith after he was brought to the hospital. He heard Smith make a statement just before he was operated on. Smith stated that he emptied his gun.
Virgil Grigs on, a witness for the State, testified that he called Lish Barber, the sheriff, over the telephone, and told him that he and Henry .Adams had had some trouble, and he wanted him to come over there. When Barber came into Burrow’s store, witness told him about the difficulty he had with Henry Adams. Witness was then asked what Barber said he would do, and answered, “I don’t remember exactly what he did.say — he said he would go up there and settle it — something—he said he would go up there and talk with him — something like that.” Just the exact words he used the'witness couldn’t say.
It is conceded by counsel for the appellant that, with the above exceptions, the testimony at the last trial was substantially tbe same as it was at the former trial. On the former appeal, after stating the facts, we said: “We are of the opinion that the testimony recited fully justified the court in submitting to the jury the question whether the appellant was guilty of murder as charged, and that the testimony is legally sufficient to support the verdict rendered.” After the above additional testimony developed at the last trial, we are still convinced, after a careful consideration of all the testimony in the record, that it was an issue for the jury to determine whether the appellant was guilty of murder in the first degree as charged. Indeed, learned counsel for the appellant do not contend in their brief on this appeal that there was no testimony to sustain the verdict. The only grounds they urge for reversal on this appeal are the following, which we will now consider.
1. That the court erred in overruling appellant’s motion for a continuance of the cause until a subsequent term to give the appellant an opportunity to' have his witnesses, George Shumaker and Lloyd Jones, present at the trial, and erred in overruling the appellant’s motion for a postponement of the trial until the appellant could have an opportunity of obtaining the depositions of these witnesses to be read at the present trial.
The appellant had George Shumaker and Lloyd Jones subpoenaed ¡as witnesses. They were served with process, and failed to appear on the day the case was set for trial. Appellant asked and obtained an attachment for them.
Ruth Shumaker, a witness for the State, testified, in substance, that ‘ ‘ she was in the front part of her yard when Barber and Smith drove up to the Adams & Grigson store, and that Barber spoke to her, and smiled; that she then was looking for a gas connection under the front part of her house, and heard the first shot, and that she raised up and saw Barber out in the middle of the street, and saw Adams fire at him, and then saw Barber throw his hand to his breast, and turn to go north across tlie street, and'fall; that she saw deceased, Smith, when he reached the sidewalk in front of her house, and saw him come into her yard and'go behind her house, and then saw him come back into the street and cross over it and go in the direction of Scott’s store, and enter Scott’s store; and that, while Smith was crossing the street and going to Scott’s store, she saw Adams follow him down the street, and that Adams was reloading his gun, and then saw Adams shoot at Smith in Scott’s store door, and heard Smith holler, “Oh, oh,” and then saw Adams go into Scott’s store and shoot again, and when Adams came out of Scott’s store she saw him look around at the back end of Scott’s store, and shoot again at Smith as he ran off. ’ ’
In his motion for a continuance the appellant set up that George Shumaker and Lloyd Jones would testify, in substance, that, about a week or ten days after Smith was killed by Henry Adams, they were present at the home of Ruth Shumaker, when she and her mother, Mrs. Cornelia .Shumaker, were discussing the shooting of Smith and what they knew concerning the same; that in this conversation Ruth Shumaker stated that she was under the back end of her house, getting a stove connection, when the first shot was fired, and that she ran into the back of the house through the kitchen, and did not see any of the shooting; that Mrs. Cornelia Shumaker said, in Ruth’s presence, that Ruth did not know anything about the shooting; that Ruth was out at the back end of the house looking for a connection for a gas stove, and that she ran into the back end of the house through the kitchen up to where Mrs. Shumaker was in the front part of the house; that Ruth didn’t see any of it; that Ruth acknowledged that that was true; that George Shumaker testified that he was the uncle of Ruth Shumaker, and that, after the trial at the former term of the court, some time in the spring of 1927, he was visiting Mrs. Cornelia Shumaker, when Ruth Shumaker was present; that at that time she asked witness to buy her a pair of stockings, and told him that Mrs. Lillie Barber, the wife of Lish Barber, had not paid her yet, and that if she conkl get the death sentence of defendant Henry Adams, she, Ruth Shumaker, would be able to buy George Shumaker some socks.
The motion set up that George Shumaker lived at Nash,- Texas, five miles from Texajrkana; that he frequently visited the city of Texarkana, and worked there as a common laborer; that his wife was at that time in a hospital at Texarkana for an operation, and that witness was in attendance at the hospital, and could be served' with process and compelled to come to court if the case were postponed for a reasonable time, and, if not, the court ought to grant a' postponement for the purpose of allowing his deposition to be taken; that said deposition would have been taken but for the fact that the witness faithfully promised that he would 'be present in response to the subpoena that had been served upon him, and defendant believed that he would have been present but for the untimely illness of his wife; that Lloyd Jones, the other witness, also lived at Nash, Texas, and was often in the city of Texarkana, and had faithfully promised the defendant that he also would be present at the trial; that, in the event he could not be reached by the attachment which had been ■ issued for him, the court should grant a continuance or a postponement of the trial, to the end that his testimony might be had.
On the hearing of the motion, the sheriff of Miller County testified that the attachment for these absent witnesses was placed in his hands on the morning after the court convened, October 31,1927; that it was thirty miles from Lewisville to Texarkana; that he reached Texarkana about one o’clock on the day the attachment was placed in his hands, but could not find the witnesses Shumaker and Jones. He believed, if he were given more time, he could catch both of them in Texarkana; that people who lived close to Texarkana, whether in Arkan •sas or Texas, and who came there to trade, almost necessarily go from one State to the other while there, and, if given a reasonable time, he conld in all probability catch both Shnmaker and Jones in Miller County, Arkansas. He learned that Shumaker had been in Texarkana on the day he went there to serve'the attachment, but had taken his wife home'that morning from the hospital.
Judge Carter, one of the attorneys for the appellant, and who was sworn as a witness, stated that the defendant did not receive information about what the witnesses Shumaker and Jones would testify until about a month after the first of September, 1927, when the defendant had the subpoena issued for his witnesses, and, when the defendant first received information about what the witnesses Shumaker and Jones would testify, they immediately had an extra subpoena issued aud served by the sheriff on these witnesses in Miller County, Arkansas.
As soon as the testimony of Judge Carter was completed, the court announced that the attorneys for the defendant might take the depositions of these witnesses in or out of the State, and that the depositions would be read, if they could be had before the close of the trial. Thereupon J. D. Head, one of the attorneys for the defendant, requested the court to specify the time for the defendant to have an opportunity to take the depositions, and that the attorneys be relieved from their duties in the case and the cause adjourned over, to the end that the attorneys might go and take the depositions of these witnesses. The court thereupon announced as follows: “There are several attorneys representing the defendant in this case, and either one o'f the attorneys may go out any time he chooses to take the depositions of these witnesses, if they desire to do so.” The court thereupon overruled the motion to continue or to postpone, to which ruling the appellant duly excepted.
It has been the unvarying practice of this court since its origin not to reverse the ruling of the trial court in granting or refusing such motions unless it clearly appears that the trial court has abused its discretion in making the ruling and that such ruling manifestly operates as a denial of justice. As early as Burriss v. Wise & Hind, 2 Ark. 33, we said: “This court would not reverse a decision or judgment below for merely granting or refusing a continuance, unless it clearly and positively appears from the face of the record that the court who decided the cause had been guilty of a palpable and manifest violation of public duty seriously prejudicing the rights of the parties complaining.” And in Price v. State, 57 Ark. 165-167, 20 S. W. 1091, 1092, we said: “ The 'continuance of causes in criminal and civil cases is in the sound discretion of the trial court, and its refusal to grant a continuance is never ground for a new trial, unless it clearly appears to have been an abuse of such discretion and manifestly operates as a denial of justice.” See cases there cited. See also Bruder v. State, 110 Ark. 402, 116 S. W. 1067; Wood v. State, 159 Ark. 671, 252 S. W. 897; McDonald v. State, 160 Ark. 185, 254 S. W. 549. All cases so holding are too numerous to cite here, as there is no uncertainty about the rule of practice. The difficulty always is to determine whether the trial court abused its discretion after applying the rule to the particular facts in any given case that were considered by the trial court in making its ruling.
Learned counsel for the appellant contend in their brief, and have likewise earnestly insisted in .oral argument, that, under the facts as above set forth, the trial court abused its discretion in overruling their motion for a continuance, or at least for a postponement of trial of the cause, to give them an opportunity to take the depositions of witnesses Shumaker and Jones. There are at least two sound reasons why this contention of counsel cannot be sustained. In the first place, it appears from the record that eight attorneys were counsel for the appellant. When the motion for a continuance, or for a postponement, was being considered, the' court announced that there were several attorneys, and that either one of them, upon notice to the attorney for the State, might go out any time to take the depositions of these witnesses, if they desired to do so, and that such depositions would be read before the end of the trial. The trial was set in the Lafayette Circuit Court on change of venue from'the Miller Circuit Court, and was to begin October 31,1927. The actual trial before the jury began on November 1, 1927, and was concluded November 4, 1927. The distance between Lewisville, the county seat of Lafayette County, where the trial was being conducted, and Texarkana, Miller County, and the pjyice in Texas where witnesses Shumaker and Jones lived, was not over thirty-five miles. It is obvious therefore, from the facts which appellant alleged he could prove by these witnesses, 'that the depositions could have been quickly and easily taken and in ample time to have returned to the Lafayette court before the trial was concluded. All of this could have been done without depriving the appellant of his constitutional right to be heard by counsel.. While the Constitution guarantees to the accused the right to be heard by his counsel (§ 10, art. 2, Constitution of 1874), this provision does not contemplate that he is deprived of any constitutional right unless he is heard at all times by all of the counsel that he may see proper to employ. Therefore, under the liberal offer of the court to have the depositions of these witnesses taken and read at any time the defendant might desire to do so before the close of the testimony, it would appear that the trial court did not abuse its discretion in refusing to continue the cause to a subsequent term, nor in refusing to postpone the trial of the cause to a future day in the term. What the court actually did was tantamount to granting the appellant an opportunity to take the depositions of these witnesses and producing such testimony by deposition. The appellant did not therefore exercise due diligence to procure and produce the alleged testimony of the witnesses Shumaker and Jones, as set forth in his motion for a continuance.
In. the second place, this court has heretofore always ruled that a trial court does not abuse its discretion in overruling a motion for continuance on account of the absence of witnesses where it is shown that such witnesses are nonresidents of the State and thus beyond the jurisdiction of the court. This, for the obvious reason that the court has no power through any of its process to compel the attendance of such witnesses.. In Bruder v. State, supra, we held, quoting syllabus: “It is not an abuse of the trial court’s discretion to refuse a continuance of a criminal trial on account of the absence of nonresident witnesses.” See also Turner v. State, 135 Ark. 381-383, 205 S. W. 659, and cases there cited; also Freeman v. State, 150 Ark. 387-389, 234 S. W. 267, and cases there cited; Hayes v. State, 156 Ark. 180, 245 S. W. 309, and cases there cited; and McDonald v. State, supra.
But counsel for appellant urge that all of these cases can, and should, be differentiated from the case at bar on the facts, which are bottomed mainly on the. testimony of the sheriff to the effect that, if given 'a reasonable time, he could, in all probability, catch both Shumaker and Jones in Miller County, Arkansas, because they lived in close proximity thereto, and frequently were at Texarkana, the county seat of that county. Now, the record shows that this cause had been set as early as August 15, 1927, for trial on Monday, October 31, 1927. On account of the large number of witnesses residing in Miller County who had to be in attendance by reason of the change of venue and the magnitude of the cause and the length of time that would necessarily be consumed in the trial of the case, it involved large costs both to the State and county, as well as great inconvenience and considerable expense to the individuals connected therewith. Certainly the trial court was justified in taking all these circumstances into consideration in determining whether or not he should end the cause at that term of continue same to a subsequent term. The trial court doubtless concluded that the probability of compelling the attendance of witnesses Shumaker and Jones would, at least, be no greater at a subsequent term of the court • than it then was. An attachment had been placed in the hands of the sheriff for them, and he had attempted to serve the same, but had been unable to do so. If these witnesses, who resided beyond the jurisdiction of the court, were then avoiding the court’s process by remain- . ing beyond the jurisdiction of the court, they could at all future times when the court was in session so escape its process. Thus the court has no more than a probability that, if the cause were continued, the attendance of the witnesses might possibly be had at a subsequent term. Under these circumstances we are convinced that the trial court not only did not abuse its discretion but that its discretion was in all respects wisely and correctly exercised.
2. Counsel complain of the alleged errors of the court in granting the State’s prayer for-instruction No. 18 and in refusing to grant appellant’s prayers for instructions Nos. 7 and 7a, 18, 19, 20 and '21. (See footnote). It would unduly extend this opinion and would serve no useful purpose as a precedent to set out and discuss in detail all of the assignments of error in the rulings of the court in the .granting and refusing prayers for instructions. We have examined them all carefully, and do not find that there was any error prejudicial to the appellant in any of the court’s rulings in this respect. Let it suffice to say that the 'State’s prayer for instruction No. 18 (see footnote) does not invade the province of the jury, was based upon the testimony, and is not susceptible of the construction which counsel for appellant claim.
Appellant’s prayer for instruction No. 7 and likewise No. 7a were fully covered by appellant’s prayers for instructions Nos. 7b and No. 8, which the court granted (See footnote) . Instruction No. 7b and No. 8 were given in the identical language of instruction No. 7b and No. 8, which were asked at the last trial and refused. This court on the former appeal held that the trial, court erred in refusing appellant’s prayers for instruction No. 7b and No. 8, and reversed the judgment and remanded the cause for a new trial because of such error. On the trial from which this appeal comes these prayers were granted. The idea which these prayers were intended to cover, as stated in the former opinion, is as • follows: “If the sheriff and his deputy were not acting in the capacity of officers of the law, with the right to so act, no account should be taken of the fact that they were officers. In other words, the fact that Barber and Smith were officers of the law was not a circumstance to he considered by the jury, unless the officers had the right to act in that capacity and were so acting.” In thus granting appellant’s prayers for instructions No. 7b and No. 8 at the last trial, the court fully and correctly covered the testimony adduced hearing upon that subject, and did not err in refusing appellant’s prayers No. 7 and No. 7a, which concerned the same subject. Moreover, appellant’s prayers for instructions Nos. 7 and 7a on the last trial were not correct either in form or substance. They were incomplete, and were argumentative in form because they unduly stressed particular phases of the testimony.
Appellant’s prayer for instruction No. 18 is as follows :
“You are instructed that, in the event you find from the evidence there are two equally reasonable views of the evidence which may be adopted bv the jury, one of which leads to the conclusion of guilt and one of which leads to the conclusion of innocence, and that the testimony tending to show each of said theories is of equal probability or truth, then you are instructed that it is your duty to adopt that view of the evidence that leads to the conclusion of innocence, and acquit the defendant.”
Appellant’s prayer for instruction No. 19 embodied the same idea and theory, and we therefore do not set it out.
Even if it could be said that this was a case depending wholly upon circumstantial evidence, nevertheless the court did not err in refusing to grant appellant’s prayers for instructions Nos. 18 and 19, because the court had already fully and correctly instructed the jury on the credibility of witnesses, tbe weight of evidence, the presumption of innocence, and reasonable doubt. In Barton v. State, 175 Ark. 120, 298 S. W. 867, we said, referring to the refusal of the trial court to give a similar instruction :
“We have held, however, that it is not improper to refuse to give such an instruction, even in cases where conviction was asked wholly upon circumstantial evidence, where the jury was properly instructed as to the burden of proof-resting on the State to establish the guilt of the accused beyond a reasonable doubt, and where reasonable doubt was properly defined. Rogers v. State, 163 Ark. 252, 260 S. W. 23; Bost v. State, 140 Ark. 254, 215 S. W. 615; Cooper v. State, 145 Ark. 403, 224 S. W. 726; Cummins v. State, 163 Ark. 24, 258 S. W. 622; Barker v. State, 135 Ark. 404, 205 S. W. 805; Garrett v. State, 171 Ark. 297, 284 S. W. 734; Rogers v. State, 163 Ark. 252, 260 S. W. 23.”
The above correctly declares the law, and it is not in conflict with any of our previous decisions.
But the case iat bar does not depend wholly, if indeed at all, upon circumstantial evidence. We regard it rather as a case where the guilt or innocence of the defendant depended upon the direct testimony of witnesses as to facts related by them and the weight and credibility to be given by the jury to the testimony of such witnesses, tí we are correct in this conclusion, it would have been positive affirmative error for the trial court to give instructions Nos. 18 and 19. These instructions are wholly improper and erroneous, except in cases depending wholly upon circumstantial evidence, where the jury is to draw its conclusions only from circumstances and not from the direct evidence of. eye-witnesses. The prayers for instructions Nos. 18 and 19, if granted in the case at bar, would- have been argumentative, and calculated to confuse and mislead the jury. Therefore the court did not err in refusing them. The ruling of the court in refusing these prayers'for instructions is in perfect accord with the doctrine of our cases as announced in Wacaster v. State, 172 Ark. 983, 291 S. W. 85; Garrett v. State, 171 Ark. 297, 284 S. W. 734; Cooper v. State, 145 Ark. 403, 224 S. W. 726; DeShazo v. State, 120 Ark. 495, 179 S. W. 1012; Rogers v. State, 163 Ark. 252, 260 S. W. 23; Cummins v. State, 163 Ark. 24, 258 S. W. 622; Barker v. State, 135 Ark. 405, 205 S. W. 805—commented upon in brief of counsel for appellant. Indeed, we do not consider that the case of Barton v. State, supra, is out of harmony with onr other cases when the facts of all these cases are differentiated and the law applicable thereto correctly apprehended. It-is certain that appellant’s px'ayers for instructions Nos. 18 and 19 are not applicable to the facts of this record, and the trial court did not err in refusing them.
Appellant’s prayers for instructions Nos. 20 and 21 are as follows:
“20. You are instructed that evidence of good character, where introduced, is evidence in favor of the party possessing it, and, if believed by the jury, it goes to augment the presumption of innocence which the law raises on behalf of the defendant.
“21. You are instructed that defendant has introduced testimony tending to show he has, in the community in which he lives, a good reputation as a peaceable, quiet, law-abiding citizen (and that this evidence is substantive .proof in defendant’s favor), and must'be considered by you in connection with all the other testimony in arriving at a conclusion as to the guilt or innocence of defendant.”
These instructions are erroneous, and the court ruled correctly in refusing them. The court modified appellant’s prayer for instruction No. 21 by striking out the words' contained in the parentheses, and gave the instruction as thus modified, which ruling was according to the doctrine of this court as announced in Eady v. State, 168 Ark. 731, 271 S. W. 338.
3. The last contention of counsel for appellant is that the court made remarks during the trial, while the testimony was being adduced, that were erroneous and prejudicial to appellant, and also that tbe court erred in allowing Congressman Tillman Parks, especially employed counsel for tbe prosecution, in tbe closing argument for tbe State, to make remarks concerning appellant’s counsel and other remarks that were highly prejudicial to the appellant, and did not by its ruling remove from the minds of the jury the prejudicial effect of such remarks. We deem it unnecessary to catalogue and comment upon all the remarks that were made by the court and counsel. It is a complete answer to this assignment of error to say that the court told the jury, in express terms, not to consider at all any remarks made by the court during the taking of the testimony to which counsel had objected. These remarks, at least, were not of such a flagrant character as to produce any lasting impression in the minds of the jury prejudicial to the appellant. If they were calculated to prejudice appellant at all, the ruling of the court telling the jury not to consider them was sufficient to eliminate that prejudice.
Certain remarks were made by Parks concerning Jim Landis, counsel for the appellant, to 'the effect that the speaker had known him as a follower of the lowly Nazarene, and deploring the fact that, “on the threshold of a new career, he was enlisted in behalf of a man who was a murderer.” Likewise Mr. Parks referred to Judge Carter’s career on the circuit bench — how he then thundered against crime et c&tera, but now he too was found on the side of one who had violated the law, as the speaker would have the jury infer. Mr. Parks alluded to an effort being made by the attorneys for the defendant, before Barber’s body was placed in the ground, seeking evidence in his behalf. Among other things, Mr. Parks said that what took ‘Bob Smith down to the G-rigson & Adams store on the fatal day was, £ £ 0, the beckoning hand of duty, the silver hand of duty, ’ ’ and other similar remarks, which we deem it unnecessary to set forth and comment upon in detail. As soon as any objection was made to any of these remarks, the court promptly admonished counsel that they wefe improper, and, in effect, to confine himself to the record, and instructed the jury not to consider these remarks.
Trial courts, in the very nature of the case, must be, and are, vested with wide discretion in determining whether the remarks of counsel in argument are within their legitimate scope, or whether they transcend the bounds set for them by the well established rules of practice which this court has so often announced to govern and guide trial courts in the matter of passing upon the arguments of counsel. Perhaps, the rule has never been better stated by any court than was stated by the Supreme Court of Wisconsin in Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582, through its Chief Justice Ryan, and adopted by our own court in Little Rook & Ft. Smith Ry. Co. v. Gaveness, 48 Ark. 106, 2 S. W. 505, and quoted by Judge Battle, speaking for the court in that case, as follows:
“The profession of the law is instituted for the administration of justice. The duties of the bench and bar differ in kind, not in purpose. The duty of both alike is to establish the truth and to apply the law to it. It is essential to the proper administration of justice, frail and uncertain at the best, that all that can be said for each party, in the determination of fact and law, should be heard. Forensic strife is but a method, and a mighty one, to ascertain the truth and the law governing the truth. It is the duty of counsel to make the most of the case which his client is able to give him, but counsel is out of his duty and his right, and outside of the principle and object of his profession, when he travels outside of his client’s case and assumes to supply its deficiencies. Therefore is it that the nice sense of the profession regards with such distrust and aversion the testimony of a lawyer in favor of his client. It is the duty and right of counsel to indulge in all fair argument in favor of the right of his client, but he is outside of his duty and his right when he appeals to prejudice irrelevant to the case. Properly, prejudice has no more sanction at the bar than on the bench. But an advocate may make himself the alter ego of his client, and indulge in prejudice in his favor. He may even share his client’s prejudice against his adversary, as far as they rest on the facts in his case. But he has neither duty nor right to appeal to prejudices, just or unjust, against his adversary, dehors the very case he has to try. The very fullest freedom of speech, within the duty of his profession, should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof. It may sometimes be a very difficult and delicate duty to confine counsel to a legitimate course of argument. But, like other difficult and delicate duties, it must be performed by those upon whom the law imposes it. It is the duty of the circuit courts, in jury trials, to interfere in all proper cases of their own motion. This is due to truth and justice. And if counsel persevere in arguing upon pertinent facts not 'before the jury, or appealing to prejudices foreign to the case in evidence, exception may be taken by the other side, which may be good ground for a new trial, or for a reversal of the court.”
The same great judge again voiced the unanimous opinion of this court in his own strong and lucid language, when he declared the proper practice for trial courts to follow in such cases in Kansas City & C. R. Co. v. Sokal, 61 Ark. 137, 32 S. W. 497. Again, Judge Battle, speaking for the court in Holder v. State, 58 Ark. 473, 25 S. W. 279, 281, at page 481, declares' the rule and duty, particularly with reference to prosecuting attorneys, as follows:
“A prosecuting attorney is a public officer ‘acting-in a gwjsi-judicial capacity. ’ It is his duty to use all fair, honorable, reasonable and lawful means to secure - the conviction of the guilty who are or may be indicted in the courts of his judicial circuit. He should see that they have a fair and impartial trial, and avoid convictions contrary to law. Nothing should tempt him to appeal to prejudice, to pervert the testimony, or make statements to the jury which, whether true or not, have not been proved. The desire for success .should never induce him to endeavor to obtain a verdict by arguments based on anything except the evidence in the case and the conclusions legitimately deducible from the law applicable to the same. To convict and punish a person through the influence of prejudice and caprice is as pernicious in its consequences, as the escape of a guilty man. The forms of law should never be prostituted to such a purpose.”
See Vaughan v. State, 58 Ark. 353, at page 368, 24 S. W. 885, where the rule is also announced. Doran v. State, 141 Ark. 442, at page 447, 217 S. W. 485. These rules have never been departed from. See Kansas City Southern Ry. Co. v. Murphy, 74 Ark. 256, 85 S. W. 428, where Chief Justice Hill, speaking for the court, clearly and cogently states the rules concerning remarks of counsel as they had been announced by this court in previous decisions to that date (1905), and in the opinion he collates all of our cases upon the subject. Again we may say here that there is no controversy or uncertainty as to the rules themselves, but the difficulty always is in their application to the facts of each particular case. That is the matter here which has given us very grave concern.
Now, it is sufficient to say of all the above and other similar remarks of Mr. Parks that they constituted improper argument; but, after he was so told by the court, it is exceedingly doubtful whether they had any effect on the minds of the jury prejudicial to the appellant. If so, we are convinced that the rulings of the court declaring them improper and directing the jury not to consider same removed all possible prejudice from their minds. The ad captandwn, ad hominem, remarks of the Congressman, in which he turned from the facts and the law of the case to express his opinion of Mr. Landis and judge Carter, of counsel for the defendant, because they had accepted employment to defend the accused, were, of course, highly improper, because his purpose was to appeal to the passion and prejudice of the jury. But the court admonished counsel that such argument was improper, and that he should not make it. When the remarks themselves are analyzed, we discover nothing in them derogatory to the character of Mr. Landis or Judge Carter. These gentlemen were both doubtless as well known to the jury as they were to Mr. Parks. The jurors, as sensible men, would understand the relation that a lawyer sustains to his client and the duty he owes his client. No doubt a sensible, fair-minded jury would be quick to resent any remark which they regarded as a reflection on the character of these gentlemen, and especially upon the integrity and the eminent public service of their former circuit judge. They perhaps would regard as wicked and slanderous any remarks which they considered an aspersion upon Judge Carter and Mr. Landis, and would say, in answer to the offender, “his mischief shall return upon his own head and his unfair dealings shall come down upon his own pate,” and he shall reap no benefit therefrom by our verdict.
When we consider therefore that the remarks concerning Judge Carter and Mr. Landis were but tanta-, mount to the expression of an opinion, and that they were not derogatory in character, but rather the reverse, and that the attorney making them was admonished by the court that such an argument was improper, it is problematical whether such remarks, if they had any effect at all, did not in fact tend to influence the jury in favor of the appellant instead of against him. We have therefore reached the conclusion that the remarks of a personal nature, under the circumstances, had no prejudicial effect whatever upon appellant's rights. 'This court will always reverse where counsel go beyond the record to state facts that are prejudicial to the opposite party, unless the trial court, by its ruling, has removed the prejudice. Hughes v. State, 154 Ark. 621, 243 S. W. 70; Hayes v. State, 169 Ark. 1173, 278 S. W. 15; Sanders v. State, 175 Ark. 61, 296 S. W. 70. But this court does not reverse for the mere expression of opinion of counsel in tlieir argument before juries, unless so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect.
After careful consideration of the whole record we find no error for which the judgment should be reversed. The same is therefore affirmed.
Note: No. 18, for the State: “If the jury believes from the evidence, beyond a reasonable doubt, that the defendant could have, at any time from the beginning of the difficulty, if you find that there was a prior difficulty, to the ending of the meeting between himself and the deceased, when the deceased was killed, if you find beyond a reasonable doubt that he was killed by defendant at the ending of said last meeting between them, reasonably withdrawn from or avoided the difficulty, with safety to himself, but failed to do so, he could not justify the killing on the ground of self-defense.”
“No. 7. You are instructed that neither the sheriff nor. his deputy, as such, had any authority, by virtue of their office, to settle or attempt to settle any dispute 'between Grigson and Adams, and- if they went to said store where Adams was for -the purpose of settling or attempting to settle any such dispute, then you are instructed that, in so doing, they were acting wholly without their official duties and solely in their capacities as individuals.
“No. 7a. You are instructed that there is no evidence that Sheriff Barber and / or his deputy were or was acting in an official capacity when they went to the store where the shooting occurred, nor is there any proof that they or either of them were attempting to arrest the defendant; hence you are instructed that, in considering this case, you must look at it in the same way as if Lish Barber and Bob Smith were not officers.
“No. 7-b. You are instructed that, if you find from the evidence that the sheriff and / or his deputy did not go into the store for the purpose of arresting the defendant for a felony, then you are instructed that the sheriff and / or his deputy had no other or better rights in said store at -the time than any private individual.
“No. 8. You are instructed that the sheriff and his deputy had no right, under the law, to attempt to arrest the defendant for any disturbance or row the defendant may have had w-ith Grigson prior to the time of the arrival of the sheriff or his deputy at the- store where the shooting occurred, unless you find they had a warrant for him, and if they or either of them attempted to do so without a warrant, then you are instructed that in such attempt they were acting in violation of the law, and in violation of the rights of the defendant.” | [
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Holt, J.
On and prior to July 3, 1942, there was filed with the Secretary of State a petition made np of a large number of parts which contained the names of 27,194 signer's. This petition was in support of proposed Initiated Act No. 1 which its sponsors refer to as the “Local Option Act.”
The Secretary of State found, and declared, that the ballot title to the proposed act was sufficient and that the requisite number of signers appeared on the petition to entitle .said act No. 1 to be placed on the ballot to be voted upon at the general election to be held November 3, 1942. Immediately after the ruling of the Secretary of State on the petition, plaintiff here made a check of the signatures appearing on the various parts of the petition, and on September 5, 1942,-filed complaint in this court in which he questioned the sufficiency of the ballot title to the proposed act, and further alleged that the petition does not contain the names of the requisite number of legally qualified electors.
It is contended by plaintiff and not denied by defendants that the petition must contain the genuine signatures of at least 16,192 qualified electors before the act in question may be voted upon, and that if as many as 11,003 illegal signatures appear on the petition then it would be insufficient. Plaintiff has furnished us with a tabulation in which there are grouped and classified the challenged signatures appearing on the petition. Plaintiff claims that 79 signatures do not correspond with the certificate; that 264 are duplicates; 72 ineligible, scratched out or not certified; 224 have been “tampered with”; that 3,680 had no poll tax; that signatures of 792 were not properly witnessed by the circulator; that 10,752 appear on parts of the petition on which two or more names appear in similar handwriting and that a total of 15,838 illegal names appear upon the petition.
We proceed first to consider the sufficiency of the ballot title which reads as follows: “An Act to Amend the Liquor Laws of the State of Arkansas so as to Provide for Better Local Option Laws for Prohibiting the Manufacture or Sale or the Bartering, Loaning or Giving Away of Intoxicating Liquors; for Defining Intoxicating Liquors; for Fixing Penalties for the Violation of the Law in Territory Made Dry Under the Provisions of this Act; and for Other Purposes.”
This court has many times had occasion to discuss the sufficiency of ballot titles and has consistently followed the general rule announced in Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356, 44 S. W. 2d 331, wherein it is said: “The ballot title should be complete enough to convey an intelligible idea of the scope and import of the proposed law and that it ought to be free from any misleading tendency, whether of amplification, or omission, or of fallacy, and that it must contain no partisan coloring.” No hard and fast rule as a guide has been announced by this court. We have held that an abstract or synopsis of the act is not essential in the ballot title, and that the provisions of amendment No. 7 referring to ballot titles should always be liberally construed.
In the comparatively recent case of Newton v. Hall, 196 Ark. 929, 120 S. W. 2d 364, this question was gone into rather extensively, and after considering many of our own cases, as well as cases from other jurisdictions, we there said: “In the opinion (referring to the case of Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248), in which all the judges concurred, we held that the provisions of amendment No. 7, with reference to ballot titles, should be liberally construed, and that the ballot title was sufficient. In so holding we said: ‘It may be observed that if the ballot title were intended to be so elaborate as to set forth all the details of the act, the publication, or advertisement, might, for that very obvious reason, be omitted. Perhaps no set rule or formula can be announced as to what a ballot title shall contain, but it may be safely stated that, if it shall identify the proposed act and shall fairly allege the general purposes thereof, it is sufficient.’ That case quoted the language of Chief Justice McSherry of the court of appeals of Maryland in the case of Mayor of City of Baltimore v. Stewart, 92 Md. 535, 48 Atl. 165, as follows: ‘It has never been understood that the title of a statute should dis close the details embodied in the act. It is intended simply to indicate the subject to which the statute relates. . . . When the general subject is indicated, no’detail matters need be mentioned in the title. ’ ’ ’
In the ballot title before us it is clear and certain that it is proposed to amend- the local option laws on the subject of prohibiting the manufacture,' sale or the bartering, loaning or giving away of intoxicating liquors and to provide penalties for the violation of the law in territory made dry under the provisions of the act. This we think is sufficient. The details of the act need not be recited as its general purpose is clearly stated.
2.
We come now to a consideration of the sufficiency of the number of qualified signers on the petition. It is conceded that prima facie the petition contains 11,003 more signatures than is required to initiate the act. This excess is such as to make it unnecessary to consider such questions as that persons who had not paid their poll tax and therefore' not qualified electors had signed the petition. All signatures questioned by plaintiff for this and other reasons bearing upon the qualifications of the signers of the petition may be stricken and a sufficient number of signers remain to initiate the act. As we view it, there is only one theory upon which plaintiff may be awarded the relief prayed and the submission of the act to the electorate enjoined and that is this — a handwriting expert, whose testimony is undisputed, stated that he had examined all of the parts of the petition and gave the names, petition numbers and signature line numbers of certain signers which were in the handwriting of persons who had signed other names. He testified to a total number of 10,381 names appearing on different parts of the petition, and that some of these names were in the .same handwriting. This does not mean, however, that one person wrote all of these 10,381 names. That would be a fraud too obvious for doubt. But it means that different persons had written more than one signature on parts of the petition and that those names so written, together with all other names on these parts, total 10,381. The objection to counting any of these signatures is that they appear on parts of the petition verified by affidavits of the circulators and that these names being false, since they were not the signatures of the persons whose names appeared, voided all the names on the parts of the petition where these names appear. In more than 100 instances the names would apparently be that of husband and wife as John Smith and Mrs. John Smith. In other instances, according to this handwriting expert, one person had written more than one name.
Plaintiff argues here that all of the names on the parts of the petition containing such names should be stricken for the reason that the affidavit of the circulator is false. 'It is conceded that if this be done enough names will not remain to authorize the submission of the act. In support of this contention plaintiff strongly relies upon the opinions of this court in the cases of Hargis v. Hall, 196 Ark. 878, 120 S. W. 2d 335, and Sturdy v. Hall, 201 Ark. 38, 143 S. W. 2d 547, and especially the latter case. Both of these opinions are to the effect that each petitioner must sign his own name and that no signature may be counted unless signed by the petitioner himself. But the question before us is what is the effect upon a petition containing signatures not signed by the petitioners whose names appear on the petition. Must the entire petition be disregarded, or is it required only to strike out the particular improper signature ? The answer to this question must depend upon whether the circulator of the parts of the petition was guilty of fraud in permitting this to be done. In Sturdy v. Hall, supra, the circulator was likened to an official holding an election. We there said that if it were shown only that an irregular vote had been cast it was required only that such vote be excluded, but that if the fraud were permitted by the election officer, or with his knowledge and connivance, then the signature of the election officer as to the result of the election would be disregarded as unworthy of belief. The election certificate would have lost its prima facie verity and only those votes Would be counted which were shown, by testimony alkmde to have been legal and proper. So in the instant case- persons wrongfully signing may not be counted and must be excluded, but only such names should be excluded and not counted unless it appears that the circulator was a party to the fraud of procuring illegal and improper signatures. This would not be true under the laws of the state of South Dakota, shown by the opinion of the Supreme Court of that state in the case of Milford v. Pyle, 53 S. D. 356, 220 N. W. 907, cited and quoted from in our case of Sturdy v. Hall, supra, and strongly relied upon by plaintiff here. This is true because as stated in the South Dakota case “where a person circulates a referendum petition (and the rule is not different in the case of petitions to initiate an act) it is his duty to see and personally know every person who signs it. Unless he does know them and see them all sign he can not honestly say that he is acquainted with each signer and that each of them signed it personally and that each of them added to his signature his place of residence, his business, his post office address and the date of signing’.’ and that “when a person not knowing these facts makes the affidavit above set out such affidavit is false and must be knowingly false and all the names on such petition must be rejected.”
But our amendment does not impose these strict requirements upon the circulators of petitions in this state as it is required only that “each part to the petition shall have attached thereto the affidavit of the person circulating the same that all signatures thereon were made in the presence of the affiant and that to the best of the affiant’s knowledge and belief each signature is genuine, and that the person signing is a legal voter, and no other affidavit or verification shall be required to establish the genuineness of such signatures,” that is to give them prima facie that effect. In Sturdy v. Hall, supra, we said: “. . . . there is no explanation, or attempt to explain, by the circulators who have made false affidavits that signatures were genuine, and, certainly, it must be presumed, at least in the absence of any explanation to the contrary, that a person who made an affidavit that certain statements were true did so intentionally.”
In the instant case we are faced with no such situation, for petitioner says: “At the outset . . . [we] . . . express regret over the fact that it was necessary ... to show that many instances of irregularities occurred in the petitions. The instances were so numerous that they could not be overlooked. Yet (petitioner) is not urging these irregularities as indicating any criminal intention of the parties responsible therefor to willfully violate the law. Rather, the (petitioner) is of the opinion that the responsible parties were motivated by overzealousness.”
In Hargis v. Hall, 196 Ark. 878, 120 S. W. 2d 335, we held that certain provisions of the enabling act of June 30, 1911, had not been repealed, the unrepealed portion being: “Any person signing any name other than his own to (an initiated petition), or who shall knowingly sign his name more than once for the same measure at any one election, or who shall sign such petition when he is not a legal voter, . . . shall be guilty of a felony, and shall be imprisoned in the state penitentiary for not less than one year nor more than five years. ’ ’
The preceding section deals with signers of petitions, as distinguished from circulators. But certainly, if one circulating part of a petition fraudulently signs a name, or if without authority he signs some one’s name, there is active fraud, involving forgery, and a crime has been committed.
But petitioners say the transactions complained of were mere irregularities - induced by overzealousness, and that no crime was committed. If there were no willful violation of the law by those who circulated the petitions, then it cannot be said that an occasional duplication of names nullifies the entire sheet upon which a long list of electors had in good faith petitioned for submission of the question at issue.
Now it may be conceded that undisputed testimony establishes the fact that names appear on the petition not signed by the party whose name appears; but if this were not done with the wrongful intent and with conniyance between the signer and the. circulator, we think only the particular name wrongfully signed should be stricken and not all the names appearing on that petition.
If this rule is adopted, and we adopt it, there remains on the parts of the petition, collectively considered, a sufficient number of names to require the submission of the act to the electorate. The prayer of plaintiff’s complaint is denied.
Smith, Mehaeey and McHaney, JJ., dissent. | [
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Mehaeby, J.
Appellee, plaintiff below, brought suit against the appellant, defendant below, for personal injuries, alleging that the appellant is a corporation! organized and existing under the laws of the State of Louisiana, authorized to do business in Arkansas, and is engaged in the business of drilling oil wells and handling machinery used for that purpose; that, on the 21st day of December, 1925, appellee, who was in the employ of appellant, was working under orders and directions of appellant’s foreman, and was engaged in moving a cable from one well to another; that, after one end of the cable had been hauled along the ground by a team and attached to shaft, which was run by an engine, to wind the cable on the shaft, and thus to pull it from one well to the other, appellee was told by the foreman to put the men on the line so as to keep the cable straightened out and released from stumps and trees while it was being drawn along on the ground in the process of winding it on to the shaft; that, after plaintiff had walked about three hundred feet away from the engine, and had placed -the other men along the cable, appellant’s servant in charge of the engine negligently and carelessly and without warning started up said engine, thereby tightening up the cable while it was lying against a stump in the curved position, thus causing it to pull over the stump and strike appellee on the leg with great force, breaking both bones of his leg; that he was taken to the hospital, where he remained several days, and suffered severe and excruciating pain of both body and mind, and that he ivas thus made a cripple for life, and still suffered from said injuries. He asked for damages in the sum of $3,000.
The appellant answered, denying all the material allegations, and denying that it was a corporation.
The evidence offered by appellee tended to show that, when he went ont on the line, the engine was not running, the cable was not moving, and that it was the understanding that the engine w;ould not be started without a signal; that no signal was given; that the engineer, without signal and without warning, negligently started the engine, tightened the cable, and thereby caused it to hit appellee on the leg, breaking his leg, as alleged in his complaint.
The undisputed evidence showed that Lantz was the foreman, and had directed the appellee and other employees to get out on the line and keep the kinks out of the cable.
Appellant’s testimony tended to show that he could see only one of the men, but that man signaled him to start the engine, and he then kept on a continuous pulling until the accident.
There is some conflict in the evidence, but the jury’s finding on the facts is conclusive as to the facts, since there was sufficient evidence to support its verdict.
The appellant’s first contention is that there was not sufficient proof that the appellant was a corporation. We do not agree with the appellant in this contention. It was alleged that the appellant was a foreign corporation organized under the laws of the State of Louisiana. The appellant, in its answer, denies that it was a corporation duly organized under the laws of the State of Louisiana. It admits that it is engaged in drilling- oil wells and handling machinery for that purpose, and employing laborers.
The appellee introduced in evidence the certificate of the Secretary of State, which stated, among other things, that the appellant was a corporation organized under the laws of the State of Louisiana, and was issued a certificate of authority to do business in the State of Arkansas on the 23d day of July,.1921, and that said corporation designated Mr. H. P. Cottingham of El Dorado,' Arkansas, as their agent, upon whom service of process may be. served, and did in all ways comply with the law in order to secure said certificate of authority.
The law provides how a foreign corporation may be authorized to do business in this State. Among other things, it shall file in the office of the Secretary of State a copy of its charter or articles of incorporation or association, or a copy of its certificate of incorporation, duly authenticated and certified by the proper authority, etc. According to the certificate of the Secretary of State, the appellant complied with this law, and was doing business in the State of Arkansas under the authority given it after complying with the law, as provided in § 1826 of Crawford & Moses ’ Digest.
The other section of the Digest referred to by appellant relates to domestic corporations alone. This company complied with the law prescribing how foreign corporations might do business in this State. The certificate introduced showed that it had complied with the law, and, of course, a partnership or a person other than a corporation would not have to comply with this law, but could do business in Arkansas just as a resident or citizen of this State could. The filing of its articles as certified to by the Secretary of State, and asking to do business in the State of Arkansas as a corporation, is shown by the Secretary of State’s certificate. In addition to this, at least one witness testified that he understood that the appellant was a corporation. Appellant’s attorney referred to it during the progress of the trial as a corporation. Of course, calling it a corporation during the trial would not be proof that it was, because the attorney might refer to it in that manner thoughtlessly.
This'appellant appeared in court, filed a motion for continuance and an answer, appearing in the suit that was brought against it as a corporation. It is true it denied in the answer that it was a corporation organized under the laws of the State of Louisiana, but the very fact of appearing and answering in its corporate name, without showing that it was an unincorporated association,- or a name assumed by a partnership or a person, is, we think, an admission of its corporate existence.
It lias been said:
“The rule then is that a corporation, by appearing in a suit which has been brought against it, admits its corporate existence, and estops itself of denying the same. * * * But a party may not come into court and deny his own existence. He may deny his' liability to suit, Ms power to act, or responsibility for his actions; but, coming in, he admits that he exists, so that, when a bill of particulars is filed, stating a cause of action against an alleged corporation, if the party upon whom service is made comes in, and pleads, and goes to trial as the ■defendant sued, there is no need of the plaintiff’s proving that it is the defendant, and that it exists. The defendant thus coming in has admitted its own existence. It will be observed that the present case is not one in which the. defendant corporation makes answer, by special plea or otherwise, that it has ceased to exist, or that it has been dissolved. Its denial is that it ever existed. This it cannot do while appearing and answering as the corporation named as the defendant, and whose liability is soug'ht to be enforced.” Perris Irr. Dist. v. Thompson, (C. C. A.) 116 Federal Reporter 833.
This court, in passing on a similar question, said:
“The court allowed appellant to introduce this certificate over the objection of appellees, but, in finally submitting the case to the jury, the court gave instructions telling the jury that they must return a verdict for defendants unless they found from a' preponderance of the evidence that the laws of this State had been complied with. * * * The effect of the court’s rulings was to first hold that the certificate of the Secretary of State was admissible, and later, by its instructions, to take that evidence away from the jury or weaken its force, because, if the certificate was admissible, it made a case of undisputed evidence as to the right of appellant to do business here. * * * On the other hand, it seems equally clear that, if the statutes of the State, which prescribe the terms upon which corporations shall do business in the State, direct the issuance by the Secretary of a certificate of authority to do business, then such certificate is the best evidence of such authority, and must be received in evidence by the courts when the right of a corporation to do business here is called in question. * * * It is not conceivable that the Legislature intended to prescribe two methods of proving the authority of a corporation to do business in this State, and the method impliedly prescribed by the act of 1907 and expressly by the act of 1911, are identical, and afford the exclusive' method, which is by a certificate of the Secretary of State, and not a certified copy of the articles of incorporation and other documents required to be filed in that office.” J. R. Watkins Medical Co. v. Martin, 132 Ark. 108, 200 S. W. 283, 2 A. L. R. 1230.
“In an action by or against an alleged corporation, plaintiff is not bound to prove its corporate existence or that of defendant, as the case may be, unless an issue as to corporate existence is properly raised by the pleadings ; and if a defendant corporation demurs, answers, ox otherwise appears generally to the action, its corporate existence is thereby admitted, and need not be proved.” 14 C. J. 163.
It is also said, in speaking of making a prima facie case:
‘ ‘ On the other hand, it is generally sufficient to meet the collateral attack by showing a de facto corporate existence or a prima facie estoppel when an action is brought for relief with respect to contracts or dealings by plaintiffs with a body claiming to be a corporation. * * * And it is generally held that there is such presumption of corporate existence, unless it is rebutted by the facts, where an association has contracted in a name or a style usual to corporations, and which discloses no individuals.” 14 C. J. 164.
Since foreign corporations are authorized to do business in Arkansas by a compliance with the laws of this State, prescribing the manner in which they may enter the State and do business, and their e laws apply to’f oreign corporations alone, and they require- the filing of the articles with the Secretary of State, the certificate of the Secretary of State that this has been done and that a certificate has been given to the applicant authorizing it to do business in Arkansas as a foreign corporation, is sufficient evidence of its corporate existence.
The appellant’s next contention is that the court erred in admitting the testimony of witness Sprouse to the effect that appellee, Parish, told him that Lantz had told him, etc. We think this testimony was not prejudicial, bemuse Lantz himself testified about what he told the parties, and testified to other facts that witness Sprouse testified to. We also think the error, if any, in admitting other evidence objected to by 'appellant was harmless. See Chancellor v. Stephens, 136 Ark. 175, 206 S. W. 145; Underdown v. Desha, 142 Ark. 258, 219 S. W. 19; Payne v. Thurston, 148 Ark. 456, 230 S. W. 561; L. J. Smith Const. Co. v. Tate, 151 Ark. 278, 237 S. W. 83.
As to appellant’s third and fourth contentions, we have examined the entire evidence carefully, and think that the verdict of the jury, so far as the facts are concerned, is conclusive; that there is substantial evidence to support the verdict.
The appellant contends that instruction number 8 was erroneous. And, while learned counsel do not state in what particular it is erroneous, we assume that it is because of the statement of the court that, under certain circumstances, “ plaintiff would not be guilty of negligence in crossing over the line as he did, before giving a signal to start.” We think that it would have been proper to have submitted that question to the jury, but instruction number 10,’given at the request of the appellant, contained a similar statement. It told the jury that, under certain circumstances, as a matter of law plaintiff was guilty of contributory negligence, if they found certain facts to be true.
Plaintiff’s instruction number 8 told the jury that, if they found certain facts to be true, they would find that he was' not guilty of contributory negligence. We do not think there was any prejudicial . error in giving instruction number 8. It told the jury that, if they found that plaintiff was instructed by his f oreman, Lantz, to go back on its line that was being pulled to give instructions to its other men while the line was still and not being pulled, and that its line was not to be pulled until the one in charge of the engine was signaled to start it, the plaintiff would not be guilty of contributory negligence. The jury could not have been misled by these instructions, and this court has often held that a case will not be reversed for the giving of an erroneous instruction if the jury could not have been misled.
There is no dispute about the injury to plaintiff nor about his suffering. And, while the appellant says the verdict is excessive, we think the injury yrould have sustained a larger verdict. Both bones of appellee’s leg were broken, and he suffered great pain, and the evidence shows that he still continues to suffer, and the jury returned a verdict for only $2,400. This amount cannot be said to be excessive.
We conclude therefore that there was no prejudicial error in giving instruction number 8 at the request of the appellee. The instructions' taken together,, we think, clearly state the law to the jury, and, while instruction number 8, given at the request of the appellee, and instruction number 10, given at the request of the appellant, should have been given in different form, there was no prejudicial error in this case in giving them in the form in which they were given.
There was substantial evidence to support the verdict, and the case is therefore affirmed. | [
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Ktr-by, J.
This appeal challenges the validity of act 146 of the Acts of the General Assembly of 1927, as not having been passed by the requisite majority of the Legislature, and the authority of the State Debt Board to issue the notes or bonds, because no specific appropriation of the money to be raised by the bond issue was made therein authorizing its use or expenditure.
Appellant, a taxpayer of Jefferson County, brought suit in the Pulaski Chancery Court for an injunction against the State Debt Board to prevent the issuance and sale of the notes or bonds provided for in said act. It was alleged that no appropriation of the money to be raised by the sale of the bonds had been made by the act; that therefore the money realized from the sale of the bonds, bearing 5 per cent, interest, would have to be kept in the treasury until an appropriation for the expenditure thereof could be made by the 1929 Legislature, at a loss of 2 per cent, interest, the difference between the 5 per cent, and the 3 per cent, paid for the State’s funds by depositories; and that said act was invalid, not having received a two-thirds majority of the members of both houses of the General Assembly, as required under § 31, article 5, of the Constitution, the funds not being provided for defraying the necessary expenses of Government, nor for sustaining the common schools.
The Attorney - General demurred to the complaint, and the demurrer was sustained, and, the plaintiff declining to plead further, judgment was rendered against him, from which this appeal is prosecuted.
It is contended, first, that the act is invalid because it did not receive in passing a two-thirds majority of both houses of the Legislature, as provided in § 31, article 5, of the Constitution, which reads: “No State tax shall be allowed, or appropriation of money made, except to raise means for the payment of the just debts of the 'State, for defraying the necessary expenses of Government, to sustain common schools, to repel invasion and suppress insurrection, except by a majority of two-thirds of both houses of the General Assembly. ’ ’
The Normal School for Negroes at Pine Bluff was' first authorized by the Acts of 1873, and operated as a branch of the State University. The Legislature in 1881 recognized the purchase of a site by the board of trustees of the State University, and made appropriation for a building thereon. In 1927, act 341 created a separate board of trustees for the management of this school, but provides that it shall be governed by the same laws, so far as applicable, as provided for the management of the University by its trustees.
The State having adopted this policy for the education of a part of its citizens, and established this school for that purpose, to be operated by its trustees and agents, its maintenance becomes and is a necessary expense of Government within the meaning of said constitutional provision. Vincenheller v. Reagan, 69 Ark. 460, 64 S. W. 278; State v. Sloan, 66 Ark. 575, 53 S. W. 47, 74 Am. St. Rep. 106.
It is next contended that no appropriation is made by the act of the money to be realized by the sale of the notes within the meaning of § 9, article 5, of the Constitution: “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents, and no appropriation shall be for a longer period than two years.”
In Dickinson v. Clibourn, 125 Ark. 101, 187 S. W. 909, the court, construing this provision of the Constitution, said: “Appropriation denotes the setting apart or assigning to a particular use a certain sum of money for a specified purpose, in such a manner that the public officials are authorized to draw and use the sum so iset apart, and no more, for the purpose specified, and no other. Clayton v. Berry, 27 Ark. 129; State v. Moore, 50 Neb. 88, 69 N. W. 373, 61 Am. St. Rep. 538; Stratton v. Green, 45 Cal. 149.” See also Jobe v. Caldwell, 93 Ark. 503, 125 S. W. 423; s. c., 99 Ark. 20, 136 S. W. 966.
The said act 146 authorizes the board of control of the Agricultural, Mechanical and Normal School for Negroes at Pine Bluff to relocate and build a school plant for the institution on lands now owned by it near Pine Bluff, and to acquire any such new property as may be deemed necessary to carry out the purposes of the act. Section 3 authorizes the State Debt Board to’ sell for cash the State’s negotiable or promissory notes from time to time, not to exceed in the aggregate the amount of $275,000, to provide a fund for the purpose of erecting and equipping buildings and for other permanent improvements at said school. Section 4 requires the bonds to be issued in denominations of $1,000, payable serially, through a period of thirty years, and bearing 5 per cent, interest, payable semi-annually. Section 7 provides for the method of sale of the bonds, and that no sale shall be for less than par and accrued interest, or less than the highest bid previously received and rejected. Section 9 provides: “The money arising from the sale of said notes shall be paid into £the Agricultural, Mechanical and Normal School fund,’ and used for no other purposes than the erecting and equipping of buildings, and for other permanent improvements at the Agricultural, Mechanical and Normal School.” Section 11 appropriates out of the fund the sum of $25,000; or so much thereof as necessary, for the payment of expenses incident to the sale of the notes and for any such interest as may fall due in the biemiial period ending June 30, 1929; provided, that the amount paid out under this appropriation shall be deducted from the appropriation made by the General Assembly of 1927 for the support and maintenance of the institution.
Since the maximum amount of money that can he realized from the sale of the bonds, under the provision of the statute, is definitely fixed by the whole amount of the bonds authorized issued, $275,000, which is all required to be put into the treasury for the “Agricultural, Mechanical and Normal School fund,” and used for no other purposes than the erection and equipment of the buildings and other permanent improvements, as provided in § 9 of the act, the majority of the court is of opinion, in which the Chibe Justice, Justice Mehaeey and the writer do not concur, that the act makes an appropriation of the money raised by the sale of the bonds within the meaning of the constitutional provision.
It follows that the court’s action in holding the complaint insufficient, and sustaining the demurrer, was correct, and the decree is affirmed. | [
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Wood, J.
This is an appeal from the Logan Circuit Court for the- Southern District, from the judgment of the court upon a motion to retax the cost accruing by reason of the forfeiture and subsequent judgment upon an appeal bond of one Frank Mclnturf. At the August, 1925, term of the Logan Circuit Court for the Southern District the said Frank Mclnturf was convicted of the crimes of possessing a still and manufacturing mash, and from the judgment of conviction he prayed and was granted an appeal to the Supreme Court of Arkansas, and, his bond being fixed in the sum of $2,000, Laura Mclnturf, Maggie Skinner and J. 0. Kincannon duly executed and filed with the clerk of said court, on the 24th day of August, 1925, their bond in the sum of $2,000, conditioned as required by law for the appearance of said Frank Mclnturf. The appeal on behalf of Mclnturf was never perfected, and, at the regular January, .1926, term-of the Logan Circuit Court for the Southern District, a forfeiture was duly taken on said bond and scire facias issued and served upon the defendants as bondsmen.
Oil tlie 19th day of August, 1926, the same being a day of the regular August, 1926, term of the court, the cause of the State of Arkansas versus Laura Mclnturf, Maggie Skinner and J. 0. Kincannon came on to be heard, and said defendants failed to answer or plead, and judgment on the said bond was rendered against them, and thereafter, on the same day, the defendants filed in open court a proclamation of the Governor suspending all further proceedings upon said judgment for the collection of same, upon condition that defendants pay the court costs, and the court ordered that, upon the payment of the court costs, such proceedings be suspended.
Mrs. Laura Mclnturf paid $155.40, which amount, appellants claim, was all the costs incident to the prosecution of the said Frank Mclnturf.
On the 20th day of August, 1926, the clerk of said circuit court rendered defendants a bill — $200 to the prosecuting attorney and $100 to the sheriff as commission on said bond. The defendants, on “the 23rd of August, 1926, filed this motion to retax cost, and, upon a hearing' thereof, said circuit court rendered a judgment against the defendants for $313.75 ($6.75 to the clerk, which has been paid), $205 for the prosecuting attorney and $102.10 for the sheriff, from which' is this appeal.
This case is ruled completely as to the prosecuting attorney’s fee by the case of CarlLee v. Williams, 111 Ark. 465, 163 S. W. 1198, where we held, quoting syllabus : “Where a prosecuting attorney recovers .judgment on a forfeited bail bond, he is entitled to his fee of ten per cent, of the amount recovered, and a proclamation of the Governor remitting the forfeiture and relieving the bondsmen from liability does not remit the fee due the prosecuting attorney.” In the above case this court cites and quotes from former decisions of the court. It would be supererogation to repeat here what we there said. In addition to the eases there cited and quoted from, see also Cole v. State, 84 Ark. 473, 106 S. W. 673, and Edward v. State, 12 Ark. 122. In the last case we said: “Costs are neither fines nor forfeitures, nor are they imposed by way of punishment or as amercement at common law, but bjr way of sequence to every judgment, whether in civil or criminal cases, as a matter of common justice to the parties complainant, witnesses and officers of the court, although the judgment is in favor of the complainant alone, costs, then, partakiug .in no respect of the nature either of punishment or of guilt, are without the sphere of the legitimate legal operation of a pardon, however general in its terms.”
In 20 R. C. L., at page 531-532, § 12, the general doctrine is stated as follows: “While an executive may remit costs and tax fees due to the State, he has no power to remit costs which belong to private individuals or to court officers.” While the Governor’s proclamation was dated on August 18, 1926, it was not filed in the office of the clerk of the circuit court of Logan County until August 19, 1926. In the meantime judgment had been rendered by default on the forfeited bail bond, as shown by recitals of such, judgment; therefore the costs, consisting of the fees due the prosecuting attorney and the sheriff under the law, had accrued before the Governor’s proclamation was filed suspending further proceedings on the judgment. Under the doctrine of CarlLee v. Williams, supra, the'trial court ruled correctly in overruling appellant’s motion to retax the costs as to the. prosecuting attorney and in rendering- the judgment ag’ainst them in the sum of $200, being the fee for the prosecuting- attorney. But the court erred in not granting the motion as to the fee of the sheriff. Act 220 of the Acts of 1925, pages 649-51, provides: “The fees for the sheriffs of Arkansas' shall be as follows: For collecting and paying over all fines, penalties and forfeitures, 5 per cent. ’ ’
The uncontroverfed facts show that the sheriff had not collected the amount of the forfeited bond. Therefore he was not entitled to any fee. He is only entitled to such fee as the statute allows him. The judgment allowing the prosecuting- attorney a fee of $200 is affirmed. The judgment awarding the sheriff a fee of $100 is reversed, and. the cause as to him is remanded, with directions to the trial court to enter judgment granting the motion to retax as to the sheriff. | [
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Kirby, J.
'The appellant was indicted for the crime of murder in the first degree for killing one Michal Bush, and was tried thereon and found guilty of murder in the second degree, and his punishment fixed at seven years’ confinement in the State Penitentiary, land prosecutes this appeal from the judgment of conviction.
It appears from the testimony that the deceased was killed in the field of one 'Semelka, by whom he was employed, and whose field joined that of the defendant. That, on the morning of the killing, Semelka and 'Bush were plowing in the' field, and, when Bush* reached the south end of the field land was turning around, some one, lying in wait on the outside of the fence, shot him at close range with a shotgun loaded with No. 4 shot, killing him almost instantly. The weeds and brush were trampled at the spot where the assassin was supposed to have been concealed, and where a blue shotgun shell was found. There were some fresh tracks appearing to have been made that morning, and identified as made by appellant, leading across his potato patch to the strip of woods extending to the Semelka field, where the shot was fired. The same tracks also showed leading back across the potato patch, but could not Ibe discovered after the person making them had gone into the woods.
The officers were notified, came to the scene of the killing, made an examination of the ground, and went to appellant’s house, where they found a shotgun, one barrel of which had been recently fired, and a blue shotgun shell loaded with No. 4 shot of the same kind as the empty shell picked up at the scene of the killing. Upon examination, a piece of green oak leaf was found on one of the hammers of the gun.
Appellant and his 13-year-old son, Andy Humpolak, were both arrested, and the boy was first taken to Pine Bluff and put in jail there, and later was carried to Malvern and put in jail there.
The officers at Pine Bluff said he told them that his father had shot Bush, and, if they would take him home, he would show them exactly the way he went and the way it was done. They took him down there, and he told them that his father had come down across the potato patch with the gun that morning, had first gone to the fence of Semelka’s field, above where the shot was fired, in order to locate Bush, and then had gone around to the end of the field, where he shot him when Bush started to turn around at the end of the rows. He also said that his father had tied the horse he was plowing to the fence and then gone to the house and got his shotgun. When the people had assembled at the killing, and some scream ing and crying could be beard down there, appellant told his boy, Andy, to go down and -see what the trouble-was about. He did not go himself.
The testimony given by Andy Humpolak in the examining court was reduced to writing immediately after-wards, and signed by him in the presence of the -magistrate -and -other witnesses, in which he stated that his father had killed Bush, and, after shooting him, said, “The son-of-a-biteh ain’t going to report anybody any more. ”
Upon the trial in the circuit court this 'boy testified that .his father had not killed Bu-sh, and had not gone away from his home or out of his field that morning; and that he and his father were plowing in his father’s field when the shot was fired. He was asked by the State, which claimed to be surprised at the change of his testimony, if he had testified differently and had stated that his father had shot Bush from the edge of the woods by the field where he was lying in wait; the latter testimony, which was signed by him, being presented along with the question. He admitted that he had made this different statement in the examining court virtually as written, b-ut stated that it was not true, and he was afraid not to make it after having- been put in jail and talked to by the officers.
The prosecuting attorney was. allowed, over the objection of appellant, to read the written statement, which witness admitted he had made and testified was untrue. The court, answering the objections, said: “Yes sir. It will be for the jury to determine along with the other statements made by the witness Humpolak and others.” Objections were also saved to this remark of the court.
It is also complained of as error in the grounds for the motion for a new trial that the -court erred in permitting the pro-secuting attorney to question- -the witness, Andy Humpolak, relative to his oral statement to the various officers investigating the crime, out of the presence of defendant, and to iask him if he had not made certain statements to John Matthews, Nathan Nall and John McClellan, the prosecuting attorney, and if it had not been agreed among them all that the written statement of his testimony made in the examining court Was a true report of it; and if he had not said in the written ¡statement, as shown there, that at the time his father shot he made the remark: “The son-of-a-bitch ain’t going to report anybody any more”?
The witness, when questioned, admitted that he had made the statements attributed to him and about which he was' questioned, to each of the individuals, as it was claimed that he had made, but said the statements were not true.
Appellant complains of the error of the court in refusing to exclude from the jury the testimony of witnesses Frank'Stewart, W. 0. Thompson and John Matthews and others, reciting statements made to them by witness Andy Humpolak, which were contradictory of his testimony, but which he admitted on the stand having-made to said witnesses, ¡and denied the truth thereof.
The court instructed the jury, refusing to give appellant’s requested instruction No. 1, and modified it and gave it over his objection as amended, the amendment being shown in parentheses, reading as follows:
“You are instructed that the affidavit and statements made by the witness, Andy Humpolak, prior to the time he was called as witness in this case, if you find that he did in fact make .such affidavit and statements, can be considered by you for the purpose only of contradicting his testimony (or such parts of his affidavit and statement as are contradictory to ‘his testimony in this case), and you cannot consider them as'testimony of the facts related in such affidavit and statements. ’ ’
It is urged that the court erred in allowing the written statement of the testimony in the examining court of the witness, Andy Humpolak, to be read to and considered by the jury, over appellant’s objections, the witness oil the stand having admitted, upon inquiry, that he had made such statement and denied the truth of it.
Our statutes provide that a witness may be impeached 'by the party producing him, under certain conditions, as - well as by the party against whom he is produced, iby contradictory evidence showing he has made statements different from his present testimony. Sections 4186-88, O. & M. Digest. The right to impeach a witness by showing that he had made statements different from his testimony and the admissibility in testimony of the different statements does not depend upon his denial of such .statements, but if, on being asked if he made them, he answers that he does not remember or has no recollection of having' done so, proof that he made the contradictory statements is admissible. Billings v. State, 52 Ark. 303, 12 S. W. 574.
In 28 R. C. L. 224, it is said:
“But the great weight of authority is to. the effect that a witness may be impeached 'by proof of prior contradictory statements, where he merely testified that he does -not remember, or has no recollection of making the statements referred to. Of course, if the witness admitted that he made the contradictory statements there is no necessity for proving them, and they are therefore not admissible in evidence. ’ ’
Although it is not necessary that the witness deny having made the statements in order to the admissibility in evidence of contradictory statements for his impeachment, which may be introduced, where he testifies that he does not remember or has no recollection of having-made the statements referred to, yet, when the witness admits, upon inquiry that he made the contradictory statements, there is no necessity for proving them, and they are therefore not admissible in evidence. R. C. L., supra; Shands v. State, 118 Ark. 460, 177 S. W. 18.
The witness, when inquired of concerning the different and contradictory statements made by him about the circumstances of the killing, admitted that 'he made them all without any denial or equivocation, and there could have been no necessity for proving them for impeacbmeot purposes, land, since tbey were not admissible for any other purposes, tbe court erred in allowing them to be introduced.
These statements were damaging, and necessarily highly prejudicial, so much so that it is doubtful if the prejudicial effect'could have been removed iby the giving of a correct instruction to the jury for their consideration, which was not done.
We do not think any error was committed in allowing the introduction of the proof of threats made by appellant against deceased at the time, there having already been introduced other facts and circumstances connecting appellant with the commission of the crime. McElroy v. State, 100 Ark. 301, 140 S. W. 8 ; Lewis v. State, 155 Ark. 205, 244 S. W. 458.
For the errors designated the judgment is reversed, and the cause remanded for a new trial | [
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Wood, J.
This action was begun in a justice of the peace court in Johnson County. The facts are set forth in an agreed statement as follows:
In the early part of 1925 Mrs. Martha Jacobs was the owner of a certain tract of land in Johnson County, Arkansas. She rented this tract of land for the year 1925 to William Huston and Jefferson Huston. She furnished to William Huston the sum of $52 as supplies for said year and to Jefferson Huston the sum of $72.75 for supplies for said year. On the 9th day of February, 1925, William Huston mortgaged his crop on this place to Oberste Brothers. On February 25, 1925, John Crab-tree was trying to negotiate a deal with Mrs. Martha Jacobs to purchase this particular tract of land. After agreeing upon the price of land, Mrs. Jacobs advised him that she had furnished to William Huston $52 supplies and to Jefferson Huston $72.75 supplies for that year. After agreeing upon the price of the land, Mrs. Jacobs advised Crabtree that, if she sold the land, she was moving away, and would not sell it unless he would buy the accounts of the two Huston boys for the amount of supplies that she had furnished them. This Crabtree agreed to do. He purchased the same, paid the consideration for the place, and went into possession of the same on the 25th day of February, 1925. Thereafter, and on March 14,1925, Jefferson Huston mortgaged his crop on said place to Oberste Brothers for supplies for the year. Complying with their rental contract with Mrs. Jacobs for the year 1925, they proceeded and cultivated a crop upon this -land, which amounted to..................bales of cotton, all of the value of $125.75. On the 22nd day of December, 1925, John Crabtree brought suit to enforce Ins landlord’s lien for the amount of supplies that had been furnished to William Huston and Jefferson Huston by Mrs. Jacobs. The two suits were consolidated in the justice of the peace court and also in the circuit court. Oberste Brothers intervened in the justice court and claimed the cotton raised on this land under and by virtue of the mortgages executed to them by William and Jefferson Huston. The trial court found that Mrs. Jacobs had furnished William Huston supplies in the sum of $52 and Jefferson Huston supplies in the sum of $72.75; that Mrs. Jacobs, on February 25, 1925, sold to John Crabtree the particular land on which the crops were grown, upon which crops Crabtree seeks to have the lien declared. The court entered a judgment in favor of Crabtree against William Huston for $52 and against Jefferson Huston in the sum of $72.75, and sustained the attachments for these sums. From these judgments Oberste Brothers duly prosecute this appeal.
The only question for decision is whether or not the court erred in rendering judgment in favor of Crabtree for the amounts mentioned and in sustaining the attachments. Section 6890 of Crawford & Moses’ Digest gives the landlord a lien on crops raised upon premises rented to a tenant for the value of supplies furnished such tenant to make and gather the crop, Avhich lien has preference over any mortgage or other conveyance of such crop made by the tenant.
The court did not err in rendering" a .judgment in favor of Crabtree for the amounts mentioned, because the facts proved that the appellee, at the time he purchased the land from Mrs. Jacobs, became the landlord of the Hus-tons. True, at the time Mrs. Jacobs sold the land to Crabtree she had furnished the Hustons supplies to the extent of the amounts mentioned in the judgment rendered in favor of Crabtree. But Mrs. Jacobs, it appears, exacted these amounts as a part of the consideration for the purchase money of the land. While Mrs. Jacobs bad rented the land to the Hustons and bad furnished them the supplies prior to her sale of the land to Crabtree, nevertheless Crabtree purchased the same on February 25, 1925, and paid the accounts of the Hus-tons with Mrs. Jacobs as part consideration therefor, and went into possession thereof on February 25,1925, which necessarily was before the cotton was grown by the Hus-tons upon the land purchased by Crabtree from Mrs. Jacobs. As the result of this transaction Crabtree became the landlord of the Hustons. When' Mrs. Jacobs moved away and Crabtree toolc possession under his purchase, this was notice to the tenants of the alienation by Mrs. Jacobs ¡and the purchase by Crabtree. Crabtree thus became the owner of the reversion, and the Hustons had notice of such fact by the change of possession. The result of the transaction, under the facts stated, was to create the relation of landlord and tenant between Crab-tree and the Hustons from the time of the purchase and the taking possession of the land by Crabtree on the 25th of February, 1925. From that time on Crabtree must be held to have recognized the Hustons as his tenants and the Hustons to have recognized him as their landlord.
In 25 C. J., p. 966, § 39, it is said: “A tenant’s continued occupancy under the tenancy with'notice of alienation amounts to a recognition of the purchaser as his landlord. So, where the tenant is dealt with by the alienee as his tenant, his possession becomes that of the alienee. ’ ’
The evident purpose of the statute under which the appellee claims a lien was to give the landlord who rented the land, and furnished his tenant with supplies to make a crop on the land rented, a lien for the value of the supplies furnished. Under the facts stated it must be held, to effectuate the purpose of this law, that Crabtree furnished the supplies, because he paid Mrs. Jacobs the value of the supplies which she had furnished, and was compelled to do so in order to consummate the purchase of the land. Prior to the purchase there had been no severance of the rent, and therefore, when Crabtree purchased,, he became entitled to the rents thereof as the owner of the land, and the Hustons, by continuing to occupy and grow crops on the land after Crabtree had purchased and taken possession thereof, as already stated, recognized him as the landlord and entitled to the rent; and, as we have also seen, Crabtree, in legal effect, furnished the supplies to the Hustons, because he was required by Mrs. Jacobs to pay to her the accounts of the Hustons as a part consideration for the purchase of the land.
“An open account, under our statute, is not assignable.” Jett v. Maxfield Co., 80 Ark. 167, 96 S. W. 143. See also National Fire Insurance Co. v. Pettit-Galloway Co., 157 Ark. 365, 248 S. W. 262; § 475, C. & M. Digest. Likewise, under our statute and decisions, a landlord’s lien for rent is personal to him and not assignable so as to give a right of action in the assignee to have a lien declared and enforced on crops grown on the land rented. See Roberts v. Jacks, 31 Ark. 597, 25 Am. Rep. 584; § 6889, C. & M. Digest; Lamberth v. Pounder, 33 Ark, 707; Varner v. Rice, 39 Ark. 334; Walters v. Myers & Co., 39 Ark. 561; Nolan v. Royston, 39 Ark. 561; Block v. Smith, 61 Ark. 266, 32 S. W. 1070.
Learned counsel for the appellant relies upon the above decisions, contending that, under the above facts, the accounts of the Hustons with Mrs. Jacobs were nothing more nor less than open accounts for supplies which were assigned to the appellee, and that the relation of landlord and tenant did not exist between the appellee and the Hustons with reference to these supplies. But we cannot concur in this view, and, as already stated, we are .convinced that the facts fully justified the court in finding that the appellee did sustain the relation of landlord to the Hustons with reference to these supplies. Under the facts stated the transaction was not an assignment of the accounts for supplies to the appellee by Mrs. Jacobs, and it was not an assignment of an account for rents. On the-contrary, the transaction was nothing-more nor less than a sale by Mrs. Jacobs, the landlord, to the appellee of the land itself upon which the crops in controversy were grown; and the facts clearly establish that the relation of landlord land tenant existed between the appellee and the Hustons before the crops were planted, and that, as such landlord, the appellee in legal effect did furnish the supplies, the value of which he here seeks to recover. The trial court ruled correctly in so holding. “The remedy by attachment given to the landlord lies at the suit of the landlord or the assignee of the reversion, and ordinarily lies only by the one or the other.” 36 C. J. 461, § 1370, and cases cited in note.
The judgment of the trial court must therefore be affirmed. It is so ordered. | [
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Gtreenhaw, J.
Appellee brought this action against the trustee in bankruptcy of the Missouri Pacific Railroad Company and H. C. Crawley and Earl Holloway, the engineer and fireman respectively in charge of the engine of a freight train, to recover damages for personal injuries he alleges he sustained about 1:30 p. m. March 29, 1941, as a result of a collision between the automobile he was driving and said freight train at the Missouri Pacific crossing on Main street in the town of Muldrow, Oklahoma.
Appellee, among other things, alleged that he was a citizen and resident of the state of Oklahoma, and was driving his automobile in a southerly direction, and that in approaching the crossing his view of a train approaching from the west was obstructed on account of a building and obstacles along the track; that defendants, Crawley and Holloway, in approaching the crossing operated their train at a negligent rate of speed through the town of Muldrow and negligently failed to ring a bell or sound a whistle or give any signal or warning of the approach of the train, and that they negligently failed to exercise ordinary and reasonable care to maintain a lookout for persons or property as the train approached the crossing; that after discovering plaintiff upon or approaching the crossing they negligently failed to exercise ordinary care to avoid striking the automobile or warn plaintiff.
Appellants filed an answer denying the allegations of the complaint, and further stated that if plaintiff was injured as alleged, such injuries were a result of his own contributory negligence in failing to exercise ordinary care for his own safety, failing to keep a lookout, failing to stop, look and listen at a railroad crossing although he knew or in the exercise of ordinary care should have known of the approach of the train, and that he carelessly and negligently drove his automobile onto the track in front of the train, and further pleaded that plaintiff’s injuries were caused proximately and directly by his own negligence and want of care.
The jury returned a verdict in favor of appellee for $15,000, upon which judgment was entered and from which is this appeal.
Appellants contend that the court erred in refusing to direct a verdict for them for the reason that the undisputed evidence shows that appellee’s own negligence was the proximate cause of his injuries, and even if there was evidence of negligence on the part of appellants, the undisputed evidence shows that appellee was guilty of contributory negligence as a matter of law, thus barring his right to recover, and that there was no evidence of a substantial nature which tended to show any negligence on the part of appellants proximately causing appellee’s injuries.
The evidence showed that the tracks of the railroad ran east and west through the town of Muldrow, and that Main street ran north and south. Appellee was in his automobile on the north side of the track and had started on a business errand to a point on the south side of the track. He testified that he was driving the automobile at about 15 miles per hour, and when he reached a rough place in the street, about 30 feet north of the railroad crossing, he slowed down and looked and listened for a train. He first looked to the west as far as he could see, to the section house, and did not see or hear a train, and then looked back east, shifted gears and started across the tracks, looking to the left, or east, for the reason that the depot was on the north side of the track and east of th§ crossing, and obstructed his vision to the east.
He continued to look to the east until he was practically on the track, and then looked forward, and about that time, when he had almost finished crossing the track, he heard a whistle and his automobile was struck by a freight train coming from the west, resulting in the collision and serious injuries to him.
He further testified that the section house, which was located about 450 feet west of the Main street crossing facing the railroad, and the trees in front of it obstructed his vision in that direction, and that one had to be practically on the track before he could see any further than the section house. The first warning he had that there was a train from the west was when the whistle blew at a time when the train was so close he could not get off the track in time to avoid being struck, at which time the train was about the same distance from him as the length of the court room. The whistle was not sounded nor the bell rung before. His hearing was not deficient before the collision, and he was in good health'and 34 years of age and making from $72 to $80 per week as a carpenter.
Barto McConnell testified that he was on Main street, about 60 feet north of the crossing, at the time of the collision. Just before the car got to the crossing there is a rough place and the car slowed up, practically stopped, and the driver apparently threw the car into second gear and eased onto the crossing, and by that time he discovered the train. It looked like the car was about half way across the track when the train struck it. Witness heard no signal or noise indicating the approach of the train until the train whistled about the time it struck the automobile. It did not whistle or sound its bell before that time, and if the whistle were blown or the bell rung about a quarter of a mile from the crossing he did not hear it. The street where the collision occurred was the main street of Muldrow and there were business houses on both sides of the track, and there is a section house and a tool house and some trees in the yard west of the crossing which might obstruct the vision of one approaching the crossing from the north.
Bill Jones testified that he was about 100 yards southeast of the crossing at the time of the collision; that in his best judgment the whistle was' not blown or the bell rung.
Alex Yaughan testified that he was at his home, about a mile north of Muldrow, on this occasion, and saw the train proceeding east in the direction of the Main street crossing, but did not see the collision. He went in the house when the train was near the crossing in question, but he watched the train from the time it crossed a trestle until shortly before it entered the Main street crossing. “Q. How great a distance had the train traveled from the trestle until it got to the crossing where the accident happened? A. Approximately a mile. Q. Did it ever blow that whistle in that mile? A. Not until after it passed the section house, I know. Q. Was it ringing the bell during any of that time? A. Not that I know of, it was too far away for that, of course, but I know it did not blow the whistle.”
Morgan Newman, a justice of the peace, testified that at the time, of the collision he was one block south of the crossing on Main street, and that he did not hear the train whistle or the bell ring before the crash; that west of tlie Main street crossing within the city limits there are two more railroad crossings, and he did not hear the whistle nor the hell sound for any of these crossings. The section house was about a block west of the Main street crossing, and the vision of one approaching the crossing from the north is obstructed by the section house, trees and tool house until he gets on the railroad.
Riley Vaughan testified that he was about 75 yards from the railroad, behind ’Blackard’s store, at the time of the collision. He did not hear the train whistle until about the time it struck the car, and he did not hear the bell ring. He further testified that the section house, tool house and trees were an obstruction to one’s vision looking west in approaching the crossing from the north.
W. T. Wilson testified that at the time of the collision he was standing about 150 feet south of the crossing. He did not hear the whistle blow nor the bell ring before the collision. He has looked west from a point just north of the crossing, and on the north side of the railroad there is a section house with trees in front of it and a tool house west of the section house. The trees had some leaves on them at the time, and were between the section house and the track.
Houston Brashfield testified that at the time of the collision he was in front of Blackard’s store, about 100 feet away, and saw the train strike the car. He did not hear the train whistle nor the hell ring, and would have heard it if it had whistled.
Buddy Plank testified that on this occasion he was at the trestle about one-half mile west of Muldrow fishing, and heard and saw the train in question. If the whistle was blown or the bell rung between the time it passed him and got into town he did not hear it, and knows it would have attracted his attention, and could not have whistled without his hearing it. “Q. Do you mean to say it could not have whistled without you hearing it? A. Yes, sir. Q. Were you watching it? A. Yes, sir, for a good ways.”
Both the engineer and fireman testified that the regular crossing whistle was given, and that the hell was rung as they approached the Main street crossing, and that the train was making about 45 miles per hour. The train consisted of the engine, tender and 47 cars. The track was a little up-grade coming from the west. There were two crossings west of the Main street crossing, and when the train approached them the whistle was blown.
The fireman testified that as they passed the section house, about 450 feet west of the Main street crossing, he saw the car approaching the crossing at a low rate of speed, and he thought it was going to stop, as it slowed down 25 or 30 feet from the crossing. Then it moved on toward the crossing, and when they were about 150 feet from the crossing he told the engineer they were about to strike a car. The engineer immediately applied the brakes in emergency, but they were unable to avoid striking the car. The bell was ringing all the way through the town until the train stopped, and the engineer was blowing the whistle for the Main street crossing when he told him they were about to strike a car. The engineer did not undertake to slow the train until he told him about the car, 150 feet from the crossing. “Q. Why hadn’t you seen him before you got by the section house? A. Well, I suppose maybe the section house may have had something to do with my not seeing him before then, and maybe I wasn’t looking at that particular place. . . . I did not see him until we got by the section house. Q. The tool house is also on west of the section house? A. Yes, sir. Q. Both on the right-of-way? A. Yes, sir.”
The engineer testified that the bell was ringing during this time and that he whistled at all of the crossings, including the Main street crossing. When the engine was about 150 feet from the crossing the fireman told him an automobile was coming onto the crossing, and he began a long whistle until the engine occupied the crossing, and he grabbed the brakes, pushed in the emergency and turned on the sand. The train stopped 22 car lengths from the crossing. He undertook to stop as quickly as he could and could not materially reduce the speed before reaching the crossing.
The conductor and a brakeman on the train testified that the standard crossing whistle had been sounded for this crossing, and the brakeman said the bell was ringing and had been since the other side of Muldrow.
Other witnesses testified on behalf of appellants, some of whom testified that the whistle was blown for a considerable distance before the train entered the Main street crossing, others that they only heard the train whistle when it was near the section house, or between the section house and the Main street crossing, and still others did not remember whether the whistle was sounded before, at the time of or after the collision.
Pictures of the scene of the accident were taken three or four days thereafter and were introduced in evidence. These pictures show the section house and trees on the right-of-way west of the Main street crossing. It is conceded that the section house and trees are about 450 feet west of this crossing, and that the tool house is west of the section house and somewhat nearer the track. It is also conceded that the train was traveling at approximately 45 miles per hour or at a rate of 66 feet a second, and at that rate of speed it would have required only 7 seconds for the train to cover the distance between the section house and the crossing in question.
The collision in question occurred in the state of Oklahoma, and the test of liability depends upon the laws of that state. Texas & Pacific Ry. Co. v. Stephens, 192 Ark. 115, 90 S. W. 2d 978; St. Louis, Iron Mountain & So. Ry. Co. v. Hesterly, 98 Ark. 240, 135 S. W. 874.
Section 11961 of the Oklahoma statutes of 1931 provides: “A bell of at least 30 pounds weight, or a steam whistle, shall be placed on each locomotive engine and shall be rung or whistled at the distance of at least 80 rods from the place where the said railroad shall cross any other road or street.”'
In the case of M. K. T. Railway Co. v. Stanton, 78 Okla. 167, 189 Pac. 753, the court said: “The statute which requires a railroad company to give certain signals at highway crossings was not intended to furnish a standard by which to determine in every case whether or not such company had failed to discharge its duty in respect to giving sufficient warning to the traveling public of the approach of its trains. It was intended rather tó prescribe a minimum of care which must be observed in all cases. ’ ’
In support of appellants’ contention that there was no negligence on their part, and that appellee’s injuries were brought about solely by his own negligence, which proximately caused the collision and resulting injuries, and that for this reason they were entitled to a directed verdict, they cite the case of M. K. T. Ry. Co. v. Flowers, 187 Okla. 158, 101 Pac. 2d 816. We have carefully considered the Flowers case, and it is clearly distinguishable in facts from the instant case.
In St. Louis, Iron Mountain & So. Ry. Co. v. Hitt, 76 Ark. 227, 88 S. W. 908, this court quoted with approval from the case of Richmond & D. Rd. Co. v. Powers, 149 U. S. 43, 13 S. Ct. 748, 37 L. Ed. 642, as follows: “It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them.”
The court withdrew from consideration of the jury the question of keeping a lookout, and also the question of discovered peril. The evidence as to whether the signals required by the Oklahoma law were given in this case was squarely in conflict, and we think there was substantial evidence which warranted the court in submitting to the jury this question, and also the questions of the speed of the train and the' alleged negligence of appellee, and the court’s refusal to direct a verdict did not constitute reversible error. See St. Louis, Iron Mountain & So. Ry. Co. v. Kimbrell, 117 Ark. 457, 174 S. W. 1183, also St. Louis-San Francisco Ry. Co. v. Whitfield, 155 Ark. 560, 254 S. W. 323, which involved a railroad crossing collision in Oklahoma.
In Safeway Stores, Inc., v. Moseley, 192 Ark. 1059, 95 S. W. 2d 1136, this court said: “We find it neces sary to consider only the question raised by the appellant for an instructed verdict. In viewing the evidence adduced, we must give to it its highest probative value in favor of the appellee and indulge every inference reasonably deducible from the testimony to support the finding of the jury. ”
It is a well established rule that this court will not pass upon the weight of the evidence, this being the exclusive province of the jury, whose verdict should be upheld when it is based upon substantial evidence. Lewis v. Shackelford, 203 Ark. 500, 157 S. W. 2d 509.
Appellants next complain of errors in the giving and refusing of instructions. A careful examination of the instructions in question reveals no reversible error on the part of the court.
Appellants also contend that the court erred in refusing to sustain appellants ’ challenge to four jurors who admitted they had served as jurors in that court within the preceding two years, the ground for this challenge being that such jury service was prohibited by Act 135 of 1931, and that this act was not effectively repealed by Initiated Act No. 3 of 1936. We are unable to agree with this contention. We have heretofore upheld the validity of Initiated Act No. 3 (Acts 1937, p. 1384). Penton v. State, 194 Ark. 503, 109 S. W. 2d 131.
Appellants finally contend that the verdict of $15,000 is clearly excessive.
The evidence shows that after his injury appellee was confined in a hospital for a period of four weeks. He was intermittently conscious and unconscious for a week or ten days. After he returned home he was confined in bed for two weeks before he sat up, and after this he was “up and down” for four or five weeks. His injuries consisted of laceration on the back of his head, stitches being used to close the wound, a fractured collarbone, a fracture without displacement of the transverse processes of the second and third lumbar vertebrae, and six fractured ribs. In addition to these injuries, Dr. Ben Pride, who treated him, testified that he has a knot on the left shoulder where the collar-bone was fractured, and this shoulder is one and a half or two inches higher than the right shoulder, and an operation would he required to correct this condition, but this condition would not have a disabling effect on him to any great extent. He testified there were other injuries, and appellee suffered great pain, complaining of pain in the abdominal region and other places, and in his opinion he also received internal injuries; that at the time of the trial appellee appeared to be in good physical condition; that a fracture of the transverse processes is not considered serious unless there is displacement, and there was no displacement in this case.
Appellee testified that his injuries caused him to suffer great pain, and that he was not able to work by reason of his injuries until the latter part of September, 1941, being approximately six months that he did not work; that his senses of hearing and sight have been injured, and he continues to suffer pain and at times is dizzy and suffers lapse of memory. Prior to his injuries he was a carpenter, earning $1,125 an hour.1 He was given a job as a carpenter at Camp Chaffee in September, and was paid $1,125 an hour, the same pay that he received before the injury. He has continued to work at Camp Chaffee, doing regular carpenter work, and his foreman on this job and another man who worked with him testified that they did not observe anything wrong with him, and that he made no complaint to them about having sustained any injuries, or that he was unable to do the work assigned to him, and he was still so employed at the time of the trial.
When appellee went to work as a carpenter at Camp Chaffee after the accident, he was examined by Dr. E. J. Morrow, in a routine examination. Dr. Morrow testified that his examination disclosed nothing out of the ordinary in appellee’s physical condition at that time. He examined his eyes, ears, nose, throat, heart, lungs, and for hernia and former injuries and deformities. He stripped him to make the examination, and found no abnormalities of a noticeable type, and passed him.
It is undisputed that appellant lost about six months time due to his injuries, and that hospital and doctor bills amounted to almost $600. When he resumed work he did about the same type of work as a carpenter that he had been doing before his injury and drew the same pay therefor. There is no evidence that his earning capacity has been materially, if at all, reduced.
Placing the most liberal construction upon the evidence of which it is susceptible, it does not sustain a judgment for more than $7,500. Therefore, if appellee will enter a remittitur within fifteen days for the sum of $7,500 the judgment will be modified and affirmed; otherwise it will be reversed and the cause remanded for a new trial. | [
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Griffin Smith, C. J.
The complaint alleged, and the chancellor found, that F. R. Atkins was mentally incompetent May 19, 1932, when for $360 he sold to J. M. and Julia Waggoner a remainder in lands now estimated to be worth more than $12,000.
Suit was brought October 12, 1939. by Mabel Atlrins as next friend of F. E. Atkins. Cancellation of the deed was asked.
Atkins married in 1902 and the two have lived together intermittently since that time. They have one child, a daughter twenty-eight years of age. As an evidence of her husband’s mental attitude, Mrs. Atkins testified he threatened “to take poison” if she did not marry him. The husband’s father was a wealthy planter, residing* at Holly Grove, in Monroe county. The life tenant remarried and became Mrs. Lillie M. Marston. She was eighty-three years of age when death occurred May 14, 1939. The family home w^s built at a cost of $9,000. Mrs. Marston created a trust fund in favor of her son, from which he receives $300 per month. Other property inherited by Atkins prodiices revenue.
In 1929 or 1930, Atkins took his wife and daughter to Atlanta, where they resided temporarily. He secured employment with a collection agency and worked for several months. His discharge resulted from a controversy over accounts. Atldns then secured employment with a company compiling city directories, but lost the position on account of excessive drinking. Mrs. Atkins returned to Arkansas on business. Shortly thereafter, her husband went to North Carolina, and at a still later date the couple’s daughter, Juanita, also went to North Carolina and remained about eighteen months. Atkins resided at Asheville and Winston-Salem; also at Salisbury, where he became acquainted with J. M. Waggoner, an attorney, whom he employed in connection with contemplated litigation.
There is testimony that while in North Carolina Atkins spent money rather freely on the young daughter of his landlady, and that in other instances he associated with the opposite sex. North Carolina witnesses affirmed his intellectual stability, while others thought excessive drinking and use of narcotics had dulled- mental processes to such an extent that he was incapable of understanding the nature of business transactions. Some of those who gave depositions referred to Atkins as a pleas ant, intelligent conversationalist: a man who loved companionship and sought acquaintances and read a great deal; others regarded him as morose, habitually under the influence of drugs or liquor, and difficult to deal with.
During Atkins’ stay in Atlanta, and while he was in North Carolina, Mrs. Marston made regular remittances. At one place in the record the allowance is referred to as $150 per month. Again, it is spoken of as $75.
It is indicated that the people with whom Atkins ■boarded were interested in procuring a sizeable portion of his surplus funds. Mrs. J. K. Campbell, Atkins’ landlady, had known him a number of years before he lived in her home. Atkins, she testified, promised-to do certain things for her daughter, Mary King: “Due to Mr. Atkins’ liberal spending on Mary (and I, being unable to give my other daughter the same) there developed a feeling of discontent and jealousy between the sisters. I therefore objected to the expenditures Mr. Atkins was making. ’ ’
J. M. Waggoner, a resident of Salisbury, says Atkins came to his office accompanied by L. M. Hart, Mrs. Campbell’s father, and Mary King’s grandfather. Atkins crossing by automatic control; that these flasher lights asked Waggoner to prepare a will, “leaving everything” to Mary King. Waggoner testified Atkins said his wife had refused to live with him and had poisoned their daughter’s mind against him. Circumstances surrounding execution of the deed, as related by Waggoner, are shown in the footnote.
In August or September, 1934, Atkins left North Carolina and went to Forrest City. In 1937 he moved to Holly Grove and boarded with a family named Kerr nearly a year. While the family home was being remodeled, Mrs. Atkins spent about half of her time with the Kerrs. Of her husband’s conduct she says that “In addition to spending money for liquors and drugs, Mr. Atkins spent a great deal on young girls, . . . the object of his latest affection being a-waitress at Holly Grove.”'
Two medical witnesses — Drs. N. E. Murphy and W. H. Martin — testified that in their opinion Atkins was not competent to transact business. Dr. Murphy, of Olarenden, 69 years of age, went to Clarksdale, Mississippi, in 1927, to see Atkins, “who was in bad mental condition. . . . He had been talcing some kind of ‘dope.’ Thé case is chronic, and due to his condition from 1927 on, I do not think he had ordinary business judgment.” Dr. Martin, of Holly Grove, who during a period of twelve or fifteen years had seen Atkins at intervals, characterized him as an alcoholic, “mentally unfit for the transaction of ordinary business affairs.”
Dr. Chas. W. Gaskins, of Asheville, North Carolina, treated Atkins in 1924 from June, and for several months during 1935. The patient was an habitual user of alcoholic beverages and sedatives. Those who take allon.al or veronal excessively become mentally deranged “at least for the duration of period in which they are taken.” When not under the influence of alcohol or drugs, Atkins ’ mental condition “was such as to enable him to understand an ordinary transaction and to know the consequences of his acts and deeds.”
Dr. J. M. Neel, dentist, of Salisbury, had frequent opportunities to observe Atkins. At times he would appear nervous, at other times calm. When Atkins was sober and his nerves settled, he was capable of exercising judgment: could understand any. ordinary business affair. He was not a man of dissipated appearances except when intoxicated.
There was other testimony that Atkins, while at Asheville, Salisbury, or Winston-Salem, would spend evenings in a hotel. His demeanor was that of a capable man of understanding who was interested in current events and eager for conversation and companionship.
In 1938 Atkins was elected justice of the peace for Duncan township, Monroe county, and has served since that time. The election was uncontested, Atkins having been chosen by voters who “wrote in” his name. Of his conduct as an officer, Carl J. Williamson, state game warden, testified:
“I see Mr. Atkins almost every day, and talk with him. He is of average intelligence and information on every-day affairs, and on national affairs. I have seen him try cases. He is one of the fairest justices of the peace they have ever had there. He takes an interest in the man who breaks the law as well as those who try to enforce it. He questions witnesses intelligently, knows how to look up the law; and his conduct at a trial indicates that he understands all he is doing. I think Mr. Atkins would be a little above the average — he is better educated than most people. As long as he is sober his mind is as good as it ever was. When drunk, like every one else, his mind is not clear. He is perfectly capable of trying cases and determining the guilt or innocence of those accused.”
John W. Kornegay, county .judge,- testified regarding quorum court. In November, 1940, Atkins partici patecl in that body’s deliberations “as much or a little more than some of the others.” This witness thought Atkins’ questions were intelligent and to the point.
An abstract shows a dozen misdemeanor cases tried by Atkins.
Mayo and Mayo, largest supply merchants at Holly Grove, deal with Atkins regularly. They advanced $500 for his use in paying miscellaneous bills and were given an order directing that $50 monthly be withheld from the item of $300 per month sent by the trustee. Mrs. Atkins admitted her husband attended to his business affairs, at least in part, such as collecting certain rents, paying bills, making purchases, and in dealing with matters generally. The Holly Grove marshal testified he saw Atkins regularly and regarded him as a sane, normal man, although addicted to the drink habit.
As argument supporting the claim of mental incompetency, Mrs. Atkins told of her husband’s action in surrendering a life insurance policy and collecting $1,800 in cash. Proceeds were used to defray expenses of a trip to the San Francisco World Fair. Atkins started with his wife and her two sisters. At Kansas City Mrs. Atkins became ill and returned home, but her husband and two sisters went on and were gone three weeks. Shortly prior to this time Atkins’ mother had died and left an estate of “something over $100,000.”
More than seven years intervened between execution of the deed and Mrs. Atkins ’ suit. The deed was recorded four days after its date.
Appellants rely upon § 8918 of Pope’s Digest, and insist the action is barred. Appellee thinks she is protected by § 8939, which gives to insane persons three years after removal of disability to disaffirm.
Perhaps no branch of jurisprudence is more elusive than that dealing with one’s mental capacity to contract. Law books are replete with comments by' text- and opinion-writers who have sought, figuratively, to ascertain where the strip of herbage lies “. . . that just divides the desert from the sown”; yet all too often have their labors been in vain.
If tlie brain lias become so affected, irrespective of cause, as to appreciably contracept a person’s power to reason, and in consequence the ordinary affairs of life are but dimly reflected on that mirror called mind, it is generally agreed that the impulse to act is not a result of intellectual motivation; hence, the attendant infirmity intervenes and protects one so afflicted from the penalty of conduct in respect of which the power to think and to plan according’ to accepted formulas is non-existent. See Pulaski County v. Hill, 97 Ark. 450, 134 S. W. 973.
We are confronted with a situation where a rich man’s son had for many years yielded to the urge for physical satisfaction, yet interwoven in the social pattern there are evidences of finer impulses and an obvious desire to compose antagonistic natures. Whether Atkins was sane or insane when the land was sold is unimportant if there was failure to sue within three years from restoration of his mental faculties. It is our view that in 1932 he was capable of understanding; nor has there been a prolonged period within three years when he has been incompetent to such an extent as to justify a court in holding that he did not have capacity to reason regarding business matters and to appreciate their significance.
It should be remembered that when the remainder was sold, values everywhere were depressed. Lands could be bought for a fraction of their former worth. Persons who had ready money for investment were timid. Atkins ’ mother was living, and although she was past seventy and life expectancy was short, there was a possibility she might live many years; and she did survive until 1939. There is nothing to indicate a plan on Waggoner’s part to overreach. The rule that frank disclosure must characterize transactions between lawyer and client is not applicable because the only evidence is that Atkins suggested selling the land. No fiduciary relationship existed.
That Atkins drank to excess and used drugs is evidential, but not controlling. Many witnesses who have not been quoted testified, some asserting incapacity, others expressing- belief in Atkins ’ ability to understand the nature of business transactions and to appreciate consequences of his acts. With an inheritance in expectancy of more than a hundred thousand dollars; with his needs constantly met by parental solicitude as a result of which money’s value was seldom appraised or weighed against desire, it is not strange that Atkins should have made a bargain on impulse in order to satisfy temporary whims. But this does not necessarily point to insanity; nor are other circumstances and acts sufficient to overcome the presumption that one who contracts intends the natural consequences of his conduct, and that he had the capacity to elect.
The decree is reversed, and the cause is dismissed.
By his father’s will, F. R. Atkins’ estate was subject to the life tenure of the testator’s wife. In the deed to the Waggoners there is this provision: “The said F. R. Atkins . . . makes this deed subject to the life estate of his mother, Mrs. Lillie M. Atkins Marston, and also subject to whatever right of dower, if any, his present wife, Mrs. Mabel W. Atkins, may have.”
Hart died prior to the time Waggoner testified. •
“Sometime in April or first of May, 1932, Mr. Atkins came to me for legal advice, and after investigation, I advised him of his rights. Later he approached me about the sale of his interest in the land described in the deed, recorded Deed Book 36, page 123, records Monroe county, Arkansas. Mr. Atkins explained that his mother had a life interest in this land. He also wanted to sell it subject to the rights of dower his wife might have. I told Atkins I was not interested in buying any property that far from home. Atkins came back a number of times and finally said he was going to sell his interest in this property to someone; that his father’s will covered property in Arkansas and Tennessee, and it was probated and on record in Memphis, Tennessee. I obtained a copy of the will and found Atkins did have an interest. Upon having some lawyer in Clarendon, whose name I do not recall, check the records to see if Atkins had ever sold the property, and receiving a reply that the records did not disclose that property had been disposed of, I then paid Atkins $360, the price he asked for his interest, and took his deed subject to any right of dower his wife might have. Mr. Atkins set his price for the land and refused to reduce it. Atkins did not say or do anything that indicated his mind was unbalanced or that he was incapable of making a contract, executing a deed, or appreciating the consequences of his acts.Atkins understood fully what he was doing. I did not ask Atkins to sell the land. He approached me about selling his interest. My impression of Atkins was that he was a very well-informed man and was a person with strong likes and dislikes and fully capable of taking care of himself. I did not conceal the fact of purchase; on the contrary, I wrote Mrs. Marston that I had purchased, and asked if she would be interested in disposing of her life estate. Atkins was very frank about the matter and told me that hi.s mother was 70 years of age, and at that time in good health; that the land had been good, but was in rundown condition. When I purchased the land it practically had no market value whatsoever. It was during the worst of the depression and lands, stocks and bonds, and all commodities, were at low ebb. Many banks were closed and money was hard to get.” | [
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Smith, J.
Appellants applied to the circuit court of Van Burén County for a writ of mandamus requiring the county judge and the justices of the peace of that county, composing the quorum court, to meet as such and levy a tax, not exceeding three mills on the dollar of the assessed valuation of the property of the county, to pay the interest on the outstanding bonded indebtedness of the county and the amount of the bonds which had matured for payment. The circuit court denied the relief prayed, and this appeal has been duly prosecuted from that order.
On March 1, 1926, the county court of Van Burén County, by an order duly entered on the records of that court, found and declared the outstanding indebtedness of the county to be $77,475.25, and directed that notice of that fact be given pursuant to the requirements of act 210 of the Acts of 1925 (Acts 1925, page '608). Notice of this order was duly published in a local newspaper in the issue of March 8. On March 16, 1926, the county court made an order, which recited the previous order ascertaining and declaring the amount of the county’s outstanding indebtedness and the publication of the notice thereof, and directed that the bonds of the county be issued and sold in the principal amount of $63,591.35 to discharge and pay, to that extent, the 'outstanding indebtedness of the county. It appears to be conceded that the revenue which would be derived from a levy of three mills on the dollar on the assessed valuation of the county would not produce a revenue sufficient to pay the entire outstanding indebtedness, but would be sufficient only to pay the interest and mature bond issue as it matured in the amount authorized by the order of March 16.
This order of the court recites that the proceeding was had under the authority of the amendment to the Constitution proposed by Senate joint resolution No. 2, authorizing the submission of the amendment to be voted on as Amendment No. 11, appearing at page 797 of the General Acts of 1923, and of the act No. 210, above referred to, passed as an enabling act after the adoption of the proposed amendment.
The order of March 16 further provided the recitals which the bonds should contain, and that they should be signed by the county judge of the county and countersigned by the clerk of the county court of the county. It was there directed that the bonds so to be issued should contain the following recitals:
“It is hereby certified, recited and declared that all acts, conditions and things required to be done, exist and be performed precedent to and in the issuance of this bond, in order to make this bond a legal, valid and binding obligation of Yan Burén County, Arkansas, have been existing and been performed in legal and due time, form and manner as required by law; that provision has been made for the collection of a direct tax upon all taxable property within said county sufficient to pay the principal and interest hereof as the same shall fall due, and that the indebtedness represented by this bond and, the issue of which it forms a part, together with all other outstanding indebtedness of said county, does not exceed any constitutional or statutory limitation; and for the prompt payment of principal and interest of this bond, as the same becomes due, the full faith and credit of Yan Burén County, State of Arkansas, are hereby pledged. Should this bond prove to be invalid for any reason, then and in that event the holder hereof shall be' subrogated to the rights of the creditors of Yan Burén County whose indebtedness has been discharged by the issuance of this bond.”
On April 8,1926, the county court made a third order “in the matter of funding the outstanding indebtedness of Yan Burén County, Arkansas. ’ ’ This order recited the previous orders and repeated the findings of fact in regard to the ascertainment of the amount of the county’s outstanding indebtedness and of the publication of the notice thereof. This order also recited that, pursuant to the constitutional amendment and the enabling act above referred to, the county had contracted to sell $60,000 in 5% PGr cent, serial funding bonds to Stranahan, Harris & Oatis, and had given the purchaser the option “to convert same to 5 per cent, bonds at the same yield basis to the county, and which option the purchaser hereby exercises, and which amount, under the conversion to a 5 per cent, bond, would substantially be $63,591.35.” Act 210 specifically authorized this conversion of bonds. This order also provided the form of the bond and the recitals it should contain and the manner of its attestation, in which respects the order of April 8 was identical with that of March 16. -
Shortly after the entry of the order of April 8 the bonds were issued and delivered to the proposed purchasers, who paid into the treasury of the county the full value thereof. These bonds contained the recitals authorized by the orders of March 16 and April 8, and were signed by the county judge and countersigned by the county clerk, as both orders of the county court required that they should be.
At the trial from which this appeal comes, testimony was offered to the effect that the chancery court of Yan Burén County convened on the first Monday in April, which was the 5th day of the month, and the time appointed by law for that court to convene, and that the April term of the county court did not convene until two weeks after the first Monday in April. The county judge of the county, who presided at all the sessions of the county court herein referred to, testified that the sessions of that court held on March 1 and on March 16 were adjourned terms of the January term of the court, and that, on the date last mentioned, the county court was adjourned to the 8th day of April, and a session of the court was held pursuant to this adjourning order, at which he presided, and that the clerk of the court and the sheriff of the county were in attendance at that session. Upon this showing the circuit court held “that the county court of Van Burén County did not convene on the first Monday in April, 1926 (the time fixed by law for the convening of said court), but attempted to adjourn the January term of said court on the 16th day of March, 1926, over to the 8th day of April, 1926,” because the chancery court convened on the 5th day of April. Upon this finding of fact the circuit court declared that the county court was not in session on April 8, and that its order made that day was void, and the bonds were therefore issued without authority of law.
We do not find it necessary to determine whether the judgment of the circuit court in regard to the validity of the session of the county court held on April 8 is correct or not, and.we do not therefore decide that question, for the reason that the order of March 16 was valid, and, if this is true, it was not necessary that there should have been a subsequent order. The only objection made to the validity of the order of March 16 is that it was made within less than thirty days of the publication date of the order of the county court of March 1, which ascertained and declared the amount of the outstanding indebtedness of the county.
Section 1 of act 210 of the Acts of 1925 provides that, before the issue of any county bonds under that act, the county court shall, by order entered upon its records, declare the total amount of such indebtedness, and that such order of the county court shall be published immediately for one insertion in some newspaper published in the county, and that any property owner who is dissatisfied with the published finding as to the amount of the indebtedness may question the correctness thereof by suit in the chancery court, which suit must be instituted within thirty days after the publication of such order. It is there further provided that, if no such suit is brought within thirty days, such finding shall be conclusive of the total amount of such indebtedness, and not open to further attack.
The obvious purpose of this provision is to prevent the issuance of bonds in excess of the outstanding indebtedness, and it may be first said that it is admitted that the indebtedness of the county was in excess of $77,000, whereas bonds were issued in an amount less than $64,000.
It may be next said that no suit was ever brought by any property owner of the county, and, as more than thirty days expired before the issuance of the bonds, the recitals of the publication order have the verity which the statute was intended to give.
It is not contended that the bonds were issued or delivered prior to the expiration of the thirty days immediately following the publication order, and it will be noted that neither the amendment nor the enabling act requires the time for filing suit to expire before an order can be made authorizing the issue of the bonds. The inhibition is that the bonds shall not be issued prior to that time, and, as we have said, this was not done.
In Webster’s New International Dictionary the following definitions of the verb “issue” are found: “To go, pass, or flow out; to run out, as from any inclosed place.” “To be produced as an effect, result, or outcome; to proceed as from a source; to arise; to be derived; to result.” “To be given or sent out officially or publicly; to be published, as a proclamation; to be emitted, as money.” “To deliver, or give out, as for use; 'as, to issue provisions.” “To send out officially; to deliver by authority; to publish or utter; to put into circulation; to emit; as, to issue an order; to issue a writ; to issue notes.”
The same authority gives to the word “issue” as a noun the following definitions, among others: “Act of sending out, or causing to go forth; delivery; issuance; as, the issue of an order from a commanding officer; the issue of money from a treasury.” “Law. Of a negotiable instrument, the first delivery of the instrument, as a bill or note, complete in form, to a person who takes it as a holder. This is the definition of the British bills of exchange act, 1882, and of various American codes.”
The word “issue” is defined in 33 'Q. J., page 818, as follows: “As a verb, to bring to a conclusion or final issue; to come or pass out; to go out; to go forth as authoritative or'binding; to proceed, as from a source; to proceed or arise from; to send forth; to send out officially; to settle.”
It was held in the case of Cumnock v. Little Rock, 168 Ark. 777, 271 S. W. 466, that the amendment, designated as Amendment No. 11, was «elf-executing, and, while the General Assembly had the right, notwithstanding that fact, to prescribe the manner in which the right there conferred might be exercised, it does not appear that the provisions of the enabling act of 1925 have been violated.
The validity and binding effect of the order of March 16 is questioned only because it was made within less than thirty days of the publication of the order of March 1, and, as we have shown, that fact did not deprive the county court of the jurisdiction to make an order authorizing the issue of bonds which were not to be issued and were not issued until the expiration of the thirty days after the publication of the order of March 1.
It is not questioned that the county received the proceeds of the sale of the bonds, nor that the county had the right to issue the bonds; nor is it questioned that the county court had the jurisdiction to authorize the issue of county bonds. The bonds, when issued, conformed to the order of the county court, and contained the recitals set out above, to the effect that the law had been complied with in their issuance. Under these circumstances the county is estopped from questioning their validity.
The case of Aurora v. Gates, L. R. A. 1915A, page 910, contains elaborate notes on the subject of estoppel of municipal corporations to deny validity of bonds issued by them, and, after a very extended review of numerous cases dealing with this subject, the annotator announces the following as the general rule:
“It is a general rule that a municipality which, by the apparent legality of its obligations, by recitals of their validity or by other means, has induced innocent purchasers to invest in them, is estopped to deny their legality on the ground that, in some preliminary proceedings which led to their execution, or in the execution, itself, it failed to comply with some law or rule of action relative to the mere time or manner of procedure, with which it might have lawfully complied, but which it carelessly disregarded. ’ ’
It is finally insisted for the affirmance of the judgment of the court below that it was not alleged in the complaint or otherwise shown that the quorum court had failed in its duty, inasmuch as the necessity for the levy was not shown, as the constitutional amendment permits the county to discharge' its obligations out of any funds available, the language thereof being that the court “may” levy a tax not exceeding three mills on the dollar of the assessed valuation, and it is insisted that the discretion thus vested in the county court should not be controlled by mandamus.
It is true that this court held, in the case of Pioneer Construction Co. v. Madison County, 174 Ark. 298, 296 S. W. 729, that mandamus would not lie against the county court to compel the issuance of bonds to refund the county’s indebtedness, as provided for in the constitutional amendment, this being upon the theory that the failure so to do did not deprive the holder of the evidence of indebtedness against the county of any remedy existing at the time of the adoption of the amendment. This failure to issue bonds did not impair the indebtedness or extinguish any remedy for its collection possessed by the holder thereof prior to the adoption of the amendment. But the discretion vested in the county court was either to issue or not to issue the bonds. Once this discretion had been exercised by issuing bonds-, the .discretion was at an end. It is inconceivable that- the court should have any discretion in the matter of making provision for the payment of the bonds, once the discretion to issue them had been exercised.
Section 4 of the enabling act of 1925 provides that: “Before or after the issue of said bonds, the quorum court of such county * * * shall levy a tax, which, on the existing assessed value of the property of such county, * * * will suffice to retire said bonds as they mature, with five per cent, added for unforeseen contingencies; provided, that said tax shall not exceed three ■mills on the dollar of such assessed value.” This section of the enabling act also provides that the rate may be lowered when a rate so high is not required, but it further provides that “no tax shall be levied which will produce less than the sum required to meet the maturities of the bonds, with five per cent, added for unforeseen contingencies, nor shall any tax in excess of three mills on the assessed value existing at the time of such levy ever be levied in any year. ”
In the case of Washington County v. Davis, 162 Ark. 335, 258 S. W. 324, it was said: “In Pirani v. Barden, 5 Ark. 81; Spratley v. La. & Ark. Ry. Co., 77 Ark. 412, 95 S. W. 776; and C. R. I. & P. Ry. Co. v. Jager, 85 Ark. 232, 107 S. W. 1170, this court has recognized that the word ‘may’ is often interpreted to mean ‘shall.’ The general rule of construction is that the word ‘may’ is construed to mean ‘shall’ whenever the rights of the public or third persons depend upon the exercise of the power or the performance of the duty to which it refers” (citing authorities).
The levy of this tax is the security provided by law for the payment of the bonds and the interest thereon, and it was upon the faith of this statute, and the (amendment as well, that the bonds were sold, and the enforcement of the right of the holders of these bonds to be repaid the money invested in them is dependent upon the action of the court in levying the tax, and in such case the word “may” must be construed as meaning “shall.”
In the recent case of Chicago Mill & Lbr. Co. v. Drainage District No. 17, 172 Ark. 1059, 291 S. W. 810, it was held that, where the commissioners of a drainage district, which had issued bonds, determined the amount necessary to be raised by taxation to discharge the maturing bonds and the interest thereon, the court, having the power and being under the duty to levy the tax, could be compelled by mandamus to do so.
The order of the county court authorizing the bond issue provided the dates of maturity of the bonds, the first being in October, 1927, and it is shown that the quorum court, at its 1926 session, failed and refused to make the levy necessary to meet the 1927 maturity. No order of the county court is necessary, as counsel for the county insist, to determine the county’s liability in the year 1927. The original order of the county court authorizing the bond issue determined that fact.
The bondholders are not required to wait until default has actually occurred on the part of the county. They are entitled to payment in accordance with the terms of the original order of the county court under which the bonds were sold, and it is the duty of the quorum court to make the necessary levy to insure payment.
A motion to dismiss the present appeal has been filed by the county upon the ground that the holders of certain of the bonds sold originally to appellants have brought suit in th.e Federal District Court against the county to enforce the payment of the bonds. It appears, however, that, while the appellants bought the entire bond issue, they have sold $20,000 of the bonds to an insurance company, and it is that company which has brought suit in the Federal court. It is not essential that appellants should own the entire issue to obtain relief by mandamus, as the owner of only one of the bonds would, in a proper case, be entitled to that relief.
The motion to dismiss the appeal is therefore overruled.
It follows from what we have said that the circuit court was in error in refusing to award the writ of mandamus as prayed, and the judgment of that court will be reversed, and the cause remanded to the circuit court, with directions to award relief by mandamus as prayed, by directing the quorum court to levy a tax sufficient to discharge the maturing bonds and the interest on all of them, not exceeding, however, three mills on the dollar of the assessed valuation of the property of the county. | [
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Hart, C. J.,
(after stating the facts). It is first soug’ht to reverse the judgment because the circuit court erred in refusing to grant the petition of the plaintiffs for a change of venue.
Section 10341 of Crawford & Moses’ Digest provides that the venue of civil actions shall not be changed unless the court or judge to whom the application for change of venue is made finds that the same is necessary to obtain a fair and impartial trial of the cause. In construing this statute in St. Louis, Iron Mountain & Southern Ry. Co. v. Reilly, 110 Ark. 182, 161 S. W. 1052, the court said:
“The statute means, of course, that the court must hear evidence on the subject, and be governed by it in reaching a conclusion on the issue whether or not a fair and impartial trial can be obtained in the county. The court has a certain amount of discretion in weighing the evidence, but cannot arbitrarily refuse to grant a change of venue when the evidence establishes the fact that a fair trial cannot be obtained there.”
The allegations of the petition were not of such character as the court was hound to find that the plaintiff could not obtain a fair and impartial trial in the county. The defendants to the action were a bank and two of its officers. The petition for change of venue alleged that, on account of the undue influence of the defendants, the plaintiffs, who were residents of the State of Oklahoma, could not obtain a fair and impartial trial in the Fort Smith District of Sebastian County. The statement of affiants to the petition amounts to no more than an expression of opinion by them. They did not attempt to give any fact upon which their opinion was based. They merely stated their conclusions in the matter, which the court was not required to accept as establishing the facts alleged.
Again, it is sought to reverse the judgment because the court denied the challenge of the plaintiffs to certain jurors. In asking questions touching the qualifications of jurors, it was ascertained that some, of the jurors did business with the First National Bank, and counsel for the plaintiffs challenged them for cause on this account. A person selected and returned as a juror is presumed to be competent and qualified to serve, and the burden is on the challenging party to establish a prima facie disqualification. Shaffstall v. Downey, 87 Ark. 5, 112 S. W. 176.
In discussing the subject in Thompson v. Douglass, 35 W. Va. 337, 13 S. E. 1015, the Supreme Court of Appeals of West Virginia said:
“As Lord Coke said centuries ago may be said now: ‘The causes of favor are infinite.’ No enumeration was ever attempted of what causes might be alleged as ground of challenges to the favor. It would be impossible to specify all that should be allowed in advance by a statute, for they depend upon each particular case and the circumstances and. parties to it.”
This view is in accordance with our holding on the subject. Rumping v. Arkansas National Bank of Hot Springs, 121 Ark. 202, 180 S. W. 749. The reason is that the judge who presides at a trial, and who observes the appearance and manner of jurors, when upon their voir dire, must necessarily exercise a .judicial discretion in passing upon their qualifications. Lavender v. Hudgens, 32 Ark. 763.
It is next insisted that the court erred in refusing to allow some of the jurors to -answer whether or not the fact that they did business with the First National Bank would cause them to believe an officer of the bank in preference to a stranger. The court did not abuse its discretion in sustaining an objection to this question. It was not shown whether or not the jurors were indebted to the bank or whether they were simply depositors. There had been nothing developed in their examination which tended to show that any special relation of friendship or business existed between them and the officers of the b'ank. Under these circumstances the court was right in refusing to allow the jurors to be examined as to the apparent credence which they would give to the testimony of the officers of the bank, who were defendants in the action, and the plaintiffs, who lived only a short distance away, in an adjoining .State. 35 C. J. p. 392, paragraph 438 (2); Horst v. Silverman, 20 Wash. 223, 55 P. 52, 72 Am. St. Rep. 98; Jenkins v. State, 31 Fla. 196, 12 So. 677; State v. McIntosh, 141 La. 150, 74 So. 886; and Commonwealth v. Porter, 4 Gray (Mass.) 423.
This brings us to a consideration of the merits of the issues raised by the appeal. It is conceded that the general rule in nearly all States is that fraud must relate to a present or pre-existing fact, and cannot ordi narily be predicated on promises or statements as to what will be done in the fntnre. The reason is that representations and promises as to future conduct are merely statements of opinion as to what the promisor intends to do, on which the party to whom they are made has no legal right to rely. This is the general rule laid down by this court in Lawrence v. Mahoney, 145 Ark. 310, 225 S. W. 340, and our earlier cases on the subject.
It is true that in Lilly v. Barron, 144 Ark. 422, 222 S. W. 712, the court referred to the exception to the general rule that, if the promise is accompanied with an intention not to perform it, and is made for the purpose of deceiving the person to whom it was made, and induces him to act in the premises, the same constitutes fraud. It will be observed, however, that the court said that no state of facts was presented in that case which would bring the case within the exception to the general rule, and there is nothing in the opinion to indicate that the court meant to recognize the exception to the general rule as the law in this State. In a case note to 51 A. L. R., p. 63, it is said that, according to the weight of authority, if the person making the promise or statement as to a future event is guilty of an actual fraudulent intent, and makes the promise or misrepresentation with the intention of deceiving and defrauding the other party, and-accomplishes this result, to the latter’s injury, fraud may, under many circumstances, be predicated thereon, notwithstanding the future nature of the representations. It is further stated that the weight of authority holds that fraud may be predicated on promises made with an intention not to perform the same, or, as the rule is frequently expressed, on promises made without an intention of performance. In such cases it is said that the gist of the fraud is not the breach of the agreement to perform but the fraudulent intention of the promisor and the false representation of an existing' intention to perform, when such intent did not in fact exist. Among the cases in support of the rule we cite the' following from the Supreme Court of Oklahoma: Blackburn v. Morrison, 29 Okla. 510, 118 Pac. 402, Ann. Cas. 1913A 523; McLean v. Southwestern Casualty Ins. Co., 61 Okla. 79, 159 Pac. 660; Rogers v. Harris, 76 Okla. 215, 184 Pac. 459; and Haggerty v. Key, 100 Okla. 238, 229 Pac. 548.
In McLean v. Southwestern Casualty Ins. Co., 61 Okla. 79, 159 P. 660, it was said that there is a wide distinction between the nonperformance of a promise and a promise made mala fide and without any intention at the time of making it to perform it; and, while ordinarily a statement upon which fraud may be predicated must be of an existing fact, yet if a promise is made to be performed in the future, as an inducement to obtain a contract, if the intention not to perform the promise be shown to have existed at the time the promise was made, such false promise constitutes cognizable fraud.
The circuit court adopted the view of the law laid down by the Supreme Court of Oklahoma in the cases above cited in trying the case at bar, and, inasmuch as the result of our views affirms the judgment of the circuit court, it will not be necessary for us to determine whether, in leases where the alleged fraudulent promises were made in another State and suit based thereon is brought in this State, the courts of this State will recognize the law on the subject as laid down by the Supreme Court of the State where it is alleged • that the false promises were made. '
The circuit court correctly directed a verdict in favor of the First National Bank. There is no testimony in the record tending to show that it authorized its assistant cashier to go to Cameron, Oklahoma, and make any representations to the Bank of Cameron to the effect that it would furnish the Bank of Cameron with money to operate on during the year 1922. While there was proof that Neil Sims, assistant cashier of the First National Bank, went to Cameron and told some of the depositors • of the Bank of Cameron that the First National Bank would see the Bank of Cameron through during the year 1922, such declarations of the assistant cashier are not competent evidence against the bank, because they were not authorized by the bank, and did not relate to any act done by him in the course of his agency. He went to Cameron for the purpose of getting collateral notes for a specific loan which the First National Bank was making to the Bank of Cameron. Taylor v. Commercial Bank, 174 N. Y. 181, 66 N. E. 726, 62 L. R. A. 783, 95 Am. St. Rep. 564. Hence the undisputed evidence shows that there was no liability to the plaintiffs by the First National Bank, and the court properly directed a verdict in its favor.
The court also directed a verdict in favor of Neil Sims against Ophelia Barton and twenty-four other plaintiffs, because there was no testimony tending to prove any statements made by Neil Sims or any one for him to said plaintiffs relative to the transaction in question. The record does not show that Neil Sims made any statement to these plaintiffs whatever, nor does it show that any one else for him made any statement to them relative to the matter. Therefore we hold that the court was right in directing a verdict in his favor as to these plaintiffs. Moreover, the action of the- court in directing a verdict in favor of Neil Sims as to these plaintiffs was not one of the grounds for the motion for a new trial, and, under our settled rules of practice, no assignment of error could be based upon the action of the court. The reason is that it is the duty of the complaining party to call the court’s attention to the particular error and give it an opportunity to correct the same. Patterson v. Risher, 143 Ark. 376, 221 S. W. 468, and Oliphant v. Hamm, 167 Ark. 167, 267 S. W. 563.
At the conclusion of the evidence the court directed a verdict in favor of the defendant A. N. Sicard against W. R. Brown and twelve other plaintiffs. The ruling of the court was not made one of the grounds for a motion for a new trial, and,'as just stated, under our settled rules of practice the action of the court cannot be reviewed.
We have carefully examined the instructions given at the request of the plaintiffs, as well as those given at the request of the defendants, and are of the opinion that they fully and fairly submitted the question at. issue, under the law as laid down by the Supreme Court of Oklahoma in the cases above cited. According to the evidence of all the officers of the First National Bank who were present when they had the negotiations with the cashier of the Bank of Cameron, no promise whatever was made by the First National Bank or any of its officers or directors that it would see the Bank of Cameron through during the year 1922. According to the testimony of R. C. Strozier, cashier of the Bank of Cameron, such promise was made. The disputed question of fact whether or not the jury should find that such promise was made and whether or not there was an intention not to perform the promise as shown to have existed at the time it was made, was submitted to the jury under the principles of law above announced, and, under our settled rules of practice, the verdict being in favor of the defendants, it will be allowed to stand.
We find no reversible error in the record, and the judgment will therefore be affirmed. | [
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Hart, C. J.,
(after stating the facts). The three cases have been consolidated for the purposes of appeal, and involve the construction of act 99, approved March 4,1927. Acts of 1927, p. 257. Under § 1 of the act there is a proviso that the term “motor vehicles” or “motor-propelled vehicles” as used in the act shall only include a motor vehicle operating a service between cities or towns. The section also provides that the term “improved public highway,” wherever used in the act, means every improved public highway in the State which is or may hereafter be declared to be a part of the State highway system, or a county highway system, or the streets of any city or town. The act contains fourteen sections, and provides that every corporation or person operating motor vehicles within the terms of the act shall procure a license therefor from the Arkansas Railroad Commission, and comply with the reasonable rules and regulations prescribed by said commission. Section 8 makes it a misdemeanor to operate a motor vehicle as provided in the act without first securing a permit from said commission. Section 10 provides that no city or town shall impose any tax or license, upon a motor-vehicle carrier licensed under the provisions of the act. Other provisions of the act show that it was the intention'of the framers of it to apply it to motor vehicles being operated over fixed routes and as a common carrier of passengers or of freight.
It will be noted-that subdivision D of § 1 contains the'following: “Provided, the terms ‘motor vehicles’ or ‘motor-propelled vehicles’ as used in this act shall only include a motor vehicle operating a service between cities or towns.”
Other provisions of the act show that the motor vehicles coming within its terms are common carriers which operate over a fixed route.
We are of the opinion that the term “between cities or towns” is used to designate the termini of the line or -route, and it would not make any -difference whether the station at which passengers or freight are loaded and unloaded were within' the corporate limits or just outside the corporate limits of the cities or towns which are the termini of the route.
In Murray v. Menefee, 20 Ark. 561, the court had under consideration a statute relative to locating ferries in or near cities or towns where the public convenience may require it. The court said that in this country there seems to be no precise legal definition of the term town, and that it was used in the statute in its popular sense. In that ease the place claimed to be a town had a business house, dwelling houses for two families, and the population of the two families embraced six persons. The court said to call the place a town in any sense would be an obvious misapplication of the term. Again, in Clements v. Crawford County Bank, 64 Ark. 7, 40 S. W. 132, 62 Am. St. Rep. 149, the court had under consideration what constituted a town or village within the meaning of our Constitution relating to homesteads, and again approved the definition of the word as used in its popular sense in the first case cited. Hence it may be said that the word “town,” as used in the statute, is to-be considered in its popular sense as an aggregation of houses so near one another that the inhabitants may fairly be said to dwell together. 38 Cyc. 596.
The word “city” in the United States denotes a large town, and is a municipal corporation charged with certain specified- duties of government within its territorial limits. 11 C. J. 787, and Ford v. Delta & Pine Land Co., 164 U. S. 662, 17 S. Ct. 230, 41 L. ed. 590.
We think that the framers of the statute in question used the words “city” and “town” in the popular sense, as above stated, and only meant to place within the jurisdiction of the Arkansas Railroad Commission common carriers operating motor vehicles over a fixed route between cities and towns. The cities or towns are required to be the termini of the route. Stations might be established within, or reasonable distances without, the limits of said cities or towns for the purpose of receiving and discharging passengers or loading and unloading freight.
Under the agreed statement of facts, none of the defendants came under the provisions. of the act.
Haynes was operating a taxicab in the city of Hot Springs, and the mere fact that he went outside of the city on certain occasions to deliver passengers did not bring him within the provisions of the act in question.
The agreed statement of facts shows that Shick operated a sight-seeing bus, commencing its journey in the city -of Hot Springs and going to Re-mmel Dam and certain springs near, and returning to the city of Hot . Springs. In making the sight-seeing trip the bus did not go through any city or town. Consequently the operator did not come within the provisions of the statute.
Under the agreed statement of facts, Austeel operated a taxicab service from the hotels in the city of Hot Springs to the Hot Springs Country Club, or golf course, which was about three miles from the city limits. In going to and from the city to the golf 'course he did not go through any city or town. He only went to and from the hotels in the city to the golf course, when passengers desired such service.
The defendants all complied with the ordinance of the city of Hot Springs regulating the operation of taxicabs, and we are of the opinion- that, under the. facts stated, the defendants were not operating motor vehicles as prescribed in the act, and that the circuit court properly held that the Arkansas Railroad Commission had no jurisdiction over* them. It follows that the judgment in each case will be affirmed. | [
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Humphreys, J.
On November 18, 1941, one of the appellees, W. H. Smith, brought suit in the chancery court of Craighead county, western district, -against appellants on $1,000 note and against appellant, B. F. G-regson, for the balance due upon a $5,815 note. It was alleged in the first count of the complaint that on May 9, 1939, appellants executed their note to the Citizens Bank of Jonesboro, Arkansas, for $1,000 due December 1, 1939, with interest from maturity at 10 per cent, per annum until paid; that said note was assigned to appellees and is unpaid; that appellants executed on the same date a second mortgage on certain lots in Bono, Arkansas, which was their homestead and a first mortgage on their automobile to secure said note and prayed for a judgment against them on the note and a foreclosure on the mortgage to pay same.
And he alleged in the second count of his complaint that appellant, B. F. Gregson, executed another note for $5,815 to the Citizens Bank of Jonesboro, Arkansas, payable on demand, or if no demand be made, on the 15th day of October, 1939, with interest from maturity until paid at 6 per cent, per annum; that, with the exception of certain credits, the note is unpaid and that appellee, W. H. Smith, is the owner of same; and he prayed judgment against B. F. Gregson for $4,577.25, with interest. There was a prayer for costs and all other proper relief, and for consideration of the two others in the complaint as one suit.
On December 4, 1940, appellants answered the complaint denying all the material allegations thereof, and alleged that appellee, W. H. Smith, was not the owner of the note and mortgage set out in count one; that said instruments never became operative, that they were not supported by consideration; that there was a failure of consideration therefor and they incorporated in their answer the allegations of the cross-complaint hereinafter set out. The answer further alleged that appellee, W. H. Smith, was not the owner of the'note described in count two of the complaint, incorporated therein the allegations of the cross-complaint hereafter set out, and averred that the note was intended to express, the correct amount of an overdraft due by appellant, B. F. Gregson, to Peoples Exchange Company, Bono, Arkansas; that the said note was illegal; that said note had been paid by 1939 and 1940 operations of a gin known as the Caraway Gin by H. H. Smith and by other payments. There was a prayer for judgment and costs in the answer.
For counter claim against appellee, W. H. Smith, and cross-complaint against Peoples Exchange Company, H. H. Smith, Teresa J. Smith, his wife, and S. Y. McKinney, as cross-defendants, the appellants alleged:
1. That Peoples Bank Company of Bono, Arkansas, had no power to loan money; that its corporate name was changed on June 6,1939, to Peoples Exchange Company ; that H. H. Smith was president and Ray L. Stevens secretary of said banking company.
2. That H. H. Smith is the son of W. H. Smith and Teresa J. Smith the wife of PI. H. Smith, joined because of possible dower interest in property involved.
3. That J. L. Craft contracted in writing to sell a certain described cotton gin, referred to as the Caraway Gin Co., to B. F. Gregson, in 1938, subject to the $5,000 deed of trust to Buckeye Cotton Oil Company, for a total purchase price of $10,000 ($5,000 thereof by assumption of said deed of trust, and balance of $5,000 to be paid to Craft), payments to be made as bales were ginned at said gin at rate of $2.50 per bale, deed of trust to be paid before Craft was to receive any payment.
4. That Gregson paid about $1,400 during 1938 on said deed of trust; that the original contract of purchase by Gregson had been lost; that Gregson spent several hundreds of dollars repairing the said Caraway Gin; that Gregson had, by permission of Peoples Bank Company of Bono, Arkansas, created during the 1938 ginning season an overdraft of around $4,000; that said bank had no power to loan its deposits; that Gregson had never been returned his checks or statements and did not know the exact amount of the overdraft. Demand that original records be produced by said bank.
5. That about May 9, 1939, H. H. Smith, president, and Bay Stevens, secretary, demanded that Gregson pay at least $1,000 on his overdraft; that said parties went to Citizens Bank of Jonesboro and applied for a $1,000 loan; that S. V., McKinney, vice-president of Citizens Bank, advised that loan papers be executed and he would try to get the said bank’s loan committee to approve such a loan; that the notes and mortgage were made and delivered to Citizens Bank; that Citizens Bank did not make the loan; that no consideration was paid for the note and there was a complete failure of consideration.
6. That later H. H. Smith presented to Gregson a printed note form and asked him to sign it, stating .that he was going to fill it in for the exact amount of the overdraft to keep the bank examiners from getting on him; that it was filled in by Smith for an incorrect amount; demand that cross-defendants .produce original records to establish correct amount;, that note was illegal.
7. That, in the spring of 1939, H. IT. Smith, as president, and Ray L. Stevens, as secretary of Peoples Bank Company, asked Gregson in presence of J. L. Craft to turn over the Caraway Gin to be operated by H. H. Smith for the said bank, all profits to be applied to overdraft until it was paid, and then the gin to be returned to Greg-son; Gregson agreed with consent of Craft, his vendor; that H. H. Smith took charge of the said gin, operating it during 1939 and 1940, making during 1939 about $4,000, and during 1940, about $5,000; that no profits were applied to the said overdraft, but were instead wrongfully converted to his own use by H. H. Smith in violation of his agency.
8. That before July 3, 1939, but after the foregoing agreement, J. L. Craft'traded to S. V. McKinney the balance due upon the purchase price by Gregson, McKinney thereby becoming the owner of the said balance.
9. That Craft and wife made a deed of the gin to H. H. Smith, without Gregson’s knowledge, on July 3, 1939, making correction deed to same on January 2,1940. Smith made notes to McKinney totaling $12,000 for McKinney’s advances of money to pay Buckeye Cotton Oil Company debt, new improvements and assumption of purchase money debt assigned by Craft to McKinney with 6 per cent, interest per annum, H. H. Smith and wife, Teresa J. Smith, making mortgage to secure said notes on July 3, 1939, and correction mortgage on January 13, 1940; that all of this was done without Gregson’s knowledge.
10. That W. H. Smith, under certain parol agreement, paid off deposit claims of Peoples Exchange Company and assumed control of assets of Peoples Exchange Company.
11. That the $1,000 note in suit never became an asset of said bank; that H. H. Smith, as agent for "W. H. Smith, told S. Y. McKinney in August or September, 1940, that the note belonged to his father, and McKinney, in reliance thereon, indorsed it without recourse; that W. H. Smith was not a holder in due course and there was complete failure of consideration.
12. That the correct amount of the overdraft, if it is held recoverable, should be ascertained by the court; that Peoples Exchange Company, W. H. Smith and H. H. Smith should be required to credit the profits from operation of Caraway Gin on the overdraft, and pay over any balance to B. F. Gregson; or, in the alternative, that all of the profits should be paid to B. F. Gregson.
13. That H. PI. Smith be found to have violated his duty by taking Caraway Gin deed to himself and be declared a trustee for Gregson; that legal title be divested from him and vested in B. F. Gregson; that, since H. H. Smith has converted the equity in the gin property to his own use, a receiver should be appointed.
The prayer of the cross-complaint was: (1) that note and mortgage in count one of complaint be canceled as having no legal effect, and for the reason that appellee, W. H. Smith, was never the owner of same; (2) that note in count two of complaint be canceled; that overdraft be held illegal and not recoverable, but if recoverable that its exact amount be determined; that Peoples Exchange, W. H. Smith and H. H. Smith be required to account for and credit the overdraft, not only the payments thereon, but also the 1939 and 1940 gin profits from operation of the Caraway Gin; that the cross-complainants have judgment against them with interest for excess of said profits over the overdraft; or, in the alternative, judgment for full amount of profits with interest; (3) that cross-complainant, B. F. Gregson, be declared equitable owner of Caraway Gin and H. H. Smith constructive trustee of same; that title be divested -out of H. H. Smith, with possible dower of Teresa J. Smith, and vested in cross-complainant, B. F. Gregson; (4) that S. Y. McKinney be required to answer and state balance remaining unpaid on his mortgage to determine its status; (5) that a receiver be appointed; (6) that cross-complainants have decree for costs and all other proper relief.
An answer was filed to the cross-complaint denying each and every material allegation thereof.
The cause was submitted to the court upon the complaint, answer, counterclaim and cross-complaint, the answer to the cross-complaint, the testimony introduced in the form of depositions by the respective parties and the exhibits to the pleadings and testimony.
Exhibit “A,” appearing in the record, relates to a sale of the Caraway Gin by J. L. Craft to B. F. Gregs on and is as follows:
“Exhibit A. Contract entered into on July 28, 1938, between J. L. Craft, first party, and B. F. Gregson, second party.
“First party, upon payment of consideration hereinafter set out, agrees to transfer gin premises referred to as P. S. Osborne Gin (specifically described) to second party. In consideration of such sale, second party promises to pay first party the sum of $10,000, payable as follows:
“ ‘The entire sum of $10,000 shall be payable weekly during the ginning season at the rate of $2.50 per bale for each and every bale of cotton ginned at said gin premises. The deferred portion of the purchase price shall bear interest from this date until paid at the rate of 8 per cent, per annum and said payments shall continue for such period as will be required for paying said $10,000 with interest at the rate of $2.50 per bale for all cotton ginned on said premises. Default in the payment of said $2.50 per bale as herein provided shall entitle first party or his assigns to declare the remaining portion of the purchase price due and payable immediately and to take possession of the premises. Receipt of $1 of the above referred to purchase price is this day acknowledged. ’
“Second party agrees to pay taxes and to insure gin and equipment with whatever company and for whatever amount is agreeable to both parties.
“It is understood that there is a first mortgage on said gin equipment to the Buckeye Cotton Oil Company, in the sum of $5,000, which first party agrees to pay. If first party fails to pay as agreed, second party shall be credited upon the purchase price for any sum he may be required to pay. The Buckeye Cotton Oil Company to have the refusal of any cotton seed sold from the gin.
“While possession is this day delivered to second party, he to have exclusive control, management, and direction of said gin property in the future, title shall not become absolute in him until the .purchase price is paid in full, but shall be and remain in first party.
“Should second party fail to keep premises insured, to pay premiums or to pay taxes, such default shall entitle first party to accelerate due date of remaining portion of the purchase price, or pay such insurance and taxes, or either, and apply net proceeds paid by second party towards reimbursement.
“Witness our hands and'seals in duplicate the date hereinabove mentioned.
“J. L. Craft, First Party.
“B. F. Gregson, Second Party.”
Exhibit “B,” appearing in the record, is a modification of the contract, which is as follows:
“This contract today made and entered into by and between J. L. Craft, as first party, and B. F. Gregson, as second party, witnesseth:
“Whereas, on July 28, 1938, the parties entered into a written contract pertaining to one acre of land and a cotton gin and equipment located at Caraway in Craig-head county, Arkansas, and in which contract it is provided . . . that the second party shall pa)7 to the first party, weekly, $2.50 per bale for each and every bale of cotton ginned at said gin, same to be applied to the payment of an indebtediiess of $10,000 owing by the second party to the first party, and
“Whereas, it is recited in said contract that said property is subject to a deed of trust executed by the first party and his wife to Leslie Gardner as trustee for the Buckeye Cotton Oil' Company for the sum of $5,000, and which indebtedness'remains unpaid, and
“Whereas, the parties hereto now desire to modify the provisions of said contract to such effect that instead of the second party paying to the first party $2.50 per bale weekly for eaeli and every bale of cotton ginned, the second party will sell and ship to said Buckeye Cotton Oil Company at Memphis, Tennessee, all cotton seed originating and accumulating at said gin and that the net proceeds thereof sufficient to pay to said Buckeye Cotton Oil Company two notes for $1,000 each due in the fall of 1938 owing by the first party to said Buckeye Cotton Oil Company, and that after the full payment of said two $1,000 notes and interest out of the proceeds of the sale of said cotton seed then the second party will pay to the first party $2.50 weekly per bale for each and every bale of cotton ginned by the second party at said gin, provided, it is understood by the parties hereto that if the second party do not gin as many as 800 bales of cotton at said gin during the ginning season of 1938, then the above payments shall be reduced proportionately as between said 800 bales and the number of bales actually ginned.
“It is agreed that said contract dated July 28, 1938, is not modified or amended to greater extent than as herein specifically stated, and that in all other respects said contract shall continue and remain as written.
“Witness our hands this 6th day of August, 1938.
“J. L. Craft, First Party.
“B. F. Gregson, Second Party.”
Based upon the pleadings, testimony and exhibits to both, the trial court on January 6,1942, found:
“That appellee, W. II. Smith, should recover $1,000 with interest at ten per cent per annum from December 1, 1939, from appellants, B. F. Gregson and Vada Greg-son; that said sum is a lien, subject only to a first lien of Citizens Bunk of Jonesboro, upon certain lots in Bono, Arkansas; that said lien should be foreclosed and the property sold subject to the first lien; that said judgment is also a lien upon a certain Chevrolet sedan, which should be foreclosed.”
The court then rendered a decree in favor of appellee, W. H. Smith, against appellants, B. F. Gregson and Vada Gregson, for the sum of $1,000 with interest from December 1, 1939, until paid, at 10 per cent, per annum; that said sum is declared a lien upon certain lots in Bono, Arkansas, and upon a certain Chevrolet sedan, which is hereby foreclosed, including* dower- and homestead rights of Yada Gregson.
The decree then provided for a sale of the mortgaged property subject to a first mortgage thereon, in favor of the Citizens Bank of Jonesboro, to satisfy the judgment if same were not paid in 20 days and also provided the manner of sale in detail.
The court further found that B. P. Gregson is indebted to the appellee in the sum of $4,577.25 with interest at 6 per cent, per annum from October 15, 1939, being* the balance due upon a certain promissory note made by B. P. Gregson on April 1, 1939, to the Citizens Bank of Jonesboro, and decreed that appellee, W. H..Smith, have and recover from appellant, B. P. Gregson, the sum of $4,577.25 with 6 per cent, interest from October 15, 1939, until paid.
Appeal has been duly prosecuted to this court from the findings and decree of the trial court.
Testimony, in the form of depositions, was introduced responsive to practically every issue joined in the pleadings except the issue joined as to whether the Peoples Exchange Company, W. H. Smith and H. H. Smith should be required to account for and credit the overdraft with profits from the operation of the Caraway Gin in the year 1939 and subsequent years and whether the title to the Caraway Gin be divested ont of H. H. Smith and vested in B. P. Gregson. Upon these issues the testimony was not fully developed until the issue of liability upon the counterclaim and cross-complaint was finally determined by the court.
The record in this case reflects that the “Peoples Bank of Bono,” Arkansas, was a cooperative bank, organized under the Act of 1921. The act was amended in 1937 by the legislature so as to require the bank to change its name and the name was accordingly changed to the “Peoples Exchange Company.” All the stock in the Peoples Bank of Bono, the name of which was subsequently changed to that of the Peoples Exchange Company of Bono, was acquired by Ray L. Stevens who operated the institution individually for quite a while. He then sold one-half interest in the institution to H. H. Smith in 1937, and it was operated after that time by the two of them. During the operation of the institution appellant, B. F. Gregson, who had purchased the Caraway Gin in his own name and an undivided interest in what was known as the Shady Grove Gin, became indebted to the institution by overdrafts and executed a note to the Citizens Bank of Jonesboro on blanks of the Citizens Bank of Jonesboro in the sum of $5,815, which note matured October 15, 1939. This note was intended for and delivered to the Peoples Exchange Company and became in fact one of its assets. The institution was in need of ready money and B. F. Gregson, who was very friendly to the institution and desired to help it out, agreed that he and his wife would execute a second mortgage on their homestead in Bono and their Chevrolet sedan to the Citizens Bank of Jonesboro who indicated that they would lend them $1,000 to pay upon the note covering the overdraft. This note and mortgage was executed on May 9, 1939, by B. F. Gregson and Yada Gregson, his wife, to the Citizens Bank of Jonesboro, maturing December 1, 1939, and same was delivered to Ray Stevens for the purpose of getting $1,000 in cash from the Citizens Bank of Jonesboro and applying the same on the overdraft note. When Stevens offered the note to the Citizens Bank of Jonesboro the directors refused to make the loan on the ground that it was a second mortgage on real estate and Stevens then took the note to his own institution and placed it in a box and entered a credit on the overdraft note for $1,000.
Appellants contend that since the Citizens Bank of Jonesboro would not accept the note and mortgage and pay Stevens the actual money for same, Stevens or his institution had no right to treat it as the property of his institution and credit the overdraft note with the amount. The sole purpose on the part of B. F. Gregson and Vada Gregson in executing the note and mortgage was to obtain a credit on the overdraft note for $1,000. After the note and mortgage were executed they were turned over to Stevens and as the Citizens Bank of Jonesboro would not lend the money he placed the note and mortgage in his bank as an asset thereof and gave the credit on the overdraft note for the entire amount. No fraud was practiced on B. P. Gregson and Vada Gregson, his wife, and no injury done to them. They received the consideration for which the note and mortgage were executed when the credit of $1,000 was entered upon Greg-son’s note covering the overdraft, so we cannot agree with learned counsel for appellants that appellants received no consideration for the note and mortgage. We think that appellants are clearly estopped from interposing no consideration as a defense to the note and mortgage. To hold otherwise would put form above substance. Again, there would be no equity in canceling the note and mortgage as the undisputed evidence shows that at least $600 of the money constituting the overdraft was used to build the dwelling claimed as the homestead.
The trial court did not, therefore, err in refusing to cancel the note and mortgage and in rendering a judgment for the amount and a decree of foreclosure against the homestead subject to another mortgage thereon and in foreclosing the lien against the automobile.
Appellants next contend that the trial court erred in rendering a judgment for the balance due on the overdraft note for a number of reasons. One reason assigned is that the note was executed to the Citizens Bank of Jonesboro and not to the Peoples Exchange Company. This is a technical defense without merit to sustain it. All the evidence shows that the overdraft note was the property of the Peoples Exchange Company. The record reflects that the error occurred on account of using-blanks of the Citizens Bank of Jonesboro. The Citizens Bank of Jonesboro was very friendly to the Peoples Exchange Company and assisted it in many ways. Although the two institutions operated independently of each other it would not be an unreasonable inference under the record made in this case to denominate the Peoples Exchange Company as an adopted child of the Citizens -Bank' of Jonesboro. Another reason assigned is that the note was executed in blank with the understanding that the correct amount of the overdraft would be inserted in same. Our conclusion, after reading the evidence very carefully, is that it was completely executed when delivered, including the correct amount of the overdraft. It is true that a representative of the banking department, at the request or demand of appellants, examined the books of the Peoples Exchange Company and found several small errors in arriving at the amount of the overdraft of which B. F. Gregson should have a credit of ,$321.30. The representative of the banking department, Mr. Winters, explained how these errors were made, none of which indicate that any fraud was practiced upon Gregson in determining the amount of the overdraft covered by the overdraft note. Attorneys for appellees state in their brief, on page 51, that: “If this court deems it proper to accept the testimony of the accountant and give Gregson credit for the trifling difference we will not complain, but by this concession we certainly do not concede that the amount of the note really is subject to attack, in view of all the various elements of ratification and estoppel shown in this case.”
It may be the accountant is correct and, since attorneys for appellees do not object, we will modify the decree by allowing a credit of $321.30 with interest thereon at 6 per cent, per annum from the date of the overdraft note. We do not think under the record made in this case that the court erred in giving W. H. Smith judgment for the balance due on the overdraft note on the theory that the Peoples Exchange Company did not own the note. Of course, if the Peoples Exchange did not own this note, W. H. Smith was not entitled to a judgment on same. He was not an innocent purchaser of the note for value before maturity. He took the note as well as the $1,000 note subject to all the defenses appellants had to the note or notes against the Peoples Exchange Company. There is no question under the record made that W. H. Smith paid a complete and adequate consideration for the assets of the Peoples Exchange Company. The representative of the bank commissioner had listed the two notes as assets for the Peoples Exchange Company and ' W. H. Smith paid $7,573.84 with which to pay off the depositors of the bank except his own deposit and that of the Stevens family. lie refused to pay this amount over until all parties interested in the Peoples Exchange Company waived any and all interest they might have in the bank. Appellants argue that W. H. Smith got nothing for the reason that the bank commissioner did not take over the Peoples Exchange Company. and administer same through the chancery court. The Peoples Exchange Company was not taken over by the bank commissioner for the reason that W. H. Smith paid all the depositors and obtained waivers from all parties interested in the Peoples Exchange Company and there was no necessity for an administration of the affairs of the Peoples Exchange Company. In fact this institution was never declared insolvent. The affairs of the bank were settled with the aid and assistance of the bank commissioner and everyone interested therein, so we do not think appellants could interpose the defense against the collection of the note or notes the manner in which the affairs of the Peoples Exchange Company were wound up.
The only other contention of appellant, B. F. Greg-son, that the trial court erred in rendering judgment on the overdraft note against him is that it was the duty of the Peoples Exchange Company under his agreement with it or its two owners that it would take over and manage the Caraway Gin and apply the profits thereon to the payment of the overdraft, and that if it had applied the profits earned by H. H. Smith to the payment of the overdraft it would have more than liquidated same. In other words, it is the claim of B. F. Gregson that he owned an equity in the Caraway Gin under his purchase contract thereof from J. L. Craft at the time he delivered the Caraway Gin to H. H. Smith, which had never been foreclosed against him. The record is so conflicting upon how this equity in the Caraway Gin got out of B. F. Gregson and how his interests or equity got into H. H. Smith that it is impossible to draw any correct conclusion relative to the matter. The record reflects that B. F. Gregson’s management of the Caraway Gin, after he purchased it from J. L. Craft, was a losing proposition in its operation. B. F. Gregson never paid any part of the purchase money and only about $1,500 on the $5,000 mortgage to the Buckeye Cotton Oil Company and during his management accumulated or became responsible for an overdraft to the Peoples Exchange Company for about $5,815 and a few hundred dollars in the way of repairs. The Caraway Gin was more or less an elephant on his hands so it is not surprising that he got rid of it. This contract of purchase and modification thereof was not in the nature of a deed and was not on the record. He could have voluntarily surrendered it to J. L. Craft in satisfaction of the purchase money he owed. According to the record the legal title to the Caraway Gin is in H. H. Smith by deed from J. L. Craft and Teresa Craft, his wife. That deed incorrectly described the property and another was made on January 2,1940, by J. L. Craft and his wife, correcting the description. According to the record, J. L. Craft owned the legal title to the property by deed from P. S. Osborne and wife to ■ Craft, dated January 11, 1937, which deed contained a vendor’s lien, but this lien seems to have been paid on March 8, 1938. The gin property was subject to a deed of trust from J. L. Craft and wife for the benefit of the Buckeye Cotton Oil Company for $5,000. On July 3, 1939, H. H. Smith executed a mortgage to S. V. McKinney for $12,000 on the gin. The proceeds of this mortgage or a part of the proceeds was used to satisfy the mortgage to the Buckeye Cotton Oil Company and to make valuable improvements on the Caraway Gin. We have concluded that B. F. Gregson voluntarily surrendered all his equitable rights in the Caraway Gin under purchase from J. L. Craft and that it was then sold to H. H. Smith. We do not think it was turned over to H. H. Smith for the purpose of operating it and applying the net profits on the overdraft and then to turn the Caraway Gin back to Gregson. If this had been the understanding certainly Gregson would not have executed a mortgage on his homestead towards the liquidation of the overdraft, and certainly H. H. Smith would not have expended a large sum of money in making extensive improvements on the gin and most certainly, would not have given a mortgage for $12,000 upon the ■ gin. If H. H. Smith had taken the Caraway Gin over to operate it for the benefit of B. F. Gregson and apply the net earnings on the overdraft, it is quite certain he would have demanded that they be credited on the overdraft before he executed a note to cover the entire amount of the overdraft and before he executed a note for $1,000 and mortgage on his homestead to apply upon the overdraft. On the contrary, immediately after turning the possession of the Caraway Gin over to H. Ii. Smith he left the community to seek employment and took no further interest in the operation of the Caraway Gin and no interest in whether it made money or lost money.' It seemingly never occurred to him to claim that he turned the Caraway Gin over to H. H. Smith for the purpose of running it and paying the net proceeds on his overdraft until after he was sued upon the notes- by "W. H. Smith. Four or five disinterested witnesses testified that about the time Gregson turned the Caraway Gin over to H. H. Smith they were told by B. F. Gregson that he had sold his interest in the Caraway Gin and that anyone desiring employment at the gin would have to see II. Ü. Smith. It is true that the trial court in his opinion found that B. F. Gregson had forfeited his rights or equity under his purchase contract of the gin from J. L. Craft. Of course, equity abhors forfeitures and there is nothing in the contract and modification thereof providing for a forfeiture'. Bather than to have found that B. F. Greg-son had forfeited his equity under the contracts he should have found and said that B. F. Gregson voluntarily surrendered his contract in settlement of the purchase money and to relieve himself from the payment of the outstanding debts he had assumed in the contract against the Caraway Gin.
We think, after a thorough consideration of all the testimony, that the trial court reached the correct result and rendered a decree in keeping with the preponderance of the evidence. The judgment and foreclosure decree against B. F. Gregson and Vada Gregson, his wife, is in all things affirmed and the judgment against B. F. Greg-son is modified by allowing a credit of $321.30, and as. modified, is affirmed, and otherwise in all things affirmed. | [
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Kirby, J.
The sole. question for determination on this appeal is whether the territory in Pulaski County organized into the Alexander School District with territory of Saline County, ;by special act 82 of the Acts of 1891, has been included in the county unit district of Pulaski County, organized under act 152 of the Acts, of 1927, and the special act in that respect repealed by the later general act.
The said act. 152 of 1927 was construed and held to be not in conflict with the Constitution in LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327.
Said act 152 provides for the organization into a school district of all the territory in the county outside of the single and special school districts within cities with a population exceeding. 10,000 inhabitants as shown by the last Federal census, and that such district shall at once become the owner of all the property belonging to the former school districts of the county outside of the special and single school districts within such cities, and shall be a special or single school district, with all „ the powers and responsibilities of a single or special school district in cities of the first class. .Suctions 5 and 6. ' ! , ’ : 1 ¡
It is also expressly provided, in the last paragraph of § 6, that every school district, except those in which there is a city of not less than 10,000 inhabitants, “whether created by county courts, county boards of .education or by special acts of the Legislature, shall cease to exist when a county school district as herein provided for has been created, and its directors, trustees, agents and teachers .shall turn over to the county board of education all its books, records and other property.”
The act also requires the county school district to assume and perform all obligations of any valid contract to which any district of the county is a party.
Under said act 82 of 1891 six sections of land in Pulaski County were included in the special school district, the “Alexander School District,” but it was provided therein that the school taxes on the property included in Pulaski County and that included in the district in Saline County should be levied and collected by the respective officers of the different counties and paid into the county treasuries for the benefit of the special school district, and the children were required to be enumerated within the district, and the number living within the territory of the particular county returned to the county examiner of that county in order to the apportionment of the school tax in accordance with the number of children in each county.
The Legislature had plenary power in the establishment and division of the State or counties into school districts, and the evident purpose of this act 152 of 1927 was to organize all the territory within the county, not especially excepted as included in single or special school districts in cities of not less than 10,000 population, into the county school district. It expressly provides that every other school district, save the excepted single or special school districts in cities and towns of not less than 10,000 population, “whether created by county courts, county boards of education or by special acts of the Legislature, shall cease to exist when a school district as herein provided for has been created,” and as effectively abrogates any special school district composed partly of the lands within the county organized into the county school district as though the entire district was within the limits of the county; the result being to incorporate the territory of the county, notwithstanding it had been included in a special school district with territory in an adjoining county by a special act of the Legislature, as effectively as though said special act had been expressly repealed.
We do not need to suggest what may be done with that portion of territory of the Special Alexander School District in Saline County, the authorities of that county having ample authority to dispose of it, and no injustice will result from the dismemberment of the district, since the new law provides that the county school district shall take care of, perform and discharge the (valid contracts and obligations' of the dismembered joint district, so far as same is a charge against the lands of Pulaski County withdrawn therefrom.
There being no error in the record, the judgment i's affirmed. | [
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Hart, C. J.
Ida Feaster was indicted for being accessory before tbe fact to the murder of Elmo Hames, charged to have been committed by Charles Bell and Terrell Austin. A trial resulted in a verdict of guilty, and the jury fixed her punishment at imprisonment for life in the penitentiary. The case is here on appeal.
The first assignment of error is that the court erred in overruling the motion of the defendant to require the State to try the principals before forcing her to trial, and in this contention we think counsel for the defendant are correct. At common law an accessory cannot be tried, without his consent, before the trial and conviction of the principal, unless they are tried together. 16 C. J. p. 141, par. 150 (2); and Brill’s Cyclopedia of Criminal Law, vol. 1, par. 254, p. 455. ■
In this State the rule has been changed by statute, which provides that an accessory before or after the fact may be indicted, arraigned, tried and punished although the principal offender may not have been arrested and tried, or may have been pardoned, or otherwise discharged. Crawford & Moses’ Digest, § 2314.
The statute serves a very useful purpose. The principal may have fled the State, and be beyond the jurisdiction of the court'. He may have become insane, and for that reason the trial of his case be postponed. There might be other good reasons for a continuance of his case. In all of these contingencies the trial of the principal would be postponed through no fault or action on the part of the prosecution. In this connection it may be said that the accessory cannot be guilty if the principal is not guilty, and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty. Ray v. State, 102 Ark. 594, 145 S. W. 881. This court has also held'that, where the defendant is being* tried as an accessory before the fact to the crime of murder, the State may prove the conviction of the principal. Jones v. State, 108 Ark. 447, 158 S. W. 132, and Tiner v. State, 110 Ark. 251, 161 S. W. 195. Hence the offense of an a-coessorv before the fact is included in the crime of which the principal may be guilty.
The holding* in these cases shows that it is the better practice to try the principal before the accessory. Then, too, .the defendant has some rights in the matter. Tn the case at bar the principals were indicted first. On March 14,1927, at the term of the court at which she was tried, the defendant filed her motion to require the State to try the principals before the accessory. Charles Bell and Terrell Austin, charged to be the principals, were present 'and ready for trial. The defendant alleged that she was informed and believed that the State was ready for trial in the cases against the principals. The deceased was found dead in his home, at eight o’clock in the morning on September '23,1926. It was the theory of the defendant that he committed suicide, and her defense was bottomed on that theory. No reason was assigned for trying the accessory before the principals, and we can perceive none. Under the circumstances we think the court abused its discretion in trying the accessory before the principals, and his action calls for a reversal of the judgment.
It is also earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. Inasmuch as the case may be further developed, and additional evidence may be secured before a retrial of the case, we refrain from discussing or determining this assignment of error.
Other assignments of error are urged for a reversal of the judgment, but, inasmuch as they are not likely to arise on a retrial of the case, we do not pass upon them.
For the error in refusing to grant the motion of the defendant to postpone the trial of her case until after the trial of the principals, the judgment is reversed, and the cause remanded for a new trial. | [
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Humphreys, J.
Appellant was indicted for murder in the first degree in the circuit court of Miller County, for shooting and killing Sam Warren. Upon a trial of the cause he was -convicted of voluntary manslaughter,- and, as a punishment therefor, was adjudged to serve a term of seven years in the State Penitentiary, from which is this appeal.
The first assignment of error is an alleged variance between the indictment and proof with reference to the person killed. The indictment charged that appellant killed Sam Warren, whereas the proof showed that he killed Son Warren. No question was raised in the trial of the cause as to the identity of the person murdered. All witnesses referred to the person killed as “Son Warren” or “Son Morris.” Appellant did not claim in the trial that the person he killed was a different man from the man he was charged with killing. He did not ask any instruction on the issue of variance, nor set out the variance between the indictment and proof in his motion for a new trial. The issue of variance raised for the first time on this appeal was one of fact for the jury, under the rule announced by this court in the cases of Bennett v. State, 84 Ark. 97, 104 S. W. 928; Woods v. State, 123 Ark. 111, 184 S. W. 409, Ann. Cas. 1918A, 348; Sutton v. State, 67 Ark. 155, 53 S. W. 890. It is too late to raise this question for the first time on appeal. Clayton v. State, 159 Ark. 592, 252 S. W. 589; Anderson v. State, 162 Ark. 14, 257 S. W. 365.
The second assignment of error is that the evidence is insufficient to support the verdict and judgment for voluntary manslaughter. .According to the testimony of the State, briefly stated, appellant and Melvin Knighton got into a fight in one of the front rooms in Plato Perkins’ house, where several negroes had been gambling. They fought back into the kitchen. After they entered the kitchen, and while the fight was in progress, Son Warren, with an open knife in his hand, pushed his way into the room. During the fight appellant received a knife wound on the cheek. Appellant retired from the conflict, going through the back door of the kitchen. After he left, Knighton and Son Warren went out to the car in which they, with appellant and others, had come to the Perkins home. After thqy had got into the car for the purpose of driving away, appellant returned with a shotgun, approached the car, and asked for Knighton. Knighton had taken refuge behind the car, and, when Son Warren stepped out on the running-board, appellant shot him. Son Warren died in a short time after, from the effect of the wound. The evidence introduced by the State was contradicted, but the jury accepted it as true. It is sufficient to support the verdict and judgment.
The third assignment of error is that the court did not admonish the jury that the testimony of appellant, on cross-examination, to the effect that he had killed another man, could only be considered by them in passing on his credibility as a witness. Immediately before this question was asked and answered in the affirmative, a similar one had been asked and answered, at which time the court did instruct the jury that they should only consider the evidence in passing on appellant’s credibility as a wit ness, and not as any evidence of his guilt. It was. unnecessary for the court to instruct the jury a second time upon the point, even though the question .was asked and answered a second time. When asked and answered the second time, the jury necessarily understood for what purpose they might consider it. Besides, appellant , did not request that the jury be instructed a second time on the point. He contented himself with a general objection and exception to the question and answer.
The last assignment of error is that the court erred in refusing to give a number of instructions requested by him. It would unduly extend this opinion.to set .out each instruction and show that it was fully covered by some other instruction or instructions given by the court, which is the case, except as to requested instruction No. 6. Requested instruction No. 6 told the jury, in substance, that they should not convict appellant unless his guilt had been established to the exclusion of every other reasonable hypothesis of his innocence. It is not error to refuse such an instruction, if the jury had been correctly instructed on the burden of proof and reasonable doubt, which was done in the instant case. Bost v. State, 140 Ark. 254, 215 S. W. 615; Bartlett v. State, 140 Ark. 553, 216 S. W. 33.
No. error appearing, the judgment is affirmed. | [
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Humphreys, J.
Appellant ivas indicted in the circuit court of Pike County for the crime of rape, committed the first day of May, 1926, upon Ruby Sain, a female person of the age of sixteen years. On the 31st day of March, 1927, he was tried under the indictment and convicted of carnal abuse, for which crime he was adjudged to serve a term of four years in the State Penitentiary. He has duly prosecuted an appeal to this court from the judgment of conviction, relying upon four assignments of error for a reversal of the judgment.
The first assignment of error is the refusal of the court to allow Dr. T. P. Alford to testify “that, in his opinion, when the prosecuting witness left the room after the alleged attack, and went into the other room, she would have been crying. ’ ’ The request for this piece of testimony was predicated upon the theory that the pain and suffering endured by a young girl during the first act of sexual intercourse through physical force of a male would necessarily cause her to cry. Great pain and suffering is frequently endured without a tear, so the offered testimony was highly speculative. The temperament of a girl would have much to do with reference to the outward manifestations of having passed through such an ordeal. The testimony was irrelevant for the reason assigned, and therefore properly excluded.
The second assignment of error is that there was a fatal variance between the charge in the indictment and the proof, the contention being that appellant was indicted for the crime of rape and was convicted, under the evidence, for the crime of carnal abuse. It is argued that the crime of carnal abuse was not embraced in the charge of rape, and that therefore the court erred in instructing upon the crime of carnal abuse. The indictment charged that appellant committed the crime of rape upon a female under the age of sixteen years, which necessarily embraced the charge of carnal abuse of a female under sixteen years of age. Henson v. State, 76 Ark. 267, 88 S. W. 965; Powell v. State, 149 Ark. 311, 232 S. W. 429.
The third assignment of error is that the court erred in refusing to give appellant’s requested instructions numbers 7 and 12. Instruction number 7 requested by appellant was, in substance, the same as instruction number 4 given by the court. Both related to the law of reasonable doubt. The court is not required to multiply instructions upon the same subject. Instruction number 12 requested by appellant is an instruction on rape, and deals with the question of consent. It is unnecessary to decide whether the instruction was correct or incorrect, as appellant was acquitted of the charge of rape. The instruction did not attempt to declare the law of carnal abuse, hence did not in any wise prejudice the rights of appellant upon the charge for which he was convicted. In connection with this assignment of error appellant contends the court erred in modifying instruction number 4 as requested, and in giving the instruction as modified. Instruction number 4 as requested is as follows:
“The court instructs the jury that the burden rests upon the State to prove the defendant guilty as charged in the indictment, and, if the evidence fails to satisfy your minds beyond a reasonable doubt of his guilt, then it is your duty to give him the benefit of such doubt and acquit him. If any reasonable view of the evidence is or can be adopted which admits of a reasonable doubt of the guilt of the defendant, it is your duty to adopt such view and acquit the defendant.”
The court modified the instruction by striking out the last sentence and gave the instruction as modified. The last sentence is as follows: “If any reasonable view of the evidence is or can be adopted which admits of a reasonable doubt of the guilt of the defendant, it is your duty to adopt such view and acquit the defendant.”
The excluded portion of the instruction has been condemned by this court in a number of cases as being argumentative and improper. Cooper v. State, 145 Ark. 403, 224 S. W. 726; Cummins v. State, 163 Ark. 24, 258 S. W. 622; Barker v. State, 135 Ark. 404, 205 S. W. 805; Garrett v. State, 171 Ark. 301, 284 S. W. 734; Purcell v. State, 174 Ark. 656, 296 S. W. 59.
Appellant’s fourth and last assignment of error is that the evidence is insufficient to support the verdict and judgment. Appellant argues that the testimony of the prosecutrix was. so improbable and contrary to human experience that courts and juries should not believe or attach any importance to it. The prosecutrix gave birth to a child, and testified that appellant was its father. She was sent to the home of appellant’s mother very frequently for milk and water, where appellant resided, having separated from his wife. The opportunity for sexual intercourse existed. Although her story of the particular act resulting in her conception is not entirely satisfactory, yet it could have happened just as the girl testified. It is true that appellant’s sister was in the next room, churning, but she was blind. It is admitted that appellant’s mother was not at home at the time, and that the other members of the household, including a visitor or two, were at the barn, some distance from the house. Appellant denied that he committed the crime, and testified that he was at the barn with the others at the time the crime was supposed to have been committed. His alibi was supported by other witnesses, but the jury accepted the statement of the girl as true and refused to believe the statements of appellant and his witnesses. This issue of fact was one for the jury and not for the court to determine on appeal. It was not necessary for the statement of the'prosecutrix to be corroborated upon the charge of carnal abuse. We cannot agree with the view expressed by learned counsel for appellant that the testimony of the prosecutrix was so unreasonable and contrary to human experience, that juries and courts should disregard her statements.
No error appearing, the judgment is affirmed. | [
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John A. Fogleman, Justice.
Appellant instituted a suit in Oklahoma to recover delinquent child support payments. Having obtained judgment, she proceeded to register it pursuant to the Uniform Enforcement of Foreign Judgments Act of Arkansas [Ark. Stat. Ann. §§ 29-801 through 29-818 (Eepl. 1962)]. As all proper steps for registration appeared to have been taken, an order of the Crawford County Chancery Court requiring an immediate writ of execution was made. The writ issued, and the sheriff levied upon a 1960 Diamond T Tractor registered in the name of Hugh Stephens, the former husband of appellant. Subsequently, Albert Stephens, the father of Hugh Stephens, filed an intervention claiming ownership of the truck. At the hearing on the intervention, the chancellor found Albert Stephens to be the equitable owner of the truck, vacated the order requiring immediate execution and quashed the levy of execution. From this determination in favor of the in-tervenor, appellant prosecutes this appeal, asserting several points for reversal. We find it unnecessary to discuss all of her points, as we feel that the decree of the lower court must be reversed due to our conclusion that the finding of equitable ownership in Albert Stephens is clearly against the preponderance of the evidence.
The undisputed evidence shows that the truck was purchased from the Fruehauf Trailer Division of the Fruehauf Corporation at Wichita, Kansas. In support of his contention of equitable ownership, intervenor-appel-lee introduced evidence showing that the loan from City National Bank of Tulsa, Oklahoma, made for the purpose of purchasing the truck, was taken out in the name of Albert Stephens. Carl Wiedemann, president of the lending bank and a witness in the proceedings below, testified that the loan was made to Albert, and not Hugh, Stephens and that, as far as he knew, the bank had never loaned any money to Hugh Stephens. The evidence further showed that the loan was repaid by checks written on the account of Mr. and Mrs. Albert Stephens, by Mrs. Albert Stephens, who was shown to be the business manager for the family.
The contention is made that Hugh Stephens was merely an employee of Albert Stephens in the latter’s trucking business. There was testimony that Hugh drew a salary of $75.00 per week, and that this was paid in cash but there was no documentary evidence indicative of an employer-employee relationship. Hugh Stephens stated that on long hauls (sometimes lasting two months or longer) he had the checks from customers made out to him; that he would cash them and use the proceeds for expenses; and that he turned over the remainder, if any, to- his mother.
Appellant introduced evidence proving that all documents concerning the truck in issue were in the name of defendant Hugh Stephens. The Kansas certificate of title reflected an assignment from the Fruehauf Trailer Company to Hugh Stephens. Also in the name of Hugh, as owner, were: (1) an application for registration of the truck with the Motor Vehicle Division of the Arkansas Department of Revenues; (2) an application for certificate of title (which contained a provision for fine and/or imprisonment for false answer); (3) an application for registration under Nebraska Motor Carriers Fuel Tax Law; and (4) an Illinois reciprocity application form. All these applications were necessitated by Hugh’s operation of the truck. Hugh’s 1966 federal income tax return included no amount under the heading “Wages, salaries, tips, etc.” Rather, it reflected that his occupation was a “trucker” and on Schedule C [Profit (or Loss) From Business or Profession] he stated his principal business activity to be “transportation.” In addition to showing “gross receipts” of $18,-000.00, the Schedule reflected that a deduction for depreciation on the truck was taken.
Appellant testified that the defendant, while they were still married, had told her that he had voluntarily gone into default on a truck he previously owned for the purpose of keeping his first wife from getting it. She further stated that he had financed the purchase of a 1963 GMC truck in his father’s (intervenor’s) name during the period of their marriage. With regard to the truck here involved, she testified that defendant told her that he had bought a new truck and that it was financed in his father’s name. She said that this was not an “unusual arrangement.” Her testimony was that, on one of the long hauls which the defendant had made, the checks were issued to him and that “[h]e and I used them” for expense money, to pay the rent, to buy groceries and his clothes.
In an attempt to justify or explain the fact that all the documents relating to the truck were in the name of his son, appellee-intervenor testified that, when he went to negotiate with Fruehauf, his son went with him. It became necessary for additional equipment to be added to the truck, which required additional time, and he left his son there to drive the truck hack the following day. He said that, through, some error on the part of employees of Fruehauf, the assignment of title was made in favor of Hugh, rather than himself.. He said that the error was. perpetuated by the' Arkansas Revenue Department when the truck was licensed' in Arkansas for the first time. All. the other documents, he claims, had to be in Hugh’s name because the original papers were issued that way.
The record does not contain a certificate of title from the Arkansas Department of Revenues, although there is evidence that a certificate had been issued in Hugh’s name. Appellee, attempting to show that no certificate had been issued, introduced a letter from the Department of Revenues which stated that the records did not reflect a title certificate having been issued. The record reflects, however, that this letter was in reply to a letter from appellee which Contained an incorrect serial number for the truck. Moreover, appellee’s own witness,-Carl Wiedemann, testified that the Department of Revenues informed him that “they had issued a title on this truck to Hugh Stephens.” Further evidence that a certificate had been issued is that the application for certificate of title (“pink slip”) showed the title number to be 5087234.
Reversed and remanded for further proceedings not inconsistent with this opinion. | [
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Mehaffy, J.
The Temple Cotton Oil Company, brought fourteen suits against the Southern Cotton Oil Company, in the circuit court of Miller County. These suits were consolidated, by order of the circuit court, and transferred to equity, over the objection of appellant.
Appellant owned and operated cottonseed-oil mills at' Little Rook, Arkadelphia, Hope and Ashdown, in Arkansas, and at these mills it crushed cottonseed and produced cottonseed oil, which it sold through brokers to cottonseed-oil refineries. Appellee owned and operated cottonseed-oil refineries, one of which was located at Gretna, in the State of Louisiana, and bought cottonseed oil from appellant. During the season of 1925-26 appellant sold and delivered to appellee 72 tanks of cottonseed oil, delivered to appellee in its tanks at. appellant’s oil mills.
These suits were brought by appellant to recover from appellee the value of soap stock carried in the crude oil sold by appellant to appellee. Soap stock is the resultant product of the treatment of crude cottonseed oil with caustic soda solution in the process of refining. Refining loss is the difference between the weight of the crude cottonseed oil and the weight of the refined oil produced therefrom. The weight of the soap stock is the weight of refining Joss plus the weight of the caustic soda solution used in refining crude oil. The fatty acid content of the refining loss runs from 90 per cent, to 98 per cent. The fatty acid content of the soap stock is reduced to about 50 per cent, by the addition of the-caustic soda solution used in refining the crude oil.
The contracts of sale under which the crude oil was sold and delivered -by appellant to appellee were all made subject to the rules of the Interstate Cottonseed Crushers’ Association. Rule No. 142 of that association, which was made part of the contract of-sale, provides for the payment of the value of the excess soap stock. These suits were brought to recover the value of the excess soap stock derived from refining the crude oil sold by appellant to appellee.
The 14 suits at law involved $30,710.72. All 'of these contracts sued on were made through brokers, except the contract upon which suit No. 2810 is brought, which contract is for five tank cars alleged to contain soap stock of the value of $2,387.39.
The total number of contracts involved in the suits is 26, of which 18 were made through Zimmerman-Alder-son-Carr, brokers, Memphis, Tennessee, covering 55 tank cars, of which 45 contained crude oil with excess refining loss, and it is alleged that the value of the soap stock in these 45 cars is $22,441.28. Four contracts were made through T. W. Brode, broker, Memphis, Tennessee, covering 13 tank cars, of which 11 contained crude oil with excess refining loss, and the value of the soap stock in those 11 cars is alleged to be $5,052.06. Four contracts of date in February, 1924, were made through Young Commission Company, brokers, Memphis, Tennessee, covering 8 tank cars, 6 of which contained crude oil with excess refining’ loss of the alleged value of $829.99. All of the contracts, except the four made through Young-Commission Company, were entered into and all shipments made thereunder during- the season of 1925-26.
The following is a copy of one of the contracts made through Young- Commission Company:
“Young Commission. Company
“Duplicate No. M-2513
‘ ‘ Exhibit A
“Memphis, Tenn., January 9,1924.
“Seller: Temple Cotton Oil Company, Hope, Arkansas.
“Buyer: The Southern Cotton Oil Company, New York, New York.
“Dear sir: We confirm transaction today for your account as follows: .
“Quantity two (2) tanks, sixty thousand (60,000) pounds each. Commodity cottonseed oil.
“Quality basis prime crude flag settlement.
“Price nine and three-quarters (9%) cents per pound f. o. b. cars. ■
“Seller’s mill, Ashdown, Arkansas.
“Shipment last half January, 1924.
“Terms: Sight draft, B/L attached, free of exchange to buyer..
“Buies Interstate Cottonseed Crushers’ Association.
“Brokerage 13%c per barrel. To be paid by seller.
“Young Commission Company
“By W. S. Battaile.
“Seller’s acceptance
“Date
“Seller: Temple Cotton Oil Co. By F. O. Coliman, general ■ manager.
“Buyer’s acceptance
“Date
“Buyer: The Southern Cotton Oil Co. by M. W. Lyons.”
Eighteen contracts were made through brokers, Zimmerman-Alderson-Carr Company, and the following is a copy of one of them :
‘ ‘Zimmerman-Alderson-Carr Company Cotton Exchange
“Memphis, Tenn., Oct. 15, 1925.
“Ex. A. Number M-3350.
“Temple Cotton Oil Company, seller.
“The Southern Cotton Oil Company, buyer.
‘ ‘ Gentlemen: Per our exchange of telegrams and .telephone conversations between Temple Cotton Oil Company of Little Bock, Arkansas, and the Southern Cotton Oil Company of New Orleans, Louisiana, and ourselves, we beg to confirm having this day sold to the Southern Cotton Oil Company for the account of Temple Cotton Oil Company
“Five (5) tank cars, 60,000 lb. each, basis.
“Prime crude cottonseed oil, all atveight and three-quarters (8%) cents per pound f. o. b. buyers’ tank cars, Little Bock, Arkansas.
“Shipment, first half November, 1925.
“Exchange free to buyer.
‘ ‘ Terms: Weight and quality guaranteed at destination. Sight draft bill lading attached. Sale made subject to the rules of Interstate Cottonseed.Crushers’ Association.
“In case oil is off, settlement as described under the word ‘Flag’ in Yopp’s cipher code to govern.
“■Commission to be paid by seller, namely, 13 l/3c per barrel of 400 lb.
“Yours very truly,
‘ ‘Zimmerson-Alderson-'Carr Company
“As brokers only.
“Battaile.
“Accepted: Temple Cotton Oil Company, W. H. Doflin.
“M-3350
“Accepted: The .Southern, Cotton Oil Company. -
“M. W. Lyons.”
(On back) :. “Received, Temple Cotton Oil Co., Oct. 16, 1925, North Little Rock mill.”
Crude cottonseed oil is the mill-run oil pressed from cottonseed. To be prime it must be pressed from sound decorticated seed, sweet in flavor and odor, free from water and settlings, and when refined produce prime summer yellow oil with a loss in weight not exceeding 9 per cent. If the loss in weight is greater, but it would still make prime summer yellow oil, it may not be rejected, but shall be reduced in price by a corresponding per cent, of the contract price of the oil.
Yopp’s Cipher Code is a book got out in several editions by W. I. Yopp, to facilitate trading in cottonseed oil products.
When the cars were shipped under contracts extending from January 9, 1924, until February 4, 1926, the appellant would load the tank-car at one of its mills, take a sample of the oil in it, and have it analyzed. When shipped to appellee, appellant would draw a draft on appellee with bill of lading* attached for the total or approximate total value of the car, based on the contract price for prime crude cottonseed oil, according to its weight and analysis at the point of shipment Appellee paid each draft immediately on presentation. When each car reached appellee, it would be reweighed, and a sample of the oil would be taken and analyzed, and the amount of deductions from the contract price according to the settlement terms in Yopp’s 'Code, under the proper code word, would be arrived at and communicated to appellant. Appellant would either agree by wire to the settlement at a reduction of the contract price, or request two' outside chemists to make other analysis. The parties would then settle on the analysis of the two chemists. The car was held on the track at its destination until settlement was agreed on, and no attempt made to unload it until the settlement was agreed on. When this settlement was reached, the car would be unloaded into the refinery, and the contents put in vats with the contents from other cars. When settlement was made, appellee would send appellant a statement of account on that car and close the transaction on that car with á draft on appellant if the balance was in favor of appellee, or a check to appellant if the balance was in favor of appellant.
The last contracts in suit were made on February 5, 1926, and the last settlement, March 26, 1926, for about $970, which appellant promptly paid. No claim was made by appellant and nothing said about any claim for soap stock until about the middle of May, 1926.
The abstracts and briefs in this case are very large and the testimony voluminous, but the principal question involved is the meaning of the contract, especially with reference to soap stock.
It is contended by the appellant that, under the contracts, the appellee was under obligation to pay for soap stock, because they say- that the clause in the contract, “sale made subject to the rules of Interstate Cottonseed Crushers’ Association,” requires a settlement to be made under rule 142 of the said Interstate Cottonseed Crushers’ Association, which reads as follows:
“Where a claim is made for excess loss in the refining of oil, the value of the excess soap stock, less any additional cost of handling such oil, shall be taken into consideration in settlement between parties at interest.”
A great deal of the testimony is given by experts, and is technical and conflicting. One of the principal rules in tlie interpretation of contracts is to ascertain the intention of the parties and. to give effect to that intention, if it can be done consistently with legal principles. This, may be said to be the principal rule, because parties should be bound for what they intended to be bound for, and should not be bound for a thing that they did not intend to be bound for. And courts will always hold the parties bound according to their intention, if that intention can be ascertained. Of course courts, in arriving at the intention of the parties, do so when it can be done from .the contract itself. In other words, the court undertakes to find out what was meant by the language used in the contract.
“The intention of the parties, which courts seek to discover in giving construction to a contract, is to be gathered, not from particular words and phrases, but from the whole context of the agreement.. In fact, it may be said to be a settled rule in the construction of contracts that the interpretation must be upon the entire instrument, and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the courts can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from beginning to end, and all'its terms must pass in review; for one clause may modify, limit, or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. Seeming contradictions must be harmonized, if that course is. reasonably possible. Each of its provisions must be considered in connection with the others, and, if possible, effect must be given to all. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions. The courts will look to the entire instrument, and, if possible, give such construction that each clause shall have some effect and perform some office. Likewise, where a contract as a whole discloses a given intention, they will be construed, if possible, so as to be consistent with the general intent.” 6 R. C. L. 837.
Another important and well established rule in the interpretation of contracts is that the construction the parties themselves pla.ce upon the contract is entitled to great weight.
“In fact, where, from the terms of the contract, or the language employed, a question of doubtful construction arises, and it appears that the parties themselves have practically interpreted their contract, the courts will generally follow that practical construction. It is to be assumed that parties to a contract know best what was meant by its terms, and are the least liable to be mistaken as to its intention; that each party is alert to protect his own interests and to insist on his rights, and that whatever is done by the parties during the period of the performance of the contract is done under its terms as they understood and intended.it should be. Parties are far less liable to have been mistaken as to the meaning of their contract during the period while harmonious and practical construction reflects that intention, than they are when subsequent differences have impelled them to resort to law, and one of them then seeks a construction at variance with the practical construction they have placed upon it of what was intended by its provisions. It has even been said that the practical construction of the ambiguous terms of a contract will' be adopted, although the language used may more strongly suggest another construction.” 6 R. C. L. 853; Gauss v. Orr, 46. Ark. 129; Keopple v. National Wagon Stock Co., 104 Ark. 466, 149 S. W. 75; Ins. Co. v. Dutcher, 95 U. S. 269, 24 L. ed. 410.
The parties to these contracts were the buyer and seller. The seller would ship the cottonseed oil and draw a draft with hill of lading attached for the estimated value'of the car when it reached its destination. The amount of the draft was for the approximate value of the car, 'based on the contract price for the article purchased, according to its weight and analysis at the point of shipment. The purchaser would pay the draft drawn by the seller immediately on presentation. But, when the oar reached the buyer, it would be reweighed, a sample of the oil analyzed, and from that it would be determined what amount of deduction, if any, from the contract price should be made. The purchaser would immediately communicate with the seller, and they would agree on a reduction of the contract price according to the figures of the purchaser, or, if the seller was not satisfied, an analysis would be made by two outside chemists. The parties would then settle according to this analysis. The car1 was held on the track at its destination until a settlement was agreed on. In some instances the seller would have to send check to the buyer in settlement. In other instances the purchaser would have to pay a certain sum to the seller. In other words, at the time of the shipment a draft was made for what the seller assumed to be its approximate value. If the analysis at destination was different from that at the place of origin, the difference would be agreed to, and one would make payment to the other in settlement of the matter.
It is earnestly contended >by the appellant that local usages and customs of trade cannot be invoked to defeat the express terms of the contract, and also that the course of conduct under similar contracts cannot be invoked as a waiver of an express and unambiguous stipulation in a new contract.
Appellant is correct in its contention that the local usages and customs of trade will not defeat the express terms of a contract, and that a course of dealing between the parties under similar contracts cannot.be invoked as a waiver of an express and unambiguous, stipulation in a new contract. But we do not have that situation in this case. The authorities cited by appellant in support of this contention undoubtedly contain correct statements of the law. But they differ from the contracts in this case at least in this particular. In the instant ease there was a settlement, and we think a complete settlement for each car. And it is not contended that a settlement for one car, according to custom and usage, would bind the parties in a new contract if the seller, in making the new contract, had stated that he would not be bound by custom or usage, or that he expected to insist on the terms of the contract. If such notice were given, and the contract was unambiguous, the parties would have a right to insist on the terms of the contract, although the custom and usage might be different. But, when a complete settlement is made according to usage or custom, or according to the terms of the contract so far as that particular contract is concerned, no right of action would thereafter exist in favor of either party. But, in all contracts where the terms are ambiguous or where there is a dispute about the terms of the contract, a complete settlement between the parties is binding’ on the parties.
It is the contention of the appellant that, when a claim is made for excess loss in refining of oil, the value of the excess soap stock, less any additional cost of handling such oil, shall be taken into, consideration in settlement by the parties in interest. This is the rule of the Interstate Cottonseed Crushers’ Association, relied on by appellant as a basis for its cause of action. In the first place, if a settlement is made as was made in these contracts, and nothing said about pay for excess soap stock or additional cost of handling, there is no claim by either party because of additional cost of handling or because of excess soap- stock. And certainly.it cannot be said that the value of the excess soap stock, less any additional cost of handling, was not taken into consideration. The very fact that the parties settled, and that nothing was claimed until after all of the contracts had been settled, is a circumstance tending to show that these things were taken into consideration and that the settlement was final. And, while the authorities referred to by appellant hold that local usages and customs cannot defeat the express terms of .a contract, these authorities also hold that the usage may be resorted to to explain the meaning of a commercial term, although it can never be received to contradict the express terms of a contract nor to give words a meaning different from their settled legal interpretation.
There is no charge of any mistake or fraud, duress or coercion, but the parties themselves settled, drew drafts and gave checks in settlement, evidently taking into consideration everything that they regarded as necessary to a complete settlement of the contract. And when parties have settled under such circumstances, the settlement is binding on the parties. The parties had a right, even if the contract was not ambiguous, to make any settlement satisfactory to themselves. They had a right to make such settlement, although it might not be according to the terms of the original contract. They had as much right to do this as they did to make the original contract.
“Persons competent to contract can as validly agree to rescind a contract already made as they could agree to make it originally. However, as a contract is made by the joint will of two parties, it can be rescinded only by the joint will of the two parties. It is obvious that one of the parties can no more rescind the contract, without the other’s express or implied assent, than he alone can make it. But, if the parties agree to rescind the contract, and each ope give'up the provisions for his benefit, the mutual assent is complete, and the parties are then competent to make any new contract that may suit them. ” 6 R. C. L. 921.
There was a settlement for the first shipment in these cases in 1924. No suggestion was made that the settlement was not complete until after the last shipment, which was many months after the settlement for the first shipment. There is no better rule for ascertaining’ the intention of. a party in a contract than the rule that the construction the parties themselves have placed on the contract shall he considered.
Having reached the conclusion that there was a settlement by agreement of parties at the time of each shipment, it becomes unnecessary to decide the other questions discussed by learned counsel. The judgment of the lower court is correct, and is therefore affirmed. | [
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Wood, J.
Mrs. Phillip (Agnes) Baltz instituted this action against the Western Union Telegraph Company. She alleged that on July 1, 1925, a brother of hers,- Lee Lehnen, acting on her behalf, delivered a telegTam to John Daniels, the railway station agent at Scranton, and also the defendant’s agent. The telegram is !as follows: “Please notify Agnes mother very low.” She alleged that the messagé was signed by Lehnen and addressed to Joe Baltz, who was her brother-in-law, and acting for her. She alleged that she was the “Agnes” mentioned in the telegram, and that same was sent for her benefit; that the telegram was delivered over the railway company’s telephone line to the agent of the defendant at Paris, Arkansas; that the defendants and its agent were negligent in receiving, transmitting and delivering the said telegram, and, because of such negligence, the telegram was never delivered; that her mother died on July 5, 1925, and that, because of the aforesaid negligence of the defendant and its agent, she had suffered and is continuing to suffer great mental anguish, due to the fact that she was unable to be with her mother during the last days of her life. She alleged damages in the sum of $2,500, for which she prayed judgment.
The defendant, in its answer, denied the material allegations of the complaint, 'and set np that, on July 1,1925, Lehnen and Berg applied to John Daniels, agent of the railway company at Scranton, Arkansas, to send a message via defendant’s line to Joe Baltz, at Pocahontas, Oklahoma; that John Daniels informed them that he was not the agent of the defendant and that he was not authorized to receive messages for transmission, and told them that they could telephone the message to defendant’s agent at Paris, Arkansas; that Lehnen and Berg thereupon requested Daniels to do the telephoning for them; that Daniels telephoned the message set forth in plaintiff’s complaint to the defendant company at Paris, Arkansas, addressed to Joe Baltz at Pocahontas, Oklahoma, and repeated the message to the agent of the defendant at Paris, Arkansas, naming Joe Baltz as the addressee and giving his address as Pocahontas, Oklahoma; that the defendant promptly transmitted the mess'age to its agent at McAlester, Oklahoma, being the nearest office of the defendant to Pocahontas, Oklahoma; that the defendant, not being able to locate the addressee and to deliver the message by telephone, mailed the same from McAlester, Oklahoma, addressed to Joe Baltz, Pocahontas, Oklahoma; that Pocahontas, Oklahoma, was what is known as a free star station — that is, a station where messages are delivered only by telephone. The defendant alleged that, if the message was intended by the plaintiff to be delivered to the addressee at Pocahontas, Arkansas, instead of Pocahontas, Oklahoma, the mistake was due to the negligence of the plaintiff or her agents; that, if the message had been properly addressed to the addressee at Pocahontas, Arkansas, where the defendant maintains an office and. agent, the same could and would have been delivered to the addressee without any delay whatever. The defendant alleged that the message, as delivered to land received by it, was an interstate message from Paris, Arkansas, to Pocahontas, Oklahoma, and that a recovery of damages for mental anguish for failure to deliver such a message would be contrary to article 1, § 8, of the Constitution of the United States and the acts of Congress, which the defendant pleaded in bar of plaintiff’s right to recover in this action.
After the filing of the answer the plaintiff amended her complaint, and alleged that the message mentioned was delivered over the telephone to the agent of the defendant at Paris, Arkansas, and that the failure to deliver the same to the plaintiff was because of the negligence of defendant’s agent at Paris and defendant’s other agents.
The witnesses, Lehnen and Berg, testified for the plaintiff. Their testimony tended to sustain the allegations of the complaint. They stated, in substance, that they went to the railroad depot at Scranton, Arkansas, and requested the company’s agent, John Daniels, to send the- message mentioned. The agent wrote out the message. They. told him to send it to Pocahontas, Arkansas, and repeated it to him twice, and he repeated it over the phone twice. Witnesses heard him give the address over the phone as Pocahontas, Arkansas. They did not know whether the operator of the phone at Paris repeated the message back to Daniels or not. Witness paid the station agent a fee of $1.10 for the transmission of the message. Witnesses were about ten feet from Daniels, and, although he held the receiver about four inches from his mouth, he talked loud and plain, and they could hear what he said. Daniels told the witnesses that it was not a telegraph office, but that he would telephone the message as a matter of accommodation.
The undisputed evidence showed that it was the custom of the railway station agent at Scranton to collect for telegraph messages originating at that station. It is conceded that the telegram was not delivered.
The plaintiff testified, in substance, that she was the Agnes referred to in the telegram mentioned in her complaint. She had made arrangements to be notified in case her mother became seriously ill. She was to go down there right away in case something serious should come up. She was to be notified by telegram, which was to be sent to Joe Baltz, who wás to deliver the message to her. If the message had been delivered on the- diay of its date, Jnly 1, she would have got to her mother’s bedside on Jnly 2 by three o’clock. Witness went to Scranton, where her mother lived, on July 6, and found that her mother was dead. They were making preparations for the funeral, and were about ready to take her out to be buried. Her mother talked about witness all the time during her last illness. The failure to get the telegram had an awful effect on witness. She would not have taken any money and nothing would have kept her from going to see her mother if she had known her mother was so ill. Witness was the youngest child, and stayed with her mother the longest, and was her favorite. Witness stayed with her mother four years after witness wlas married, and witness ’ mother seemed to think more of her than she did the rest of the family. Nothing would have kept witness from going to see her if she had known she was so low. Witness fainted when she realized she could not see her mother alive — became unconscious. The thought that her mother was dying and wanted to see witness and witness not getting to see her affected witness more than her mother’s death. Witness had not seen her mother for about a year, but heard from her each week two or three times, until the last week. After they had sent the telegram they thought that witness would come, and witness did not hear from them.
The testimony of the witnesses on behalf of the defendant tended to prove the allegations of its answer. John Daniels testified, and his testimony was substantially the same las that of the witnesses for the plaintiff, as to the receipt by him of the message to be telephoned to the defendant’s agent at Paris, but he contradicted them flatly as to the place the message was to be sent. He states that the message was addressed to Mrs. Phillip Baltz at Pocahontas, Oklahoma; that is the way he wrote the message down and that is the way he phoned it to the Western Union operator at Paris. The defendant’s operator at Paris repeated the message to witness in that form. Witness did not tell him to change it in any way, nor was he notified by Berg or Lehnen at the time of any error that was being made. Witness does not know whether they heard the telephone message or not, bnt they were at the window, possibly ten feet away; that was the only message that Lehnen and Berg brought to the witness. The message was addressed to Mrs. Phillip Baltz, Pocahontas, Oklahoma. On cross-examination the witness testified that the message was addressed to Joe Baltz, and the substance of the message was, “Please notify Agnes mother very low and come at once,” Lehnen and Berg paid the witness the fee for sending the message, and witness sent the fee to the operator at Paris. Witness generally did that when he sent telephone messages. Witness had been agent there for two years, and had been receiving and sending messages in that manner during that time.
Defendant’s telegraph operator at Paris was a witness. ■ He testified that he handled telegraph messages at that point. He remembered receiving the message from Daniels at Scranton by phone on July 1, 1925. He didn’t remember exactly the contents, but the message was to notify somebody of the serious illness of a woman at Scranton. It was addressed to Joe Baltz at Pocahontas, Oklahoma, Witness took the message down as it Was dictated to him. After refreshing his memory by •an examination of the message, he stated that the message was the same as that set out in the complaint. Witness relayed the message to Port Smith, and from there it was forwarded to its destination at Pocahontas, Oklahoma. Witness repeated the message back to Daniels over the telephone, and gave the address as it was given to him as Pocahontas, Oklahoma. No correction was made in the address given. Witness never received any message by telephone or otherwise from John Daniels addressed to Joe Baltz at Pocahontas, Arkansas. Witness sent the message right off after he received the same. Witness received the fee for sending the message. Witness had nothing to do with the fee for the telephoning of the message; witness’ company did not collect for that.
The district consulting superintendent of the defendant, having supervisory jurisdiction over the defendant’s offices in Arkansas and Oklahoma, stated that the defendant did not maintain an office at Scranton, Arkansas, on July 1, 1925, or at any other time during that year. John Daniels was not in the employ of the defendant, and was not authorized by it to receive messages for transmission on July 1, 1925, or at any other date.
The court, at the instance of the plaintiff, gave, among others, the following instruction:
“No. 1. You are instructed that, if you believe from the evidence that Lee Lehnen, on or about the date of July 1, 1925, through one John Daniels, delivered a telegraphic message from Scranton, Arkansas, to the agent of defendant at Paris, Arkansas, over the telephone as follows: ‘Please notify Agnes, mother very low. Lee Lehnen,’ and addressed ‘Joe Baltz, Pocahontas, Arkansas,’ and that, through the negligence of defendant or the defendant’s agent, the said message was not delivered to Joe Baltz at Pocahontas, Arkansas, and that because of the said message not being delivered, the plaintiff received no notice of the serious condition in which her mother was, in time to arrive at her bedside prior to her death, and if you further believe that the Agnes referred to in the said telegram was .the plaintiff, then it would be your duty to render a verdict in favor of the plaintiff for whatever damage you may think she suffered because of the mental anguish experienced by her, caused by the failure to receive the said message, not to exceed the sum of $2,500.”
The plaintiff objected generally and also specifically on the ground that it authorized a recovery in favor of the plaintiff “without requiring the jury to find that the plaintiff would and could have gone to the bedside of her mother if the telegram had been delivered. ’ ’
At the request of the defendant the court, among others, gave the following instruction:
“No. 7. If your verdict is for the plaintiff, then you should assess her damages in such sum as will compensate her for the mental anguish she suffered, if any, by reason of being deprived of the opportunity of being with her mother prior to her death, provided you believe her failure not to be with her at said time was caused by the negligent failure of the defendant to deliver the message in question.”
The jury returned a verdict in favor of the plaintiff, awarding her damages in the sum of $500. Judgment was rendered in her favor for that sum, from which is this appeal.
1. The appellant contends that there is no testimony to sustain the verdict. This contention is bottomed upon the testimony of McAllister and John Daniels. McAllister testified that the message as received by him over the telephone was directed to Pocahontas, Oklahoma, and that he sent the message as directed. Daniels testified, in substance, that he, at the request of Lehnen and Berg, agents of plaintiff, wrote down the message in evidence, “Mother very low, come at once,” and phoned it to appellant’s operator at Paris, Arkansas, to be sent to the addressee at Pocahontas, Oklahoma. He did not think he could be mistaken as to which State the message was sent. He sent it the way he got it from Lehnen and Berg. Counsel argue that the testimony of these witnesses was reasonable, consistent, and uncontradicted, and therefore the jury had no right to arbitrarily disregard it. They invoke the rule recognized by our own court and by the authorities generally, so far as we are advised, “that when a disinterested witness, who is in no way discredited, testifies to a fact within his own knowledge, which is not of itself improbable or in conflict with other evidence, the witness is to be believed and the fact is to be taken as legally established, so that it cannot be disregarded by a court or jury.” Kavanaugh v. Wilson, 70 N. Y. 177-179. The numerous authorities recognizing this rule are collated in note to Brown v. Peterson, 4 A. & E. Ann. Cases, 981. See also St. Louis, I. M. & S. Ry. Co. v. Ramsey, 96 Ark. 37, 131 S. W. 44, Ann. Cas. 1912B 383; Osborne v. Hittson, 118 Ark. 319-353, 176 S. W. 318.
The case in hand does not come within this rule, for the reason that it cannot be said that the testimony of the witnesses, Daniels and McAllister, as set forth, is uncontradicted. Both Berg and Lehnen testified unequivocally that they heard Daniels telephone the message to Paris, Arkansas, and that he gave Pocahontas, Arkansas, as the place to which the message was to be sent. This was testimony from which the jury might have found that the witnesses, Daniels and McAllister, were mistaken, or else testified falsely, when they stated that the address phoned to Paris was Pocahontas, Oklahoma, instead of Pocahontas, Arkansas. The jury were the sole judges of the weight of the evidence and the credibility of these witnesses. But it is insisted that, even if the testimony of Berg and Lehnen contradicted that of Daniels, there is, nevertheless, no contradiction of the testimony of McAllister to the effect that he understood the address given as Pocahontas, Oklahoma, instead of Pocahontas, Arkansas. Counsel urge therefore that, since the burden was on the appellee to prove by a preponderance of the evidence that the appellant’s agent at Paris, Arkansas, received the correct information, appellee’s ease must fall because there is no testimony to show that appellant’s agent at Paris understood that the message was to be sent to Pocahontas, Arkansas, instead of Pocahontas, Oklahoma, and that, until the appellee makes such proof, there is no testimony tending to establish negligence on the part of the appellant.
It was not essential that the appellee prove 'affirmatively by the testimony of some witness that the operator of the appellant at Paris heard or received the message as it was telephoned to him by the station agent at Scranton. If the message, as set up in the complaint, was communicated by the station agent at Scranton over the telephone to the appellant’s operator at Paris, the presumption would be that the appellant’s agent at Paris heard and received the message as it was phoned to him by the station- agent at Scranton, and, in the absence of proof to the contrary, the jury would be justified in so finding. True, the appellant’s agent at Paris and likewise the station agent at Scranton testified that the address of the sendee was given over the telephone as Pocahontas, Oklahoma, and not Pocahontas, Arkansas. The appellant’s agent at Paris does not claim that any mistake was made by him in hearing the message; he testified unequivocally that he heard 'and received the message as it was telephoned to him, and that the address of the sendee given him over the phone was Pocahontas, Oklahoma. The testimony of Daniels was to the same effect, but the testimony of appellee’s witnesses, Lehnen and Berg, was just as positive land unequivocal that the station agent at Scranton telephoned to the operator at Paris the message as set forth in the appellee’s complaint, and gave the address of the sendee as Pocahontas, Arkansas. It was therefore a question for the jury, under the evidence, as to whether the railway station agent at Scranton, in the telephone message to appellant’s operator at Paris, gave the address of the sendee in that message as Pocahontas, Arkansas, instead of Pocahontas, Oklahoma. While the appellant’s superintendent 1 «stifled that appellant did not have an agent at Scranton, Arkansas, and while the station agent at Scranton also testified that he was not employed by the appellant as its agent at Scranton, nevertheless the uncontroverted testimony is that it was the custom for the railway station agent at Scranton to receive and telephone messages to the appellant’s operator at Paris and to collect appellant’s charges for such messages.
In Jones on Tel. & Tel., p. 449, § 327, it is said':
“It has generally been held that, where an operator writes the message for the sender at the latter’s request, he acts as agent for him and not for the company in this particular matter. His duties toward the company are to receive the messages and the charges for the same, and then to transmit them; when he goes beyond this duty, he does not act as the company’s agent. While'this is the general holding, it seems there is, and ought to be, an apparent exception to the general rule. Thus, if the message is received by the operator over a telephone line and written down by him, the operator then acts for the company, especially if it has been the custom to receive messages. Where the party desiring to send a message is unable to write on account of ignorance, or because he cannot see how to write, or when otherwise-unable to write, the company should not refuse to serve him for this purpose, but the scope of the operator’s agency under such circumstances should, it seems, be enlarged so as to devolve upon him the duty to perform this service.” See especially Carland v. West. U. Tel. Co., 118 Mich. 369, 376, 76 N. W. 762, 764, 43 L. R. A. 280, 74 Am. St. Rep. 394, where, among other things, it is said, page 399: “We cannot conclude, in the absence of proof, that the telegraph companies expect their operators to turn away patrons who cannot write, or that they keep telephones in the office but do not permit their use in their business by patrons who send and receive messages.”
In the case at bar the appellant did not refuse to receive messages that were telephoned to it through the railway station agent at Scranton, but, on the contrary, accepted and received messages originating in this manner and collected its fee through the railway station agent for such messages. Appellant therefore, having adopted the instrumentality of the telephone for receiving messages -originating at Scranton, is not in an attitude to repudiate as a matter of law the accuracy of such instrumentality. The burden, to be sure, was upon the plaintiff to prove that the message as set forth in her complaint was delivered to the railway station agent, and that, as such agent, he telephoned the message as it was delivered to him, to appellant’s operator at Paris. Having made this proof, she established a prima facie case which entitled her to recover, unless the appellant could show that its operator at Paris, without fault or careless ness, liad misunderstood llie message. Having adopted the telephone as its agency to receive messages from Scranton, appellant cannot say, as a matter of law, or as an indisputable presumption, that this method of sending messages is unreliable and that the burden of proof was upon the appellee, under the circumstances, to show by affirmative testimony that the appellant’s agent at Paris understood the message as it was received at'Scranton. Counsel for appellant cites the cases of Cameron v. Telg. Co., 90 S. C. 503, 74 S. E. 929, and Painter v. West. U. Tel. Co., 100 S. C. 65, 84 S. E. 293, which seem to hold that there is “no presumption that people speaking over the telephone understand each other.” That possibly may have been sound doctrine when the telephone was in its infancy and a crude and undeveloped instrumentality of verbal intercommunication; but, with all due deference to the learned court that first announced this rule, it certainly cannot be accepted now, when the telephone has been brought to such a state of perfection that it is in almost universal use as a reliable means of intercommunication in the social and business world. The presumption now is that when people talk over the telephone they do understand each other.
As is well said by the Supreme Court of Kentucky in Holzhauer v. Sheeny, 127 Ky. 28-36, 104 S. W. 1034, 1036, “the telephone is an instrument of such common — -indeed, almost necessary — use in mercantile and social affairs of this day that, to deny such evidence probative effect, would be to seriously cripple the utility of this -great modern instrument of communication. That ■ which is generally accepted in the everyday affairs of life, and customarily in business transactions, as evidence, may safely be, and generally is, -adopted by the courts also as evidence.” In Star Bottling Co. v. Cleveland Faucet Co., 128 Mo. App. 517, 109 S. W. 802, it is held that telephone communications stand upon the same footing as conversations as to admissibility in evidence. It seems to us, the sound doctrine to apply to these agencies is that they are “subject to the opera tion of tlie disputable presumptions and inferences applicable to like affairs.” Where there is no statute upon the subject, when a message has been spoken over the telephone, the presumption will be that it was heard as it was spoken. Such presumption is a rebuttable one, to 'be sure, but, when the plaintiff introduced proof tending to show that the message addressed to the sendee at Pocahontas, Arkansas, was sent over the ’phone to appellant’s operator at Paris, the other end of the telephone line, appellant has established, prima facie at least, that the telephone message was heard by appellant’s agent at Paris as the same was telephoned to him from Scranton, and the burden was shifted to appellant to show otherwise. See Union Construction Co. v. West. U. Tel. Co., 163 Cal. 298, 125 Pa. 242, 245; also Wolf v. Railroad Co., 97 Mo. 473, 11 S. W. 42, 3 L. R. A. 539, 10 Am. St. Rep. 331; K. C. Star Co. v. Standard Warehouse Co., 123 Mo. App. 13, 99 S. W. 765; Star B. Co. v. Cleveland F. Co., 109 S. W. 802, 128 Mo. App. 517; West. U. Tel. Co. v. Rowell, 153 Ala. 295-314, 45 So. 73; Jones, Tel. & Tel. Co., p. 645, § 509. We conclude therefore that there was evidence to sustain the verdict
2. The damages recoverable for mental anguish, under our statute, § 10249, C. & M. Digest, must be such as result proximately from the negligence of the telegraph company in receiving, transmitting and delivering messages. The negligence of the company must be the proximate cause of the mental anguish. The anguish resulting from the illness or death of a relative cannot, per se, be caused by the negligence of a telegraph company in handling a message announcing such illness or death. .Such anguish is caused by the fact of the illness or death, and exists entirely independent of anything the telegraph compairy may or may not do in communicating the fact of the illness or death. Hence in our own and other jurisdictions, where damages for mental anguish are recoverable, the well-established doctrine is that there can be no recovery against the company for negligence in handling a message pertaining to last ill ness and death unless the plaintiff proves that he could, and would, have attended the death-bed or funeral if the message had been duly delivered, 'and that he was therefore deprived of such right and privilege by the negligence of the company in handling the message. See Thorpe v. West. U. Tel. Co., 94 Ark. 530, 127 S. W. 730, 37 Cyc. 1782-3, IV, and cases cited in note; 27 Am. & Eng. Ency. of Law, 1075-6, and note. Some cases directly in point cited by counsel for appellant are: West. U. Tel. Co. v. May, 8 Tex. Civ. App. 176, 27 S. W. 760; Kernodle v. West. U. Tel. Co., 141 N. C. 436, 54 S. E. 423, 8 Ann. Cas. 474; Cumberland Tel. Co. v. Brown, 104 Tenn. 56, 55 S. W. 155, 50 L. R. A. 277, 78 Am. St. Rep. 906.
Whether or not, in any case, the plaintiff could and would have attended the death-bed or funeral is an issue of fact for the jury, even where the plaintiff testifies that he could and would have gone to the death-bed or funeral if the message had been promptly delivered. See above cases. Even though the plaintiff’s testimony be not affirmatively controverted, still the issue of whether the plaintiff could and would have g'one to the death-bed or funeral is one of fact and not of law, for the reason that the plaintiff is an interested witness, whose testimony the jury is not compelled to believe. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243; Lilly v. Robinson Merc. Co., 106 Ark. 571, 153 S. W. 820; Salmon v. Boyer, 139 Ark. 236, 213 S. W. 383; Business Men’s, etc. Assn. v. Sanderson, 144 Ark. 271, 222 S. W. 51; Oyler v. Semple, 163 Ark. 620, 260 S. W. 744.
Appellee’s prayer for instruction No. 1 completely ignored the law that the jury must find that she could and would have gone to her mother’s bedside if the telegram had been delivered. The appellant specifically objected to the above prayer for instruction, because it did not contain the essential qualification mentioned. The court erred in granting appellee’s prayer No. 1 without adding the above qualification, because, under the prayer as granted, if the jury found the other issuable facts mentioned therein in favor of the plaintiff, they were told that “it would be their duty to render a verdict in favor of the plaintiff.” True, the court granted appellant’s prayer for instruction No. 7, which is as follows:
“If your verdict is for the plaintiff, then you should assess her damages in such a sum as will compensate her for the mental anguish she suffered, if any, by reason of being deprived of the opportunity of being with her mother prior to her death, provided you believe her failure not to be with her' at said time was caused by the negligent failure of the defendant to deliver the message in question.”
Appellee contends that the granting of appellant’s prayer for instruction No. 7 cured the error, if any, in appellee’s prayer f or instruction No. 1. But not so; these instructions were in irreconcilable conflict, and the charge of the court was thus made inconsistent, inharmonious and contradictory. The jury had no correct guide. Marianna Hotel Co. v. Livermore F. & M. Co., 107 Ark. 245, 154 S. W. 952; St. L. I. M. & S. Ry. Co. v. Bright, 109 Ark. 4, 159 S. W. 33; Turquett v. McMurrain, 110 Ark. 197, 161 S. W. 175, and numerous cases collated in 4 Crawford’s Arkansas Digest, page 4990, “Trial,” § 89. The appellee’s prayer for instruction No. 1 should have been corrected to meet appellant’s specific objection thereto, or else should have been withdrawn altogether. See May v. West. U. Tel. Co. supra; Baker v. Ashe, 80 Tex. 356, 16 S. W. 36.
For the error of the court in granting appellee’s prayer for instruction No. 1 without modification, the judgment is reversed, and the cause is remanded for a new trial. | [
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Kirby, J.
This appeal is prosecuted from ia judgment of conviction for robbery in Garland County. Three errors are assigned for reversal.
I. That the court erred in impaneling the grand WW.
It appears that the court convened in regular term on September 26, 1927, the grand jury was impaneled, and, after returning certain indictments, by permission of the court adjourned to Tuesday, October 18, 1927, at 10 o’clock, and that on the 6th day of October, a day of the regular term, “by order of the court, the grand jury came into open court, and, three of the members being absent, the sheriff, who had been directed to summon the grand .jury to meet in special session that day, and to summon a sufficient number of electors to serve as grand jurors during the absence of any of the regular panel, reported that he had failed to notify three of the regular members of the called meeting of the grand jury, and Bettis Wheatley, J. N. Coppick and Herman Jenks were found to be qualified, and were sworn and impaneled as members of the grand jury.” No objection was made at the time to any of said grand jurors, but, when the case was called for trial, appellants’ attorney said they desired to' save exceptions to the grand jury, which had adjourned to the 18th. The court stated the grand jury had just recessed to the 18th, subject to call.
No motion to set aside or quash the indictment on the ground that the jury was irregularly impaneled was made, and, by pleading to the indictment, the defendants waived the alleged illegality in the formation of the grand jury. Carpenter v. State, 62 Ark. 286, 36 S. W. 900 ; Holt v. State, 171 Ark. 279, 284 S. W. 1.
The court had the right to complete the panel upon the grand jury being reassembled by its order as though the members who failed to appear had been excused or discharged; and no contention is made that the new .jurors were not qualified, or that any of them were prejudiced against appellants, and any such irregularity in the formation of the grand jury was not material and could not have prejudiced the rights of appellants. 12 R. C. L., p. 1019, 28 C. J., § 60, 786; Perkins v. State, 168 Ark. 710, 271 S. W. 326; Runnels v. State, 28 Ark. 121.
2. There is no merit in - the contention that the court erred in refusing to give appellants’ requested instruction telling the jury that, before they could convict either of the defendants, they must find that the money alleged to have been taken “was the property of Peter Grumbley, and, if there is a reasonable doubt as to such ownership,” they should give the defendants the benefit of such doubt and acquit; and in instructing the jury that, if they believed from the evidence that defendants took the money from Mr. Grumbley, “and that the money taken was the property of Mr. Grumbley, or that at the time he had exclusive possession or control of it,” then the defendants would be guilty, etc. * ■
The instruction requested wlas not technically correct, and the one given correctly declared the law, it not being necessary that the ownership of the property taken must have been in the person robbed, it being sufficient if he had the exclusive possession or control of it, as the court told the jury. 17 R. C. L., § 72, p. 67; Harrell v. State, 169 Ark. 1038, 278 S. W. 45; Stoddard v. State, 169 Ark. 594, 276 S. W. 358.
3. Neither was error committed in admitting the testimony of W. G. Bouic, relating to the statement of the absent witness, Grumbley, shown to' be out of the State, made at the preliminary trial, ‘ ‘ that he was riding in an automobile on the highway with Mr. Ferguson and two young ladies, Misses Hawthorne and Murray; 'that they had parked for a minute on the^road, and that two men by the name of Laitahan and Brown came up; that Lanahan had a heavy voice, and a tooth missing above and 'below, and pulled a gun on him, and a searchlight, and took ‘his money from his person. The court asked if he said whose property it was that was taken, and Bouic replied that he had said he lost this money from his person; did not remember that he had said anything other than that he had lost $11, and that they took it from him. ’ ’
This testimony shows that the witness had heard the absent witness testify and could remember his testimony. Petty v. State, 76 Ark. 515, 89 S. W. 465; Poe v. State, 95 Ark. 172, 129 S. W. 292.
The young ladies also testified about the occurrence, and the evidence is ample to support the verdict.
We find no prejudicial error in the record, and the judgment is affirmed. | [
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Kirby, J.,
(after stating the facts.). Appellant insists that the court erred in not holding the claim barred by the statute of limitations, and its contention must be sustained.
Our statute provides the remedy of the landowner where the board of directors of a levee or drainage district have appropriated or condemned lands for the construction or maintenance of levees or ditches, and that all actions for recovery of damages, against such districts for the appropriation of lands shall be instituted within one year after the construction of the levee or drains, and not thereafter. Sections 3940, 3942, C. & M. Digest.
Appellee, the mortgagee of the lands, not having-been included in the proceedings for the condemnation thereof, was not bound thereby, and his lien on the land not affected, not having- been 'given notice of such proceedings, and the payment of the damages by the condemnor, under such circumstances, to the mortgagor, could not prevent the mortgagee from compelling a second payment to himself or foreclosure on the land taken for the improvement, although he would first be required to resort to the land remaining after the condemnation. Schichtl v. Home Life & Accident Co., 169 Ark. 415, 275 S. W. 745.
The mortgagee should have'been made a party to the condemnation proceedings, and notified thereof in the manner provided by statute, and could not be deprived of its superior lien by condemnation and award made without notice, and the payment of any such award was at the peril of the condemnor.
The mortgagee, although not bound by the condemnation proceedings, not being a party thereto and having no notice thereof, could have proceeded, after the foreclosure of his lien and the purchase of the lands, to the collection of the amount of damages for the land condemned for payment of his deficiency judgment. He must have done this, however, within the time provided by law for the bringing of such suits, one year after the construction of the levee, and, not having done so, the suit being brought more than one year and eight months after its construction, the statute being pleaded, his •cause of action was barred, and the court erred in holding otherwise. Young v. Red Fork Levee District, 124 Ark. 61, 186 S. W. 604; Guaranty L. & T. Co. v. Helena, 148 Ark. 56, 228 S. W. 1045.
Having held that the appellee was not entitled to recover, his cause of action being barred by the statute of limitations, we need not discuss the other questions raised.
For the error designated the decree will be reversed, and the cause dismissed for want of equity. It is so ordered. | [
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Smith, J.
Appellee, as administrator of -the estate of A. F. Smith, deceased, brought this suit to recover on a note executed by appellant to the order of plain tiff’s intestate, which was given in part payment of a second-hand Delco light plant, that fact being recited in the face of the note. There was a cash payment of $100, and the note evidenced the balance of the purchase price.
The answer alleged that the plant was worn out and worthless, but did not allege there had been any warranty or breach thereof. An amended answer alleged that the note had been paid and satisfied under an agreement had with one J. B. Chapline, as agent of the Delco Light Company, whereby it was agreed that appellant should purchase a new light plant and should have credit for the amount of' the note sued on. In other words, as a consideration for entering into a contract to buy a new plant it was agreed that the note given for the old one should be canceled.
At the conclusion of all the testimony the court directed the jury to return a verdict for plaintiff for the face of the note and the interest, upon the theory that no valid defense to the note had been shown.
It is quite probable an issue for the jury might have been made upon the question of an agreement between appellant and the payee in the note whereby the note sued on was to be canceled, but for the statute which prohibited him from testifying concerning transactions had with the plaintiff’s intestate. Section 4144, C. & M. Digest. Realizing this handicap, appellant attempted to show, that Smith, the intestate, and Chap-line, the agent of the light company who made the sale of the new plant, were partners in the agency for the light company, and that Chapline had, in Smith’s presence, assented to the arrangement, and he thereby bound his partner, and that both sales were in fact partnership transactions. The testimony was not sufficient to support a finding that Smith and Chapline were partners in the agency, although both were agents, and therefore the court properly refused to submit that question.
The contract for the sale of the new light plant, which appears to have been negotiated by Chapline as agent, was offered in evidence, and it does not appear from, this contract that any diminution of the price of the new plant was to be made on account of the worthlessness of the old one. The note sued on was not given to the light company, but was made direct to Smith, and it does not appear that the light company was in any manner interested in it. On the contrary, the undisputed testimony shows that the old plant, in part payment of which the note sued on was given, was the individual property of Smith.
As the note sued on shows that it was given in part payment of a certain second-hand machine, there was no implied warranty of the serviceability of the machine, and an express warranty could have been shown in this ease only by proving statements of the intestate in the transaction between himself and appellant, the defendant in the case, and this could not be done because the statute prohibited it. Indeed, as we have said, there was no allegation of a breach of warranty in the answer.
Appellant insists there was testimony from which the jury could have found that Smith and Chapline were partners, but, if this were true — and we do not think it is — there is an entire absence of testimony that the partnership owned or was interested in the note sued on. As this note was the individual property of Smith, Chapline could not have agreed to its cancellation. There was therefore no competent testimony that the note had been paid and canceled, and the verdict was therefore properly directed in appellee’s favor, as the execution of the note was admitted.
A new trial was asked upon the ground of newly-discovered evidence, which we do not review, for, even though the testimony were held to be competent and material, no showing was made that appellant did not know of this testimony before the trial and could not, by reasonable diligence, have procured the attendance of the witness at the trial.
As no error appears, the judgment must be affirmed, and it is ordered. | [
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George Rose Smith, Justice.
On a November afternoon in 1964, tbe plaintiff-appellees, Mr. and Mrs. Earnest Bradford and their seven-year-old daughter Vickie Sue, were passengers in a ear traveling north through the city of Cabot. While the car was waiting for a line of traffic to move forward it was struck from the rear by a truck owned by the appellant Bailey and being driven by his employee, the appellant Davis. There is no question about the appellants’ liability: Davis, 3ged 77, admitted that he did not even see the Bradford car before the collision. This appeal is from a verdict and judgment for $30,000 in favor of Vickie Sue.
The point that has given us the greatest concern is the appellants’ contention that the court erred in instructing the jury that they might consider whether Vickie Sue’s injuries were temporary or permanent and might consider any pain and suffering reasonably certain to be experienced by her in the future. AMI 2202 and 2205.
On the issue of permanency the testimony amply supports the giving of the instruction. Vickie Sue suffered a brain injury, evidenced by bleeding from her nose, mouth, and ears, and by a discharge of spinal fluid from both ears. She was at first in a very critical condition and did not regain consciousness for four or five days* Upon similar facts we held in Duckworth v. Stephens, 182 Ark. 161, 30 S. W. 2d 840 (1930), that the injury of itself indicated its permanency. Other facts confirming that conclusion will be mentioned in a moment.
The difficult question is that of future pain and suffering, because those elements of damage are to be submitted to the jury only if they are “reasonably certain” to be experienced in the future. AMI 2205; McCord v. Bailey, 195 Ark. 862, 114 S. W. 2d 840 (1938); St. Louis, I. M. & S. Ry. v. Bird, 106 Ark. 177, 153 S. W. 104 (1913). Here the medical testimony falls short of meeting that test of submissibility. Dr. Weber testified that there is a good possibility that the child had suffered permanent brain damage that might lead to epileptic seizures or convulsions in the future. A “good possibility,” however, does not meet the standard of reasonable certainty laid down in the Bird ease and other decisions to the same effect.
Nevertheless, there is testimony by lay witnesses that supports the trial court’s action in the matter. Vickie Sue’s mother testified that at the time of the trial, more than two years after the accident, Vickie Sue still had a fear of riding in an automobile, still had trouble with her speech, and still suffered headaches. The child’s father testified that Vickie Sue could not carry, on a conversation “without getting tangled up with her words and having to stop.”
We must conclude that the lay testimony, which the jury were at liberty to accept despite the absence of expert corroboration (Western Union Tel. Co. v. Byrd, 197 Ark. 152, 122 S. W. 2d 569 [1938]), made an issue for the jury. Even though headaches and speech difficulties are not equally as serious as other injuries from which Vickie Sue made what the doctors called a remarkable recovery, they are certainly not negligible elements of damage. To the contrary, the pain resulting from recurrent headaches has been recognized in scores of our opinions as a proper basis for compensatory damages. Decidedly similar to this ease is Arkansas Drilling Co. v. Cross, 179 Ark. 631, 17 S. W. 2d 889 (1929). Finally, if those consequences of the accident had continued for more than two years at the time of trial the jury could fairly conclude that they were reasonably certain to afflict Vickie Sue in the future.
The appellants ’ other contention is that the $30,000 award is excessive. We think not. It seems almost a miracle that Vickie 'Sue’s injuries were not fatal. As we have said, there was bleeding from her nose, mouth, and ears, and a drainage of spinal fluid from her ears. She was unconscious or nearly so for some thirteen or fourteen days, during which she did not regain her ability to talk. The use of her right hand was impaired for about three months. She had difficulty in remembering things at school for six months. At the time of the trial she still suffered speech difficulties, a “jumping” of her left eye, and headaches. She still faces the grim possibility of future epileptic seizures and convulsions. The size of the verdict is not so great as either to indi cate passion and prejudice on the part of the jury or to shock the conscience of this court. In such circumstances it is our duty to uphold the award. Freeman v. Jones, 239 Ark. 1143, 396 S. W. 2d 931 (1965).
Affirmed. | [
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Hart, C. J.,
(after stating the facts). The title was acquired by the drainage district when the land was struck off to it in April, 1924, and the deed was made to the board of directors of the drainage district by the commissioner who made- the sale. There was a valid decree of foreclosure for the nonpayment of drainage taxes, and the statute was in all respects complied with by the commissioner who made the sale, and the conveyance in pursuance thereof to the board of directors was a valid one. The drainage district was organized under a special act passed by the Legislature of 1917. Acts 1917, vol. 1, page 1053. The suit was instituted by the district against Gausey, as owner of the land, for the nonpayment of drainage taxes, in accordance with § 28 of the act. When the land was sold under the decree, the board of directors of the drainage district became the purchaser thereof. Section 28 provides that, where lands are offered for sale as provided by the act, and the amount of the taxes due, with interest, costs and penalty, is not bid at the sale, the commissioner shall bid the land in in the name of said board of directors of said drainage district for the whole amount due as aforesaid. The section further provides that the commissioner shall then execute his deed thereto as in other cases under this act, conveying such land to such drainage district, and that such deed, when duly executed in conformity to the provisions of the act, and recorded, shall be received as evidence in all cases, showing an indefeasible title in said purchaser, unassailable in law or in equity.
In Douglass v. Lewis, 131 U. S. 45, 9 S. Ct. 634, 33 L. ed. 53, it was said that a covenant that the grantee is seized of an indefeasible estate in fee simple is a covenant for a perfect title. Hence, under the provision of the statute just referred to, the drainage district acquired an absolute title to the land after the period of redemption provided by the statute had expired.
While there is no express provision authorizing the drainage district to sell lands acquired by it in this manner, we think the power to sell arises by necessary implication. It would seem that there would be no use in providing that the district should have an absolute title to lands purchased by it for the nonpayment of drainage assessments if they could not sell the lands in aid of the drainage work. The drainage board was an involuntary quasi corporation created to construct a public work, author ized to procure the means to accomplish the improvement by the imposition of assessments upon private property. It was a governmental agency existing- for a public purpose, and, while it could hold no real estate in a proprietary sense, it was empowered to bid in the land at a public sale for the nonpayment of drainage assessments and to acquire an absolute .title, thereto, and this, we-think, by necessary implication, gave power to resell the lands for the purpose of acquiring funds for the prosecution of the drainage work. This view receives support from the following cases: Altheimer v. Board of Directors Plum Bayou Levee Dist., 79 Ark. 229, 96 S. W. 140; Board of Directors St. Francis Levee District v. Fleming, 93 Ark. 490, 125 S. W. 132, 659; and Chicago Mill & Lumber Co. v. Drainage Dist. No. 17, 172 Ark. 1059, 291 S. W. 810.
It is next contended that no valid contract was made with Bay by the district for the purchase of the land. We have copied the letters written by the attorneys of Bay and the replies of the secretary of the drainage district thereto. In these letters the terms of the contract are plainly set out. The names of the contracting parties are given, there is a proper description of the lot to be sold, and the price and method of payment are given. This constituted a valid contract which might be specifically enforced between private parties. Moore v. Exelby, 170 Ark. 908, 281 S. W. 671.
We can see no reason why the doctrine of specific performance should not apply to a drainage district. But it is contended that Shelton had no power to make the contract, and reliance is placed upon the case of St. Francis Levee District v. Cottonwood Lumber Company, 86 Ark. 221, 110 S. W. 805, and Ritter v. Board of Directors of St. Francis Levee District, 128 Ark. 324, 194 S. W. 13. We do not think these cases apply. In the first case it was held that the district was not bound by the unauthorized promise of the secretary of the board. The same holding’ was made in the latter case with regard to the unauthorized act of the president. The court held that, while he had authority, under the statute, to make the deed, he had no power to enter into a covenant to refund the purchase price if the title failed, and that he could not execute a deed with covenants of warranty. Quite a different situation confronts us here. The secretary of the board testified that it was his custom to act for the board in making contracts for the redemption of the land or the repurchase of it by the owner or by •those interested in it. He said that it was the custom to give a preferential right to the owner. It is fairly inferable from his testimony, which is not contradicted, that he had the power to enter into ia contract on behalf of the board for lands which had been sold to it under foreclosure proceedings for the nonpayment of the drainage assessments. Of course, in all cases the deed would be executed by the board of directors of the drainage district in whom was the legal title. This court has .held repeatedly, however, that it is not necessary that authority to sell and make a binding contract for the sale of land should be in writing. The reason is that a contract employing an agent to find a purchaser of land is not within the statute of frauds. Moore v. Exelby, 170 Ark. 908, 281 S. W. 671, and cases cited.
The rule announced in these cases would also govern the power of the attorneys of Ray to execute a contract for him. According to the testimony of Ray and of one of his attorneys, he had placed the matter in their hands for the purpose of redeeming the lot in question from the sale for drainage taxes, or in some way acquiring the title of the drainage district to it, in order that he might subject it to the payment of his mortgage. It was realized that the lot was worth more than the amount of the drainage district tax, interest and costs. Hence we think the record shows that the attorneys of Ray had a right to make a binding contract for the sale of said lot to Ray and that the secretary of the district had a right to make a binding contract for it.
The letters on their face purport to be a completed contract, and became enforceable as a written agreement before tbe quitclaim deed to Blanton was executed. The record shows that Blanton purchased the lot with notice of the outstanding contract made by the secretary of the drainage district with Ray. Indeed, this is how came Blanton to purchase the lot. The secretary of the drainage district told him about the letters he had written to Ray, and Blanton persuaded Causey to ask the board of directors of the drainage district to execute a deed to Blanton, and the latter, having notice of the contract of Ray, acquired no better title to the lot than the drainage district in whose shoes he stands. Vance v. Newman, 72 Ark. 359, 80 S.W. 574, 105 Am. St. Rep. 42; and Adams v. Rhodes, 143 Ark. 172, 220 S. W. 29. In the latter case it was expressly held that, where a 'defendant had contracted to sell land to the plaintiff, a third person who purchased the land with notice of his rights is not an innocent purchaser, and -plaintiff is entitled to specific performance as against him.
The result of our views is that the decree of-the chancery court was correct, and it will be affirmed. | [
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John A. Fogleman, Justice.
Appellant Ingle asserts that the trial judge erred in directing a verdict in favor of appellee for a deficiency judgment on a purchase money note given for a John Deere combine.
Marked Tree Equipment Company, the appellee, filed its complaint alleging the sale of a John Deere 95-B combine to appellant for $11,068.00 on October 1, 1964, and asserting that it had repossessed the implement on May 5, 1966, because of default of appellant in making payment. It was alleged that appellee made a down payment of $2,280.00 and that the time payment balance of $11,749.62 was to be made in four equal annual payments of $2,937.40, one becoming due on the first day of each succeeding December. Appellee also alleged that notice was given to appellant that the combine would be sold for $6,000.00 unless the balance of $8,812.22 was paid by May 23, 1966. It stated that it “bought” the combine for $6,000.00 on July 15, 1966, the same date it was required to repurchase appellant’s time payment note from a bank to which it had been assigned. It sought judgment for $2,812.22 and interest.
Ingle answered, alleging that he purchased this combine upon the representation by the implement company that it would fix up the 95-B combine so that it would perform exactly like the R combine he actually wanted to purchase. He denied that he was obligated to pay any insurance premiums. He further alleged:
When the combine was delivered it had larger wheels on it than usual on that type of combine and that appellant guaranteed that this combine would give him perfect satisfaction and that if he found, upon trial, that it did not perform to his satisfaction, it would not cost him anything; the failure of the combine to perform properly was reported to the implement company and that they tried to make it work but failed to do so; be then advised appellant to com© and get the implement as he could not use it and did not intend to pay for it; appellant took possession of the combine under an agreement that he would not be required to pay for it.
The defense of usury was also pleaded and recovery of a down payment of $2,280.00 was sought. By amendment, appellant sought to recover a payment of $2,937.40 and another of $936.08.
The implement company denied appellant’s allegations generally and pleaded a contractual limitation of warranties in the time sale agreement.
The verdict was directed upon conclusion of the evidence on behalf of appellee.
Appellant asserts nine points for reversal, all of which relate to matters which he contends raised factual issues for the jury. Among the points upon which appellant relies are his contentions that there were questions of fact as to material changes in his contract after he had signed it, by alteration of the stated price of the combine and by charging premiums for unauthorized insurance; as to the usurious nature of the transaction; and as to the existence of a new and substituted parol contract at the time of the first payment in which appellee made a new guarantee.
Appellee contends that actions of appellant, with full knowledge of all facts,- constituted a waiver of any alleged defenses and a ratification of the contract as a matter of law.
In considering the propriety of the court’s action we will view the evidence in the light most favorable to appellant. Even when we do so, we find that many of the allegations of his pleadings are not sustained and that the court’s action was not erroneous.
Ingle was a farmer who needed a combine for use in the harvest of 1964. Sometime prior to the harvest he met one Edwin Redd, a salesman for Marked Tree Equipment Company, on the road to Bay Village. They had a discussion in which Ingle advised Redd that he had been looking at a Case combine. Redd’s company was a John Deere dealer. They discussed prices and equipment. Ingle testified that Redd said the cost of the combine would be $9,600.00 and that it had 18-inch tires. Ingle expressed his preference for Case equipment because he had “soft ground” and doubted that the tires on the John Deere equipment were wide enough to support it on his land. A few nights later, Redd came to Ingle’s house about the matter and after a week or so in negotiations, Ingle signed a contract to purchase the Deere combine. Thereafter, when he went with Redd to see it, he told the manager of appellee, the shop foreman, and Redd that he could not use it because the tires were not large enough. They suggested the use of dual wheels, but Ingle was unfamiliar with them. Redd stated that they said they would guarantee this combine to go anywhere with an extra set of wheels. The shop foreman asked Ingle to bring them a set of rims, but Ingle suggested that they use a set he saw in the shop and now claims that they did so. They did not say anything about charging him for the wheels but went ahead and welded them. When the combine was delivered sometime before October 1,1964, the wheels and rims were brought with it, but were not attached because of highway width requirements. Ingle was shown the place for bolting them on by the employee who delivered the equipment.
Sometime after the original contract was signed, Redd came out to Ingle’s house and brought a new contract, claiming that a mistake had been made on the first one signed. Ingle signed the new document and tore up his copy of the first one as requested by Redd. Some of the writing on the new contract was done at the Ingle house where Ingle signed it. Appellant identified his signature on the contract introduced by appellee. The de scription of the equipment was written on the contract the way Ingle wanted it at the time he signed, hut there were not any figures as to the money terms. No mention was made of any insurance. Ingle’s copy of this contract was received by him by mail some two or three weeks later. Ingle’s wife read the contract and showed it to him, after which he called appellee’s place of business and told a secretary that he was overcharged. Redd later came out, that evening, and angry words were exchanged. Ingle protests that the contract called for him to pay $12,000.00 although the equipment had been priced to him at $9,600.00. Redd agreed to take the contract back to the manager of the company and promised that if there were mistakes, they would be corrected. The combine was delivered subsequently.
Ingle started using the combine for harvesting soy beans, commencing about October 1st. It worked satisfactorily during dry weather for about three days. Thereafter, there were rains and the combine would bog down so that Ingle was unable to use it for any full day thereafter. His Case equipment operated satisfactorily. After ten or twelve days and two or three rain showers, Ingle abandoned efforts to use the Deer combine and parked it on the hill near his house. However, he attempted to use it later, sometime in November, probably 15 times. He obtained other Case equipment and help in harvesting his crop.
Thereafter, he got notice of his December 1st payment by letter dated November 25, 1964. Still later, Redd came out. Ingle told him then that the combine would not work and that he would not pay $12,000.00 for it “until it cut beans.” Ingle expressed the desire that appellee take the machine. The following conversation ensued:
Redd: “We will have to make it work. We will have to find out what it takes to make it work or give you your money back.”
Ingle: “If yon make it work, I will pay the down payment if yon promise me the combine will work. ’ ’
Eedd: “We will have to make it work or give you yonr money back.”
Ingle made the payment on December 1st, relying on these statements by Eedd. On December 29, 1964, he also paid $765.00, the down payment which had been charged to his account at the time the transaction was closed. Subsequently, appellee’s employees came out to work on the combine several times while other combines were working. None of this work involved any attempt to correct the trouble with the wheels. Eepresentatives of the implement company told Ingle they could not put bigger wheels on the combine and never did anything to correct the wheel trouble. In June of 1965, appellee changed the battery in the combine upon the request of appellant. An employee also came out at that time to help Ingle start the combine at Ingle’s request. Frank Ingle testified that appellant attempted to use the combine in the harvest of 1965.
Insurance was not mentioned in any conversation between the parties. When Mrs. Ingle saw the contract and called the total balance to her husband’s attention, she did not notice that items for insurance premiums were included in the contract.
On the face of the time sale agreement, the following items were listed:
Delivered cash price $11,068.00
Sales tax 332.00
Total cash price 11,400.00
Total down payment 2,280.00
Balance 9,120.00
Property insurance 563.16
Life insurance 395.84
Deferred balance 10,079.00
Finance charge 1,670.62
Time balance 11,749.62
The testimony is undisputed that Ingle was credited with $1,515.00 on the down payment, so that the actual down payment charged to his account was $765.00. Thus, the actual selling price of the combine was $9,553.00.
Appellee reminded Ingle of the 1965 payment by letters dated November 15, December 7, and December 21, 1965. On the Saturday preceding the last of these letters, appellee’s manager and appellant had a conversation in which appellant stated that he was unable to pay for the machine because he was not able to combine beans with it. He went to the extent of telling what parts were broken on it and his inability to get them.
When appellee’s motion for directed verdict was made, appellant’s counsel stated that appellant was not relying' upon the first contract, but the last one (about two days before December 1, 1964) in which “they” guaranteed to appellant they would make the combine work.
A buyer may accept or reject goods which fail to conform to the contract in any respect. Ark. Stat. Ann. § 85-2-601 (Add. 1961). If the combine did not conform to the terms of the conditional sale contract, appellant was required to reject it within a reasonable time. Hudspeth Motors, Inc. v. Wilkinson, 238 Ark. 410, 382 S. W. 2d 191. By failing to take the necessary steps to reject the machine, Ingle waived any breach of warranty that might have occurred. Hudspeth Motors, Inc. v. Wilkinson, supra. Rejection must be made within a reasonable time after delivery and reasonable notice given. Ark. Stat. Ann. § 85-2-602; Green Chevrolet Co. v. Kemp, 241 Ark. 62, 406 S. W. 2d 142. Exercise of ownership by the buyer after rejection is wrongful against the seller, binds the buyer to his acceptance and constitutes a waiver of warranties. 85-2-602, 85-2- 606; Green Chevrolet Co. v. Kemp, supra. Ingle was barred of any remedy unless he notified the implement company of any alleged breach within a reasonable time after discovery thereof. § 85-2-607.
There is no evidence that Ingle took any steps that could be construed as a rejection of this combine or gave notice to appellee of any rejection or of his claim of a breach until he was called upon to make his payment two months after delivery. The trial court was justified in holding that this action was not within a reasonable time after delivery or after discovery of the breach. Ingle’s payment of the December 1st payment and of the down payment on December 29th were inconsistent with any rejection of the equipment.
Appellant contends, however, that his actions were justified by Redd’s promise that appellee would make the combine work before the time the 1964 payment was made and it is this agreement upon which appellant relies, according to the statement by his attorney. In the first place, there is no evidence that Redd had any authority to make any such agreement. A salesman has no implied authority to modify a contract for sale of goods. American Sales Book Co. v. Whitaker, 100 Ark. 360, 140 S. W. 132. One dealing with an agent is bound to ascertain the nature and extent of his authority and cannot trust to mere presumption of authority or the assumption of it by the agent. Dixie Life & Accident Ins. Co. v. Hamm, 233 Ark. 320, 344 S. W. 2d 601.
Furthermore, appellant’s actions are not consistent with a revocation of acceptance based upon these representations as allowed by § 85-2-608. Hudspeth Motors, Inc. v. Wilkinson, supra. His acceptance was not based upon these assurances that any non-conformity would be cured as required by the statute. His duties with reference to the combine were the same as in case of rejection, i.e., he could not exercise ownership over the equipment. Employees of the company did work on the equipment thereafter having nothing to do with the condition about which Ingle complained, at Ingle’s request. An employee was sent to change a battery in the combine and to help Ingle start it in June, 1965, in response to a request by Ingle. Although appellant admits that appellee’s representatives told him repeatedly that they could do nothing about the wheel or the condition, he attempted to use it in the harvest of 1965. This was certainly inconsistent with any rejection or revocation of acceptance.
Actually, the evidence shows that the contract price was not raised, as it appears to have been less than $9,600.00. Appellant’s making payments under the terms of the contract and exercising acts of ownership over the equipment after he had full knowledge of the contract terms are certainly inconsistent with his present contentions as to any rights arising out of any unauthorized items in the contract, either as to insurance or contract price. As such, they constituted a ratification of the contract. Teare v. Dennis, 222 Ark. 622, 262 S. W. 2d 134.
Appellant’s contention as to usury depends entirely upon the inclusion of charges for insurance and his contention that the contract price was increased from $9,600.00 to $11,068.00. We have demonstrated the fallacy of both arguments. If appellant’s position is incorrect as to either of the contentions, the contract would not be usurious.
Appellant also contends that there was error in allowing interest on the judgment from its date because the time sale contract included interest to December 1, 1967. This contention was not asserted in the .trial court and cannot be considered on appeal. Panich v. McLendon, 241 Ark. 576, 409 S. W. 2d 497; Old American Life Ins. Co. v. Williams, 241 Ark. 250, 407 S. W. 2d 110; Planters Lumber Co. v. Wilson Company, 241 Ark. 1005, 413 S. W. 2d 55.
The judgment is affirmed. | [
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McHaney, J.
For some years prior to November 12, 1921, appellee and her husband, M. L. Harpole, were the owners as tenants by the entirety of the land in controversy. A short while prior to said date, M. L. Harpole was adjudged a bankrupt, and on said date all his interest in said land was sold b3;r the trustee in bankruptcy to appellant, who received a deed therefor from the trustee, subject to a mortgage on said land in favor of W. D. Polk in the sum of $1,000, given to secure a note to said Polk in said sum, dated February 14, 1921, due February 14, 1923, with interest at 10 per cent., both the note and mortgage being signed by M. L. Harpole and appellee. After appellant purchased the interest of M. L. Harpole, appellee refused to recognize any right or interest therein of appellant, she holding possession, receiving and using all the rents and profits therefrom. She made some improvements, paid some taxes, and refused to make any accounting to appellant for his interest therein. On the 3rd day of May, 1924, some months after the maturity of the note, appellee paid to Polk, the holder of the mortgage, the principal-sum and interest due thereon, and he made the following indorsement on the mortgage: “For value received I hereby assign and transfer the within note, together with 'all security, without recourse, to Paralee Harpole, this 3d day of May, 1924. W. D. Polk.”
This suit was brought by appellant for an accounting on the 31st day of January, 1925, in which he claimed that he was entitled to one-half the rents and profits from said land for the year 1922 and subsequent years, less his share of the taxes and the mortgage paid by appellant, if any, the exact allegations in the complaint being as follows: “Plaintiff further states that said defendant has received all the rents and profits from said land since he became the joint owner of the same, that the reasonable rental value of said land per year is $800, which, to include that year, would amount to the sum of $2,000 for his share of the rent of said land; that if said defendant has paid any taxes on said land or any part of the. mortgage due thereon, she is entitled to credit for same.”
On a trial the court found the rental value of the land to be $225 per year for the years 19'22 to 1926 inclusive, and that appellant was entitled to one-half thereof for each year, with 6 per cent, interest from the first day of January of each year subsequent to the year in which the rent was due. Appellant was charged with one-half the taxes for each year, with 6 per cent, interest from the date of payment, $150 for repairs, and further charged with the whole amount of the amount of the mortgage with interest at 10 per cent, from February 14, 1921, and a lien was fixed on his interest in said land to secure the payment thereof. A decree was entered in accordance with these findings, from which is this appeal.
The only question we find it' necessary to determine in this case is whether the court correctly charged appellant with the full amount of the mortgage indebtedness existing against the land at the time he purchased M. L. Harpole’s interest therein. This is an estate by the ■ entirety.' The whole estate was mortgaged to secure the indebtedness to Polk, and both the note and mortgage were executed jointly by M. L. Harpole.and appellee. Each testified that it was the debt of the other. They were both jointly liable for this debt. Appellant, by his purchase at the trustee’s sale, did not assume or agree to pay this indebtedness. He merely bought M. L. Harpole’s interest in this estate, subject to this indebtedness. Appellee did not pay this note when it was due, and neither did her husband'. It was’ paid after maturity. It is a general rule, supported by a unanimity of authority, as well as by our statute, that “a negotiable instrument is discharged when the principal debtor becomes the holder of the instrument at or after maturity in his own right.” See 7885, C. & M. Dig., sub. 5. See also Harding v. Hagler, ante, p. 146. The first subdivision of the above section of the Digest also provides that “a negotiable instrument is discharged by payment in due course, by or on behalf of the principal debtor.” The attempted assignment by Polk to appellee amounted to no more than a cancellation of the instrument, as, under the law, the instrument was discharged when she became the holder of it in her own right, after maturity. There being no obligation on appellant to pay this note, or any part thereof, except to protect his interest in the land, we are of the opinion that fairness and equity will only require him to be chargeable with one-half of the amount of the note and interest paid by appellee. It was paid for the protection of their joint interest, each being equally interested in one-half the net profits from the land, and both interests being equally •imperiled by the mortgage thereon, and that he should be charged with interest on one-half of the interest payments made by appellee, as well as one-half the principal debt from the date of such payments, at 6 per cent, per annum.
The other questions raised with reference to the amount of taxes paid, both general and special, may be adjusted between counsel on a remand of the case, as seems apparent from the brief of counsel for appellee.
The cause will therefore be reversed, and remanded with directions to enter a decree in accordance with this opinion. It is so ordered. | [
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Holt, J.
In August, 1939, Malvin John Clapp was an employee of the Missouri Pacific Railroad Company, and at this time the railroad company was carrying with appellee, Sun Life Assurance Company of Canada, a group insurance policy No. 1682-G covering its employees. Mr. Clapp applied for and was issued a certificate of insurance No. 18154 by appellee under this group policy on August 3,1939. Harry Clapp, son of M. J. Clapp, was named beneficiary in the insurance certificate. At the time of acquiring the insurance, Mr. Clapp signed and delivered to the railroad company a deduction order, authorizing the railroad company to make monthly deductions from his pay check. This deduction was made on the last day of each month and was payable in advance on the first day of each month, the insurance being carried from month to month.
Mr. Clapp died November 30, 1940. Demand was made by appellant beneficiary for the amount of insurance under the insurance certificate. Appellee denied liability on the policy and refused to pay same on the ground that the insurance certificate in question lapsed on September 30, 1939, for nonpayment of premiums.
January 3, 1941, appellant filed suit on the policy in the Pulaski circuit court, alleging full compliance with all of its terms. Appellee answered with a general denial. By agreement, the cause was submitted to the court sitting as a jury, and there was a finding in favor of appellee insurance company. From a judgment on this finding comes this appeal.
The group insurance policy No. 1682-G contains, among others, the following provisions: “Cessation of Assurance: — Subject to the terms of the clause providing limited waiver of premium on disability, the assurance shall cease at the earliest following dates: — (a) thirty-one days after the employee leaves the service of the employer or (b) at the due date of the premium to which the employee has failed to make a required contribution or (c) at the date such employee otherwise ceases to be eligible under the group policy. Assurance of all employees shall cease immediately upon the lapse or discontinuance of the group policy.”
From the effective date of the policy, August 3,1939, until Malvin John Clapp died, November 30, 1940, he earned each month between those dates sufficient money to pay his monthly premiums which were due and payable in advance on the first day of each month.
September 28, 1939, Mr. Clapp by virtue of a reduction order ceased work for the railroad company, but was reinstated October 16, 1939, and again worked for the company. Subsequent to September 28, 1939, Mr. Clapp paid none of the monthly insurance premiums required under the insurance certificate issued to him by appellee. It is not denied that during the months that he worked for the railroad company, subsequent to September 28, 1939, the railroad compa^ paid him the full amount of his monthty. earning’s without first having deducted the monthly insurance premiums.
It is the contention of appellee that appellant, as beneficiary, is not entitled to recover for the reason that the insured suffered the policy to lapse on September 30, 1939, by refusing to pay the premium due in advance, October 1,1939, and all subsequent premiums, and that the insured, Clapp, refused to reinstate the policy after he had been duly notified of his delinquency.
Appellant, on the other hand, contends that no notice was ever given to Mr. Clapp, -the insured, that his monthly insurance premiums were not being paid and that the railroad company had in its hands his deduction order, and sufficient funds at all times with which to pay his monthly premiums, and says in his brief “the real issue in this case turns upon a question of notice.”
It must be borne in mind, at the outset, that the group insurance contract in this case is one between the railroad company and appellee insurance company. Neely v. Sun Life Assurance Company of Canada, 203 Ark. 902, 159 S. W. 2d 722, this court said: “The appellee and the railroad company were the only parties to the group policy, and the law seems to be well settled that the parties who make a contract may rescind the same by mutual' agreement. ’ ’
On the question of notice to the insured, Mr. A. S. Metcalf, chief clerk of the Missouri Pacific shops, testified: “Q. Do your records indicate when he (meaning Mr. Clapp) came back"? A. Yes, sir, in the restoration of the force we had occasion to call Mr. Clapp back in line with seniority and he went back to work October 16,1939. Q. Do your records reflect, or do you have any information as to why the premium reductions on Mr. Clapp’s policy was discontinued? Do you have any record? A. I wouldn’t have any records and couldn’t say. Q. Was it called to your attention some time in 1939 or first part of 1940 that Mr. Clapp was not carrying his insurance? A. In January, 1940 — in order that you may understand this — all employees covered under the group plan get a low rate and it is set up so that such and such a per cent., I think, 74 per cent, of the shop employees have to be covered to lieep this in effect. And, naturally, in the office there, we are interested in keeping as many men insured as possible. We made periodical checks of copies of the pay roll and this man was found not to be covered and we called it to his attention and asked if he wanted the benefit of this protection, that was in January, 1940, and we didn’t hear anything further from Mr. Clapp. Q. Did you inform the foreman that he was not carrying the insurance? A. I wrote the foreman that Mr. Clapp was not insured. Q. That was in January, 1940? A. Yes,' sir. Q. Did you put out a second letter? A. In August, 1940, the same information. Q. After that second letter, did you personally have a conversation with Mr. Clapp ? A. Yes, he came up to the office. . . .
“Q. Did you personally request Mr. Clapp to reinstate the insurance? A. Yes, sir. Q. What did he tell you? A. He fold me, ‘I don’t know if I need insurance. I haven’t got a wife and don’t know whether I want it. I will let you know later.’ . . . Q. Did lie ever come back and let you know or make a request that the policy be reinstated? A. I heard nothing more from him. Q. Were you the man he would necessarily see? A. Yes, if he came to the office, I would be the man he would interview or talk to. ”
This witness further testified that if Mr. Clapp had permitted him to do so the insurance would have been reinstated and further: “If a man laid off on force reduction he would pay his premium in cash. If he wanted to keep it in effect he Avould come up and pay in cash. We Avould send it in for him or they could send it in direct.” The testimony further reflects that Mr. Clapp did not avail himself of this privilege on September 30, 1939. When he did return to work on October 16, 1939, he was at a new division point in Little Rock, Arkansas, and he then could have gone to the chief clerk and had his insurance reinstated, but he failed to do so.
From this testimony we think it clear that Mr. Clapp was properly notified that his insurance had lapsed and after receiving this notice declined to reinstate it.
Appellant argues that the conversation between Mr. Clapp and Mr. Metcalf, the agent of the railroad company, was incompetent. However, we think it was competent as a declaration against interest made to one not a party to 'or interested in the litigation.
Appellant also contends (quoting from his brief): “It is incumbent upon the insurance company itself to take some action before it may insist upon a forfeiture. The insurance company itself must notify the insured of the situation; it must, it seems, make demand upon the erstwhile insured and off er to the delinquent some reasonable method or plan by which his 'lapsed policy may be reinstated. ’ ’
It is conceded here that whatever effort was made to give notice to the insured, Mr. Clapp, was given to him by the railroad company, and not directly by appellee. We think it can make no difference whether this notice was given to Mr. Clapp by the railroad company or the appellee. The fact remains that he was notified by his employer, to whom Clapp had given the deduction order, that he was delinquent and that his premiums were not being paid.
As above stated, the contract here is a group policy. The rule announced in Metropolitan Life Insurance Co. v. Thompson, 203 Ark. 1103, 160 S. W. 2d 852, applies here. There we said: “We, therefore, are of the opinion that it had the right to rely and act upon the report of Lion Oil as to whether any employee had ceased to be employed, and to cancel his certificate on the ground of non-employment, in the absence of collusion or fraud between it and Lion Oil. Nor was there any duty resting upon appellant to notify Thompson his certificate had been canceled. Neither the group policy-nor the certificate require it to do so.”
We find no provision in the group policy or the certificate in the instant case requiring notice from appellee insurance company to the insured, Mr. Clapp.
In the instant case the railroad company was vitally interested in seeing that their employees maintained their insurance since, under the group policy,, it was required to have 74 per cent, of its employees insured. The evidence shows that the railroad company endeavored to induce Mr. Clapp to reinstate his insurance and keep it in force, but this he refused to do and thus caused the policy in question to lapse.
It is also undenied in this case that subsequent to September 30,1939, and beginning with October 16,1939, until his death, all of Mr. Clapp’s wages were paid to him regularly without any monthly pay roll deductions and certainly this was additional notice to him that his premiums were not being paid. In the recent ease- of Millerick, Executrix, v. Benefit Association of Railway Employees, 184 ms. op. April 27, 1942, p. 765, 160 S. W. 2d 852, we said: “. . . Mr. Millerick had the additional information that his premiums were not being paid from the fact that the monthly premium payments of $3.60 were not being deducted from his pay check on or after April, 1939, since he was drawing all the money due him. Certainly, therefore, he must have known that the railroad company was not paying his monthly premiums when all his wages were being paid to him. ’ ’
On the whole case, finding no error, the judgment is affirmed. | [
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Kirby, J.
The only question presented by this appeal is whether or not, in a suit for the partition of lands, it is proper for the court to allow the solicitor of the plaintiff a fee for his services and tax the same as costs against all the parties to the action. The question was answered in the negative in Gardner v. McAuley, 105 Ark. 439, 151 S. W. 997, since which time it is insisted that the rule has been changed by statute, act 386 of the Acts of the General Assembly, session 1921, which provides:
“Section 1. That hereafter in all suits in any of the courts of this State for partition of land, when a judgment is rendered for partition, it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to the áttorneys bringing such suit, which attorney’s fee shall be taxed as part of the cost in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.”
This statute was enacted, doubtless, to change the rule as announced in said case supra, where it was said, quoting from Cowling v. Nelson, 76 Ark. 146, 88 S. W. 913: “The utmost that can be said of the attorney’s fees is that they were part of the costs; and as to whether the court has, in amicable suits, any right to tax them as costs, is a question that the courts are divided upon, but all agree that, in adversary proceedings, they cannot be so taxed. ’ ’
It was also there said that the weight of authority-appeared to he against the taxation of attorney’s fees, even in amicable partition suits, unless the partition resulted solely from the services of the solicitors for one of the parties,- and such services were accepted by the other parties; and “in adversary suits there is no ground for taxing the fees of the solicitor of one of the parties against the other parties, and the doctrine of allowance of attorney’s fees in amicable suits of this character should, we think, be limited to those cases where the services of the plaintiff’s solicitor not only result in benefit to the whole subject-matter of the litigation, but are accepted and acquiesced in by the other parties. The rule does not apply where all of the parties appear by their respective solicitors and the proceedings are conducted through their joint efforts.”
Cyc says: “The general principle underlying the statutes authorizing allowances to be made in partition suits for the services of attorneys is that, irrespective of the person in fact employing the attorney, his services were necessary to the conduct of the proceeding and therefore were beneficial- to all the parties; and, so far as they were such, are equitably chargeable against’ all. This is ordinarily true of the services of plaintiff’s attorney, who, in bringing the action and in his antecedent investigations and in every step he takes, unless it be in the trial of contested issues as to title, works for the benefit of all the parties. If a defendant has, or in good faith believes he has, a good and substantial defense to the action, and employs an attorney to present it, such defendant is not answerable for any part of the fees of complainant’s attorney.” 30 Cyc, page 299.
The language of the act is broad and comprehensive, providing that in all suits in any of the courts of the State for partition, or where a judgment is rendered for partition, “it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to the attorneys bringing such suit, which attorney’s fee shall be taxed as part of the cost in said canse, and shall be'paid pro rata as the other costs are paid, according to the respective interests of the parties to said suit in said lands so partitioned.” While this language appears all-inclusive and t*o authorize the court rendering the judgment or decree for partition to make ah allowance of a reasonable fee, to be taxed as part of the costs in all suits for the partition of land, to the attorneys bringing such suit, it is not mandatory, and leaves the court the discretion to determine the cases in which such allowance should properly be made.
Certainly it would not be just or equitable to require the appellants, who owned the seven-eighths interest in the land partitioned, who recognized the necessity for employment of, or preferred to be represented by, an attorney of their own selection, in the suit which may be regarded adversary instead of amicable, to pay the fee of plaintiff’s attorney and also their own. It is true the chancellor found that the attorney bringing the suit fully developed all rights and interest of both plaintiffs and defendants, and was in no wise aided or assisted by the defendants or their counsel in protecting and ascertaining the rights of all parties, plaintiffs and defendants, but appellants evidently believed it necessary to do so, and had the right to employ an attorney of their selection to represent them and protect their rights in the litigation, without being mulcted into the payment of the fee of opposing counsel as costs in the case.
We are of opinion that under a proper construction of the act the court was not warranted in requiring the defendants in an adversary proceeding, who were represented by their own counsel, to pay the fee of the attorney bringing the'suit for partition as costs of the litigation on the rendition of judgment for partition. There is no great unanimity of opinion in the courts of other jurisdictions in the construction of statutes of like kind. The following cases are cited in harmony with our holding: Brower v. Rosenbaum Little, 125 Miss. 87, 87 So. 130; Hoffman v. Smith, 61 Miss. 544; Wainscott v. McBroom, 203 Ky. 634, 262 S. W. 961; Seeburger v. Seeburger, 325 Ill. 47, 155 N. E. 763; Jones v. Young, 228 Ill. 374, 81 N. E. 1042;. Hemingray v. Hemingray (Ky.) 96 S. W. 574.
It'might not be so in all adversary proceedings for partition, the court having the discretion to determine in which it should be done, but it is only in amicable suits for partition, or when the services of plaintiff’s solicitor result in benefit to the whole subject-matter of the litigation, or is accepted and acquiesced in by the other parties, that the court can, as a, matter of course, tax the reasonable attorney’s fee of the party bringing the suit as costs in the case, to be paid pro rata as the other costs are paid, according to the respective interests of the parties to the suit in the lands partitioned.
For the error designated in taxing the fee of the attorney bringing the suit as costs of the case against appellants, the decree is reversed and the cause remanded, with directions to distribute the proceeds of the sale of the partitioned lands according to the interest of the parties without deduction of any part of the attorney’s fee as cost of the litigation, and for'other proceedings in accordance with the principles of equity and not inconsistent with this opinion.
Justices Wood, Humphreys and MoHaney dissent. | [
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Wood, J.
On the 10th day of March, 1924, J. H. Meek was appointed receiver in a ease pending in the chancery court of Ouachita County, in which Frank W. Lowe was plaintiff and Gordon Ingalls and others, including the Oil Fields Corporation, were defendants. J. H. Meek duly qualified as receiver by taking the oath and executing a bond as such receiver in the sum of $100,000, which had been fixed by the court in that sum. As a result of the litigation, the Oil Fields Corporation was adjudged to own certain properties, consisting of oil and gas leases, producing oil wells, oil in storage, and equipment of the leases. As receiver, Meek was directed to take an inventory of the property and to continue the’business of managing and operating the property during the litigation, and was authorized to do any and all acts to properly conduct such business under the orders and directions of the court. Among other directions was the following:
“The receiver is ordered and directed to make a report of all his acts as receiver herein, on or before the first day of each succeeding month hereafter, said report to be filed with the clerk of the Ouachita Chancery Court, where it shall remain and be in the files of said court, subject to the inspection of all parties in interest.”
On the 19th day of May, 1924, the receiver filed a report, in which he had made an inventory of the assets and liabilities of the Oil Fields Corporation, and stated the total value of the property involved in the litigation to be $311,855.29, against which were bills and accounts payable in the sum of $85,934.03. In this inventory the oil storage was estimated at 190,523.66 barrels, of the value, at that date, of $1 per barrel, which the receiver was disposing of, the same being run through the Standard Pipe Line Company at the rate of 5,000 barrels a day. The total assets above included accounts receivable in the sum of $80,281.91, $75,000 of which the receiver reported was due from the Arkansas Pipe Line & Navigation Company, which was of remote and doubtful value, as that company was in a state of bankruptcy. Among other items the receiver reported that the McKenzie and Laney leases were producing 800 barrels of oil per day, of the value of $1 per barrel. The report is too voluminous to set out in detail, and it is unnecessary to do so. The above are the salient features thereof. The court approved the report, embracing the inventory of the property, on May 19, 1925.
The first monthly report embraced the operations of the receiver from March 11, 1924, to March 31, 1924. In this report the receiver stated that he expected to run from 100,000 to 125,000 barrels per month, pipe-line oil, at $1 per barrel, during the month of April; that the leases in his hands were making on an average from 800 to 1,000 barrels of oil per day, and he stated that he would thereafter make regular monthly reports and file the same with the clerk of the court. The receiver thereafter made reports covering his management each successive month to and including July, 1925. The last report showed receipts for the month of July in the sum of $41,809.99, and .the report for the month of April, 1925, showed that the receipts were $24,569.08.. The report ending July 31, 1925, included an “accumulative trial balance for the general ledger period, ’ ’ showing the debits and credits to be $404,109.61. This accumulative trial balance showed that the oil sales were $372,176.41, gas sales $647.58, and miscellaneous earnings $4,526.81.
On August 19,1925, being the third day of the August term, the court entered the following order: “Now on this day comes the receiver herein, by his attorneys, and files herewith the report of the receiver in this cause, which is by the court in all things approved. ’ ’
The only other report that had been approved up to this time was the report for the month of October, 1924. The report for October, 1924, showed the total oil production for that month to be 28,855.43 barrels and the total sales to be $17,470.82. The record shows that the receiver filed what are designated “accumulative trial •balances” from the general ledger, for various periods from month to month. Wc have examined these statements from the receiver’s report in the record. They are so confused it would require an expert accountant to determine their accuracy. The last report of the receiver, embracing the period ending December- 31, 1925, and the trial balance from the general ledger ending at that time, showed the receipts to be $446,863.83, and a supplemental report vas filed in vacation showing that, after all receipts and disbursements, the receiver liad on hand at that time $27,456.51.
The final report is too lengthy to set forth in detail. It states that the receiver took charge of the property on March 24, 1923. Then there is a general statement to the effect that he had filed from month to month current financial statements, and a general statement to the effect that the receiver had managed the properties intrusted to his hands to the best of his ability, in a business-like manner, and that he had turned over all the property in his hands under the orders of the court to the Oil Fields Corporation. He refers to the cash on hand as shown by his report of December 31, 1925, and the remainder of the report explains in detail the various items set forth in his “accumulative trial balance from the general ledger,” covering the period ending December 31, 1925, and referred to as Exhibit A, with schedules attached numbered from 1 to 10 inclusive.
The Oil Fields Corporation, on January 25, 1926, filed exceptions to the final report of the receiver. The exceptions are paragraphed and numbered from one -to twelve, inclusive, the substance of which we will set forth.
No. 1 denies that the receiver took charge of the property on March 24,1924, but alleged that he took charge on or about March 11, 1924.
No. 2 consists of general denials of the allegations of the report as to the faithful and correct manner of the management of the' property, and denies that the statement or exhibit attached to the receiver’s report showed the amounts of cash the receiver had on hand on December 31, 1925.
No. 3 sets up that, at the time the receiver took charge, the oil in storage amounted to fully 500,000 barrels and that the wells were producing at least 1,500 barrels per day; that these wells continued to produce during the entire period of his receivership more than 1,000 barrels per day, and that the amount of oil produced during his receivership was fully 1,130,000 barrels, whereas the receiver reported that he had received only 489,619.78 barrels. It was alleged that it was the duty of the receiver to keep an accurate daily record of the oil in storage and that produced, which the receiver had not done, and asked that such record be produced.
No. 4 alleged that the receiver had failed to return the furniture, fixtures, books and records of the Oil Fields Corporation in his possession as he had been directed to do by order of the court. It was alleged in this paragraph that, if the receiver procured an order of sale of this furniture, it was without notice to the corporation, and that each of the orders made by the court approving the action of the receiver in any manner was without a hearing and without notice to the corporation; that these orders of the court, being without notice or hearing, were obtained for the purpose of being used as a shield upon final settlement of the receiver.
No. 5 begins with general allegations that the manner of bookkeeping by the receiver was defective and therefore the books do not show the funds that were recklessly given away, belonging to the defendant, and do not show the necessary expenses incurred by him. This paragraph specifies the following items: $20 given away as pretended-rentals due on the Telford lease for the year ending December, 1926, when the lease expired by its terms December, 1925; for stenographer and bookkeeper $6,387.76; J. H. Meek $2,750; H. C. Compton, $500; L. J. Wardlaw $500; H. C. Compton $500; L. J. Wardlaw $500; H. C. Compton $250; L. J. Wardlaw $250; Compton & Wardlaw $500; Compton & Wardlaw $2,000; Smead & Meek $150; Smead & Meek $6,000; Smead & Meek $2,000; Smead & Meek $4,000; L. B. Smead $1,800; all of which items and many others, it is alleged, were an improper charge against -the funds in the hands of the receiver, and, if said receiver obtained an order of the court directing said payments, he did so without presenting the facts, or informing the court in the premises, and without any notice to this defendant, and the procuring of such an order from the court by said receiver was a violation of his duty and a fraud upon this defendant; that most of the items specified are for compensation for pretended legal services rendered the receiver, and this defendant alleges that said attorneys instituted or prosecuted or defended no suits of any kind whereby the estate in the hands of the receiver was benefited in any manner whatsoever. This paragraph then sets forth that the only litigation pending against the receiver for the property in the hands of the receiver was a proceeding in bankruptcy in the Federal court at Texarkana, which was successfully defended by Albert L. Wilson, general counsel of the defendant, and all any attorney for the receiver had to do was to copy motions filed by said Albert L. Wilson and submit them to the court upon the proof and argument already made by the said Albert L. Wilson; that one member of the firm of said Smead & Meek is a brother of the said J. H. Meek, receiver, and the other member of said firm is L. B. Smead, to whom the $1,800 is reported to have been paid.
No. 6 sets out specifically that the receiver had not fully paid the sum of $1,800 on the McKenzie lease and the sum of $3,224.20 on the Laney lease, which he reports had been fully paid; that a lien was claimed on these properties for the sum of $135, which, if the receiver had paid to the wrong person, would result in a loss of that sum to the defendant.
No. 7 charges specifically that a large quantity of two-inch pipe, worth $2,000, was taken possession of by the receiver, under order of the court, and was subsequently sold by liim without any order of the court, and was not listed in the receiver’s inventory. This paragraph also alleges that the receiver had permitted other parties to use an engine belonging to the defendant, .worth more than $1,000, and to remove same from the property, for which the receiver had failed to account.
No. 8 alleges that the receiver had permitted large sums of money to be kept on deposit in the First National ■Bank at Camden on which he should have 'collected at least 4 per cent, interest for the benefit of the defendant; that the receiver was a director in this bank, and had failed to collect any interest on these deposits, or, if he had collected the same, he had appropriated the same to his own use and failed to charge himself therewith. This paragraph asks that the receiver be required to set forth the rate of interest the bank pays on time deposits, and that he be required to charge himself with the interest on the daily balance on deposit to Ms credit as receiver at the rate of 4 per cent, per annum.
No. 9, in substance, charges that, at- the time the receiver took possession of the property, the Arkansas Pipe Line & Navigation Company was indebted to the defendant in the sum of $75,000; that at that time the receiver herein was also the receiver of the pipe-line company; that a bankruptcy proceeding was instituted against the pipe-line company, and J. H. Meek turned over all property and assets of that company in his hands as receiver of such company into the bankruptcy proceeding about the time he was appointed receiver for this defendant company; that the pipe-line company owned property at that time of the value of $480,000, and its total indebtedness would not exceed $285,000; that the pipe-line company was not insolvent, and could not be properly adjudicated a bankrupt; that J. H. Meek, as receiver herein, failed to present the facts to the bankruptcy court, as it was liis duty to do, and that, by his willful neglect to defend against the bankruptcy proceeding, he caused a loss to the defendant herein of its entire account against the Arkansas Pipe Line & Navigation Company in the sum of $75,000, except the sum of $3,476, which he claims to have received from the trustee in bankruptcy, causing a loss to the defendant, with which the receiver should be charged.
Paragraph No. 10 alleges that the receiver took credit for $622.79 as an uncollectable account; that such account is not charged to him, and therefore he should liave no credit for the same. The balance of this paragraph is a general exception to each item of the receiver’s report as contained in Exhibit A with its schedules, except the $50,000 advanced to the defendant.
Paragraph No. 11 alleges that the receiver willfully had well No. 9 on the McKenzie lease sealed off after it had encountered a valuable flow of natural gas, which the receiver should have utilized for the benefit of the defendant, instead of paying the sum of $2,000 per month for gas from other sources, and that, by his neglect in this particular, the defendant had suffered several thousand dollars ’ loss.
Paragraph No. 12 charges the receiver with willfully conducting himself in a manner hostile to the rights of the defendant and with entering into a conspiracy with others to elect a board of directors favorable to the wrecking of the corporation and sacrificing, its property at a forced sale. Among the items of misconduct charged against the receiver in this paragraph are the following: “That J. T. Burney, to whom he claims to have paid $10,-482.95, expended much of his time looking after the personal affairs of said J. H. Meek, and habitually neglected the affairs of the property and business in the hands of the receiver; and that said receiver should be charged with a large part of said $10,482.95, -and a large part of the $124,753.80 mentioned in schedule 5 as operating expenses, and with the entire amount of $8,000 claimed by said J. H. Meek in schedule No. 7, for the reason that he has been so reckless, extravagant and unfaithful to his trust that he has forfeited his right to any compensation. ”
Paragraph No. 13 contains the prayer of the defendant for a referee and the taking of testimony covering all acts • of the receiver, and the report of the same, and that the receiver be required to pay the defendant all sums belonging to the defendant now in his hands, and that, upon a final hearing, he be required to pay such additional sums as the court shall find to be due from him upon a strict accounting, etc;
The receiver filed a demurrer .specifically as to each paragraph of the complaint, but general in form, alleging that each of such paragraphs “does not contain statements sufficient to constitute a valid exception to the final report of J. H. Meek, receiver.” The cause was submitted on a demurrer and the court found that the exceptions of the Oil Fields Corporation to the said reports of J. PI. Meek, receiver, failed to state facts sufficient to constitute an exception to said report, and that said demurrer therefore should be sustained. The court thereupon entered a decree overruling the exceptions and confirming the report of the receiver and ordered the receiver to pay over to the corporation the sum of $23,931.06. The corporation appealed from the decree overruling its exceptions, and the receiver appealed from the decree directing him to'pay over the sum specified to the corporation.
1. The appellee, Meek, filed a motion to affirm the cause on appellant’s appeal because of an alleged failure by the appellant to comply with Rule 19 of the Supreme Court. Rule 19 requires, among other things, that, in chancery cases, “the whole of the evidence shall be embodied in tbe transcript, unless the parties shall agree upon an abbreviated statement thereof.” Appellee -sets up in Iris motion, containing eighteen paragraphs, that certain orders, specifying them, were made by the chancery court, which show on.their face that oral testimony was heard upon which the orders were based andthat none of this evidence is brought into the record. Counsel for appellee contend that it is impossible to predicate error on the part of the trial court in overruling the appellant’s exceptions to the receiver’s report unless the testimony is brought into this record upon which the various orders-were made by the trial court. A complete answer to this contention is that the cause was heard on demurrer to the appellant’s exceptions. The final report of the receiver is not verified. The appellant did not move to have the same verified. It is therefore analogous to an unverified complaint of the receiver asking that his report be confirmed and his account allowed. The appellant’s exceptions thereto were duly verified and were tantamount to an answer denying and challenging the matters set forth in the report to which the exceptions were directed.
In Johnson v. Central Trust Company, 159 Ind. 605, 65 N. E. 1028, it is said: ‘ ‘ The report of a receiver and an exception filed thereto stand as the complaint and answer of the respective parties. ’ ’ See cases there cited; see also 34 Cyc. 454-456. The appellee’s demurrer to appellant’s exceptions admitted as true all the facts set forth in the several paragraphs of these exceptions that were well pleaded. Green v. Williams, 169 Ark. 1198, 278 S. W. 5; Hudson v. Simonson, 170 Ark. 243, 279 S. W. 780. On the hearing of the demurrer no testimony could, or should, have been introduced. The demurrer tested the sufficiency of the exceptions as a pleading only, and it was not necessary or proper to adduce testimony to establish facts well pleaded that were admitted by the demurrer. The case of Remmel v. Collier, 93 Ark. 394, 125 S. W. 422, 130 S. W. 167, upon which the appellee relies to sustain his motion to dismiss, has no application t.o this record. That was a case where, notwithstanding there was a demurrer to the complaint, which the-court passed upon, the whole case was nevertheless submitted to the court on the merits as well as the sufficiency of the pleadings. To be sure, in that case it was the duty of the appellant to bring the whole record before this court in order to enable the court to determine whether the decree of the court below on the testimony adduced at the hearing on the merits was correct. If such were the case here the contention of appellee’s counsel would be sound, but such is not the case. Appellee’s motion therefore to confirm the decree, or to dismiss the appeal, is not well taken, and is overruled.
2. This brings us to a consideration of the question as to whether or not the court erred in sustaining the demurrer to the appellant’s exceptions and in entering its decree overruling these exceptions and approving and confirming the receiver’s report. We have set out above the substance of the different paragraphs of the exceptions to the receiver’s final report. It would unduly extend this opinion and we deem it unnecessary to refer specifically again to each paragraph. Some of them unquestionably correctly pleaded facts which show that the court erred in confirming the report of the receiver. The court’s ruling reached to each and every paragraph and overruled the exceptions as a whole. This was manifestly erroneous. -Some of the paragraphs are too general in their statements, and, on remand of the cause, the court .should require the pleader to state facts and not mere conclusions. But other paragraphs, and most of them, do state facts and not mere conclusions of the pleader. Some of the paragraphs state the exceptions in too broad and general terms, but they nevertheless state good reasons why the report of the receiver should not have been confirmed by the court, and such of these paragraphs as stated the exceptions defectively the court should have required the pleader to make more specific, and not overruled the exceptions as a whole. In this connection the language used by the author of the chap ter on “Receivers” in 34 Cyc. at page 456, is exceedingly apposite, towit:
“The report of a receiver, and an exception filed thereto, stand as the complaint and answer of the respective parties; the mere pro forma ex parle settlement of an important receiver’s account, where creditors are dissatisfied therewith, is held to be an indiscretion, and his account will not be confirmed by the court without a reference, and over objection, when the items of expenditures are not accompanied by voucher or supported by other proof.. So, on the proceedings before the master the burden is upon the accountants to justify and vouch the accounts which they had rendered, so far, at least, as they were called in question by exceptions; the receiver has been held to great strictness in this respect, and, upon failure to produce vouchers for disbursements, required to give .a satisfactory reason for such failure.”
We have examined all of the receiver’s reports sufficiently to convince us that the chancellor erred on demurrer to the exceptions in sustaining the demurrer and in confirming the final report of the receiver. The chancellor, instead, should have granted the prayer of the appellant as set up in the 13th paragraph of the exceptions, and should have appointed a referee to take testimony concerning the facts alleged in the appellant’s exceptions, and directed him to overhaul the final report of the receiver in connection with the various other reports, both those that had been previously approved and those that had not been approved, to the end that the receiver might prove, if he could, that the facts correctly pleaded in appellant’s exceptions were untrue; or, if they were true in fact, that the final report might be corrected and confirmed in conformity with the established facts.
The decree of the trial court is therefore reversed, and the cause is remanded with directions to overrule the appellee’s demurrer and for further proceedings according to law and not inconsistent with this opinion. | [
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Humphreys, J.
Appellants were arrested for gaming, upon information of the prosecuting attorney, filed before a justice of the peace in Crawford County. The information charged them with unlawfully and willfully betting the sum of one dollar in a certain game of hazard and skill with cards, and commonly called poker. They were fined $10 each, and appealed to the circuit court, where, upon a trial de novo, they were again convicted, and fined $10 each, from which is this appeal.
Their first assignment of error for a reversal of the judgment is that the evidence was insufficient to sustain the verdict and judgment. The sheriff and one of his deputies had observed a number of 'boys frequenting a houseboat on the river, to the right of a little island in said county. He and one of his deputies entered the boat to ascertain the cause. As they entered, Albert Honea saw the sheriff, snapped his fingers at the other boys, and said two or three times, “Let’s go. to town.” The boys were shuffling around, and one of them threw a deck of cards into the river. Others were putting money into their pockets. The sheriff found two or three unopened decks of cards on a shelf in the boat. Albert Honea asked the sheriff who had tipped them off.
Over the objection and exception of appellant, the prosecuting attorney was permitted to ask the sheriff whether the arrangement and equipment in the boat were the same he had found when he had raided other poker games. The sheriff answered that they were identical. The admission of this testimony is urged as a ground for reversal of the judgment. We think the testimony of the sheriff was admissible as to the similarity of the paraphernalia in the boat to that he had discovered when he raided other poker games.
This testimony, together with the circumstances detailed above, was substantial evidence tending to show that appellants were guilty of playing poker,, contrary to the statute inhibiting same.
Appellant also assigns as reversible error the refusal of the court to give- instructions numbered 1, 2 and 3 requested by him. Instructions 1 and 2 are fully covered by the court in instruction No. 5. There was no testimony introduced concerning the bad character, of appellants, so requested instruction No. 3, telling the jury to disregard whatever knowledge they had or whatever proof had been introduced relative to the character of appellants, had no place in the case, and was properly refused.
No error appearing, the judgment is affirmed. | [
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Smith, J.
Appellant was tried under an indictment which charged that, with malice aforethought and after deliberation and premeditation, he had shot and killed one George Miller. The jury returned the f ollowing verdict: “We, the jury, find the defendant, A. T. Jones, guilty as charged in the indictment and fix his punishment at death-in the electric chair.” Upon this verdict appellant was sentenced to death, and from that judgment is this appeal.
For the reversal of this judgment it is strongly urged that the court erred in refusing to give appellant’s counsel a reasonable opportunity to study and analyze the report made by the officials of the State Hospital for Nervous Diseases upon the question of appellant’s sanity. As that time has now been afforded it will be unnecessary to decide that question; but as the report will, no doubt or very probably, be used at the retrial of the cause we will discuss the objections, made to it. ■
There was passed, on December 17, 1838, which was shortly after the admission of this state into the Union, an act, which has since been unchanged and which now appears as § 4041, Pope’s Digest, reading as follows: “The jury shall, in-all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of crime shall be found by the jury.”
This act has been applied in many cases, four of which appear in the 26th Arkansas Beport: Thompson v. State, 26 Ark. 323; Allen v. State, 26 Ark. 333; Trammell v. State, 26 Ark. 534; Neville v. State, 26 Ark. 614.
It was held in all these cases, and in all subsequent cases which have cited the section quoted, that its provisions are mandatory, and that the death sentence may not be imposed upon one convicted of murder unless the jury found that the accused was guilty of murder in the first degree. In addition to the cases above cited the following are to the same effect: Simpson v. State, 56 Ark. 8, 19 S. W. 99; Porter v. State, 57 Ark. 267, 21 S. W. 467; Carpenter v. State, 58 Ark. 233, 24 S. W. 247; Carpenter v. State, 62 Ark. 286, 36 S. W. 900; Lancaster v. State, 71 Ark. 100, 71 S. W. 251; Clark v. State, 169 Ark. 717, 276 S. W. 849; Hembree v. State, 68 Ark. 621, 58 S. W. 350.
In the case last cited, the Hembree case, this question, and no other, was discussed, and the question was regarded as so definitely settled that the case is not reported in the state reports, and appears only in the Southwestern Beporter.
Thus the law stood until the rendition of the opinion in the case of Bettis v. State, 164 Ark. 17, 261 S. W. 46, in which case it was said: “Here the jury in the Buck case did not expressly name the degree of murder in its verdict of which it found Buck guilty, but it found him guilty and fixed his punishment at death, thus showing that they'found and intended to find him guilty of murder in the first degree, for murder in the second degree is not punished by death.”
The capital sentence imposed in that case was af: firmed; but the opinion makes no reference to any of the earlier cases above cited. The opinion does recite that there was no bill of exceptions in the case, and for that reason as the opinion states the presumption was indulged that the jury had been, properly instructed and the verdict returned no doubt conformed to the instructions of the court as to the form of verdict to be returned in the event that the defendant was found guilty of murder in the first degree.
Such instruction and direction as to the form of the verdict was given in the instant case. The charge as to the form of the verdict was as follows: “If, from all the evidence in the case, you find the defendant guilty of murder in the first degree, the form of your verdict should be: ‘We, the jury, find the defendant, A. T._Jones, guilty of murder in the first degree, as charged in the indictment, and fix his punishment at death in the electric chair.’ Or, if you exercise the option that is conferred by the law on you, you may make the penalty life imprisonment in-the state penitentiary.”
Notwithstanding this specific direction as to the form of verdict to be used in the event the defendant was found guilty of murder in the first degree, the jury did not find the degree of the homicide.
If it be said that the imposition of the death penalty shows what was intended’, it may be answered that a capital sentence may not be imposed by intendment. The mandatory provision of the statute is that to impose that sentence there must be a finding that the defendant was guilty of murder in the first degree. However technical this may appear, it is nevertheless the requirement of the law. Human life is so tenderly regarded by the law -that it may not be taken upon a conviction under an indictment charging the crime of murder unless, by the jury’s verdict, the crime was found to be murder in the first degree.
The testimony shows, although the indictment does not allege, that the homicide was committed in the attempt to commit the crime of robbery, and the statute provides that a homicide so committed shall be murder in the first degree. But that statute (§ 2969, Pope’s Dig.) does not make the provisions of § 4041, Pope’s Digest, any the less mandatory.
Subsequent to the opinion in the Bettis case, supra, the opinion in the case of Wells v. State, 193 Ark. 1092, 104 S. W. 2d 451, was delivered. In that case the accused was indicted for murder in the first degree, alleged to have been committed by the administration of poison, and the accused entered a plea of guilty to the crime charged; notwithstanding that plea a jury was impaneled to find the degree of the homicide, as required by § 4041, Pope’s Digest.
The court charged the jury in that case that “The defendant in this case has entered his plea of guilty to the charge against him in the indictment; that is, of murder in the first degree. The law provides in such cases that the jury shall be empaneled to assess his punishment. ’ ’ In holding this instruction error it was said: “While it is true that appellant was indicted for murder in the first degree by poisoning which, under the statute, is made murder in the first degree, § 2343, Crawford & Moses’ Digest, still the instruction above set out was error under said § 3205, above quoted '(4041, Pope’s Digest), and the verdict of the .jury was bad in that it failed to find the degree of the crime. By § 3205, ‘But if the accused confess his guilt, the court shall empanel a jury and examine testimony, and the degree of crime shall be found by such jury,’ the court’s instruction would not leave it to the jury to find the degree of the crime. After telling the jury that the defendant had entered his plea of guilty to murder in the first degree, the court told the jury that it was ‘empaneled to assess the punishment.’ And again that the only question for them to determine was ‘that of the punishment to be imposed.’ And again he told the jury that it was their ‘duty now to retire and fix the punishment.’ The statute provides that ‘the degree of crime shall be found by such jury,’ not merely to fix the punishment or assess the punishment. The instructions in effect told the jury that the defendant was guilty of murder in the first degree and that they could fix his punishment either at death by electrocution or life imprisonment. This was error. The verdict of the jury was defective in that it failed to find the degree of the crime. ’ ’
That opinion cited a number of cases hereinabove cited, and quoted from the case of Lancaster v. State, supra, as follows: “ ‘This statute was no doubt overlooked by the circuit judge, for under it this court has several times decided that a verdict upon an indictment for murder which does not find the degree of murder is so defective that no judgment can be entered upon it.’ ”
In the case of Porter v. State, 57 Ark. 267, 21 S. W. 467, Chief Justice Cookrill said: “The object of the statute was to make sure that the accused should not be subjected to capital punishment unless the jury specially find that he is guilty of the first degree of murder. ’ ’
The opinion in the case of Fagg v. State, 50 Ark. 506, 8 S. W. 829, was written by the same learned judge. In that case the defendant was indicted and tried for murder, and the jury returned the following verdict: “We, the jury, find the defendant guilty of manslaughter, but cannot agree upon the punishment.” Upon this verdict the court pronounced sentence for voluntary manslaughter, and that action was assigned as error, for the reason that the verdict did not declare whether the defendant had been found guilty of voluntary manslaughter or involuntary manslaughter. In affirming that action it was said that there was not a scintilla of evidence that the appellant, if guilty at all, was guilty of involuntary manslaughter. Indeed, the contention of the defendant was that the killing was either murder in the first degree or justifiable homicide, and that the jury could not legally return a verdict of manslaughter. But it was said that the accused had acquiesced in that part of the charge at a time when it seemed favorable to him, and that he could not be heard to complain now. No instruction on the question of involuntary manslaughter appears to have been given. In affirming the action of the trial court in sentencing appellant for voluntary manslaughter the Chief Justice said: “But it is said the court erred in passing sentence on the defendant as for voluntary manslaughter. The verdict did not designate the degree of manslaughter, or assess the punishment. The duty of fixing the penalty devolved, therefore, upon the court. Mansf. Dig., § 2308. On conviction of murder the statute requires the degree of the offense to be found by the jury. Mansf. Dig., § 2284; Thompson v. State, 26 Ark. 323; Ford v. State, 34 Ark. 649. It is not so as to manslaughter — it is only necessary that the court should have a certain guide to the intention of the jury. Verdicts receive a reasonable construction in order to reach the .jury’s meaning, and when that is found, they are enforced as though the intention was express.”
It is easily conceivable that a jury might, find .that, although an accused was not guilty of murder in the first degree, he should, nevertheless, be executed. A general finding- that the defendant was guilty of murder as charged in the indictment would permit this to be done if the statute did not require a finding as to the degree of the homicide. Section 4041, Pope’s Digest, was passed to deprive the jury of this power, and the law is that the death sentence may not be imposed unless, as Judge Cockrill said in the Porter case, supra, the jury “especially find” that the accused is guilty of murder in the first degree.
We may not ignore the statute (§ 4041, Pope’s Digest) by saying that it is technical, or highly technical, nor may we ignore it in a particular case where we feel assured that the jury found the accused guilty of murder in the first degree, but did not reflect that finding in the verdict. This for the reason stated by Justice Hart in the case of Banks v. State, 143 Ark. 154, 219 S. W. 1015, that ‘ ‘ The statute expressly requires the jury to ascertain the degree in all eases of murder. Its terms are imperative. The court has uniformly construed it to be mandatory, and, as before stated, it has become a fixed part of our criminal jurisprudence. It is the duty of courts to enforce legislative provisions when the legislature acts within constitutional limits; and a depárture by the courts from imperative rules established by the legislature for the protection of all in order to meet the exigencies of particular cases is an evil not to be thought of, let alone to be acted upon.”
It follows, from what we have said, that the judgment must be reversed and the cause will be remanded for a new trial. Carpenter v. State, 62 Ark. 286, 36 S. W. 900.
In view of the new trial we take occasion to discuss the report of the officials in charge of the State Hospital for Nervous Diseases, which, in all probability, will again ■be offered in evidence. Other questions raised in the brief áre pretermitted, as they are not likely to again arise.
Anticipating- that the defense of insanity would be interposed, appellant was sent to the State Hospital for Nervous Diseases for examination and report. The report made did not conform to the requirements of the statute providing for this examination, in that, while it covered the appellant’s mental condition at the present time, it made no finding as to his probable mental condition at the time of the commission of the homicide. The statute provides: “A written report prepared by the physician or physicians employed by the State Hospital shall indicate separately the defendant’s mental condition during the period of the examination, and his probable mental condition at the time of the alleged offense. This report shall be certified by the superintendent or supervising officer of the State Hospital under his seal, or by an affidavit duly subscribed and sworn to by him before a notary public who shall add his certificate and affix his seal thereto.” Section 11 of Initiated Act No. 3, Acts 1937, p. 1384, appearing as § 3913, Pope’s Digest.
However, as the report, although not sworn to as required by law, nor certified under the seal of the supervising officer of the hospital, was offered in evidence by appellant, he is.in no position to complain that it did not conform to the provisions of the statute above quoted; but if the report is to be used at the retrial it should be made in conformity with the law.
The statute does not undertake to make the certificate independent evidence; nor could it' do so, for the reason that § 10 of art. 2 of the constitution provides that the accused shall be “confronted with the witnesses against him, ’ ’ to the end that they may be cross-examined by him. Section 12 of Initiated Act No. 3, supra (§ 3914, Pope’s Digest), provides that “The physician or physicians who prepared the report shall be summoned as witnesses at the trial at the order of the trial judge or at the request of either party, and if summoned shall be examined by the court and may be examined by either party, and a copy of the written report hereby required shall be given in evidence in every case in which the fact of sanity is an issue at the trial.”
The purpose of this statute is to have the .accused, whose sanity is questioned, examined in advance of his trial by competent and impartial and disinterested physicians, who shall make a report upon the sanity of the accused, subject to the right of either the prosecution or •the defense to have the physicians who prepared the report summoned as witnesses at the trial for examination and cross-examination. Brockelhurst v. State, 195 Ark. 67, 111 S. W. 2d 527.
The trial court offered, in this case, to have process issued for the physician who made the report, and this must be done when objection to the use of the report is made, to comply with the provision of the constitution above quoted, that the defendant be “confronted with the witnesses against him.” However, the report might be offered as original testimony when this is done by consent or without objection.
For the error indicated, the judgment is reversed, and the cause remanded for a new trial. | [
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.Holt, J.
Eliza James (colored) died intestate January 6, 1941, at approximately eighty years of age. She left surviving eight adult children. Her husband died July 12, 1939.
In 1926, she purchased lot 7, block 7, Davis Addition to North Little Pock, Arkansas. The consideration for this property was $1,500, of which $400 was paid by Eliza James in cash and the remainder was evidenced by fifty-five notes in the.amount of $20 each. September 7, 1940, Eliza James executed a deed conveying this property to her daughter, Carrie Humphrey, one of the appellees here.
May 26, 1941, complaint was filed in the Pulaski chancery court in which seven of the surviving children were named plaintiffs and Carrie Humphrey was named defendant. In the complaint it was sought to set aside and cancel the deed which Eliza James had executed iu favor of her daughter, Carrie Humphrey, on the grounds: (1) That Eliza James at the time she executed the deed was mentally incompetent; (2) that appellee. Carrie Humphrey, obtained the execution of the deed through fraud, imposition and duress; and (3) that plaintiffs bought said property “by their individual contributions, paid for the same, with the understanding and agreement among all of the heirs that Eliza James, the mother, and Lida James, the sister, who was to make her home with Eliza James and care for the mother, should have a home and the use of the property so long as each should live and, after the death of Eliza James,Lida James was to hold the property as trustee for the heirs and the property should then become the joint estate and property of the heirs and subject to their ownership and disposition.”
Hattie Wilson and Flake James, at their request, wrore permitted to withdraw as plaintiffs and as defendants filed separate verified answers to the complaint in wdrich they admitted that their mother executed the deed in question to their sister, Carrie Humphrey, appellee, denied all other allegations in the complaint, and specifically alleged that their mother was mentally competent when she executed the deed in question; that she was not influenced by fraud, imposition, or duress, but understood fully what she was doing and that she desired “to deed this property to her daughter, Carrie Humphrey, because of the financial assistance and personal attention rendered by Carrie Humphrey to her mother, Eliza James.”
. Appellee, Carrie Humphrey, filed separate answer admitting the execution of the deed conveying the property to her, but denied all other material allegations.
Upon a trial, at which the testimony of nineteen witnesses vras heard, the court found the issues in favor of appellees and this appeal followed.
Appellants first argue that Eliza James was mentally incompetent, due to advanced age and physical infirmities, to execute the deed in which she conveyed the property in question to her daughter, Carrie Humphrey, and that Carrie obtained the deed through fraud, imposition and duress.
The rule governing in cases of this nature has been many times announced by this court. In Atwood v. Ballard, 172 Ark. 176, 287 S. W. 1001, the rule is clearly stated in this language: “If the maker of a deed, -will or other instrument, has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing- of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interests in dealing with another is all the law requires. If a person has such mental capacity, then, in the absence of fraud; duress, or undue influence, mental weakness whether produced by old age or through physical infirmities will not invalidate an instrument executed by him.”
This court in the recent cases of Johnson v. Foster, 201 Ark. 518, 146 S. W. 681, and Pierce, Guardian, v. McDaniel, 201 Ark. 1097, 148 S. W. 2d 154, reannounced this rule.
On the record before us, while the testimony as to Eliza James’ mental capacity is in conflict, we think the preponderance thereof supports the chancellor’s finding. Two disinterested witnesses • (both white) testified on behalf of appellees. W. M. Hudson, in the real estate business in Little Rock for the past thirty years, prepared the deed in question and was present along with F. E. Sutton, another real estate man, when Eliza James executed the deed. Quoting from his testimony: “A. She seemed to be all right; I didn’t see anything wrong with her. Of course, she was feeble — more or less feeble, of course — what you would expect of anyone as 'old as she. I didn’t think she was as old as they are talking about; I thought she was about seventy-five or eighty years old. Q. But you judged her to be thoroughly capable, mentally, of signing a deed when you attested it as a notary public? A. Yes, sir, I did. I am very careful about old people, especially. I want them to know what they are doing when they sign a deed.”
F. E. Sutton testified that he was present along with W. M. Hudson at the home of Eliza James at the time she executed the deed; that “he (Mr. Hudson) read the deed over to her and she said, ‘That is exactly what I wanted,’ and signed it: She had as much sense at that time as I’ve got, and she wasn’t any more feeble than any woman of her age; she knew exactly what she was doing. ’ ’
The testimony of Carrie Humphrey, Hattie Wilson, two daughters, and Dr. Atkinson corroborated the testimony of Hudson and Sutton as to the mental competence of Eliza James. There were two other witnesses unrelated to appellee — 'Carrie Humphrey — whose testimony also tended strongly to corroborate appellees.
Twelve witnesses, including the five interested appellants, gave testimony which tended to show that Eliza J ames was mentally incompetent when the deed in question was executed. We think it unnecessary to attempt to abstract this testimony here for to do so would unduly extend this opinion. It suffices to say, however, that we find much of appellants ’ testimony conflicting within itself and not convincing. To illustrate, appellant, Ellie James, 'who contends that the property in question was to be divided equally among all the heirs upon the death of Eliza James, testified: “Q. Who is living in the house now? A. Lida McKindley and her two little girls that she promised to give the home to.”
It is also our view that most, if not all, of the evidence supports the chancellor’s finding that no fraud or imposition was practiced upon Eliza James by Carrie Humphrey in procuring the deed. We quote from the decree as follows:
“. . . Eliza'James was an elderly colored woman and, although at times weak and forgetful, she was ordinarily possessed of the average health, strength and mentality and judgment of a person of her age; that she had, for several years prior to September 7, 1940, declared it her desire that the above mentioned property be deeded to the defendant, Carrie Humphrey; that, on September 7, 1940', Eliza J ames, while in full possession of her mental faculties and fully retaining in her memory without prompting, the extent and condition of her property and fully comprehending how she was disposing of same and to whom and upon what consideration, and being mindful of all of her children and her obligations to them, and their services for her and acting without the presence of any fraud, duress or undue influence, did execute a warranty deed to lot 7, block 7, Davis Addition to North Little Rock, Pulaski county, Arkansas, to Carrie Humphrey, conveying the fee simple title to said property to said Carrie Humphrey.”
Appellant’s final contention is that they bought the property in question with their own contributions, taking title in the name of their mother and with the understanding that their mother and Lida James McKindley (a sister) should have the use of the property so long as each should live and after the death of the mother, Lida James McKindley, was to hold the property as trustee for all the heirs. 'We cannot agree with this contention.
The record reflects that at the time Eliza James purchased this property a part of the consideration, amounting to $400, was paid by her in cash, and she executed fifty-five $20 notes to cover the balance of the purchase price.
Two of the boys, McCoy James and Ellie James, testified that they paid the fifty-five notes, which their mother had executed, as they became due. Carrie Humphrey denied that these notes were paid by McCoy and Ellie, but testified that they were paid by her mother.
Appellants contend that the evidence is sufficient to establish an implied or resulting trust by reason of the fact that by agreement between them and their mother they were to pay, and did pay, part of the purchase price of the property in question. There is no contention that the evidence is sufficient to establish an express trust, there being nothing in writing to evidence it.
In Marrable v. Hamilton, 169 Ark. 1079, 277 S. W. 876, this court said: “It has become the settled doctrine of this court that, in order to constitute a result ing trust by reason of the payment of purchase money, the payment must be made at the same time or previous to the purchase and must be a part of the transaction. In other words, the payment must be prior to,' or contemporaneous with, the purchase so as to make it a part of the same transaction, and a trust will not result from payments subsequent to the consummation of the purchase. Sale v. McLean, 29 Ark. 612; Red Bud Realty Co. v. South, 96 Ark. 281, 131 S. W. 340; Hunter v. Feild, 114 Ark. 128, 169 S. W. 813.”
And in Lisko v. Hicks, 195 Ark. 705, 114 S. W. 2d 9, this court said: “The rule is that a parol agreement that another shall be interested in the purchase of lands, or a parol declaration by a purchaser that he buys for another, without an advance of money by that other, fails within the statute of frauds, and cannot give birth to a resulting trust. Bland v. Talley, 50 Ark. 71, 6 S. W. 234.”
And in Bray v. Timms, 162 Ark. 247, 258 S. W. 338, it is said: “It is a well settled principle that, while trusts resulting by operation of law may be proved by parol evidence, yet the courts uniformly require that such evidence be received with great caution, and that it be full, free and convincing. Colgrove v. Colgrove, 89 Ark. 182, 116 S. W. 190, 131 Am. St. Rep. 82; Himter v. Feild, 114 Ark. 128, 169 S. W. 813. See, also, Nevill v. Union Trust Co., 111 Ark. 45, 163 S. W. 162.”
When all the testimony before us is considered, we think it falls far short of establishing a trust relationship, as contended by appellants, by that degree of clearness and certainty of proof required under the rules announced in the decisions of this court.
On the whole case, finding no error, the decree is affirmed. | [
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Mehaffy, J.
This is a suit brought by W. E. Win-ship against G. G. Baggett, C. G. Graham, G. L. Gano and Mary Reynolds, to foreclose a mortgage securing payment of a certain note, and a decree was entered against each of the defendants, Gano, Baggett and Graham, for $3,965.60, with interest.
The Continental Supply Company had intervened, and judgment was given in its favor against the defendants and each of them for $733.58, with interest, and the plaintiff recovered $3,965.60. The decree was entered November 4,1926. The decree, as. entered on the record, declared a lien on the land described in. plaintiff’s complaint, and ordered the sale of said land to pay the amount of said judgments. Thereafter it was discovered that the decree which was entered on the record was for the sale of the land, when it should have been for the sale of oil and gas leases. The record recites that, on December 7, 1927, a supplemental decree was entered correcting the error evidently made by the clerk in recording the decree. Of course the date on this record is incorrect. It is not yet December, 1927. Counsel for the appellant state that this supplemental decree was at a subsequent term of the court, and that this date should be February, 1927, instead of December. The record, however, does not in any manner show whether this was at the same or a subsequent term of court. If the supplemental decree was recorded in December, it was at the same term of court that the case was tried; if it was in February, that would be a subsequent term of court.- It is impossible, of course, to tell from the record whether it was at the same or at a subsequent term of court. The appellants say that the supplemental decree was at a subsequent term of the court, and the appellees, in their brief do not deny this. We think we may therefore assume that the correction was made after the term of court at which the decree was rendered had adjourned.
Appellants contend that the judgment should be reversed as to Mary Reynolds because she did not sign the note, and that the mortgage indebtedness was not her obligation. We cannot agree with counsel in this contention. The mortgage would be valid and binding against her, even if given to secure the debt of a third person. Rockefellow v. Peay, 40 Ark. 69.
“As has been noted, the consideration need not move to the mortgagor. Hence the debt may be the debt of another and the consideration, for example, may consist in a loan to a third person, or a satisfaction of a debt due the mortgagee from a third person, or in the release of a mortgage of a third person, or forbearance or extension to a third person debtor.” 41 C. J. 387.
Learned counsel also contend that no valid lien was proved for intervener. A sufficient answer to this com tention is that the intervener proved its claim, and defend-, ants did not deny the claim in the answer.
Appellant’s next contention is that, under clauses 6 and 7 of the mortgage, the payment should only be taken from the interests of other defendants. It is true- that the interests of other defendants, under the terms of the mortgage, shall be applied to the payment of the indebtedness, but it is also true that the mortgage gives the right to foreclose and sell the property if the debt is not paid as provided for in the mortgage.
Appellant says that Mary Reynolds did not sign the note, and that, at the time she purchased her interest, there was no-lien. The first of these contentions we have already disposed of, and it is .immaterial whether her interest was incumbered at the time she purchased it or not. Her liability or the liability against her interest in the property attached when she signed the mortgage.
Appellants next contend that the decree should be reversed as to all defendants because the decree was for the sale of the land, when it should have been for the sale of the oil and gas leases, and that the court was without authority to modify the decree after the expiration of the term of court.
This court has. many times held that a court is without authority to set aside or modify its judgment or decree after the expiration of the term. This is the set- tied rule in this State. If the supplemental decree was intended or was a modification of the decree after the expiration of the term at which it was rendered, it would be void, and would require a reversal of the case. If, however, the decree of the court was for a sale of leases, and the clerk simply made a mistake in recording' it, the court could require the clerk to record the decree that was rendered, and it would make no difference whether it was called a supplemental decree or a correction of the record.
The mortgage described the leases. The pleadings all referred to the leases. Plaintiffs did not ask for a sale of the land, but of the leasehold interest. All the evidence showed that it was the leasehold interests that were involved. The supplemental decree recites . that the court’s attention is called to the fact that an error was made in drafting’ the decree. It is not contended or not shown that there was an error in the judgment or decree of the court, but there was an error in drafting the decree. We assume that that means that the decree was not in conformity with the decree rendered. Certainly all of the evidence tends to show that the original decree was correct, and that there was an error in recording it. The court had the power, even after the term, to make the record speak the truth.
There are a number of other questions raised by appellants in their brief, but, after a careful examination of the record, we have reached the conclusion that there is no reversible error. The questions of fact were submitted to and decided by the chancellor, and we think the findings are sustained by the evidence, and the decree is therefore affirmed. | [
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McHaney, J.
The Mutual Relief Association issued a certificate of membership to Mary P. Barton, insuring her life, after the expiration of 78 months, in the sum of $1,000, in which the appellee, Basel H. Barton, was named the beneficiary. The payment of $1,000, however, was conditioned upon the prompt and due payment, by all the certificate holders in the circle to which she belonged, of any and all assessments that might be made against them. In other words, the company agreed to pay the beneficiary such a sum as might be realized from an assessment of the members of the circle in which the insured member belonged.
The said Mary P. Barton died after the period of 78 months had elapsed from the date of her policy, in good standing, and it is shown that an assessment was made, from which $250 was realized, and, after deducting the expenses of making the assessment, $20, tendered the balance, $230, to the beneficiary, which was refused. Thereafter, on August 15, 1925, the association settled this claim by issuing a check to appellee in the sum of $500, and there was written on the check that it was issued in the payment “Por policy 683 Co. B. Insured: Mary P. Barton.” This check was accepted by appellee, and cashed. He thereafter instituted this > suit to recover the remaining $500, which he claimed to be due under the policy, and the jury returned a verdict against appellant and the sureties on its bond in such sum, from which is this appeal.
We think the check was issued and accepted in full satisfaction of all claims and demands arising under the policy, and that the court should have given the peremptory instruction requested by appellant. There is no substantial evidence in' the record tending to' show that the payment of $500 was in partial settlement of the amount due on the policy, but, on the contrary, the check shows on its face that it was for policy Nó. 683 on the life of Mary F. Barton. It does not say that it was in partial payment for policy No. 683, and the presumption must be indulged that it was in full payment thereof, iñ the absence of proof to the contrary, and the burden was on appellee to show to the contrary.
As heretofore stated, there is no substantial evidence in the record tending to show that appellant promised io pay any additional sum. The judgment will therefore be reversed, and the cause dismissed. | [
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Kirby, J.
Appellant brought suit in a justice court in Prairie Township, Washington County, on ia verified account for $83.45, for roofing paint sold to A. M. Byrnes,, and recovered judgment by default, from which Byrnes appealed to the circuit court, where, upon the trial, appellee recovered judgment for the sum of $90, from which this apioeal is prosecuted.
It appears from the testimony that appellant sold, on open account, for $83.45, and shipped the paints to appellee on May 7, 1924, and, although it had written many letters about it, no reply had ever been received, and the account remained unpaid when suit was brought on October 31, 1925.
It was usual to make a written guaranty of the paints, when requested, on a standard printed form, but none was made to Byrnes, but an unsigned copy of the printed form of guaranty, upon the back of which the instructions for application of the paints were printed, was sent him.
Appellee testified that he had been la contractor and builder for 50 years, and purchased from an agent of appellant some roofing paint “Niedtcote Liquid Roofing Cement” for repainting his two brick buildings, upon which he was given a guaranty. Offered in evidence a copy of the printed form, which, being objected to as not signed, he then introduced, over appellant’s objection, the copy attached to the deposition of Niedt, a member of appellant firm. The printed form introduced had the words “Steelcote Manufacturing Company” printed at the bottom and a blank, “general manager,’’ but the blank was not filled or signed at all. Said the agent agreed to send the guaranty when he bought the paint, and did so. That he got it by mail afterwards. Stated the paints'were received, and he instructed the man who did the work to put it on according to the directions on the back of the guaranty, and supposed he did so. After it was put on the tenants complained of the roof leaking “right along,” and he went down and examined it,, and found the water was running down on the cars in-the showroom, and he had it fixed twice, the last time at a cost of $46.10 for material, and the first time for $15 or $16, and half of the roof was still in bad condition. The stuff didn’t stand the weather for a year. Said he had not written to the company that the paint was unsatisfactory, but told his daughter to do so,-and didn’t know whether she had done so. That he had told an agent of the company that he had been damaged more than the price agreed to be paid for the paint, and did not owe the company anything. Admitted, on cross-examination, that he bought the paint before he received the guaranty; that the agent told him the company would guarantee it for 10 years, and that he took his word for it.
•Perry stated he was a carpenter; had repaired the roof of the building about three weeks before the trial; found it leaking and full of cracks, and the water Washing the plaster off. Repaired the roof on the east side; stated the amount charged therefor, and that the roof on the west side was not fixed, but needed repairing. The roofing that had been on was not good. Water went -right through it. Said he was a carpenter, not a painter. Had never used the kind of roofing paint purchased from appellant, and knew nothing about it.
Byrnes testified it would cost from $75 to $100 to repair the plastering.
The court refused to direct a verdict for appellant, and from the judgment on the verdict against it the ' appeal is prosecuted.
Appellant rightly insists that the court erred in permitting the unsigned printed form to be introduced in evidence as a written guaranty. The printed name of the firm, followed by “......................._..........., general manager,” with the blank unfilled, indicated that the instrument was to be further executed, and was not intended as a final signature authenticating the guaranty, and the court erred in holding otherwise. Lee v. Vaughan Seed Store, 101 Ark. 68, 141 S. W. 496, 37 L. R. A. (N. S.) 352, 25 R. C. L. 302.
No attempt was made to show that the salesman had any authority to bind the appellant company other than that possessed by an ordinary traveling salesman to receive and transmit orders (Markstein Bros. Co. v. J. A. White & Co., 151 Ark. 1, 235 S. W. 39), and, under the terms of the alleged guaranty, if it had been executed and valid, it only bound the seller, if the paint failed “to give perfect satisfaction for ten years,” to “furnish the user, without charge, a sufficient quantity of Niedtcote liquid roofing cement to keep the surface in waterproof condition until the ten years expire,” and, had the terms been strictly complied with, the purchaser would only have been entitled to demand land receive more paint — “a sufficient quantity * * * to keep the surface in waterproof condition * *
The proof does not show that appellee notified appellant that the paint was unsatisfactory, and he does not even claim to have demanded that he be furnished new paint to make his roof waterproof, and in no event could he recover damages to his building caused by water coming through the leaky roof.
No case was made authorizing the recovery of special damages or damages to the building for a breach of warranty, if there had been such warranty that a breach of it could have entitled plaintiff to recover such damages, and appellee, having admitted the delivery of the roofing cement upon his contract of purchase for the amount agreed to be paid, was bound to the payment thereof, unless he could show that the material was unfit for the purpose for which it was sold and purchased — worthless, in fact — and the burden was upon him to do this.
We cannot say that there is no conflict in the testimony and that the undisputed evidence shows the appellee entitled to recover the contract price of the paints delivered, although such appears to be well nigh the case, and on that account we do not hold that the court erred in refusing to direct a verdict in appellant’s favor.
The judgment is accordingly reversed, and the cause remanded for a new trial. | [
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Smith, J.
It appears, from the somewhat imperfect and incomplete record in this ease, that a decree was rendered, in the chancery court of Monroe county, on April 7, 1941, foreclosing the lieii of Drainage District No. 2 of Monroe county against certain lands on which betterment assessments had not been paid. The suit appears to have been for the taxes for two years, but it does not appear what those years were.
A sale was had under the authority of this decree, a report of which was made by the commissioner appointed for that purpose. Certain owners of lands lying within the district intervened and objected to the confirmation of the sale, for reasons which will be recited. A demurrer to this intervention was sustained, and the commissioner’s report was approved, from which decree is this appeal.
Attached to the intervention, as a part thereof, are certified copies of the orders of the county court of Monroe county establishing the district. Interveners alleged that the district was not legally formed, because there was never any hearing on the engineer’s report, or notice published of such hearing; that there was never any hearing upon, nor proper notice given of, the assessment of benefits; that the county court of' Monroe county did not take the steps required by law to acquire jurisdiction to levy any assessments against interveners’ lands, and that the attempted levy of such assessments was void and created no lien against the lands here involved.
It was further alleged that the collection of the delinquent assessments is barred by the statute of limitations, and that proper notice was not given of the suit to collect them to confer jurisdiction upon the court to render the foreclosure decree.
It is insisted that the demurrer to the intervention, which the court sustained, admits the truth of these allegations, and that the decree should, therefore, be reversed. But not so. We have many times held that a demurrer admits only facts which are well pleaded, and that legal conclusions are not admitted by a demurrer. A recent case to that effect, which cites others to the same effect, is that of Wilburn v. Moon, 202 Ark. 899, 154 S. W. 2d 7.
The orders of the county court, made exhibits to the intervention, recite adjudications essential and sufficient to establish the district, proper notice of all of which was found to have been given. Among other orders is one approving the assessment of benefits, which shows that it was made after proper notice had been given, and that no exceptions were filed by any one, except a railroad company.
The intervention constitutes a collateral attack upon these orders of the county court, which have long since become final. The. district was created under the general drainage act, No. 279 of the Acts of 1909, which, with amendatory acts, appears as §§ 4455 to 4507, Pope’s Digest. These acts provide for a hearing upon all the questions now raised by interveners, and limit the time within which that hearing may be had, and the time within which an appeal may be taken. A headnote to the ease of Taylor v. Board of Commissioners of Cache River Drainage District No. 2, 156 Ark. 226, 245 S. W. 491, reads as follows: ‘ ‘ The method provided by statute for attacking the validity of an assessment of benefits is exclusive, and a collateral attack upon an assessment which has become final because of the failure to attack it within the time and manner provided by law will not lie unless the assessment is void on its face.”
The same rule is as applicable to districts formed under general laws as to those formed under special acts. In the case of Lamberson v. Board of Commissioners of Drainage District No. 16, 150 Ark. 624, 234 S. W. 986, it was said: “Appellants contend that the court erred in sustaining the demurrer to the answer. We think not. The defenses interposed were collateral attacks on the order establishing and creating the drainage district and assessing the benefits on account of the improvements against the several parcels of land within said district. In a suit to enforce a lien against lands for benefits assessed against them in a drainage district theretofore organized,- all defenses except a plea of payment are necessarily collateral. It is not contended that the assessments were paid. The matters as set forth in the answer attacking the validity of the assessment cannot be inquired into in this proceeding because they constitute a collateral attack on the judgments of the county court creating the district and confirming the assessment of benefits. (Citing cases.) ”
It is not contended that the record of the assessment of benefits here sought to be enforced is void upon its face.
There is no showing that the assessments here sought to be enforced are barred by any statute of limitations. As has -been said, the record does not show for what years the assessments sought to be enforced were levied, nor when they became delinquent. In the order of the county court approving the assessments levied appears this recital:
“It is further considered, ordered and adjudged that the said tax hereinbefore assessed shall be divided into installments, and that the said installments shall be due and payable as follows: In each of the years 1923 to 1927, inclusive, 3.7 per cent, of the face of the assessed benefits ; and in each of the years 1928 to 1942, inclusive, 6.5 per cent, of the face of said assessed benefits; said collections to be credited first upon the interest accruing upon said levy.”
The right to distribute the collection of these assessments over a period of years, rather than to require their immediate payment at the time they were approved by the county court, is not questioned, and has been recognized in many cases and is expressly authorized by statute. Section 4507, Pope’s Digest.
The insistence that the notice of the pendency of the proceedings to foreclosure the tax lien was not in com pliance with the statutory provisions, and that notice of the sale was not given by the commissioner which the law requires, may he answered by saying that interveners do not point out in what respect the notices Avere insufficient. The mere allegation that they Avere not in compliance Avith the la.Av does not suffice. This allegation is a mere conclusion of Iuav, Avhich must be disregarded in the absence of any record shoAving that the notice required by laAV Avas not given.
We conclude, therefore, that the demurrer to the intervention Avas properly sustained, and that the decree must be affirmed, and it is so ordered. | [
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Humphreys, J.
Appellant, Lee Crawford, and his son, Lester Crawford, were accused by prosecuting attorney in an information filed in the criminal division of the circuit court of Poinsett county, Arkansas, of assaulting Neil Holdman with a knife in said county with intent to kill him.
They were tried to a jury under instructions correctly defining the law on assault with intent to kill, assault with a deadly weapon and assault and battery.
Both were convicted for assault with intent to kill as charged.
The jury fixed the punishment of Lester Crawford at one year in the penitentiary, but recommended a suspended sentence which the court adopted.
The jury fixed the punishment of appellant at two years in the penitentiary, and from the judgment and sentence of the court to a two-year term in the penitentiary an appeal has been duly prosecuted to this court by appellant.
Appellant assigns as reversible error the insufficiency of the evidence to sustain the verdict and judgment for assault with intent to kill, arguing that the parties involved in the difficulty met unexpectedly on the road and had a family fight.
The evidence, viewed in the most favorable light to the state, reflects that Neil Holdman planted and cultivated a garden of two or three acres near his home and near where the appellant and his family lived; that appellant’s children, at his instance, pulled up and destroyed the garden; that Neil Holdman swore out warrants for them; that after the service of the warrants upon them, they met Neil Holdman on the highway, and appellant said to Neil Holdman, “Who in the hell told you that I stole your stuff?” that Neil Holdman responded by saying, “I didn’t need anyone to tell me, I saw it”; that appellant then said that anyone who said he stole the garden stuff told a damn lie; that Neil Hold-man then said, “We will see about that,” (meaning that they would see about it when the trial came up); appellant responded by saying, “We will see about it now”; that both appellant and his son, Lester, made for Neil Holdman and grappled with him; that Neil Holdman had a walking stick which he raised when they came at him and while they were struggling appellant’s housekeeper said “ Gret the stick and beat him to death”; that during the struggle, in order to avoid an automobile which came down the highway, they rolled down the dump into a ditch; that appellant and his son, Lester, were beating Neil Holdman over the head and on the back and during the struggle Lester Crawford kicked Neil Holdman over the eye; that at this'juncture appellant told Lester Crawford to “cut him, cut him,” whereupon, Lester Crawford stabbed Neil Holdman in the left arm with a knife that went to the bone and deadened the arm.
About that time Hal Stricklin, a deputy sheriff, came upon the scene and saw appellant’s housekeeper kick Neil Holdman in the back while he was down in the ditch beside the road. He arrested appellant and some members of his family and testified as follows concerning the condition in which he found Neil Hold-man: “His right eye or one of his eyes was closed, blood was running down his shirt back of his shoulder, he was bleeding in several places over his face and arm, and I didn’t know that it was Mr. Holdman at first. I took his shirt off, and he showed me where he was cut on the shoulder. It was a straight stab. His face and head were scratched up all over. He had several bruises, and I noticed knots, several of them, on his head.”
He further testified that he talked to the boy after arresting him and asked him about the knife. He asked him where the knife was that he struck Mr. Holdman with, and the boy said that he did not know anything about it. Mr. Stricklin said: “Lester, what did you do with the knife ? ’ ’ Lester said that he threw it away, that he threw it either in the field or in the borrow pit, he did not know just where, but there was no use hunting for it. The boy admitted that he stabbed Neil Holdman. He did not tell why he had done it.
We think the jury had a right to find from the above detailed evidence that appellant and a part of his family assaulted Neil Holdman with intent to kill him because he had sworn out a warrant for appellant and his family for destroying his garden. The jury did not agree with the construction appellant has put upon the evidence to the effect that the participants in the fight met unexpectedly on the road and had a family fight without intent to kill Neil Holdman, and there is substantial evidence to sustain the view of the jury.
Appellant also insists for reversal of the verdict and judgment because the court allowed Neil Holdman to testify that hewas in fear of losing liis life during the fight and for testifying that he knew if someone did not come along the jig was up. Relative to this piece of testimony the court told the jury: ‘ ‘ You will not consider what he thought, but you will consider it for whatever assistance it will give you in arriving at the state of mind of the parties at the time in determining whether the defendants did assault him, and if so whether they assaulted him with the intention to kill him.”
Later on and before the case was sent to the jury the court instructed the jury to disregard the testimony objected to entirely as he doubted whether or not it would shed any light on the state of mind of the parties or on the question as to who was the probable aggressor.
Relative to the erroneous admission of evidence during the progress of a trial and the subsequent withdrawal thereof before the case was submitted to the jury this court, in the case of Goynes v. State, 184 Ark. 303, 42 S. W. 2d 406, quoted from 38 Cyc. 1440 as follows: ‘ ‘ The general rule is that if inadmissible evidence has been received during the trial, the error of the admission is cured by its subsequent withdrawal before the trial closes, and by an instruction to the jury to disregard it. ’ ’
In the instant case the court distinctly withdrew the piece of evidence objected to and told the jury not to consider it and explained why the jury should not consider it. If any error was committed in admitting the evidence the error was cured under the general rule announced in the case of Goynes v. State, supra.
Appellant also assigns as reversible error that the prosecuting attorney asked appellant on cross-examination whether he had killed his father-in-law. He answered “yes,” but that he was justified in doing so. An examination of the record reflects that no objection was made to the question or answer at the time, so it cannot be successfully argued now that appellant was prejudiced on account of the question and answer.
Appellant also assigns as reversible error that on cross-examination he was asked by the prosecuting attorney whether his son. or his housekeeper shot at Neil Holdman’s wife on the day of the trial for destroying Holdman’s garden. He answered the question in the negative. Under the rule announced by this court in the case of Benton v. State, 78 Ark. 284, 94 S. W. 688, no prejudice resulted to appellant since he answered the question in the negative.
No error appearing, the judgment is affirmed. | [
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George Rose Smith, Justice.
On September 1, 1966, K. S. Sumpter and his wife, the appellees, bought a supposedly new Pontiac Tempest car from the appellant. A number of repairs to the motor and transmission soon became necessary. Eventually the Sumpters learned that the car had not been a brand-new vehicle when they bought it. They elected to keep the car and bring .this action for damages resulting from the seller’s misrepresentations. This appeal is from a verdict and judgment awarding the plaintiffs $1,497 in damages.
Greiner contends primarily that it was entitled to a directed verdict, because it insists that the car really was new at the time of the sale. That argument is based upon proof that the Sumpters received a new-car .warranty and that title to the vehicle had not been transferred to any other buyer .before the sale to the Sump-ters. The seller argues that those facts show that the car was actually new, so that its salesmen’s statements to that effect were true.
It may be that automobile dealers regard such a vehicle as new, but the jury were entitled to take a more realistic view. Greiner bought the car in December of 1965, more than eight months before the sale to the Sumpters. In that interval the car was used by Greiner both as a rental vehicle and as a demonstrator. Moreover, according to the undisputed proof, the car was stolen and kept by the thief for some six weeks, eventually being recovered in Arizona. The odometer then showed more than 7,000 miles of travel. The seller turned that reading back to about 150 miles, put new tires on the car, cleaned it up in other respects, and represented it to be a new vehicle. In view of that proof it was evidently for the jury to say whether there were fraudulent misrepresentations in the sale.
Secondly, Greiner, citing Union Motor Co. v. Turbiville; 223 Ark. 92, 264 S. W. 2d 592 (1954), insists that the court should have instructed the jury that the measure of the plaintiffs’ damages was the difference between the recited contract price of $2,400 and the actual value of the car at the time of the sale. Instead the court submitted to the jury the measure of damages that we approved in Union Motors v. Phillips, 241 Ark. 857, 410 S. W. 2d 747 (.1967), being the difference between the market value of the car as warranted and its market value in its condition at the time of the sale.
The Turbiville measure of damages has the merit of simplicity, but the rule of the Phillips case often achieves complete justice by disregarding the contract price, thereby preserving to the purchaser the advantage he may have gained by driving what would have been a bargain if the car or other chattel had been all that the seller represented it to be. Both rules have been applied in Arkansas. See Casenote, 1 Ark. L. Rev. 308 (1947).
In the case at bar the court properly adopted the Phillips standard, because the recited contract price of $2,400 was not the real price paid by the Sumpters. The president of the appellant company testified that he paid $2,647.30 for the car and that the suggested list price was $3,267.63. That list price was noted by the salesman on the Sumpters’ invoice, which also recited a cash price of $2,400. The witnesses accounted for the discrepancy by explaining that, as a means of reducing the sales tax due the State, both the recited price of the Pontiac Tempest and the recited eredit allowed for the Sumpters’ trade-in had been reduced by the seller in the preparation of the contract documents. Hence the court was right, in fairness to the purchasers, in disregarding what was a fictitious contract price and submitting instead a measure of damages based upon actual values.
What we have just said pretty well answers Grei-ner's third contention, that the verdict is excessive. According to Greiner’s own witnesses the car should have been worth more than the $2,647.30 that Greiner paid for it. Mr. Greiner testified that he would have tried to get $2,950 for the car. An expert witness appearing for the buyers fixed the value of the car on the. sale date at between $1,250 and $1,300. Even though the appellant’s brief refers to that testimony as “patently unbelievable, ’ ’ we see no reason why the jury were not justified in accepting it — the issue being one of opinion.
Finally, it is argued that the court erred in answering a juror’s inquiry about whether it is a criminal offense “to roll back a speedometer.” We find no error, not only because the court did not give a positive answer to the question, but also because there was no objection to the court’s statement.
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Holt, J.
May 1,1941, L. F. Bell, appellee, sued L. L. Tate in the municipal court of Fayetteville, Arkansas, to recover $50 alleged due on a note, and appellant, John F. Harmon, was made garnishee. Tate being a nonresident, constructive service by publication was had upon him and writ of garnishment was served on appellant Harmon personally. The writ was made returnable on June 3, 1941, and the cause set for trial on that date.
June 3, 1941, prior to the hour of trial, appellant appeared and informed the court orally that he was not indebted to the defendant, L. L. Tate, in any sum, but he did not reply to, or answer in writing, and under oath, the allegations and interrogatories propounded to him in the writ of garnishment. The court did not enter appellant’s oral answer to the writ on the docket. Later in the same day judgment was entered against appellant in the following form: “Judgment as per precedent.”
September 5, thereafter, appellee’s attorney filed with the municipal court precedent for judgment reciting judgment against garnishee, appellant, for $50 and costs. October 6, 1941, execution was issued against appellant.
October 20, 1941, appellant filed petition in the circuit court for certiorari and prayed that the proceedings in the municipal court be brought up for review and that the judgment and execution against him be quashed.
October 27,1941, appellant’s motion was granted and on November 3 the circuit court of Washington county, upon a trial, found, among other things, that:” “John F. Harmon, plaintiff herein and garnishee in the municipal court action, appeared in the municipal court as such garnishee on the 3rd day of June, 1941, and orally stated to the court that he was not indebted to.the defendant, L. L. Tate, in any sum and had not been so indebted at any time. The court finds that said denial was not written and was not made under oath. . . .
“The court declares the law as follows: The law requires that garnishee’s answer in this case must be in writing and sworn to, and since the oral denial of garnishee was not in writing* and sworn to, the judgment and proceedings should be affirmed. The court declares the law to be that the record judgment and docket entries in said action show a valid judgment against the garnishee therein,- John F. Harmon, and the said judgment should be affirmed.” This appeal followed.
The primary contention of appellant is stated here in his brief in the following language: “Appellant contends that the answer of a garnishee is a pleading, and that the same may be oral and without verification in the municipal courts, and that it is the duty of the court to enter the same upon his docket. When a denial or answer is so entered or made by garnishee, the same discharges the garnishee unless controverted by denial by the plaintiff, which must also be entered upon the docket. If the court fails to enter the garnishee’s answer this failure does not prejudice the rights of the garnishee.”
As a general rule pleadings in the court of a justice of the peace may be either in writing or oral and if oral, it is the duty of the justice of the peace to record the substance thereof on his docket. Section 8389 of Pope’s Di gest. The same rule which governs pleadings in the justice court applies to municipal courts. Upson v. Robison, 179 Ark. 600, 17 S. W. 2d 305. An exception to this general rule, however, has been clearly made in this state by statute, in garnishment proceedings, such as we have in the instant case. Whether the garnishment be issued in proceedings before a municipal court or a circuit court, the garnishee is required to answer the interrogatories propounded to him in writing and under oath, and upon his failure to answer, within the time provided, the court or justice before whom the action is pending, must enter judgment against such garnishee for the full amount specified in the plaintiff’s judgment against the original defendant with costs.
Our statutes seem to be perfectly plain on this proposition. Section 6119 of Pope’s Digest provides: “In all cases where any plaintiff may begin an action in any court of record, or before any justice of the peace, . . . and such plaintiff shall have reason to believe that any other person is indebted to the defendant, . . . such plaintiff may sue out a writ of garnishment, setting forth such claim, . . . and commanding the officer charged with the execution thereof to summon the person therein named, as garnishee, to appear at the return day of such writ, and answer what chattels, moneys, ... he may have ill his hands or possession belonging to such defendant to satisfy said judgment and answer such further interrogatories as may be exhibited against him . . . ”
Section 6123 provides: ‘ ‘ The plaintiff shall, on the day on which he sues out his writ of garnishment, prepare and file all the allegations and interrogatories, in writing, with the clerk or justice issuing such writ, upon which he may be desirous of obtaining the answer of such garnishee, . . . ”
■Section 6124 provides: “Such garnishee shall, on the return day named in such writ, exhibit and file, under his oath, full direct and true answers to all such allegations and interrogatories as may have been exhibited against him by the plaintiff.”
And § 6129 provides: “If any garnishee, after having been served with a writ of garnishment ten days before the return day thereof, shall neglect or refuse to answer interrogatories exhibited against him on or before the return date of such writ, the court or justice before whom such matter is pending shall enter judgment against such garnishee for the full amount specified in the plaintiff’s judgment against the original defendant together with his costs.”
It is conceded here that appellant’s answer to the allegations contained in the writ of garnishment were oral. This amounted to a failure to answer and judgment by default was properly taken against him.
In Wilson v. Phillips, 5 Ark. 183, this court held: “Where a garnishee fails to answer, no proof is necessary to charge him. The default admits his liability to the full extent of the plaintiff’s demands.” -
Appellant also contends that there was no valid judgment entered against him in the municipal court. We cannot agree to this contention. As has been indicated, the cause was tried in the municipal court on June 3,1941, and “judgment as per precedent” entered against appellant on that date. Appellant testified (quoting from appellant’s brief): “I did not make a written answer under oath denying owing anything. I did not know I had to do that. I was in the municipal court on the day the case was tried. I was there with Mr. Mayes and plaintiff Bell. I remember the note was introduced. I knew a suit was going on because I had been served with a garnishment and the reason I was there that day was because I had been made a party garnishee. ”
Municipal Judge James Ptak, before whom the cause was tried, testified: “Q. On the same day of the trial did you pronounce judgment? A. That is right.” He further testified that he rendered judgment against appellant and “an extensive judgment couldn’t go on- the docket,” and it was agreed that precedent for the judgment be prepared.
We think it clear on the record before us that judgment was entered against appellant on June 3, 1941, the court record reciting “judgment as per precedent.” September 5, following, appellee’s attorney filed precedent for judgment reciting judgment against garnishee, appellant, for $50 and costs and further that garnishee failed to answer, plead or demur, and made default. While this precedent for judgment was not actually spread upon the court docket for lack of space, it was filed, and we think was sufficient.
We conclude, therefore, that the judgment should be affirmed, and it is so ordered. | [
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Hart, C. J.,
(after stating the facts). The suit wias instituted under an act of the Legislature of 1917, providing for the assessment of insurance companies and assessing for taxation the intangible property of all corporations.
Section 1 of the act relates to the taxation of insurance companies, and is ■§ 9964 of Crawford & Moses ’ Digest. Section 2 is § 9965 of the Digest, and provides that all corporations doing business in this State, except corporations whose property is assessed by the Arkansas Tax Commission and the-corporations required to make and file the special returns provided for in § 9904, shall, in addition to the list prescribed by § 9904, make and file with the assessor of the county wherein its principal office is situated a statement wherein shall be definitely set forth certain matters, which are specifically stated, but which need not be set out here. Section 3 of the act is § 9966 of the Digest, and provides that any person whose duty it is made by the act to prepare the returns required in the act, who shall fail to do so, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not less than $100 nor more than $1,000, and, in addition thereto, the charter of said corporation shall be forfeited.
'This section was held invalid, in so far as it applied to foreign corporations, in State ex rel. v. Lion Oil & Refining Co., 171 Ark. 209, 284 S. W. 33. The necessary effect of our opinion in that case was to hold the statute unconstitutional, so far as it applied to foreign corporations. Otherwise we would have held that its terms did not include foreign corporations, and this would have ended the case. The reason that we reserved the question Whether the unconstitutional part was severable from the remainder was because we did not deem it wise or expedient to pass upon the question of its constitutionality in so far as it related to domestic corporations until that issue was squarely presented and fully argued, as has been done in the case at bar.
It is an elementary rule of constitutional construction that it is only when different clauses of an act are so dependent upon each other that it is evident that the Legislature would not have enacted one of them without the other — as when the two things provided are necessary parts of one system — that the whole act will fail with the invalidity of one clause. Huntington v. Worthen, 120 U. S. 97, 7 S. Ct. 469, 30 L. ed. 588.
In the application of the rule in Cooley’s Constitutional Limitations, 8th ed., vol. 1, pages 360 and 361, it is said that, where 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 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. This rule has been adopted and applied with varying facts by this court. Ex parte Deeds, 75 Ark. 542, 87 S. W. 1030; Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77; Nixon v. Allen, 150 Ark. 244, 234 S. W. 45; and Replogle v. Little Rock, 166 Ark. 617, 267 S. W. 353, 36 A. L. R. 1333.
In the first case cited it was held that an unconstitutional provision in a statute in favor of resident merchants could not be stricken out so as to leave the remainder of the act unimpaired, as to do so would leave the statute applicable to resident merchants, contrary to the express intention of the Legislature. In discussing the application of the same rule in United States v. Reese, 92 U. S. 214, 23 L. ed. 563, it was said:
“We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is unconstitutional, if theie be any such, from that which is not.. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there. Each of thé sections must stand as a whole, or fall together. The language is plain. There is ho room for construction, unless it be as -to the effect of the .Constitution. The question, then, to be determined is whether we can introduce words of limitation into a penal statute so as to. make it specific when, as expressed, it is general only * * *. To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.”
The rule was later approved and again applied in Hill v. Wallace, 259 U. S. 44, 42 S. Ct. 453, 66 L. ed. 822.
In the application of this well-settled rule’to the case at bar, we are of the opinion that the statute is unconstitutional as to domestic corporations. It will .be observed that the language of the act refers to all corporations. If it had contained separate sections concerning foreign corporations and domestic corporations, it might be said that the statute was separable, and the unconstitutional part as to foreign corporations might be stricken out and leave enforceable that part relating to domestic corpora- lions. 'Such is not the case, however. The language is plain, and refers to all corporations. The act prescribed la severe penalty for the failure of the officer of the corporation to comply with its terms. To sustain the act as to domestic corporations would require us to strike out the words “all corporations,” and to disregard their plain and ordinary meaning, and substitute therefor the words “domestic corporations.”' To limit the statute in this manner would require us to amend the statute, and, as has been said, this is no part of our duty. It is our duty to interpret the statute as it is written, and we cannot limit or restrict the plain meaning of the words used so as to make constitutional a statute which, when construed according to the plain and ordinary meaning of the language used; would be unconstitutional.
It follows that the decree of the chancery court was correct, and it must be affirmed. | [
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Smith, J.
Appellant .brought this suit in ejectment against the Arkansas Baptist State Convention, hereinafter referred to as the convention, to recover possession of a hospital and the adjacent grounds located in the city of Pine Bluff. The defendant convention filed an answer, alleging its possession and ownership of the property under a deed from the plaintiff, which was alleged to have been lost, and, by way of cross-complaint, the defendant prayed that its lost deed be restored and held valid, and that its title be quieted against the plaintiffs. In an answer to the cross-complaint the plaintiffs denied the execution of the deed or their power to execute it.
Prom the testimony offered at the trial from which this appeal comes, it appears that seventy ladies, residents of Pine Bluff, wermincorporated by order of the Jefferson Circuit Court, July 6, 1895, as the Hospital'& Benevolent Association, for the purpose of raising funds to establish and maintain a hospital "in the city of Pine Bluff. ' Funds "for this purpose were to be raised by annual dues to be collected from each member of the association, amounting to $1 a year, and by donations, legacies and subscriptions from charitably disposed persons.
The constitution of the association provided for an annual meeting on the first Friday of October in each year, at which time a president, three vice presidents, a secretary and a treasurer should be elected, who should hold office for one year and until their successors were elected and qualified. It was provided in the constitution that ten members should .constitute a quorum for the transaction of business. Mrs. J. W. Crawford was elected president, Mrs. O. J. Taylor was secretary, and Dr. Lil lian G. Higginbotham assistant secretary, and the organization began to function by erecting and operating a hospital. To raise necessary funds, a mortgage of $4,000 was..placed on the property, and other indebtedness was incurred. The enterprise was not a success, and the hospital was finally closed, and, after it had been closed for four or five months, its managing officers and friends began to cast about to devise means whereby it might be reopened and operated. Overtures were made to the convention to take over the hospital, and at a regular meeting of the hospital association on October 7, 1919, ,an ajnandment to the charter was adopted authorizing a lease of the property for ninety-nine years. A proposition "wa's submitted to the hospital committee of the convention to lease the property, but this offer was declined, and a counter proposition was made to take over the property, repair it, pay the outstanding indebtedness, enlarge the hospital, and operate it, provided a deed was made to the convention.
A called meeting of the plaintiff hospital association was held on October 10, 1919, to consider this counter-proposition, at which seventeen members of the association and two non-mem'ber friends were present. At this meeting the following resolution was unanimously adopted:
‘‘Whereas, the Davis Hospital has been closed for several months for lack of sufficient funds to repair, reopen and run it; and whereas, the Baptists have undertaken to raise large sums for hospital purposes, and the Arkansas Baptist State Convention has offered to take a deed to the property and in consideration thereof agreed to maintain and run the hospital and from time to time enlarge it, as the demands for enlargement come and the necessities require, in the judgment of the board of said convention; and whereas, they have agreed to keep the name, Davis Hospital, for the institution perpetually, and to accept a deed requiring such perpetuation of the name and containing a stipulation that, if they fail to perpetuate the name, or if they or their assigns or successors should fail to keep the property in reasonably good repair, or should fail or cease to maintain and run the institution as a hospital, then in any such event the title to the property shall at once revert to the grantor; now therefore be it by the Davis Hospital Benevolent. Association in meeting assembled, resolved, that tlie president and secretary, or assistant secretary, of this association be, and they are, hereby authorized and empowered to make a deed to said Arkansas Baptist State Convention, or to such trustee as they may name, conveying to it or them the following described'land, lying ii> Jefferson County, State of Arkansas, to-wit: Lots one .and two, in block seventy-six, in Tannehill & Owens’ addition to the city of Pine Bluff, for the consideration and purposes and containing the stipulations required by the foregoing preamble; and, for the same consideration and purposes, to include in said deed the furniture and hospital appliances on said land. Only the land and building and the furniture and appliances shall be conveyed. The Davis Hospital Benevolent Association shall reserve to itself such funds, devises and legacies as it now owns, and such devises and legacies as are provided for in wills already made to it or Davis Hospital.”
Pursuant to this resolution, a deed was prepared from the hospital association to the convention, which was duly acknowledged by the president and the assistant secretary of the association. This deed was delivered to a member of the hospital committee of the convention, but was lost without having been recorded.
The cause was tried in the court below, by consent, without a jury, and the court found the fact to be that this deed was executed and delivered and that the title to the property there described passed to the convention, and judgment was rendered accordingly, and from that judgment is this appeal.
The plaintiff association — the appellant here — states in its brief that “the only issue before the court for deter mination is whether the deed claimed by defendant to have been made was in fact made, and, if so, whether it was legally made so as to be a valid deed.”
“The rule is. well established in this State, as well as by the authorities generally, that the burden is upon one who claims title under the alleged lost instrument to establish the execution, contents, and loss of such instrument by the clearest, most conclusive, and satisfactory proof.” Erwin v. Kerrin, 169 Ark. 183, 274 S. W. 2, and cases there cited.
The first question for decision is therefore whether the proof tending to establish the alleged lost deed from the hospital association to the convention meets this test.
We think it does, and the court below so found. By collaboration of the persons interested in the preparation, execution, and examination of the lost deed it has been restored, and these persons testified that the restored deed is substantially identical with the lost deed. Among the witnesses who testified as to the execution and contents of the lost deed was J. W. Crawford, an attorney at Pine Bluff, whose wife ivas the president of the hospital association. He testified that his wif e had devoted much of her time to the work of the hospital association, and was much" concerned about reopening the hospital. He prepared the lost deed, and in a general way remembered its recitals, although he had not kept a copy of it, and testified that the restored deed was substantially identical with the one he had prepared. After the deed had been executed and acknowledged, he transmitted it to a member of the hospital committee of the convention. He had also prepared the resolution for adoption by the hospital association authorizing the sale of the property to the convention. He had kept a copy of this resolution, and identified the resolution set out above appearing in the restored deed as identical with the one which he had prepared for adoption by the association at the called meeting held on October 10,1919.
H. T. Allcott testified that lie was a notary public, and that, as such, he had taken the acknowledgments of the president and the 'assistant secretary of the hospital association to the deed. He stated in detail the circumstances under which the acknowledgments- had been taken.
After the execution and delivery of the deed to the hospital committee of the convention it was submitted for examination and approval to .Judge ~W. R. Donham of Little Rock, a practicing attorney and a member of the hospital committee. Judge Donham testified that he made a careful examination of the deed to determine its sufficiency, and in connection with this examination made copious notes as to its recitals. These notes he had preserved, but the deed itself was lost, and he was unable to find it, after a most exhaustive search. He had not surrendered the possession of the deed to any one, and when he last saw the deed it was in his possession. He testified that the restored deed is, substantially identical with the one given him for examination.
The deed was executed to R. Oarnahan, H. C. Fox and J. P. Runyan, as trustees, for the use and benefit of the Arkansas Baptist State Convention. Mr. Carnahan was a resident of Pine Bluff, and was one of the visitors who attended the meeting of the hospital association of October 10, and was instrumental in inducing the convention to take over the hospital. He also testified as to the execution of the deed, and it was he who delivered it to the hospitalfcommittee of the convention.
The hospital property was accurately described in the deed which conveyed that property to the trustees named, on the conditions and limitations set out in the resolution of the hospital association adopted on October 10, and which was incorporated in the deed.
Several membars_of the hospital ^association testified that they were not advised of the .meeting held on OctoberAOj and knew-nothing of the action taken at that meeting: in regard to the sale of the property. They were advised of the meeting held on October 7, at which time a reioTutidn'was adopted which authorized a lease of the property for ninety-nine years,- and, while they knew the property had been taken over and was being operated by the convention, they supposed this was done under the authority of the resolution adopted October 7.
The assistant secretary of the association, whose name was signed to the deed, denied having signed or executed it; but, without setting out the testimony in this respect, we announce our conclusion to be that this good lady had merely forgotten the incident. The high character of all the witnesses who have testified is such that the case presents no question of veracity of any of the witnesses. We are sure all testified truthfully, so far as they remembered the facts about which they testified; but, while this is true, we are of opinion that the testimony measures up to the-requirements announced in the case of Erwin v. Kerrin, supra, to prove the execution and delivery of the lost deed and the contents and sufficiency of that instrument.
It is further insisted that, although the execution, contents and delivery of the deed have been sufficiently proved to establish it as a lost instrument, it was not valid_as-.a-Gonveyance, for the reason-that it was an ultra 'vires act onjthe-part of the officers of the-association who executfid-the-deed, qnd the case of Fordyce v. Woman’s Christian National Library Assn., 79 Ark. 550, 96 S. W. 155, 7 L. R. A. (N. S.) 485, is cited in support of that contention. In that case it was held that the property of a charity cannot be sold under an execution on a judgment rendered for the nonfeasance, misfeasance or malfeasance of its agents or trustees, for the' reason that a charitable trust cannot be destroyed through the wrongful acts of the trustees, and it is insisted that the officers of the hospital association have, through the execution of the deed, wrongfully destroyed the trust committee) to their management.
We do not concur in this view. On the contrary, the purpose of the trust has not been destroyed. The undis puted testimony shows that the hospital association had come to the end of its resources, and the trust was about to fail through lack of support. The hospital had been closed, and the property was deteriorating in value, and the debts of the association were unpaid. The deed to the convention required that body to maintain and run the hospital, and from time to time- enlarg’e it as the necessity therefor required, and the conveyance was valid as such so long only as these conditions were complied with. That these conditions have been fully complied with will be later herein shown.
We conclude therefore that the execution of the deed by the officers of the hospital association was not an .act which whs beyond the power of the corporation itself to authorize, as it tended to perpetuate and promote.the purposes of that organization.
It isTnsist'edr that the execution of this deed was authorized at a called meeting, which was not provided for in the constitution of the hospital association, and that the body of the members were not notified of the meeting, and that the execution of the deed was therefore unauthorized, and that the members of the association will not be held to have ratified this conveyance through the subsequent action of the convention, for the reason that the members of the hospital association had the right to assume that the possession and occupancy of. the hospital by the convention was referable to the resolution adopted at the regular meeting on October 7 authorizing a lease of the property.
We think, however, that it must be held that the hospital association has in fact ratified.this deed, even thopgETiA. execution, was not authorized. More than a quorum of the members attended the meeting at which the resolution was adopted authorizing the sale of the property, and the transaction was a sale, and not a gift, as is contended by appellant. The deed was executed upon the consideration of the assumption of burdensome obligations by the convention. It is not intimated that the meeting of October 10 was. surreptitiously called, and there is no reason to even suspect that the action then taken was concealed. All parties appear to have been actuated by the most laudable motives. The resolution then adopted directing the sale of the property was in a form which, if otherwise authorized, would have conferred the power to sell the property. There was nothing to indicate to the convention that it would not take by the deed tendered to it the title which that instrument purported to convey, and there is no reason to doubt that the members who did not attend the meeting of October 10 might, with but slight inquiry, have ascertained the terms and conditions upon which the convention took over the hospital.
The undisputed testimony shows that, after the delivery of the deed, the convention expended $20,000 to put the hospital in condition to be operated, and altogether expenditures aggregating $33,000 were made, including enlargement and equipment, and the institution has been raised to a grade A hospital, and is now being operated as such. In other words, the conditions upon which the deed was executed have been fully complied with, and have been since the date of that deed, which was October 31, 1919.' This suit was not filed questioning the title of the convention to the property until June 15, 1925.
The case of Merchants’ & Farmers’ Bank v. Harris Lbr. Co., 103 Ark. 283, 146 S. W. 508, Ann. Cas. 1914B, 713, was one in which the right of the secretary and treasurer of a corporation to execute a chattel mortgage upon the corporate property was questioned, and, in holding the stockholders had ratified that action, the court quoted with approval from 2 Morawetz on Private Corporations (2 ed.), § 623, as follows:
“In 2 Morawetz on Private Corporations. (2 ed.), §. 623, it is'said: ‘If the shareholders who constitute the corporate association unanimously acquiesce in or ratify an act performed by an agent or board on behalf of the corporation, no further question as to the extent of the powers delegated to the agent or board can arise. Ratification by all the shareholders would not cure the illegality of an act which is prohibited by the common law or statute; but it would remove any defect of authority in an agent performing the act as between himself and the company. After such ratification, the company would become chargeable with the act to the same extent as if ■it had originally authorized it-to be done’.”
In the same case it was there further said:
“All the shareholders of a corporation may waive the necessity for a meeting of its board of directors, and may, without such meeting, either authorize acts done by its agents within the scope of the powers of such corporation, or ratify those acts which have been done, and, by such authorization or ratification, bind the corporation itself. The rule that the members of the board of directors have the authority to act only when convened in a board meeting is for the benefit of the shareholders. The shareholders own the assets, and in fact constitute the corporation. All the shareholders may therefore waive the necessity for the meeting of all the members of the board of directors in the transaction of any business that is not beyond the powers of the corporation to enter into. ’ ’
In the case of American Bonding Co. v. Laigle Stave & Lbr. Co., 111 Ark. 151, 163 S. W. 167, the question was raised as to the power of an agent of a corporation to execute accommodation paper in the name of the corporation, and, after holding that such right was not within the real or apparent scope of the agent’s authority, the court held that such action might be ratified. It was there said:
“In 2 Thompson on Corporations (2 ed.), § 2019, the rule of acquiescence in or ratification of an unauthorized act of the officers or agents of a corporation is stated as follows: ‘Acquiescence for a considerable time by a corporation, through its efficient agencies and the body of its stockholders, in a state of facts, after knowledge or after such a length of time and such a condition of circumstances that a knowledge is to be inferred, will operate as a ratification. * '* * Ratification of this character may rest on the principle of equitable estoppel, on the theory that one man, though innocent, ought not to allow another innocent man to rest in the belief that a voidable engagement is valid until the latter has changed his position. It also rests on the moral consideration that the former, after allowing the hopes of the latter to be raised for a considerable length of time, in respect of whatever benefits may aeerue’or may have accrued from the engagement, ought not to be allowed to disappoint those hopes. The rule therefore is that, where the agents of a corporation exceed their powers, their principal must, as in the case of a natural person, disaffirm promptly, or at least within a reasonable time, having regard to the circumstances of each case’.”
The case of Common Sense Mining & Milling Co. v. Taylor, 152 S. W. 5, was one in which the president and secretary of the corporation had, without authority, sold the assets of the corporation, and their grantee, under the unauthorized conveyance, expended a large amount of money on the property conveyed. For a period of five months the stockholders remained inert, and, when finally they called the conveyance in question, the court held that, by their inaction, they had ratified the unauthorized act. In so holding, the Supreme Court of Missouri, through Graves, P. J., said:
“Judge Thompson, in 10 Cyc., p. 1065, says: ‘Subject to exceptions in case of municipal or governmental corporations, which are held to a strict exercise of their powers, the general rule is that corporations quite as much -as individuals are held to a careful adherence to truth in their dealings with mankind, and cannot, by representations or by silence, involve others in onerous engagements and then defeat the just expectations which their conduct has superinduced. A round statement of this doctrine is that estoppels in pais operate against cor porations in like manner as against natural persons.’ And further discussing the doctrine of estoppel as applicable to corporations, at page 1066 of the same volume, says: 'As more fully explained later, the same principle validates the voidable acts of corporations, on the theory of a ratification by the acquiescence of all the shareholders, so that, after, a long delay, in which time other rights have supervened or expectations have been founded, upon the faith of an existing state of facts, the shareholders will be precluded from maintaining actions in equity to undo what has been done by the directors or officers without their authority.’ The same writer, in his work on Corporations (2 Thompson on Corporations, 2 ed., par. 1960, p. 1048), says: 'In the law of agency there is a rule that, if one accepts the benefits of an unauthorized contract made in his behalf 'by another, he is bound by its terms the same as if he had entered into the contract in person or had expressly ratified it, provided, of course, that he had full knowledge of all the facts, and'he is thereby estopped from repudiating the contract without restoring the benefits and putting the other party in statu quo. This principle is applicable, in .its fullest sense, to corporations which, from their nature, can act only through the instrumentality of agents. If therefore an officer of a corporation, or other person, assuming to have power to bind the corporation, by a given contract enters into the contract for the corporation, and the corporation receives the fruits of the contract, and retains them after acquiring- knowledge of the circumstances attending the making of the contract, it will thereby become estopped from afterwards rescinding, or undoing- the contract. In other words, by retaining the fruits of the unauthorized contract, with knowledge of the circumstances which entitle.it to its election either to affirm or disaffirm it, the corporation ratifies the contract and makes it good by adoption.’ In the same volume, at page 1056, it is further said: 'It is not strictly necessary to the proper application of the principle of estoppel that the corporation should have received a benefit from, the contract, but it is sufficient that the other party has acted on the faith of it to his disadvantage, as where he has expended money on the faith of it. The reason of the rule is that honesty and fair dealing are the highest public policy, and that a private corporation, which is a mere collection of individuals, is no more privileged to repudiate its engagements and act dishonestly than a single individual is’.”
The court below expressly found the fact to be that the members of the hospital association, whose relation to that organization is not dissimilar to that of shareholders in the ordinary private corporation, had, by their inaction, ratified the sale of the property to the convention, and it is our opinion that the testimony sustains that finding.
The judgment of the court below must therefore be affirmed, and it is so ordered. | [
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Humphreys, J.
On March 18, 1926, appellant instituted suit against appellee in the chancery court of Jackson County to cancel a life insurance policy for $1,000 issued by it on the 24th day of May, 1924, to Lora Fetzer, insuring her life in favor of her husband, the appellee herein, in consideration of an annual premium of $24.46, upon the ground that the 'policy was induced and procured through misrepresentations as to the condition of her health, willfully or knowingly made, with intent to deceive.
One of the alleged false, fraudulent and untrue statements was her answer to the effect that she had never been afflicted with any disease contained in the list of sixty-odd ailments set out in her application for insurance, embracing, among other ailments, disease of can cer and stomach trouble, whereas she had been afflicted with chronic stomach trouble and cancer of the stomach prior to the date of her application for insurance.
The other alleged false, fraudulent and untrue state- ■ ment was to the effect that she had been afflicted with acute indigestion in 1922, and was attended by Dr. Ivy of Tuckerman, in answer to the following question asked by appellant’s medical examiner when she applied for insurance, to-wit:
“Name all ailments, physical injuries and surgical operations said person has had in the last ten years,giving the names of all persons who attended said person in connection therewith, together with date and address.” Whereas she had been treated for chronic stomach trouble in the years 1921, 1922 and 1923, by another physician.
Lora Fetzer died on the fourth day of February, 1926, after having paid two annual premiums on the policy, which amount appellant tendered to appellee, with an offer to rescind the contract, which was declined and refused by him. The policy provided that it would be incontestable after two years from its date, except for nonpayment of premiums. This suit was brought after appellee refused to accept the tender and before the expiration of the two-year limitation.
Appellee filed an answer and cross-complaint, in which he denied the material allegations of the complaint, and prayed for a recovery on the policy -for $1,000, with interest from April 4-, 1926, with a 12 per cent, penalty, and a reasonable attorney’s fee.
The cause was submitted to the court on the pleadings and testimony introduced by the respective parties, and which resulted in a decree dismissing appellant’s complaint for the want of equity, and in a recovery by appellee against appellant for $1,000, the amount of the policy sued on, with interest at 6 per cent, per annum f-rom April 4, 1926, and $120 as penalty and $200 as attorney’s fee, from which is this appeal.
In part II of the application for insurance, made a part of the policy, sixty or more ailments are listed, with the following question adjoined: “Of all the ailments mentioned, said person has had only the following: (if none, so state) “None.” The list contained diseases of stomach and cancer.
The following question and answer also appears in part II:
“Q. Name all ailments, physical injuries and surgical operations said person has liad in the last ten years, giving the names of all persons who attended said person in connection therewith, together with date and address? A. Acute indigestion, 1922, Dr. Ivy, Tuckerman.”
In addition to the list of ailments embraced in the first question set out above, which was question 20, there were thirty-eight other questions relating, in one way or the other, to the health and history of the applicant, which the medical examiner, Dr. E. O. Norris, was instructed to propound to the insured. In addition to these questions the examiner was directed to make an extensive examination of the applicant, especially covering pulse rate, blood pressure, heart action, and specific gravity of the urine. Dr. Norris was a witness in the case, and testified that he made a physical examination of the applicant at her home. When he called at her home to make the examination he found the applicant, her husband and daughter, picking strawberries. His examination revealed that she was a strong, healthy-looking woman, normal in every respect. He testified that the examination was made in the house, and that no one was present except the applicant and himself, and that he propounded all of the questions contained in the application to her, and recorded her answers correctly. Dr. Norris testified further that he treated the insured in her last illness, and that she died from cancer of the stomach; that it Qould be possible, but not probable, that she had incipient cancer of the stomach when he examined her for insurance ; that it is a disease of slow duration; that she would not and could not have known of the existence of an incipient cancer, because it would have required an X-ray or gastric examination to have discovered it at the time she applied for insurance, and he made neither.
Agnes Batten, a daughter of appellee and the insured, testified that, when Dr. Norris came to their home to make the medical examination of her mother for insurance, her father, mother and herself were picking strawberries close to the house, and that she remained in the room with Dr. Norris and her mother during the entire time the examination was being' made.
Appellee testified that the examination of Dr. Norris was short, and that he remained in the room with them the entire time; that Dr. Norris had some blanks containing questions; that he wrote the answers to some of the questions without reading them to his wife; that he asked her only a few questions; that he did not ask her to give him the names of all the doctors who had treated her in the last ten years; that he spoke of having called to see her himself on one occasion, and asked who was treating her at that time, and .she said Dr. Ivy.
Dr. L. S. Slayton testified that he treated the applicant about thirty-seven times in 1921, 1922 and 1923; that about thirty of the treatments were for chronic stomach trouble. In answer to a hypothetical question based upon the result of the physical examination made by Dr. Norris when he examined her for insurance, Dr. Slayton testified that her condition indicated that she had recovered from the stomach trouble for which he had treated her in those years.
The sole question arising out of the pleadings and testimony on this appeal is whether the insured willfully and knowingly misrepresented that she had been treated for chronic stomach trouble or a cancerous condition of the stomach within ten years next before applying for the policy, in order to procure same. This court is committed to the doctrine that misrepresentations willfully and knowingly made, with intent to deceive, in an application for life insurance, will void the policy. Metro politan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393; Bankers’ Reserve Life Co. v. Crowley, 171 Ark. 135, 284 S. W. 4.
It cannot be said that the finding of the chancery court, to the effect that the alleged misrepresentations were not made, are contrary to a clear preponderance of the evidence. There is a direct conflict between the testimony of Dr. Norris and appellee as to whether the questions which were asked the insured elicited the answers claimed to be untrue. Dr. Norris testified that he asked every question ¡and recorded the answers correctly. To have done so, and to have made the physical examination he said he made, would have required a long time. Dr. Norris said that no one was present when he made the examination, except the insured; appellee testified that he was present- all the time; that the examination was short, and that the questions referred to were never propounded to the insured. Appellee’s . daughter corroborated the statement of her father to the effect that he was present during the examination.
Appellant contends that appellee w-as not entitled to recover on the policy without showing by the weight of the testimony that the insured was in good health, when the policy was delivered to her. Its contention is based upon the following provision in the policy:
“3. That there shall be no contract of insurance unless the premium is paid and the policy delivered to and accepted by the applicant during the lifetime and good health of the person proposed for insurance, and that then the policy shall relate back to and take effect as of such date as may be fixed by the company in the policy.”
Dr. Norris testified that the insured was thirty-seven years of age when he examined her; that her pulse beat was 78, her blood pressure systolic was 118 and her diastolic 84; that the heart action was correct; that the condition of the mouth, gums, teeth and tonsils was good; that he could find no evidence of disease of the liver, gall bladder, stomach or pancreas. The result of Dr. Norris’ examination was incorporated in detail in a hypothetical question propounded to Dr. Slayton relative to her state of health, and his reply thereto was that the result indicated that she had recovered from her, chronic stomach trouble for which he had treated her in 1921, 1922 and 1923.
The ability of the insured to do hard labor like picking strawberries in the heat of the day indicated that she was in good health when the policy was delivered to her.
Appellant also assails the amount allowed the attorney on the ground that it was excessive. We do not think a $200 fee is incommensurate with the services rendered, considering extensive litigation, together with the amount involved. The case has been brought'to this court "on appeal for trial de novo, and the attorney for appellee has filed a brief in the case.
No error appearing, the decree is affirmed. | [
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Lyle Brown, Justice.
The plaintiff-appellants are taxpayers, residents, and electors of twenty-five of the State’s senatorial districts. The defendant-appellees constitute all State Senators. Plaintiffs below sought a writ of mandamus to require the thirty-five senators to draw lots to fix their terms of office at two or four years in accordance with Sec. 6 of Art. 23 of our Constitution. The case was submitted on the pleadings, requests for admissions and responses, stipulations, and motion for summary judgment. Plaintiffs’ motion for summary judgment was denied and the complaint dismissed.
In Block v. Allen, 241 Ark. 970, 411 S. W. 2d 21 (1967) we explained the history of the senatorial apportionment provisions of our Constitution and the pertinent decisions of this court. That explanation need not here be detailed; reference is made for the benefit of interested parties. However, for clarity we should reiterate that Amendment 23 requires senatorial drawing by lot following reapportionment after' each federal census. At the drawing eighteen senators would draw terms of two years and the remainder would draw terms of four years.
The taxpayers contend there is no conflict between the cited provisions of Amendments 23 and 45 (which fixes senatorial terms at four years); there being no conflict, they assert that since there was a reapportion ment as directed by Yancey v. Faubus, 238 F. Supp. 290 (E. D. Ark. 1965), there should be an immediate drawing by the twenty-six senators not affected by the decision in Catlett v. Jones, 240 Ark. 101, 398 S. W. 2d 229 (1966). The nine senators in Catlett were elected to four-year terms in 1964. Their districts were not altered by the court-ordered reapportionment resulting from Yancey v. Faubus. We therefore held they could serve the remainder of their terms. Contra, the senators assert that Amendment 45 gives them an unqualified right to serve four years, superseding the required lot-drawing provisions of Amendment 23. Alternatively, the senators contend that lot-drawing is not required as a consequence of a court-ordered apportionment, and specifically that any drawing is restricted to every ten years following the regular federal census.
First, we dispose of the contention that Sec. 6 of Amendment 45 nullifies the lot-drawing provisions of Amendment 23. The involved portion of Amendment 45 reads as follows:
“At the next general election for the State and County officers ensuing after any such apportionment, Representatives shall be elected in accordance therewith, Senators shall be elected henceforth according to the apportionment now existing, and their respective terms of office shall begin on January 1 next following. Senators shall be elected for a term of four years at the expiration of their present terms of office.” (Emphasis supplied.)
Four-year terms for senators, reapportionment, and drawing by lots are thoroughly embedded in our law. Those principles are found in every Arkansas Constitution, four in all, since 1836. Having been harmonized for 131 years, it is not reasonable to believe that the electorate intended to sever those provisions merely by approving the customary four-year term for senators. Repeal by implication is not favored.
The contention that Amendment 45 eliminates drawing by lot would in effect defeat redistricting. That is true because without Amendment 23 there would never be a time when all senate terms expired simultaneously. In effect the senatorial districts would be frozen, a result which was declared unconstitutional in Yancey v. Faubus.
We encounter no difficulty in harmonizing the two provisions, that is, the four-year term in Amendment 45 and the lot-drawing provision in Amendment 23. We agree with the statement in the concurring opinion in Block v. Allen, that the decision in Ycmcey v. Faubus did not affect Sec. 6 of Amendment 23.
It is next contended by the taxpayer-appellants that Sec. 6 of Amendment 23 is applicable to the 1965 reapportionment made pursuant to the decision in Ycmcey v. Faubus. If that contention is correct, an immediate drawing would be required, rather than wait until the 1970 federal census.
The only administrative procedure in our constitution requiring members of the Senate to be “divided into two classes by lot” is Sec. 6 of Amendment 23, which provides:
“. . . At the first regular session succeeding any apportionment so made, the Senate shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next reapportionment hereunder. ’ ’
The apportionment referred to in Sec. 6 is defined in Sec. 4 as being the apportionment immediately following each federal census:
“The Board [of Apportionment] shall make the first apportionment hereunder within ninety days from January 1, 1937; thereafter, on or before February 1 immediately following each Federal census, said Board shall reapportion the State for both Representatives and Senators ...”
It must he conceded that those provisions amount to a restriction upon the length of the terms of office for which some of the senators are elected. However, that provision, being in the Constitution, is well known to all senatorial candidates and they cannot complain if they become affected by it. But we do not think an additional restriction should he placed on their tenure in the absence of constitutional sanction.
In Butler v. Democratic State Committee, 204 Ark. 14,160 S. W. 2d 494 (1942), this court held that the election of an entirely new senate should he conducted after the federal census and then only when the Board of Apportionment altered the boundaries of any of the senatorial districts. In Catlett v. Jones, supra, we declined to shorten the elected terms of office of the involved nine senators. They were found to have been elected “in accordance with the Board’s plan” of reapportionment after Yancey v. Fembus, supra. Our holding today is in conformity with those two cases; to hold to the contrary would actually be inconsistent with Butler and Catlett. Furthermore, the problem now before us was fully explored when Block v. Allen, supra, was under consideration. There, as here, we had the benefit of exhaustive briefing, and the Block case was orally argued. In Block v. Allen we concluded there was “logic and apparent merit” in the theory of appellees that an immediate drawing was not then required. Additional consideration of the question has served only to strengthen that conclusion. Quoting from the concurring opinion in that case, it is our holding that “there is no occasion for a drawing until at least after the 1970 Federal census has been taken.”
We would also point out that appellants seek a man datory drawing for twenty-six senators, whereas the Constitution requires that thirty-five senators participate.
If any change is made by the Board of Apportionment (or by this court on appeal) in the boundaries of the senatorial districts as a result of the 1970 census, it will necessitate the election of an entirely new senate. The newly-elected senators would then draw for tenure as required by Sec. 6. Butler v. Democratic State Committee, supra.
We express no opinion upon the right of a group of taxpayers to here litigate an action against the Senate. That question was not raised, in fact all parties here seek a full determination of the case on its merits.
For the recited reasons we hold that the taxpayer-appellants’ motion for summary judgment should have been denied and their complaint dismissed.
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Conley Byrd, Justice.
This appeal by Western Surety Company against appellee Washington County, Arkansas, and numerous intervenors, (unpaid suppliers of materials and labor), arises out of road construction contracts between the county and the state of Arkansas in which the county acted as contractor in oHer to obtain federal matching funds. The complaint alleges that Western Surety made a performance bond with the state of Arkansas, agreeing to pay all claims for which the county became liable under the road projects involved.
The county, in performance of the contracts, incurred liabilities of $148,319.58 to suppliers of materials and labor, including intervenors herein. Before presentation of the claims the county ran out of funds. After a check by the State Auditor’s office it was determined that the county had a balance of $53,455.39 in its road fund and $17,854.35 in its general fund. Appellant paid or compromised the many claims filed on the projects guaranteed by it, taking in each case an assignment for the amount paid, for a total of $118,821.14. Typical of the many assignments is that of R. A. Young & Sons, Inc., as follows:
“That I, C. H. Young, President, and J. D. Griffin Secretary of R. A. Young & Sons, Inc., for and in consideration of the payment to R. A. Young & Sons, Inc. of the sum of $1,279.85 by Western Surety Company, do hereby transfer, set over and assign to the said Western Surety Company all of its right, title and interest in and to the claim which R. A. Young & Sons, Inc. has against Washington County, Arkansas, said claim against Washington County, Arkansas being more particularly described in a certain Complaint filed in the Washington County Circuit Court, same being Circuit No. 5096, Washington County Circuit Court, and as described in Order as filed on the . day of ., 196..., in case No. styled R. A. Young & Sons, Inc. vs. Western Surety Company, filed in the Circuit Court of Washington County, Arkansas, which Order held that such claim or claims were held to be true, correct and just claims against Washington County, Arkansas. Said claim or claims arise for materials furnished by R. A. Young & Sons, Inc. to the said Washington County, Arkansas during 1964 on Job C-7-48, Federal Aid Project S-1194(l); Job C-72-41 and C-72-50, Federal Aid Projects S-1189 and S-1189(l) and S-1189(2); C-72-47, Federal Aid Project S-1193 and S-1193(a); Job C-72-48, Federal Aid Project S-1194 and S-1194(l); Job C-72-49, Federal Aid Project S-1195(l) and S-1195(2). The payment of these claims by Washington County has been refused by Order of the Washington County Judge in . Payment of this sum of $1,279.85 and assignment by us acting by and through the authority granted as President and Secretary respectively of R. A. Young & Sons, Inc. does hereby satisfy said claim as to Western Surety Company, it being understood that such payment to the said R. A. Young & Sons, Inc. in no way impairs Western Surety Company’s right to pursue reimbursement of said sum paid herein as surety on Washington County surety bond against Washington County, it being the intention of this instrument, i. e., Assignment, to place Western Surety Company in the same position as R. A. Young & Sons, Inc. insofar as R. A. Young & Sons, Inc.’s claim against Washington County is concerned up to and including the sum of $1,279.85; R. A. Young & Sons, Inc. agreeing by payment of said sum by Western Surety Company to allow and grant to Western Surety Company full authority to demand and receive to Western Surety Company’s own use upon payment thereof up to $1,279.85, or any part thereof, by Washington County or any other person, firm, or corporation to Western Surety Company, and to give and discharge for the same as if the same had been paid by Washington County to R. A. Young & Sons, Inc.
“R. A. Young & Sons, Inc. does hereby authorize Western Surety Company in its name but at Western Surety Company’s own expense and cost to pursue the claim against Washington County, Arkansas for which it, R. A. Young & Sons, Inc., originally filed claim or claims against the said Washington County but for which, by reason of the Order of the Washington County Court, said claim or claims were disallowed requiring payment of said claim or claims by Western Surety Company as surety for Washington County, Arkansas.
“And R. A. Young & Sons, Inc. does hereby agree to acknowledge; pursue and execute all other necessary legal processes on behalf of itself against Washington County for and on behalf of said Western Surety Company against Washington County, Arkansas, up to and including the total amount of $1,279.85. Said enforcement or proceedings on behalf of Western Surety Company to be at Western Surety Company’s own expense or cost -with out recourse on R. A. Young & Sons, Inc.”
The allegation with respect to the assignments is as follows:
“That Western Surety Company by virtue of its performance of its surety bond and the payment of the above set forth claims and the taking of Assignments by the laborers, materialmen, and suppliers has become sübrogated and substituted for these laborers, material-men, and suppliers.”
After sustaining the demurrer and dismissing appellant’s complaint, the trial court directed that that portion of the intervenors’ claims not assigned to appellant, totaling $29,498.44, be paid in full from the county road fund. Appellant appeals, contending that its complaint stated a valid cause of action upon the assignments and that the trial court erred in ordering payment of $29,498.44 from the county road fund to the individual claimants without making a pro rata distribution among all claimants, including appellant. The interven-ors contend (1) that the demurrer was properly sustained, (2) that Western Surety is estopped to contend that Amendment 10 is inapplicable to its claim, and (3) alternatively that both the general fund and the road fund should be ordered paid out on a pro rata basis.
Our cases specifically recognize the right of assignment of a claim against a county. McKim v. Highway Iron Products Co., 181 Ark. 1121, 29 S. W. 2d 682 (1930). The complaint certainly states a cause of action against the county for the pro rata payment of the balance in the county road fund upon the assignment of the claims against the county.
The record shows that, notwithstanding the county’s alleged lack of funds, all of the materialmen and suppliers filed claims with the county which were disallowed under Amendment 10 in that the claims ex ceeded revenues for 1964. All claimants promptly filed appeals to the circuit court, where the claims were allowed. The allowance of the claims by the circuit court was in effect a judgment in favor of claimants and against the county road funds to the extent of the 1964 revenues. Logan County v. Anderson, 202 Ark. 244, 150 S. W. 2d 197 (1941). Consequently, the alleged invalidity of the claims under Amendment 10 was there determined and became final and not subject to a collateral attack. Therefore, we hold that the trial court erred in sustaining the demurrer and in ordering the funds to be paid out to the intervenors without pro rating the same with appellant.
It has been suggested by the intervenors, as an alternative argument, that under Ark. Stat. Ann. § 17-603 (Repl. 1956), the county general fund should be combined with the county road fund for the purpose of paying claims. We question whether the statute authorizes the trial court to go this far, but do not reach the point in this instance because the intervenors took no appeal from the action of the trial court.
Reversed and remanded.
Amendment 10 voids all contracts of counties in excess of current revenues. | [
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Conley Byrd, Justice.
Appellant Vernon Nelson was involved in a collision with appellees David Keith Underwood and Betty Lee Underwood, his wife, at the intersection of Frog Levee Road and Highway 95 near Morrilton, Arkansas. Nelson was making a left turn with his pick-up truck when he was struck in the left side by the automobile driven and occupied by the Under-woods. Nelson testified that he was giving a proper left-hand turn signal. The Underwoods deny that any signal was given. From a jury verdict awarding a substantial judgment in favor of each of the Underwoods, Nelson appeals, claiming error in the selection and impaneling of the jury; error in the trial court’s failure to' direct a verdict; that the verdict for Betty Lee Underwood was excessive; and that the trial court erred in instructing the jury upon Ark. Stat. Ann. § 75-609 (b) (Repl. 1957).
The instruction given upon the statute by the trial court, being incorporated in AMI 601, is in part as follows :
“There were in force in the State of Arkansas at the time of the occurrence seven (7) statutes which provided:
“75-609: The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:
“(b) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
“A violation of one or more of these seven (7) statutes although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in this case.”
We hold that it was error to instruct the jury on the statute, under the facts of this case, without informing them that the statute did not apply if Nelson was making a lawful left turn — i. e., if he had given the proper signals for the left turn. As given, the instruction leaves with the jury the impression that once the overtaking vehicle has given an audible signal, the overtaken vehicle must yield the right of way even though he is properly signaling for a left turn exit from the highway.
In view of this reversal we do not reach and have made no determination on the excessiveness of the verdict. We find no merit in the other alleged errors.
Reversed.
Habéis, C. J., and Jokes, J., would affirm the judgment.
In the compiled statutes the phrase reads, “except when overtaking and passing on the right as permitted.” The original act says, “is permitted.” | [
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John A. Fogleman, Justice.
This is an appeal from the judgment of the Pulaski County Circuit Court convicting appellant of the crime of assault with intent to kill. The record reveals that, on the day set for trial, counsel for appellant requested a continuance for the alleged reason that, as appellant was of Mexican descent and unable to testify in his own behalf, additional time was needed to secure the assistance of an interpreter. The trial court overruled this motion. Following the presentation of the State’s evidence, the appellant rested without offering any evidence, and the court, sitting as a jury, found appellant guilty of the crime as charged.
For reversal the appellant alleges that the trial court erred in overruling* his motion for a continuance and that there is no substantial evidence to support the verdict. 'These points will be discussed in the order mentioned.
I
Whether a case should be continued or not is generally a matter resting within the sound discretion of the trial court, and unless it clearly appears that the refusal to grant a continuance is an abuse of discretion so as to operate as a denial of justice, the trial court’s action does not constitute a ground for a new trial. Allison v. State, 74 Ark. 444, 86 S. W. 409; Smith v. State, 219 Ark. 829, 245 S. W. 2d 226. Absent a showing by the moving party that he has exercised due diligence, the trial court will not be held to have abused its discretion in refusing to grant the motion. Bullard v. State, 159 Ark. 435, 252 S. W. 584; Bowman v. State, 213 Ark. 407, 210 S. W. 2d 798; Gerlach v. State, 217 Ark. 102, 229 S. W. 2d 37.
While it is fundamental that a defendant in a criminal prosecution should be afforded the opportunity to testify in liis own behalf, to be confronted with adverse witnesses and to call witnesses in defense of the charges against him, we find that the trial court committed no error in refusing to grant a continuance in this case. The appellant has made no attempt to show the exercise of due diligence on his part. No evidence has been offered to establish his alleged inability to speak or understand the English language. Further, there is no showing in the record before us that appellant was diligent in seeking the services of an interpreter. On the contrary, the record reflects that from the time of his plea of guilty on April 4, 1966, until the daté of his trial on July 19, 1967, appellant was before the court with his attorney no fewer than three times. On no occasion, prior to the day of the trial, was it suggested to the court by appellant or his attorney that an interpreter would be required for his defense. Finally, although appellant and his counsel were appraised on June 19, 1967, that the trial would be held on July 19, there is no showing of any effort to obtain the assistance of an interpreter, either at the time the trial date was set or during the following month. On this state of the record, we cannot say that due diligence has been exercised.
II
Appellant next contends that the evidence was not legally sufficient to support a finding that he intended to kill the complainant by his act. The State’s evidence consisted wholly of the testimony of officer Lester Hall of the Little Bock Police Department. According to his report and testimony, he received a call to a disturbance at the T-Bone Inn on the David O. Dodd Boad. Upon his arrival there he saw appellant sitting in a 1956 Mercury with the motor running. When the officer asked appellant to get out of the car, it at first appeared that he would comply; but as Hall approached the car, the appellant got back in the car and accelerated it toward him. It was necessary for Hall to “run to get out of the way to keep him from running me down”; he had to “hit the ground” in order to get out of the way.
Although an automobile is not ordinarily considered a “deadly weapon” in the criminal sense, it does not tax the imagination to see that appellant’s car constituted such a weapon. Hall’s life would have been in no greater danger if appellant had fired a gun at him. In Morris v. State, 226 Ark. 472, 290 S. W. 2d 624, we said: “No particular instrument or weapon need be employed in order to constitute an assault with intent to kill or murder. 'Such a crime is ordinarily committed by the use of a weapon, the employment of which is calculated to produce death, but the use of such a weapon is not requisite to the commission of the crime.” Certainly it can be inferred from the use of appellant’s automobile, as described by officer Hall, that appellant intended to kill the officer. As we said in Craig v. State, 205 Ark. 1100, 172 S. W. 2d 256, “While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault . . . and all other facts and circumstances tending to reveal defendant’s state of mind.” See, also, Davis v. State, 206 Ark. 726, 177 S. W. 2d 190, and Numley v. State, 223 Ark. 838, 270 S. W. 2d 904. As we must view the evidence in the light most favorable to the State in determining whether it is sufficient to support a finding of guilty (Cook v. State, 196 Ark. 1133, 121 S. W. 2d 87), we are unable to say that the facts .here are insufficient to support an inference that appellant intended to kill by his act.
The judgment is affirmed.
The attorney who moved for a continuance was not the! same attorney who had previously appeared with appellant. | [
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Lyle Brown, Justice.
Robert Martin, for forty-four years a nonuniformed employee of the City of Little Rock, instituted this action to recover disability retirement benefits as provided by city ordinances. The chancellor awarded Martin 44.3 months disability pay and the City appeals. The City here contends that the disability payment authorized by the ordinances is a mere gratuity to be paid a disabled employee only if the City adjudged the payment to be warranted.
Ordinance No. 6775 was adopted in 1945. It “announces and adopts the following policy and procedure for those employees who, because of permanent disability, retire from the city’s employ.” Continuing, the ordinance states that a nonuniformed city employee who is compelled to retire because of sickness, or because of permanent disability growing out of an injury incurred in line of duty, shall be retained on the payroll. The period of retention is fixed at a number of months equal to the number of years of service.
Ordinance No. 10783 was enacted in 1958. It reiterated the policy of the City to continue to pay dis abled employees of the nonunifoumecl group as in the past “until such time as a better retirement plan is adopted. ” It is there required that the retiring employee fnrnish a certificate from his physician and submit to examination by the city health director. The latter must approve the request for retirement. The approval by the city health director could only mean that the director must find the employee physically disabled.
The City has not subsequently adopted any retirement plan to cover nonuniformed employees who are compelled to retire because of sickness or injury. It did, by resolution in 1960, approve a group retirement plan funded by an insurance company. The City and its employees pay the premiums and it enables participating employees who attain 65 years of age and meet other requirements to draw retirement pay. The insurance program is not a sickness and disability retirement plan and therefore does not affect the provisions of the recited ordinances. The plan is here mentioned because the City, in denying Martin’s claim, stated (through its manager) as the reason “that there was no city policy to pay employees who have regular retirement.” Martin was eligible to draw under the insurance plan at the time of his retirement. For reasons not here pertinent, Martin elected to take a lump sum payment, which amounted to a return of his premiums and a small rate of interest.
Martin supplied the City with a letter from his physician and submitted to examination by the public health director. The diagnosis was osteoarthritis, chronic and generalized arteriosclerosis, and “rapid and forceful heart beat.” The health director stated Martin’s condition to be chronic and progressive and ended with this conclusion: “I doubt that he can continue his present occupation.” It was the duty of ¡Coy Adams, City Personnel and Civil Service Director, to examine the documents, calculate the employee’s years of service, and transmit the information to the city manager. Mr. Adams testified that Martin conformed to, and met, all procedural requirements. Mr. Adams informed the city-manager that ‘ ‘Robert ought to have his disability retirement. ’ ’ It was stipulated that Martin duly conformed to required procedures and that “he was compelled to ,retire from his employment due to sickness and permanent disability to perform his job.”
Only one point for reversal is properly raised. Appellant contends that the lower court erred in ruling that Robert Martin is entitled to the 44.3 months disability pay as provided by the recited ordinances. Before discussing that issue we point out that generally before a board’s decision will be reviewed it must be alleged that the board has acted arbitrarily. Dunn v. Dauley, 232 Ark. 17, 334 S. W. 2d 679 (1960). Appellee failed to allege in his complaint arbitrariness or capriciousness on the part of the Board. However, since appellants have at no time raised that point it is deemed waived.
We revert to the only reason shown by the trial record for disallowing Martin’s claim, namely, not to pay employees who are eligible for old-age retirement pay under the insurance plan. The undisputed proof gleaned from the City’s only witness (who was expertly qualified) is that the City has continued to pay disability retirement under the ordinances since the adoption of the old-age retirement plan, i/ncluding those employees who joined the insurance program (old age retirement). So far as the record discloses, Robert Martin is being shunted aside while others in his identical category continue to be paid. We do not hesitate to label that action as creating differences in rights where there is absolutely no difference in situation. That action was condemned in Application of Wallace, 199 N. Y. S. 2d 526 (1960). The ordinances cannot be ravished to the detriment of one qualified employee by a mere resolution of the City Board of Directors which denies only that employee his authorized benefits.
We would emphasize that the single question here presented is whether, as a matter of law, Robert Martin has a vested right to disability benefits. Under the recited ordinances and the undisputed facts, Robert Martin qualified himself to be maintained on the payroll of the 'City of Little Bock for a period of 44.3 months from November 30, 1966, subject to approval of the Board of Directors. Since the Board’s approval was denied arbitrarily, we hold that beginning with that date Martin became entitled of right to each periodic installment as it accrued, that obligation to continue at least so long as the ordinances remain in force.
Affirmed as modified. | [
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Conley Byrd, Justice.
Workmen’s Compensation claimant James Robert McCollum appeals from a circuit court order upholding the Commission’s finding against him.
Appellant had been employed by appellee Jones Truck Lines since 1962, first loading and unloading trucks, then driving bob trucks, and during the latter three years or more driving trailer trucks. About one in five of the trailer trucks was refrigerated and appellant averaged driving three refrigerator trucks a week. Appellant has a long medical history with various Little Rock orthopedists. His present orthopedist, Dr. Richard Logue, testified that appellant had been a patient since a toe injury in 1959. His medical history reflects that in 1953 torn cartilage was removed from his left knee and in 1957 from his right knee. Dr. Logue had treated appellant’s right knee “numerous times” for chronic swelling. This claim relates to appellant’s left knee.
On September 2, 1966, appellant, suffering from a swelling knee, left work early. After rest didn’t help, appellant went to St. Vincent’s' emergency room where he saw Dr. Logue early September 3. Dr. Logue was surprised to find appellant had a “hugely swollen hot left knee,” and subsequently diagnosed it as a staphylococcus infection in the knee, apparently from staph within appellant’s own body.
After hearing, the referee found that “the duties of claimant’s employment aggravated a pre-existing 'condition. . . . which aggravation of a pre-existing condition is an accidental injury within the meaning of the Arkansas Workmen’s Compensation Act.” The majority of the full Commission found that there was no “convincing or substantial medical evidence that the staphylococcus infection in claimant’s left knee resulted from his employment either as an accidental injury or as ap occupational disease” and denied his claim, which denial was affirmed by the Circuit court.
The gist of appellant’s argument is that working in and out of the cold in refrigerated trailer trucks had aggravated his knee; that he had complained about being assigned so many refrigerated trucks; and that the cold air hurt his knees and apparently caused the staph to lodge in that knee. The deposition of Dr. Logue introduced before the full Commission does not substantiate appellant’s claim of aggravation of a pre-existing-injury. Dr. Logue pretty well summarized his own testimony as follows:
“I do not know whether the swelling was caused by the staph infection or whether the staph infection lodged in Ms knee because there was a swelling that was there as a result of aggravation, work and lifting. I certainly do not know without equivocation.” Appellant’s brief states the point concisely:
“The point here is whether that pre-existing condition of claimant’s was aggravated by the employment. There is no issue here of occupational disease. . . . The real and only issue here is the ‘aggravation of a pre-existing condition,’ whatever the cause of the pre-existing condition.”
On appeal from circuit court, the point here is whether the judgment of the Commission is supported by substantial evidence. During oral arguments, the parties admitted that the matter here is purely a fact question. It is apparent that the credibility of appellant’s testimony about his complaints and the detrimental effects of working in and around refrigerated trucks during the preceding three years was undermined by his record of bidding each year to drive trailer trucks, when he could have bid for non-refrigerated bob trucks without loss of pay. (Appellee’s employees bid each February for the shift and type of truck they will drive from March to March.)
“. . . (I)t is not our province to decide contested issues of fact in compensation cases, ... it is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, and . . the Commission’s findings have the force of a jury verdict. These principles demand that the Commission’s decision in the case at hand be upheld.” Bradley County v. Adams, 243 Ark. 487, 420 S. W. 2d 900 (1967).
Affirmed.
JoNes, J., not participating. | [
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George Rose Smith, Justice.
W. C. Honeywell, Jr., whom we will call the Decedent, died intestate on March 1, 1964, survived by collateral heirs on both sides of his family. His administrator filed the present petition for a determination of heirship with respect to the Decedent’s three tracts of land in Arkansas county (which have since been converted by public sale into cash). This appeal and cross appeal are from the probate court’s determination that Tracts 1 and 2 were ancestral estates coming by the Decedent’s mother and that Tract 3 was a new acquisition.
There is no longer any substantial dispute about Tracts 1 and 2. The decedent, an only child, inherited those two tracts from his mother, who died intestate in 1960. The trial court was unquestionably right in holding those two tracts to have been maternally ancestral. On the maternal side the Decedent was survived by an uncle, who was his mother’s half brother, and by a number of cousins who were descendants of six deceased half brothers and half sisters of the Decedent’s mother. The trial court made a slight error in the division of the proceeds of sale of Tracts 1 and 2, but in the course of preparing their appellate briefs the several attorneys for the maternal heirs have reached agreement that a one-seventh interest goes to the surviving uncle and that the other six-sevenths interest is to be divided per stirpes among the surviving cousins. The cause will be remanded for the entry of a decree to that effect.
The maternal heirs question the trial court’s finding that Tract 3 was a new acquisition. The proof is meager. By stipulation the parties introduced an abstract of title which shows that on February 18, 1948, the Decedent’s mother conveyed Tract 3 to him by warrant}^ deed. The abstract pages contain a number of printed entries for the insertion of information about the instrument being abstracted. With respect to the deed now in question the abstractor typed the letters “OK” after the printed entry, Consideration. That same “OK” was used to describe the consideration for almost every deed in the chain of title. We are not snre ;just what it was intended to mean.
Upon the scant proof in the record we cannot say that the probate court’s decision is against the weight of the evidence. An administrator’s petition for a determination of heirship is similar to a bill of interpleader, in that the rival claimants are called upon to assert their claims. Here we think it fair to apply the rule that prevails in interpleader cases: Each claimant is regarded as a plaintiff and must establish his claim by a preponderance of the evidence. Connelly v. Thomas, 234 Ark. 1024, 356 S. W. 2d 430 (1962).
The maternal heirs did not meet that burden. For an estate to be ancestral there must have been no other consideration than that of blood. Martin v. Martin, 98 Ark. 93, 135 S. W. 348 (1911). The record contains no testimony about the transaction between the Decedent and his mother. Manifestly the most important available evidence was the exact recitation of the consideration in the deed. The abstract of title shows that the deed is of record, but the claimants failed to produce a certified copy. That deficiency in the proof is so significant that it tips the scales in favor of the trial court’s conclusion. In closing, we should add that we attach no importance to the fact that the abstract of title does not indicate that any revenue stamps were attached to the Decedent’s deed. It was evidently not the abstractor’s practice to mention such stamps, because there is no reference to them anywhere in the entire abstract, which includes many conveyances.
Affirmed in part and reversed in part. | [
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Lyle Brown, Justice.
Our first appeal in this case, Guaranty Financial Corp. v. Harden, 242 Ark. 779, 416 S. W. 2d 287 (1967), was limited to that portion, of the trial court’s decree that held void for usury the note and mortgage executed at the time of the construction contract for the building of the shell house. When the mandate of this court was issued, appellant Guaranty Financial Corporation presented a precedent for foreclosure decree. It was based upon the premise that it was entitled to judgment for the amount of the contract less $1,000 that the chancellor had found it would take to correct the deficiencies. Appellees protested that they were entitled to a rescission of the construction contract unless. appellant remedied the defects in the house. Appellant at first objected to the trial court’s requirement that it remedy the defects, hut subsequently acknowledged by letter that rather than appeal it would undertake to remedy them. Upon the hearing for final decree of foreclosure, appellant introduced proof that the defects had been remedied. Appellees, after inspecting the property, testified that the defects were not remedied— particularly those having to do with cracks in the sheet-rock and the front picture window. Due to the conflicting testimony, the chancellor made a personal inspection of the premises, accompanied by counsel for the respective parties, and upon return stated that the property was not as good , as appellant had said it was and not as bad as appellees Contended, but that there were serious cracks in the sheetrock and a defect in the picture window.
From a decree refusing a foreclosure and giving appellant thirty days in which to remove the house, appellant appeals, contending that since the portion of the original decree not appealed from had become final, the trial court was in error in refusing to enforce his decree, and in the alternative that the chancellor’s findings relative to the defects were contrary to a preponderance of the evidence.
The original opinion of the trial court in this case first set forth, the facts; held the note and mortgage void for usury but upheld the validity of the construction contract; then it took up the issue as to the amount due on the contract, finding that the total deficiencies amounted to $1,000; determined that interest on the contract should be at the legal rate of 6 per cent, and concluded :
“The court finds that the plaintiff and/or its assignor, Joe-Lee, shall have thirty days in which to remedy the defects to the satisfaction of the defendants ; that in the event such defects are not remedied in said time then the contract shall be void and each party shall be released therefrom; provided, in lieu of remedying said defects plaintiff or its assignor shall have the right to remove said house from said lot within said period.”
The decree in the first case, after setting forth the formalities as to parties, appearances, and process, made findings of fact and provided as follows:
“IT' IS, THEREFORE, by the court CONSIDERED, ORDERED, ADJUDGED and DECREED that the opinion of the court dated November 22, 1966, is to be incorporated by reference in this decree in its entirety.
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that the note and mortgage signed by the defendants, James Harden and Erma Lee Harden, and given to the cross-defendant, Joe-Lee Homes, Inc., who subsequently assigned it to the plaintiff, Guaranty Financial Corporation, be, and they are hereby declared to be usurious and therefore void.
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that the contract executed between the defendants, James Harden and Erma Lee Harden, and Joe-Lee Homes, Inc., be, and the same is hereby valid and enforceable.
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that the sum of $1,000.00 shall be allowed to correct all deficiencies for which the cross-defendant, Joe-Lee Homes, Inc., is responsible under the contract.
“IT IS FURTHER by the court ORDERED, ADJUDGED and DECREED that the plaintiff, Guaranty Financial Corporation and/or its assignor, Joe-Lee Homes, Inc., be, and they are hereby allowed thirty days in which to remedy the defects to the satisfaction of the defendants, James Harden and Erma Lee Harden; that in the event such defects are not remedied in said time then the contract shall be void and each party shall be released therefrom; provided, in lieu of remedying said defects the plaintiff or its assignor shall have the right to remove said house from said lot within said period.
“IT IS FURTHER ORDERED, ADJUDGED and DECREED that the plaintiff be, and it is hereby ordered and directed to pay all costs of this action. ’ ’
The portion of the decree not appealed from in the first appeal, Guaranty Financial Corp. v. Harden, supra, leaves much to be accomplished in the way of draftsmanship, but when it is considered together with the opinion of the trial court we can not say that the trial court erred in refusing to enter a foreclosure decree until appellant had complied with its construction contract by remedying the defects. The only practical effect of our former opinion on the first decree entered by the trial court was merely to reinstate the mortgage lien executed by the parties. It did not in any way affect those portions of the decree from which no appeal was taken.
We have consistently held that where the testimony of the parties is sharply contradictory and the vital issue is one of credibility, the chancellor’s finding of facts is entitled to great weight on appeal. Dearien v. Lancaster, 221 Ark. 98, 252 S. W. 2d 72 (1952). From the contradictory evidence in the record here, we are nnable to say that the chancellor’s finding is contrary to the weight of the evidence.
Affirmed.
FoglemaN, J., disqualified and not participating.
George Rose Smith, J., dissents. | [
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Conley Byrd, Justice.
This boundary dispute between appellants, O. U. Green et ux., and appellees, Edwin P. Higgins et ux., revolves around the location of the Wyman and Elkins Public Road in the SW 14 of the NW^ of Sec. 14, T 16 N, R 29 W, in Washington County, Arkansas.
The record shows an 1880 conveyance to Round Mountain School trustees of a portion of the said SW 14 NW 14 of Sec. 14 described as commencing 8 Rods South of NW corner, thence 20 Rods South, thence 16 Rods East, thence 20 Rods North, and thence West to the place of beginning. Thereafter Thomas C. Hastings, a common owner of both parties, on May 31,1915, conveyed by warranty deed to J. M. Jackson as follows:
“Part of the South West (14) of the South West (14) of Section (14) fourteen Township (16) Sixteen Range (29) West Beginning at the Corner Stone at S. W. of the S. W. of Section 14 as aforesaid, Running East 40 Rods to the ‘Senter’ of the road then North Westerly along the road (58) Rods to the School ground then West (16) Rods to the Section Line then South to Corner or place of Beginning.” (Emphasis supplied.)
That instrument was acknowledged before B. N. Wood, a Justice of the Peace. Thereafter before a Notary Public, on August 3, 1918, Hastings quitclaimed to W. M. Meredith the following lands:
“A part of the South West quarter of the North West quarter of Section Fourteen (14), Township Sixteen (16) North, Range Twenty, nine (29) West and more particularly described as — Beginning at the South West corner of said forty acre tract and running thence East Forty (40) rods, more or less, to the center of the Wyman and Elkins Public Road as the same now runs; thence in a North Westerly direction following the center of said Road, to the School House grounds, thence due West Sixteen (16) rods, more or less, to the West line of said forty acre tract and thence South Fifty two (52) rods, more or less, to the South West comer of said forty acre tract, the place of beginning — containing nine (9) acres, be the same more or less.”
The quitclaim deed to Meredith obviously was given to correct the erroneous quarter section description in the deed to Jackson.
Appellants acquired their title to the lands here in dispute under the identical metes and bounds description set-out in the quitclaim to Meredith.
On June 25, 1918, Thomas 0. Hastings conveyed by warranty deed to Geo. Bartle under the following description:
“. . . and the South West quarter of the North West quarter of Said Section — Except two acres out of the North West Corner of Said Forty acre Tract occupied as School house property and also Except the following tract of land, to-wit. Beginning at the South West Comer of said Forty acre Tract, running thence East Forty Rods to the Center of the road; thence North Westerly with the road fifty Eight rods to the School ground; thence West Sixteen rods to the Section line, thence South to the Place of Beginning, ...”
All conveyances of the lands in appellees’ title were made with this description until 11/17/1933 when N. W. Smith conveyed to Cora Lovelace under the following description:
“A part of the Southwest quarter of the Northwest quarter of Section Fourteen (14), described as follows, to-wit; beginning at a point which is forty (40) rods West of the South East corner of said forty acre tract, and running, thence North sixty-three (63) rods to the center of public road; thence West with the center of said road nineteen and one-half (19%) rods; thence Southwesterly seven (7) rods to the South East corner of the school ground; thence West with South line of School ground seven and three-fourths (7%) rods to center of another public road; thence Southeasterly with the center of said road fifty-eight (58) rods to the place of beginning, containing eig’ht (8) acres, more or less; . . .’
Conveyances thereafter carried this description up to and including a deed dated 12/20/60 from W. B. Higgins et ux. to appellees. For some reason not explained by the abstract of the record, W. B. Higgins et ux. on 8/18/65 again conveyed to appellees under the following description:
“. . . Part of the Southwest quarter of the Northwest quarter of Section 14, in Township 16 North, of Range 29 West, described as beginning 40 rods west of the South East corner of said forty acre tract, and running, thence North 604.5 feet, more or less, to Myers South line; thence West 321.75 'feet, more or less to the existing Wyman And Elkins Public Road; thence Southeasterly with said road to the point of beginning. Also, beginning at a point on the South line of a Public road which is 1039.50 feet North and 981.75 feet West of the South East corner of said forty acre tract, and running, West bearing South with said road 115.50 feet to the SE corner of the School Ground Lot; thence continuing Westerly with said road 127.875 feet to the Existing Wyman and Elkins Public Road; thence Southeasterly with said road to a point due South of the point of beginning; thence North to the point of beginning. ’ ’
The only ownership claimed by appellees in this litigation is in the foregoing described lands. However, it will be noted that the Wyman to Elkins Public Road is the common boundary between the lands of appellees and their predecessors in title holding under Thomas C. Hastings, and those of appellants and their predecessors in title holding under the same common owner.
Some two 'years before appellees commenced this suit, appellants employed an engineer to survey their lands. He found that the center line of the existing county road from Wyman to Elkins crossed the southern boundary of the forty-acre tract 500 feet east of the SW corner and 820 feet west of the SE corner thereof. He also found that it meandered northwesterly until it crossed the southern boundary of the school prop¿rty at a distance of 7.75 rods or 127.87 feet west of the SE corner of the school lot. He also discovered what he considered to be an old abandoned roadway which crossed the southern boundary of the forty-acre tract at a point 40 rods or 660 feet east and west of the respective SW and SE corners of the forty and meandered northwesterly to the SE corner of the school lot. Based upon the premise thát the surveyor had found an old abandoned road which coincided with the metes and bounds descrip tions, appellants erected the fence along the same which precipitated this litigation.
William Duncan, age 86, testified that he had been acquainted with the Wyman-Elkins Road since 1900 and that it still ran in the same place that it had run every since he could remember. He referred to the old abandoned road found by the surveyor as a pathway used by “foot-backers” and folks on horseback when the regular road got muddy. He had never seen a vehicle on the old road or pathway. The southernmost end of the path left the “Wyman-Elkins Road pert near a quarter of a mile south of the schoolhouse, southeast.”
Mrs. Fannie L. Calico, who has lived at Round Mountain for 65 years, testified that the Wyman-Elkins Road still ran the same place that it had run ever since she could remember, and that there was a path from the east side of the school ground that went up across the mountain and came out over there at a little store, but that it was at no time the Wyman-Elkins Road. Cows were driven down the path and it was a by-pass for school children when the main road was muddy.
Roxie Hastings Campbell, daughter of Thomas C. Hastings, testified that the Wyman-Elkins Road had always been located at the same place it is today. She stated that her father had sold the land on the southeast side of the Wyman-Elkins Road to Jackson. She referred to what the surveyor thought was an old abandoned roadway as a footpath across the hill, and was definite in stating that her father owned the land between the path and the Wyman-Elkins Road.
Witnesses on behalf of appellants stated that they had ridden horseback over the old abandoned road found by the surveyor and that they had seen wagons using it. They also stated that they had never heard the present public road referred to as the Wyman-Elkins Road until this lawsuit came up. Neither had they heard the surveyor’s old road referred to as the Wyman-ElHns Eoad.
The chancellor found that the present existing county road was the “Wyman-EUdns Eoad” and that it was the. common boundary between the parties’ lands.. This finding is not contrary to a preponderance of the evidence.
Appellants point out that under the facts as developed, appeUees’ metes and bounds description, beginning with the deed from N. W. Smith to Cora Lovelace, lacked 160 feet in coming to a close, since the center of the road is 820 feet west of the SE corner of the forty and the point of beginning is only 40 rods or 660 feet west of the SE corner.
In contending the chancellor was in error, appellants make the following argument:
“The property description in appellants’ deed is four-sided. The beginning point is the Southwest corner of the Southwest Quarter (SW %) of the Northwest Quarter (NW /^) and the first call extends forty (40) rods East. This point is same as the point of beginning in the appellees ’ description, which is forty (40) rods West of the Southeast corner of the same forty (40) acre tract. The Court will take judicial notice that a quarter section is eighty (80) rods on each side, there being no evidence to the contrary. This places the appellants’ Southeast corner and the appellees’ point of beginning in the exact identical spot. The appellees ’ point of beginning is measured from the Southeast corner and the appellants’ from the Southwest corner of the forty (40) acre tract, which further verifies the certainty of this identical point.
“The point of conflict in the descriptions is the Northeast corner of appellants’ property and the Northwest corner of appellees’ triangularly shaped property. Both are, by t heir respective metes and bounds descriptions in the center of ‘a road’ (the appellants in the center of the ‘"Wyman and Elkins Public Road as the same now runs’, and the appel-lees ‘to center of another public road’). According to appellants’ next to last call this point should be 16 rods east of the west side of the forty (40) acre tract, which coincides with the southeast corner of the School Grounds as shown by stipulated Exhibit No. 11. According to appellees’ metes and bounds description the northwest corner of appellees ’ property would fall in the center of the ‘public road.’
Assuming this ‘public road’ is the Wyman-Elkins Road, by measurement, this point varies the 7% rods which is approximately the appellees’ next to last call.”
This argument ignores the fact that the courses and distances in appellants’ chain of title are to and from an ascertainable monument and that consequently the distances given in their deed must yield to the monuments. Rodger v. Grain, 235 Ark. 211, 357 S. W. 2d 527 (1962). For this reason, we hold appellants’contention to be without merit, and need not examine his “next to last call” argument which he bases on Irby v. Drusch, 220 Ark. 250, 247 S. W. 2d 204 (1952). From the whole record, it is obvious that appellants are not entitled to claim any land east of the Wyman-Elkins Road, and that appellees’ predecessors in title owned the lands and were attempting to convey to appellees that land lying immediately east of the road.
Next, appellant argues that the trial court obviously erred because the two triangles described in its de cree overlap and the decree encroaches upon the school property. We do not understand the description in the decree as encroaching upon the school property. Furthermore, the overlapping of land calls in appellees’ deed would not prevent the removal of the fence, since the trial court’s only responsibility in this respect would be to determine that appellants had fenced the land of ap-pellees.
Lastly, appellants argue that the trial court erred in requiring them to meet the same burden of proof as appellees, the plaintiffs below. This argument results from a statement in the chancellor’s memorandum opinion which we do not interpret in the same light as do appellants. Even if appellants were correct in their interpretation of the chancellor’s statement, we would have to find it a harmless error since it went only to the issue of whether appellees owned the land/¡.fenced, and the overwhelming evidence is that appellees owned the lands east of the Wyman-Elkins Boad fenced by appellants.
Affirmed.
Their contention is to the effect that we should ignore that portion of the last call running .. Southeasterly with the Center of said road...,” and return in a straight line from appellees' northeasternmost call to his point of beginning. | [
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Paul Ward, Justice.
Very briefly stated, this litigation pertains to the question of liability for a germ infection incident to an operation on the leg of Gary Pilcher, a fourteen-year-old boy.
On September 20, 1962 Gary was admitted to St. Vincent Infirmary, and on the following day the opera tion was performed, necessitating an incision on his leg. He was discharged eight days later and returned to his home. About two months later Gary was admitted to a hospital in Malvern because of fever and a “reddened throat” where his condition was diagnosed as a Streptococcal Respiratory Infection, and was discharged on December 10,1962. Four days later Gary was examined in Little Rock by Dr. Christian, and no objective sign of infection in his leg was found. On January 25, 1963 Gary wa;s reexamined by Dr. Christian and for the first time it was discovered he had a bone infection.
It is stipulated that “St. Vincent Infirmary had in full force arid effect a policy of liability insurance with the Aetna Casualty & Surety Company”. St. Vincent is immune from liability but voluntarily carries insurance.
A complaint was filed by Gary (by his father as .Next Friend) and by his parents (appellees here) against Aetna (appellant here), containing, in substance, the material allegations set out below.
(a)- Gary has suffered injury as previously mentioned because of negligence on the part of St. Vincent’s employees in these ways:
1. They failed to keep those areas of the hospital where Gary was during and after the operation free of infecting organisms.
2. They failed to warn Gary of these organisms.
3. They failed to discover these organisms in the hospital
4. They failed to discover Gary had the infecting organisms.
(b) The acts of negligence set out above were the proximate cause of Gary’s infection and the resulting damage.
(c) As a result of the infection and Cary’s injury, his parents have incurred, and will incur, medical and hospital expenses and have been, and will be, deprived of his services — in the total sum of $15,000.
Appellant entered a general denial, and also moved .for a directed verdict when all evidence was introduced, which motion was denied. A jury trial resulted in a judgment of $18,000 for Cary and $2,000 for his parents.
On appeal appellant waives any reversible error that may have occurred during the trial, and seeks a reversal of the judgments and a dismissal of the complaint on the ground that there is no substantial evidence to support the jury verdicts.
The record in this case is voluminous, and the excellent briefs discuss at length several aspects of the case but, after careful consideration, we have concluded that there is only one pivotal issue. That issue is:
Is there substantial evidence to support a jury finding that Cary’s injury was the result of negligence on the part of the employees of St. Vincent Infirmary?
At the outset we should say that we consider it highly speculative as to when the germ entered Cary’s system. For example, from the proof offered, it is just as possible that he contracted the germ at Malvern two months after the operation as that the germ entered the body at th¿ time of the operation. However, for the purpose of this opinion only, it may be conceded that:
(a) At the time and in the process of the operation Cary was infected by a germ technically termed as '“Hemolytic Staphylococcus Aureus. Coagulase Negative, Penicillin 'Sensative.” (Hereafter we may refer to this germ as “staph .negative.”) There is also a similar germ often referred to in the record which may be referred to as “staph positive.”
(b) Both of these germs are prevalent in hospitals and were, and are very hard to control or eradicate in all hospitals. The record of control by St. Vincent is as good as the average in hospitals locally.and nationally.
(c) There is no direct or positive testimony that Gary’s infection by the germ was the result of negligence on the part of St. Vincent.
If, therefore, the jury verdict is to be affirmed we must find, based on the record hereafter examined, that the negligence of St. Vincent was the proximate cause of Gary’s infection. In this approach it may be conceded, for the purpose of this opinion, that the record reveals substantial evidence from which the jury could have found that St. Vincent was negligent in failing, in some respects not vital to the issue here, to provide better protection generally against germ infection.
Referring to appellees’ four allegations of negligence on the part of St. Vincent as being the proximate cause of Gary’s injury, we feel it sufficient to summarily dispose of the last three.
2. We cannot agree that St. Vincent’s failure to warn Gary of these organisms was the cause of his injury. If he had been warned it is not reasonable to suppose he would have refused the operation or that he could have done anything about it. Also, the doctor knew about them and if he did not use reasonable care to guard against them, then he and not St. Vincent was' negligent.
3. St. Vincent did discover the germs in the hospital and made efforts to guard against them.
4. It was not the duty of St. Vincent to discover Gary had received an infection germ as a result of the operation. Again, this was the duty of his doctor. Moreover, the undisputed testimony reveals that, the infec tion oannot be discovered until later when the result of the germ is manifested — in this instance it was not discovered for several weeks.
1. We now look, in more detail, at the contention of appellees that St. Vincent’s negligence in failing to keep the operation room and surgical instruments free from infecting germs was the proximate cause of G-ary’s injury. Set out below is a summary of the testimony relied on by appellees.
Dr. Orr. If you touch a contaminated piece of equipment the hands become contaminated, if the blade (or plate) inserted in the leg had this germ on them that could have caused the infection — they are sterilized by St. Vincent; frequently the infection comes from contact with hospital personnel. He concluded that the post-op infections were the result of a break in cleaning technique and had been corrected.
Dr. White testified that a chemical company claimed to have a disinfectant which will kill these germs; he thinks the infection here occurred during surgery because of germs on the plate, screws, or instruments, but is aware of other possibilities such as blood-borne organism.
Dr. Christian, who performed the operation, stated that “probably the infection, the germ was introduced probably at the time of surgery;” and that “if some instrument was unsterile it could have introduced it into the bone,” but that there were other ways it could have happened.
Dr. Burger stated that when a person was being operated on he was more likely to be infected, and that “we try to keep all infections to a minimum and we try to be a little more careful in surgery
Mr. Leslie, in charge of housekeeping for St. Vincent,* stated they tried to be more careful in combating the germs in the surgery area than in other areas of the hospital.
Dr. Lee corroborated the testimony of Dr. Burger and Mr. Leslie.
Notwithstanding the testimony above set out and conceding that St. Vincent might have done more than it did do to eradicate or contain the germ, we are unable to hold, in view of what we later point out, that a jury question has been made — as to proximate cause.
Dr. Burger testified that even a mask on the face of the operating doctor could not eliminate the bacteria danger. Dr. Christian, who performed the operation, testified that in spite of the finest surgical technique in the operating room and the hospital this germ cannot be eliminated; that this germ infection happens in approximately 5% of all operations; that it is impossible for medical science to guarantee against this infection; that it is impossible to keep bacteria out of the air; that it is possible Gary or any other person, including himself, could have brought this particular germ into the operating room.
In view of the undisputed testimony that this genu could have entered Gary in so many ways and from so many sources, and in view of the unchallenged difficulty in controlling' it, we must conclude that the jury verdict must have been based on speculation and not on substantial evidence. This conclusion is confirmed by the fact that there is no expert testimony showing St. Vincent was negligent. In many cases the courts have held, in a case of this kind, that expert testimony has great weight where there is no direct proof to the contrary.
In Durfee v. Dorr, 131 Ark. 369, 199 S. W. 376, we find this pertinent statement:
“We think this evidence was competent, as it related to a subject upon which the average juror would have no information or experience upon which he would be in position to formulate an intelligent conclusion unless Tie based his conclusion ■upon, the opinion of one qualified to speak as an expert.” (Emphasis added.)
In Gray v. McDermott, 188 Ark. 1, S. W. 2d 94, we said:
“(these) were questions requiring scientific knowledge to determine. It cannot and should not be left to a jury to speculate whether or not the experts in the practice of their profession have pursued the proper course of procedure.” (Emphasis added.)
In the case of Thompson v. Methodist Hospital, (Tenn.) 367 S. W. 2d 134, a similar issue was involved and the Court made this statement:
“As heretofore noted, the undisputed evidence is that these infections occur in and out of hospitals, and in the absence of negligence. If, under the evidence in this case the Methodist Hospital is to be held liable for the infection contracted by the Thompson baby and transmitted by him to his parents, then few hospitals could reasonably incur the financial risks of having born within its Avails a baby. ’ ’
It is therefore our conclusion that there is no substantial evidence here to support the jury verdict and the judgment based thereon. The judgment is reA’ersed and the cause of action is dismissed.
George Rose Smith and Jokes, JJ., dissent. | [
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Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Little River county, Arkansas, for stealing a red jersey heifer, the property of Dave Coulter, in said county and state in the month of June, 1940. He was adjudged to serve one year in the state penitentiary as a punishment for the crime, from which judgment he has duly prosecuted an appeal to this court.
Appellant assigns as error for the reversal of the judgment the insufficiency of the evidence to sustain the verdict and the judgment.
The .state introduced Dave Coulter who testified, in substance, that he raised the heifer, that he owned her mother; that she ran on the range near Ogden; that he saw them every week or two and was absolutely certain that the jersey heifer that he found in the possession of Dave Smith was the heifer he raised and which was stolen from him in June or July of 1940; that when she was stolen she had no calf, but that at the time he found her at Dave Smith’s she had a young calf; that Dave Smith told him he had bought the heifer from appellant and paid him $50 for her; that appellant lived about one and one-half miles from the range where the heifer was raised.
The state also introduced Enos McDowell who testified that he knew this particular heifer from the time she' was a calf; that he saw her on the range once or twice a week and a short time before she disappeared; that she had no brands on her when she disappeared in 1940, but when he saw her at Dave Smith’s she had a blotted up brand on her.
The state also introduced W. E. McDowell who testified, in substance, that he was acquainted with Dave Coulter’s cattle on the range; that Dave Coulter owned the mother of the heifer; that they had run on the range until the heifer grew up and disappeared; that he saw her later with appellant’s cattle and later with Dave Smith’s cattle; that she had been branded when he saw her with Dave Smith’s cattle.
The state also introduced George Smith who testified that he sold the mother of the heifer to Hale and Coulter; that the heifer in question was the fourth calf from the old cow; that she ran around his house and grew up on the range until it disappeared; that his son, Dave Smith, now has the heifer; that it is Dave Coulter’s heifer.
The state also introduced Dave Smith who testified that he bought the heifer from appellant after she had a calf, and that he paid him $50 for her; that she was with appellant’s cattle; that she had appellant’s brand on her, and that appellant claimed he owned her.
Appellant testified himself and introduced ten or twelve witnesses who corroborated his testimony that he (appellant) raised the heifer he was accused of stealing from Dave Coulter.
There was a sharp conflict between the witnesses introduced on behalf of the state and appellant’s witnesses as to whether Dave Coulter raised the heifer or whether appellant raised her.
The jury found that Dave Coulter raised her, and that appellant stole her from him. In other words, they believed the testimony of the witnesses for the state and disbelieved the testimony of appellant and his witnesses.
The jury was the sole and exclusive judge of the credibility of the witnesses and the weight to be attached to the testimony of each under a correct instruction defining their province to do so.
The jury was’told by the court that: “You are the sole and exclusive judges of the evidence and of the credibility of the witnesses. If you believe that any witness has willfully sworn falsely in any part of his testimony, you may consider any part of his testimony you believe to be true and disregard such parts as you do not believe to be true, and in considering the weight that should be given to the testimony of any witness, you may take into consideration his manner of testifying, his intelligence, his means of knowing the facts to which he is testifying, his interest, if any, in the result of your verdict, the reasonableness or unreasonableness of his testimony, and also if he is contradicted or corroborated by other facts proven in the case.”
This instruction was a correct guide for the jury to follow in dealing with the testimony in the case and its verdict will not be disturbed by this court, on appeal, if the verdict is supported by any substantial evidence. This is the rule announced in many cases by this court, as may be seen by reading the cases of Daniels v. State, 182 Ark. 564, 32 S. W. 2d 169; Walls & Mitchell v. State, 194 Ark. 578, 109 S. W. 2d 143; Brown v. State, 203 Ark. 109, 155 S. W. 2d 722; Burrell v. State, 203 Ark. 1124, 160 S. W. 2d 218.
The evidence introduced by the state, the substance of which is set out above, is substantial and tends to show that appellant within three years next before the indictment was returned against him stole a red heifer, the property of Dave Coulter, in the county and state aforesaid. ITis defense to the charge was that he raised the particular heifer he was charged with stealing. The jury found that Dave Coulter raised and owned her, and that appellant took lier and sold lier to Dave Smith. There is nothing in the record tending to show that appellant and Dave Coulter each raised a heifer just alike. All the. testimony was directed as to which of them raised the particular heifer in question. Appellant either raised her himself or branded and took possession of her and sold her to Dave Smith. The .jury, under conflicting testimony, found that appellant did not raise her, but that Dave Coulter raised her, so that the only reasonable inference is that he stole her. The undisputed fact that he put his brand upon her and sold her to Dave Smith is a strong circumstance from which the jury might reasonably infer that he stole her. A short time after she disappeared from the range, the undisputed evidence shows that she was in the possession of appellant. Bearing upon the question of the effect of the possession of recently stolen property the jury were told -that:
“If you find by the evidence in this case that the appellant, Isiali Starcl, had in his possession the cow as alleged in the indictment, the property of the prosecuting witness, Dave Coulter, then you will consider such possession, if unexplained, as a circumstance in determining the guilt or innocence of appellant. ’ ’
We think the fact that the possession of the j.ersey heifer was traced to appellant a short time after she disappeared from the range was sufficient to warrant the court in giving the instruction. In the case of Davis v. State, 202 Ark. 948, 154 S. W. 2d 812, this court said: “. . . The rule is well settled that the possession of property recently stolen, if unexplained to the satisfaction of the jury, is sufficient to sustain a conviction of the larceny thereof.”
It is true that appellant and his witnesses attempted to explain his possession of the heifer on the theory that he had raised her and was entitled to her possession, but the explanation was not satisfactory to the jury. The jury found, as stated above, that Dave Coulter raised the heifer. There was no error in giving the instruction.
Appellant argues that all of the instructions defining the offense of grand larceny and the essential elements necessary to constitute same had no place in the case because the testimony utterly fails to show an actual taking, or that appellant obtained possession of her ag’ainst the will and consent of Dave Coulter. It is true the evidence does not show the exact time appellant obtained possession of her, but the evidence does tend to show that appellant branded the heifer and took possession of her soon after she disappeared from the range and does reflect without dispute that Dave Coulter never consented for him to take her or brand her. Appellant argues that even if it be conceded that the heifer owned by Coulter was the heifer that appellant sold to Smith the state’s evidence fails to show that appellant had anything to do with taking the cow off the range, and for this reason appellant would not be guilty of anything except embezzlement, and that appellant is not indicted for embezzlement but for larceny which is a separate and distinct crime. The argument leaves out the equation that appellant branded the heifer. The branding of the heifer in appellant’s own brand was a circumstance tending to show the asportation (Reynolds v. State, 199 Ark. 961, 136 S. W. 2d 1028, and Anderson v. State, 200 Ark. 516, 139 S. W. 2d 396) of her especially when he afterwards converted her to his own use by selling her. The crime of embezzlement could only exist in case appellant first came into the lawful possession of the animal and then wrongfully converted her to his own use. There is no evidence that he ever came into the lawful possession of the heifer unless he raised her. The jury has found under the conflicting evidence that he did not raise her.
Appellant objected to each and every instruction. Instructions numbers one and two as given to the jury followed the language of the statute defining larceny and are applicable to the facts revealed by the evidence. This court ruled in the case of Gentry v. State, 201 Ark. 729, 147 S. W. 2d 1, that instructions which follow the wording of the statute and are applicable to the facts in the particular case are proper and correct instructions.
The trial court correctly instructed the jury on reasonable doubt, the credibility of witnesses and the presumption of innocence.
Appellant argues and contends that the court erred in striking the word “knowingly” in its requested instruction number one. The word “knowingly” is not included in the definition of larceny in § 3129 of Pope’s Digest. No prejudice resulted to appellant in striking the word “knowingly” out of the instruction because the instruction after striking the word out charged that they must find that he' willfully stole the heifer and the word “willful” connotes knowledge on the part of one charged with crime.
Appellant also complains that the court improperly modified its requested instruction number four, but we do not think the modification in any way prejudiced appellant.
Upon the whole case no reversible error was committed, and the judgment is, therefore, affirmed. | [
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