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Melvin Mayfield, Chief Judge.
This is an appeal from an award of the Workers’ Compensation Commission holding that appellant had the requisite number of employees to be subject to the Workers’ Compensation Act and that the appellee received an injury arising out of her employment.
It is appellant’s first contention that she did not have three or more regular employees and thus was not subject to the act.
Appellant is the sole owner and operator of Fairview Kennels. She admits that appellee Cathy Bailey was a regular employee. She also admits that Lane Miller was a regular employee. The administrative law judge found, and the full commission agreed, that the appellant, her son, and Mrs. Debbie Fout were also regular employees. If appellant had three regular employees, she was subject to the act.
As to Mrs. Fout, it is appellant’s contention that she was an independent contractor and not an employee. The commission found that she was an employee. This was a question of fact which we must affirm if there is any substantial evidence to support the finding. Purdy’s Flower Shop v. Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977).
There was evidence that appellant would make appointments for dogs to be groomed and Mrs. Fout would come in and do the work. At the end of the week the appellant would give Mrs. Fout fifty percent of what had been collected for the grooming. Their arrangement was not written and the appellant testified she had the authority to fire and hire anyone who worked there. She said Mrs. Fout was a professional groomer and did not need to be told how to do it but at times appellant would tell her “I don’t think you ought to shave this dog. You ought to brush it.”
In Purdy’s Flower Shop v. Livingston, supra, the Supreme Court pointed out that whether one is an employee or an independent contractor is a question of fact and at page 580 said:
The primary test is whether the will of the worker or that of the employer dominates the means and method of the work, except as to result. Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W. 2d 620. We there pointed our that there are numerous indicia of the relationship utilized as guides to the primary question of control, none of which is conclusive or controlling. Among those we have recognized are: the time for which the workman is employed; the right to terminate the employment without liability; the method of payment, whether by time, job, piece or other unit of measurement; furnishing, or the obligation to furnish, necessary tools and equipment and materials; and the exercise of some slight control of the manner of doing the work, where the nature of the work is such that little supervision is necessary. Parker Stave Co. v. Hines, supra; Irvan v. Bounds, 205 Ark. 752, 170 S.W. 2d 674.
We hold that there was substantial evidence from which the commission could have found either way so we affirm the commission’s finding that Mrs. Fout was a regular employee. Since this makes three such employees, it is not necessary to discuss the commission’s finding with regard to the appellant and her son.
The appellant’s second contention is that the evidence does not support the finding that the appellee received an injury arising out of her employment. Appellant contends that there was an “unexplained fall” and that there is no evidence to show it was causally connected to appellee’s work.
Both parties agree that there is no appellate decision in Arkansas dealing with an “unexplained fall” situation. However, we note that § 10.31 of Larson, Workmen’s Compensation Law (1978) says, “It is significant tó note that most courts confronted with the unexplained fall problem had seen fit to award compensation.”
The appellee “explained” her fall this way: “I was cleaning the kennels in back and disinfecting them, and I was going to the front to refill the disinfectant bottle, and I fell and couldn’t get up.” We hold this sufficient explanation for the commission to find that the appellee fell while doing the work her job required and that she thereby received an injury arising out of her employment. This is a question of fact and it has been determined by the commission and unless we find that “fair-minded men could not reach the conclusion arrived at by the commission” we must affirm. Plastics Research & Development Co. v. Goodpaster, 251 Ark. 1029, 476 S.W. 2d 242 (1922).
We hold that the award of the commission is supported by substantial evidence.
Affirmed. | [
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John I. Purtle, Justice.
The Conway County Chancery Court entered an order on February 1, 1980, directing the substitute trustee to carry out the agreement of sale of trust property entered into April 1, 1975, by William M. Bruce, Jr., trustee, and the Gregorys as buyers. This order was entered by the chancery court in accordance with a mandate received from the Arkansas Court of Appeals. The Court of Appeals had determined the agreement of sale was valid and binding on the parties and further that it was effective on April 1, 1975. The Supreme Court of Arkansas had refused to grant certiorari on the decision by the Court of Appeals. The trial court subsequently entered an order on February 29, 1980, the substance of which was that the trust was terminated on April 1, 1975, and the proceeds of the trust estate would be distributed in the same proportion that the income from the trust had been distributed up to the date of the sale of the trust property. The court further held that William M. Bruce, Jr. had inherited his share, which was one third of the value of the trust property, prior to his death on May 9, 1975, and the said William M. Bruce, Jr. died testate leaving his surviving spouse, Miriam D. Bruce, as his sole beneficiary. The court held that Miriam D. Bruce was therefore entitled to William Bruce’s one third share of the estate in accordance with the terms of the will of William M. Bruce, Jr.
On appeal it is argued that (1) the sale cannot be consummated by a successor trustee in this case; (2) the order of February 1, 1980, is erroneous because it brings about an inequitable result; (3) the doctrine of relation back does not apply in this case; and (4) the court should have found the trust continued beyond the sale of the property in question. We do not agree with appellant on any of the points argued for reversal and therefore affirm the trial court.
Mrs. Howard died in 1932 and her will set up a testamentary trust with Mrs. Ewan, one of her three children, serving as trustee during her lifetime. The corpus of the trust, which consisted of the farm in question here, could not be sold during the lifetime of Mrs. Ewan. William M. Bruce, Jr., one of Mrs. Howard’s grandchildren, was to be the successor trustee with the full power to sell any or all of the assets of the trust. Mrs. Ewan died in 1962, and William M. Bruce, Jr. took over and managed the property until 1975. Mr. Bruce became aware of a terminal illness and exercised his power to sell the property. On April 1, 1975, he entered into a contract of sale between himself as trustee and David and LaVonna Gregory. There were certain things to be performed by each of the parties in closing the sale. These items were not all completed before the death of Mr. Bruce on May 9, 1975. The heirs of Mrs. Howard filed a suit relating to the sales agreement on the trust property and the matter came eventually to the Arkansas Court of Appeals. The Court of Appeals found that the agreement entered into on April 1, 1975, between William M. Bruce, Jr., trustee, and the Gregorys was a valid and enforceable contract. Therefore, this part of the dispute is settled, and we will not discuss the validity of the contract as all issues on this are precluded by the opinion of the Court of Appeals. Gregory, et al v. Moose, et al, 266 Ark. 926, 590 S.W. 2d 665 (1979). Certiorari denied by the Supreme Court of Arkansas, 267 Ark. 86, 590 S.W. 2d 662 (1979).
When the case was returned to the Conway County Chancery Court on February 1, 1980, the chancellor ordered the terms of the sale to be immediately carried out. On February 15, 1980, the petitioners, George Howard Moose, Robert I. Moose, Union National Bank of Little Rock and Miriam D. Bruce, filed a motion in chancery court asking the court to rule that the rights of the parties had become fixed as of April 1, 1975, the date of the agreement by trustee Bruce to sell to the Gregorys. On February 29, 1980, the trial court granted the petition fixing the sale and investure of the proceeds of the state on April 1, 1975. The court further found that Miriam Bruce was the beneficiary under the will of William Bruce and was entitled to the one third of the proceeds of the trust estate as it had terminated and vested as of April 1, 1975. In other words, the court found that the transaction related back to the date of the agreement of sale.
In view of the nature of this case we will consolidate the arguments on appeal and treat them all together. This whole case revolves around the issue of whether the agreement to sell the property entered into by trustee Bruce and the Gregorys on April 1, 1975, was effective at that time for the purposes of the trust or whether it was effective in 1980 when the closing papers were finally distributed. The decision as to the effective date of sale in this case determines whether Miriam Bruce will receive a one third interest in this estate. If it is effective at the date of the agreement of sale, Miriam Bruce would receive one third interest in the estate, James S. Moose, Jr. would receive one third, and the remaining one third would be equally divided between George H. Moose, Robert I. Moose and Clarkia Moose Turney. The last three heirs are the children of Howard Moose, deceased, and the nephews and niece of James S. Moose, Jr. On the other hand, if it is effective as of the closing date in 1980, Miriam Bruce would receive nothing, James S. Moore, Jr. would receive one half of the estate, and the other half would be divided between George H. Moose, Robert I. Moose and Clarkia Moose Turney.
The validity and enforceability of the contract has previously been established by the Arkansas Court of Appeals. We think all issues, except the effective date of the sale, have either been disposed of in prior decisions or were not timely raised in the trial court. We agree that William Bruce’s powers as trustee were personal, confidential and discretionary. He had absolute power to dispose of the trust property or any party thereof. This power of sale was exercised by Mr. Bruce prior to his death. No exercise of discretion is necessary for the successor trustee to complete the terms of the sale as the only things left to be done are purely administrative matters. We think the provision in the will which controls is as follows:
At any time after the death of Mrs. George H. Ewan the Trustee is empowered at his discretion to sell any part or all of the estate, and for said purpose the absolute fee simple title thereto is hereby vested in the said trustee in trust, and shall be absolutely binding upon all the beneficiaries named herein, and their descendants, and such conveyance shall vest an absolute title in the purchaser. Such sale by said Trustee shall operate as a termination of this trust as to all the property sold or disposed of by him, and the proceeds arising therefrom shall constitute a part of my estate and trust fund in their hands, and distributed in the same ratio as the annual income as above set forth.
We think a fair interpretation of this provision of the will enabled trustee Bruce to sell the property and such sale “shall operate as a termination of this trust as to all the property sold or disposed of by him.” The plain wording of this section states that the trust has ended as to all of the property since this land was the only property included in the trust. The will further directed that the “proceeds arising therefrom shall constitute a part of my estate and trust fund in their hands, and distributed in the same ratio as the annual income as above set forth.”
Although this Court had previously ruled in Moose v. Moose (February 22, 1977, not designated for publication) that the trust did not violate the rule against perpetuities and declared the trust would terminate on the death of the last surviving grandson, the court did not hold the trust could not be terminated prior to that date pursuant to provisions of the trust. Although James S. Moose, Jr., one of the named grandsons, is still alive, we hold the trust terminated when William Bruce sold the property on April 1, 1975. Therefore, the trial court made a proper determination of those who received the proceeds of the trust. We believe that the rule of equitablé conversion applies in this case. The Gregorys were considered in equity as trustees of the purchase price for the vendor and William Bruce, trustee, held the property as security for the purchase price. It has been stated that where the property passes under contract a conversion operates from the time of the instrument. 27 Am. Jur. 2d Equitable Conversion § 15, Page 498. In Turner v. Davis, 41 Ark. 270 (1883), we stated:
A person entitled to the proceeds of lands directed to be sold has no estate in the land, whatever; only an equity to be enforced against the trustee, or other person wrongfully detaining his share of the proceeds. The interest is so entirely in the nature of personal estate, that where aliens are incompetent to hold realty they may take it. There is left no such interest in the land itself as can be bound by a judgment lien or touched by an execution. *** The equitable doctrine of conversion has been fully adopted in many of the American states, and expressly repudiated in none. Arkansas is amongst those in which it can no longer be questioned. *** There being no interest in the land, considered as land, it logically follows, that a creditor of one entitled to the proceeds, mistakes his remedy by levying upon the land itself. Everything substantive eludes his grasp. His proper course is to pursue the proceeds, and to take steps to have them realized; which is within the power of a court of equity. . . .
This case has not been overrruled, and we find no statute which changes the results of this decision.
Therefore, we agree with the trial court that William Bruce terminated the trust on April 1, 1975, when he sold the property to the Gregorys. Thereafter, the funds were held in trust for the beneficiaries as stated in the formula earlier in this opinion. Even though the money was not delivered at that time, each of the parties, the seller and the buyer, held their respective property in trust for the other until such time as the transaction was completed.
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Robert H. Dudley, Justice.
On December 11, 1978, the appellant, Michael Cash, was jailed and later charged with rape, burglary and three counts of criminal attempt to rape. On September 18, 1979, after more than nine months’ incarceration, he filed a motion alleging that the State had failed to afford him a speedy trial and asking that the charges against him be dismissed. That motion was denied, and on October 22, 1979, the appellant was found guilty of all four crimes.
Appellant first contends that the trial court committed error in not dismissing the charges against him after he was held in jail for more than nine months. It is true he was in jail and not tried within nine months, but this does not entitle him to absolute discharge. Instead, he was entitled to be released on his personal recognizance. Ark. R. Crim. Proc., Rule 28.1 and 30.1 (b) (1976); Bell v. State, 270 Ark. 1, 603 S.W. 2d 397 (1980).
The second contention is the trial court committed error by refusing to dismiss the charges after appellant was not brought to trial within three full terms of court. Rules 28.1 and 30.1 (a) of the Arkansas Rules of Criminal Procedure specify that a defendant shall be absolutely discharged if not brought to trial before the end of the third full term, unless there are necessary delays.
On December 11, 1978, the date of incarceration of the appellant, the Osceola District of the Mississippi County Circuit Court, part of the Second Circuit, had three divisions with each division having a responsibility for protecting a defendant’s right to a speedy trial. Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980).
January 1, 1979, was the effective date of Act 432 of 1977 (Ark. Stat. Ann. § 22-310 [Supp. 1979]) which abolished divisions of circuit court. The courts of the Second Circuit, which had been multi-division courts, became multi-judge courts with the terms of various divisions becoming terms of court for that county. Alexander v. State, supra. The beginning dates of the terms in the Osceola District of Mississippi in 1979 were fixed as:
1. First Monday in February.
2. Third Monday in March.
3. First Monday in June.
4. Third Monday in October.
5. First Monday in November.
Each term ended when the next term Began.
The appellant was arrested during the November 1978 term of the third division, which ended on the first Monday in February. The term in which the appellant was arrested is not counted in determining compliance with the speedy trial rules. Kemp v. State, 270 Ark. 835, 606 S.W. 2d 573 (1980).
The first term that is counted against a speedy trial began on the first Monday in February, 1979, and ended on the third Monday in March. The appellee now contends that this term should be excluded as “It can be presumed that neither appellant nor the State would have been prepared for trial during the February term ...” There is no such presumption. Rather, it is the burden of the State to prove any delay is justified. State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980).
The second full term began the third Monday in March and ended the first Monday in June. The appellee contends that this term ought to be excluded from computation because the state intended to try the appellant on March 27, but because the lead investigating officer intended to attend a law enforcement conference on that date, trial was cancelled. Rule 28.3 (d) (i) provides that the prosecution may gain a continuance, which is excluded from computation, when evidence material to the State’s case is unavailable and due diligence has been exercised in an attempt to get the evidence. The explanation given for not trying the appellant is not a valid reason to pass the case for the full term. There is no provision in the Rules of Criminal Procedure to exclude a term of court just because a case there is neither an order setting the case nor an order continuing the case. This term must be counted as the second full term without trial.
The State admits that the term which began on the first Monday in June and ended on the third Monday in October must be counted. At the end of this term the appellant had not been tried before the end of three full terms from the date of incarceration. It was during the next term, the fourth term, that he was tried and convicted.
More than three full terms of court passed before appellant was tried, and no good cause was shown for the delay. The trial court committed error in not dismissing the charges.
Reversed and dismissed.
Hickman and Hays, JJ., dissent. | [
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John F. Stroud, Justice.
The issue in this case is whether the landowner may recover attorneys’ fees, court costs and other expenses incurred by him in the defense of a condemnation action, when the condemnor elects to abandon the condemnation after the jury has determined damages. We esentially agree with the landowner that such a recovery is possible; however, there must be a finding of lack of good faith in such a situation and because the trial court made no such finding, the matter is remanded for further proceedings.
The Des Arc Bayou Watershed Improvement District was formally established in 1966 for the purpose of constructing and operating a flood control project on Des Arc Bayou in White County. The District was later persuaded by the Soil Conservation Service to expand the project to include construction of a lake for recreational purposes, larger than the reservoir originally planned. While the land of Richard Finch would have been unaffected by the original flood control design, the expansion of the project for the recreational lake brought 57 acres of Finch’s land within the boundaries of the area to be affected by the resultant flooding. The District then determined it was “necessary” to condemn a floodage easement upon those 57 acres, and the condemnation suit was filed. The White County Circuit Court appointed three appraisers as required by Ark. Stat. Ann. § 35-1102 (Repl. 1962) to assess the damages which would be caused to Finch’s land by the project, and they filed their written report that there would be no damage to the land. After Finch filed his exception to the appraisers’ report, a jury was impaneled by the Circuit Court to decide the question of damage to his land. The jury found that just compensation for the taking of the floodage easement was $30,000.
The District then decided it could not afford to pay the amount of the judgment, and filed in the same cause a Petition to Abandon Comdemnation of Floodage Easement. Finch responded to that petition by seeking recovery of his expenses, arguing that the District should be required to pay all expenses incurred by him in the defense of his property interests, including attorneys’ fees and court costs. The trial court agreed and, on October 23, 1979, judgment was entered in favor of Finch for his expenses in the amount of $10,682.23. The District filed its notice of appeal, but before the appeal was carried out the trial court, on March 21, 1980, set aside the judgment of October 23 and dismissed Finch’s petition for costs and attorneys’ fees. The appeals from both judgments have been combined and both parties have appealed, the District contending that the trial court erred in the entry of its judgment on October 23, 1979, while Finch asserts that the trial court erred in setting aside the October 23 judgment. He urges that the court was without jurisdiction to set aside the prior judgment as more than 90 days had elapsed and no grounds existed, and he also urges that the court was wrong in its determination that it was precluded from granting him a judgment for his attorneys’ fees. The style of the case is confusing as it shows the District to be the appellant (which it was from the judgment of October 23), while the true appellant (from the second order of the court) is Finch.
The District submits that the statutes regulating the organization and operation of levee and drainage districts Ark. Stat. Ann. § 21-901 et seq (Repl. 1968), do not authorize the granting of attorneys’ fees to a landowner who goes into court to contest the report of the appraisers as to the amount of damage to be inflicted upon his land, and we agree. Ark. Stat. Ann. § 35-1105 (Repl. 1962), the statute authorizing the abandonment of a condemnation action after an award is made, allows the landowner to recover his “costs,” but we have held many times that attorneys’ fees are normally not recoverable unless specifically authorized by statute. Williams v. Little Rock Civil Service Commission et al, 266 Ark. 599, 585 S.W. 2d 42 (1979). However, Finch points out the exception to the general rule and contends that this case is most similar to Housing Authority of the City of Little Rock v. Amsler, Judge, 239 Ark. 592, 393 S.W. 2d 268 (1965), wherein we held that a landowner may recover a reasonable attorney’s fee, as well as other expenses, when a condemning agency fails to act in good faith in instituting and, later, abandoning condemnation proceedings.
The landowner argues in this case that there is sufficient evidence in the record to demonstrate a lack of good faith on the part of the condemning authority which, of course, the District disputes. Finch points out that had the District limited the project to its original scope, there would have been no need for the floodage easement upon his property. Only when the Soil Conservation Service persuaded the District to furnish the right-of-way for the recreational reservoir did Finch’s land become “necessary.” He further contends that the District knew of its limited funds when it opted for the expanded project, so it can hardly be said that it was unfairly surprised by its financial limitations. From the facts before this court it seems at least to have been very poor judgment for the District to have filed the condemnation action in this case with insufficient funds to pay a $30,000 judgment, and at least poor planning for the District to have allowed $3,400,000 to be spent by others for the construction of a dam that cannot be closed due to the District’s inability to pay for the right-of-way on Finch’s land.
In view of this factual dispute upon which the trial court made no specific finding, we remand this matter for a hearing to determine if the condemning authority acted in good faith. If the court finds the District did not act in good faith, it would be proper for the trial court to reinstate its order of October 23, 1979- However, if the finding should be to the contrary, the court’s order of March 21, 1980, should remain in effect. Of course, either party disagreeing with the decision of the trial court may specifically address the issue of good faith and other pertinent issues on a subsequent appeal based on the record made on those issues. Due to our method of disposition of this case, we intentionally have not addressed Finch’s contention that the trial court lacked jurisdiction to set aside its order of October 23, 1979.
Remanded.
Purtle, J., not participating. | [
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David Newbern, Judge.
In this employment security benefits case, the claimant was held to have been disqualified from benefits pursuant to Ark. Stat. Ann. § 81-1106(a) (Supp. 1979), for the reason that “he quit his last work because of illness, injury, or other disability but did not make reasonable efforts to preserve his job rights, prior to quitting.”
The claimant contended his health was adversely affected by a personality conflict with and harassment by one of his superiors, and that was the reason he quit his job.
The board of review agreed with that conten tion, given its finding and adoption of the statutory language quoted above. However, there was the additional finding the claimant did not do that which was necessary to preserve his job rights.
At the hearing before the appeals tribunal, the claimant requested that one of his superiors, Mr. Sellers, be subpoenaed for the purpose of testifying with respect to his attempts to transfer within the company or otherwise keep his employment but avoid the personnel situation of which he complained. The referee acknowledged his authority to grant a continuance and issue the subpoena but declined to do so until he determined, after hearing some other evidence, whether it was necessary to subpoena the witness requested.
At the conclusion of the hearing, he left the matter open, saying he would hold another hearing if after reviewing the evidence he felt it necessary. No further hearing was held, and thus the witness sought by the claimant was neither subpoenaed nor heard.
Given the fact the claimant sought the presence of the witness in question for the purpose of testifying on the very point upon which he was found to have been disqualified, we cannot understand why the subpoena was not issued. Clearly the referee had the authority to issue it. Ark. Stat. Ann. § Sill 14(h) (Repl. 1976).
In its pro forma affirmance of the appeals tribunal’s (referee’s) decision, the board of review did not even mention the claimant’s contention with respect to the subpoena he had sought although that clearly was the major point of his appeal.
The board’s decision is reversed and remanded with instructions to hold a further hearing after the witness sought by the claimant has been subpoenaed to appear.
Reversed and remanded. | [
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Frank Holt, Justice.
Appellant was charged with possession of a firearm by a felon, Ark. Stat. Ann. § 41-3103 (Repl. 1977) and being a habitual offender, Ark. Stat. Ann. § 41-1001 (Repl. 1977). Appellant pleaded guilty. However, he chose to leave the punishment to the jury. It assessed his punishment, as a habitual offender, at 7 years imprisonment and a fine of $10,000. Subsequently, upon a revocation hearing, the court revoked the suspension of his sentences in two previous convictions (3 years suspended on each of the 5 year concurrent sentences) and ordered them to run consecutive to the 7 year sentence imposed by the jury. The only issue raised on appeal is that it was impermissible to sentence appellant under the habitual offender act, because the firearm statute, the underlying charge, has its own enhance ment provision. Therefore, his sentence should be reduced to the minimum provided by law under the firearm statute.
That statute, § 41-3103 (1) (a) (c) (4), provides in pertinent part:
No person who has been convicted of a felony . . . shall possess or own any firearm ... A person who violates this section commits a class D felony if he has been convicted of a felony; otherwise, he commits a class A misdemeanor.
Appellant asserts that to use his prior convictions for • enhancement .under the firearm statute and to invoke the habitual criminal act to further enhance his punishment constitute a violation of his constitutional right not to be twice placed in jeopardy, and it is contrary to the legislative intent in enacting the habitual offender act, § 41-1001. The state responds that this argument should not be considered, because it is raised for the first time on appeal. Even so, appellant insists that the issue should be addressed by the court, because it goes to the jurisdiction of the trial court and, therefore, no objection is necessary to preserve it for review, citing White v. State, 260 Ark. 361, 538 S.W. 2d 550 (1976), and the change on its face is constitutionally infirm, citing Menna v. New York, 423 U.S. 61 (1975). Further, appellant urges this court to consider the asserted error despite a failure to object, because it is necessary in order to avoid a clear miscarriage of justice, citing Wilson & Dancy v. State. 261 Ark. 820, 552 S.W. 2d 223 (1977); and Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980). Appellant argues that double jeopardy is applicable, citing Harris v. Oklahoma, 433 U.S. 682 (1977), and, further, application here of the habitual offender act is contrary to legislative intent, citing Rust v. State, 263 Ark. 350, 565 S.W. 2d 19 (1978), Simpson v. United States, 435 U.S. 6 (1978); and Heady v. Commonwealth, 597 S.W. 2d 613 (Ky. 1980).
Our general rule is well established that we do not consider an alleged rule when it is not presented to the trial court and is raised on appeal. Half acre & Duty v. State, 265 Ark. 378, 578 S.W. 2d 237 (1979); Jeffers v. State, 268 Ark. 329, 595 S.W. 2d 687 (1980); and Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (1980).
Here, the appellant and his counsel informed the court that he wanted to plead guilty and leave his punishment to the jury. The court asked him personally if he was aware that he could receive up to 7 years and a $10,000 fíne, or both, to which appellant responded in the affirmative. Upon the issue being submitted to the jury with his and his counsel’s approval, the jury assessed his punishment to the extent he had been warned. The court so sentenced him. No objection was ever interposed to the charges, to the submission of the issues to the jury, to sentencing, nor by a motion for a new trial.
In the circumstances, since the issue is raised for the first time on appeal, we do not consider it.
Affirmed.
Purtle and Mays, JJ., dissent. | [
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Richard L. Mays, Justice.
The only question presented by this appeal is whether the evidence is sufficient to support a conviction of battery in the second degree. A person commits battery in the second degree if he purposely causes physical injury to any person by means of a deadly weapon. Ark. Stat. Ann. § 4l-l602(l)(b) (Repl. 1977). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Stat. Ann. § 41-203(1) (Repl. 1977).
On August 24, 1979, appellant, James Francis Cooley, was a passenger on a Greyhound bus en route to Memphis, Tennessee. Shortly before reaching a bus terminal in Stuttgart, Arkansas, the bus driver, Jesse Russell, felt something hit him on top of the head. He was dazed for a few seconds and then noticed appellant standing in front of him with a knife in his hand. Bleeding about the head and not knowing what to expect next, the bus driver asked appellant what he wanted. Appellant merely stood mute until the bus reached the terminal, and then calmly returned to his seat where he remained until the police arrived. He put up little resistance when the police attempted to handcuff him and appeared to be generally oblivious to their presence. At the police station, when asked why he had stabbed the bus driver, appellant appearing distraught and despondent, said that he had just struck out because of frustrations resulting from his chronic unemployment and financial incapacity. In his defense appellant testified that he did not remember stabbing the bus driver and did not intend to injure him. Appellant also presented evidence that psychological tests administered to him indicated that he was likely to act without thinking.
In reviewing a criminal conviction on appeal, we consider the evidence most favorable to the state and affirm if there is substantial evidence to sustain the conviction. White v. State, 266 Ark. 499, 585 S.W. 2d 952 (1979). Circumstantial evidence may be substantial if it gives rise to more than a suspicion or induces the mind to pass beyond mere speculation or conjecture. Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979).
Appellant contends that the state failed to present sufficient evidence of his mental state to give rise to more than mere speculation that he committed any act with a conscious objective of causing physical injury. Although appellant concedes that he has no mental disease or defect, he argues that his character trait of acting without thinking and his preoccupation with his personal crisis prevented him from having the requisite culpable mental state to commit a second degree battery. We are not persuaded by this argument. Every man is presumed to intend the natural consequence of his acts and, unless he is insane, may be held accountable by society. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915). The act of stabbing a person in the head with a knife is substantial evidence of an intention to cause physical injury, even if done under circumstances suggesting severe emotional stress. The possibility that jurors could have found otherwise under the circumstances of this case is no justification for this Court to substitute its judgment for theirs.
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John I. Purtle, Justice.
Appellant was charged with two counts of possession of a controlled substance, in violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976). The first count charged him with possession of cocaine and the second count with possession of marijuana. The counts were merged at the trial, and he was convicted and sentenced to four years in the Department of Correction, to be served consecutively to a federal sentence he is now serving.
On appeal three grounds are urged for reversal: (1) that he was denied a speedy trial; (2) certain evidence should have been suppressed; and (3) the evidence was insufficient to support the verdict.
We disagree on all three counts which will be discussed separately.
The facts reveal a nighttime search warrant was authorized on May 2, 1978, and was required to be served within ten days. It was served on May 5, 1978, at which time the appellant was arrested. The arresting officers broke down the door to an office occupied by the appellant. There were two or three other persons present at the time. According to testimony appellant was the operator of the C & S Club where the search and arrest were conducted. The officers testified they seized a packet of cocaine out of the commode as it was being flushed and some marijuana on the floor nearby. Appellant was standing next to the commode, and the other people were across the room. Appellant made bond on the date of his arrest. The case was never brought up for a hearing in municipal court for reasons not explained in the record. Both parties seem to believe the charges in question were nolle pressed; however, the record does not reflect any such action.
On June 6, 1978, appellant commenced serving a term in a federal institution outside the State of Arkansas. No detain-er or notice was filed at the federal institution at that time. In March of 1979 the appellant was returned to Pulaski County, Arkansas, on an unrelated charge at which time the unrelated charge was dismissed and appellant returned to federal custody.
On March 13, 1979, the prosecuting attorney filed an information on these two same counts and gave notice to the federal correctional institution where appellant was confined. For some unexplained reason a bench warrant was issued on May 29, 1979, for failure to appear. There is nothing else in the record about this proceeding. On October 26, 1979, appellant filed a motion to suppress the evidence. The motion was overruled, and the appellant was tried and convicted on November 1, 1979.
We first consider the speedy trial issue. Appellant was arrested on May 5, 1978, and posted an appearance bond the same day. No probable cause hearing is shown in the record. The appellant was incarcerated in the federal institution from June 6, 1978, until after the trial. He may still be serving the federal sentence as the record does not reflect he has been returned to Arkansas authorities. The following Arkansas Rules of Criminal Procedure are involved in this matter:
Rule 28.1 (b): Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
Rule 29-1 (b): If the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution of a jurisdiction other than the State of Arkansas, he shall promptly cause a detainer to be filed with the official having custody of the prisoner and request such officer to advise the prisoner of the filing of the detainer annd of the prisoner’s right to demand trial.
Rule 30.1 (b): An incarcerated defendant not brought to trial before the running of the time for trial as provided by Rules 28.1 — 28.3 shall not be entitled to absolute discharge pursuant to subsection (a) hereof but shall be recognized or released on order to appear.
Rule 30.1 (c): The time for trial of a defendant released pursuant to subsection (b) hereof shall be computed pursuant to Rules 28.1 (b) and 28.2
The terms of the Pulaski County Circuit Court involved in this case are:
March 6, 1978 to September 24, 1978 (Arrested)
September 25, 1978 to March 4, 1979 (Passed)
March 5, 1979 to September 22, 1979 (Passed)
September 23, 1979 to March 2, 1980 (Tried)
We do not count the term in which appellant was arrested. State v. Messer, 269 Ark. 431, 601 S.W. 2d 857 (1980). He was not tried in the September 1978 term or the March 1979 term. However, he was tried in the September 1979 term which is during the third full term after his arrest.
Although appellant was arrested a second time on September 7, 1979, as a result of the evidence obtained by the search warrant which was served on May 5, 1978, we do not compute the time from the filing of the information on March 13, 1979, because we think Rule 28.2 (a) covers the situation. This rule states that time commences to run from the date the charge is filed, except that if the defendant is held in custody or released on bail to answer for the same offense or other offenses arising from the same episode, then the time commences to run from the date of the arrest. Therefore, the late filing of the information did not start the time running anew from the day of the second arrest.
Appellant was on bail from the State of Arkansas (although incarcerated out of state) from the date of his arrest on May 5, 1978, until he was tried. He did not make demand for a speedy trial. Had he been held in the State of Arkansas during the time from his arrest on May 5, 1978, until the motion was filed, he would only have been entitled to release from custody and then the provisions of Rule 30.1 (b) and (c) would apply, but he would not have been entitled to an acquittal or to have the charges against him dismissed.
We addressed this same situation in the case of State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246 (1973), where we stated:
However, one incarcerated in an institution of the federal government or that of some other jurisdiction must affirmatively request a trial in order to activate the statute and to avail himself of its protection. *** When an accused is incarcerated in a federal institution or in another state, he is not incarcerated or held on bond awaiting a determination of whether he is guilty or innocent but is incarcerated for the commission of another crime for which he has been found guilty. In such situation there is no good reason why the accused should not be required to place himself on record in the attitude of demanding a trial before he would be entitled to discharge. . . .
Since the appellant was on bail for the present charges and was also incarcerated out of state, and made no demand for a speedy trial, the three term requirements of Rule 28.1 (b) apply. He was tried before the expiration of the third full term of court following his original arrest on May 5, 1978.
Secondly, appellant challenges the failure of the court to suppress the evidence which was seized as a result of the search warrant served on May 5, 1978. He argues the authorization of a nighttime search on May 2, 1978, was not valid for the search which occurred three days later. The issuing magistrate allowed ten days for return on the warrant; therefore, the appellant has not valid reason to suppress simply because the warrant was not served for three days after it was issued. No authority is cited by either party on this point; and, frankly, we do not see any reason why the warrant was not still valid. Arkansas Rules of Criminal Procedure, Rule 13.2 (c), allows a search to be conducted within a reasonable time, not to exceed 60 days. We do not find any error relating to the issuance or service of the search warrant.
Finally, appellant argues the evidence was insufficient to support the verdict. Appellant argues the cocaine and marijuana should have been produced. These items were unavailable at the time of trial as they had apparently been destroyed by those having custody of same. However, the officers testified in detail about finding the contraband in the room where appellant was apprehended and the state chemist testified that the result of his analysis proved the substances were, cocaine and marijuana. The failure to present the drugs physically only goes to the weight of the proof presented by the state. Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979).
Appellant also argues he was not in actual possession of the substances. He was in the office of the C & S Club which he operated. The contraband was found in the commode and on the floor near where appellant was standing. Nothing was found to indicate any of the other persons present were in control of the contraband. None of them were involved in running the club so far as the record shows. We have many times held a person may be in constructive possession of such items when he either maintains control or a right to control, if it is immediately and exclusively accessible to the accused and subject to his dominion and control or to joint dominion and control of the accused and another person. Such possession and control may be established by circumstantial evidence. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976). In Cary we stated:
Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or the joint dominion and control of the accused and another.
Also, see Lee v. State, 270 Ark. 892, 609 S.W. 2d 3 (1980).
Finding no error by the trial court and following our well-established rule that we view the evidence on appeal in the light most favorable to the appellee, we must affirm the trial court.
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Richard B. Adkisson, Chief Justice.
Appellant, Edward Kern, filed suit in the chancery court of Sebastian County alleging that he was induced to enter into a distributorship agreement by the untrue statements and misrepresentations of the appellee. Appellant sought common law equitable rescission, statutory rescission under the Arkansas Securities Act, Ark. Stat. Ann. §§ 67-1235 to -1262 (Repl. 1980), or damages under the Arkansas Franchise Practices Act, Ark. Stat. Ann. §§ 70-807 to -818 (Repl. 1979).
This appeal is from the chancellor’s order finding that there was no untrue statements or misrepresentations and that appellant was entitled to no relief. These findings of fact by the trial court shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 52, Ark. Rules Civ. Proc., Vol. 3A, Ark. Stat. Ann. (Repl. 1979).
There is a common factual thread of proof necessary to support each of appellant’s three stated grounds for relief — whether appellee’s representative, Higgins, told appellant that he would have an exclusive territory all to himself in the Fort Smith area if he chose to become a distributor.
The documentary evidence before the chancellor consisted of two major instruments.
The first is a list of questions labeled “Questionnaire to be Completed by Distributor” [hereinafter referred to as “Questionnaire”] which was signed by appellant and appellee’s representative and which purported to serve two purposes: to enable appellee, Sells Enterprises, Inc., to properly consider appellant’s application to be one of its dis tributors; and to verify whether appellant was certain that appellee’s representative, Higgins, had covered all “important aspects of the Sells Enterprises, Inc. Distributor Program.”
The second is a contract labeled “Initial Purchase Order and Independent Distributor Agreement” [hereinafter referred to as “Agreement”] which was signed by both appellant and appellee’s agent and which purports to be the entire agreement between the appellee and the appellant making the latter a distributor responsible for developing sales for appellee’s products in a “general geographic area” including Fort Smith and vicinity.
The significant testimonial evidence heard by the chancellor consisted of testimony by the appellant, his wife, Sharon, and appellee’s representative, Bill Higgins.
The testimony presented by Higgins clearly conflicted with that of appellant and his wife concerning conversations these parties had prior to entering the “Agreement.” Higgins testified to several important facts:
1. He took about 45 minutes or an hour to explain the entire program to the Kerns and gave them a copy of both the “Agreement” and “Questionnaire” to take home.
2. He informed the Kerns that the Federal Trade Commission would not allow appellee, Sells, to assign an exclusive territory.
3. He explained paragraph 16 of the “Questionnaire” to the Kerns, stating that there may be other distributors selected or currently established in the Fort Smith area, and they indicated they understood this on their answer to the “Questionnaire.”
4. The representative testified repeatedly that he had never promised the Kerns an exclusive sales territory and that he had made no misrepresentation or fraudulent statements with regard to the appellee’s marketing program.
Appellant’s testimony was conflicting:
Mr. Higgins told me “[I]t would be my territory to work as I saw fit”; “I would be the only one, that they would consider putting another distributor like it in Springdale-Fayetteville area”; but “[T]here was no one else” in the Fort Smith area.”
Neither of the written documents referred to can be construed to support Kern’s testimony that Higgins promised him an exclusive territory. Paragraph seven of the “Questionnaire” serves to inform appellant that to grant an exclusive territory would be illegal under the Sherman Anti-Trust Act. Although the statement about the Sherman Anti-Trust Act may or may not be correct, it serves to support Higgins’ testimony that an exclusive territory was not promised. The “Questionnaire” further stated in paragraph 16 that there “[M]ay be other distributors selected or currently established in the area.” Paragraph two of the “Agreement” provides that appellant shall devote his efforts to developing sales for the products not only in Fort Smith and Sebastian County but also in all surrounding counties in the general geographic area; it further provided that appellant’s efforts would not be limited to these areas. These documents clearly indicate that there were to be no territorial limits on appellant’s distributorship. We cannot say, therefore, in light of the testimony and documentary evidence before the chancellor that her findings of fact were erroneous.
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Steele Hays, Judge.
This dispute arises from the cancelled purchase of a new Chevrolet Blazer. Appellees purchased the vehicle from appellant on August 15, 1979, for a $2,275 down payment and monthly installments of $248.48. Appellees were dissatisfied and in December they returned the vehicle to appellant and sued to recover the down payment and the installments they had paid.
The case was tried before a jury and resulted in a verdict of $2,275 in favor of appellees. Appellant raises two issues on 'appeal: that there was substantial evidence to support — the" Xerdiepand ’that the court p.rred.~in-insrmcting the jury. We find no efrdr.
We think the evidence is sufficient to support the verdict, but even if it were otherwise there is no need to dwell on the issue in depth, as the appellees pointed out that in order for an appellant to challenge the sufficiency of the evidence in a jury trial, he must either move for a directed verdict at the conclusion of all the evidence, move for a judgment notwithstanding the verdict, or move for a new trial because of insufficiency of the evidence. The failure to do one of these three requirements precludes raising the issue on appeal. Rule 50(e)(ARCP). Here, a motion for a directed verdict was made at the close of the plaintiff s evidence, but was not renewed at the conclusion of all the evidence, as the rule requires. The other designated motions were not made.
Appellant also contends that the court erred in refusing to instruct the jury accordingly:
You are instructed that a buyer must reject goods within a reasonable time after delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.
Appellant relies on Ark. Stat. Ann. § 85-2-601(1) (Repl. 1961) and the decision in Green Chevrolet Company v. Kemp, 241 Ark. 62, 406 S.W. 2d 142 (1966), interpreting this provision of the Code as requiring that a buyer of goods must notify the seller of his rejection of goods within a reasonable time. Appellant insists that the jury should have been told about the right of the buyers to revoke acceptance or reject acceptance of the goods within a reasonable time. But the court did instruct the jury that a buyer must revoke his acceptance within a reasonable time in accordance with § 85-2-608(2). Thus, the jury was instructed that the buyer of goods who revokes his acceptance must do so within a reasonable time after he was discovered or should have discovered a ground for revocation. We think that under the evidence, the jury'was properly instructed on the issue. Appellant has failed to demonstrate how the instruction as given was error, or even worked to appellant’s prejudice.
In Gramlin v. Baltz, 253 Ark. 352, 485 S.W. 2d 183 (1972), the Supreme Court determined that § 85-2-608 was applicable to facts similar to the present case. In Gramlin, the buyer of a vehicle under warranty returned it a number of times to the seller’s shop for corrective repairs. The problems were not corrected and eventually the buyer brought suit for a breach of warranty.
Appellant also argues that the appellees refused to permit appellant to make the necessary repairs on the vehicle, but that issue was disputed and there is testimony in the record that the appellant had a number of opportunities to make repairs on the vehicle. That issue was resolved by the verdict of the jury.
Lastly, appellees have cross-appealed on the issue of damages, arguing that under the evidence the jury should have returned a verdict of $3,020.29, rather than the figure of $2,275 actually awarded by the jury. The difference is the sum of three monthly installments of $248.48 each paid by appellees while the vehicle was in their possession. However, neither the abstract nor the record discloses how the jury was instructed with respect to damages and, hence, we cannot determine whether the court erred in this respect. To sustain their cross-appeal, appellees must show either that they objected to an erroneous instruction, Missouri Pacific Railway Company v. Gilbert, 206 Ark. 683, 178 S.W. 2d 73 (1944), or that the court refused to give a correct instruction. Christenson v. Dady, 238 Ark. 577, 383 S.W. 2d 283 (1964); Clay v. Garrett, 228 Ark. 953, 311 S.W. 2d 22 (1958).
Affirmed. | [
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Robert L. Brown, Justice.
The appellant, Ronnie Hayes a/k/a Ronnie Haynes, appeals from convictions for aggravated robbery and theft of property. His appeal is premised on two grounds: the unreliability of a photo lineup at police headquarters which, he contends, tainted an in-court identification at trial, and the failure of the trial court to reduce the theft charge to a misdemeanor on the basis of the amount proven. We hold that neither point has merit, and we affirm.
On May 5,1991, a person later identified as Haynes entered a Pizza Inn in Little Rock and went to the back of the restaurant with a drawn gun. The manager asked if he could help him, and the man, clad in gray shorts and a gray flannel sweatshirt, announced, “This is a robbery.” He then told Tim Moore, an employee, to open the cash register. When he was unable to do so, a manager trainee, William Blankenship, came over to the register and opened it. The room was illuminated with fluorescent lighting, which allowed both Moore and Blankenship to see the robber’s uncovered face for several minutes. Blankenship later testified that approximately $200 to $300 was taken.
Four days later on May 9,1991, Blankenship saw the person who robbed the restaurant on television and said he became “unglued.” He telephoned the Little Rock Police Department and disclosed the fact that the person on television had been the robber. The following day, May 10, 1991, Blankenship went to police headquarters and viewed a photo spread, from which Blankenship identified Haynes as the culprit. The next day, on May 11, 1991, Moore also viewed a photo lineup and identified Haynes as the man who had robbed the restaurant.
Haynes was charged with aggravated robbery and theft of property and later on was charged as an habitual offender. Subsequently, he moved to suppress any in-court identification by witnesses who had previously identified him “by the use of impermissibly suggestive photo spreads and lineups.” The motion was denied. When it was renewed at trial, together with a motion to reduce the theft of property charge to a misdemeanor, the trial court denied both motions.
At the ensuing jury trial, both Moore and Blankenship identified Haynes as the robber. Haynes was convicted of aggravated robbery and theft of property and was sentenced, as an habitual offender, to concurrent sentences of life (aggravated robbery) and twenty years (theft of property).
Haynes first contends that the trial court erred in failing to suppress the photo spread identifications by witnesses Tim Moore and William Blankenship, which, according to his theory, impermissibly tainted the in-court identifications. We have held that we will not reverse a trial court’s ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). In determining whether an in-court identification is admissible, the court looks first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). It is the appellant’s burden to show that the pretrial identification procedure was suspect. Id.
Reliability is the linchpin in determining the admissibility of identification testimony. Dixon v. State, supra. We do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). The following factors are considered in determining reliability: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Van Pelt v. State, supra; Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). Even if the technique is impermissibly suggestive, testimony concerning the identification is admissible if the identification is reliable. Bishop v. State, supra. Finally, the credibility of identification testimony is for the jury to decide. Dixon v. State, supra.
Haynes argues that Moore’s identification was unreliable because he did not give the police a description of the robber immediately after the crime and could not estimate how much time elapsed during the robbery. The appellant also points to an apparent inconsistency in Moore’s testimony and the testimony of a police officer concerning a second officer’s presence during Moore’s examination of the photographs. Further, he contends that Moore’s inability to describe the police officer who showed him the photographs underscores that his identification skills were lacking.
Similarly, Haynes argues that Blankenship’s identification was unreliable because he became “unglued” when he saw the person he believed had robbed the restaurant on television. Then, when he viewed the photo spread at the police station, he stated that he believed that the police officer told him that the person who had been on television was also in the lineup. (The police officer involved disputed that fact.) Also, Blankenship testified that he had poor eyesight, and at a pretrial hearing, he had difficulty identifying the appellant because of his cleaner and better-groomed appearance.
The trial court correctly found that the identifications at the two photo lineups were reliable. Both Moore and Blankenship had the opportunity to observe the appellant, whose face was in plain view under fluorescent lights, at the time of the criminal act. Both witnesses were positive about their photo spread identifications. Indeed, Moore testified that he was able to make an identification in “a matter of seconds,” and Blankenship avowed that he was certain that the person he selected from the photo lineup was the person who robbed him. No other person was identified by the witnesses, and neither Moore nor Blankenship failed to identify the appellant on any prior occasion, although Blankenship did have some hesitancy with identification during a pretrial hearing due to Haynes’s groomed, and therefore changed, appearance. Finally, less than a week passed between the criminal act and the identifications by Moore and Blankenship at the photo lineups.
As for the police officer’s possibly informing Blankenship that the person he saw on television was included in the photo spread, the Arkansas Court of Appeals has held that for the police merely to tell a witness that a suspect is in a lineup is not absolutely impermissible. Freeman v. State, 6 Ark. App. 240, 640 S.W.2d 456 (1982); citing U.S. v. Gambril, 449 F.2d 1148 (D.C. Cir. 1971); see also Forgy v. State, 16 Ark. App. 76, 697 S.W.2d 126 (1985).A witness, reasoned the court of appeals, must realize that he would not be asked to view a lineup if a suspect was not present. Id. What the witness is told may be only one factor to consider in reviewing the total surrounding circumstances. Id. Moreover, this court has treated a similar irregularity as a credibility factor. See Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). In Frensley, we held that a lineup was not unduly suggestive though the five victims knew a suspect was in custody when they viewed the lineup and made their identifications. That approximates the circumstances in this case where one witness said that he believed he was told the suspect would be in the photo spread.
Under the standards of Van Pelt v. State, supra, we held that the identification of the appellant at trial by both witnesses was reliable and not tainted or otherwise impermissibly affected by the prior photo lineups.
Haynes’s second argument is that the evidence was insufficient to convict him of theft of property because the state offered no evidence of the value of the property stolen other than Blankenship’s general estimate that “approximately two to three hundred dollars” was taken. The appellant contends that the state’s felony charge for theft of property, therefore, failed due to the absence of substantial supporting evidence.
A motion for directed verdict, although lodged at the close of the state’s case, was not made at the conclusion of Haynes’s evidence. Such a failure precludes review by this court, and we have so held repeatedly. See, e.g., Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991); Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991); Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991).
The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
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Guy Amsler, Jr., Special Justice.
The question before this Court concerns certain subterranean mineral rights with respect to a 95-acre tract located in Columbia County, Arkansas. The Appellant, Sue G. Jameson (“Appellant” or “Jameson”), owns these lands in fee. The Appellee, Ethyl Corporation (“Ethyl”) holds leases and other operating interests to remove brine (salt water) from approximately 15,-000 acres located in the Kerlin Brine Field (“Field”). The Jameson tract is located within the Field but is not leased to Ethyl. The Field is located in the Smackover Formation approximately 8,000 feet subsurface and contains a relatively large pool of brine containing bromide ions which have been commercially extracted by the Appellee since 1969- The parties negotiated for a number of years as to a proposed lease or other extraction rights as to the Jameson tract but were unable to agree as to terms. The basic issue involves a construction of the rule of capture to determine whether it should permit Ethyl to follow a process whereby the brine below the Jameson property has been and is currently being caused to flow into production wells operated by Ethyl pursuant to a recycling process which replaces it substantially diluted of valuable bromine.
After threatened litigation by Jameson, Ethyl filed suit for a declaratory adjudication seeking to establish the legality of its extraction process pursuant to the rule of capture. Jameson counterclaimed for damages and requested injunctive restraint of Ethyl’s extraction processes. The issues were bifurcated and the matter was submitted to the Chancellor for a determination of liability only, although much of the evidence also related to the question of damages, provided a right of recovery existed. The Chancellor concluded that this Court’s decision in Budd v. Ethyl Corporation, 251 Ark. 639, 474 S.W. 2d 411 (1972) expressed the controlling law of the case; determined that the rule of capture announced by this Court in the Budd case and in Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S.W. 122 (1912) was applicable to Ethyl’s extraction process; and accordingly granted declaratory relief to Ethyl and denied Jameson’s counterclaim. Ethyl’s operations in the Field have been the subject of two prior reported cases viz., Budd v. Ethyl Corporation, supra, and Young v. Ethyl Corporation, 521 F. 2d 771 (1975) (and on appeal from remand as to a determination of damages 581 F. 2d 715 [1978]). Although the parties have placed different interpretations upon the evidence presented, there is little significant dispute as to the underlying facts insofar as they relate to the issue of liability. The Appellant asserts that the actions of Ethyl constitute a trespass or a private nuisance. The pertinent facts are as follows:
Some time before 1969, representatives of Ethyl determined that a substantial pool of bromine-enriched brine existed in the Field at the Smackover level which could be commercially extracted and processed into brominated compounds and elemental bromine. The bromide ion content of the brine was estimated to be approximately 5,000 parts per 1,000,000 in the Field. The pool in actuality is contained in porous limestones with estimated varying thickness from zero to 150 feet. Leases or other operating rights to extract oil, gas and brine from the Field were obtained by Ethyl for a large part (approximately 90%) of the acreage within the Field, and drilling operations were begun in 1969.
Representatives of Ethyl attempted to obtain leases for the entire block of lands comprising the Field on substantially the same terms from all landowners on an agreed rent, in lieu of royalty basis. The Appellant, through her son Paul Jameson, attempted to negotiate a lease which contained a number of clauses he deemed necessarily proper to protect the Appellant and also made a proposal for participating in Ethyl’s profits over and above its profits being made at the time of leasing Appellant’s properties. Both parties considered their respective proposals to have been reasonable, and conversely the other’s position to be unreasonable. Ethyl owns mineral leases on all sides of Appellant’s 95 acre tract.
The evidence in the trial included expert testimony of two petroleum geologists separately sponsored by the parties, each of whom was recognized as qualified by the other. The substance of their testimony differed primarily with respect to what they had been engaged to do by their respective clients. Ethyl’s expert witness explained the rationale of Ethyl’s drill ing and extraction processes, and Jameson’s expert witness expressed added opinions about the process and about the amount of bromine-enriched brine which had flowed into Ethyl’s wells and had been replaced with “tail brine” (i.e., brine from which a substantial part of the bromine had been extracted by Ethyl through a chlorine chemical process) and “Magnolia field brine” (i.e., additional brine added to the recycling process which was obtained by Ethyl from sources outside the Field).
Ethyl’s witnesses explained that soon after its operations began, a substantial amount of brine began to migrate into the Magnolia Oil and Gas Field located northeast of the Kerlin Brine Field which, if not corrected, would soon have made the extraction process commercially impractical. On advice of a consulting firm, Ethyl drilled a number of peripheral “injection wells” designed to raise the differential pressure level of the surrounding area so as to cause the brine to flow toward the center of the pool and into Ethyl’s production wells. This type of secondary recovery effort was not uncommon and resulted in Ethyl being able to achieve an efficient and maximum recovery of brine from the Field. The Jameson property is within the peripheral area of the injection wells of the Ethyl block.
Although Ethyl’s expert witness was not willing to acknowledge any specific amount of depletion of bromine-enriched brine from the Jameson property’s subterranean pool, the testimony is relatively clear that over the course of the recycling process the bromine content thereof has been substantially reduced, if not totally exhausted from a commercial perspective. The Appellant’s expert witness quantified this depletion based upon information related to the Field, Ethyl’s drilling reports and other known information. In addition, Appellant’s witness testified that the maximum normal drainage of bromide from the Jameson property would not have exceeded 2% in the absence of the pressure differential created by Ethyl’s injection wells, but that removal of as much as 89% of the bromide from the Jameson property had occurred due to the added differential pressures which caused the tail brine and Magnolia field brine to mix with the flow toward the low pressure areas of Ethyl’s production wells.
The Appellant attempts to characterize the recycling process as a pushing of tail brine and Magnolia field brine onto the Jameson property in order to force the valuable bromine-enriched brine into Ethyl’s wells, which Appellant labels “pushing” or “sweeping”. Ethyl conversely contends the process simply allows it to drain in that direction, in part because the tail brine is miscible and accordingly mixes with the brine in the area, which Ethyl labels as “pulling.” Although certain steps apparently could have been taken to seal off a substantial portion of the flow of the bromine-enriched brine from the Jameson property and other isolated locations which were not leased to Ethyl, the evidence preponderates that this was not commercially feasible under the circumstances. Likewise, it seems equally clear from the evidence that it would have been impractical for the Appellant to drill production wells unless she was financially prepared and willing to get into the bromine extraction business since the large volume of brine logically could not be transported, processed and recycled over long distances.
The consequence in any event is that: (i) a substantial amount of the bromine which previously lay at the Smackover subterranean level of the 95-acre Jameson property moved into the production wells and then into the asset category of Ethyl’s operations as a direct result of efforts purposely initiated by Ethyl; and (ii) the bromine extraction process has been able to be continued so as to maximize the recovery from some 15,000 to 16,000 acres in the Kerlin Brine Field.
Viewed from a judicial perspective it seems clear that the law as developed with respect to the rule of capture, trespass and nuisance fails to adequately provide a resolution of the issue with respect to bromine-enriched brine where secondary recovery methods are utilized, the results of which materially alter the natural drainage consequences of extracting from encircled properties lying within a common pool. It seems equally clear that the law should not turn upon the issue of whether the activities are characterized as "pushing” or “pulling”, or whether a differential pressure is created by injection or the addition of larger quantities of brine. Similarly, the obviously necessary steps of secondary recovery (which by definition create alterations to the norm) from a common pool area (be it oil, gas, brine or other fluid minerals) should not be subject to the arbitrary control of a limited number of landowners. Nor should the law permit those persons who are in an economically advantaged posture to be able to gain negotiating clout by being allowed to undertake, with impunity, processes that go beyond extracting transient minerals or gasses which have drained or flowed by natural process to their drilling sites.
Unitization laws have for many years helped to resolve these conflicting interests with respect to oil and gas production in many states, including Arkansas. See ARK. ACTS 1939, No. 105 adopted as the Arkansas Oil and Gas Conservation Act, codified as Ark. Stat. Ann. § 53-101 et seq (1971 Repl.) and Dobson v. Oil and Gas Commission, 218 Ark. 160, 235 S.W. 2d 33 (1950.)
In the 1912 case of Osborn v. Arkansas Territorial Oil & Gas Co., supra, this Court adopted the rule of capture as follows:
“Petroleum, gas and oil are substances of a peculiar character. . . . They belong to the owner of the land, and are part of it so long as they are part of it or in it or subject to his control; but when they escape and go into other land or come under another’s control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas extending under his neighbor’s field, so that it comes into his well, it becomes his property. . . .” 103 Ark. 175, 146 S.W. 122, 124.
Osborn, however, did involve a secondary recovery process, nor does the language of the rule adopted envision processes such as those used by Ethyl in the situation now under consideration.
The underlying reason for adoption of the rule of capture by Arkansas and other states was the acknowledged impracticality of tracing ownership of a transient substance which migrated from lands of one owner to lands of someone else. However, as noted in Oil and Gas Laws, Williams and Meyers, Volume I § 204.5, there have been varying reactions of the courts of different states to the question of whether the rule of capture should be applied without qualification to secondary recovery processes. In some of the cases orders from state regulatory agncies have been involved and in some of the cases unleased owners have been offered participation. See Tidewater Associated Oil Co. v. Stott, 159 F. 2d 174 (5th Cir. 1946), cert. denied, 331 U.S. 817 (1947); Railroad Commission v. Manziel, 361 S.W. 2d 560, 93 A. L.R. 2d 432 (Tex. 1962); Baumgartner v. Gulf Oil Corporation, 184 Neb. 384, 168 N.W. 2d 510 (1969); and Greyhound Leasing & Financing Corp. v. Joiner City Unit, 444 F. 2d 439 (10th Cir. 1971). For further discussions in this regard see also Hardwicke, “The Rule of Captured and Its Implication As Applied to Oil and Gas”, 13 Texas L. Rev. 391 (1935); and Kuntz, “Correlative Rights and Oil and Gas”, 30 Miss. Law Journal (1958).
In Budd v. Ethyl Corporation, supra, this Court had occasion to address the issue of whether Ethyl’s operations in the Field which forcibly injected brine into input (injection) wells were entitled to the benefit of the rule of capture. As to a 240- acre tract lying next to but outside of Ethyl’s 15,000 area block, this Court held that the rule of capture applied and that Ethyl was not obligated to account for any minerals which may have flowed as a result thereof into its wells from the 240-acre tract. However, as to a 40-acre tract lying within Ethyl’s peripheral area of input (injection) wells, this Court concluded that a separate analysis was necessary. Because of the limited nature of the lessee’s interest in the 40-acre tract within Ethyl’s peripheral area of input wells and certain equities noted, this Court also rejected Budd’s claim against Ethyl concerning the 40-acre tract. Obviously, this Court would not have treated the encircled 40-acre tract differently if this Court had reached the decision in the Budd case that it was immaterial whether the lands were inside or outside of Ethyl’s peripheral area of input wells. Because of this the 8th Circuit Court of Appeals in the diversity case of Young v. Ethyl Corporation, supra, attempted to construe the Arkansas law in a comparable situation and concluded that the rule of law should not be expanded to permit the so-called “sweeping” process without liability for damages.
While Arkansas’ unitization laws are not, as previously noted, involved in this case, we do believe that the underlying rationale for the adoption of such laws, i.e., to avoid waste and provide for maximizing recovery of mineral resources, may be interpreted as expressing a public policy of this State which is pertinent to the rule of law of this case. Inherent in such laws is the realization that transient minerals such as oil, gas and brine will be wasted if a single landowner is able to thwart secondary recovery processes, while conversely acknowledging a need to protect each landowner’s rights to some equitable portion of pools of such minerals. A determination that a trespass or nuisance occurs through secondary recovery processes within a recovery area would tend to promote waste of such natural resources and extend unwarranted bargaining power to minority landowners. On the other hand, a determination that the rule of capture should be expanded to cover the present situation could unnecessarily extend the license of mineral extraction companies to appropriate minerals which might be induced to be moved from other properties through such processes and, in any event, further extend the bargaining power of such entities to reduce royalty payments to landowners who are financially unable to “go and do likewise” as suggested by Ethyl.
The laws of trespass and nuisance and the rule of capture each evolved out of circumstances designed to balance the relative rights and responsibilities of the parties and the interests of society in general. As noted in the Young case, supra, a great deal of technology and geological understanding has developed since the 1912 Osborn decision. As envisioned in the Young case, which we consider to be persuasive, we are unwilling to extend the rule of capture further. By adopting an interpretation that the rule of capture should not be extended insofar as operations related to lands lying within the peripheral area affected, we, however, are holding that reasonable and necessary secondary recovery processes of pools of transient materials should be permitted, when such operations are carried out in good faith for the purpose of maximizing recovery from a common pool. The permitting of this good faith recovery process is conditioned, however, by imposing an obligation on the extracting party to compensate the owner of the depleted lands for the minerals extracted in excess of natural depletion, if any, at the time of taking and for any special damages which may have been caused to the depleted property. By this holding we believe that the interests of the owners and the public are properly protected and served.
This matter was submitted to the chancellor only on the issue of liability and on a remand the chancellor must determine damages. In this regard we point out the language set forth in the case of Whitaker & Company v. Sewer Improvement District No. 1, 229 Ark. 697, 318 S.W. 2d 831 (1958), where we said:
A court of equity should be as alert to afford redress as the ingenuity of man is to cause situations to develop which call for redress.
In other words, sometimes a court of equity must devise a formula of damages to fit a particular situation.
Accordingly, the decision of the lower court on the issue of liability is reversed and the case is remanded for trial of the damage issues.
Reversed and remanded.
Sepcial Justice Walter Davidson joins in the opinion.
Holt, Purtle and Stroud, JJ., did not participate.
We note that Act 937 of 1979 (Ark. Stat. § 53-1301 et seq.) authorized the Arkansas Oil & Gas Commission to order the formation of brine production units. Section 1 of the Act states in part:
“It is hereby declared to be in the public interest to foster . . . the development and production in the State of the natural resource of brine; to authorize and to provide for the operation and development of brine properties in such a manner that the greatest ultimate recovery of brine and the chemical substances contained therein be had and that the correltaive rights of all owners be fully protected
The Act is permissive, in that the action of the Commission is invoked on an application of a “producer.” A "producer" is defined as the owner of an existing well or wells capable of producing brine as well as any owner or owners who are capable and willing to incur the capital investment required for the purposes of drilling, completing and equipping the proposed well or wells within any existing or proposed brine production unit. While it is not shown in the record apparently Ethyl has not elected to petition for formation of a production unit. In any event, Act 937 was adopted after this cause of action was filed and neither of the parties has aruged its applicability to this case. | [
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Steele Hays, Justice.
Appellants, Tommy Harvey and Vari-Tech Company, bring this appeal urging that the court below erred in dismissing the direct complaint of the plaintiff, Harvey, against the third-party defendant, Eastman Kodak, under Arkansas Rules of Civil Procedure, Rule 12(b)(6) for “failure to state facts upon which relief can be granted.” The appellants also urge that the trial court erred in dismissing the third-party complaint of the defendant, Vari-Tech, against Kodak under the doctrine of forum non conveniens. We find no error in the court’s dismissal of the two complaints and, therefore, affirm the decision.
Procedurally, the case below is rather complex, but here we will discuss only those portions at issue in this appeal. On or about June 11, 1979, Tommy Harvey hired another party to perform surveys of lands in Jackson County, Arkansas, in anticipation of constructing levees necessary for the production of rice. Harvey’s suit alleged that the work was done improperly due to the defective condition of the surveying equipment used, which was manufactured by the defendant, Vari-Tech, causing damage to the plaintiff in the form of lost profits and expenses.
Vari-Tech filed a third-party complaint against Kodak alleging that any defective condition of the surveying equipment was caused by the negligence of Kodak in supplying defective optical elements glue used in the equipment. In response, Kodak filed a motion to dismiss under the doctrine of forum non conveniens, both Kodak and Vari-Tech being foreign corporations.
Subsequently, Harvey filed a direct complaint against Kodak, the allegations of which are more thoroughly discussed below. Kodak responded to the direct complaint of Harvey with a motion to dismiss for “failure to state facts upon which relief can be granted.” Rule 12(b)(6), A.R.C.P. The trial court granted both motions.
As to the direct complaint of Harvey against Kodak, we agree with the trial court that the complaint is insufficient and may be properly dismissed under Rule 12(b)(6).
The direct complaint of Harvey against Kodak alleges that Kodak “manufactured a glue” for the optical equipment used, “that due to a failure of said glue” lands were surveyed in a negligent manner by another party. And, “that due to the negligence” of Kodak, plaintiff suffered the damages enumerated. The allegations of the complaint are merely conclusions on a point of law; they do not state facts upon which relief can be granted. Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” (Emphasis supplied.).
Since Rule 12(b)(6) tests the sufficiency of the pleadings, it is necessary to read it in conjunction with Rule 8, which deals with the contents of the pleading. Rule 8 provides:
A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim, or third-party claim, shall contain ... (2) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief, . . . (Emphasis supplied.)
This is a significant departure from the Federal Rules of Civil Procedure, on which the Arkansas rules are based. Unlike our own rule, Rule 12(b)(6) of the Federal Rules provides for dismissal of a complaint for “failure to state a claim upon which relief can be granted.” (Emphasis supplied.) And Rule 8 of the F.R.C.P. provides:
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain ... (2) a short and plain statement of the claiming showing that the pleader is entitled ro relief . . . (Emphasis supplied.)
These two rules establish for the federal courts what is commonly known as “notice pleading.” See, Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).
Arkansas has not adopted this view of pleading. In drafting the new Rules of Civil Procedure, the Committee offered language identical to that contained in the federal rules. However, this court deliberately rejected the proposed language in favor of the language contained in the rules as now written. See, Cox and Newbern, The New Civil Procedure: The Court that Came in from the Code, 33 Ark. Law Rev. 1 (1979). Since Harvey’s complaint against Kodak failed to comply with Rule 8’s requirement of “a statement in ordinary and concise language of facts showing that the pleader is entitled to relief,” the complaint was properly dismissed under Rule 12(b)(6) for “failure to state facts upon which relief can be granted.” However, because this is a products liability case we point out that the deficiency of the direct complaint of Harvey against Eastman Kodak lies entirely in its failure to meet the requirements of Rule 8 with respect to the allegations of negligence, the only cause of action asserted. The pleading does not purport to sound in strict liability or warranty, which are not in any way dependent upon negligence. Fruman and Friedman, Products Liability, Vol. 3A, Ch. 16, Pleading and Practice #46.02[3], p. 74. Thus, whether Harvey could have properly stated a cause of action against Eastman Kodak under those theories of liability is not before us.
Under this same point, Harvey argues that even if the direct complaint against Kodak is insufficient, any defect is cured by the third-party complaint of Vari-Tech against Kodak, upon which Harvey is entitled to rely. In support of this theory, he cites us to Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W. 2d 1 (1980). We cannot agree with this argument. In Larson, we held that the Statute of Limitations was tolled by the filing of the third-party complaint against the third-party defendant so that the later filing of a direct complaint by the original plaintiff against the third-party defendant was not barred by limitations under the Uniform Contribution Among Joint Tortfeasors Act. Ark. Stat. Ann. §§ 34-1001, et seq. (Repl. 1962). In Larson, we did not go so far as to hold that defects in the pleadings themselves on the direct complaint may be cured by the allegations contained in the third-party complaint. Indeed, we know of no authority for such a proposition.
As to Kodak’s motion to dismiss the third-party complaint of Vari-Tech against Kodak under the doctrine of forum non conveniens, we find no reversible error in the granting of the motion. It should be noted that none of the parties question the actual sufficiency of the third-party complaint. Nor does any party question the jurisdiction of the trial court over the parties or the cause of action. What is left for this court to decide, then, is whether the trial court could properly refuse to entertain the complaint though it had jurisdiction to do so. Since we have concluded that the court below correctly dismissed the direct complaint of Harvey against Kodak, what remains is the third-party complaint of Vari-Tech against Kodak, both nonresident corporations. The third-party complaint alleges with particularly strict liability by Kodak, breach of warranties for the optical glue, and that Kodak was negligent in manufacture of the glue. The complaint alleges that Vari-Tech is due indemnity from Kodak on any liability to Harvey. Neither the alleged negligence nor breach of warranty of Kodak to Vari-Tech occurred within this state.
As early as Grovey v. Washington, 196 Ark. 839, 303 S.W. 2d 578 (1938), this court recognized the doctrine oí forum non conveniens. In Grovey, we said:
But in actions between nonresidents based on a cause of action arising outside the state, the courts are not obliged to entertain jurisdiction. They may and usually do so on principles of comity, but not as a matter of strict right. In other words, it lies within the discretion of the courts whether or not they will entertain such a transitory action.
Grovey, above, at 704.
Although we are no longer bound by classifying actions in terms of being “transitory,” we think the decision in Grovey sound. In Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S.W. 2d 578 (1957), we expressed the considerations the trial court should weigh in applying the doctrine of forum non conveniens to be those of convenience to each party in obtaining documents or witnesses, the expense involved to each party, the condition of the trial court’s docket “and any other facts or circumstances affecting a just determination.” As we have held in Grovey, the application of the doctrine oíforum non conveniens lies within the sound discretion of the trial court in actions between nonresidents. We will not disturb the decision of the trial court on appeal except upon a showing of abuse of that discretion.
In the present case, Vari-Tech is a resident of Michigan and Kodak is a resident of New York. We are inclined to agree that the courts of either of those two states would be a more convenient forum for adjudication of the claims be tween these two parties, being ancillary to that of Harvey. Certainly, we find no abuse of discretion in the trial court’s dismissal of the complaint under the doctrine of forum non conveniens.
We must therefore affirm. | [
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Tom Glaze, Judge.
This case involves an action for unlawful detainer. The appellants appeal from an order issued by the Sebastian County Circuit Court wherein the appellees were found entitled to a writ of possession of property owned but which had been leased by the appellees.
On August 27, 1976, the appellees, the Hartmeiers, leased property to appellant, Gagne, and his wife. The term of the lease was for ten years and the monthly rental was $1,750 plus a percentage of the gross sales of gasoline. The provision of the lease which is an issue is paragraph twelve which provides:
LESSEES (Gagne) shall not sublease all or any part of the property herein leased without the expressed written consent of LESSORS (the Hartmeiers).
On February 4, 1980, Gagne (who was divorced at the time) entered into a written agreement designed “Contract of Sale of Personal Property and Business” with the appellants, Glosenger and lames. Gagne entered into this agreement without obtaining the written or oral consent of the Hartmeiers, but the agreement specifically incorporated the original Hartmeier lease and made the sale subject to the lease provisions. Additionally, the terms of the transfer or sale agreement provided that the transaction was not a subletting. Glosenger and lames then took possession of the leased property and proceeded to operate the business purchased from Gagne.
The Hartmeiers brought suit for possession of the leased property, contending that the agreement between Gagne, Glosenger, and lames was a sublease which was entered into contrary to the terms in paragraph twelve of the original lease. Gagne, Glosenger and lames argued that the contract they entered into was an assignment rather than a sublease and the written consent of the Hartmeiers was unnecessary.
As previously mentioned, the trial judge ordered the Hartmeiers were entitled to a writ of possession, and the bases for his decision were:
1. One legal distinction between a sublease and assignment is that when a lessee sublets his interest, he transfers a lesser interest than if he assigns it. Therefore, if the contract prohibited the transfer of a lesser interest, then it would also prohibit the transfer of the greater interest.
2. When Gagne sold his business to Glosenger and lames, he also became a partner and had some control over the business which would be more in line with a sublease than an assignment.
3. Assignment is usually in a different form than the contract of sale between Gagne, Glosenger and lames, and therefore, there was some doubt whether the document as drawn was actually an assignment.
After a review of the lower court’s findings and decision the first issue to be resolved is whether the court is correct in its finding that the Gagne transfer document is a sublease rather than an assignment. If correct, then the document would be a subletting under the original lease and, therefore, prohibited by its terms. The trial judge, however, in his first reason above indicated that the Gagne sale document could be an assignment, but, if so, he concluded that the document or assignment would still be prohibited by the original lease, i.e., a covenant against subleasing also prohibits an assignment. Thus, if we find that the Gagne sale document is an assignment, we must then decide if such an assignment breaches the sublease provision in the original lease.
We first consider whether the Gagne sale agreement was a sublease or assignment. To do so, it is important to understand the distinction between an assignment and a sublease and to know the legal consequences which may ensue from each. Professor Moynihan, in his Introduction to the Law of Property (1962) at page 76 discusses the traditional and common law distinction of these two terms in a property context as follows:
. . . An assignment is a transfer by the lessee of his estate for the entire balance of the unexpired residue of the term. There is no reversion left in the lessee. A sublease is a transfer of the leasehold for a shorter period than the unexpired residue of the term. Even if the difference in time between the lessee’s unexpired term and the transferee’s term is as short as one day the transfer is classified as a sublease . . . Where the transfer is an assignment the assignee becomes liable on those covenants in the lease made by the lessee which run with the land. The basis of this liability is the privity of estate arising from the landlord-tenant relation between the lessor and the assignee. The lessee continues to be liable on the covenants on the basis of privity of contract but as between lessee and assignee the latter is primarily liable. Thus, the assignee is liable to the landlord for the rent reserved in the main lease and this liability continues for the balance of the term unless and until the assignee makes a further assignment to some one else. But if the transfer by the lessee is a sublease there is neither privity of estate nor of contract between the main lessor and the sublessee. The lessor, therefore, has no direct action against the sublessee on the covenants in the lease. [Citations omitted.]
Most jurisdictions follow the common law distinction in determining whether a document or instrument is an assignment or sublease. Put simply, if the instrument purports to transfer the lessee’s estate for the entire remainder of the term, it is an assignment, regardless of its form or the parties’ intention. Conversely, if the instrument purports to transfer the lessee’s estate for less than the entire term, it is a sublease, again regardless of its form of the parties’ intention. Thus, the intention of the parties to the transaction has nothing to do when applying the common law rule. The sole question is whether the lessee retained a reversionary estate. If so, the instrument would be designed a sublease.
In the case of Jaber v. Miller, 219 Ark. 59, 239 S.W. 2d 760 (1951), Justice George Rose Smith critically studied and analyzed the common law concept in determining whether an instrument is a sublease or assignment, and, in rejecting its formalistic test, stated:
The English distinction between an assignment and a sublease is not a rule of property in the sense that titles or property rights depend upon its continued existence. A lawyer trained in common law technicalities can prepare either instrument without fear that it will be construed to be the other. But for the less skilled lawyer or for the layman the common law rule is simply a trap that leads to hardship and injustice by refusing to permit the parties to accomplish the result they seek.
For these reaons we adopt as the rule in this State the principle that the intention of the parties is to govern in determining whether an instrument is an assignment or a sublease. If, for example, a tenant has leased an apartment for a year and is compelled to move to another city, we know of no reason why he should not be able to sublease it for a higher rent without needlessly retaining a reversion for the last day of the term. The duration of the primary term, as compared to the length of the sublease, may in some instances be a factor in arriving at the parties’ intention, but we do not think it should be the sole consideration. [Emphasis supplied]
In accordance with the legal principle enunciated in Jaber, we must determine what was intended by Gagne, Glosenger and lames when they entered into their Contract of Sale or transfer document. First, and most obviously, the instrument was written to convey Gagne’s interest in his business to Glosenger and lames for a purchase price of $75,-000.00. The terms of the sale comprise most of the agreement except for paragraph nine which relates to the original Hartmeier lease and provides:
9. The parties understand that this Contract of Sale is subject to a Lease executed by and between the Seller and Joseph R. Hartmeier and Irene Hartmeier as Lessors, said Lease having been executed on or about the 27th day of August, 1976.
A copy of said Lease is attached hereunto, made a part hereof and entitled Exhibit “A.” It is understood by the Buyer that the Lease cannot be “sublet” without the written consent of the Lessors. This Agreement is not to be in any way considered a sublease of the demised premises herein, but rather a Contract of Sale for the business, inventory, fixtures and equpment contained in said business. It is understood that the Seiler retains no reversionary interest in said property but for the failure of the buyer to pay the price as herein agreed upon and set forth.
From a review of the language contained in paragraph nine above, it is clear Gagne, Glosenger and lames fully understood that Gagne could not sublet his Hartmeier leasehold interest. Although the contract or instrument in question did not reflect an assignment, the language in paragraph nine did incorporate the Hartmeier lease in toto and made the contract of sale subject to the Hartmeier lease. Glosenger testified that he knew Gagne could not sublease his interest, that he (Glosenger) recognized the transfer of the building or property as an assignment and that he and lames were directly responsible under the lease to Hartmeier. Since the sale contract incorporated the Hartmeier lease as a part of the agreement, Glosenger and lames became obligated to the Hartmeiers under the terms of the lease for its entire term.
The trial judge voiced some concern, because the instrument, including paragraph nine therein, failed to specifically designate that the Hartmeier lease was assigned and an assignment is generally in a different form. Thompson in his treatises on Real Property addresses this concern and provides a guide:
Any language which shows the intention of the parties to transfer the property one to the other is sufficient, the form of the instrument being immaterial. If it has the legal effect to pass to another the lessee’s interest in the whole or in any part of the demised premises for his entire term, or the remainder of his term, it is an assignment. [3A Thompson on Real Property, § 1210, at page 53.] [Emphasis supplied.]
The appellees argue Gagne did not part with his entire interest, and they relate terms in the contract of sale instrument which protect him, e.g., a right to draw funds from Glosenger’s and lames’ business account, a hold harmless provision, a right of re-entry for non-payment of monies due under the agreement, a right to prohibit waste, liens and the assignment or leasing of the property. Of course, none of these rights retained by Gagne rise to the dignity of a reversionary estate. Although courts in some jurisdictions have recognized the lessee’s reservation a right of re-entry to be a reversionary estate. Although courts in some jurisdictions have recognized the lessee’s reservation of a right of re-entry to be a reversionary estate, Arkansas has rejected this rule when the instrument is intended by the parties to be an assignment. Jaber v. Miller, supra. The rights Gagne retained incidental to the sale of his business do not negate the parties’ clear expression contained in the instrument that the sale contract was subject to the full Hartmeier lease agreement. We necessarily must conclude the instrument is an assignment and not a sublease.
Since we hold that the Gagne transfer or sale document is an assignment, we must then decide whether a restrictive covenant to sublease also prohibits an assignment. We find no Arkansas case on this legal issue, and none is argued in counsels’ briefs. Cases do exist in other jurisdictions, however, and the prevailing rule and the better reasoned law is that a restrictive covenant contained in a lease against sub letting is not violated by an assignment of the lease. Cities Service Oil Company v. Taylor, 242 Ky. 157, 455 S.W. 2d 1039 (1932) and De Baca v. Fidel, 61 N.M. 181, 297 P.2d 322 (1952); See also other cases annotated in 7 A.L.R. 249, 79 A.L.R. 1379 and 51C C.J.S. Landlord & Tenant, § 33, at page 84 note 64. This rule of law is bottomed on another but better known legal principle stated as follows:
Covenants against assignment and underletting, being a restraint against alienation, are not favorably regarded by the courts, and are liberally construed in favor of the lessee, so as to prevent the restriction from extending any further than is necessary. [3 Thompson on Real Property, § 1429 (1940).]
In Cities Service Oil Company v. Taylor, supra, the court, in holding a sublease restriction did not prevent an assignment, refused to extend a sublease covenant beyond the literal requirements of a reasonable interpretation of the terms employed. Applying these principles of law to the case at bar, the Hartmeiers and Gagne could have easily inserted words in the lease agreement to have prohbited both subletting and assignments. They failed to do so and given the clear distinction and legal significance between these terms, we are in no position to re-write the lease to prohibit an assignment. Thus, if the trial court determined that the Gagne sale instrument was an assignment, its further decision that such an assignment would violate the sublease provision is in error.
For the above reasons, we reverse the lower court’s order.
Reversed.
Cioninger, J., dissents.
Corbin, J., not participating. | [
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Per Curiam.
The defendant, Daniel Lon Graham, was convicted in the Circuit Court of Prairie County of kidnapping for ransom, and a belated appeal was allowed. The State failed to produce the transcript within 90 days and the defendant petitioned to vacate the conviction. That was denied in Graham v. State, 264 Ark. 489, 572 S.W. 2d 385 (1978), aper curiam order.
The per curiam order recites the reasons the State has not provided the defendant a transcript and cites the applicable statute for the reconstruction of the record.
Defendant now files a motion for clarification. As this Court appointed the attorney for the defendant, and has requested his services, we feel some obligation to provide a means of contacting people to prepare a bystander’s bill. The attorney for the defendant should contact the Attorney General who will make a telephone available for contacting witnesses. Our intent is that both parties can contact the witnesses at the same time. The Prosecuting Attorney of the District shall be notified in order to be present for the telephone conversations if desired.
This opinion is not binding on any substantive matter and the actual reconstruction of the record cannot be conducted in this court. The reconstruction must take place in the lower court. | [
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Frank Holt, Justice.
Appellant was convicted by a jury of the manufacture of a controlled substance (marijuana) in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1979), receiving a sentence of 5 years imprisonment and a $5,000 fine.
Appellant argues that the court erred in allowing into evidence incriminating statements allegedly made by him when in custody without adequate Miranda warnings. Two officers testified that when appellant was taken into custody, he made statements to them which indicated his ownership of the marijuana. Appellant’s objections to the voluntariness and admissibility of his statements were overruled. According to the officers, one of them orally acquainted appellant with his Miranda rights when neither officer could find a “rights card,” and also appellant stated that he understood them. Appellant denied that he was accorded his rights nor was he aware of them. The presumption is that an in-custody statement is involuntary, and the burden is upon the state to show otherwise. Hileman v. State, 259 Ark. 567, 535 S.W. 2d 56 (1976). Suffice it to say it appears undisputed that the officers could not recall giving all of the basic and fundamental rights required by Miranda v. Arizona, 384 U.S. 436 (1966). Miranda requires that all these fundamental rights be given in clear and unequivocal terms. This is not demonstrated here; therefore, we hold that the incriminating statements made by the appellant were inadmissible and constituted prejudicial error.
Appellant also asserts that the court should have held a Denno hearing outside the presence of the jury to determine the voluntariness of the statements. Ark. Stat. Ann. § 43-2105 (Repl. 1977) reads in pertinent part:
. . . [T]he determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.
To the same effect is Estep v. State, 244 Ark. 843, 427 S.W. 2d 535 (1968), which is in accord with Jackson v. Denno, 378 U.S. 368 (1964).
On the record before us, we are of the view that the issue of voluntariness was sufficiently raised at trial in a manner that required a hearing outside the presence of the jury on the voluntariness of the statements.
We do not discuss appellant’s other contentions for reversal since they are not likely to reoccur.
Reversed and remanded. | [
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Jack Holt, Jr., Chief Justice.
The appellees, Jerry Revels, Richard Leach and Mary High, are poultry growers in Howard County, Arkansas. After a nonjury trial the judge found the appellant, Rich Mountain Cooperative, Inc., fifty-one percent negligent in not correcting a power outage that resulted in the deaths of over 9,000 chickens owned by the appellees. The appellees were found forty-nine percent negligent because they failed to have adequate back-up generators. On appeal, Rich Mountain Electric argues that the trial court erred in considering certain photographs and that there was not substantial evidence to support the judgment. We agree that the court should not have admitted the photos into evidence as they are irrelevant. However, we find that the trial court’s finding of substantial evidence to support a judgment was not clearly erroneous.
This situation arose out of the following scenario. Because of a severe storm the previous afternoon, there were power outages on the electric distribution line servicing the appellees’ chicken houses. Apparently, the storm caused a tree to blow down into a phase wire causing it to sag within inches of the neutral wire (normally they are four feet apart). The following day’s one hundred degree temperatures and high electricity usage made the line sag even more and become heavily loaded. Once the line sagged into the neutral stage, the circuit breaker would go out at the substation, and outages would occur.
Due to the power outages and appellees’ lack of adequate back-up generators, the appellees did not have electricity to run the cooling equipment in their chicken houses. As a result of the ensuing heat, Mr. Revels lost approximately 6,300 chickens; Mr. Leach lost about 900 chickens; and Ms. High lost about 2,100 chickens.
There was testimony at trial that the power line problem had been discovered on the day before the outage and that the outage occurred when a pine tree fell into the power line. In support of this argument, the plaintiffs tendered several photographs of trees grown up in close proximity to power lines. The photos were taken over a year after the power outage and did not depict the same site as the power outage at issue. Over Rich Mountain Electric’s objection, the trial judge admitted the photographs into evidence.
SUFFICIENCY OF THE EVIDENCE
In finding that there was substantial evidence, the court stated:
[T]here is evidence that Defendant was negligent in that they could have more diligently pursued the cause of the outage. And, also, I believe these photographs are representative of the area and show that there’s a general lack of maintenance on the easement right of way. Primarily I think they should have been more diligent. Maybe they were short-handed and had to run to other jobs is the reason they couldn’t track down the tree across the line. And the plaintiffs are also somewhat negligent. I think anybody that’s dependent upon electricity knows there are outages, especially if your livelihood depends on chickens. I think — even though Tyson’s may not require you to have back-up generators, I think it’s a general rule everybody knows you ought to. The court finds that the defendant is 51 percent negligent and the plaintiffs are 49 percent negligent. They’re entitled to their damages less 49 percent of their own negligence, which, I think, it was undisputed what those damages were.
When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is:
[N]ot whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous (clearly against the preponderance of the evidence). In reviewing a finding of fact by a trial court, we consider the evidence and all reasonable inferences in a light most favorable to the appellee.
City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992) (citations omitted).
The court’s findings that defendant should have been more diligent were not clearly erroneous. Evidence presented at trial indicated that Rich Mountain Electric was aware of the downed line on the day prior to the power outage and that the company was not actively diligent in discovering the cause of the outage on the day of the incident and making repair.
An electric utility company has a duty to inspect and maintain its power lines in safe and working order. Stacks v. Arkansas Power & Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989). However:
Negligence of the company can not be inferred merely from the occurrence of the accident. That must be proved, and the burden of establishing it is on the party who alleges it.
It is recognized generally as well as by the courts that electric utility companies, such as appellant, must meet the public demand for a ready and adequate supply of power. In doing so they are not insurers against accident or injury, and are not held liable for such as can not be reasonably foreseen.
Arkansas Power & Light Co. v. Lum, 222 Ark. 678, 262 S.W.2d 920 (1953).
Electric companies must exercise ordinary care in the construction of their services lines, to make inspections at reasonable times to see that equipment is kept in a reasonably safe condition and to diligently discover and repair defects. Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976). They must use commensurate care to keep all electrical apparatus in a proper state of repair. Arkansas Power & Light Co. v. Cates, 180 Ark. 1003, 24 S.W.2d 846 (1930). “The obligation of repairing does not mean merely that the company is required to remedy defective conditions as are brought to its actual knowledge. The company is required to use active diligence to discover defects in its system.” Stacks v. Arkansas Power & Light Co., 299 Ark. 136, 771 S.W.2d 754 (1989), (citing Arkansas Gen. Utils. Co. v. Shipman, 188 Ark. 580, 76 S.W.2d 178 (1934)).
The evidence indicated that the electric company did not use active diligence to discover and correct the problem. Mr. Revels testified that Johnny Braswell, foreman for Rich Mountain Electric, told him that the power line problem was discovered on Monday. When Mr. Braswell testified, he denied having told the appellee that the sagging line had been discovered on Monday. However, Mr. Braswell admitted that a power company crew has a responsibility to resag a power line once this situation is discovered.
Although the evidence of the power company’s negligence in failing to resag the line the day prior to the outage rests in part on Mr. Revel’s testimony, as opposed to Mr. Braswell’s testimony, we must defer to the trial judge’s discretion in weighing the witnesses’ credibility. State v. Massery, 302 Ark. 407, 790 S.W.2d 175 (1990).
Mr. Braswell testified as to the stages taken to correct the outage on the day it occurred. According to his testimony, he received a call shortly before noon that the power on the appellees’ line was out. He sent the lineman to the substation and Mr. Braswell patrolled the line between the substation and the first breaker. (The whole line is approximately eight to ten miles long from the substation to the end.) When the lineman got inside the substation, he reset the breaker. Once reset, the line held and the power stayed.
Approximately thirty minutes later, the line went off again. Mr. Braswell stated that he and the lineman repeated the same routine: the lineman reset the breaker, and Mr. Braswell patrolled another portion of the line. Once again, resetting the breaker brought the power back on.
At about 2:30 p.m., Braswell learned that the power on this same line was down again. Following the same procedure, he got power returned to the appellees without discovering the actual problem. Mr. Braswell testified that he then inspected the full line. In a wooded area just before the end of the line, he discovered the problem — the wires were out of sag. He found the wires, normally four feet apart, merely inches apart. He resagged the line and had the lineman reset the breaker. The electricity returned to the line and remained on.
Braswell indicated that he did not discover the actual cause of the sagging lines until after Mr. Revels made his inquiry. Mr. Braswell then returned to the site and discovered that a tree had blown over, probably causing the problem.
In sum, Mr. Braswell patrolled various sections of the line on three separate occasions; yet, he did not find the problem until he inspected the entire line, after the power had repeatedly failed. As stated in Stacks, supra, “The company is required to use active diligence to discover defects in its system.” The evidence of record corresponds with the court’s finding that Rich Mountain Electric had not been actively diligent in pursuing the outage. After reviewing this evidence in the light most favorable to the appellees, Mr. Revels, Ms. High and Mr. Leach, we find that the evidence is not clearly against the preponderance.
RELEVANCY OF PHOTOGRAPHS
The relevancy of evidence is within the trial court’s discretion, subject to reversal only if an abuse of discretion is demonstrated. Bradford v. State, 306 Ark. 590, 815 S.W.2d 947 (1991); Turner v. Lamitina, 297 Ark. 361, 761 S.W.2d 929 (1988); Ryker v. Fisher, 291 Ark. 177, 722 S.W.2d 864 (1987). The test for determining whether photographs are admissible into evidence depends upon the fairness and correctness of the portrayal of the subject. Ryker, supra.
A.R.E. Rule 401 defines relevant evidence as evidence having any tendency to make the existence of the fact that is of consequence to the determination of the action more probable or less probable than it would be without that evidence. Although the definition of relevant evidence is broad, in order to be relevant, the evidence must be probative of the proposition toward which it is directed.
The photos depicted trees growing near power lines a year after the incident in question and in a different site. Further, they did not depict trees that were blown into power lines after a storm, as was the case in the power outage at issue.
The photos admitted into evidence did not fairly and correctly depict the situation at issue. They were not probative of the issue of whether the power company failed to clean up a situation after a storm, and for this reason, the trial court erred in accepting the pictures into evidence.
Although we find error on the part of the trial court, this error does not justify reversal. “[A] nonjury case should not be reversed because of admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made.” Butler v. Dowdy, 304 Ark. 481, 803 S.W.2d 534 (1991).
Even though the photographs were inadmissible, the trial court based its ruling on Rich Mountain Electric’s failure to diligently pursue the cause of the outage, rather than on the photographs; for as the court stated, “[T]here is evidence that Defendant was negligent in that they could have more diligently pursued the cause of the outage.”
Accordingly, we find that the admission of the photographs was harmless error and that the trial court should be affirmed.
Affirmed. | [
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Robert H. Dudley, Justice.
The Washington County Circuit Court issued a writ of mandamus ordering the Fayetteville Civil Service Commission to hold a hearing as required by its own rules. The Commission appeals. We affirm the trial court’s issuance of the writ.
Fayetteville police officer Dennis Taylor received a written reprimand from the Chief of Police for violating the city’s policy against smoking while on duty. Taylor gave notice of appeal and requested a hearing by the Civil Service Commission. The Commission refused to hear the matter. Taylor requested a hearing from the City Manager, who is designated as the arbitrator of disputes involving the smoking policy as set out in Fayetteville’s Clean Air/Smoking Policy, GA-2.1 (c). The City Manager agreed to an informal discussion, but noted that the city’s personnel policy provided that civil service procedures superseded the personnel policy. Taylor then filed the petition for a writ of mandamus asking that the Commission be ordered to hear his grievance. The trial court issued the writ'.
The Commission first argues that under our holding in Stafford v. City of Hot Springs, 276 Ark. 466, 637 S.W.2d 553 (1982), the trial court erred in issuing the writ. In that case a firefighter requested that the city civil service commission hear his appeal pursuant to the statute now codified as Ark. Code Ann. § 14-51-308 (Supp. 1991). We held that the statute provided for an appeal in the case of suspension, discharge, reduction in rank, or reduction in compensation, but that it did not provide for an appeal for a grievance such as penalty points imposed upon a firefighter for having an accident while driving a fire truck. However, a statute that was not applicable to the facts in Stafford provides that a city civil service commission may adopt rules and regulations governing its fire and police departments, and such rules “shall have the same force and effect of law.” Ark. Code Ann. § 14-51-301(a)(2) (Supp. 1991). In this case, unlike Stafford, the Fayetteville Civil Service Commission has adopted rules and regulations. Commission Rule 5.07 provides:
Any member of the respective departments or any applicant for appointment who has any grievance relating to the matters covered by these rules may present such grievance in writing to the Commission within fifteen days of the date on which the alleged grounds for the grievance arose and request a hearing thereon. The Commission shall hold a hearing on such grievance as soon as possible. [Emphasis supplied.]
The rule states that the Commission shall hold a hearing for a police officer who has any grievance relating to the matters covered by the rules. Thus, the Commission by its own rules was required to hold a hearing.
The Commission next argues that the trial court’s ruling was in error because its rule requires the Commission to interfere with the day-to-day operations of the police department, and Ark. Code Ann. § 14-51-212 (Supp. 1991) prohibits civil service commissions from interfering with the daily operations of a police or fire department. In a comparable case, we held that the express purpose of the statutes authorizing the establishment of city civil service commissions is to review the employment, discharge, and discipline proceedings of the city fire and police departments, and, therefore, such a review should not be construed as the kind of “interference with the day-to-day management or operation of a fire or police department” that is prohibited by the same statute. Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991). Likewise, in the case at bar, the Commission’s rule requiring a grievance hearing for violating the city’s policy does not constitute interference in the daily operations of the police department, and the trial court did not err in ordering the Commission to follow its own rule.
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John I. Purtle, Justice.
The appellant was tried before a jury on January 8, 1980, for the offense of theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). The jury returned a verdict of guilty and set his sentence at two years with the recommendation that one year be suspended. The court then allowed the state to present evidence of two prior felony convictions over the strenuous objection of the appellant’s counsel. The court sentenced the appellant to two years with no part to be suspended.
On appeal the appellant argues that the court improperly sentenced him to serve two years rather than submitting the issue to the jury. We disagree with the appellant for reasons which will be subsequently stated. Therefore, the court was not in error in sentencing appellant to serve two years without any part being suspended.
The facts are not in dispute. We are concerned only with the question of whether the court properly applied the law in this particular factual situation.
There are three statutes involved in the argument presented in this appeal. Ark. Stat. Ann. § 41-803 (Repl. 1977) provides that a defendant convicted of any offense other than capital murder may be sentenced to páy a fine as authorized by Ark. Stat. Ann. § 41-1101 et seq. (Repl. 1977), or to imprisonment as authorized by Ark. Stat. Ann. § 41-901 et seq. (Repl. 1977), or Ark. Stat. Ann. § 41-1001 et seq. (Repl. 1977). Since appellant has relied to a great extent on two statutes, they will be set out below:
Ark. Stat. Ann. § 41-1005 (Repl. 1977). The following procedure shall govern trials at which a sentence to an extended term of imprisonment is sought pursuant to Section 1001 (§ 41-1001):
(1) The jury shall first hear all evidence relevant to the felony with which defendant is currently charged and shall retire to reach a verdict of guilty or innocence on this charge.
(2) If the defendant is found guilty of the felony, the same jury shall sit again and hear evidence of the defendant’s previous felony convictions or previous findings of the defendant’s guilt of felonies. Defendant shall have the right to hear and controvert such evidence and to offer evidence in his support.
(3) The jury shall retire again, and if it finds that the defendant has previously been convicted of or found guilty of two (2) or more felonies, the jury shall consider the previous convictions or findings of guilty in determining the sentence to be imposed for the felony of which the defendant currently stands convicted.
The other statute mentioned by appellant is Ark. Stat. Ann. § 41-1201 (1) (Repl. 1977):
(1) If a defendant pleads or is found guilty of an offense other than capital murder, murder in the first degree, murder in the second degree, first degree rape, kidnapping or aggravated robbery, the court may suspend imposition of sentence or place defendant on probation. The court shall not suspend imposition of sentence or place a defendant on probation if it is determined, pursuant to Section 1005 (§ 41-1005), that the defendant has previously been convicted of two (2) or more felonies. In making a determination as to suspension or probation, the court shall consider whether:
(a) there is undue risk that during the period of a suspension or probation the defendant will commit another offense; or
(b) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(c) suspension or probation will discount the seriousness of the defendant’s offense; or
# * #
Appellant agrees that a jury’s recommendation of a suspended sentence is advisory only and whether a recommended suspension should be followed is discretionary with the trial court. Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888 (1970). Appellant also correctly argues that the legislature has determined that a defendant has the right to a jury’s determination of the factual issue as to the existence of prior felonies committed by him before such prior felonies can be used to enhance his punishment pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977). Up to this point we are in agreement with appellant’s argument. However, he continues to argue that Ark. Stat. Ann. § 41-1001 requires a jury determination of the existence of the felonies before the court may place him on probation or suspend imposition of sentence. He argues that this statute is controlling over the language set out in Ark. Stat. Ann. § 41-803 (4) and Ark. Stat. Ann. § 41-1201 (1). We do not agree with this interpretation of these statutes.
Appellant was not charged under the habitual criminal act. Neither was he sentenced pursuant to such act. Therefore, this case could well be decided without even mentioning Ark. Stat. Ann. § 41-1001 through 41-1005.
The appellant is certainly correct in arguing that the jury must consider the factual situation but such is the case only when the accused is charged as a habitual criminal. In the case before us appellant was not charged as a habitual criminal. He was charged only with theft of property pursuant to Ark. Stat. Ann. § 41-2203. The sentence for such coviction would be from two to ten years. The jury set the sentence at the minimum and recommended that one year be suspended. This is where Ark. Stat. Ann. § 41-1201 comes into play. This statute makes it mandatory that the trial court consider whether there is undue risk that the defendant will commit another offense or whether time in the Department of Correction would be beneficial in his case or whether suspension would discount the seriousness of the offense. There are other matters to be considered by the court, but we deem it unnecessary to cite them. Acting pursuant to this statute, the court properly considered the other criminal acts.
During the sentencing phase of the trial, which was conducted by the court, the jury remained seated and listened to all the testimony. Although it was not necessary for the court to keep the jury there, it was no doubt the court’s idea to utilize this method in explaining why the court was not following their recommendation. The court had the statutory right to consider the conduct of the defendant, including prior convictions, in deciding whether to suspend any of the sentence. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978), cert. denied 440 U.S. 911.
The appellant has relied upon Clinkscale v. State, 269 Ark. 324, 602 S.W. 2d 618 (1980); Cotton v. State, 256 Ark. 527, 508 S.W. 2d 738 (1974); and several other cases to support the proposition that the court committed prejudicial error by considering the prior felony convictions which had not been mentioned until the close of the trial. In Clinkscale the appellant was charged as a habitual offender. In Cotton the court simply added seven years to the sentence the jury had imposed. Perhaps the appellant relies most strongly on the case of Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600 (1972). Wilburn was charged and sentenced as a third offender pursuant to the Arkansas statute in effect at the time, which was Ark. Stat. Ann. § 43-2328 (Supp. 1971). The real question in Wilburn was the weight given by the jury to prior convictions. We do not think Wilburn is proper authority for the argument presented in this case. Therefore, we hold that the trial court acted in a manner consistent with the governing statutes and did not commit error.
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Robert L. Brown, Justice.
This case involves the adoption of two children, K.F.H. and K.F.H., without the consent of their natural mother the appellant. The probate judge granted the adoption and terminated the parental rights of the appellant. The appellant raises three points on appeal. The points raised are without merit, and we affirm the judgment of the probate judge.
There are two appellees, the natural father and his wife, the adoptive mother. The natural father, who lives in Jonesboro, hired a Michigan lawyer to locate a surrogate mother to bear him a child. He was then put in contact with the appellant. On February 17, 1986, the appellant contracted with the natural father to be artificially inseminated with his sperm and to bear him a child whom he and his wife would subsequently adopt. In June of 1986, the appellant became pregnant but miscarried. Afterwards, she was artificially inseminated numerous times in December 1986 and January 1987 with the appellee’s sperm and became pregnant again in January of 1987, this time with twins.
During the pregnancy, the appellant decided that she wanted to keep the children she was carrying and filed a complaint in Michigan on August 19,1989, to void the surrogate parenting contract as contrary to public policy. The appellees then filed a complaint, also in Michigan, asserting that one of the appellees was the natural father of the children and praying for their adoption by the other appellee in accordance with the agreement. Twins, K.F.H. and K.F.H., were born to the appellant on September 4, 1987, in Michigan.
On April 21, 1988, an order was entered by the Michigan circuit court voiding the surrogate parenting contract on public policy grounds. A second order was entered, also on April 21, 1988, stating that the natural father would have legal and physical custody of the twins, that the appellant would be permitted visitation, that the appellant must pay $28.00 per week for child support which the court abated in light of her anticipated visitation expenses, and that the appellees must send the appellant periodic reports on the children.
The appellant moved from Michigan to Ohio sometime in April of 1990. On September 18,1990, jurisdiction of this matter was transferred from the Michigan circuit court to the Craighead County Chancery Court. On November 1, 1990, the appellees filed a petition in the Craighead County Probate Court for the wife of the natural father to adopt the twins. In that petition, they contended that one of the appellees was the biological father and that the appellant’s consent was not required because she had failed, without justifiable cause, to communicate with the children for at least a year. On July 19, 1991, the probate judge granted the petition for adoption and found that the appellant’s consent was not required due to failure to communicate with her children as alleged. He further found that it was in the children’s best interest that the natural father’s wife adopt them.
I. CHOICE OF LAW
Under Arkansas law, parental consent is not required of the non-custodial parent if that parent fails significantly and without justifiable cause to communicate with the child for a period of at least one year. Ark. Code Ann. § 9-9-207(a)(2) (1987).
The appellant first contends that because this case originated in Michigan that state’s laws applied up to the point when jurisdiction of the case was transferred to Arkansas on September 18,1990. Michigan statutory law provided at the time that the consent of a non-custodial parent could be waived if the non-custodial parent had failed or neglected to provide regular and substantial support for a period of two years, or had the ability to but failed to regularly or substantially communicate with the child for a period of two years. According to the appellant, Arkansas’s one-year requirement could only apply for the period accruing after the case was transferred to this state on September 18, 1990.
The focal point for this issue is the date when the adoption petition was filed — November 1, 1990. By that date, the Craighead County Probate Court clearly had jurisdiction of the cause. We have held that the one-year period after which a parent may lose the right to consent must accrue before filing the adoption petition and that the filing of the petition is the cutoff date. Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985). We have further held that the one-year requirement applies to any one-year period between the date of birth and date the petition for adoption was filed and is not limited to the year immediately preceding the filing of the adoption petition. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). And we have applied the one-year period against a nonresident parent who failed to support his child significantly for a year and thereby lost the right to consent. Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981).
Here, we are presented with a novel circumstance in that jurisdiction of the case was transferred to Arkansas shortly before the adoption petition was filed. The probate judge, however, was presented with no clear and cogent reason not to apply Arkansas law to this cause other than the fact that the case had only been in Arkansas for a month and a half. It is elementary that the laws of the forum state typically are applied to its cases and controversies. We hold that there was no error in the application of Arkansas law to circumstances occurring prior to the transfer of jurisdiction.
The appellant contends for the first time on appeal that her due process rights were violated because of lack of notice that she stood to lose her parental rights by the retrospective application of Arkansas law to a time when the Michigan circuit court still had jurisdiction. It does not appear, though, that the appellant raised this constitutional argument before the probate judge. Merely arguing that Arkansas law should not apply until after the court obtained jurisdiction, as the appellant did before the probate judge, did not alert the judge to the constitutional arguments now presented. This court will not consider any argument raised for the first time on appeal, even a constitutional argument. Arkansas County v. Burris, 308 Ark. 490, 825 S.W.2d 590 (1992).
II. WAIVER OF CONSENT
For her second point, the appellant urges that she did not fail to communicate with her children for a year, and even if this court concludes that she did, this lapse was justifiable under § 9-9-207(a)(2).
Statutes for the adoption of children are strictly construed and applied. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992). We have placed a heavy burden of proof on one wishing to adopt a child without the consent of a parent and that burden is by clear and convincing evidence. In the Matter of the Adoption of Glover, 288 Ark. 59, 702 S.W.2d 12 (1986); Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979). The question we must now answer on appeal is whether the probate judge’s finding of lack of parental contact without justification was clearly erroneous. See Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992).
The record reveals that the appellant’s last visit with her children was on March 20,1989, and no contact was had with them until she mailed birthday cards on September 27, 1990. That represents a period of a year and one-half when there was no communication between the appellant and the twins. The appellant insists that a letter she wrote dated March 8, 1990, to Ms. Evelyn Green, the appointed friend of the Michigan court, requesting visitation of the children, and a progress report sent from the appellees to her concerning the children made in April 1990 qualify as communication with the children. The argument though is specious. Communication with Ms. Green or the appellees did not constitute communication with the children. The fact of the matter is there was no contact with the children for more than a year.
We are left then with the pivotal question of whether the failure to communicate was without justifiable cause under the statute. We do not believe that the probate judge clearly erred in finding no justification. Failure to communicate without justifiable cause means a failure that is voluntary, willful, arbitrary, and without adequate excuse. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986); Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ark. App. 1980).
The appellant presents several reasons why her lack of communication with the twins was justified. She points to her relationship with the appellees, which, she stated, had been adversarial since the birth of the twins, and to the age of the twins, which made it impossible for her to communicate with them without the cooperation of the appellees. She also states that she sent letters and cards to the twins which they never received. And, she maintains that she tried to arrange for a visit with the children in March of 1990. Lastly, she claims that financial problems and her pregnancy prevented her from traveling.
In his findings, the probate judge highlighted the frustration that Evelyn Green had in maintaining contact with the appellant and in arranging her visits with the children:
Ms. Green continued trying to arrange visits for respondent (appellant) and was unable to make any arrangements. In fact, during part of this time respondent refused to give her her home address and when she finally met with Ms. Green she informed her she was pregnant.
It must be noted that during all of the time Ms. Green was seeking to arrange visitation with these children, the appellees cooperated fully and completely in order to facilitate respondent’s court ordered visitation with the children. It appears to this Court that Ms. Green complied fully and completely with the Michigan Court Orders and did everything within her power to help respondent in arranging these periods of visitation with the children. It appears that she was frustrated in her attempts to carry out the Orders of the Court due to respondent’s actions and not due to any reluctance on the part of petitioners (the appellees) to assist with the visitation or any refusal on the part of Ms. Green to comply with the Orders of the Court. Respondent testified that she was unable to exercise some visitation periods scheduled by Ms. Green due to lack of finances required for travel. She also admitted, however, that during the period of time from the entry of the Order in 1988 until her last visitation with these children in March, 1989, she had engaged in relationships with at least two men, one relationship resulting in the birth of three children and her later marriage to that man just prior to the hearing in this case. At one point she candidly admitted that she did not furnish Ms. Green her address because the man she was living with did not want his address given to third parties. During the time in question respondent made no effort to communicate with these children in any manner other than the visitations which have already been discussed.
The record supports the probate judge’s findings. In addition, though the appellant argues on appeal that she sent cards and presents to the children during the relevant eighteen-month period, this is not reflected in the record. What the record does reflect is that during this time period the appellant had a job, received money from a student grant and loan to attend college, and was paid for an article on surrogate motherhood. She also made several trips out of state, including a trip to Florida in May 1990 with her other children.
We view the issue of justifiable cause as factual but one that largely is determined on the basis of the credibility of the witnesses. This court gives great weight to a trial judge’s personal observations when the welfare of young children is involved. In re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); see also In the Matter of the Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990). The probate judge found that proof of the appellant’s disregard of the children for more than a year was clear and convincing. We cannot say that the evidence is to the contrary.
III. RELEVANCY OF WITNESSES
For her last point, the appellant argues that it was error to admit the testimony of Evelyn Green and Mr. Emmett Presley, a teacher at Arkansas State University in the field of social work who was asked to oversee the appellant’s visits with the twins in Jonesboro. Ms. Green testified to communication problems with the appellant, her indecisiveness, and her move from Michigan to Ohio without notice. Mr. Presley testified that a male friend accompanied the appellant on one visitation. According to the appellant, both witnesses’ testimony was prejudicial and irrelevant.
We disagree. First, their testimony was especially relevant to the question of arranging the appellant’s visits with the twins and to how the visits actually transpired since both people were directly involved in that process. A trial court’s ruling on the relevancy of evidence will not be reversed absent an abuse of discretion. Farmers Bank v. Perry, 301 Ark. 547, 787 S.W.2d 645 (1990). Here, we discern no such abuse.
Secondly, we note that while the probate judge conceded that all of the Green/Presley testimony might not be relevant, he added that he could separate any chaff from the wheat. Even if some chaff was admitted into evidence, we have held that in a bench trial the trial judge is capable of evaluating the evidence, and the judgment will stand unless all of the competent evidence is insufficient to support the judgment or the incompetent evidence induced as essential finding that would not otherwise have been made. See Rich Mountain Elec. Coop. v. Revels, 311 Ark. 1, 841 S.W.2d 151 (1992); Butler v. Dowdy, 304 Ark. 481, 803 S.W.2d 534 (1991). We hold that neither circumstance exists in this case.
Affirmed. | [
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Frank Holt, Justice.
Appellant, pursuant to a contract, bought certified soybeans from the appellee, producer. By this action appellant seeks reimbursement from appellee for the balance of money it paid appellee for the beans, plus costs, asserting the seed did not meet the required germination test. Appellee counterclaimed, asserting he suffered damages resulting from his resale of the seeds below the contract price. The court, sitting as a jury, found the soybeans were at all times in conformity with the terms of the contract and dismissed appellant’s claim for reimbursement of $9,-915.16 and awarded appellee $6,551.60 on its counterclaim. Appellant contends on appeal that the lower court erred in not finding a lack of acceptance under Chapter 2 of the Uniform Commercial Code, Ark. Stat. Ann. §§ 85-2-101 et seq. (Add. 1961), or in the alternative, in not finding that the doctrine of impracticability, Ark. Stat. Ann. § 85-2-615 (Add. 1961), applies. Appellee cross-appeals, contending the court erred in not awarding him an additional amount of $1,379-70 as damages for expenses he incurred in picking up and reselling the beans.
Appellant Hartz purchased the certified soybeans through a broker from the appellee in February, 1978, for delivery in February or March. Thereupon, Hartz resold the seed, before delivery, to a wholesale seed dealer in Georgia. The seed was picked up by this wholesale dealer on April 8 and May 5 at appellee’s warehouse in Cord, Arkansas. On May 15, after testing the seed, the Georgia Department of Agriculture reported the germination level (67%) to be below that certified (80%) by appellee according to Arkansas tests. It placed a stop sale order on the seed and notified appellee. Appellee requested another test by Georgia. On May 31, the test report indicated a germination level of 65%, or again too great a variance from that certified by appellee. Appellant notified appellee on June 1 it was cancelling the contract. On June 14 and 16 appellee picked up the beans in Georgia and on June 20 repaid appellant $20,250 of the purchase price. It appears the planting season for this type soybean ends between June 15 and July 10. Appellee had the seeds retested by the Arkansas State Plant Board, which reported on July 5, 1978, a germination of 81%. On July 21 the United States Department of Agriculture Seed Laboratory in Montgomery, Alabama, reported the Arkansas Samples tested 88% germination. On August 2 that agency reported the germination level of the Georgia sample at 76% or 78% or sufficient for the 80% label as certified by appellee. In a letter dated August 21, appellee requested appellant to take delivery of the soybeans by August 31, which was refused. The value of the beans, as seed beans, had steadily declined from the end of the planting season until they were of no value as such as of the time of the letter. Appellee sold the beans as oil beans.
Appellant argues that under the U.C.C. the goods were seasonably rejected. Appellee contends this was a fact question, and the trial judge’s finding is supported by the evidence and should be upheld. We are of the view that the trial court erred for the reason that the facts clearly preponderance there was no acceptance under the U.C.C. Under the Code, as adopted in Arkansas, the buyer may reject goods which fail in any respect to conform to the contract. Ark. Stat. Ann. § 85-2-601 (Add. 1961). Rejection must be within a reasonable time after delivery or tender, and the buyer must seasonably notify the seller. § 85-2-602. Acceptance occurs when the buyer has had a reasonable opportunity to inspect the goods and signifies to the seller that they are conforming or that he will take them in spite of their nonconformity. § 85-2-606. If the buyer fails to make an effective rejection, under § 85-2- 602, after having had a reasonable opportunity to inspect the goods, this also constitutes acceptance under § 85-2-606. Under subsection (11) (c), if the buyer does any act inconsistent with the seller’s ownership, this may constitute acceptance also.
It is clear that, under the Code, delivery does not in and of itself constitute acceptance. In White and Summers, Uniform Commercial Code, p. 296 (2d 1980), acceptance as provided in § 85-2-606, supra, is discussed:
Acceptance is a term of art which must be sharply distinguished from a variety of other acts which the buyer might commit. Note first that whether the buyer has ‘accepted’ the goods is unrelated to the question whether title has passed from seller to buyer. Secondly, acceptance is only tangentially related to buyer’s possession of the goods, and in the usual case the buyer will have had possession of the goods for some time before he has ‘accepted’ them.
Furthermore, it is there pointed out that acts done without knowledge of defects, which the buyer could not have discovered, do not fall under § 85-2-606 (1) (c). Thus, appellee’s argument that the resale by appellant, the buyer, constituted an inconsistent act which establishes acceptance is not persuasive.
Here, the seller’s name was on the tag attached to the beans, and he was the one notified by Georgia of the test results. The buyer was unable to sell the beans in Georgia pursuant to the stop sale order which read, “No part of this lot of seed is to be sold or disposed of except as provided for in written release from this department.” As appellant points out, the Federal Seed Act, 7 U.S.C. §§ 1551, et seq., prohibits transporting seeds in interstate commerce that have a false label. § 1571 (d). At the point it found the beans to have tested below the germination labelled by appellee, the appellant buyer notified the appellee seller it was rejecting, which it had the right to do under the U.C.C. for goods that are nonconforming. Appellee, expressing disbelief in the Georgia test, reclaimed the goods and then refunded most of the purchase price to appellant. Before doing so, however, he requested a retest in Georgia, which caused a delay, while the time for planting was expiring.
In the circumstances, appellant buyer rejected the nonconforming goods within a reasonable time after discovery of the nonconformity, following the second test performed in Georgia at appellee’s request, and seasonably notified the seller. Therefore, the trial court’s finding that appellant is liable under the contract is against the clear preponderance of the evidence. It follows that appellant is entitled to reimbursement and appellee’s counterclaim should be dismissed. In doing so, therefore, it becomes unnecessary to discuss appellant’s other contentions as well as appellee’s cross-appeal.
Reversed and remanded for proceedings consistent with this opinion.
Reversed.
Adkisson, C.J., and Purtle and Dudley, JJ., dissent. | [
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Robert L. Brown, Justice.
The appellant, Kendall Dillon, raises sixteen points in his appeal from a conviction for rape and a sentence of thirty-three years. Three points concern prosecutorial misconduct in the cross-examination of two defense witnesses and of Dillon himself. We agree that the cumulative effect of statements made by the prosecutor in the cross-examination was prejudicial to Dillon and denied him a fair trial. We, therefore, reverse and remand the case for a new trial.
FACTS
On November 19,1990, Kendall Dillon, who at the time was a Pulaski County Deputy Sheriff, was charged with the crime of rape. The charge resulted from an incident that occurred at about 5:00 a.m. on October 10,1990, when Dillon, who was in his patrol car, stopped Tammy Falcone, an employee of the Checkmate Club, near McCain Mall in North Little Rock. According to Falcone’s testimony, Dillon called in her license and tag numbers and informed her that a warrant had been issued for her arrest for hot checks. He instructed her to follow him to her car. She obeyed, and followed him to Sherwood, where they parked in a lot near Kiehl Avenue. Dillon ordered her into his car and then drove her to a secluded gravel road.
Falcone offered Dillon her tip money if he would let her go, but he replied that he wanted her, not her money. She told him that she wanted to go home to her children, but Dillon began playing with her hair, kissing her, fondling her breasts, and inserting his fingers in her vagina. Falcone testified that she feared she would die if she attempted to get away. When a car passed by, Dillon stopped. He then returned her to her car and warned her not to tell anyone.
Two days later, on October 12,1990, Dillon stopped Brenda Kaup, according to her testimony at trial, and instructed her to raise her brassiere and pull down her pants and panties while she sat in his patrol car. No criminal charges were filed in connection with that incident, but Kaup sued Dillon in federal district court. Kaup’s testimony was admitted at Dillon’s trial.
Dillon was convicted and sentenced after a three-day trial.
I. PROSECUTORIAL MISCONDUCT
Dillon points to several instances of prejudicial statements made by the prosecutor at trial, none of which was supported by proof.
The first was in the form of a question on cross-examination to Lieutenant Mike Adams of the Pulaski County Sheriffs Department under whom Dillon worked:
PROSECUTOR: Were you aware of any complaints against Mr. Dillon about his treatment of women, particularly threatening to plant drugs on them in exchange for sex?
DEFENSE COUNSEL: Your Honor, I object to that characterization; it is a leading statement.
THE COURT: Don’t lead your witness, Ms. Ferrell. You may rephrase the question.
DEFENSE COUNSEL: Your Honor, may I approach the bench?
THE COURT: Please do.
(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)
DEFENSE COUNSEL: Your Honor, that question was leading. The allegation was made from specific acts, and I would —
THE COURT: I sustained your objection to the leading.
DEFENSE COUNSEL: And it was rude of Ms. Ferrell because of the specific act that was implied.
PROSECUTOR: He opened the door by saying that he did a good job and how he arrested these women in performance of his duties is relevant to how he would do his job.
DEFENSE COUNSEL: Not to that kind of question, Your Honor. He didn’t open any door, and I do move for a mistrial.
THE COURT: Denied.
DEFENSE COUNSEL: And I ask for the Court to instruct the jury. The question was improper and they’re to disregard it.
THE COURT: I’m not going to over-emphasize it, but. . . I’m going to sustain your objection to the leading question.
Without any proof to support the insinuation, the prosecutor forged the distinct impression in the minds of the jurors that complaints against Dillon existed for threatening to plant drugs on women in exchange for sex.
The second improper comment occurred in the prosecutor’s cross-examination of Chief Deputy Jerry Bradley of the Faulkner County Sheriffs Department:
PROSECUTOR: Well, were you aware of whether — Were you aware that the defendant resigned from the Conway Police Force?
BRADLEY: Yes.
PROSECUTOR: So you are aware of why he resigned from the Conway Police Force?
BRADLEY: I have no direct knowledge of why he resigned.
PROSECUTOR: You have no direct knowledge?
BRADLEY: No.
PROSECUTOR: You have no direct knowledge, but you are aware that it’s because he forced sex on —
DEFENSE COUNSEL: Your Honor, I want to object to her making any statement of —
THE COURT: Now, just a minute. If he doesn’t know why, doesn’t have any direct knowledge of it, then that’s it.
PROSECUTOR: Are you also aware that he resigned from the Morrilton Police Force?
BRADLEY: Yes, Ma’am.
PROSECUTOR: So you’re aware of why he resigned there, as well, aren’t you?
BRADLEY: No.
PROSECUTOR: And are you aware —
BRADLEY: I have no direct knowledge of why he resigned from any department. He also worked for Mayflower at one time, but I —
PROSECUTOR: And you know he resigned from Mayflower?
BRADLEY: Yes.
PROSECUTOR: And you know he resigned from UCA?
BRADLEY: I’m sorry. I don’t ever remember him working for UCA.
PROSECUTOR: As a security at UCA?
BRADLEY: No, I don’t. I don’t remember that.
PROSECUTOR: So you’re aware that he resigned from Mayflower, that he resigned from Conway, he resigned from Morrilton, and now you’re aware that he resigned from the Pulaski County Sheriffs Department. Is that correct?
BRADLEY: I didn’t know he had resigned from Pulaski County. I didn’t know what his involvement there was.
PROSECUTOR: And are you aware that these were all forced resignations?
DEFENSE COUNSEL: Your Honor, I want to object to that. And at this time, Your Honor, may I approach the bench?
(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)
DEFENSE COUNSEL: Your Honor, the witness has testified that he had no direct knowledge. She is asking, “Are you aware that he was forced to resign?” He’s already said he had no direct knowledge. At this time, I’d move for a mistrial. She has prejudiced us before this jury
THE COURT: But —
DEFENSE COUNSEL: — and it’s totally prejudicial, after he said that he had no direct knowledge of it.
THE COURT: How much more do you want him to say about it?
PROSECUTOR: I elicited of him — but this is my last question of this witness.
DEFENSE COUNSEL: It’s one too many, Your Honor.
THE COURT: I’m not going to order a mistrial at this point, but don’t do that any more.
PROSECUTOR: Okay, no, Your Honor.
THE COURT: You’re that close to it.
PROSECUTOR: I don’t dare.
DEFENSE COUNSEL: And, Your Honor, at this time, we’d ask —
THE COURT: Your motion is denied.
DEFENSE COUNSEL: But — Now, I understand that, but I have one more, and I ask that the jury be instructed to disregard that question.
(THEN, in the hearing of the jury.)
THE COURT: All right. Ladies and gentlemen of the jury, you’ll disregard that last question which was asked by Ms. Ferrell. Let’s move along. Any other questions of Chief Deputy Bradley?
PROSECUTOR: No, Your Honor.
Here, the prosecutor adroitly presented a mandated resignation due to “forced sex” in Faulkner County and then suggested “forced resignations” or suspensions in four other law enforcement agencies, including the Pulaski County Sheriffs Department and one security position at the University of Central Arkansas. Again, no proof was presented by the state to substantiate these implications of the most serious order. It is evident that the trial judge was alarmed by this strategy, and he told the prosecutor that she was “that close” to a mistrial.
The prosecutor next cross-examined Dillon on his suspensions from various law enforcement agencies:
PROSECUTOR: And you testified on direct that you’ve been a police officer with the Pulaski County Sheriffs Department for seven and a half years. Right?
APPELLANT: Yes.
PROSECUTOR: And that you left the Narcotics Division when you were promoted. Correct?
APPELLANT: Yes.
PROSECUTOR: But during that seven and a half years, that wasn’t the first time you were suspended, was it?
APPELLANT: No.
PROSECUTOR: You’d been suspended before for taking a woman to —
DEFENSE COUNSEL: Your Honor, I want to object.
THE COURT: You may ask him if he has been suspended and then ask him what for. If it goes to truthfulness, I’ll allow it.
PROSECUTOR: Okay.
(THEN, in the hearing of the jury.)
PROSECUTOR: Have you been suspended before?
APPELLANT: Yes.
PROSECUTOR: What was it for?
DEFENSE COUNSEL: Your Honor, at this time, I’d like to state that unless it has do with truthfulness or untruthfulness, I would object to the question.
THE COURT: Well, you see, I don’t know.
DEFENSE COUNSEL: Well, then no proper foundation has been laid for the question.
THE COURT: Overruled. Go ahead.
PROSECUTOR: What was it for?
APPELLANT: I’d have to refer to the letter of suspension. I believe it was for not remaining quiet in school and misuse of a department vehicle.
PROSECUTOR: Misuse of a department vehicle? What did you misuse it for?
DEFENSE COUNSEL: Your Honor, I object. That has nothing to do with truthfulness or untruthfulness.
(THEREUPON, counsel for the State and counsel for the Defense approached the bench and conferred with the Court, out of the hearing of the jury, as follows:)
THE COURT: Do you have proof as to what he’s been suspended for?
PROSECUTOR: Yes, I do.
THE COURT: Well, ask him those specific questions that deal with truthfulness or untruthfulness, and using a vehicle improperly would not go to that. I’ll just give you a little hint.
PROSECUTOR: Okay.
In an in camera conference with trial counsel, the prosecutor indicated that she wished to ask two more questions about alleged prevarications by Dillon but did not intend to back up the questions with witnesses. A discussion then followed:
THE COURT: Aren’t those questions sort of like do you still beat your wife?
PROSECUTOR: Your Honor, they are prior incidences of —
THE COURT: (Interposing) Well, that is fine if you can back those up and prove them, then that is proper, but just to ask them and have no proof of it is not only improper, it is not fair. Is that the only two other questions you have left?
PROSECUTOR: Yes.
THE COURT: Okay. Let’s don’t ask those. And you can go back and finish up with something else if you like.
PROSECUTOR: Okay.
When error accumulates in a criminal case, this court has recognized that the impact may be prejudicial, and we have reversed a decision by the trial court. Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978). We considered a motion to suppress a search warrant in Harris and concluded that the warrant should have been suppressed as defective. The municipal court did not adequately specify on the warrant the place to be searched. Also, the judicial officer made no finding whether it was a daytime or nighttime search (the warrant may have been served as early as 5:00 a.m.), and no receipt for the items seized was given the defendant. The trial court noted “pretty much of a total disregard for the rules” but refused to find prejudice. We reversed due to the “accumulation of error,” saying:
It might be that alone the discrepancies in this case would not amount to prejudicial error. However, when considered together, we must conclude that the almost total disregard for the Rules cannot be ignored. What it all comes down to is where do we draw the line? We draw the line here. The State has not demonstrated that a reasonably good faith effort was made to comply with the Rules. The evidence is, in fact, to the contrary.
264 Ark. at 395, 572 S.W.2d at 391.
A second case from a foreign jurisdiction approximates the case at bar and offers additional justification for reversal. See State v. Soares, 815 P.2d 428 (Hawaii 1991). The offense at issue in Soares was the robbery of a convenience store. The appellants were convicted and, on appeal, urged prosecutorial misconduct. The Hawaii Supreme Court agreed and reversed and remanded, giving as part of its reasoning the following:
We have repeatedly stated that “[t]he duty of the prosecution is to seek justice, to exercise the highest good faith in the interest of the public and to avoid even the appearance of unfair advantage over the accused.” [Citing authority.] In this case, the record contains numerous examples of the prosecutor’s disregard for appellants’ right to a fair trial. For example, during jury selection, the prosecutor asked a prospective juror her feelings about someone who did something wrong but did not have adequate counselling in his or her “formative years.” After Soares’ counsel objected and asked the court to instruct the prospective jurors not to infer from any of the attorneys’ questions that anyone had done anything wrong, the prosecutor remarked, “if nobody has done anything wrong, we wouldn’t be here.”
Further examples of the prosecutor’s misconduct include the prosecutor’s repeated attempts to introduce evidence previously excluded by motion in limine, numerous “speaking objections,” and leading questions.
Although no single instance of prosecutorial misconduct substantially prejudiced appellants’ right to a fair trial, we find that the cumulative weight of the prosecutor’s improper conduct was so prejudicial as to deny appellants a fair trial. [Citing authority.]
815 P.2d at 430-431.
In the present case, the prosecutor crafted a mosaic of a defendant who 1) had planted drugs on women in exchange for sex; 2) had resigned from the Conway Police Department because he had forced sex on someone; 3) had been forced to resign from four other law enforcement agencies and one security job, apparently for the same reason; and 4) had been suspended from the Pulaski County Sheriffs Department for “taking a woman,” the implication in light of the charge and the other insinuations being that the woman was taken for sex.
As in Soares, the prosecutor’s accumulated remarks in this case combined to deny Dillon a fair trial. One comment built on the next until the jury could readily have believed that Dillon had been fired repeatedly from law enforcement positions because he forced sex on women. Yet the prosecutor offered no evidence that any one of these accusations was true. The net result was guilt by insinuation.
We cannot say that the prosecutor’s comments, overly zealous as they were, did not taint the jury’s decision and, indeed, we conclude exactly to the contrary. Our system of criminal justice is founded on the twin cornerstones of fairness and proof beyond a reasonable doubt. Here, the appellant was subjected to an onslaught of accusations which he had no way of defending against because the accusations were unsubstantiated. The prejudice to his case was palpable.
II. POINTS ON RETRIAL
There are several points that may well reoccur in a second trial.
On cross-examination, the State was allowed to use a transcript to inquire into whether Dillon had told the truth while testifying under oath in a court proceeding on October 26, 1984. In the earlier trial, the appellant declared that he had not made any specific promises to the defendant in that case; later, however, a tape was played in which it was clear that he had indeed made promises.
The appellant contends that this cross-examination violated A.R.E. 608(b), which bans, in general terms, proof of “[s]pecific instances of the conduct of a witness” by extrinsic evidence. But the Rule leaves to the court’s discretion the decision whether to permit inquiry concerning those instances that concern a witness’s “character for truthfulness or untruthfulness.”
Reference to a transcript of a prior proceeding involving the witness for the purpose of impeaching that same witness in the current trial is not the kind of extrinsic evidence prohibited by Rule 608(b). See 1 J.W. Strong, McCormick on Evidence, § 41, at p. 141 (4th Ed. 1992). We have also held that the credibility of a witness may be attacked, under Rule 608, under the following conditions: “1) the question must be asked in good faith, 2) the probative value must outweigh its prejudicial effect, and 3) the prior conduct must relate to the witnesses] truthfulness.” Mackey v. State, 279 Ark. 307, 316, 651 S.W.2d 82, 86 (1983).
Here, the prosecutor merely inquired into the past episode, and nothing in the record suggests that the question was not asked in good faith. The probative value of the query was high, given the critical need for the jury to evaluate the credibility of Dillon versus that of Tammy Falcone. No prejudice resulted to Dillon because the question elicited nothing about other sexual offenses. The point of the inquiry on cross-examination was to explore Dillon’s propensity for truthfulness. Accordingly, the questioning was permissible.
Dillon also objected to the testimony of Lieutenant Mike Adams concerning what Dillon told him about what happened when he pulled Falcone over to run a “warrant check.” This was improper, the appellant urges, because he had not received his Miranda warnings. However, at the time Dillon spoke with Adams, he was not “in custody” or “under arrest.” Hence, the Miranda requirement was not operative. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). Moreover, the appellant never sought a Denno hearing prior to trial as provided for by Ark. Code Ann. § 16-89-107(b)(1) (1987).
The circuit court allowed Brenda Kaup, Dillon’s purported victim on October 12, 1990, to testify under A.R.E. 404(b) because her testimony 'was evidence that Dillon followed a particular plan, or modus operandi, with Tammy Falcone. Dillon’s plan, as revealed by Kaup’s testimony, was consistent with the circumstances depicted in Falcone’s testimony. According to the respective testimony, both women were unaccompanied when they were pulled over. Both women were accused of crossing the center line, and both were ordered to get into the patrol car. Both women had family out of town: Falcone’s husband was in Saudi Arabia, and Kaup’s family lived out of state. In Kaup’s case, she stated that Dillon threatened to take her in for DWI but said perhaps he could work something out. At that point he obliged her to expose herself to him under the pretext of searching for drugs. He then released her and followed her to her babysitter’s house.
We have held that modus operandi evidence is admissible in rape cases to prove a common plan. Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971). This situation fits squarely within that holding.
Finally, “serious physical injury” is not an element of the crime of rape, and the circuit court correctly refused the appellant’s proffered modified version of AMCI 1803.
Reversed and remanded.
Hays, Glaze, and Corbin, JJ., dissent. | [
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Steele Hays, Justice.
By this appeal we are asked to decide one issue: did the probate court abuse its discretion in the appointment of an administratrix.
Russell Merriman was killed in a motor vehicle collision on April 3,1991. His mother, Brenda Wisdom, appellant, promptly filed a petition in Independence County probate court asking that she be appointed administratrix of the estate. A day later, Jocie McBride, the deceased’s paternal grandmother, appellee, also filed a petition in the same court asking to be named administratrix. Her petition was supported by five other family members: a brother, a sister, the father and two half-sisters. A hearing was held and the trial court found that Jocie Ellen McBride should be appointed as administratrix. Ms. Wisdom appeals from that order.
The governing statute in this case, and the one relied on by the trial court, is Ark. Code Ann. § 28-48-101 (1987), which provides:
(a) Domiciliary letters testamentary or of general administration may be granted to one or more of the natural or corporate persons mentioned in this section who are not disqualified, in the following order of priority:
(1) To the executor or executors nominated in the will;
(2) To the surviving spouse, or his or her nominee, upon petition filed during a period of thirty days after the death of the decedent.
(3) To one or more of the persons entitled to a distributive share of the estate, or his or her nominee, as the court in its discretion may determine. . . . [Our emphasis.]
Wisdom was qualified in the first instance to serve because she was one of the persons entitled to a distributive share under the statute. McBride was also qualified to serve in the first instance because even though she was not entitled to a distributive share, she had been nominated by persons who were. The trial court pointed this out and found both applicants qualified, explaining that in such cases he simply took a vote of the distributees and granted letters on the basis of the most votes. In that light Ms. McBride easily won, 5-1.
Ms. Wisdom’s argument is made in two steps. First, she argues that all distributees’ votes should not be equal but should be counted in the order of priority listed in the tables of descent at Ark. Code Ann. § 28-9-214 (1987). Under that statute, she maintains that she and Ms. McBride had a tie vote.
Ms. Wisdom then argues that the facts supported a finding that she would have been the appropriate choice. She cites testimony as to the reasons various distributees gave for preferring Ms. McBride as administratrix. She notes that her background included some business experience, i.e., receptionist, cashier and interviewer for a marketing research company, and made her more qualified, that she was only forty-three, whereas McBride was sixty-four and had worked for twenty-two years on an assembly line.
As to the argument that the trial court should weigh votes in the order of descent as prescribed in another statute, Wisdom offers no authority and we find nothing in § 28-48-101 suggesting that method is intended. Section 28-48-101 is quite clear in its direction to the court on appointment: “. . .To one or more of the persons entitled to a distributive share. . . .” Nothing in that statute sustains Wisdom’s argument.
Even if we were to follow Ms. Wisdom’s reasoning in applying the descent statute, we would still affirm. If the trial court were to find a tie-vote at the first level of priority, it would be logical to proceed to the next level to break the tie, which would still favor Ms. McBride.
The decision on the appointment of an administrator is within the discretion of the trial court, Knight v. Worthen Bank and Trust, 233 Ark. 465, 345 S.W.2d 361 (1961), and no abuse of discretion has been shown.
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Steele Hays, Justice.
The Arkansas Department of Human Services (DHS) sought reimbursement from Shirley Palmer Spears for the purported overpayment of food stamps issued to Dorletha Berry. The trial court dismissed DHS’s claim with prejudice and determined that Ms. Spears was not liable for the debt because she did not eat at least fifty percent (50 %) of her meals in Ms. Berry’s house. On appeal, DHS contends that the trial court’s determination that Ms. Spears was required to have fifty percent of her meals in the Berry household to be considered a household member was clearly erroneous. We find no merit in appellant’s argument and affirm.
The Dorletha Berry household received food stamps during 1985 and 1986. It was later learned that Ms. Berry had incorrectly reported her household composition on her application. As a result, $1,498.00 in excess food stamp benefits were paid. Ms. Berry made no payments on this account before her death on March 25, 1988.
Shirley Palmer Spears, appellee, was an adult daughter of Ms. Berry who temporarily lived with her mother during some of the period of time when the overissuance occurred. On December 11, 1989, Ms. Spears informed DHS of Ms. Berry’s death. DHS later determined that Ms. Spears was also a member of the Berry household and, as such, was jointly and severally liable for the repayment of the debt as provided in7 C.F.R. § 273.18(a) (1992).
When DHS determined that Ms. Spears was only a household member from November 1985 through January 1986 and September and October 1986, the claim was reduced to $708.00. Ms. Spears refused to reimburse DHS.
DHS filed a complaint in the Municipal Court of North Little Rock. A trial was held and judgment was entered in favor of Ms. Spears. DHS then appealed to the Circuit Court of Pulaski County. Following a trial, the court determined that Ms. Spears was not liable for the debt because the evidence did not show that she had eaten fifty percent of her meals in her mother’s house. DHS’s claim was dismissed with prejudice. It is from this order that DHS brings this appeal.
The sole argument on appeal is that Ms. Spears qualifies as an adult household member and is responsible for her mother’s indebtedness. DHS contends it is entitled to judgment against Ms. Spears even if she did not eat fifty percent of her meals in the Berry household.
This case involves the interpretation of several provisions of the Food Stamp Act of 1964 as amended, 7 U.S.C.S. §§ 2011-2030 (1985 & Supp. 1992). Under the food stamp program, eligibility is determined and benefits are allocated per household rather than per individual. A household is defined in 7 C.F.R. § 273.1 (iii)( 1992) as “a group of individuals who live together and customarily purchase and prepare meals for home consumption.” 7 U.S.C.S. § 2012 (i)(3), provides that “parents and children, or siblings, who live together shall be treated as a group of individuals who customarily purchase and prepare meals together for home consumption even if they do not do so.”
The Food Stamp Certification Manual, promulgated by the Food and Nutrition Service and issued to each state agency, describes in greater detail the criteria for determining household composition. Food Stamp Certification Manual, § 1600, reads as follows:
A food stamp household is normally composed of an individual living alone or a group of individuals who live together and who customarily purchase food and prepare meals together. To “customarily purchase and prepare together” means that the household purchases food and prepares meals for home consumption as one unit more than 50% of the time. [Emphasis in original.]
Food Stamp Certification Manual, § 1630, states:
This includes individuals whose work schedules allow them to be in the home only for short periods of time but who consider the home their primary residence and who are responsible household members. A responsible household member is a member such as a spouse who helps the household meet part or all of its expenses. Traveling salesmen, truck drivers, railroad employees, and offshore oil workers meet this criteria if these workers do not return to the home each night or even on a regular weekly or biweekly basis. Even though such individuals may be out of the home a majority of the time, they are considered household members. The work schedule and not the profession will establish these individuals as household members.
Under the food stamp program, benefits which exceed the household entitlement must be repaid by the household members. 7 C.F.R. § 273.18(a) states, “All adult household members shall be jointly and severally liable for the value of any overissuance of benefits to the household.”
DHS cites Robinson v. Black, 869 F.2d 202 (1989) for the proposition that there is a presumption that Ms. Spears was a household member. However, Robinson is inapplicable because it involved criteria for eligibility for food stamp benefits, which is not at issue in this case. Also, the Court held that all the circumstances surrounding living situations can be considered.
When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous. City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992). Under the circumstances of this case, the trial court’s decision was not clearly erroneous.
Specifically, we do not believe the evidence established that Ms. Spears qualifies as an adult household member. She testified she moved in temporarily during a divorce and when she was recuperating from surgery for approximately a five month period. During this time, she had income of her own which she used to buy her own food and pay her own bills. She also testified that she ate less than fifty percent of her meals in her mother’s home because she was a railroad employee and was frequently gone overnight. In addition, Ms. Spears testified the Berry household was not her primary residence.
Because Ms. Spears was not a member of the household, she is not liable for the debt of Dorletha Berry. Ms. Spears testified she was not aware that her mother ever listed her as a household member. Also, there was no evidence that Ms.Spears participated in the fraudulent acts of her mother or benefitted in any way from the overissuance of food stamps. Therefore, the trial court was not incorrect in refusing to hold her responsible for the collection of the debt owed by Dorletha Berry, and we affirm its decision. | [
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Steele Hays, Justice.
This is an appeal from a jury verdict which awarded Helen Cater compensatory damages in the amount of $20,000.00 and punitive damages of $350,000 as a result of a beating allegedly inflicted by her husband, Lee Cater, while their divorce action was pending. For reversal, Lee Cater contends that the trial court erred in refusing to grant his motions for summary judgment and for a directed verdict on the premise that Mrs. Cater is attempting to recover both in circuit court and in chancery court for the injuries she sustained. Mr. Cater also claims a new trial should be ordered because the jury acted with extreme passion and prejudice in its award. We find no error and affirm.
After nearly thirty years of marriage, Helen Cater filed suit for divorce on grounds of general indignities. She sought an equitable division of assets, alimony and attorney’s fees. While the divorce action was pending, she maintains that Mr. Cater, in violation of earlier restraining orders, accosted her at her home and beat her severely. As a result of the beating, Lee Cater was convicted of battery in the first degree, fined $10,000.00, and sentenced to five years in prison. That conviction was affirmed by the Arkansas Court of Appeals.
In addition to the divorce and criminal actions, Mrs. Cater filed this civil action in circuit court seeking compensatory and punitive damages for the torts of assault, battery, and outrage. She also amended her divorce complaint and asserted “cruel and barbarous treatment” as additional grounds for divorce. The divorce hearing was held and a decree was entered. The court awarded her attorney’s fees and directed that all of the marital and entirety property be sold, with the proceeds divided equally, after first surcharging Mr. Cater’s portion with the value of assets he had concealed or transferred while the divorce action was pending. Mrs. Cater has appealed the divorce decree, but has been unable to prosecute that appeal because Mr. Cater filed a Chapter 13 Bankruptcy petition. Motions to dismiss that petition filed by the trustee and by Mrs. Cater are pending.
Mr. Cater filed a motion for summary judgment in the present circuit court action based upon res judicata, collateral estoppel, the election of remedies doctrine and double recovery. He contended she was attempting to* recover twice for the alleged beating by pursuing claims for alimony and an inequitable distribution of the marital property in chancery court while pursuing damages in circuit court. The motions for summary judgment and for a directed verdict were denied.
The argument now raised is based on the theory that Mrs. Cater attempted to obtain a double recovery by seeking compensation in both the divorce action and the instant case. Procedurally, the denial of the motion for summary judgment is not an appealable order even after there has been a trial on the merits. See Sutter v. King, 310 Ark. 681, 839 S.W.2d 218 (1992); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Rick’s Pro Dive N’ Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991).
Also, we have stated that a spouse having a cause of action in tort is not required to bring that action in the divorce case and can pursue the claim in circuit court. See Bruns v. Bruns, 290 Ark. 347, 719 S.W.2d 691 (1986); Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986).
Lee Cater also asserts that Helen Cater amended her divorce complaint after the beating and requested alimony and more than fifty percent of the parties’ property. However, this “Third Amended Complaint and Motion” was not abstracted or included in the record. Therefore, it is impossible for us to consider this contention.
A closer analysis of the facts reveals that Mrs. Cater did not attempt to recover twice for her injuries. Before either case was tried, she sought permission from the chancellor to prosecute her tort action for personal injuries in circuit court. Without objection from Mr. Cater, the chancellor entered an order stating that the chancery court would not take jurisdiction of the tort claims in order that she could pursue them in circuit court.
Also, Mrs. Cater made it clear before, during and after the trial of the divorce action that she was not attempting to litigate her tort claims in that suit and was not seeking any of the relief in the divorce case being sought in circuit court. For example, at the divorce hearing, she offered as evidence an updated list of medical expenses showing that she had incurred total medical expenses of $8,487.61. When opposing counsel objected, the chancellor inquired about Mrs. Cater continuing to pursue her separate tort claim. Her attorney stated on the record that the medical expenses were being offered only to show fault and that she was not asking for damages in the divorce action.
Even though Mrs. Cater did not try to recover medical expenses in the divorce case, the chancellor included a provision in the divorce decree requiring Mr. Cater to pay her medical bills not covered by medical insurance which were attributable to the beating. To prevent double recovery, the chancellor ruled the medical expenses would be disallowed if Mrs. Cater elected to pursue her claim for medical expenses in circuit court and she would not be barred by res judicata if she did so. Mrs. Cater went a step further by later filing a formal written pleading entitled “Request and Election to Pursue Claim for Medical Expenses in Circuit Court.”
Mr. Cater’s arguments regarding the doctrines of election of remedies, res judicata and collateral estoppel are without merit because they are not applicable to this case. The doctrine of election of remedies applies to remedies, not to causes of action. Henderson Methodist Church v. Sewer Improvement Dist., No. 142, 294 Ark. 188, 741 S.W.2d 272 (1987). Simply, it bars more than one recovery on inconsistent remedies. There is no requirement that a plaintiff choose only one cause of action. Westark Specialties, Inc. v. Stouffer Family Ltd. Partnership, 310 Ark. 225, 836 S.W.2d 354 (1992); White v. Zini, 39 Ark. App. 83, 838 S.W.2d 370 (1992). This doctrine is not relevant here because the remedies sought in the two actions were entirely consistent; they did not arise out of a single cause of action; and there is no precedent which requires Helen Cater to choose between the divorce action or money damages.
The doctrines of res judicata and collateral estoppel likewise have no application. Res judicata or claim preclusion bars another action by plaintiffs or their privies against defendants or their privies on the same claim or cause of action where there has been a valid and final judgment rendered on the merits by a court of competent jurisdiction. Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991); Daley v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991). The doctrine bars not only the relitigation of claims which were actually litigated in the first suit, but those which could have been litigated. Toran v. Provident Life & Accident Co., 297 Ark. 415, 764 S.W.2d 40 (1989). Collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991). Moreover, res judicata and collateral estoppel are only applicable when the party against whom the earlier decision is being asserted had a fair and full opportunity to litigate the issue in question. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985).
These doctrines are not available here because Helen Cater’s causes of action for divorce and for personal injuries are two separate cases. The claim for damages was not litigated in the divorce action. Also, the chancellor did not render a decision on the merits as to damages because he ruled that he would not take jurisdiction over the tort. Further, these doctrines do not bar a subsequent action where a court has made an express reservation of rights as to future litigation in an earlier action or where a party was actually prohibited from asserting a claim in the earlier action. See Miles v. Teague, 251 Ark. 1059, 476 S.W.2d 245 (1972). Therefore, the rulings of the trial court were correct because there was no attempt to litigate the tort claim in the divorce action nor to recover twice monetarily for the injuries sustained.
As his final point of appeal, Lee Cater argues that the award of $350,000.00 in punitive damages should shock the conscience of the court and reflects passion and prejudice by the jury in reaching its verdict. He claims that a verdict which is 17.5 times the amount of the compensatory damages awarded is excessive.
We have said numerous times that there is no fixed standard for the measurement of punitive damages and the amount lies largely within the discretion of the jury on due consideration of the attendant circumstances. Interstate Freeway Services, Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). Such damages constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor, but they must be sufficient to deter any others who might engage in similar conduct. Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992); Viking Insurance Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992).
Because we review each case on its own facts, we cannot say the punitive damages award of $350,000.00 is unwarranted under the circumstances. There was proof that Lee Cater threatened Helen Cater several times and finally went to her home and waited for her to return; that when she got out of her car, she was knocked down and severely beaten. As a result, she sustained serious injuries: shattered bones in her face, broken ribs, a hematoma to the back of her head, multiple contusions, abrasions and lacerations and injuries to her foot and leg. Mrs. Cater underwent reconstructive surgery and will probably have surgery in the future. There is a possibility that she will be permanently impaired. It is understandable that the jury might wish to punish such conduct and deter others from similar acts. In short, the award does not shock our conscience or demonstrate passion or prejudice on the part of the jury.
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David Newbern, Judge.
This appeal is from a judgment obtained by the appellee in a breach of warranty action. The appellant sold washer-dryer equipment to National Credit Corporation (National) which transferred it to the appellee under a lease-purchase agreement for use in the appellee’s washateria.
A sep'arate action was filed by National against the appellee for breach of their agreement. In that action, the appellee counter-claimed alleging breach of warranty, and National impleaded the appellant on the appellee’s breach of warranty claim. That action was settled after the third party claim against the appellee had been dismissed without prejudice.
In the action on appeal here, the appellant filed in the trial court a motion to dismiss based on theories of res judicata and lack of privity of contract. The trial court denied the motion, and this appeal has mostly to do with whether the motion should have been granted. The appellant has raised eight points for reversal. We will discuss most of them and state further facts as necessary.
1. Res Judicata.
The appellant has stated no authority whatever on this point, and has simply said the order of the trial court in dismissing the action of National against the appellee upon settlement “resolved all differences among the parties, including any question of breach of warranty.”
All we know about the dismissal of the appellant from that lawsuit was that it was done “without prejudice.” The appellant does not explain how the theory of res judicata might apply to make that dismissal a bar to the appellee in the case before us. While we can think of some such theories, all of them questionable, we cannot argue the appellant’s case. If no authority is cited and the point raised on appeal is not obviously correct, we are not required to consider it. Cherokee Carpet Mills, Inc. v. Worthen Bank and Trust Co., 262 Ark. 776, 561 S.W. 2d 310 (1978); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614 (1977); Shinn v. First National Bank of Hope, Arkansas, 270 Ark. 774, 606 S.W. 2d 154 (Ark. App. 1980).
2. Necessary party.
The appellant contends that National was a necessary party to the appellee’s suit against the appellant. The appellant cites Ark. Stat. Ann. § 85-2-318.1 (Add 1961), for the purpose of agreeing that privity of contract between the appellant and the appellee was not necessary to a suit for breach of warranty. Again, no authority is cited or argument made as to why National was a necessary party here. Our citations with respect to point one, supra, apply here also.
3. Evidence excluded.
The appellant contends the court improperly excluded testimony of the Cleburne County circuit clerk which would have shown that in the action by National against the appellee the appellee’s answer was not amended to allege breach of warranty until two months after it was first filed. Other than the appellant’s brief on the motion to dismiss, nothing has been abstracted by the appellant to show that any such evidence was proffered or reasons it may have been denied.
In an effort to be thorough and fair to the appellant, we have gone to the record and discovered the reason the evidence was excluded was because the appellant had not sought to have the pleadings as to which the clerk would have testified marked as exhibits at the pre-trial conference.
The same was true with respect to a deposition of a witness the appellant sought to introduce.
Although both of these items might have been admissi ble, the appellant has utterly failed to address the reason they were excluded, i.e., the court’s determination they should have been dealt with at the pre-trial conference. The appellant has stated no reason to say the court erred, and again, given no authority on the point and no argument of it. We decline to disagree with the trial judge.
4. Excessive damages.
In addition to citing no authority on this point, the appellant has abstracted none of the testimony in the case from which we might determine whether the jury, as he claimed, was inflamed by passion or otherwise prejudiced in award of damages. The abstract is thus insufficient to permit us to consider that point. Rule 9(d) of the Rules of the Arkansás Supreme Court and Court of Appeals.
5.Juror misconduct.
The remainder of the appellant’s points for reversal are argued without citation of authority, and we decline to consider them, with one exception. The appellant urges that the motion for a new trial should have been granted because a juror, whose deposition was obtained by the appellant, said she considered in reaching her verdict the fact that no representative of the appellant was “present” at the trial.
In response to this argument which, again, was made with no citation of authority, we need only cite evidence rule 606(b), Ark. Stat. Ann. § 28-1001 (Repl. 1979), which precludes a juror from giving testimony in any inquiry as to the validity of a verdict as to the effect of any such matter upon her mind or emotions in reaching the verdict.
Affirmed. | [
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Steele Hays, Justice.
Lee Edward Ellis and Lereatha Ellis brought this action alleging that a home purchased by the Ellises from Dennis and Marlene Liter and Boatmen’s National Bank of St. Louis in 1979 was misrepresented. The trial court directed a verdict in favor of the Liters and Boatmen’s and the Ellises have appealed. We affirm as to Boatmen’s and reverse as to the Liters.
When Dennis was reassigned to another area by his employer, Southwestern Bell, Southwestern Bell offered to help with the sale of the Liters’ home. The Liters agreed and Southwestern Bell secured the services of Boatmen’s National Bank of St. Louis. Boatmen’s worked with clients like Southwestern Bell and its employees who were relocating. Boatmen’s clients would “turn over” the properties to the bank (the details of these arrangements are not explained) and the bank would seek buyers for the properties.
It appears that Boatmen’s hired the Norton and Dunklin Real Estate Agency to secure a buyer for the Liter home. Norton and Dunklin were handling the Liters’ house and sold it to the Ellises through one of their agents, Evelyn Edington. The offer and acceptance is signed by the Ellises as buyers, and Ms. Edington as the seller. The warranty deed reflects a sale by the Liters to the Ellises.
After the Ellises moved in they encountered problems with the house, but were unable to determine the cause. In 1987 Mr. Ellis went to the office of the city clerk and discovered a statement by a building inspector at the time the house was built referring to a crack in the foundation. Ellis also found a waiver signed by the Liters stating they were aware of the crack but would not hold anyone responsible for problems which might result. The Ellises also learned the crack could ultimately cause serious problems and would be expensive to remedy. At that point the Ellises filed suit against the Liters and Boatmen’s, charging them with misrepresentation in the sale of the home.
The case was tried on April 19, 1991. When the plaintiffs rested, both Boatmen’s and the Liters moved for a directed verdict. The trial court granted the motion on the premise that the Ellises had not made a prima facie case against Boatmen’s because they failed to show Boatmen’s had any knowledge there was a crack in the foundation, and against the Liters because the defect was insignificant at the time the house was sold.
The Liters
The trial court found that if in fact there had been a misrepresentation by the Liters, a directed verdict was appropriate because the misrepresentation was not a material one. The trial court expressed doubt that anyone knew it was a serious problem when the Ellises bought the house in 1979:
Now that’s sort of going in the back door , but I’ve been wondering all along how would they know in 1980 — ’89 or ‘87 whenever they —’70 —’78 when they sold the house, how could the Liters know that there was a significant problem that they needed to reveal to anybody.
***
... I frankly doubt if the normal housewife or the normal house owner that knows nothing about concrete would be terribly disturbed about a hairline crack in the foundation.
***
. . . Now ten years later somebody finds some little something insignificant they thought, I suppose. But you don’t have a fact question to go to the jury.
We believe it was error to direct a verdict. The materiality of a misrepresentation is not a matter for the trial court but for the fact-finder. In Southern Equipment & Tractor Co. v. K & K Mines, 272 Ark. 278, 613 S.W.2d 596 (1981), we wrote:
To prove materiality of a misrepresentation, it is only necessary to show the misrepresented fact was a material influence on the decision; it must have been a substantial factor, but it is not necessary that it was the paramount or decisive inducement. This is a question of fact for the fact-finder. [Our emphasis.] Prosser, Law of Torts, 4th Ed. § 108; also see 37 Am. Jur. 2d Fraud and Deceit § § 177 and 178.
Prosser elaborates in his fifth edition at § 108:
The party deceived must not only be justified in his belief that the representation is true, but he must also be justified in taking action on that basis. This usually is expressed by saying that the fact represented must be a material one. There are misstatements which are so trivial, or so far unrelated to anything of real importance in the transaction, that the plaintiff will not be heard to say that they substantially affected his decision. Necessarily the test must be an objective one and it cannot be stated in the form of any definite rule, but must depend upon the circumstances of the transaction itself. . . . Thus, in particular cases, matters entirely collateral to a contract, and apparently of no significance to any reasonable man under the circumstances, have been held to be immaterial; the defendant’s social, political and religious associations; his motive or purpose in entering into the bargain; the details of a seller’s title, where good title is still conveyed; a false financial statement which still gives an accurate picture; the identity of the party for whom a purchase is made; and many other items of similar nature.
On the other hand facts to which a reasonable man might be expected to attach importance in making his choice of action, such as the identity of an individual or the directors of a corporation with whom he is dealing, the character of stock sold as treasury stock, the age, horse power and capacity of an automobile, the train service to a suburb . . . have been held to be material. The question is frequently for the jury whether the statement made might justifiably induce the action taken.
W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 108, at 753-754 (5th ed. 1984).
As Prosser suggests, there may be matters so clearly trivial and unimportant that they could be said to be immaterial as a matter of law, but that is not the situation before us. We cannot say as a matter of law that a defect in the foundational structure of a home can be relegated to the trivial status comparable to that discussed in Prosser, supra. Nor can we say as a matter of law that the Ellises were not justified in treating the defect as posing a material influence on their decision. Furthermore, Mr. Mann, the original inspector of the house, testified the crack posed a very serious problem that would be expensive to rectify. Even the Liters testified they would want to be told about such a defect. Mr. Liter testified:
Q: Now, Mr. Liter, did you ever at any time during the course of this transaction communicate or tell Mr. and Mrs. Ellis sitting over there about this crack — this problem with the house you were selling? Did you ever tell them?
A: No sir. Eve never met them or even seen them before today.
Q: Did you make any effort to try to tell them?
A: No sir.
Q: Don’t you think that’s something that they needed to know before they bought the house?
A: Well, I certainly think so, yes, sir.
Q: You didn’t — in fact, you would want to know about that crack if you had been buying the house, wouldn’t you?
A: Yes, sir.
And Mrs. Liter testified:
Q: Okay. I also asked at that deposition, [Mrs. Liter] if you were purchasing a house and there was a crack in the slab running the length of one of the rooms in the house, I asked you — wouldn’t you want to know about it?
A: Yes, I would want to know about it.
Whether a crack in the foundation was a material fact in this case was a question for the jury. As to the trial court’s comment that even if the Liters had known about the crack there may not have been any culpable intent on their part because they thought it was not a significant problem, this too is clearly a question for the jury— a credibility matter as to the defendant’s intent.
Additionally, there was actually an admission of awareness of the seriousness of the crack on the part of Mrs. Liter. She testified about appraisers who had come to the house prior to their selling to the Ellises, and stated that one of the appraisers who was aware of the crack, apparently through the inspector’s note and the Liters’ waiver of the previous year, commented to her about the crack and told her that he had been a building inspector and he would never have approved the house in that condition.
The trial court referred to the Liters having signed a waiver of liability by the builders for the defect as an indication the problem was minor. However, why the Liters ultimately signed the waiver is not revealed and the waiver alone is not sufficient to remove this issue from the jury. To the contrary, it goes to the question of credibility as to the Liters’ intent. “In cases of deceit, the credibility of the witnesses is all important in determining liability, and it is the trier of fact that is the sole judge of the credibility of the witnesses and of the weight and value of the evidence.” Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 245 (1991).
Boatmen’s
The trial court granted a directed verdict for Boatmen’s on grounds that the appellants had failed to prove any knowledge on Boatmen’s part of the crack in the foundation. The trial court was correct.
When the record is read in its entirety, it is clear the appellants failed to establish that any information about the crack ever reached Boatmen’s. The evidence was simply inconclusive that Boatmen’s had any awareness of the original building inspector’s report, or the appraiser’s report. There is evidence that appraisers visited the property when the Liters planned to sell, in 1979, and that one of them mentioned the crack to Mrs. Liter at that time. However, there is no evidence that it was Boatmen’s which hired the appraisers and therefore had even constructive knowledge of the crack. While the record indicates that in all likelihood the appraisers were hired either by Southwestern Bell or Boatmen’s there is nothing conclusive in the record as to hiring and a finding by a jury would be based solely on speculation.
For the same reasons, a negligence theory, which appellants also advance, must fail because the information of the crack was never shown to come within Boatmen’s purview, even constructively.
Appellants argue alternatively that Boatmen’s is liable under either strict liability or breach of warranty. However, these theories were not raised in the complaint nor were they argued to the trial court. Johnson v. Ramsey, 307 Ark. 4, 817 S.W.2d 200 (1991).
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George Rose Smith, Justice.
In August, 1978, the Public Service Commission authorized the appellee, Arkansas Power & Light Company, to construct a generating plant in Independence county and about 170 miles of connecting high-voltage transmission lines to points in Pulaski and Lonoke counties. Pursuant to that authorization A.P. & L. brought this condemnation suit 18 months later to acquire a 180-foot right of way across a cattle ranch owned by the appellant, Omni Farms, Inc., in Lonoke county. In its answer Omni asked that the action be dismissed because, first, A.P. & L. had allegedly made no effort to negotiate a settlement with Omni before filing suit, and second, “the laws relied upon by Plaintiff are unconstitutional on due process grounds.”
After a preliminary hearing the trial court rejected both defenses, approved the condemnation, and ordered a $15,000 deposit as the estimated value of the 17.14 acres being taken. The court, however, to avoid a possibility of irreparable injury to Omni, stayed the judgment pending this appeal. The case has not yet been tried on the main issue of the amount of compensation to be awarded. Our jurisdiction rests on Rule 29 (1) (c).
At the outset, A.P. & L. asks that the appeal be dismissed for want of an appealable order. The record indicates that the proposed transmission lines will be strung on tall metal towers, embedded in concrete. At the oral argument counsel for A.P. & L. conceded that if the construction is allowed to proceed, it will be impossible in the event of a reversal for Omni’s land to be restored to its previous condition. We conclude that this is one of the comparatively rare instances, foreseen by some of our earlier opinions, in which an order must be regarded as appealable because otherwise the order would divest a substantial right in such a way as to put it beyond the power of the court to place the party in its former condition. See Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967); Batesville v. Ball, 100 Ark. 496, 140 S.W. 712, Ann. Cas. 1913C, 1317 (1911).
On the merits, Omni first argues that the controlling statute mandatorily requires the condemnor to negotiate with regard to the purchase price before bringing suit to condemn and that a failure to negotiate is a jurisdictional defect so fundamental as to require dismissal of the action.
We do not agree. Unquestionably the legislature is free to require preliminary negotiation as a condition precedent to the exercise of the power of eminent domain. Courts elsewhere have frequently construed as mandatory various statutes contemplating such preliminary negotiations and have sometimes indicated that a condemnation order entered without prior negotiation is absolutely void for want of jurisdiction. The cases have been extensively collected in Nichols’ Eminent Domain, § 24.62 (rev. 3rd ed., 1976), and need not be reviewed here.
The language of the particular statute, however, must be considered. Our General Assembly has said, for example, that in certain condemnation actions brought by state colleges the board of trustees must first “exercise every reasonable effort to obtain the property in question at a reasonable price by negotiation, and the Trial Court shall so find.” Ark. Stat. Ann. § 80-3318 (Repl. 1980). If language such as that were now before us, Omni’s argument would have greater force.
The statute controlling this case is vastly different from that just quoted. It provides that whenever a utility company has obtained from the Public Service Commission the required certificate of environmental compatibility and public need, and the utility “is unable to reach agreement with the owner of land ... to construct, operate, maintain and obtain reasonable access to the major utility facility, it may acquire the same by the exercise of the power of eminent domain.” Ark. Stat. Ann. § 73-276.15 (Repl. 1979). It was evidently the intention of the legislature to require preliminary negotiation, which has often proved to be immensely beneficial to both parties when a condemnation suit is being considered. We accordingly hold, in harmony with the great weight of authority, that the statute now in question imposes a mandatory duty on the utility company to negotiate.
It does not follow, however, that the duty is necessarily of such indispensable importance as to be jurisdictional. By analogy, many steps required by the election laws are mandatory, but noncompliance does not destroy the validity of the election unless the statute expressly so declares or unless the particular provision affects an essential element of the election, as by obstructing the free and intelligent casting of the vote. Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280 (1953).
The statute now in question does not expressly declare preliminary negotiations to be jurisdictional, nor in our opinion does it do so by implication. The opportunity to negotiate does not end with the filing of the suit, especially as several months may pass before the case is set for trial. Moreover, if negotiation were a jurisdictional requirement, it would follow that a condemnation judgment entered after a long and hotly contested trial would be void if it were later shown that the condemnor failed to negotiate. The wording of the statute would have to be decidedly more imperative than it is before we could regard negotiation as jurisdictional.
The trial court’s finding that A.P. & L.’s negotiation procedure met the requirements of the law is not clearly erroneous. A.P. & L.’s appraiser testified that the value of the 17.14 acres being taken for a right of way was $875 an acre, making a total of about $15,000. Another witness for A.P. & L. testified that he had authorized settlement offers through the company’s attorneys; the trial court took notice that the negotiations had not been successful. William Fay Wright, Omni’s president, testified on cross examination that on the morning of the hearing Omni’s attorney had informed Wright of an offer of $15,000. “When I heard $15,000, it was so ridiculous he [the attorney] wouldn’t bring anything like that to me. It would only tend to upset me.” He said the offer would not be accepted under any circumstances. Negotiations need nto be carried farther than to demonstrate the impossibility of agreement, which may be shown by the landowner’s willingness to sell only at a price which the condemnor deems excessive. Kerr v. Raney, 305 F. Supp. 1152 (W.D. Ark. 1969); see also Nichols, supra. That appears to have been the situation in the case at bar; so no error is shown.
Omni’s alternative ground for dismissal is its assertion that the governing statute denies due process of law. The statute is Act 164 of 1973, amended by Act 866 of 1977. Ark. Stat. Ann. §§ 73-276.1 through -276.18. Omni’s argument is really directed not so much to the terms of the statute as to Omni’s failure to receive sufficient notice of the Public Service Commission proceeding by which A.P. & L. was authorized to cross Omni’s land. Consequently we need to discuss the statute and the proof only as they relate to the matter of notice. Upon this branch of the csae it must be kept in mind that Omni is attacking the procedure as a denial of due process and therefore has the burden of proving its invalidity. Rebsamen Motor Company v. Phillips, 226 Ark. 146, 289 S.W. 2d 170, 57 A.L.R. 2d 1256 (1956); State ex rel. Kimberlite Diamond Mining & Washing Co. v. Hodges, 114 Ark. 155, 169 S.W. 942, L.R.A. 1916F, 122 (1914).
The statute requires the Commission to make various findings as to the probable environmental impact of the proposed facility. § 73-176.8. With respect to such matters of general public interest the statute provides for actual notice to specified governmental agencies and for notice by publication to persons residing in affected municipalities and counties. § 73-276.4. Omni does not appear to be concerned about these environmental matters, but even if it were concerned it has not met its burden of proving any want of notice in this aspect of the case.
What Omni does seem to be concerned about, as nearly as we can tell from its meager proof, is the particular location of the right of way that will cross its land. On this point Wright mentioned an airport that Omni has built on its land, but he did not say just how the proposed line might interfere with the airport (except possibly by a reference to a plastic overlay which has not been brought to our attention). In fact, the construction of the airport, which took only about two months, was not even begun until some three months after A.P. & L. had notified Omni in September, 1979, that in the very near future surveyors would be on the land to make a final location of the transmission line route on the ground.
As we understand Omni’s argument, it is contended that Omni did not receive adequate notice about just where the transmission line was going to cross its property. Omni concedes that it is not entitled to procedural due process concerning the necessity for the taking unless the legislature has provided a forum in which the landowner may contest that necessity. Bragg v. Weaver, 251 U.S. 57 (1919). Omni argues that the legislature did designate the Public Service Commission as such a forum, but Omni did not receive adequate notice of the proceedings to be conducted by the Commission. Specifically, Omni insists that although it received letters from A.P. &' L. informing it of the pendency of the proceedings, those letters stated that Omni would be notified of the time and place of a hearing to be scheduled by the Commission in connection with A.P. & L.’s application as soon as the Commission advised A.P. & L. of the schedule. That follow-up information was not received by Omni.
We do not find this argument persuasive. The Commission’s primary concern was with environmental matters, which were presumably to be considered at the hearing to which the letters referred. Omni has made no effort to show that the hearing mentioned in the letters would have touched upon any issue with which Omni was concerned.
Of course, the Commission had to fix the approximate location of the transmission lines to assess their environmental impact. That was eventually done, and the letters sent by A.P. & L. to Omni enclosed aerial photographs of Omni’s land, showing the proposed location of the lines. Even when the Commission finally fixed the location of the lines in its order granting the application, the order expressly allowed some variation, up to 300 feet and possibly more, in the exact location of the right of way to accommodate the landowner.
We emphasize the fact that the two letters, one received by Omni in February, 1978, and the other in January, 1979, contained much substantial information in addition to the aerial photographs. Omni was informed of the nature of the proceeding before the Public Service Commission. Omni was told that informtaion about its right to intervene in the proceeding could be obtained from the Secretary of the Commission, whose name, address, and telephone number were given. The writer of the letters offered to discuss any questions about the proposed facility with Omni, giving his name and address, with a long distance telephone number that Omni could use free of charge.
Neighbors of Omni did call A.P. & L. in response to similar letters. The Commission’s final order details modifications in line locations made in response to interventions by other landowners. The letters were certainly sufficient to put a reasonably prudent person on inquiry, which means that Omni is charged with notice of all facts such an inquiry would have revealed. Kellogg-Fontaine Lbr. Co. v. Cronic, 219 Ark. 170, 240 S.W. 2d 872 (1951). Unquestionably Wright must be taken to have known that the Commission would not hold a hearing upon Omni’s particular problems with respect to its particular land unless Omni took the initiative in bringing those problems to the Commission’s attention. But no move in that direction was made. Omni did file a petition for rehearing with the Commission, but it is not shown what it contained nor whether Omni might have had a remedy by appealing from the denial of the petition.
Omni’s due process argument boils down to this. It complains that A.P. & L. failed to give it the promised notice of a Commission hearing, the nature of which Omni has not shown. Omni did receive actual notice, once in February, 1978, and again in January, 1979, that the line was to cross its ranch. Details and sources of information were supplied, but Omni and Wright apparently paid little if any attention to the matter until receiving notice that A.P. & L.’s surveyors would be on the ground soon after September, 1979, more than 18 months after the February letter. We still do not know exactly what Omni’s objections to the proposed line may be, because the record is practically silent on that pivotal point. We cannot say that Omni has proved a denial of due process of law by any lack of notice of the impending condemnation.
Affirmed.
Fogleman, C. J., and Hickman, J., concur. | [
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Robert H. Dudley, Justice.
Appellant Danny Lee Ashby was charged with the crimes of aggravated robbery, rape and kidnapping which occurred at the Pizza Hut restaurant in Conway on May 2, 1979.
At the trial, the jury deliberated for one and one-half hours and returned to the courtroom to render its verdict. The Court read the verdict forms finding appellant guilty of all three charges and fixing the sentence for each crime. The defense attorney requested that the jury be polled and all jurors stated there was unanimity on guilt, but one juror stated that she did not agree to the amount of time to be served, and had not voted on the sentence. The Court then instructed the jury to return to the jury room and fix a sentence on the verdicts, which they did. Upon the jury’s return to the courtroom, the verdict forms were handed to the Court and read aloud. Each juror was again polled and responded individually that he or she found the defendant guilty of each of the crimes and fixed each of the sentences as set out on the verdict forms.
Appellant asks that the convictions be reversed and remanded, or in the alternative, that the sentences be reduced to the minimum, because of the coercive atmosphere created around the juror who did not originally vote on the sentences.
The verdict of a jury is to be arrived at freely, fairly and without coercion. The validity of a unanimous verdict is not dependent on what was agreed on in the jury room, but rather what is unanimously reported in open court. The reason is that any juror, when polled, may dissent from a verdict agreed to in the jury room, and when this happens the jury should either be discharged or be returned to the jury room for further deliberation.
After the one juror stated that she had not voted on the sentence there was no reason to declare a mistrial, but there was a reason to seek clarity. As stated in Williams v. United States, 419 F. 2d 740 (D.C. Cir., 1969), there is a clear distinction between the actions of a trial judge to obtain clarity in place of confusion and actions that produce, a likelihood that a juror has been coerced. Here the court sought to eliminate a misunderstanding and sent the jury back to the jury room to fix the sentence, as authorized by Ark. R. Crim. P. 33.4 (b) (i) (1976). There was no coercion and no error in accepting the verdict under the circumstances.
Affirmed. | [
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David Newbern, Justice.
The State attempts to bring an interlocutory appeal from an evidentiary ruling. During the trial of the appellee, Michael Mills, for rape and carnal abuse Mills sought to introduce evidence that the alleged victim had falsely accused two other men of sex offenses against her. The State objected on the basis of the rape-shield law, Ark. Code Ann. § lb-42-101 (1987), which precludes admitting evidence of “prior sexual conduct” on the part of an alleged rape victim. The Trial Court overruled the objection. The issue is whether this Court has jurisdiction to hear the appeal. We lack jurisdiction, and thus the appeal must be dismissed.
At an omnibus hearing Mills offered evidence of the alleged victim’s allegations against others. The alleged victim admitted making the earlier allegations and said they were true. Both of the other men accused earlier testified at the hearing and denied the incidents. The alleged victim stated she informed the police of these earlier allegations when she accused Mills, but no criminal charges were filed against the other two men.
After the hearing the Trial Court ruled that the evidence presented was not of “prior sexual conduct” as the term is used in the rape-shield law and thus it was admissible.
Jurisdiction
Subsection (a) of § 16-42-101 defines “sexual conduct” as “deviate sexual activity, sexual contact, or sexual intercourse, as those terms are defined by § 5-14-101.” Subsection (b) provides that in sex offense eases, “opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct ... is not admissible by the defendant ... to attack the credibility of the victim, to prove consent or any other defense or for any other purpose.” Subsection (c) permits a trial court to hold a hearing to determine, notwithstanding the provision of subsection (b), whether evidence of the victim’s prior sexual conduct is so relevant that it should be admitted. Subsection (c)(3)(B) provides that if the prosecutor “is satisfied that, the order [presumably the order of the trial court admitting the evidence] substantially prejudices the prosecution of the case, an interlocutory appeal on behalf of the State may be taken in accordance with Arkansas Rules of Criminal Procedure 36.10(a) and (c).”
The Statute provides for an appeal by the State only where a trial court rules that the evidence proffered is of “prior sexual conduct” of the victim and then decides that the evidence should be admitted regardless of the rape-shield prohibition as it is both relevant to a fact issue and is more probative than prejudicial. If the ruling of the trial court is that the evidence is not of “prior sexual conduct,” as in this case, the Statute does not apply. That was our holding in West v. State, 290 Ark. 329, 719 S.W.2d 684 (1987). The State asks that we overrule that decision, but we have been given no convincing reason to do so. It was a correct interpretation of the Statute, giving literal and obvious meaning to the words used by the General Assembly.
Trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent abuse of that discretion. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); State v. Massery, 302 Ark. 447, 790 S.W.2d 175 (1990). There is no basis for pretrial review of that exercise of discretion, and this is not a ruling which is subject to interlocutory appeal pursuant to Ark. R. Crim. P. 36.10(a) and (c).
When the question is whether evidence should be allowed, of prior false allegations of sex offenses by an alleged victim, a trial court finds itself in the position of having to decide a purely factual issue. If the previous allegations by the alleged victim are true, then the evidence is, in a sense, evidence of “prior sexual conduct,” although it is possibly not the harmful sort of evidence at which the rape-shield law is directed. If the previous allegations are false, the evidence of them is not of “prior sexual conduct” but is evidence of prior misconduct of the alleged victim which has a direct bearing upon the alleged victim’s credibility, particularly in the circumstances before the court. The Trial Court in this case voiced, several times, objection to having to conduct a “mini-trial,” but it is obvious that it must be done in these circumstances.
The State rejects Mills’s argument that there is no provision for an appeal where a court rules that the proffered evidence is not of “prior sexual conduct” by arguing that all rulings of a trial court made pursuant to the Statute should be subject to appellate review. It is argued that if a trial court erroneously finds that the evidence does not involve “prior sexual conduct” the ruling can not be corrected by appeal in the event of an acquittal. That is of course so, but it is true of the myriad other discretionary rulings a trial court must make.
While, as a matter of policy it may be that all rulings of a trial court interpreting the rape-shield law should be subject to interlocutory review, it is clearly a policy not yet expressed or implemented in the Statute. If the ruling a trial court must make in this sort of case is special, like that prescribed in Subsection (c) and to be given special treatment, the General Assembly has not said so.
In the absence of a statutory or constitutional provision or a provision in a rule of this Court, appellate jurisdiction is lacking. Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989) (jurisdiction lacking because no provision found in criminal procedure rule); City of Little Rock v. Tibbett, 301 Ark. 376, 784 S.W.2d 163 (1990) (jurisdiction lacking because no provision in constitution or rule of criminal procedure). In Ellis v. State, 302 Ark. 597, 791 S.W.2d 370 (1990), a criminal defendant sought dismissal of charges on the basis that the evidence the State proposed to introduce against him was inadmissible. The State argued, and we agreed, there was no statutory basis for jurisdiction to hear an appeal. We said:
The state correctly points out that appeals are granted as a matter of statute. There is no right of appeal granted by the United States Constitution. Abney v. United States, 431 U.S. 651 (1977). Appealability is controlled by Ark. R. App. P. 2(a) which requires a final judgment or decree or one which, in effect, determines the action and prevents a judgment from which an appeal might be taken or discontinues the action.
Burrow v. State, 301 Ark. 222, 783 S.W.2d 52 (1990), was a rape case in which the defendant wished to appeal from the Trial Court’s decision, made pursuant to Subsection (c) of § 16-42-101, that he could not introduce evidence of prior sexual conduct of the victim. He argued he was being deprived of equal protection of the law because of the provision that the State could appeal but lack of a provision for appeal by the defendant. We held that the law was not unconstitutional, pointing out as a basis of the discrimination that the State could not appeal from an acquittal but that the defendant could appeal from a conviction on the basis of error in refusing to admit the evidence. There again, the appeal was dismissed because of lack of a provision for it in the Statute.
Our rape-shield law is a product of the General Assembly, and until it sees fit to provide for interlocutory appeal by the State of a trial court’s decision with respect to admitting evidence of prior false allegations made by an alleged victim, or until some other jurisdictional basis by rule or constitutional provision appears, we lack jurisdiction to hear such an appeal.
Appeal dismissed.
Brown, J., concurs.
Hays, Glaze, and Corbin, JJ., dissent. | [
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David Newbern, Justice.
The question before us is whether the Trial Court erred in declaring void an election establishing Beaverfork Fire Protection District #1. Statutes pertaining generally to creation of improvement districts require a certain form of notice to be placed on support petitions circulated for signatures of affected property owners. The appellants, Bill Hannah and others (Hannah Group) circulated petitions seeking an election to create the District without placing that notice on the petitions. Opponents of the district, Marvin Deboer and others (Deboer Group), challenged the election on that basis. The election had been called by the County Judge for December 3, 1991. The Deboer Group obtained a temporary injunction in Chancery Court on November 26, but at a hearing on November 27 the injunction was dissolved and the case transferred to the Circuit Court where the complaint was amended to claim illegal exaction and seek a writ of mandamus. The election was held, and the voters approved the District. The Circuit Court thereafter held that the election was void, and the Hannah Group has appealed.
Recognizing that there are several groups of statutory provisions dealing with improvement districts, the Circuit Court concluded that, if the general improvement district petition notice requirement applied, the Hannah Group had not met the requirement. The circuit Court concluded further that if the general notice requirement did not apply, the specific statutes on the procedure for holding an election to determine whether a fire protection district is to be created were unconstitutional, due to lack of provision for pre-election notice and hearing at which affected property owners could voice objections. Either way, according to the Circuit Court, the election was void.
We find no need to deal with the constitutional pronouncement. We hold that even if the general statute requiring a particular form of notice applies to a petition to hold an election, as opposed to one seeking to establish a district by ordinance, the requirement became directory rather than mandatory after the election. Substantial notice was given to those who signed the petition, and we find no real prejudice, especially in view of the result of the election. We thus reverse the decision and dismiss the case.
The Circuit Court’s order voiding the election and the argument of the Deboer Group before us seem to suggest that not only was there a deficiency in the notice given the petitioners but they, or perhaps affected prospective voters, were entitled to some sort of public hearing prior to the election.
1. The statutes
Title 14, Chapter 284 of Arkansas Code Annotated is entitled “Fire Protection Districts.” Subchapter 1, §§ 14-284-101 through 14-284-123 (1987 and Supp. 1992), is primarily a codification of Act 183 of 1939, as amended, which provides for creation of a fire protection district by petition of a majority in value of property owners in the proposed district. We are not concerned with Subchapter 1 in this case.
Subchapter 2, §§ 14-284-201 through 14-284-224 (1987 and Supp. 1992), the one with which we are concerned, is entitled “Fire Protection Districts Outside of Cities and Towns.” It consists primarily of codification of Act 35 of 1979, as amended. Section 14-284-203 (1987) provides two separate methods of establishment of such districts:
Fire protection districts may be established to serve all or any defined portion of any county in either of the following ways:
(1) By the quorum court by ordinance enacted after notice and public hearing; or
(2) By the county court pursuant to an election of the qualified electors of the proposed district initiated, called, and conducted as provided in this subchapter.
If the district is to be established by the first of these Subchapter 2 methods, the procedure for petitioning the quorum court for an ordinance doing so is governed by § 14-284-204 (1987) which provides for publication of notice “of the adoption of the ordinance” and for “a public hearing on the ordinance.”
If the district is to be established by the second Subchapter 2 method, the procedure for petitioning the county court to hold an election is governed by § 14-284-205 (1987). Subsection (a) provides that if a certain percentage of voters in a county or defined portion of a county petition for an election the county court will call the election. Subsection (b) prescribes the wording of the ballot, requiring that it state essentially, “FOR” OR “AGAINST the establishment of a fire protection district in ..........(county),..........(designated area), and the levy of assessed benefits on real property in the district to finance the district.”
We find no statutory requirement for a public hearing prior to an election, and we have difficulty understanding the argument that one is necessary.
The Circuit Court looked to yet another Statute appearing in Chapter 86 of the Code which deals with improvement districts generally. He concluded the Hannah Group’s petition should have had in it the notice provision specified in Ark. Code Ann. § 14-86-201(a) (1987) as follows:
NOTICE
YOUR SIGNATURE HEREON SHOWS THAT YOU FAVOR THE ESTABLISHMENT OF AN IMPROVEMENT DISTRICT. IF THE DISTRICT IS FORMED, YOU MAY BE CHARGED FOR THE COST OF THE IMPROVEMENTS.
Subsection (b) makes it a misdemeanor to circulate or cause to be circulated a petition for establishment of an improvement district of “whatever nature” absent such a provision.
2. Lack of notice
The petition circulated by the Hannah Group leading to the election in which the voters approved the district did not contain the notice in the statutory form. It did, however, contain a paragraph setting out the maximum assessments which could be levied on various categories of lands in the event the voters approved establishment of the District. Assuming the Circuit Court is correct in ruling that the statutory wording was required on the petition for calling an election, the question we must decide is whether that failing was a sufficient basis to void the election. We think not.
It should be noted here that the Deboer Group expresses no fault with the ballot or the post-petition election procedures which resulted in the establishment of the District. Their complaint is about the petition which led to the election. Beneath that argument must lie the assumption that if the signers of the petition had notice they could be charged with costs of the district they would not have signed and there would have been no election; yet an election has been held in which a majority of the eligible voters have approved the District.
“The courts hold that ‘the voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and have spoken’ ” Whitaker v. Mitchell, 179 Ark. 993, 18 S.W.2d 1026 (1929), quoting from Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887). That principle is particularly applicable in this case. Anyone reading the petition before signing it would have had more information than that required by the statutory notice. The ballot was in the proper statutory form, and the Deboers Group does not complain about the ballot or the election procedures beyond the petition.
Referring to Henard v. St. Francis Election Commission, 301 Ark. 459, 784 S.W.2d 598 (1990), and Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989), cases cited by the Hannan Group for the proposition that election laws provisions are mandatory before the election is held but only directory afterward, the Deboer Group contends it mounted its challenge prior to the election. That may be so, but they mounted it in the wrong court. To challenge the petition they needed only follow Ark. Code Ann. § 14-86-402 (1987) and petition the clerk of the county court pointing out the problem with the petition. Instead they sought an injunction in a chancery court, resulting in the case being transferred to a circuit court which did not hold its first hearing until after the election, too late to argue that the rules were mandatory.
In Becker v. McCuen, 303 Ark. 482, 789 S.W.2d 71 (1990), we dealt with a mistaken pre-election notice publication by the Secretary of State. Although a mistake was made, the challengers did not take advantage of the proper remedy available to them but waited until the eleventh hour and asked a court to strike the matter from the ballot. The trial court declined as did we. The seeking of the wrong remedy in the wrong court in the case now before us did not preserve the mandatory nature of the election laws after the election. In addition, we fail to see the prejudice resulting from failure to follow the statutory form of notice on the petition now that a much broader representation of the people affected have spoken.
The judgment of the Circuit Court is reversed, and the case is dismissed. | [
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Lawson Cloninger, Judge.
Appellant Robert Ross White and Brenda Faye Tayborn were convicted of robbery by the trial court sitting as a jury. Only White prosecutes an appeal. His only contention on appeal is that the trial court erred in not granting his motion for a directed verdict in that the evidence was insufficient to support the charge of robbery. We find that the trial court correctly denied the motion for a directed verdict, and that there was substantial evidence to support the conviction.
In October of 1979 an employee of Oseo Drug observed appellant remove merchandise described as a Revlon permanent kit from a shelf and place it in Tayborn’s purse. Tayborn opened her purse, appellant deposited the merchandise in it, and Tayborn then closed her purse.
Appellant and Tayborn were approached by an Oseo employee who asked them to go upstairs with him. They wanted to know why, and were told they had been observed placing merchandise in Tayborn’s purse. Appellant then opened Tayborn’s purse, threw the merchandise on a shelf, knocking down some things, and the item fell to the floor, breaking. Appellant said, “Let’s leave the store,” and the two started moving up and down the aisles in different directions, turning and going in another direction when an aisle was blocked by employees. An employee locked one door, and when he went to lock the other he was rammed from the rear by appellant. A struggle ensued, other employees intervened, and appellant was subdued. There was obscene and abusive language used, and threats were made by appellant. After appellant was subdued, Tayborn attempted to strike one employee with a clothes rack, and kicked another employee.
Appellant and Tayborn were charged with the crime of robbery under Ark. Stat. Ann. § 41-2103, which provides:
ROBBERY. (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. (2) Robbery is a class B felony.
The State charged that the defendants employed physical force against two employees of Oseo Drug with the purpose of avoiding apprehension immediately after the commission of a theft.
Appellant does not argue a lack of evidence of the use of physical force, and in any event, there is substantial evidence to support such a finding. He contends that there is no testimony to establish that at the time appellant exercised physical force against another person, he had, in fact, committed a theft, and that at no time did the witnesses testify that appellant used physical force prior to the returning of the merchandise to the shelf. The sole issue, then, remaining to be resolved is, “Was there a theft?”
The relevant portion of Ark. Stat. Ann. § 41-2203 provides that a person commits theft of property if he exercises unauthorized control over the property of another with the purpose of depriving the true owner of it; that the theft is a class B felony if the value of the property is $2500 or more; that the theft is a class C felony if the value of the property is less than $2500 but more than $100; that, otherwise, theft is a class A misdemeanor.
The standard of review on appeal is that this court will affirm if there is any substantial evidence to support the verdict. Lunon v. State, 264 Ark. 188, 569 S.W. 2d 663 (1978); Murphy v. State, 248 Ark. 794, 454 S.W. 2d 302 (1970); Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974). In testing the sufficiency of evidence, this court will review the evidence in the light most favorable to the State. Lunon, supra; Abbott, supra.
The fact that evidence is circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975). As noted in Smith v. State, 264 Ark. 874, 575 S.W. 2d 677 (1979), intent is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. In the Smith case, the Arkansas Supreme Court reversed a conviction for theft on the grounds that the trial court was only left to speculation and conjecture in reaching the conclusion that Smith had the intent to deprive the owner of his property. In Smith, appellant had been observed concealing cigarettes in her coat, but passed them to her sister in the check-out line before she was confronted. In reversing, the court stated that if appellant had been accused of trying to steal the cigarettes, even inferentially, before she passed them to her sister, it would have been a different situation.
In Jarrett v. State, 265 Ark. 662, 580 S.W. 2d 460 (1979), a security guard observed Jarrett take a grocery cart of meat into a storeroom marked “Employees Only” and place the meat in sacks that had been stuck in the back of his pants. Jarrett ran when he saw the security guard, and a fight ensued. The Arkansas Supreme Court affirmed Jarrett’s robbery conviction, observing:
“The trial judge could infer from the evidence that Jarrett was exercising unauthorized control over the property with the intention of taking it out of the store in sacks, as if it had been paid for.”
Applicable to this action is the shoplifting presumption found in Ark. Stat. Ann. § 41-2202 (2):
(2) Shoplifting Presumption. The knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to the presumption that the actor took goods with the purpose of depriving the owner, or another person having an interest therein.
In the instant case the presumption arose when appellant concealed the merchandise in Tayborn’s purse, and his actions, after confrontation, in throwing the item onto a shelf as he fled, do nothing to rebut the presumption. Nothing in his conduct indicated that he was renouncing an intent to commit theft.
In addition to the shoplifting presumption there is evidernce to support the finding of the trial court that there was a theft. Appellant’s flight following the commission of the offense is a circumstance to be considered with the other evidence in determining probable guilt, as is the conduct of the accused during the period of his flight, including any criminal conduct constituting an inseparable part of the flight. Murphy v. State, 255 Ark. 90, 498 S.W. 2d 884 (1973).
It is the duty of this court to enforce the statute as it is written as was done in Wilson v. State, 262 Ark. 339, 556 S.W. 2d 657 (1977) and Jarrett. There is substantial evidence to support the finding that appellant committed a theft, and that with the purpose of resisting apprehension immediately thereafter, he employed physical force upon an employee, or employees, of Oseo Drug.
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Donald L. Corbin, Justice.
This appeal involves one of two cases consolidated for all purposes, including discovery and trial, pursuant to ARCP Rule 42(a). Both cases arose out of an automobile collision occurring shortly after noon on June 2,1990, at the intersection of Main and Roosevelt Streets in Little Rock, Arkansas. Appellant, Tommy Ice, was a passenger in a vehicle driven by James Lee Williams. In separate actions, both appellant and Williams sued the driver of the other car, appellee Burl Bramlett. Both cases were tried together before a jury which returned verdicts for the defendant in both cases. Only appellant Ice appeals the judgment entered in accordance with the verdicts. As his sole point for reversal, appellant contends the trial court erred in excluding evidence relating to a traffic citation issued to appellee for his actions in the accident in question. We find no merit to appellant’s argument and affirm the judgment.
The trial court granted appellee’s motion in limine to exclude any testimony concerning whether anyone had received a traffic citation in association with the accident in question and the outcome of any such citation. Appellant contends that appellee received a citation for running the red light at the scene of the accident, that appellee pled guilty to such citation, and was placed on probation. Appellant further,contends this alleged guilty plea is an admission against appellee’s interest and therefore should have been admissible in the trial below. Appellant relies heavily on Dedman v. Porch, 293 Ark. 571, 575, 739 S.W.2d 685, 687 (1987), which holds that “the only proper evidence relating to a traffic violation conviction is a party’s plea of guilty in open court.” There was evidence from which the jury could have concluded, and apparently did so conclude, that appellee did not run a red light. Thus, argues appellant, the trial court’s exclusion of appellee’s alleged guilty plea was prejudicial to appellant and reversible error.
To support his claim that appellee pled guilty to the citation, appellant points to the testimony of Mr. David Ogden, Chief Probation Officer of Little Rock Municipal Court, Traffic Division. Mr. Ogden appeared in the trial court’s chambers with a copy of a “probation contract” bearing the signature of one “Burl H. Bramlett.” Mr. Ogden testified to the following concerning the probation procedure used in the municipal court:
THE WITNESS: Okay. A typical situation, they would come to the cashier’s window to pay the ticket. The cashier will ask them, “How many tickets have you had? You might qualify for probation,” to try and give them a break, instead of paying the ticket out right, to pay a probation fee and go on the probation contract for six months or a year, depending on —
THE COURT: Is that in lieu of paying the ticket?
THE WITNESS: Yes sir. It’s a $50.00 probation fee in lieu of paying the fine. We keep it held in our files during the time period, either six months or a year. It does not go on the state driving record during that time period unless he violates probation during the time period.
I have the defendant read the contact [sic] and I explain it to him and at the same time say, “You are pleading guilty to whatever the charge is,” whether it’s speeding or [a] stop sign or whatever it is, and it is a plea of guilty to go on the program. They’re either found guilty at trial in Judge Watt’s court itself or —
THE COURT: Let’s say that wasn’t done in this case. There was no — he never — he never saw Judge Watt. [Emphasis added.]
THE WITNESS: Well, I’m saying it happens one of two ways.
THE COURT: Okay. Well, it didn’t happen the second way, so let’s talk about the first way. [Emphasis added.]
THE WITNESS: Okay. Well, the contact [sic] says plead guilty or upon a finding of guilt. That’s what I was trying to say that the contract says.
THE COURT: Well, how does he plead guilty? How do you plead guilty in this thing?
THE WITNESS: Well, Judge Watt lets us take this as a guilty plea —
THE COURT: What do you mean, Judge Watt lets you take a guilty plea? How does he let you take a guilty plea?
THE WITNESS: Well, if you walk up —
THE COURT: What do you do to take a guilty plea?
THE WITNESS: If you just walk up to the cashier’s window and pay it, that’s an admission of guilt. I mean, you’re paying the ticket out right without going to court or
THE COURT: So you treat this the same as paying a fine as far as pleading guilty?
THE WITNESS: Yes, sir, pleading guilty to go on probation.
THE COURT: The difference is, in your mind, between paying a fine and going on probation. Is that the only difference?
THE WITNESS: As far as the guilty plea, yes, sir. You plead guilty, you pay a $50.00 probation fee, you have a chance to keep it off your record after a six-month time period. In this case, it was a six-month time period.
THE COURT: How does the judge’s signature end up on this [probation contract]?
THE WITNESS: He signs those at the beginning of the day so we can use these without disturbing him in court on each and every case. He set up this procedure —
THE COURT: It’s signed before this man even came in?
THE WITNESS: Yes, sir.
THE COURT: I’m not going to allow it.
THE WITNESS: Okay.
THE COURT: If it’s that easy to plead guilty and hold a man by his statement, I don’t see any difference between that and paying a ticket, and I’m not criticizing you.
THE WITNESS: I understand.
THE COURT: I’m just saying we’re talking about a whole different issue of getting before a jury and saying, this man knowingly pled guilty in court, I don’t think he did that.
Appellee points out that the foregoing testimony was proffered in chambers by plaintiff Williams, not by appellant. Appellee claims that because appellant did not proffer Ogden’s testimony, appellant cannot now claim it was error to exclude his testimony. The record reveals that while some witnesses were called on behalf of Williams alone and other witnesses were called on behalf of appellant alone, Mr. Ogden was called on behalf of “the plaintiffs” in chambers and out of the hearing of the jury. However, whether it was Williams or appellant who actually proffered Mr. Ogden’s testimony into evidence is of no consequence since “[w]e have already seen that consolidated cases must be viewed as a whole, that each plaintiff may claim the benefit of testimony introduced by others.” Derrick v. Rock, 218 Ark. 339, 344-45, 236 S.W.2d 726, 729 (1951), cited with approval in Southern Nat’l Ins. Co. v. Williams, 224 Ark. 938, 277 S.W.2d 487 (1955).
On the merits of appellant’s claim, appellee argues that the municipal court’s probation procedure does not include a plea of guilty “in open court,” and therefore is not admissible in a civil trial. Appellee also relied on Dedman, 293 Ark. 571, 739 S.W.2d 685, as well as Ark. Code Ann. § 27-50-804 (1987). In the alternative, appellant argues that even if we find appellee did not make a guilty plea in open court, evidence of the citation and probation should be admissible simply as a statement against interest.
Section 27-50-804 provides that “[n]o record of the forfeiture of a bond or of the conviction of any person for any violation of this subtitle shall be admissible as evidence in any court in any civil action.” We have stated that a plea of guilty is an admission against interest and is therefore admissible in a civil trial. Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968). When interpreting the section 27-50-804’s predecessor, we have held that “the only proper evidence relating to a traffic violation conviction is a party’s plea of guilty in open court.” Dedman, 293 Ark. 571, 739 S.W.2d 685.
We observe the absence of any evidence in the record indicating that appellee actually received a traffic citation or that it was his signature on the probation contract proffered into evidence. Mr. Ogden’s testimony was proffered in chambers and the trial court then granted appellee’s motion in limine; thus, even though appellee did testify at the close of the case, his testimony was necessarily silent regarding any traffic citation or probation. At the in-chambers discussion, there was some indication by counsel that appellee gave a deposition in which he stated that he pled guilty to a citation. However, no such deposition was proffered into evidence. There is also a lack of evidence indicating that appellee ever appeared before the municipal judge, or that he appeared in any hearing or formal activity in which the municipal court conducts business.
The record does contain the probation contract allegedly signed by appellee stating that “ [h] aving plead [sic] guilty or upon a finding of guilt ... I have been advised in open court . . . that I have been placed on unsupervised probation for a period of six months.” The contract is ambiguous as to whether the person signing it pled guilty or was found guilty. This ambiguity, especially when considered with the lack of evidence indicating appellee had actually received a citation, signed the contract, and appeared before the municipal judge, renders the contract insufficient to support a finding that appellee entered a guilty plea in open court..
Therefore, due to the lack of evidence connecting appellee with the citation and probation, we hold consistently with Dedman, 293 Ark. 571, 739 S.W.2d 685, and section 27-50-804, that any evidence of the citation allegedly issued to appellee and any evidence of his alleged probation in municipal court was not a guilty plea made in open court nor an admission against interest and was therefore properly excluded by the trial court.
As an aside, appellant claims the trial court erroneously judged the validity of the municipal court’s probationary proce dure. We disagree that the trial court’s order had the claimed effect and state that our decision does not either.
The judgment is affirmed. | [
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Donald L. Corbin, Justice.
Appellant, Johnny Lewis Thomas, appeals a judgment of the Garland Circuit Court convicting him of rape and kidnapping. Appellant was sentenced to life in prison on the rape charge and forty years on the kidnapping charge. As his sole point for reversal of the judgment, he contends the trial court erred in denying his motion for directed verdict on the kidnapping charge. We find no error and affirm.
At the close of the state’s case, appellant moved for a directed verdict on the kidnapping charge arguing there was insufficient evidence that appellant deprived the victim of more of her liberty than was necessary for him to commit the rape. Appellant emphasized the fact that the victim voluntarily entered his car. The trial court denied appellant’s motion concluding there was sufficient evidence indicating that the restraint on the victim’s liberty was greater than that which the state was obligated to prove on the rape charge. The trial court likewise denied appellant’s motion for directed verdict made at the close of all evidence.
We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond mere suspicion and conjecture. Id. On appellate review, it is only necessary for us to ascertain that evidence which is most favorable to appellee and, if there is substantial evidence to support the verdict, we affirm. Id.
As viewed most favorably to the state, the evidence reveals that at approximately 7:25 a.m. on October 14,1991, the fifteen-year-old victim was waiting at the bus stop for a ride to Hot Springs High School. As she was waiting, a car approached her. Appellant was driving the car. Appellant’s son, Robert Thomas, and appellant’s nephew, Melvin Newman, were passengers in the car. The victim knew Robert Thomas from school. The three men offered the victim a ride to school and the victim accepted. The victim then voluntarily joined Melvin Newman in the back seat of the car.
All three passengers testified that appellant was going to drive both Robert Thomas and the victim to school. However, appellant drove past the turn he should have made to reach the school. When the victim questioned appellant’s route to the school, he told her he was going the back way. Appellant then steered the car down a dirt road. All three passengers requested that appellant go to the school. Appellant ignored these requests. The victim began to cry because she was scared.
The victim stated there were no houses, only woods, around the dirt road. She was not sure of the length of the drive, but stated it could have been about ten minutes. She stated that when appellant was driving down the dirt road, she was scared and attempted to get out of the car. Appellant also told her he would kill her if she did not stop hitting and kicking him.
Appellant stopped the car and ordered his son and his nephew to get in the back seat. The victim got out of the car and was standing outside the front passenger door when appellant stripped her of her clothing. Appellant began kissing and fondling the victim while the two males were in the back seat of the car. Appellant then ordered them to leave because “he did not need an audience,” but to return to the car on his demand. Appellant then threatened the victim with a knife and raped her.
Appellant’s son and nephew corroborated the victim’s testimony. They both testified that Robert Thomas and the victim requested appellant to turn the car around and take them to school. Robert Thomas stated the victim was nervous and crying while riding down the dirt road. Both boys also testified they were either crying or almost crying during the incident.
In the present case, to prove kidnapping the state must show that appellant restrained the victim so as to interfere substantially with her liberty with the purpose of engaging in sexual contact. Ark. Code Ann. § 5-11-102(a)(4) (1987). We have interpreted this statute as requiring the restraint of the victim’s liberty to exceed that restraint which is normally incidental to the rape. Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988).
Appellant specifically contends the state failed to show that he restrained the victim in excess of the restraint that was incidental to the rape. He relies heavily on Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991).
In Shaw, the victim agreed to attend a business dinner with Shaw and voluntarily entered Shaw’s car. Instead of going to dinner, Shaw drove to a liquor store. Under false pretense, Shaw then drove to a rural camp site where he threatened his victim with a gun and raped her on the tailgate of his truck. According to the Shaw majority opinion, it was not until Shaw pulled the gun on her that the victim revoked her consent to Shaw’s actions. Based on those facts, this court held there was no substantial interference with the victim’s liberty to warrant a separate conviction for kidnapping.
Shaw is not controlling of the present case because the facts, although somewhat similar, are distinguishable. It is true that both victims voluntarily entered their rapists’ automobiles. But this is where the similarity ends. In Shaw, the victim continued to consent to her rapist’s actions when he deviated from the agreed-upon destination. For example, when Shaw wanted to go to a liquor store instead of eating dinner, the victim consented. Again, when Shaw deviated from his plan of doing some work by driving to a rural camp site, the victim consented. However, unlike the victim in Shaw, the victim in the present case began to revoke her consent to her rapist’s actions as soon as it became apparent he was not driving her to school — the agreed-upon destination. Thus, from the point at which appellant missed the turn to the school, appellant restrained the victim. He kept her in the car while she was kicking and hitting him and pleading with him to take her to school. He drove her at least ten minutes from the City of Hot Springs to a wooded area and raped her there. We hold such actions resulted in more restraint of the victim than would be normally incidental to the rape.
In reaching our conclusion, we emphasize the fact that appellant continued to remove the victim from the point of their initial contact after she expressed a desire to be returned to the agreed-upon destination. Appellant did not rape the victim at the point of initial contact as was the case in Summerlin, 296 Ark. 347, 756 S.W.2d 908, nor at the point where the victim revoked her consent to appellant’s actions as was the case in Shaw, 304 Ark. 381, 802 S.W.2d 468.
The chancellor did not err in denying appellant’s motion for directed verdict on the kidnapping charge. The foregoing evidence is substantial and shows the restraint on the victim’s liberty to have exceeded that which was incidental to the rape.
The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
The judgment is affirmed. | [
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George Rose Smith, Justice.
The appellants, husband and wife, owned urban property in Hot Springs, on which were situated cabins containing eleven residential rental units. The cabins were allowed to fall into such disrepair that the city, assertedly after having given lawful notice of its intentions, demolished the cabins as being substandard and unfit for human habitation. The appellants brought this action against the city to recover $40,000 as compensation “for the unlawful destruction of their property.”
At the close of all the proof the trial judge directed a verdict for the city on several grounds, one being that the plaintiffs had failed to prove the proper measure of their damages. The Court of Appeals certified the case to us under Rule 29 (1) (o). The only argument for reversal is that the court should not have directed a verdict. Inasmuch as we find that the plaintiffs failed to offer proper proof of their damages, we affirm the judgment.
About six months before the city demolished the cabins the appellants moved away from Hot Springs and stopped renting any of the units. Their sole proof of damages was Mrs. Standridge’s testimony that the cabins had formerly been rented for a net rental of about $207 a month. The proper measure of damages, however, is either the replacement value of the cabins or the difference in the value of the land before and after the demolition. Cy Carney Appliance Co. v. True, 226 Ark. 961, 295 S.W. 2d 768 (1956); Missouri Pac. R.R. v. Wood, 165 Ark. 240, 263 S.W. 964 (1924); Bush, Receiver v. Taylor, 130 Ark. 522, 197 S.W. 1172, 7 A.L.R. 262 (1917). That the plaintiffs proof of rental value was introduced without objection cannot be regarded as a waiver by the city of the proper measure of damages, because proof of rental value would arguably have been admissible as bearing upon the value of the cabins before their destruction.
The appellants do not argue that the trial judge was wrong about the correct measure of damages. Instead they argue, without citation of authority, that since Civil Procedure Rule 50 (a) requires that a motion for a directed verdict state the specific grounds therefor, the trial court “cannot add to defendant’s motion and give more than asked.” That argument is not valid. Our Rule is taken from Federal Civil Procedure Rule 50. The purpose of the sentence in question is to require that the specific ground for a directed verdict be brought to the trial court’s attention. Cortez v. Life Ins. Co. of North America, 408 F. 2d 500 (8th Cir., 1969). Specific grounds are also required so that judgment may not be entered upon a ground that might have been met with proof if the ground had been specified. Ryan Distributing Corp. v. Caley, 147 F. 2d 138 (3d Cir., 1945). Here the trial judge quite properly announced the basis for his ruling, which satisfied the purpose of Rule 50 (a). Had the appellants made the objection now urged, the city could readily have amended its motion to pinpoint the absence of proof of the proper measure of damages.
Affirmed.
Purtle, J., not participating | [
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David Newbern, Judge.
We are presented here with a question of application of the statute of limitations in workers’ compensation cases. Ark. Stat. Ann. § 81-1318 (Repl. 1976 and Supp. 1979)- The commission held the appellant’s claim was barred by the statute. We disagree.
The appellant initially injured his back while working for ITT Higbie Manufacturing Co. in 1974. Compensation benefits were paid by ITT Higbie’s carrier, Liberty Mutual Insurance Co. The appellant reinjured his back in 1976, and Liberty Mutual again made payments, the last one being made April 20, 1977. Permanent disability was not claimed by the appellant. Thereafter, ITT Higbie changed carriers. The appellant reinjured his back in June, 1978, and ITT Higbie’s new carrier, Insurance Company of North America (INA), paid workers’ compensation benefits to the appellant. In May, 1979, the appellant filed the claim, which is now before us, for a fourth recurrence of his back injury, seeking permanent disability benefits.
The medical evidence before the commission with respect to the 1976 and 1977 incidents referred to the condition of the appellant as “acute lumbosacral strain,” and “chronic lumbosacral strain” respectively. A medical report of July 20, 1978, stated “he does have a herniated nucleus pulposus at L 4-5 on the left.” Another medical report, dated July 27, 1978, said examination revealed “an L-4/5 disc and nerve root irritation.” This report concluded “he can return to work as symptoms might warrant.” Medical reports subsequent to the 1979 incident showed the appellant was hospitalized, and concluded he had a permanent partial physical impairment resulting from the condition of his back. The appellant filed his claim on May 30, 1979, seeking permanent partial disability benefits in the amount of 20%, including 10% anatomical impairment and 10% wage loss. The commission found that a preponderance of the evidence supported the administrative law judge’s determination that all of the incidents subsequent to the one which occurred August 7, 1974, were “recurrences of the initial injury.” The commission affirmed the administrative law judge’s determination that the statute of limitations barred the claim because no claim had been paid by Liberty Mutual for this injury for more than one year, and more than two years had elapsed since the injury of 1974. The payments made by INA seem to have been regarded as gratutious and, therefore, as not having been payments from which the statute of limitations would run. In summary, the commission has held that, with respect to any claims arising out of the 1974 injury, Liberty Mutual is the carrier which has coverage, and that as to Liberty Mutual, those claims are barred by the statute.
The purpose of the statute of limitations in workers’ compensation cases is to permit prompt investigation and treatment of injuries. Larson, Workmen’s Compensation Law, § 78.00 (1978). The statute runs in favor of the employer rather than the carrier. See, Brownings Restaurant et al v. Kuykendall et al, 263 Ark. 374, 565 S.W. 2d 33 (1978), where the supreme court said:
Under Ark. Stat. Ann. § 81-1318 (Repl. 1976), the limitations therein stated run in favor of the employer, and a workers’ compensation carrier cannot claim the benefit thereof unless the limitation has also run in favor of the employer. It follows that the Commission properly held that the liability of U.S.F. & G.was not barred by the statute of limitations. [263 Ark. at 377]
Although the parties properly do not regard it as an issue, we may prevent confusion by pointing out that the payments by INA did not have the effect of “reviving” any claim as to which the statute might have run with respect to the employer. See, Larson, Workmen’s Compensation Law, § 78.43(b) (1976), at pp. 15-131 and 15-132:
Once the claim has been barred by the passage of time, it will not be revived and a new period will not be set in motion by the furnishing of medical service years after the injury. The objective of the statute being to protect the claimant who reasonably refrains from making claim because of the receipt of benefits voluntarily supplied, no claimant can allege that his failure to make timely application was excused by something that happened after the claim was already barred. Moreover, since the employer was under no obligation to furnish such benefits once the right to them was barred, it cannot be said that he provided them as voluntary compensation payments. [Footnotes omitted.]
Although this text mentions only medical payments made after the limitations period has run, the rule should apply to all compensation benefits.
The appellant contends the statute did not begin to run until he “should reasonably have discovered his condition.” The essence of this agreement is that the appellant did not know he suffered from a herniated nucleus pulposus until July 20, 1978, and did not know that his disability was permanent until it was evaluated as such in 1979, and he filed his claim within two years of those events.
Liberty Mutual contends that the statute began to run with the initial occurrence in 1974; that the appellant knew what his condition was then, and he has waited more than two years from that event, and more than one year since their last payment, to file his claim.
The appellant cites Donaldson v. Calbert-McBride Printing Co., 217 Ark. 625, 232 S.W. 2d 561 (1950), and T.J. Moss Tie & Timber Co. v. Martin, 220 Ark. 265, 247 S.W. 2d 198 (1952). In the Donaldson case the claimant had an accident but submitted no claim and accepted no benefits until after one year had passed from the date of “the injury.” The supreme court held he was not barred because the term “injury” means “compensable injury,” and the “injury” did not become “compensable” until the claimant first learned the extent of his injury (a fractured coccyx) and was off work for a period that would entitle him to benefits for a compensable injury. Liberty Mutual attempts to distinguish the case on the ground that here the appellant had a compensable injury from the start, and he received workers’ compensation benefits from 1974 on. While the dintinction is factually cor rect, we question whether it should be influential with respect to the principal we seek to apply and which is articulated there, i.e., that the statute does not begin to run until the employee knows or should reasonably be expected to be aware of the extent or nature of his injury.
In the T. J. Moss case the claimant severely fractured his arm. After treatment, he was told by a physician the arm was healed and he could use it in his work. While doing so, more than one year after the last compensation payment had been made, the arm “completely gave way.” The supreme court refused to construe the statute in a way that would “require a claimant to file a claim for disability which did not in fact exist and one that was not reasonably apparent or discoverable to the claimant [220 Ark. at 269].”
Liberty Mutual attempts to distinguish the T. J. Moss case by saying that here the appellant knew the nature of his injury from the outset. The medical evidence is to the contrary. It was not until 1978 he was diagnosed as having a herniated nucleus pulposus as opposed to the earlier “strain” diagnoses. Nor had any physician even mentioned permanent disability until 1979.
In Sanderson and Porter v. Crow, 214 Ark. 416, 216 S.W. 2d 796 (1949), upon which Liberty Mutual relies, the court reversed a decision granting benefits because the claim was barred by the state. Liberty Mutual makes much of the language of the court describing the injury there not as “latent” but as “recurrent” as was the injury before us. We are not persuaded by the case because the gravamen of that decision was not a distinction between “latent” and “recurrent.” It was, rather, the finding by the court that:
At all events, even if the injury were latent theretofore, certainly when the appellee was X-rayed and discharged from the Navy on December 5, 1944, any latent injury became patent so as to commence the running of the statute of limitations. [214 Ark. at 420]
We hold the appellant’s claim was not barred by the statute of limitations because there is no substantial evidence showing that the appellant knew or should have known the nature and extent of his injury more than two years prior to filing his claim.
Reversed and remanded.
Judge Penix did not participate.
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Robert L. Brown, Justice.
The appellant, Synergy Gas Corporation, argues for reversal on the basis that a reference to Synergy’s liability insurance elicited from a Synergy employee by appellee Ida Lindsey’s counsel was prejudicial error. We believe that the reference to insurance was prejudicial, and we reverse and remand for a new trial.
On August 28, 1989, the appellee, Ida Lindsey, age 76, reported to Synergy employees that she smelled gas in her house, which was located west of Caldwell. That afternoon, two employees, Danny Shackleford and James Goings, were sent to her house from Forrest City to investigate. Shackleford tightened a valve, which slowed the leak. He did not go inside the house to determine whether the water heater or floor furnace pilot light were on. Nor did he advise Mrs.Lindsey to spend the night elsewhere due to potential danger.
The following morning, August 29, Shackleford accompanied by Bob Lee, Synergy’s Forrest City branch manager, returned to the Lindsey home to remove gas from an unused underground butane tank. The men did not remember notifying Mrs. Lindsey of their presence. They also failed to crawl under the house to determine conditions or otherwise to ascertain whether her pilot lights were on. They did not request that she leave the house or turn off her appliances. Instead, both testified that they went directly to work on “bleeding” the tank. Lee later testified, “I had one thing on my mind and that was getting that gas out.”
Lee attached 150 feet of hose to the tank and began releasing the butane in a field to the northeast of the appellee’s house. After the gas had been drained, the men removed the percentage gauge from the tank. Lee then left, and Shackleford, who was certified only to transport and deliver propane and butane gas, continued the work. He poured some dishwashing detergent into the tank to “kill the vapors,” and after that, he began to fill the tank with water. At that point, gas fumes started to escape, accompanied by what Shackleford described as a “roaring” or “whistling-like noise.” Detecting the odor of Mercap in the tank, Shackleford cut off the water. Shackleford turned the water on again but cut it off when the noise resumed and the odor resumed. He did not, however, warn Mrs. Lindsey. Concerned, he called the branch office and spoke with Lee, who told him “not to worry about it.”
After this conversation, Shackleford heard what he described as a “crackling noise” and saw a flame run out from a vent beneath the house. He was suddenly knocked back 15 to 25 feet by an explosion. He immediately contacted his office by radio, requesting it to alert the fire department. Shackleford next went to the front door of the house and found Mrs. Lindsey, who had come to the door in response to his efforts to break it down.
Mrs. Lindsey, testimony later revealed, was thrown from her chair by the same explosion and landed on the floor. As Shackle-ford attempted to get her away from the house, she insisted on retrieving her purse. Shackleford went back into the burning house and got the purse. Mrs. Lindsey filed suit against Synergy and sought damages for medical expenses, mental anguish (past and future), and property damage. In addition, she asked for punitive damages. The case was tried before a jury over two days. Synergy admitted liability for the occurrence but contested compensatory damages and denied liability for mental anguish or punitive damages. The jury returned verdicts in favor of Mrs. Lindsey in the amounts $36,436.46 for compensatory damages, $20,100 for mental anguish, and $120,000 for punitive damages.
Synergy first contends that Mrs. Lindsey’s counsel questioned Bob Lee, who was one of the last witnesses, in such a way as to elicit prejudicial testimony of Synergy’s liability coverage. At deposition, Lee had responded to counsel’s questions about assurances he had given Mrs. Lindsey’s son, Bee Lindsey, about Synergy’s willingness to cover the loss with the following:
I told Bee. I said you’ve got nothing to worry about. They have insurance. It will be covered. That is what John Neal told me. He said she ain’t got nothing to worry about. I told you what my supervisor told me.
At trial, counsel for Mrs. Lindsey called Lee as a hostile witness and challenged him on various points that were inconsistent with statements he had made in his deposition. At one point, the trial court ruled that appellee’s counsel stay behind the podium and let Lee finish answering the questions after Synergy’s attorney objected to the fact that counsel was badgering the witness. The following exchange occurred later in the cross-examination:
Q. What did you tell [Bee] about it? Did you tell him you had talked with your supervisor in West Memphis?
A. I told him I had called him.
Q. And what did you tell [Bee]?
A. I told him that I called him and he would be out there and I guess that’s it.
Q. You know what I mean. What did you tell [Bee] about the situation?
A. Well I told him the company had insurance and I was sure he didn’t have anything to worry about. That it would take care of it.
Q. You told him that you spoke to your supervisor, and he said tell Mrs. Lindsey she didn’t have to worry about a thing. That they would take care of everything, didn’t you?
A. That’s right. That’s what I was told.
Testimony continued on measures that Lee ordered to be taken after the explosion to determine whether there were any broken lines or loose connections under the house and efforts to assist Mrs. Lindsey. When Mrs. Lindsey’s counsel asked Lee whether Synergy continued to send her a bill, Synergy’s counsel objected, and the trial court summoned all attorneys to the bench. At that time Synergy moved for a mistrial on grounds that Mrs. Lindsey’s counsel had elicited a response regarding insurance coverage. Mrs. Lindsey’s counsel denied that he had elicited the response and stated that the insurance had not been mentioned at Lee’s deposition: “In his deposition he said tell Mrs. Lindsey that my people said we would take care of everything. I wasn’t soliciting insurance. Insurance was never mentioned to me, and I wasn’t soliciting that. Mr. Rieves knows that is what the deposition said.” (Emphasis ours.) Mrs. Lindsey’s counsel was not correct in light of the deposition testimony previously quoted in this opinion, which meant the trial court at this stage was misinformed. Insurance was specifically mentioned at the deposition.
The circuit court then denied the motion because he did not believe the questioning was purposeful. At the end of all testimony, Synergy’s counsel renewed the motion for mistrial and pointed out to the trial court that Bob Lee had mentioned liability insurance in his deposition in connection with Mrs. Lindsey’s not having anything to worry about. The trial court refused to change his ruling.
As a general rule, it is improper for either party to introduce or elicit evidence of the other party’s insurance coverage. Younts v. Baldor Electric Co., 310 Ark. 86, 832 S.W.2d 832 (1992). The injection of insurance coverage is proper only when it is relevant to some issue in the case. Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992). The crux of the matter, then, is whether the question that prompts a reference to insurance is “relevant to an issue or is designed to skew the jury’s thinking because of the presence or absence of a deep pocket.” Hacker v. Hall, 296 Ark. 571, 576, 759 S.W.2d 32, 35 (1988); see also Bull Shoals Community Hospital v. Partee, 310 Ark. 98, 832 S.W.2d 829 (1991).
We have held that where there has been an intentional and deliberate reference to insurance when it was not an issue in the case and when the opposing party had not opened the door for its admission, mistrial was the proper remedy. Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30(1982). In that case, the attorney for one of the defendants, in closing argument, argued that the plaintiffs carrier had already paid her medical bills. The trial court refused to declare a mistrial, and we reversed on the basis that the insurance comment was intentional, irrelevant, uninvited, and prejudicial. See also Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973).
In Hacker v. Hall, supra, we reversed a jury verdict because of the injection of insurance into the case. There, defense counsel was questioning the plaintiff about why he had employed a lawyer so fast. The plaintiff answered: “Because the insurance company kept harassing me.” Defense counsel pursued the point:
Defense Counsel: Which one?
Plaintiff: State Farm.
Defense Counsel: The one from State Farm or the one with
Burnham:
Plaintiff: No, State Farm.
Burnham Ford was the plaintiffs employer. We concluded in Hackler that the reference to Burnham Ford’s insurance by the defense counsel was misconduct and was one reason for granting a new trial.
On the other hand,we have also held that where the attorney poses a question with apparent sincerity and in good faith rather than in a deliberate attempt to prejudice the jury and the witness answers with a reference to insurance, an admonition by the court is ordinarily sufficient to correct the error. Lin Manufacturing Company of Arkansas, Inc. v. Courson, 246 Ark. 5, 436 S.W.2d 472 (1969).
Here, the facts are somewhat different, and they present an issue we have not considered before. The trial was solely about damages, liability having been admitted by Synergy. Mrs. Lindsey’s counsel had called Bob Lee as a hostile witness and had used his deposition twice for impeachment purposes before the colloquy at issue. Her counsel knew or should have known that in response to an almost identical question at deposition, Bob Lee said: “They have insurance. It will be covered.” Nevertheless, counsel forged ahead aggressively, using that deposition to impeach Lee and forcing the issue of precisely what had Lee told Mrs. Lindsey’s son. Lee had been told by Synergy’s attorney not to mention insurance. But counsel for the other side clearly pushed Lee into a corner.
. We cannot say with absolute certainty that the appellee’s counsel intentionally elicited the information about Synergy’s insurance coverage. We are certain, however, that counsel trod recklessly onto dangerous ground and should have known, based on the deposition he took, the response that he would get from Lee when he pressed him for an answer. Moreover, Mrs. Lindsey’s counsel incorrectly advised the trial court when the mistrial was first under discussion by stating that insurance was not mentioned in Lee’s deposition.
We are mindful of the appellee’s contention that Synergy is a major company with considerable assets and that this fact was brought to the jury’s attention in connection with the claim for punitive damages. Nonetheless, it would place us in an untenable position to premise a decision of prejudice on the extent of the insured’s means. Irrespective of a company’s assets, the mention of insurance would have a profound effect on any jury. It suggests, among other things, that a third party would foot part, if not all, of the bill — especially here when the witness added that the insurance would “take care of it.” That statement in itself was misleading because liability coverage typically does not cover intentional acts leading to punitive damages.
At that point, the metaphorcal bell had rung, and the prejudice was pronounced. While each and every mention of insurance at trial may not constitute reversible error, under the circumstances of this case where appellee’s counsel proceeded recklessly in eliciting an irrelevant response on liability coverage, the trial court erred in refusing to grant a mistrial. We note again in so holding that the trial court was misinformed about the reference to insurance in Lee’s deposition when it first denied the motion for mistrial.
Reversed and remanded.
Hays, J., concurs.
Glaze, J., dissents. | [
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Tom Glaze, Justice.
Amy Coy’s body was discovered near De Vails Bluff, and appellant was later arrested and charged with capital murder. Appellant appeals from his conviction of first degree murder and his forty-year sentence. He raises five points of error, but none have merit. Therefore, we affirm.
The state’s case against the appellant consisted almost entirely of testimony from Sylvia Proffitt. Proffitt testified she told the police she had witnessed the appellant shoot Coy and afterwards she helped him hide her body. Proffitt further related that she explained to the police that she and Coy had worked as prostitutes for the appellant, and that appellant had a fight with Coy and shot her. Because Proffitt was afraid the appellant would shoot her, she said she helped the appellant dispose of Coy’s body. Proffitt was not charged with any crime. During the investigation, the police found traces of blood on a pair of jeans identified as belonging to the appellant, on a black sweater belonging to Proffitt, and in the house where Proffitt said the murder occurred. However, the police were unable to positively identify the blood as belonging to the victim.
In his first issue on appeal, the appellant argues that the trial court erred in not ruling that Proffitt was an accomplice as a matter of law. We do not address the merits of this argument, because the appellant did not request such a ruling below. Instead, at appellant’s attorney’s request, the trial judge gave the accomplice jury instruction over the prosecutor’s objection. Because appellant received the only relief he requested, he has no basis upon which to raise the issue on appeal. Sweat v. State, 307 Ark 406, 820 S.W.2d 459 (1991). Likewise, we need not address the appellant’s second argument that there was insufficient evidence to corroborate Proffitt’s testimony, because corroboration is only necessary if Proffitt had been found to be an accomplice.
We can also summarily dismiss the appellant’s third issue that the trial court erred in instructing the jury on first degree murder. This court has repeatedly held that when one is charged with capital felony murder, the judge must also instruct the jury on first degree murder. See Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990); Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).
Relying on United States v. Standefer, 948 F.2d 426 (8th Cir. 1991), the appellant next argues that the trial court erred in failing to dismiss the case on the basis of double jeopardy. Appellant submits his first trial ended in a mistrial because of improper questioning by the prosecutor, and in Standefer, the federal court held that when governmental misconduct was intended to goad the defendant into moving for a mistrial, a defendant can raise the bar of double jeopardy to a second trial. The appellant here, however, has failed to make any of the first trial a part of the record in this appeal. Thus, we are unable to review the governmental misconduct to determine whether it rises to the level required in Standefer. As this court has stated numerous times, it is the appellant’s burden to produce a record exhibiting prejudicial error. See, e.g., Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992).
In his final issue, the appellant argues that the trial court erred in denying his motion to dismiss on speedy trial grounds. Under A.R.Cr.P. Rule 28.2(c), when a defendant is to be retried following a mistrial, the twelve-month period for trial shall commence running from the date of mistrial. Appellant argues that because the mistrial resulted from the prosecutor’s actions, this rule should not apply and the speedy trial time period should commence at the time of his arrest. From the plain reading of Rule 28.2(c), there is no such exception nor does the appellant cite the court to any authority supporting his argument.
Applying Rule 28.2(c) to the present facts, a mistrial was declared in the appellant’s first trial on November 22, 1991, and appellant’s second trial began on April 1,1992. The appellant was retried within five months from the time of his first trial, clearly well within the twelve month speedy trial period. In sum, we find no merit in the appellant’s argument.
For the reasons stated above, we affirm.
Holt, C.J., not participating. | [
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Per Curiam.
Appellant was convicted of a felony. He filed a motion for a new trial. The trial court did not rule on the motion within thirty days, and appellant did not give a notice of appeal at that time. Some months later the trial court denied the motion, and appellant gave notice of appeal within thirty days of the ruling. The court of appeals dismissed the appeal for failure to give a timely notice of appeal. Giacona v. State, 39 Ark. App. 101, 839 S.W.2d 228 (1992). Appellant has filed a petition for review in this court.
We deny the petition for review, but take this opportunity to repeat that Arkansas Rule of Appellate Procedure 4(c) applies to criminal cases. It provides that when post-trial motions are filed, the time for appeal runs from the entry of the order granting or denying the motion, provided “that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day." (Emphasis added.) | [
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David Newbern, Justice.
In this case the constitutionality of an ordinance of the City of Hot Springs has been challenged as being in violation of the First Amendment guarantee of freedom of speech. The ordinance regulates “sexually oriented businesses” in Hot Springs by setting qualifications for licensing and assuring geographic disbursement within the City. The appellant, Jessie Orrell, who operates businesses which would require licenses pursuant to the ordinance, argued the ordinance (1) was unconstitutional because it did not guarantee a speedy determination of eligibility and (2) because it left so few locations for such businesses that it amounted to an unconstitutional deprivation of the right to speak or communicate.
The Trial Court held the ordinance was not unconstitu tional. We must reverse because we agree with Mr. OrrelFs first argument.
Mr. OrrelFs two establishments feature topless (nude from the waist up) female dancers. The “Bottoms Up” club, located at 415 Albert Pike, was opened sometime in January of 1990. The Centerfold Entertainment Club, located at 214 West Grand, opened sometime later. The City had adopted, in 1987, Ordinance No. 3938 (Ordinance) entitled “SEXUALLY ORIENTED BUSINESS ORDINANCE,” and OrrelFs businesses fall within its definition of “sexually oriented business.”
Apparently there was no effort to enforce the Ordinance against either establishment, but early in 1991 Mr. Orrell learned the Hot Springs City Manager and other officials felt his establishments violated the Ordinance. He filed a complaint for injunctive relief and declaratory judgment seeking a determination whether the two establishments were “sexually oriented businesses” as defined by the Ordinance; whether they were excepted due to “grandfather” provisions; and whether the Ordinance was constitutionally defective in its scope and in the geographic limitations imposed.
A hearing was held, and it was shown that the “Bottoms Up” Club was in a location consistent with the ordinance, but the Centerfold Entertainment Center was not. The evidence also established that there were at most only four sites within the City available for location of such a business. Because of the requirement in the Ordinance for a substantial distance between these businesses it was probable, but not shown definitely, that no more than one such business could be located in each of these four areas. The Court held the ordinance was not unconstitutional and that the geographic restrictions were not unreasonable.
1. Prior restraint
The Ordinance in Section 3 requires a license for the operation of a sexually oriented business as defined in Section 2. Section 4 provides, in pertinent part:
(a) The Administrator MUST approve the issuance of the license within 30 days after receipt of an application unless he or she finds one or more of the following to be true:
***
(5) The premises to be used for the sexually oriented business have not been approved by the health department, fire department or the appropriate building official as being in compliance with applicable laws and Ordinances.
***
In Freedman v. Maryland, 380 U.S. 51 (1965) the Court held that the failure to place limitations on the time within which a censorship board decision maker must make a determination of obscenity is a species of unbridled discretion which constitutes a prior restraint on the First Amendment guarantee of freedom of speech. While prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against it’s constitutional validity. FW/PBS, Inc. v. City of Dallas, 110 S.Ct. 596 (1990).
There are two evils not to be tolerated in such schemes. First, a scheme that places unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship. Second, a prior restraint that fails to place limits on the time within which the decisionmaker must issue a license is impermissible. Freedman v. Maryland, supra, at 59. Like a censorship system, a licensing scheme creates the possibility that constitutionally protected speech will be suppressed where procedural safeguards are inadequate to ensure prompt issuance of the license.
Three procedural safeguards are necessary to ensure expeditious decisionmaking. (1) Any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must appear available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. Freedman v. Maryland, supra at 58-60.
In FW/PBS, Inc. v. City of Dallas, supra, a Dallas ordinance required issuance of a license within 30 days of receipt of an application, but it conditioned the issuance upon approval by other municipal inspection agencies without setting a time limit for inspections by those agencies. As a result, a majority of the Court concluded that the timeliness requirement posed in the Freedman case had not been met. The ordinance failed to provide an effective time limitation on the licensing decision, and it also failed to provide an avenue of prompt judicial review so as to minimize suppression of speech in the event of a license denial, thus it was unconstitutional insofar as it was enforced against businesses engaged in First Amendment activity.
The Hot Springs ordinance is identical to the Dallas ordinance in that the administrator must approve the issuance of a license within 30 days unless the premises have not been approved by the health department, the fire department, or appropriate building officials as in compliance with other applicable laws and ordinances. This is the same defect found in the FW/PBS v. City of Dallas, supra, and from which the Supreme Court concluded that the licensing scheme lacked adequate procedural safeguards to stand constitutional muster. Thus Ordinance 3938 clearly constitutes an impermissible prior restraint on speech and must fail.
2. Alternative sites
The generally stated justification for ordinances such as the one reviewed here is that they are “content neutral” and have as their purpose the control of undesirable activities such as crime, particularly prostitution, often found near clusters of sexually oriented businesses. Their purpose is not to stifle speech but to prevent secondary effects which are subject to the police power of government.
Like the Supreme Court in FW/PBS, Inc. v. City of Dallas, supra, we find it unnecessary to reach the issue whether the ordinance was properly viewed as a content neutral time, place, and manner restriction reasonably aimed at the secondary effects arising out of sexually oriented businesses, but a brief discussion of the second argument with regard to the reasonableness of the geographic requirements is appropriate.
In Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), ordinances regulating sexually oriented businesses were held facially valid if they (1) were designed to serve a substantial government interest and (2) allowed for reasonable alternative avenues of communication. The Supreme Court made it clear that content neutral time, place, and manner regulations are appropriate to control the location and proliferation of sexually oriented businesses so long as there are opportunities available within the city for the placement of these businesses.
The record presented in this case showed that there were four areas remaining in Hot Springs, after passage of the ordinance, where a sexually oriented business could have been legally located. It is not clear, however, whether these sites are actually available to the operators of such businesses. It is also unclear whether one of the sites already has a regulated business within the area and therefore may be unavailable for location of another such business.
In Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102 (9th Cir. 1988); Alexander v. City of Minneapolis, 713 F. Supp. 1296 (D. Minn. 1989); and Alexander v. City of Minneapolis, 698 F.2d 936 (8th Cir. 1983) (Alexander I), identical restrictions which essentially reduced the number of such business which could legally operate to a marginal number were found to violate the First Amendment. In the Alexander I case the reduction would have been from sites accommodating 30 existing business to 12 relocation sites. In the Walnut Properties case the ordinance had identical restrictions which would permit businesses to relocate to only three sites in the City of Whittier.
While our holding in this case does not encompass this point, we recite our concern with respect to the ultimate practical effect of a law such as Ordinance 3938 for the benefit of guidance in cases which may arise in the future.
Reversed. | [
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Steele Hays, Justice.
Appellant Levonia Gray argues in this appeal there was a lack of evidence at his bench trial to convict him of aggravated robbery, misdemeanor theft of property, and felon in possession of a firearm. Finding the evidence sufficient, we uphold the decision of the trial court.
Around 3:30 a.m. on September 11, 1991, a convenience store at 12th and Fair Park in Little Rock was robbed. The clerk described the robber as a black male, wearing a black ski mask, camouflage jacket and white pants. Two police officers, patrolling the area because of a spate of recent crimes, were parked in an alley near the store. They watched as a black male dressed in white pants and green camouflage jacket entered the convenience store and emerged moments later wearing a ski mask. He ran behind the building as they drove toward the rear of the building. There they discovered a brown Buick automobile parked in a vacant lot. An occupant, Frederick Ellis, was crouched down in the passenger’s seat. He told them that he was waiting on a friend who had gone into the convenience store. He said the friend wore white pants and a green jacket. The vehicle contained papers belonging to Levonia Gray. Some distance away, between the store and the car, they found a black ski mask.
Levonia Gray was taken into custody. He told police he knew nothing of the robbery, and that a kid named Fred had spent the night in his car on the night in question. A voice lineup was conducted using six subjects and the clerk picked the voice of Levonia Gray.
Frederick Ellis testified at trial that he had been riding around with Gray when Gray parked behind the convenience store and told him to wait. After about ten minutes the police arrived but Gray never returned. Gray was convicted and sentenced as an habitual offender to a total of forty-eight years in the Department of Correction.
Levonia Gray contends the evidence is short on all counts. He submits the most telling evidence connecting him to the crime was the testimony of Frederick Ellis. But Gray maintains Ellis was an accomplice and his testimony must be disregarded under Ark. Code Ann. § 16-89-111 (e)(1) (1987), providing that an accused may not be convicted of a felony on the testimony of an accomplice unless corroborated by other evidence tending to connect the accused with the crime. Gray cites those cases holding that the testimony of the accomplice must be excluded in determining whether the corroborating evidence is sufficient. See, e.g., Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983).
We cannot sustain the argument because the trial judge, sitting as fact finder, found that Ellis was not an accomplice, even though the police found him crouched down in the vehicle as they drove up to investigate. We cannot say on that ambiguous circumstance that Ellis was an accomplice as a matter of law. In reality it matters little how the accomplice issue is resolved, as the remaining evidence connecting Levonia Gray to the robbery was clear beyond any serious question — the clerk described the robber as a black male wearing white pants, camouflage jacket and ski mask; two officers saw a man dressed accordingly enter and leave the store headed toward the parked vehicle containing papers belonging to Levonia Gray; the ski mask was found some thirty feet from the car, as were tracks leading toward the car and .then away from it; the clerk identified the voice of Levonia Gray as that of the robber and while the trial judge minimized the voice identification in his findings, he did not discount it altogether. In short, we find the evidence, though circumstantial, entirely adequate to support the conviction.
Affirmed. | [
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Per Curiam.
Petitioner, Cassandra Green, by her attorney, William P. Mills, has filed a motion for rule on the clerk. Her attorney admits that the record was tendered late due to an error on his part.
We find such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Steele Hays, Justice.
This appeal is before us on a petition to review a decision by the Court of Appeals, Leach v. State, 38 Ark. App. 117, 831 S.W.2d 615 (1992). Petitioner, Randy Leach, was convicted of conspiracy to commit aggravated robbery of a Wal-Mart courier and received a six-year sentence and a $5,000 fine. The conspiracy charge was interrelated with two other conspiracies, for which Leach and two others were charged. These latter conspiracies were tried separately. The Court of A ppeals reversed the judgment of conviction, finding merit in two points of error. Leach petitioned for rehearing on two additional points but the petition was denied. We granted review and the case is now before us on the two points rejected by the Court of Appeals.
In the first of those, Leach argued that the trial court erred in admitting his confession because it was the result of a threat. The substance of the prosecutor’s remarks to Leach just prior to his confession is not disputed, that the state had enough evidence to charge him for capital murder but would refrain if Leach could give evidence sufficient to clear himself of the capital murder charge and would tell what he knew concerning the two co-conspirators. Leach was given the Miranda warnings and advised that if he admitted to any crime while giving a statement about his co-conspirators, that information could be used against him. Leach signed the waiver of rights form and gave the police information implicating his co-conspirators in various offenses. He also gave the police information sufficient to clear himself of the murder charge but which implicated him in less serious offenses. Leach was ultimately charged on one of these lesser crimes.
At the suppression hearing the prosecutor offered proof that at the time he spoke to Leach, he did have probable cause to indict him on the murder charge based on statements given by one of the co-conspirators, and this fact is not contested. The trial court held Leach’s statement admissible and it was used at trial on the conspiracy charge of this case.
Relying on Tippit v. State, 285 Ark. 294, 686 S.W.2d 420 (1985), the Court of Appeals held the statement was voluntary. In Tippit, the defendant gave a statement in exchange for a promise of leniency, which was kept, and we stated:
Under the facts and circumstances of this case, when considered in their totality, we think the trial court was correct in admitting the statement. The appellant struck a bargain which was closely related to a plea bargain and both sides kept their promise. Most likely the deal was a wise one for the appellant. In any event we can find no prejudicial error.
Leach argues the trial court was wrong because the facts in this case are distinguishable from Tippit. In Tippit it was the defendant who had proposed the bargain, whereas here the state initiated the proposal. Leach notes that in Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983), cited in Tippit, we emphasized that in determining voluntariness an important factor is whether the defendant or the state initiates the proposal. Further, Leach argues that here police used a threat, whereas in Tippit it was a promise that induced the statement.
While in Williams we did observe that the defendant’s initiation of the proposal was a critical factor, it was to show a that it changed the nature of the proposal as excluding the possibility of outside coercion. That was not to imply that a defendant’s initiation was a necessary prerequisite to finding a confession voluntary. In fact, we reiterated that no single factor was determinative but it was the totality of the circumstances that was significant.
As to the contention that the prosecutor’s statement constituted a threat rather than a promise, an arguable premise at best, we find no significance in such distinction. Our research has turned up nothing to indicate that a threat is more odious per se than a promise. Rather, the real issue concerning statements made through hope or fear is based on broader considerations of voluntariness in light of the particular inducement, whatever its nature. See John W. Strong, McCormick on Evidence § 147 (4th ed. 1992); 1 W. LaFave Criminal Procedures § 6.1, § 6.2 (1984).
Consequently, what we have said in previous cases holds true here. We will examine all of the circumstances to determine whether a statement was voluntary, and if a promise or threat was made, we will look first to the police conduct and then to the vulnerability of the defendant. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). And if a promise was made that was permissible and was kept, those are circumstances to consider in determining whether the statement was voluntary. See Tippit, supra; and Williams, supra; and Tippit v. Lockhart, 859 F.2d 595 (8th Cir. 1988).
From that preface, we turn to the specifics of this case. Randy Leach was a policeman for the Conway police department and had been working in that capacity some nine years. Recently he had been engaged in narcotics and undercover assignments.
Leach was not incarcerated prior to his statement being taken, nor formally arrested or charged. In fact he was called at his home to come to the station to discuss “some matters,” which he did. When he arrived he spoke with the prosecutor for approximately three minutes, during which the prosecutor made his proposal. The taking of Leach’s statement followed, lasting less than forty-five minutes.
While the state did suggest the proposal, it was made, not by the police but by the official authorized to bring criminal charges. See Williams, supra. The state offered proof that there was a basis in fact for the prosecutor to charge Leach with capital murder, and when Leach was forthcoming with information, the prosecution kept its end of the bargain.
We see nothing fundamentally wrong in the prosecutor advising Leach what was within his power to do under the circumstances, see LaFave, supra at 447. While this may have prompted Leach’s confession, it can hardly be argued that this was a fundamentally unfair inducement. See McCormack, supra at 568. Nor can we say that Leach’s will, given his experiences and background, was in any way overborne.
Nor is it certain Leach’s statement was induced by the prosecutor’s proposal. Leach testified the prosecutor wanted information on the co-conspirators, and was not pressing for self-incriminating information. Leach could have misled his interrogators about his own involvement and still given incriminating statements about the others. But he decided, evidently, to tell the truth. The bargain was not for a confession in exchange for a lighter sentence, but for information along with the exculpatory information in exchange for going free. If anything, Leach’s confession was gratuitous. It must be noted that Leach has not contended at any time that his confession was false.
As his second point, Leach argued to the Court of Appeals it was error for the trial court to deny individual sequestered voir dire. The Court of Appeals responded:
Before trial, the court denied [Leach’s] request for individual sequestered void dire. [Leach] argues that he was thereby inhibited from asking prospective jurors questions about their knowledge of related criminal litigation, and urges us to adopt § 3.4(a) of the Standards Relating to Fair Trial and Free Press promulgated by the American Bar Association Project on Standards of Criminal Justice. That section provides:
(a) Method of examination. Whenever there is believed to be a significant possibility that individual talesmen will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to his exposure shall take place outside the presence of other chosen and prospective jurors. An accurate record of this examination shall be kept, by court reporter or tape recording whenever possible. The questioning shall be conducted for the purpose of determining what the prospective juror has read and heard about the case and how his exposure has affected his attitude towards the trial, not to convince him that he would be derelict in his duty if he could not have cast aside any preconception he might have. [Our emphasis.]
[Leach] concedes that the decision to grant or deny sequestered individual voir dire is left to the discretion of the trial court. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). He also concedes that reversal will not lie absent a showing of prejudice. See e.g. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). Because here, as in Logan, the record does not reflect the requisite prejudice, [Leach] urges us to adopt the ABA standard and overrule the supreme court’s decisions in Logan; Hefferman v. State, 278 Ark. 325, 645 S.W.2d 666 (1983); and other supreme court cases stating the same principle. Despite [Leach’s] contention to the contrary, we lack the authority to overrule decisions of the Arkansas Supreme Court. Huckabee v. State, 30 Ark. App. 82, 785 S.W.2d 223 (1990). It will be for the circuit court to decide whether, on retrial, sequestered voir dire is necessary.
First, we find it unnecessary to overrule any previous decisions in order to approve of the ABA Standard § 3.4(a). None of the cases Leach cites, Logan v. State, supra; Hefferman v. State, supra; and Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), are incompatible with that standard. None of those cases require that actual prejudice be demonstrated to show an abuse of discretion. At most, we stated that no actual prejudice was in fact demonstrated, but we did not state that it was required. In none of those cases was the question posed whether individual sequestered voir dire be granted on the basis of potential prejudice only.
Leach asks us to adopt the ABA Standard, but we believe that is unnecessary. The Standard merely recognizes that at some point pretrial publicity can be sufficiently pervasive that individual sequestered voir dire would be mandated because of the likelihood that individual venirepersons have been exposed to prejudicial information. Nothing we have said in past cases would preclude any trial court from taking such an approach, if it hasn’t already done so.
In the case before us it is not necessary to review the trial court’s action, as we find no evidence that Leach was prejudiced. He argues he was limited in his questioning for fear of eliciting prejudicial information and was therefore not able to question prospective jurors individually or as a group to determine “what they knew about the charge against him.” Without that information Leach contends he was reduced to “shooting in the dark” in exercising his peremptory challenges.
We find no basis for this claim. The record reveals that counsel did in fact ask the jury a number of times what they knew about the case. He asked the question en masse and then called on individuals who had their hands raised and received more detailed information as to what these individuals knew or had heard about the defendant. We find nothing prejudicial in these answers and Leach advances nothing additional in that regard.
On remand, should the question arise again the trial court is free to decide, in its discretion, whether there is sufficient showing of potential prejudice to warrant individual sequestered voir dire.
We affirm the decision of the Court of Appeals.
This was an appeal from a denial of a writ of habeas corpus of Tippit v. State, 285 Ark. 294, 686 S.W.2d 420 (1985), which appellant has attempted to distinguish. The Eighth Circuit held that a promise to a defendant which was kept by the prosecutor, was just one of the circumstances to consider in the totality of circumstances, and there was no discussion of who had initiated the bargain or whether it was a promise or a threat.
See, e.g., United States v. Liddy, 509 F.2d 428 (D.C. Cir. 1974); United States v. Brown, 540 F.2d 364 (8th Cir. 1976). | [
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Robert L. Brown, Justice.
Appellant Stacy Lavelle Bogard, age sixteen at the time, was charged with capital murder for the death by shooting of Jessie Faulkner. Fie was convicted of first-degree murder and sentenced to life imprisonment. On appeal, he urges that the circuit court erred in failing to suppress oral custodial statements made by him because he was unaware that unrecorded statements could be used against him as evidence. This issue has no merit, and we affirm.
On June 6, 1991, Jessie Faulkner called the North Little Rock police and reported that Bogard was harassing people in the neighborhood. Bogard was arrested but released that same night at about 8:00 p.m., and he returned to Faulkner’s area. He accosted Faulkner, and, according to one witness, said that Faulkner had “snitched” on him and then shot at him with a pistol three or four times. One shot hit Faulkner in the head and a second shot struck him in the upper left back. Faulkner was found by the North Little Rock Police dead on the ground with a pocketknife in his hand.
At 4:00 a.m. the following morning, the police arrested Bogard. He was taken to the police station, accompanied by his mother, where he was read his Miranda rights. Both Bogard and his mother initialed each right. In addition, North Little Rock Police Detective William Kovach asked Bogard if he understood his rights, and he said that he did. Bogard and his mother then signed the waiver of rights form. Following that, he agreed to talk to police officers but would not permit the interview to be recorded. Instead, Detective Kovach and a second North Little Rock detective, Donnie Smith, took notes. He told the detectives that he shot Faulkner but did so in self-defense. A month later, Bogard told Dr. Michael J. Simon, supervising forensic psychologist at the State Hospital where he was committed for evaluation, that the state would have a difficult time proving its case because “I didn’t give them no statement.”
Prior to trial, Bogard moved to suppress his oral statements, contending that he did not fully understand what rights he had waived prefatory to making the statements. A hearing was held, and after the hearing the circuit court denied the motion. The trial followed, and Bogard’s oral statements were introduced into evidence. The jury found him guilty of first-degree murder, and he was sentenced to life imprisonment.
The crux of Bogard’s argument is that he believed that unrecorded comments to police officers could not be used against him. This, he contends, is evidence that he did not fully understand the Miranda warnings that what he said would be used against him. Thus, he argues that his waiver was not effective and that his oral statement should have been suppressed. The state contests this and contends that the record is clear that Bogard was fully apprised of his rights and understood them. He chose, however, to submit to a police interview.
Statements made to law enforcement officers during custodial interrogations are admissible only after the state establishes that a defendant voluntarily, knowingly, and intelligently waived his right to counsel. Miranda v. Arizona, 384 U.S. 436 (1966). At issue in the case before us is not whether Bogard’s statements or waiver were involuntarily made, that is, coerced in some form or fashion, but rather whether the waiver was given without full comprehension of the nature of the right abandoned and the consequences of that abandonment. See Moran v. Burbine, 475 U.S. 412 (1986). Whether the defendant knowingly and intelligently waived his rights must be determined by the totality of the circumstances. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). Our standard of review is whether the circuit court’s finding that the waiver of rights was knowingly and intelligently made was clearly against the preponderance of the evidence. Mauppin v. State, supra; Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990).
We are not convinced that Bogard’s stated confusion invalidates a knowing and intelligent waiver of his right to remain silent. Both Bogard and the state rely on the case of Connecticut v. Barrett, 479 U.S. 523 (1987) for their respective positions, and the facts in Barrett do approximate the facts in this appeal. In Barrett, the defendant was arrested for sexual assault and advised of his Miranda rights. He told police officers that he understood his rights and would not give a written statement without counsel being present. He did not object, however, to talking to officers about the incident. In his comments which followed, he admitted complicity in the crime. The trial court allowed the officers to testify about his statements, but the Connecticut Supreme Court reversed on the basis that Barrett had requested counsel and that served as an invocation of that right for all purposes.
The United States Supreme Court reversed the Connecticut Supreme Court and held that Barrett made clear to police that he was willing to talk about the crime in the face of the Miranda warnings. The Court stated: "Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak.” 523 U.S. at 529. The Court then addressed whether the distinction that Barrett drew between oral and written statements exhibited a lack of understanding about his rights. The Court concluded that it did not:
We also reject the contention that the distinction drawn by Barrett between oral and written statements indicates an understanding of the consequences so incomplete that we should deem his limited invocation of the right.to counsel effective for all purposes. This suggestion ignores Barrett’s testimony — and the finding of the trial court not questioned by the Connecticut Supreme Court — that respondent fully understood the Miranda warnings. These warnings, of course, made clear to Barrett that “[i]f you talk to any police officers, anything you say can and will be used against you-in court.” (Citing to record.) The fact that some might find Barrett’s decision illogical is irrelevant, for we have never “embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness.” (Citing authority.)
479 U.S. at 530.
In this case, Bogard was fully apprised of his rights as evidenced by his initials and his mother’s initials on the rights form and his signed waiver form. Police officers also testified that they believed that he understood his rights. Bogard was sixteen years old at the time and had a ninth-grade education. Moreover, he was not a newcomer to the criminal justice system, having been arrested previously and convicted of two burglaries. At some point, he did draw in his own mind a distinction between recorded and unrecorded statements and their effectiveness. This may have been illogical but, as Connecticut v. Barrett, supra, illustrates, the point is irrelevant to the issue of whether Bogard chose to speak freely or not. He clearly did, and his statement was appropriately entered into evidence.
Because life imprisonment is the sentence, Rule 11 (f) of our Supreme Court Rules comes into play. That rule provides that the appellant must abstract all objections decided adversely to him, together with parts of.the record necessary for understanding, and that the Attorney General shall assure that this occurs and brief all points that involve error. We note that both parties failed to comply sufficiently with Rule 11 (f) with regard to motions and objections made by the appellant. The record in this case, however, has been examined in accordance with Rule 11 (f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
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P. A. Hollingsworth, Justice.
The Alcohol Beverage Control Board (hereinafter ABC) denied a request for a dual distribution plan which was filed by the appellees, who are licensed wholesale liquor dealers in Arkansas. The wholesale dealers appealed the agency’s decision to Union County Circuit Court. The trial judge ruled in favor of the appellees, approving the plan. In addition, the judge held that ABC Regulation 2.16 was unconstitutionally vague. The ABC is appealing from that decision. This appeal is before us under Sup. Ct. R. 29 (l)(c) since we are being asked to consider the constitutionality of Regulation 2.16.
Historically, the ABC has required any wholesale dealers who register a brand of controlled beverage for distribution to distribute the beverage on a statewide basis or not at all, and to be the exclusive distributor for that registered brand. The appellees here are asking the ABC to allow them to carve the state up into districts and to allow different distributors to carry the same brands.
The ABC Board in its decision ruled that Arkansas was not ready for dual distributorships at the wholesale liquor level and that additional rules and regulations would be necessary to govern a system such as that proposed by the appellees.
The appellants raise several arguments for reversal, but we only find merit in two and will address these here. We affirm the trial court on all points.
The appellant contends that the decision of the ABC Board should have been upheld by the trial court since it was not arbitrary and capricious nor characterized by an abuse of discretion and that it was error to find Regulation 2.16 unconstitutionally vague.
When we review administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the agency’s decision, or if there was arbitrary and capricious action or an abuse of discretion by the board. Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984).
In a letter opinion, the trial judge found that the board’s action was arbitrary and capricious. In support of this holding, the judge discussed the validity of Regulation 2.16. The regulation provides:
WHOLESALERS TO REGISTER BRANDS OF CONTROLLED BEVERAGES: MANUFACTURERS AND WHOLESALERS NOT TO CHANGE BRANDS WITHOUT APPROVAL OF DIRECTOR. All persons holding permits to wholesale controlled beverages must register with the Director the brands of controlled beverages handled and distributed in this state. No person holding a wholesale permit shall add an additional brand to his stock without first securing the written approval of the Director, and no manufacturer shall transfer a brand from one wholesale distributor to another or create dual distributorships on the same items without first securing the written approval of the Director. In granting or denying such approval, the Director shall notify any wholesaler affected and consider any objections made in writing by the wholesaler. If the Director disapproves the transfer the brand shall remain in the status quo. If at any time the Director is of the opinion that a distiller, rectifier, or importer is not shipping his wholesalers a reasonable amount of merchandise he may withdraw his approval of all their brands.
The trial judge found that the ABC Board based its denial of brand registrations to the appellees on the basis that such brands can be registered only to one distributor in the state under Regulation 2.16. The trial judge further found there is no dispute that the regulations do not define “dual distributor.” To define the term, the parties relied on the “customs of the trade” usuage. The court held:
[Regulations must have some reasonable relationship to the intent and purpose of the law; they must not be so abstract and indefinite as to permit nebulous subjective factors to be determinative. Regulation 2.16 does not meet this test and is invalid in at least two regards as written.
First, there is no time frame or limit set forth in the regulation which regulates timely approval or disapproval of petitions. [This] . . .permits arbitrary action and uncertainty. It allows an entity to indefinitely delay action and this in itself breeds capricious decision. Secondly, resort to the “customs of the trade” is so vague and uncertain that it permits and allows and necessarily fosters arbitrary action.
We agree. In Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), we discussed the standard of review for statutes regulating business, an analogous situation. We said in Davis that a statute was too vague and indefinite when the terms “unjust, unreasonable and excessive” as applied “had no commonly recognized or accepted meaning and the statute contained no provision pointing to what should be deemed a just, reasonable and not excessive price, and there was no accepted and fairly stable commercial standard which could be regarded as impliedly taken up and adopted by the statute.” We stated that “the exaction of obedience or requiring conformity to a standard which is so vague and indefinite amounts to no rule or standard at a'll.”
Furthermore; “[a] statute or ordinance which in effect reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary powers and is an unlawful delegation of legislative powers.” 1 Am Jur 2d Administrative Law § 108 p. 908 (1962).
The action of the board was arbitrary and Regulation 2.16 is unconstitutionally vague. We therefore affirm the trial judge.
Affirmed. | [
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Per Curiam.
Ray Wade has petitioned for habeas corpus and certiorari which we granted in part to bring up the record. The record reflects that petitioner is in custody of the sheriff of Lawrence County under a charge of terroristic threatening in violation of Ark. S tat. Ann. § 41 -1608, having allegedly threatened to kill Helen Wade.
The State moved to commit the petitioner to the State Hospital for observation pursuant to Ark. Stat. Ann. § 43-1304, and when the petitioner refused to waive insanity as a defense, the circuit judge granted the motion. While that commitment was awaiting execution petitioner filed the habeas corpus petition. By amendment filed December 19, 1984, we are told petitioner has been transfered to the Arkansas State Hospital for nervous diseases pursuant to the order. Whether petitioner has been returned to the custody of the sheriff of Lawrence County is not diclosed.
Several lengthy petitions for habeas corpus and certiorari have been filed in this court subsequent to the issuance of the writ of certiorari to bring up the record, none of the state grounds for habeas corpus relief pursuant to Ark. Stat. Ann. § 34-1701 etseq. (Repl. 1962). The petitioner is in custody pursuant to a process which appears regular and valid on its face and the Circuit Court of Lawrence County has jurisdiction to try the petitioner on the charge pending against him. Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961).
Assuming petitioner has been returned to Lawrence County he will doubtless be tried expeditiously or given another opportunity for a release on his own recognizance in accordance with A.R.Cr.P. Rule 5.1. We note that on November 1, 1984, the circuit judge pointedly gave petitioner that opportunity, but declined to release him because he refused to make a single, direct response to the court that he would appear for trial or hearing as directed. Rule 5.1(d) “Release on own recognizance” defines a release without bail as requiring the defendant to promise to appear at all appropriate times before the court. Unless petitioner is willing to give that assurance to the court, he is not entitles to release prior to trial other than by bail.
Petition denied. | [
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Darrell Hickman, Justice.
A writ of certiorari is granted in this case to correct a mistake of law by the trial court. The appellant, John Charles Zoller, originally entered a plea of nolo contendere to a charge of possession of a controlled substance. He later sought to withdraw that plea and enter a plea of not guilty. The trial court refused the request and sentenced Zoller to imprisonment for ten years with five years suspended and a $20,000 fine. Zoller surrendered himself to the Department of Corrections to serve his sentence. At the same time he appealed to us the denial of his motion to withdraw his original plea. In Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984), we reversed the trial court’s decision.
On remand Zoller entered a plea of not guilty. The state requested a new bond arguing that the original appearance bond for $150,000 had been discharged by operation of law, because our opinion in Zoller v. State, supra, simply said the matter was “reversed” and not “reversed and remanded.” The law is clear that an appearance bond once approved remains in effect through appeal, and this includes any appearances on remand. This is stated in A.R.Cr.P. rule 9.2 (e), which reads:
An appearance bond and any security deposit required as a condition of release pursuant to subsection (b) of this rule shall serve to guarantee all subsequent appearances of a defendant on the same charge or on other charges arising out of the same conduct before any court, including appearances relating to appeals and remand. If the defendant is required to appear before a court other than the one ordering release, the order of release together with the appearance bond and any security or deposit shall be transmitted to the court before which the defendant is required to appear.
While our opinion simply stated the matter was “reversed,” the mandate we issued stated the matter was “reversed and remanded.” In Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979), we said:
Where a j udgment (or decree) is reversed for error in the proceedings in the court below and remanded for proceedings according to law and not inconsistent with the opinion of the court, it is always understood that the proceedings in the court below, prior to the fault or error which is ascertained by this court to exist, are in no wise reversed or vacated by the adjudication of the appellate court, but the faultor error adjudicated is the point from which the cause is to progress anew. Nelson v. Hubbard, 13 Ark. 253 (1853).
The trial court gave no reason why Zoller should not have been allowed to remain free on the original appearance bond except that our opinion used only the word “reversed.” Assuming that premise, the original bond was still valid. Any statutes or rules which relate to a bail bond are implicity read into the bail bond contract. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). We have held “that when a bond is required by statute, the bond will be construed as if the terms of the statute had been written into the contract.” Empire Life v. Armorel Planting, 247 Ark. 994, 449 S.W.2d 200 (1970). When a bail bondsman executes a bail bond, he does so with knowledge of and pusuant to the statutes and rules regulating bail bonds.
Since the matter was clearly remanded for a new trial, the trial court erred in requiring a new bond. This in no way implies that a new bond cannot be required or that a bond cannot be raised in an appropriate situation. A.R.Cr.P. Rule 9.2(e) (ii); Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982). Furthermore, our decision is limited to the narrow issue presented, which concerns this one pretrial decision.
Writ granted.
The state alleged that Zoller piloted an airplane loaded with 1,800 pounds of marijuana and six gallons of hashish oil. | [
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Webb Hubbell, Chief Justice.
On March 20, 1980, appellee, Keith Smith Co., Inc., filed a complaint for $95,000.00 against appellant, Miller Mutual Insurance Company, for damages to its chicken houses. The case was set for trial but was twice continued pending the outcome of a test case Southall v. Farm Bureau Mutual Ins. Co., 276 Ark. 58, 632 S.W.2d 420 (1982).
Following our decision in Southall, the complaint was amended to ask for $130,000.00; a few weeks later the complaint was again amended to ask for $112,500.00. Appellant then confessed judgment but denied liability for penalty and attorneys’ fees. The trial court awarded a penalty in the sum of $13,500.00 and attorneys’ fees in the sum of $38,000.00. Appellant appeals alleging that appellee is not entitled to recover the statutory penalty or attorneys’ fees. Appellant also asserts that the attorneys’ fees in this case were excessive and unreasonble. We affirm in part and reverse in part.
Where an insured loss occurs and an insurance company fails to pay the loss within the time specified in the policy, then the insurance company is required to pay, in addition to the loss, a 12% penalty plus reasonable attorneys’ fees. Ark. Stat. Ann. § 66-3238 (Repl. 1980). Since this statute is penal in nature, we strictly construe it. Callum v. Farmers Union Mutual Ins. Co., 256 Ark. 376, 508 S.W.2d 316 (1974). The plaintiff must recover the exact amount claimed in order to collect the penalty and attorneys’ fees. Farm Bureau Ins. Co. v. Paladino, 264 Ark. 311, 571 S.W.2d 86 (1978); Southwestern Ins. Co. v. Camp, 253 Ark. 886, 489 S. W.2d 498 (1973). We have also held that where a plaintiff reduced its claim against an insurance company to the correct amount and the company promptly confessed judgment for that amount, the trial court correctly refused to assess the penalty and attorneys’ fees. Armco Steel Corp. v. Ford Construction Co., 237 Ark. 272, 372 S.W.2d 630 (1963).
In the case at bar, appellee initially sued for $95,000.00. After our decision in Southall v. Farm Bureau, supra, appellee first amended its complaint to $130,000.00, then amended a few weeks later to ask for the correct amount, $112,500.00. Relying on Armco Steel Corp. v. Ford Construction Co., supra, appellant asserts that since appellee reduced its claim to the correct amount, appellant should be able to confess judgment and avoid penalty and attorneys’ fees.
However, appellee had initially sued for $95,000.00, and appellant had two years to pay the claim for less than the correct amount. If the insurer has previously refused to pay the correct amount claimed, the penalty and attorneys’ fees are correctly assessed even though the insurer later confesses judgment. Federal Life & Casualty Co. v. Weyer, 239 Ark. 663, 391 S.W.2d 22 (1965); Continental Casualty Co. v. Vardaman, 232 Ark. 773, 340 S.W.2d 277 (1960); Equitable Life Assurance Society of the U.S. v. Gordy, 228 Ark. 643, 309 S.W.2d 330 (1958). When an insurance company has had a reasonable opportunity to pay a claim for an amount less than or equal to the correct amount due under the policy and the company fails to pay the claim, then the penalty and fees are properly allowed even though the insurer later confesses, judgment. Our holding in Armco Steel is not applicable to the facts in this case because appellant did have a reasonable opportunity to pay an amount less than what was due under the policy.
Appellant also asserts that the attorneys’s fees in this case were excessive and unreasonable. The question of attorneys’ fees was submitted to the trial court, and, after a hearing in which expert testimony and other evidence were presented, the court allowed fees in the amount of $38,000.00. An award of attorneys’ fees is a matter within the sound discretion of the trial court, and, in the absence of abuse, its judgment will be sustained on appeal. Southall v. Farm Bureau Mutual Ins. Co. of Ark., 283 Ark. 335, 676 S.W.2d 228 (1984); Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974).
The computation of allowable attorneys’ fees under the statute is governed by familiar principles: 1) experience and ability of the attorney; 2) time and work required of the attorney; 3) the amount involved in the case and the results obtained; and 4) the fee charged in the locality for similar service. Southall v. Farm Bureau Mutual Ins. Co. of Ark., 283 Ark. 335, 676 S.W.2d 228 (1984). Appellant asserts that the number of hours spent by appellee’s attorneys were excessive and that there was nothing unique about this case. Those arguments were raised at the trial court, and the court made certain specific findings: 1) attorney Jackson spent 52 hours, and the Miller firm spent 110 hours (the court disallowed 30.3 hours); 2) the difficulty and novelty of the question were unique; and 3) the time spent by the attorneys precluded representation of other clients. The trial court also found:
The fee customarily charged in this community for cases of this type is a contingent fee of 1/3. However, the Rummell Rule, 257 Ark. 90 requires that the Court determine an amount that a well prepared attorney would charge to devote sufficient time to prepare the cause. The court finds that $80.00 per hour is a reasonable charge without considering the other factors. . . .
These specific findings of the trial court do not represent an abuse of discretion.
However, the court awarded a fee of $38,000.00. This amount represents an hourly rate of almost $240.00 per hour or three times the customary and reasonable charge in the area. While other factors must certainly be considered by a court in determining what constitutes a reasonable fee, the actual time spent and the customary reasonable charge in the area must play an important role. Franklin Life Insurance Company v. Burgess, 219 Ark. 834, 245 S. W.2d 210 (1952). In light of the trial court’s finding, a premium over and above the customary hourly rate is appropriate, but tripling the hourly rate is excessive. We reverse the attorneys’ fees award of $38,000.00 and approve a fee allowance of $14,904.00, $80.00 per hour plus a 15% premium. We also allow $1,500.00 additional attorney’s fee to appellee’s counsel for services rendered on appeal.
Affirmed in part; reversed in part.
Hollingsworth, J., dissents. | [
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Webb Hubbell, Chief Justice.
Barry Lee Fairchild was tried and convicted of the capital murder of Marjorie Mason and was sentenced to death. For reversal appellant argues: 1) appellant was denied a neutral tribunal; 2) venue should have been in Pulaski County; 3) the Arkansas death penalty is unconstitutional; 4) sixteen photographs of victim should not have been admitted into evidence; and 5) eighteen additional points for reversal. We have carefully reviewed all issues raised, all other objections of appellant which were overruled, all rulings adverse to appellant, and the entire record for errors prejudicial to the rights of appellant. A.R.Cr.P. Rule 36.24 and Rule 11 (f)of the Rules of the Supreme Court. We affirm the conviction and the sentence imposed.
In the evening of February 26, 1983, an Arkansas State Trooper pursued two black males who were traveling at a high rate of speed in a vehicle belonging to Marjorie Mason, but the occupants were able to escape on foot. The following day Marjorie Mason’s body was found behind an abandoned farmhouse in Lonoke County. Ms. Mason had been kidnapped, robbed, raped, and then shot twice in the head. On March 4, 1985, Barry Lee Fairchild was apprehended in Pope County, Arkansas. Appellant was first taken to the local hospital for treatment of a head laceration, then taken to the Pope County sheriff’s department, and finally transported to the Pulaski County jail.
The following day appellant gave a video taped statement implicating himself in the kidnapping, robbery, rape and shooting of Marjorie Mason. Appellant then went with police and sheriff’s authorities on a tour of the crime scene and to his sister’s home where a watch, later identified as belonging to Marjorie Mason, was obtained. Appellant was returned to the Pulaski County jail where he gave a second video taped statement.
Appellant’s first arguments for reversal center around the jury selection process. Appellant complains that a question posed by the prosecutor to three jurors (one struck for cause, one excluded by a peremptory challenge, and one seated) was confusing and was used to exclude blacks from the jury. The prosecutor asked each of the three jurors if she would require the prosecutor to prove more elements than the law requires because of the severity of the death penalty. The first juror answered yes, she might require more evidence of defendant’s guilt. After an attempt at rehabilitation by the trial court, the court found that the juror would still require more proof than was required by law. She was thus properly excused for cause. Allen v. State, 281 Ark. 1, 660 S. W.2d 922 (1983). It is not error for the court to strike for cause persons who cannot carry out the law. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983). As to the juror excused by the use of a peremptory challenge, no explanation is necessary, and no error by the court is demonstrated. Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). As to the third juror, she was seated even though she answered affirmatively the prosecutor’s question, so appellant’s complaint of exclusion cannot apply to this juror.
Appellant also contends that potential jurors were improperly excluded in violation of the Witherspoon rule that a jury culled of all jurors who harbor doubts about capital punishment is “a tribunal organized to return a verdict of death.” Witherspoon v. Illinois, 391 U.S. 510 (1968). In essence appellant is challenging the death qualification of prospective jurors. We clearly rejected this argument in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).
Appellant also argues error in the jury selection process concerning a juror who should have been excused for cause because she told the court she would probably vote with the majority even though she might have reasonable doubt, and a juror who stated he had formed an opinion as to defendant’s guilt. Appellant excused both of these jurors peremptorily. Appellant used all twelve of his peremptory challenges; however, no challenges for cause were made or denied after all his peremptory challenges were used. Therefore, appellant cannot show that he would have struck any juror who actually sat on the trial had he had a peremptory challenge remaining. Appellant failed to demonstrate prejudice since he is unable to show an objectionable juror was forced upon him without his having the privilege of exercising a peremptory challenge. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).
Appellant next argues that venue should have been in Pulaski County, not Lonoke County, and relies on Ark. Stat. Ann. § 43-1417 (Repl. 1977) which provides: “Whenever two [2] or more counties, by the foregoing provision, have jurisdiction of the same offense, the county in which the defendant is first arrested shall proceed to try the offense to the exclusion of the other.” One of the “foregoing provisions” is Ark. Stat. Ann. 43-1416 (Repl. 1977) which confers jurisdiction in a kidnapping to the county where it began, to all counties where it continued, and to the county where it terminated. Since Marjorie Mason was abducted in Pulaski County and then driven to Lonoke County, appellant’s argument might have some merit were appellant tried for capital murder; venue, therefore, was proper where the murder occurred, Lonoke County.
Appellant next argues that the trial court erred in admitting various photographs which appellant claims were inflammatory. The photographs included those of the exposed body of the victim at the crime scene depicting the nature and extent of the wounds and the condition of her clothing which had been torn during the rape. We have held many times that the decision to admit photographs lies within the sound discretion of the trial court and that decision will not be reversed absent a showing of clear abuse of discretion. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). It does not matter that the photographs are cumulative to other evidence. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Even inflammatory photographs are admissible in the sound discretion of the trial judge if they tend to shed light on any issue or are useful to enable the jury to better understand the testimony or to corroborate the testimony. Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980); Williams v. State, 250 Ark. 859, 467 S.W.2d 740 (1971). We have reviewed each of the photographs and have determined that they could have been helpful to the jury in understanding the testimony of the witnesses in describing the scene as they found it after the murder. Although the photographs were somewhat graphic, we find no abuse of discretion.
Appellant next argues that Ark. Stat. Ann. § 41-1501 (Repl. 1977) is unconstitutional as applied in this case because it establishes an affirmative defense which impermissibly shifts the burden of proof to the defendant with respect to an essential element of the offense of capital murder. Ark. Stat. Ann. § 41-1501(2) (Repl. 1977) provides in pertinent part: “It is an affirmative defense to any prosecution under subsection (l)(a) for an offense in which defendant was not the only participant that the defendant did not commit the homicide act or in any way solicit, command, induce, procure, counsel, or aid its commission.” We reviewed the constitutionality of Ark. Stat. Ann. § 41-1501(2) in Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983) where we said that the statute in question does not absolve the state of the duty of proving the elements of capital felony murder beyond a reasonable doubt. The burden on the defendant to prove an affirmative defense does not arise until the state has met its burden of proof as to the elements of the offense. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983). The defendant must then prove an affirmative defense by a preponderance of the evidence. Ark. Stat. Ann. § 41-110 (4) (Repl. 1977).
One of the appellant’s 18 “other” points on appeal is that the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment. This challenge was specifically rejected in Ford v. State, 276 Ark. 98, 102, 633 S.W.2d 3 (1982). However, we must always be willing to review this challenge in light of maturing standards of civilized society. We have previously noted in Rector v. State, supra, that the Arkansas General Assembly, in common with the legislatures in at least two thirds of the other states, reenacted a death penalty statute after the United States Supreme Court struck down all such laws in 1972. We said then that as judges we are under a duty to respect and give effect to the laws made by the people no matter what our personal beliefs might be. Our judicial commission is not a license to read our own reasoned values, however deeply felt, into the Constitution’s clauses and impose them on the people of the State of Arkansas. Thus, after careful constitutional review we conclude that the Arkansas death penalty statute as a matter of law, as opposed to as a matter of personal conscience, does not violate the Eighth Amendment.
We have carefully reviewed appellant’s other 17 points and find that none warrant reversal.
Affirmed.
Hickman, J., not participating.
Purtle and Hollingsworth, JJ., dissent. See dissent in Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). | [
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Per Curiam.
Petitioner, Vernon Dale Travis, by his attorney, Faber D. Jenkins, has filed a motion for a rule on the clerk in which Faber D. Jenkins admits it was his fault that the record was not timely filed.
We find that the attorney’s sworn affidavit admitting fault for failure to timely file the record is good cause to grant the motion.
A copy of this per curiam will be forwarded to the Committee on Professional Conduct. | [
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Per Curiam.
The Court of Appeals rendered a decision in this case on October 3, 1984, and denied the appellee’s petition for rehearing on October 31, 1984. It was not until after the petition for rehearing was denied that a petition for writ of certiorari to review the decision was filed with us on November 9, 1984. The clerk refused to docket the petition because it was not timely, according to a per curiam order dated February 25, 1980. In that per curiam we wanted to make it unquestionably clear that a petition for review must be filed within seventeen days from the date of the decision made by the Court of Appeals. To that end, we amended Rule 29(6) to read: “Petitions for review must be in writing and must be filed within 17 calendar days from the date of the decision, regardless of whether or not a petition is filed with the court of appeals.” This emphasized language was not included in two subsequent per curiams, one issued on December 22, 1980, and another on March 2, 1981.
The petitioner contends that he relied upon our latest per curiam, that our rule was unclear, and therefore, he should not have been denied review. Furthermore, he points out that the compiler of the Arkansas Statutes Annotated omitted the emphasized language.
It was an oversight on our part to omit the emphasized language. It was added, not because the rule was unclear, but simply to make certain there could be no misunderstanding of when a petition of review must be filed.
In fairness to the petitioner, we have considered his original petition on its merits but decline to grant review. By this opinion we amend our rules to include the language which was omitted so that the first sentence of the second paragraph of Rule 29(6) of the Rules of the Supreme Court and Court of Appeals reads:
Petitions for review must be in writing and must be filed within 17 calendar days from the date of the .-decision, regardless of whether or not a petition for rehearing is filed with the Court of Appeals.
Inadvertently our records showed this petition was denied on January 14, 1985, without comment.
Petition denied. | [
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Darrell Hickman, Justice.
This case involves interpretation of Rule 15 of the Arkansas Rules of Civil Procedure. The trial court refused to allow either party to amend their pleadings after a certain date and because of the peculiar facts of the case, we cannot say he abused his discretion. The judgment is affirmed.
The Kays’ house, insured by the appellee, Economy, burned on June 19, 1980, and was totally destroyed. A proper proof of loss was submitted and Economy rejected it because the claim was “excessive, inaccurate, non-supported and not properly detailed.” The Kays filed this suit on the policy claiming policy limits of $65,000 and penalties and attorneys’ fees pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1980). The Kays also asked for punitive damages in the sum of $500,000 for bad faith to pay the claim.
Economy filed an answer generally denying the claim and alleging the policy was obtained through “material misrepresentation” and accusing the Kays of either burning the house or causing it to be burned. The Kays filed interrogatories and requests for admissions which Economy did not answer. In December, 1980, the Kays moved for summary judgment on the claims on the policy and a jury trial on the issue of punitive damages. A hearing was held in January, 1981, on the motion for summary judgment. The hearing was not recorded but referred to later in two orders of the trial court. At the hearing Economy admitted to failing to ánswer the interrogatories and that the defenses set up in its answer were without proof. Economy agreed to confess judgment on the policy. The Kays’ attorney gave Economy additional time to answer the interrogatorries and requests for admission. Two days later Economy filed an amended answer, stating it had tendered the policy amount and interest, but denied that it owed penalties or attorney’s fees. In March, Economy moved to dismiss the claim for punitive damages, arguing that Ark. Stat. Ann. § 66-3238 was an exclusive remedy. In April, the Kays filed an amended complaint alleging, in addition to bad faith, acts of dishonest, malicious, and oppressive conduct. The Kays reduced their original claim from $65,000 to $64,500, which was the policy amount less the deductible. Economy immediately seized on this by confessing judgment to $64,500 and moving that the Keys were only entitled to the policy amounts and were no longer entitled to penalties and attorney’s fees, since they had reduced their claim.
This state of the pleadings and maneuvering resulted in the trial court entering an order on July 8, 1981, that Economy could not take advantage of the Kays’ amended complaint to avoid paying penalties and attorney’s fees, because the understanding of the lawyers at the unrecorded January conference was that there would be no further pleadings filed after that date. The trial court granted the Kays’ claim for the policy amount, penalties and attorneys’ fees, and ruled the case would proceed to jury trial on the issue of punitive damages.
At some point, the plaintiffs realized that they had not made any allegations for compensatory damages in their tort of bad faith claim. They attemped to amend their pleadings to make that claim. Economy resisted the attempt. The trial judge pointed out that he had not allowed Economy to file further pleadings after January, 1981, and, therefore) he would not allow the Kays to amend. He found, however, that the Kays’ original claims supported a claim for punitive damages. During this time, we decided Aetna Cas. & Sur. Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1983), which clearly reiterated recognition of the tort of bad faith and that that tort was not pre-empted by § 66-3238. Economy sent a copy of Aetna to the trial court arguing that since bad faith is a tort, any claim for punitive damages must be supported by a claim for compensatory damages. The Kays’ attorney conceded that to be true and also essentially admitted that he had made no such claim.
The Kays again asked to amend. The trial court, in a letter opinion, stated that both parties agreed that no cause of action for bad faith was stated in the original complaint and that, since he had originally decided there would be no further pleadings by either party after January and had not allowed Economy to attempt to defeat the Kays’ claim for fees and penalties, it would be unfair to allow the Kays to do so to salvage their claim. He entered a judgment on the pleadings and dismissed the complaint.
On appeal we have the single issue of whether the trial court abused his discretion. ARCP Rule 15 (a) governs. It reads:
(a) Amendments. A party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.
The reporter’s note of this rule states:
Section (a) of Rule 15 marks a substantial change from FRCP 15 (a) and is generally in accord with prior Arkansas law. The Committee believed that amendments to pleadings should be allowed in nearly all instances without special permission from the court. The court is, however, given discretion to strike any amendment which would cause prejudice or unduly prolong the disposition of a case. As an alternative to striking an amendment, a continuance could be granted by the trial court. Under prior Arkansas law, trial courts were given broad discretion to permit an amendment to stand. [Cites omitted.] Generally speaking, it is the intent of this rule that amendments to pleadings should be permitted without leave of the court in all instances unless it can be demonstrated that prejudice or delay would result. To this extent, Rule 15 is more liberal than superseded Ark. Stat. Ann. § 27-1160 (Repl. 1962) and is certainly more liberal than the Federal Rule. (Italics supplied.)
In W. Cox and D. Newbern, New Civil Procedure: The Court That Came in From the Code, 33 Ark. L. Rev. 1 (1979), Rule 15 (a) is discussed:
Rule 15 (a) continues the prior policy of Arkansas law permitting liberal amendment of pleadings. If anything, this rule further liberalizes the practice so that a party is free to amend his pleadings at any time, subject only to the requirement that an amendment must not prejudice the opposing party or cause a delay in the proceedings. The trial court is vested with broad discretion to determine whether an amendment should be allowed to stand. Obviously this discretion can be abused, but as noted previously, the intent of this rule is to encourage and permit amendment so the burden of proving an abuse of discretion will weigh the heaviest upon one who moves to strike an amended pleading.
So, we have a rule which encourages amendment of pleadings. However, the trial court is still vested with broad discretion in allowing or denying amendments, and we cannot say the trial court here abused its discretion.
The recited facts reflects the unusual nature of the state of the pleadings and that, with the understanding of the parties, the trial court sought to hold the parties to their existing claims as of January, 1981. The Kays argue that the trial court only meant to close the pleadings with regard to any claim for damages under the contract. However, the trial court clearly stated that the case would have to stand or fall on the claim for punitive damages “as is.” The trial court denied amendments by either party. Certainly, under these circumstances, we cannot say the trial court abused its discretion.
Affirmed.
Hubbell, C.J., not participating. | [
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Steele Hays, Justice.
Appellant was charged with the aggravated robbery of a grocery store in Crossett, Arkansas. At a jury trial, testimony was heard from the admitted accomplice in the robbery and several other witnesses. The appellant, allegedly the gunman, wore a ski mask during the commission of the offense and only the accomplice was able to identify him as the gunman. Appellant was found guilty and sentenced to thirty-five years.
Appellant first argues that a directed verdict should have been granted because of insufficient corroboration of the accomplice’s testimony. A conviction cannot be had on the testimony of an accomplice alone. Ark. Stat. Ann. § 43-2116 provides:
A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.
We have said in applying this statute: “The test of the sufficiency of corroboration of the testimony of an accomplice is whether there is other evidence tending to connect the defendant with the commission of the offense which goes beyond a showing that the crime was committed and the circumstances thereof. The corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime.” Sargent v. State, 272 Ark. 366, 614 S.W.2d 507 (1981); Anderson v. State, 256 Ark. 912, 511 S.W.2d 151 (1974).
Viewing the evidence in the light most favorable to the appellee, we find the corroborating evidence sufficient to sustain a verdict of guilt. The appellant was located six hours after the robbery in a motel about forty miles from Crossett. He had approximately $248 at the time and the store owner had testified that approximately $350 had been taken during the robbery. Two witnesses in the store testified that the gunman was wearing a blue tank top and black pants. When the appellant was arrested shortly after the robbery he had on a blue tank top and a pair of black jeans which were introduced by the state. There was evidence that the gunman and appellant were of a similar build. Witnesses testified the gunman had wrapped bandanas around his left arm and hand. The appellant had two tattoos on his left arm and one on his left wrist, and while there was no testimony as to why the bandanas were worn, it is within the jury’s province to draw any reasonable inferences from all circumstantial as well as direct evidence presented. Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982).
There was additional corroboration of the accomplice’s testimony for the jury to consider. The accomplice stated that just prior to the robbery he and appellant hid in the alley by the store for a few minutes and discussed their plans. A witness who was passing by the store testified his suspicions were aroused when he saw two men lingering in the alley next to the store. He stopped to watch and saw the two carry out the robbery. The accomplice indicated in his testimony that he and appellant wanted to rob the store when the owner was not there and planned the robbery around his absence. Both the owner and the manager who was present during the robbery suggested the owner’s known presence in the store was a deterrent to potential incidents that might occur in the store. The accomplice also testified he had carried a knife with him which he hadn’t used. Although in the store during the robbery he was not initially implicated and asked to go to the bathroom where he disposed of the knife in a trash can. The manager testified the accomplice had gone to the bathroom right after the robbery and the police recovered a large butcher knife in the bathroom trash can. This corroboration, though not on substantive issues, did enhance the credibility of the accomplice’s testimony. If an accomplice is corroborated as to some particular fact or facts, the jury is authorized to infer that he speaks the truth as to all. Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976); Payne v. State, 246 Ark. 430, 438 S.W.2d 462 (1969). There were inconsistencies mother parts of the accomplice’s testimony but he testified he was intoxicated during the commission of the robbery, which the jury may have considered to account for any conflicts, and we have said in any case the credibility of a witness is a matter within the province of the jury; they may accept or reject any or all of a witness’s testimony. Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977).
We think the evidence here meets the requirements of our statute. It tends to connect the appellant with the crime and goes beyond a mere showing the crime was committed and the circumstances thereof.
As his second point, appellant argues that the court erred in refusing to grant a mistrial on the basis of testimony elicited by the prosecution concerning the appellant’s prior record. The prosecutor asked one of the officers, in laying a foundation for questions about the appellant’s tattoos, “You’ve had occasions to book, fill out an arrest on James Bennett, hadn’t you?” A: “Yes, sir, I have.” An objection was raised and a request for a mistrial was made. The request was denied and the judge immediately admonished the jury. The only other reference the appellant objects to is the next answer and question concerning the tattoos, which made reference again to appellant’s record: A: “I haven’t seen any [tattoos].” Q: “Your records indicated where the tattoos are?” A: “Yes, sir.” No objection however was made to this second reference.
The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaing party. A cautionary instruction to the jury can make harmless any prejudice that may occur, and the mistrial will be granted only where any possible prejudice cannot be removed by an admonition to the jury. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). In both Hill, supra and Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982), limited exchanges occurred very similar to the one at issue. In both cases we found that the admonishment to the jury was sufficient to remove any prejudice.
Affirmed.
Hickman, Purtle, and Hollingsworth, JJ., dissent. | [
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Per Curiam.
Inasmuch as the judgment in this case is stamped by the clerk in the upper righthand corner as having been filed on May 21, 1984, but is also stamped by the clerk in the lower righthand corner as having been “Filed & recorded” on June 7, 1984, the trial court is reinvested with jurisdiction to determine when the judgment was in fact filed in the clerk’s office. | [
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Jack Holt, Jr., Chief Justice.
Two separate appeals are presented in this case. One concerns a defendant’s right to testify in his own behalf and the other questions the admissibility of a confession.
Both defendants were convicted of rape stemming from the same incident and each received a sentence of 40 years imprisonment. This appeal from that verdict is before this court under Sup. Ct. R. 29(1 )(b). Because unrelated issues are raised by the two appeals, we will discuss them separately.
Louis Charles Jackson, one of the appellants, argues that the trial court violated his constitutional rights by prejudicially limiting and infringing upon his right to testify in his own defense. The victim testified that an ice pick was held on her by appellant Austin while appellant Jackson raped her. Jackson’s defense was that the victim is a prostitute who consented to the sexual act.
The relevant testimony to his appeal is as follows:
QUESTION:
Now I want you to tell these folks in your own words what happened out there the night you were at Mary — That apartment. . .
ANSWER:
Yes, we went there once well, what she is trying to say is a accident. We was coming from Highland Court late one Friday and we know Mary her sister, you know, the young lady’s sister. All right. And we stopped over to her crib, you know, to see whether her sister at home. . . .We was talking you know, all of us ... And the young lady okay, as far as you know her benefit that she didn’t have no job or nothing like this here and we all got to talking, you know, about how she keeping up her bills and everything to her crib, you know. And her mens, you know, all her mens, you know, give her money. (Objection)
QUESTION:
Louis, just tell us — Don’t tell us about anything that was said about anybody else. Just what you, what happened to you that night out there. All right?
ANSWER:
Okay. I am trying.
QUESTION:
If I stop you you shut up you hear?
ANSWER:
Yeah. Well, okay. Well skip that. Well anyway, you know, we, you know, got to talking like I said .... So Matthew he said he weren’t go — He wanted to talk to the lady about, you know, making some money. Well, in other words I hate to stop but you know what I am saying, you know, he was going to talk to her about some money and everything. And he went in the bedroom and he got to talking to the lady about some money, you know, and she said, well, you know, yeah, because she needed some money and everything .... And so well, he didn’t mess with the lady. He said well, why don’t you just go ahead on and give my stepson [Jackson] some, you know, just like that. . . . I had sex with the girl, you know, and everything and we got ready to leave and the young lady, you know, she come out the house and she started raising all kind of sand about twenty-five dollars. And the next thing we know we were picked up, you know-, for a rape charge, you know. That’s about all the way it was, you know, so in other words I can’t do nothing but just tell it like it was, you know, as far as all this here, you know, stuff about a ice pick the only way I only knowed about that was when I was in jail ’cause her and her sister and another dude like she said they really had took his money and stuff from him a week before this here happened.
COURT:
Approach.
MR. ACHOR:
Judge, I don’t think that is covered by the Statute.
COURT:
That’s not what it is covered by.
PROSECUTOR:
Your Honor, first of all the same objection I have made before.
COURT:
Yes.
PROSECUTOR:
This is absolutely inflammatory, immaterial, irrelevant and besides all that can only be founded on hearsay if it were true.
COURT:
Well, I am going to sustain the objection.
QUESTION:
Did you think she willing to have sex with you;
ANSWER:
Yes, she was willing to have sex. Only thing I can say is she was just trying to make twenty-five dollars and we didn’t give her twenty-five dollars and she just got mad, you know, just as simple as that.
Appellant, Jackson, bases his appeal on the fact that a criminal defendant has a constitutionally protected right to present a defense and to testify in his own defense. The appellant argues that this right supersedes evidentiary rules, such as hearsay, citing two United States Supreme Court cases, Chambers v. Mississippi, 410 U.S. 284 (1973) and Davis v. Alaska 415 U.S. 308 (1974).
For the purposes of this appeal, appellant Jackson is not challenging the first objected to testimony, rather he argues that the testimony about the ice pick was admissible. In support of this argument, he claims that the statement was not hearsay and that its exclusion violated his superior constitutional right to present his defense. These arguments are without merit.
From the record we cannot determine the exact grounds for the objection, nor the grounds for the exclusion of the evidence by the trial court. We will uphold the exclusion, however, even if it was for the wrong reason, if the ruling was correct. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981).
Arkansas’s rape shield law, Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) provides in pertinent part:
In any criminal prosecution under Arkansas Statutes Annotated 41-1803 through 41-1810 . . . opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
Appellant Jackson maintains that the ice pick statement represented the victim’s admission that she had participated in what amounted to a robbery of another man. he abstracted the earlier testimony that “her mens give her money” becauseitwas “essential to an understanding of the next exchange.” Presumably then, the statement about the robbery was also introduced to somehow demonstrate that the victim was a prostitute and therefore consented to the sexual act. If, in fact, this statement was to be used to prove consent, § 41-1810.1 clearly prohibits the use of such testimony for that purpose. If the statement was offered to prove robbery of another person by the victim, it was inadmissible because it was not relevant.
The statutes following § 41-1810.1 set out a procedure whereby a defendant can introduce evidence of a victim’s prior sexual conduct. The evidence is admissible if its relevancy is proved through the procedure set out in the statutes. § 41-1810.2. Under the rules provided, a written motion must be filed by the defendant stating the relevant evidence being offered and the purpose for which the evidence is believed relevant. § 41-1810.2(a). A hearing is held in camera. § 41-1810.2(b). The court then determines if the offered proof is relevant to the fact in issue, and if its probative value outweighs'its inflammatory or prejudicial nature. Id. The defendant or his attorney is subject to sanctions for failure to file such a motion if a willful attempt is made to make any reference to the victim’s prior sexual conduct in the presence of the jury. § 41-1810.4.
Here, the record reflects that no such motion was filed, not only was the proper procedure not followed, there was no proffer of the type of evidence the appellant was trying to present. The failure to proffer evidence so this court can determine if prejudice results from its exclusion precludes review of the evidence on appeal. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); Sterling v. State, 267 Ark. 208, 590 S.W.2d 254(1979).
From the statements made during the trial, the objection was apparently sustained by the trial court as hearsay. The appellant argues that it is not hearsay since it falls within an exception allowing admissions by party opponents if “[t]he statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity.” Unif. R. Evid. 801(d)(2)(i). Here, the statement made by appellant Jackson about the robbery was so unintelligible that, without a further proffer of proof, we cannot determine on review if the statement was in fact that of a party opponent.
The appellant Jackson’s argument that he has a superior constitutional right to present his defense is also without merit. Davis and Chambers, supra, are inapplicable to this situation for a number of reasons. First, the defendants in the two Supreme Court cases were precluded by the trial court’s ruling from pursuing a defense. Here, appellant Jackson offered quite a bit of testimony to the effect that the victim was willing to take twenty-five dollars for sex and that she did not complain of rape until the two appellants failed to pay her. Secondly, in both Davis and Chambers, the defendants attempted, through pretrial proceedings, to introduce the evidence. As we have already pointed out, appellant Jackson failed to follow the precedures set out in § 41-1810.1 et seq.
There was also no guarantee of the reliability of the appellant Jackson’s testimony as was present in Chambers. Since we cannot determine from the record whom the appellant Jackson was quoting, we cannot say the statement was trustworthy.
The trial court correctly excluded the testimony.
The second appellant, Matthew Austin, challenges the voluntariness of his confession. He argues that his confession was improperly admitted because there was insufficient evidence that he knowingly and voluntarily waived his fifth amendment rights.
On appeal, this court makes an independent determination of the voluntariness of a confession, but we do not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The burden is on the state to show that the statement was made voluntarily, freely, and understandably, without hope of reward or fear of punishment. Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979). Conflicts in the testimony as to voluntariness are for the trial court to resolve. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983).
Some of the factors considered in determining the question of voluntariness include youth or age of the accused, lack of education, low intelligence, lack of advice as to constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Perkins v. State, 258 Ark. 201, 523 S.W.2d 191 (1975).
Applying these factors to the appellant, the facts reveal that the appellant is 35; he has had 1!4 years of college education; and he was advised of his constitutional rights at 6:15 p.m. and at 7:30 p.m. he signed a confession.
As to the length of detention, the appellant testified that he was arrested sometime after noon. The detective who interrogated him testified the appellant was brought to the police station at 6:00 p.m. The credibility of the witnesses was for the trial judge to determine, but a seven hour detention, without other factors, is not so long as to raise a question about the voluntariness of the confession. There was no evidence of repeated and prolonged questioning.
The detectives who took the appellant’s statement testified that the appellant was left alone in an interrogation room for one hour and 15 minutes while they questioned the other defendant, Louis Jackson. No questioning took place during that time period.
The appellant does argue that physical punishment was used. He stated during the trial that he was hit over the head with a telephone book by a person he did not see while he was in the interrogation room, and thereby forced to sign the statement confessing to the crime. The detectives who interrogated the appellant testified that they never saw anyone hit the appellant and that no one else was in the room. This conflict was for the trial judge to resolve since he was in a better position to determine the credibility of the witnesses.
The other facts alleged by the appellant were that he had smoked two marij uana cigarettes earlier in the day and was “high” when he made the confession. The officers testified however that he did not appear to be high or intoxicated. We have held that where, as here, the defendant’s testimony and that of the police are in conflict it is for the trial judge to resolve. Lockett v. State, 275 Ark. 338, 629 S.W.2d 302 (1982).
The appellant also argues that even though the detectives advised him of his rights one hour and 15 minutes before he confessed, he is unable to retain information for any length of time and may therefore have forgotten what his constitutional rights were. This argument is without merit.
The appellant’s final contention is that the State failed to call the arresting officers as witnesses in violation of the requirement that the state produce all witnesses involved to prove the voluntariness of the statement. The acts complained of by the appellant took place during interrogation and not during arrest. The fact that the arresting officers did not testify has no bearing on the issues raised in this appeal.
The confession was properly admitted.
Affirmed. | [
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Robert H. Dudley, Justice.
Appellees, Demetria and Cheri Stafford, filed a tort suit against appellant, Gary Ray Bell, to recover damages for injuries suffered when their automobile was struck from behind by a vehicle driven by appellant on June 21, 1981. A jury awarded Demetria Stafford $40,000 and Cheri Stafford $15,000. The sole issue on appeal is whether the trial court erred in admitting some of the medical bills into evidence. We find error and reverse in part. Jurisdiction is in this court under Rule 29(1 )(o).
Demetria and Cheri were initially seen by a family physician, Joe Daugherty, and were hospitalized in Jacksonville. At trial, Dr. Daugherty testified that Demetria’s complaints of neck pain, nausea, double vision and tenderness over the rib area coupled with contusions and a fracture of the nose, and Cheri’s complaints of neck pain and nausea were consistent with the type of wreck which had occurred. He testified that treatment was necessary and referred them to four medical specialists in the Little Rock area. The appellant does not question the ruling of the trial court that the medical expenses incurred by appellees from Dr. Daugherty and the specialists were both reasonable and necessary.
In October, 1982, sixteen months after the accident, the appellees, without being referred, went to a general practitioner in Malvern, Dr. R. H. White. In April, 1983, Dr. White had Demetria enter the Hot Spring Memorial Hospital for a battery of tests. The hospital charged Demetria for an electrocardiogram, electroencephalogram, colon-barium enema, gallbladder-oral-views-spot, upper GI, ultrasound-gallbladder, IVAC Controller, IVAC Set-up, Colon BA enema, Cholecystrography, oral and other items, amounting to $1,537.80. No medical evidence of the necessity of these charges was offered by appellees. The appellant contends that the ruling of the trial court allowing this bill in evidence was an abuse of discretion. The appellant also takes issue with the trial court’s rulings on Demetria’s expenses for the office visits to Dr. White, on Demetria’s expenses for dental repairs, and on Cheri’s expenses for the office visits to Dr. White.
A party seeking to recover medical expenses in a personal injury case has the burden of proving both the reasonableness and necessity of those expenses. However, expert medical testimony is not essential in every case to prove the reasonableness and necessity of medical expenses. Roy v. Atkins, 276 Ark. 586, 637 S.W.2d 598 (1982). The trial judge has some discretion in deciding whether a non-expert witness, usually the injured party, has laid a sufficient foundation to testify about reasonableness and causal relationship. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970). Our decisions recognize a distinction between proof of reasonableness and proof of necessity. We have held that evidence of expense incurred in good faith is some evidence that the charges were reasonable. Blissett v. Frisby, 249 Ark. 235, at 246, 458 S.W.2d 735 (1970). However, evidence of expense incurred alone is not sufficient to show that charges were causally necessary. Yet, the testimony of the injured party alone, in some cases, can provide a sufficient foundation for the introduction of medical expenses incurred. For example, if a litigant suffered a specific injury in an accident and was immediately taken to a hospital emergency room for treatment of only that specific injury, the injured party’s testimony would be sufficient to establish the necessity of the medical expense as a result of the accident. However, expert testimony would normally be required to prove the necessity of the expense when, as here, expenses for hospital tests were incurred many months after the accident, none of the physicians in attendance immediately after the accident referred the litigant either to the admitting doctor or to the hospital, and the expenses on their face do not appear to be related to the accident. In this case neither the admitting physician, Dr. White, nor any other medical expert testified that the hospital tests were related to the accident. Appellee Demetria Stafford did not testify that the electrocardiograms, gallbladder studies or intestinal studies bore a causal relationship to the accident. She testified that she was “. . . throwing up, losing weight and passing out” in the spring of 1983. No foundation was laid to establish a causal relationship between the accident and the hospital expenses. The trial court erred in allowing into evidence the bill from Hot Spring Memorial Hospital to Demetria Stafford in the amount of $1,537.80. Accordingly, we reverse the judgment for Demetria Stafford and remand her case for a new trial.
The appellant also argues that the trial court erred in admitting into evidence a dental bill to Demetria Stafford because the dental work was not proven to be nécessary. Demetria Stafford testified that prior to the accident she had no trouble with her teeth but in the course of the accident her face struck the steering wheel and dislocated some of the caps on her teeth and loosened some of her teeth. She testified that she went to the dentist for repair of the specific injuries. The $1,390.00 dental bill shows that it was to “replace bridge on top right crown.” In this instance, Demetria Stafford’s testimony was sufficient to establish the causal relationship between the accident and the dental bill. The trial judge was correct in admitting the dental bill of Demetria Stafford.
Appellant next contends that the judgment in favor of Cheri Stafford should also be reversed because of erroneous rulings on medical expenses. The appellant specifically argues that the trial court erred in admitting into evidence the bill of Dr. White. Dr. Daugherty testified that immediately after the accident Cheri had pain in the neck and back. He testified that, by the time of trial, she still complained of pain in the back and that she still had “a place on the right side now that’s knotted up in the neck.” Between the initial treatment by Dr. Daugherty and his examination of her just before trial, Cheri saw Dr. White on four occasions. She testified that she went to him because of pain in the neck and back which had continued from the accident. Dr. White’s bills to Cheri are for four office visits. Cheri’s testimony, coupled with Dr. Daugherty’s testimony, was sufficient to establish a causal relationship between the accident and the visits to Dr. White.
Reversed as to Demetria Stafford; affirmed as to Cheri Stafford. | [
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George Rose Smith, Justice.
The appellee, as guardian, obtained a judgment against the appellants_for personal injuries to her minor ward, Dagan Boone. The appellants’ attempted appeal from the judgment must be dismissed, because the notice of appeal, a jurisdictional requirement, was not filed within the time permitted by law.
The judgment was filed in the circuit clerk’s office on September 27,1983. The appellants promptly filed a motion for new trial on October 6. We note in passing that under Rule 4 of the Federal Rules of Appellate Procedure, such a motion in a federal court would have extended the time for filing the notice of appeal until the motion was granted or denied.
That, however, is not and has never been the Arkansas law. Act 555 of 1953 provided for the first time that notice of appeal must be filed within 30 days after the entry of judgment. Such a timely notice has consistently been held to be jurisdictional, so much so that it cannot be waived even by consent of the opposite party. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980); General Box Co. v. Scurlock, 223 Ark. 967, 271 S.W.2d 40 (1954),
In practice, Act 555 proved to be defective, in that the losing party might not be able to file a meritorious motion for new trial and obtain a ruling within the 30 days allowed for the notice of appeal. To remedy that defect the legislature adopted Act 123 of 1963. That act allowed the time for notice of appeal to be extended by the filing of a motion for new trial or other post-judgment motion. The extension of time, however, is not automatic. If the motion cannot be heard within 30 days from its filing, the movant is required within that time to present it to the trial court and obtain a ruling either (1) taking the motion under advisement or (2) setting a definite date for the motion to be heard. Act 123, § 2. If neither of those steps is taken within the 30 days, the motion is deemed to have been finally disposed of at the expiration of the 30 days, and the party must file notice of appeal within ten days. Act 123, § 3.
Act 123 did not expressly require a written record of the trial court’s action in taking the motion under advisement or setting a date for its hearing, but from the outset we put the bar on notice that such a record should be made. In discussing Act 123 in detail in 1966 we pointed out that “to avoid the uncertainties of oral testimony, it is evidently desirable that a docket entry, order, or other written, dated record be made at this point.” St. Louis SW Ry. Co. v. Farrell, 241 Ark. 707, 409 S.W.2d 341 (1966).
That procedure has since become mandatory. We held in Jones v. Benton County Circuit Court, 260 Ark. 893, 545 S.W.2d 621 (1977), that the statute places the duty of presenting the motion for new trial upon the moving party, and where the record does not show that the motion was so presented the trial court’s jurisdiction to grant the motion expires (then with the lapse of the term of court).
The provisions of Act 123 with respect to postconviction motions were carried forward in Rule 4 of the Rules of Appellate Procedure, effective July 1,1979. Paragraph 2 of the Reporter’s Note to that Rule explains the reasons:
Section (b) does not follow the second paragraph of Rule 4 of the Federal Rules of Appellate Procedure. It was believed that the federal rule permits excessive delay with respect to post-judgment motions that might be filed but not acted upon promptly. Consequently, Sections (b), (c), and (d) preserve the procedure that was prescribed by Act 123 of 1963.
In 1980 the Court of Appeals was squarely presented with the question whether there is a mandatory requirement that a written record be made of the trial court’s action in either taking the motion for new trial under advisement or setting a definite date for the motion to be heard. The court held that the Jones case, supra, had made such a record mandatory, so that the right of appeal lapsed if the notice of appeal was not filed within ten days after the expiration of 30 days from the filing of the motion for new trial, where there was no such written record. Jacobs v. Leilabadi, 267 Ark. 1020, 593 S.W.2d 479 (1980). We agreed with that view in Coking Coal v. Arkoma Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983). In dismissing the appeal in that case we said:
The purpose of Rule 4 is to accelerate the appellate process, not to delay it. In the first case construing the statute permitting the time for filing the notice of appeal to be extended by a motion for new trial, this court said that when the trial court extended the 30-day limitation by taking the motion for new trial under advisement, it was desirable, to avoid the uncertainties of oral testimony, that a docket entry or other written dated record be made. [Citing Farrell.] More than two years ago the Court of Appeals held, correctly, that the requirement of a written record has become mandatory. [Citing Jacobs.]
In view of our uniform holdings during the past 18 years, nothing would be accomplished by remanding the case for an inquiry into whether an oral request was made that the trial court take the matter under advisement or set a hearing. In the absence of a written record, the time for filing a notice of appeal expired ten days after the motion for new trial was deemed to have been finally disposed of on November 5.
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George Rose Smith, Justice.
At about 7:30 p.m. on March 25, 1983, two men armed with a shotgun and pistol robbed a grocery store in Pine Bluff. The appellant Rayford and Lester Thompson were charged with aggravated robbery and theft of property. Thompson admitted his guilt and testified for the State at Rayford’s trial. Upon undisputed in-chambers proof of Rayford’s prior convictions the court submitted the issues of guilt or innocence and the enhancement ranges of punishment. The jury found Rayford guilty of both charges and imposed sentences of 30 and 10 years, which the court made consecutive. We discuss the appellant’s three arguments for reversal, none of which have merit, in the order in which they arose at the trial.
First, at a suppression hearing and again at the trial the defense questioned the reliability of the prosecution’s identification of Rayford. Two employees of the store identified Rayford as one of the robbers. Counsel argue that their testimony was unreliable owing to discrepancies in their original descriptions of the robbers and to uncertainties in their selections from photographs. Nevertheless, the witnesses’ positive identification of Rayford in the courtroom certainly “tended” to connect Rayford with the crime and therefore made the accomplice’s testimony a permissible basis for the jury’s verdict. Ark. Stat. Ann. § 43-2116 (Repl. 1977). This case is unlike Prather v. State, 256 Ark. 581, 509 S.W.2d 309 (1974), where the five witnesses who had cashed checks for the defendant were unable to identify him; so the accomplice’s identification was uncorroborated. Here Thompson’s identification was corroborated. He testified he had known Rayford all his life. He described the robbery in detail. The identification of Rayford was amply sufficient.
Second, at the outset the defense announced its readiness for trial, but after the State rested its case counsel made an in-chambers motion for a continuance because of the absence of a material witness. It is now insisted that the trial judge’s denial of a continuance was error. We find no abuse of the court’s wide discretion in the matter, not only for counsel’s lack of diligence but also for the apparent unreliability of the absent witness’s expected testimony.
We hardly need to do more than narrate the proof. On March 5, 1984, the case was set for trial on Monday, May 21. On May 3 counsel obtained a subpoena for the witness, Lavell Robinson, with a Pine Bluff address, but the sheriff was unable to find him, reporting that he had moved and left no forwarding address. At the in-chambers hearing on the motion for continuance, Rayford’s girlfriend, Patricia Mooney, was the only witness to testify in support of the motion. She said that the missing witness, a coast-to-coast truck driver, had returned to Pine Bluff on Wednesday before the trial began oil Monday. On Saturday afternoon Robinson came by Ms. Mooney’s home, but she did not communicate with the sheriff. She said that Robinson telephoned her at 8:00 o’clock on the morning of trial, promising to pick her up, but he did not show up. She again had not sought the sheriff’s assistance and had been unable to find Robinson herself, although he was still in Pine Bluff.
On Friday afternoon, before the trial on Monday, defense counsel had called Judge Williams, who was trying a case in another county, and asked for a continuance. Judge Williams replied that the jury had already been summoned and a continuance would not be granted. Also on Friday afternoon counsel filed an unverified written motion for a continuance, stating that he had been told on May 14 that the sheriff could not find Robinson. The motion alleged that Robinson was expected to return during the weekend of May 25 (after the trial) and could be served. The written notice, which had not been seen by the trial judge when he denied the oral motion during the trial, stated that Robinson would testify that “the Defendant was a passenger in the witness’ cab and was approximately 5 miles from the location of the robbery [no time being specified].” At the in-chambers hearing Ms. Mooney testified that Robinson would testify that on the evening of the robbery he picked up Rayford at 7:00 and was with him until 7:10. At the trial Rayford testified that he himself had been a cab driver, that Robinson had picked him up at 7:00 p.m. and let him out at 7:10 on the evening of the robbery, that he had gambled with others from then until 8:00 o’clock, and that none of the other gamblers would be called to testify. Neither Rayford nor anyone else testified how far he was from the scene of the robbery when Robinson let him out of the cab. Thus, the written motion’s allegation that Rayford had been five miles away at some unspecified time was unsupported even by proffered testimony.
As to diligence, the trial judge rightly pointed out that the defense should have called the sheriff instead of having the defendant’s girlfriend look for Robinson. Moreover, the defense had announced its readiness for trial and did not renew its request for a continuance until the State had rested, when a mistrial and resetting of the case would have been necessary.
As to relevance, the trial judge may consider the probable effect of the testimony of the missing witness. Kelley v. State, 261 Ark. 31, 33, 545 S.W.2d 919 (1977). The State had four eyewitnesses to the robbery, three of whom identified Rayford. Two of them said the robbery was at closing time, which was not specified. Thompson, the accomplice, said that he picked up Rayford between 5:00 and 6:00 p.m., they discussed robbing the store at closing time when there were no customers, and they went to the store between 7:15 and 7:30. They looked over the store and the parking lot for about ten minutes before they went in and robbed it. That would put the robbery at 7:25 at the earliest. The supposed testimony of the cab driver and Rayford’s own testimony supported his alibi only until 15 minutes earlier. The movant had the burden of proof. There was no proffer of testimony to show how Robinson could, 14 months later, have remembered picking up a fellow cab driver at precisely 7:00 p.m. on March 25, 1983. The trial judge had to weigh the State’s strong proof of guilt against the probable effect of Robinson’s testimony at a new trial. The denial of a continuance was not an abuse of the trial judge’s unquestioned discretion in the matter.
Third, it is argued that the court should have given three requested instructions cautioning the jury about the unreliablity of identification testimony. The instructions were unnecessary and strongly slanted in favor of the defense, contrary to our rule that non-AMCI instructions must be impartial and free from argument. AMI Criminal, viii (1982).
Affirmed.
Purtle and Newbern, JJ., dissent. | [
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Jack Holt, Jr., Chief Justice.
The question before the court concerns the granting of a motion for summary judgment. We affirm the trial court.
The appellant, Coy W. Pruitt, and the appellee, Cargill, Inc., entered into a Feeder Pig Production and Hog Feeding Agreement. During the course of the agreement, Pruitt purchased a used water tank. The tank was delivered to the appellant by an employee of Cargill. Subsequently, Cargill filed suit against Pruitt seeking the balance due on a loan. Pruitt filed a counterclaim in which he alleged that Cargill had supplied him with the water tank and that it was defective. Cargill denied that it had supplied the water tank and filed a motion for summary judgment as to the counterclaim. The motion was granted by the trial court. This case is before us under Sup. Ct. R. 29(1 )(m) as it presents a question in the law of products liability.
In support of his claim that Cargill supplied the water tank, Pruitt offered two affidavits. The first, an affidavit by Pruitt, states that an employee of Cargill told him that he needed the water tank and that subsequently, the same employee delivered the water tank to the Pruit farm in a Cargill truck. Pruitt said, “I thought that I was buying the tank from Cargill.” The second affidavit is by an employee of Pruitt’s who stated that he was present when the water tanks were delivered and, he too thought that Pruitt bought the tanks from Cargill.
The appellee supplied nine affidavits of employees and business associates all of which state that Cargill has never engaged in the business of selling or distributing used water tanks. Furthermore, the Cargill employee who delivered the tank stated that he did so as a favor and at Pruitt’s request. The employee stated that he picked the used tank up for Pruitt from a Russellville company.
The trial judge held that,
[T]he basic issue before the Court is whether there is a genuine issue of fact as to whether Cargill, Inc., “supplied” the used tank in the instant case and is, therefore, subject to liability under Ark. Stat. 85-2-318.2____
It appears to the Court that defendant’s argument does not raise a genuine issue of fact. The question is not whether plaintiff appeared to be a “supplier” but whether plaintiff was, in fact, a supplier. There is nothing shown by the pleadings and exhibits that creates an issue of fact on this point, and, therefore, the Court does grant plaintiff’s Motion for Summary Judgment.
Ark. Stat. Ann. § 85-2-318.2 (Supp. 1983) provides in pertinent part:
A supplier of a product is subject to liability in damages for harm to a person or to property if:
(a) the supplier is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product;
Here, there was no proof that Cargill, Inc., was engaged in the business of supplying water tanks. See Lancaster v. Hartzell & Assoc., 54 Or. App. 886, 637 P.2d 150 (1981); Tauber-Arons, Etc. v. Superior Court, Etc., 101 Cal. App. 3d 268, 161 Cal. Rptr. 789 (1980); McKenna v. Art Pearl Works, Inc., 225 Pa. Super. 362, 310 A.2d 677 (1973); Pridgett v. Jackson Iron and Metal Co., 253 So. 2d.837 (1971, Miss.).
Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” AR Civ. P Rule 56(c).
Although affidavits for summary judgment are construed against the moving party, 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. Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980). In Hughes this court found that the respondent’s burden of going forward was not met when the affidavits did not assert the required personal knowledge of facts alleged. The qualification, “as Affiant understands it,” was not found to be a positive statement made on personal knowledge as required by AR Civ. P Rule 56. The same is true here. Cargill’s proof that it is not a supplier of water tanks is prima facie evidence of entitlement to summary judgment. The mere assertion in Pruitt’s affidavit that he “thought” he was buying the tank from Cargill is not a sufficient statement of fact, based on Pruitt’s personal knowledge, that Cargill was a supplier of the product in question. Accordingly, summary judgment is proper.
Affirmed. | [
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Wood, J.
(after stating the facts). The decree of the chancellor is certainly not clearly against the preponderance of the evidence.- Bank of Pine Bluff v. Levi, 90 Ark. 166; Cranford v. Cranford, 85 Ark. 83, and cases cited. On the contrary, the preponderance is with the chancellor’s finding. The law is well established that a deed will not be set aside unless the evidence of mistake is clear, unequivocal and convincing. Marquette Timber Co. v. Chas. T. Abeles Co., 81 Ark. 420; Davenport v. Hudspeth, 81 Ark. 166. There is no such evidence in this record. It was purely a question of fact under the evidence as to whether there was any agreement between the Walkers in the first instance for a partition of the lands between them different from that indicated by the deeds. The deeds were intended, as the Walkers, R. C. and Jas. F. testify, to convey the lands according to a verbal understanding by which the lands had been laid off into lots, and these lots defined by metes and bounds. But there was no written agreement indicating that the lands were to be partitioned according to certain metes and bounds. The deeds themselves are very strong evidence, if not conclusive, that the lands were to be partitioned, not by metes and bounds, but by the legal subdivision shown by the government survey. When the draughtsman was asked to write the deeds, the parties to the deed did not furnish him with the description of the lands according to certain metes and bounds which they say had been designated. On the contrary, they furnished him with the description according to the legal subdivisions. Fie drew the deeds according to the legal subdivisions on government calls furnished by the parties. They gave him no other description. Since section ii was a “full” or large section, it would be very unreasonable to hold that the parties did not know that a partition by metes and bounds without regard to the government calls would not cor respond with those calls, unless by the merest accident. 'The fact, therefore, that they conveyed by the legal subdivisions tends to show that there was no other partition contemplated or agreed upon. The chancellor was clearly warranted in finding that no other partition was made among the Walkers than that indicated by the deeds, and that therefore appellant by his deed from R. C. Walker acquired no title to the land in controversy, and that his possession thereof was unlawful.
No error being found, the decree is affirmed. | [
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MoCueeoch, C. J.
Defendant, Mose Tate, was convicted of hog stealing, and appeals to this- court. He and Willis Tillman, Will Lasky and George Robinson were jointly indicted for the crime, and he was tried separately and convicted. The evidence shows that the parties named killed several pigs owned by one Bannister Tate, and carried them to defendant’s home and converted them to their own use. The pigs were killed in the woods near Bannister Tate’s home. There is no controversy about the fact of these parties killing and carrying away the pigs; but defendant contends that he owned them. The evidence was conflicting on this issue, but it was sufficient to sustain the finding of the jury that Bannister Tate owned the hogs, and that these parties killed them with the knowledge that they did not belong to defendant Mose Tate and with the felonious intent to deprive the owner of his property.
Aside from the question as to the sufficiency of the evidence raised in the motion for new trial, the only assignment of error is as to the ruling of the court in permitting witness Kelly in rebuttal to testify concerning a conversation between Willis Tillman, some time after the pigs were stolen, and Will Durden, a State’s witness, who was nearby in the woods and saw these parties shoot the pigs. Witness Kelly testified that Will Durden asked Tillman why they ran off when they (Durden and one Golden) fired a gun, and that Tillman replied: “We heard some turkeys in the woods, and thought that we would go down there and see if we could kill one.” The foundation for the contradiction of Tillman was properly laid. He was asked while on the witness stand if he had not made that statement to Will Durden, and denied that he had done so. He was accused of this crime in the same indictment, and was a witness in behalf of the defendant. He gave a contradictory account of the conduct of the parties immediately after the hogs were killed, by saying that they put the pigs in sacks and rode over to defendant Mose Tate’s home. This statement made to Durden gives another account as to what they did, and was’admissible for the purpose of impeaching the credibility of Tillman as a witness. It is not an attempt to contradict the witness on a collateral matter, as the conduct of these parties immediately after shooting the pigs, when they discovered Durden and Golden in the woods, was under investigation for the purpose of ascertaining the intent with which they killed the pigs — whether they killed them in good faith, believing them to be the property of defendant Mose Tate, or whether they did so with the criminal intent to deprive the true owner of his property.
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Fraurnthar, J.
The plaintiff below, Frank L. Johnston, instituted this suit against the defendant, J. C. Claypool, seeking to recover upon a note given for the balance of the purchase money of certain land. The defendant admitted the purchase of the land and the execution of the note, but alleged that the plaintiff had fraudulently induced him to purchase the land by falsely representing that at the time of the purchase there were 2,500 healthy bearing apple trees upon the land. He sought a recoupment by reason of the false representations or a rescission of the contract of sale. Upon a trial of the cause below the chancery court found “that the defendant is entitled to recoup in this action against the plaintiff the value of 1,300 bearing apple trees from 4 to 6 years old; that the testimony as to the value of said trees is insufficient for the court to find their value;” and it did order and decree “that the issues as to the deception as to the amount of trees are with the defendant, and that this cause be continued until the next term’ of this court, and that either party is permitted to take testimony upon the value of said trees before the clerk, who is made master for the purpose, and when such testimony shall be taken the master will make report to the next term of this court, to which this cause is continued.”
At the following term of the court the master filed a report, in which he stated that he had taken the testimony of ten witnesses, which was reduced to writing and filed. He further reported that the witnesses had experience in fruit culture, and that a majority of the witnesses who testified at the instance of the defendant fixed the value of the trees at one dollar each, and that a majority of the witnesses who testified at the instance of the plaintiff fixed such value at twenty-five cents each; and, “relying wholly upon the testimony, I find the value of said 1,300 apple trees to be fifty cents each, making a total of $650.” Thereafter a motion was made to quash the depositions of certain witnesses on the ground that notice of the taking therof had not been given, .and to direct the master to take further testimony. This motion was sustained by the court. At the following term the master reported that he had taken the depositions of from 20 to 30 witnesses, which he filed. He also reported that he “would value 4 to 6 year old apple trees of all the different varieties and classes generally, diseased and otherwise, on the mountain in the vicinity of the Claypool place at 50 cents each;” that this was his former report. But that he found that the “testimony of the defendant’s witnesses were taken as to the value of healthy bearing six-year old apple trees,” whereas the judgment of the court provided that the defendant was entitled to recoup “the value of 1,300 bearing apple trees from 4 to 6 years old;” and that, taking the judgment of the court as a basis and considering the testimony of all the witnesses, he now finds the value of the trees to be 75 cents each, or $975, for the 1,300 trees.
Exceptions were filed by the plaintiff to this latter report, and these exceptions were by the court sustained. The court thereupon found “the fair and equitable value of bearing apple trees 4 to 6 years old to be 50 cents each, and that defendant is entitled to recoup $650 for the value of the 1,300 trees; and the court rendered a decree in accordance with that finding From this decree the defendant prosecutes this appeal.
The only question involved in this appeal is the value of the 1,300 trees and the action of the chancery court in finding that value. That court has the power within its sound discretion to appoint a master for the purpose of assisting it in the proceedings before it, as for example to take testimony or to state accounts, etc., and this power is also given it by statute. 14 iCye. 435; Kirby’s Digest, § 633.
The master derives his authority from the order thus appointing him, and he has no authority other than that conferred upon him by the court, and should make no inquiry or finding beyond the matters that are expressly referred to him. The master is the representative of' the court in regard to the matter thus referred to him, and is wholly subject to the court’s control, and should follow its orders. 17 Ency. of Pleading & Practice, 1020; 16 Cyc. 440; Kimberly v. Arms, 129 U. S. 512; 17 Ency. Pleadings & Practice, 1035; Young v. Rose, 80 Ark. 513.
In this case the clerk was appointed master for the purpose of talcing testimony as to the value of said trees and to report that evidence. The order did not direct him to determine the facts as to the issue or to report his determination of the value of the trees. In so far, therefore, as he made a report as to his finding of the value of the trees, he took an action not conferred upon him by the order. The court could have so directed him if it had seen fit to do so ; and, while the court did not strike such finding from the report, but even considered it, nevertheless it did not make an order directing such finding.
The court has the power to appoint a master upon its own motion; or it can at the request of and by the consent of the parties refer matters to a master for his finding. If such appointment is made at the request of and by the consent of the parties with specific directions for a report of findings, then the report of such master as to his findings of fact has the same force and efficacy as the verdict of a jury. But that is only when the report is made by a consent referee or master. Greenhaw v. Combs, 74 Ark. 336; Paepcke-Licht Lumber Co. v. Collins, 85 Ark. 413.
As is said in the case of Davis v. Schwartz, 155 U. S. 631, “a distinction is drawn between the findings of a master under the usual order to take testimony and his findings when the case is referred to him by consent of parties, as in this case. While it was held that the court could not of its motion, or upon the request of one party, abdicate its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers, yet, where the parties select and agree upon a special tribunal for the settlement of their controversy, there it no reason why the decision of such tribunal with respect to the facts should be treated as of less weight than that of the court itself.”
But where the master is appointed by the court upon its own motion, as is said in the case of Kimberly v. Arms, 129 U. S. 512: “The information which he may communicate by his findings in such cases upon the evidence presented to him is merely advisory to the court, which it may accept and act upon or disregard in whole or in part, according to its own judgment as to the weight of the evidence.” When the court of its own motion deems it fit or necessary to refer to a master any matter for the purpose of aiding or facilitating the court in the proceedings incidental to the cause, it is the duty of the court to review the findings of such master. The findings of the master do not become effective 'until they are approved by the court. In regard to the report of a master, it is provided by section 6337 of Kirby’s Digest- that “the report shall stand good, except such parts as are excepted to, unless it shall appear on the face of the report or from the evidence in the cause that it is erroneous.” In such case it is not only the province but the duty of the court to examine the report and evidence and to pass its own judgment thereon. The findings of the master are highly persuasive, and should not be lightly disregarded. 17 Enc. Pleadings & Practice, 1054.
But where in the 'opinion of the court the evidence is not sufficient to warrant the findings made by the master thus appointed, the court will not sustain or approve them, but may take such action therewith as it may deem in its own sound discretion to be right, subject to a review upon appeal if that discretion is- abused.
In this case we cannot say that the court has abused its discretion in refusing to confirm the second report of the master as to his findings of value, even if it should be held that the master had authority to make such findings.
The master made two reports. In his first report he made a finding that the value of each tree was fifty cents, and seems to have placed that value on “4 to 6 year old apple trees of all the different varieties or classes generally, diseased or otherwise.” In his second report he says that he arrived, at the above value in the light of testimony of witnesses on the part of the defendant as to the value of “healthy, bearing six-year old apple trees,” whereas the order of the court only directed that testimony should be taken as to the value of “bearing apple trees from 4 to 6 years old.” In his first report he took into consideration, as a requisite of the character of the tree, that it should be healthy, and in his second report he did not take this requisite into consideration; and yet by his second report he values the trees higher than by his first report. The court had before it two findings as to the value of the trees made by the master, and we cannot say that the chancellor under these circumstances was not justified in taking the value as found in the first report rather than in the second. Under these circumstances, therefore, we do not think that the court did lightly disregard the second report of the master. Nor can we say that the weight of the evidence is against the finding of the chancellor.
A number of witnesses testified as to the value of the trees, and there is quite a variance in the values placed thereon by them. But after an examination of their testimony we cannot say that the finding of the chancellor is not sustained by the weight of the evidence. And the finding of facts by the chancellor will be sustained on appeal if it is not against the preponderance of the evidence. Whitehead v. Henderson, 67 Ark. 200; Brown v. Wyandotte & S. E. Ry. Co., 68 Ark. 134; Greer v. Fontaine, 71 Ark. 605; Sulek v. McWilliams, 72 Ark. 67; Hinkle v. Broadwater, 73 Ark. 489; Norman v. Pugh, 75 Ark. 52.
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Hart, J.
(after stating the facts). Counsel for appellant urge that upon the undisputed evidence the court should have directed a verdict for appellant. They rely for a reversal on the clause in the contract with the initial carrier limiting the liability as to value in case of loss. They contend that the stipulations restricting the liability in case of loss were made for their benefit as well as for the benefit of the initial carrier, and base their contention on our decisions to that effect in the cases of St. Louis, I. M. & S. Ry. Co. v. Weakley, 50 Ark. 406; St. Louis & S. F. Rd. Co. v. Burgin, 83 Ark. 502, and ’cases cited. But in making their contention they have not taken into consideration the effect of the Hepburn amendment to the Interstate Commerce Act, which became effective on June 29, 1906, a date prior to the time the contract in question was made. That part of the Hepburn Act which applies to the present case is contained in section 20, which reads as follows:
“That any common carrier, railroad or transportation company, receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing laws.”
“That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage or injury as it may be required to pay the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”
The undisputed evidence shows that the initial carrier received the property for transportation from a point in one State to a point in another State, and' the presumption, in the absence of evidence to the contrary, was, as will be seen from our decisions hereinafter referred to, that the goods were lost through the negligence of appellant, the last carrier.
The section of the Hepburn Act above quoted makes the carrier liable “for any loss, damage or injury to such property caused by it, * * * and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed.”
The express terms of the act make the carrier liable for any loss caused by it, and provide that no contract shall exempt it from the liability imposed. It is manifest that the act renders invalid all stipulations designed to limit liability for losses caused by the carrier. Public policy forbids that a public carrier should by contract exempt itself from the consequences of its own negligence. Por the same reason a statute may prohibit it from making stipulations in a contract which provide for such partial exemption. If the initial carrier is prohibited from making a contract limiting its own liability, it is obvious that it should nor make a contract limiting the liability of its connecting carriers; for the section of the Hepburn Act under discussion provides that the carrier issuing the bill of lading may recover from the connecting carrier on whose line the loss occurs the amount of the loss it may be required to pay the owner.
“The act expressly invalidates all stipulations designed to limit liability for losses caused by the carrier.” In the matter of Released Rates, 13 Interstate Commerce Reports, 550.
In the case of St. Louis S. W. Ry. Co. v. Grayson, 89 Ark. 154, we held that a restriction of the liability of a_ carrier to loss upon, its own line is in violation of the Hepburn Act, making the initial carrier liable for damage to an interstate shipment, whether it occurs on its own line or on its connecting lines, and in support of the decision cited the case of Smeltzer v. St. Louis & S. F. Rd. Co., 158 Fed. 649. The validity of this clause of the Hepburn Act has also bepn sustained by the Court of Appeals of the State of Georgia in the case of Southern Pacific Company v. Crenshaw Brothers, 5 Ga. App. 675.
Therefore, we hold that the contract in question was prohibited by the terms of the Hepburn Act, and is invalid in so far as it attempts to limit the liability of the carrier in case of loss caused by it.
This case is distinguished from the case of St. Louis, I. M. & S. Ry. Co. v. Furlow, 89 Ark. 404, and St. Louis & S. F. Rd. Co. v. Keller, 90 Ark. 308, where we held that a stipulation in a contract for an interstate shipment which required notice in writing of the loss to be given within a specified time, if reasonable, was not in conflict with the provisions of the Hepburn Act. The stipulation in question there did not exempt the carrier from any liability imposed'by the Hepburn Act. They were mostly rules or regulations adopted by the carrier for the purpose of securing it from fraud and imposition.
Having held the contract of shipment invalid in so far as it restricted the liability of the carrier as to the value of the goods shipped in case of loss because such restriction was in violation of the provisions of the Hepburn Act, the cause stands as if the Chicago, Rock Island & Pacific Railroad Company had accepted the goods for shipment from Lawton, Oklahoma, to Gentry, Arkansas, and the appellant was the last carrier of the goods.
“Where goods are shipped over connecting lines of carriers on a through bill of lading, and on reaching their destination a box is missing, in an action therefor against the last carrier the burden of proof is on it to show that the loss did not occur on its line.” St. Louis S. W. Ry. Co. v. Bird-well, 72 Ark. 502. To the same effect see: Kansas City So. Ry. Co. v. Embry, 76 Ark. 589; Midland Valley Rd. Co. v. Hale, 86 Ark. 483.
In this case the undisputed evidence shows that the goods were delivered to the initial carrier, and there is nothing to rebut the presumption that they were received by appellant, the last carrier, and lost through its negligence. Hence, under the undisputed evidence as disclosed by the record, appellant was liable for the amount recovered.
The judgment being right upon the undisputed testimony, no prejudice could have resulted to apellant from any instruction given by the court. St. Louis S. W. Ry. Co. v. Grayson, supra.
Therefore it will not be necessary to discuss the correctness of the instructions given by the court, and the judgment will stand affirmed. | [
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Wood, J.,
(after stating the facts.) First. The proof showed that the Post-Dispatch Publishing Company was a corporation having a capital stock of $3,000 issued in shares of $25 each. John H. Page finally became the owner of all except sixteen shares, and he transferred all of his shares except one to H. M. Jacoway. Jacoway became the owner of 104 shares of the stock of the nominal value of $2,600. Jacoway sold all of his stock to appellant for $2,750. Two thousand of this was furnished by appellee. JacoWay had a mortgage to secure him for the balance of the purchase money, but there is an agreement in the record between him and appellee to the effect that appellee’s mortgage should have precedence over his. Appellant testified “that it was his understanding that Jacoway owned the Post-Dispatch, and that Jacoway sold it to him; that the only evidence of the transaction was the note and mortgage; that there was no written transfer of the' stock; that he had several times demanded the stock of Jacoway, and he stated that he did not have it; that the stock certificates and books were lost; that Jacoway may have stated that he owned $2,600 in it, would not say that he did not; that at the time Jacoway sold him the Post-Dispatch he did not tell him anything about there being other stock; that he (appellant) may have had knowledge of that before, may have known that there was $3,000 of stock, and, of course, that there was $400 more of stock outstanding.” The finding of the court that appellant was the owner of 104 shares of stock in the Post-Dispatch Publishing Company was amply sustained by this evidence. Appellant was put in possession of the plant, and, whether he supposed that he owned the whole plant or the entire capital stock (which carried the right to the corpus) or not, it is evident that he intended by the note and mortgage to transfer to appellee the entire interest he had purchased from Jacoway, to secure appellee for the money he had advanced to appellant to enable the latter to make the purchase. It is also true that the only interest he acquired from Jacoway was the 104 shares of stock, for that was all the interest Jacoway had. This evidence, we think, is ample to support the finding of fact by the court that appellant “transferred his shares of stock for value to appellee, and undertook to incumber same with a mortgage on the physical property of the Post-Dispatch Publishing Company.”
The court was also correct in holding upon these findings of fact that the transaction constituted an equitable mortgage in favor of appéllee on the shares of stock or interest that appellant owned. It is clear that both parties' intended that the mortgage should cover appellant’s interest, and the court properly construed and enforced the mortgage accordingly.
Second. Section 6011 of Kirby’s Digest provides that the court may determine any controversy between parties before it when it can be done without prejudice to the rights of others, or by saving their rights. It also provides that when a determination of the controversy between the parties before the court can not be made without the presence of other parties the court must order them to-be brought in. “The obvious intention of the statute,” says the court in Smith v. Moore, 49 Ark. 102, “is to require all persons to be made parties to an action who will be necessarily and materially affected by its result, and to forbid the court from determining any controversy between the parties before it where it cannot be done without prejudice to the rights of others or by saving their rights.”
There were no other mortgagees of this stock except Jacoway, and he acknowledged appellee’s superior rights. His agreement in the record shows that he did not question the transfer to appellee.
Page was a witness, and his evidence was such as to warrant the chancellor in finding that he had no interest. The interest of the few outstanding small stockholders could not possibly have been affected by the transfer of appellant’s shares of stock, and the corporate entity could not have been in any manner affected by the transfer and by the sale of the stock under the mortgage. Appellee was in no wise concerned with any grievance that appellant claimed to have against Jacoway. No one who was in any wise connected with the corporation was affected by the controversy except appellant and appellee, and appellant wás in no position to ask for a postponement of the proceedings. The court of chancery had plenary power to protect the purchaser of the stock at the sale ordered and to see that he secured a correct transfer on the books of the corporation and a- perfect legal title. No mere irregularities in the transfer of stock can defeat the rights of the purchaser thereof. Helliwell on Stock and Stockholders, § 159. See Home Stock Ins. Co. v. Sherwood, 72 Mo. 461; Rio Grande Cattle Co. v. Burns, 17 S. W. 1043; 26 Am. & Eng. Ency. Law (2d Ed.) 876.
There is therefore no merit in appellant’s contention that bidder s would be deterred and the stock sacrificed unless the parties named were brought in. The court did not err in overruling the motion to have others made parties. _The decree is in all things correct, and is affirmed.
Hart, J., not participating. | [
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McCurrocii, C. J.
Antoni Czarnecki instituted an action against the Bolen-Darnell Coal Company to recover alleged damages to his real property, situated in the town of Hartford, Sebastian County, Ark. The owners of other adjacent real estate instituted similar actions against the same defendant, and the cases were consolidated and tried together. When the several plaintiffs had introduced their evidence, the court gave a peremptory instruction in favor of the defendant, and the plaintiffs have appealed.
The facts set forth in the complaint, and which the evidence tended to prove, are substantially as follows: The defendant owns and operates a coal mine at Hartford, Ark. It opened the mine and began operations in January, 1902. The plaintiffs own houses and lots nearby, some of which 'are occupied by them as their homes, and some are rented out to tenants. The defendant, in opening and operating the mine, removed the waste product, including dirt, shale, slate, slack coal, sulphur and other waste substances, and piled it near by, thus forming an enormous dump pile which, at the time of the action, was estimated to contain a thousand carloads. The waste product is hauled out of the mine in cars and dumped, and as the pile grows the tracks are extended. This method of removing the waste and dumping it near the mine is shown to be customary in operating coal mines.
When the dump pile was of small proportions, say about, fifty carloads, it became ignited and continued to burn as the size of it was increased by the daily additions of the waste products. At the time of the trial, it had been burning about three years, and the testimony tended to prove that the burning of the waste caused quantities of smoke and sulphur fumes and other noxious vapors and gases to arise constantly from the pile, and, being carried by the wind, to render the adjacent houses uninhabitable, and to make it dangerous to health to live therein; also,-that the burning of the dump-pile caused quantities of sulphur, alkali, salts and other substances to be separated from the waste product and to become soluble in water; and that rains falling upon the dump carried said substances in solution upon the .plaintiff’s property, ruining the wells, destroying vegetation, shrubbery and shade trees.' The premises of the plaintiffs are situated near this burning dump-pile, and it is claimed thait they were damaged in this way.
Did this state of the pleadings and evidence make a case for the jury, or did the court correctly give a peremptory instruction for the defendant? If the defendant has created and maintained either a public .or private nuisance, and the plaintiffs have suffered thereby in the use or enjoyment of their property, the remedy at law for the recovery of damages is complete.
“Damages,” says Mr. Joyce, “to the special injury of the plaintiff may be recovered where they are occasioned by an act which is indictable as a public nuisance. And there may be a recovery, in an action to recover damages for a nuisance, for inconvenience and discomfort suffered by the plaintiff and which materially impaired the comfortable and healthful enjoyment of his property by himself and family.” 3 Joyce on Damages, § 2151.
“A nuisance may be both public and private in its character ; in so far as it is public, the person who suffers a peculiar damage therefrom has a right of action. There are three things which one who sues on account of a public nuisance must show, in addition to the existence thereof, before he can recover: 1. A par ticular, or, more exactly speaking, a peculiar, injury to himself beyond that which is suffered by the rest of the public. 2. The injury to him must, according to some courts, be direct, and not merely consequential. 3. It must be of a substantial character, not fleeting or evanescent. One who has sustained damage peculiar to himself from a common nuisance has a cause of action against the person creating or maintaining it, although a like injury has been sustained by numerous other persons.” 4 Sutherland on Damages, § 1058; Fisher v Zumwalt, 128 Cal. 493.
This court,'in Durfey v. Thalheimer, 85 Ark. 544, adopted ■the rule, which is undoubtedly in accord with justice, and which seems to be approved by the large majority of adjudged cases, that “it is the duty of every one to so use his property as hot to injure that of another.” “The maxim that one should enjoy or use his own property so as not to injure that of another, or the rights of another, is a principle of extensive application in the law of nuisance. It is a sound as well as ancient maxim of the law. It is an established rule as old as the common law itself, and is supported by the soundest wisdom. It may be extended in its meaning to the rule that one should not so use his property as to work harm or annoyance to another or use it in such manner as to infringe upon the rights of others.” Joyce on the Law of Nuisances, § 27.
In the opinion in Durfey v. Thalheimer, supra, Judge Battle quoted with approval the following statement of the law from the New York Court of Appeals in Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18: “While every person has exclusive dominion over his own property, and may subject it to such uses as will subserve his wishes and private interests, he is bound to have respect and regard for his neighbor’s rights. The maxim ‘Sic utere tuo ut alienum non laedas’ limits his powers. He must make a reasonable use of his property, and a reasonable use can never be construed to include those uses which produce destructive vapors and noxious smells, and result in-material injury to the property and to the comfort of the existence of those who dwell in the neighborhood. The reports are filled with cases where this doctrine has been applied, and it may be confidently asserted that no authority can be produced, holding that negligence is essential to establish a cause of action for injuries of such a character.”
According to the principles thus announced, and under the testimony adduced at the trial below, the plaintiffs clearly had the right to have their case submitted to the jury, and an award of damages would have been justified. The burning dump-pile constituted a nuisance- — at least the jury might have so found — and its continued maintenance was a sufficient ground for the recovery of damages.
It is argued that a distinction should be made as to a coal mine, because of the fact that it is operated at a fixed place and cannot be moved like manufacturing plants. Another way of stating this recognized distinction is that in' the operation of a coal mine the material is not brought to or accumulated on the land, like a manufacturing plant, but that it is found and utilized there. Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126; Robb v. Carnegie Bros. & Co., 145 Pa. St. 324.
This distinction is doubtless a sound one as to things which are reasonably essential to the proper operation of the mine. Now, the evidence in this case shows that it is customary in the operation of mines to dump the waste products near the entrance to the mine; but it does not appear that it is either customary 01-necessary to burn the waste, or that the fire could not have been extinguished. The evidence in this case shows that the pile was comparatively small when it became ignited, but it burned steadily for more than three years because of the fact that the waste product containing inflammable matter had been daily added to it until the pile has grown to immense proportions. The evidence does not show precisely how the pile became ignited, but it was shown that it is customary to throw the ashes from -the boiler on the pile, and it may have become ignited in this way.
Instead of taking the case from the jury by a peremptory instruction, the court should have submitted it under proper instructions, setting forth the law applicable to the case.
Mr. Joyce lays down the following rule as to the measure of damages in such cases: “Where a nuisance causes a permanent injury to property, the measure of damages will be the depreciation in the value of the property, that is, the difference between its value before and after the injury. If, however, the injury is not a permanent one, but only temporary or removable, the measure of damages will then be the depreciation in the rental value of the property during the time of its maintenance or up to the time of trial.” 3 Joyce on Damages, § 2150. In view of another trial we call attention to this rule.
For the error of the court in giving the peremptory instruction, the judgment is reversed, and the cause is remanded for new trial. | [
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Hart, J.
This is an action on contract brought by W. W. Oliver against F. W. Hurley and J. W. Ross, doing business under the firm name of Hurley & Ross, to recover damages for profits which he alleges he was prevented from earning by the defendants’ breach of the following contract:
“This agreement, made this eighth day of February 1907, by and between Hurley & Ross, of Brinkley, Monroe County, Ark., and W. W. Oliver, also of Brinkley, Monroe County, Arkansas.
“Witnesseth that, in consideration of the sum of $2.50 per cubic cord, the said Oliver agrees to saw, cull, split, sap and stack on yard oak heading; said work to be done in first-class manner in every respect, same as is customary at Ross’ factory, and as Hurley & Ross may from time to time direct. The said Hurley & Ross agree to furnish the machinery to do said work. It is hereby understood that the said Oliver is to purchase said machinery from Hurley & Ross at its cost price, including freight and expenses of getting saws in place to saw by allowing 50 cents per cord to be credited every two weeks on the purchase of said machinery. Hurley & Ross agree to furnish the money every two weeks to pay off said Oliver’s men from the amount due said Oliver in excess of the 50 cents per cord credited on purchase price of the machinery, as hereinbefore agreed. Hurley & Ross agree to furnish a man to look after timber, each party to this contract to pay one half of this timberman’s wages. Said Oliver agrees to keep said machinery in good repair, excepting ordinary wear and tear, and to furnish all supplies. This contract to be effective during one year beginning with this date. Now, if the said Oliver does not faithfully perform his part of within contract, it is agreed he will forfeit to Hurley & Ross what payments may have been made on said machinery at the time of said failure, and that the machinery is the property of said Hurley & Ross until fully paid for by said Oliver in the manner as agreed above.
“Hurley & Ross, pr. F. W. Hurley.
“W. W. Oliver.”
“Fitch Jones, witness.”
Defendants admitted making the contract, but denied having committed a breach thereof, and denied that plaintiff could have made any profit therefrom. Among other defenses they interposed the following, which is called paragraph 6th:
“Defendants state that plaintiff, after entering into said contract, rendered himself incapable of the duties resting upon him by its terms by becoming intoxicated and continuing so on intoxicating liquors, his condition being such that a reasonable, prudent person would not entrust one in such condition with control and management of his property.”
The facts, briefly stated, are as follows: Hurley & Ross are manufacturers of lumber at Brinkley, in Monroe County, Arkansas. Oliver had been engaged as a sawyer of tight barrel heading by Hurley & Ross and their precedecessors in business for a period of 22 years. Hurley & Ross made an examination of the oak timber supply near Penter’s Bluff in Independence County, Arkansas, and, wishing to obtain this timber and have it sawed into heading, made the contract which is the foundation of this action. Both Oliver and Hurley & Ross believed the mill could be operated without a line shaft, and the mill was equipped accordingly. After a trial, this was found to be impracticable, and the line shaft, pulleys and belts were ordered and directed to be shipped to Penter’s Bluff to be placed on the mill. After the line shaft and pulleys had arrived and were put in their proper place for the operation of the mill, and about the time the belt arrived, but before it had been attached to the mill, Hurley & Ross, over the objections of Oliver, took the mill out and moVed it away. They claim that they did this on account of the continued intoxication of Oliver. They say he became and continued intoxicated to such an extent as to render it unsafe and impracticable to leave him in charge of the mill. Oliver says they moved the mill because they found the freight rate • on heading from Penter’s Bluff was too high, and denies that he was intoxicated. Oliver claims that the average run of the mill would- have been 20 days per month. That he could average sawing 12 cords per day, and that the expense of running the mill would not have been more than $15 per day. He based his estimate on his past experience as a sawyer. He also testified that there was sufficient timber accessible .to run the mill at Penter’s Bluff for one year, which was the life of the contract. Hurley & Ross adduced testimony tending to show that his profits at best could not have been more than the wages of a sawyer, which he could have saved by doing that work himself. Hurley & Ross were to pay for the timber.
There was a jury trial, and a verdict for plaintiff in the sum of $1,000. From the judgment rendered thereon the defendants have appealed.
■ In his motion for a new trial counsel for defendants set out numerous assignments of error, but in his brief only two questions are presented for our determination; and the remainder will be considered as waived or abandoned.
The first is that the court erred in sustaining plaintiff’s motion to strike paragraph 6 from defendant’s answer upon the ground that the same constituted no defense to the cause of action set forth in .the complaint.
The second is that the the court erred in submitting the question of profits as the measure of damages to the jury. We shall consider them in the order named.
1. In response to the contention of counsel for the defendants that .the court erred in striking out paragraph 6 of their answer, counsel for plaintiffs say that all legal testimony offered by defendants to prove the allegations made in paragraph 6 of their answer was admitted without objection, and that this amounted to a reconsideration by the court of its former ruling in striking out that paragraph.
In the case of Roach v. Richardson, 84 Ark. 37, it was held: “Where, without objection on plaintiff’s part, defendant directed his evidence to an issue not raised by the answer, and the trial court treated the issues as thus joined, the answer will be treated on appeal as amended to correspond with the proof.”
Again in the case of White River Railway Company v. Batesville & Winerva Telephone Co., 81 Ark. 195, it was held: “Appellant can not complain because the court refused to permit it to amend its .answer if the court had already permitted it to adduce all the testimony bearing upon the issue sought to be raised by the amendment.”
These decisions are in accord with the uniform holdings of the court on this subject, so it may be said here that if the court admitted all the testimony offered by the defendants on the issue raised by paragraph 6 of their answer, no possible prejudice could have resulted to them from its former action in striking out this paragraph. We have made a careful examination of the record, and find that all competent evidence on the question of plaintiff’s intoxication, or of his excessive indulgence in intoxicating liquors that was offered was admitted without objection. For instance, Mr. Hurley, one of the defendants was asked:
Q. “Mr. Hurley, you stated awhile ago that you didn’t want Mr. Oliver in charge of the mill when in an intoxicated condition. I will ask you if you know his disposition when he was less intoxicated.” A. “Yes, sir; he has been on a spree, and would stay that way for a long time, and for that reason I was afraid on account of the conditions up there. He had started in a pretty good gait, and I was afraid to continue him.” (Objection to the pretty good gait, ask that it be excluded). Court: “That isn’t proper testimony.” Here it will be observed that no objection was made to Hurley stating all the facts within his knowledge as to the nature and extent of plaintiff’s intoxication, but only to his stating his conclusions from the facts to the jury. The inferences .to be drawn from the facts were matters for the jury to determine.
Again, objections were made when defendants attempted to introduce evidence as to reports they had received as .to the extent of plaintiff’s intoxication. The objection was proper because such testimony would be hearsay evidence. We find from an examination of the record that in every instance where the defendants offered competent evidence on the question of plaintiff’s intoxication, it was admitted without objection. As we have already pointed out, this amounted to a reconsideration of its former ruling by the court; and if the defendants wished to introduce additional evidence on that point, they should have stated to the court that they were taken by surprise at the action of the court in changing its ruling, and should have asked that the case be continued, or the trial postponed, for the purpose of allowing them to procure the attendance of additional witnesses on that point. Not having done so, the presumption is that they introduced all the witnesses they could have procured on that issue, and they can not now complain. The court in its instructions to the jury based the right of recovery upon condition that the breach of the contract was made “without the fault of the plaintiff.”
2. Was a loss of the profits on account of a breach of the contract the measure of damages ?
The evidence of both Hurley and Oliver shows that the defendants were to furnish or pay for the timber, and that Oliver was to manufacture it into oak heading for a stated sum per cubic cord. Oliver had worked for the defendants a great many years as sawyer. His particular line of sawing was tight barrel heading. Hurley himself testified that he knew the profits that could be made by Oliver under the contract, and that they would consist mainly, if not wholly, of the fact that he could do his own sawing. These facts, .and as well the contract itself, shows that is was one for personal services. Hence we think that the profits were in contemplation of the parties when the contract was made. This view is strengthened by the fact .that the contract provided that Hurley & Ross were to furnish the machinery to do the work, and that Oliver was to purchase said machinery at cost price and to pay for the same by allowing fifty cents per cord on the amount earned, to be credited every two weeks on the purchase price of said machinery. The contract further provided that the machinery was to remain the property of Hurley & Ross until paid for.
In the case of Beekman Lumber Co. v. Kittrell, 80 Ark. 228, it was held: “Where plaintiff entered into a contract to perform certain work for the defendant, which he was prevented from doing by the fault of the defendant, he is entitled to recover the profits which the evidence makes reasonably certain that he would have made had the defendant carried out its contract.” Mr. Justice Riddick, who delivered the opinion of the court, said: “The rule in reference to the recovery of profits is thus stated in a recent work: ‘The recovery of profits, as in the case of damages for the breach of contract in general, depends upon whether such profits were within the contemplation of the parties at the time the contract was made. If the profits are such as grow out of the contract itself, and are the direct and immediate result of its fulfillment, they form a proper item of damages.’ 13 Cyc. 53, 54. Such damages ‘must be certain both in their nature and in respect to- the cause from which they proceed. It is against the policy of the law to allow profits as damages where such profits are remotely connected with the breach of contracts alleged, or where they are speculative, resting only upon conjectural evidence or the individual opinion of the parties or witnesses.’ 13 Cyc. 53; Spencer Medicine Co. v. Hall, 78 Ark. 336.”
The language of the learned judge which follows is especially pertinent as an application of these principles to the facts of the present case, and we adopt it for that purpose. It is as follows: “Now, in this case the plaintiff had entered into a contract to perform certain work for the defendant, which he was prevented from doing, as the jury found, by the fault of the defendant; and we are of the opinion that the profits which the evidence makes reasonably certain that plaintiff would have made had defendant carried out its contract may be recovered.” See also Ramsey v. Capshaw, 71 Ark. 408. For a recent application of the rule, see Blumenthal v. Bridges, ante p. 212.
The contract by its terms was to be effective one year from its date. The evidence adduced by the plaintiff tends to show that he had had long experience in sawing with a mill similar to the one named in the contract under consideration, and that he had averaged sawing from 12 to 15 cords per day. His testimony also showed that it could be run on an average of 20 days per month. The price of the heading to be received by the plaintiff was fixed by the contract, and the cost of manufacturing the heading was testified to by plaintiff and his witnesses. While this testimony was contradicted by that of the defendants, it is not our province to pass upon the weight of the testimony. The verdict of the jury is conclusive upon us, if there is any evidence to warrant it. It is sufficient to say that the verdict is sustained by the evidence.
We find no prejudicial error in the record, and the judgment will be affirmed. | [
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McCulloch, C. J.
This suit involves a controversy between Max Frauenthal and his wife, Sallie Frauenthal, and son Mortimer Frauenthal, on the one side, and the incorporated town of Sugar Eoaf (or Heber, as it is sometimes called) and certain citizens thereof, on the other side, concerning the ownership of a block or square of ground in said town known as “Spring Square.” The chancellor rendered a decree in favor of the plaintiffs, and the defendants, Frauenthal and others, appealed.
The question at issue is whether or not the defendants have irrevocably dedicated said property to public use as a park or square. In the year 1881 Max Frauenthal purchased the tract of 680 acres of land on which is now situated the town of Sugar Eoaf. The land was then situated in Van Burén County, but it is now in Cleburne County, which was thereafter created by an act of the Legislature. In the same year Frauenthal executed to the Sugar Eoaf Springs Company a deed to a large portion of said tract, and in 1883 that company platted 200 acres of it into the townsite known as Sugar Eoaf, which plat was duly filed for record and recorded.
The plat contained blocks and lots, intersected by streets and alleys, and the property in controversy, which comprises about four blocks of the usual size designated on the plat, was marked “Spring Square.” A section of the plat, showing this square and the surrounding blocks and streets, is herewith shown:
Another block or square was designated on the plat as “Court Square.” It does not appear that the Sugar Loaf Springs Company was ever incorporated, but Max Frauenthal was president, and one Watkins was secretary of the unincorporated company or association, and Frauenthal was .the principal owner or shareholder. For some time thereafter lots were sold with reference to this plat, and deeds of conveyance were executed by Frauenthal as president and Watkins as secretary of said company. Some time later the other individuals composing said company reconveyed the remainder .of the lots embraced in the plat to Frauenthal,. and lots have from time to time been sold off to individuals. Soon afterwards Cleburne County was created, and the town of Sugar Loaf was made the county seat. Frauenthal agreed to convey Court Square to the county for the purpose of building a court house thereon, and this was done.
There are six springs in this park known as Spring Square, from which fine medicinal water flows — white, black and red sulphur. These waters are said to possess many curative properties, and the place was then noted as a summer resort. Since then it has grown in popularity year by year, and has many visitors, sometimes as many as 1,500 each summer. The public generally has always had free use of the park and the waters therein contained. Notwithstanding the fact that the public has always enjoyed the freest use of the park, Frauenthal has, according to the preponderance of the evidence, maintained some sort of supervision over it. Before the alleged act of dedication, he built a fence around the square, but afterwards, when it rotted down, it was replaced at the expense of the town. He built a tool house in the park, and for a time employed a man to look after the park. The town has from year to year expended small sums of money on repairs, aggregating something over $600, but it appears that these repairs have usually been made after consulting Frauenthal, who lived there a portion of the time, and in Memphis, Tenn., and in Conway, Ark., the balance of the time, usually visiting the place several times each year. There is some conflict in the evidence, and numerous citizens of the place 'have testified in the case as to the precise relation of Frauenthal to the property. We take it to be settled, however, by the preponderance of the evidence that he exercised some kind of 'Supervision over it, and was consulted whenever any change was to be made. It appears clearly that the character of this supervision was for the protection of the public and for the public benefit. There is no evidence that he manifested any intention of using the property for private purposes.
In the year 1901 Frauenthal and wife conveyed all of the unsold lots (not including Spring Square) to the Bank of Conway, and on the same day the bank reoonveyed the same property to his wife, Mrs. Sallie Frauenthal. Frauenthal paid taxes on the square, together with the other property, for several years after the alleged dedication, but finally, at the suggestion of the town authorities, and with the assent of the county assessor, Spring Square was left off the tax books, and no taxes have been paid thereon since then, the property, being entirely omitted from the tax books. Shortly before the institution of this suit, and after there was a prospect of a railroad coming to the town, Frauenthal proposed to put the property back on the tax books and pay taxes thereon. These matters were introduced in evidence as tending to establish the fact that Frauenthal treated the square or park as public property. On the other hand, Frau enthal insists that the omission of the property from the tax books was suggested by the town authorities, and consented to by him merely as an act of grace in view of the fact that he was getting no benefit from the property for the time being, and that the public at large was enjoying the use thereof. He denies that that was a permanent arrangement, or that any dedication was ever intended.
The law bearing on the question of dedication of property to the public use is well settled by the decisions of this court. An owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable. He will also be held to have thereby dedicated to .the public use squares, parks and other public places marked as such on the plat. The dedication becomes irrevocable the moment that these acts concur. Hope v. Shiver, 77 Ark. 177; Davies v. Epstein, Id. 221; Dickinson v. Ark. City Imp. Co., Id. 570; Brewer v. Pine Bluff, 80 Ark. 489; Stuttgart v. John, 85 Ark. 520.
The fact of dedication depends upon the intention of the owner to dedicate to the public, as clearly and unequivocally manifested. But it is held that “the intention to which courts give heed is not an intention hidden in the mind of the landowner, but an intention manifested by his acts.” Davis v. Epstein, supra; 13 Cyc. 452; Elliott on Roads and Streets, § § 124, 156.
The word “square,” as used on a plat to designate a certain portion of ground within the limits of a city or town, indicates a public use. This is said to be the proper and settled meaning of the term in its ordinary and usual signification. Rowzee v. Peirce, 75 Miss. 846; Trustees of Methodist Episcopal Church v. Hoboken, 33 N. J. L. 13.
In the New Jersey case above cited, an owner of real property filed a map or plat, showing lots and blocks with intersecting streets and alleys and certain spaces, one of which was marked with the word “square;” and the court held this to be an irrevocable dedication ¡of the space to the public use. The court there said: “It may be stated, as a general rule, that when the owner of urban property, who 'has laid it off into lots with streets, avenues and alleys intersecting the same, sells his lots with refer ence to a plat in which the same is so laid off, or when, there being a city map on which this land is laid off, he adopts such map by reference .thereto, his acts will amount to a dedication of the designated streets, avenues and alleys to the public. The same principle is applicable to urban lands to be used as an open square.”
In the -case of Mayor of Bayonne v. Ford, 43 N. J. L., 292, an owner (R. Graves by name) platted a tract of land into building lots, selling some -of them by reference to this plat; on said plat was a small section marked “Annette Park, now belonging to R. Graves.” Held, that this became public property by dedication.
The same court in Price v. Inhabitants of Plainfield, 40 N. J. L. 608, laid down as a definite rule of law that where a landowner caused a map of a tract of land to be filed in the county clerk’s office, on which streets and building l-ot-s were delineated, and one block was set apart and marked with the word “park,” and when such landowner subsequently made conveyances of ■certain of said lots to various purchasers, such conduct was conclusive evidence -of a dedication of the “park.”
The Connecticut court in Pierce v. Roberts, 57 Conn. 31, held that where an owner laid out land in lots, bounded on the inside by an elliptical half-acre, marked “park” on -the plat, and sold the lots with reference to the plat, this constituted a dedication. In that case there was an’element in the facts of representation to purchasers that the space marked “park” was to be kept open for all the lot owners; but the court in its opinion distinctly held that the designation on the plat was sufficient to constitute a dedication, saying: “In the first place, the word ‘park’ on the map cannot be eliminated from the -deeds, but is, on the contrary, an inseparable part of those deeds, and thereby the grantors are estopped 'from appropriating the land in question to a use inconsistent with such designation..........Why not give like effect to the plan and designation of the ‘park?’ That surely is a prominent and attractive feature of the plat, and indeed essential to its completeness. The lots for sale were all numbered in order from one to twenty-two. The center piece contained no number to facilitate a selection by a purchaser, but on the contrary it was given a name which in itself imported a design to set it -apart and reserve it for common benefit of all.”
In Archer v. Salinas City, 93 Cal. 43, the court held that “the word ‘park’ written upon a block of land designated upon a map of property within the limits of an incorporated city or town signifies an open space intended for the recreation and enjoyment of the public, and this signification is the same whether the word be used alone or with some qualifying term, as ‘Central Park.’ ”
Judge Dillon, in his work on Municipal Corporations (§ 645) says: “The word ‘park’ written upon a block upon a map of city property indicates a public use; and conveyances made by the owners of the platted land, by reference to such map, operate conclusively as a dedication of the block;” citing Price v. Plainfield, 40 N. J. L. 608; Maywood Co. v. Maywood, 118 Ill. 61.
Also, in Rhodes v. Brightwood, 145 Ind. 21, it was held that an irrevocable dedication of land is effected by designating certain land on a map filed in the county recorder’s office as a ‘park,’ and by selling lots with reference to the map.
There is little if any distinction between the words “park” and “square,” and when used in this way they mean substantially the same thing. The defendants in this case are not aided by the extrinsic evidence as to the intention of the dedicator, for, as before stated, though it shows that he intended to^ reserve some measure of supervision over the property, it was yet altogether for the public use. And it does not appear that any private rights therein were intended to be reserved. Nor is he aided by the fact that in the certificate of dedication it is shown that certain streets were dedicated to the public use, as the evidence shows the area in controversy was also intended to be used by the public, and was set apart for that use.
We are therefore of the opinion that the decree of the chancellor was correct, and the same is affirmed.
FrausnThar, J., disqualified and not participating. | [
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Hart, J.
This is an appeal by R. H. Hanson from a judgment rendered against him in the Lafayette Circuit Court in favor of Reuben Anderson for $82.60. The suit was originally brought by Anderson against Hanson in a justice of the peace •court for $82.60 alleged to be due him for work done on a levee. On appeal, this court can only consider such assignnients of error as appear upon the record. In cases at law, the record consists of what is generally called the record proper and the bill of exceptions. In the present case what counsel for appellant calls a skeleton bill of exceptions was filed. None of the evidence adduced at the trial, and none of the instructions given by the court, are contained in it. There is no direction to the clerk to copy the stenographer’s report. The bill of exceptions, after reciting the term of the court at which the case was tried and the presiding judge, continues as follows: “The plaintiff, to maintain the issues on his part,' introduced the following testimony: (None furnished the clerk.)”
The same notation is made concerning the testimony of the defendant and the instructions of the court.
At a subsequent term of the trial court, appellant Hanson filed a motion to correct the record, in which he states that Mr. Paul Celia was the stenographer of the court, and that he left no stenographic report of the evidence with the clerk. He further states that said stenographer claims to have no record of the case, and no recollection of having taken a stenographic report of the same.
The record is made when the bill is allowed by the judge and filed by the clerk. The court has nothing to do with making or directing to be made the record of the trial court. It can only compel the clerk to transmit to this tribunal the record of the trial court, properly transcribed and certified to by him. If the stenographer failed to do the duty required of him by the statutes, appellant should either have taken some appropriate action before the trial judge to compel him to perform it, or should have himself prepared and tendered to the presiding judge his bill of exceptions, before the time for so doing had expired. In short, either he should in apt time have applied to the presiding judge to compel the stenographer to furnish his report of the trial, or he should himself, or by his counsel, have prepared and submitted to the presiding judge his bill of exceptions, just as if there had been no stenographer present at the trail to report the proceedings therof.
The office of a bill of exceptions is to bring on thé record such matters as are not already a part of the record in the case. Berger v. Houghton, 84 Ark. 342, and cases cited; Lesser v. Banks, 46 Ark. 482; St. Louis, I. M. & S. Ry. Co. v. Godby, 45 Ark. 485.
The state of the record, as presented does not warrant a reversal.
Judgment stands affirmed. | [
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Frauenthar, J.
In 1889 a number of the citizens of Stuttgart organized a corporation under the name of the Stuttgart Normal Institute. This corporation was formed under the general incorporation laws of Arkansas relating to “manufacturing and other business corporations.” The purpose of its formation was “the establishment and maintenance of an institution of learning at Stuttgart, Arkansas.” And it was not expected or intended that its stockholders should obtain any financial profit therefrom, although it was formed under the provisions of the 'Statute relating to business corporations. It secured land known as block 96 in Improvement Company’s Addition to the town of Stuttgart, and erected a school building thereon. It proceeded with its purpose and secured teachers and conducted a school, which had its varying periods of success and failure. At times efforts were made to get some organization to take the property free of charge and establish and conduct a permanent school or college there. But these efforts did not meet with success. The affairs of the corporation were conducted by a board of directors, consisting of nine members; and the defendant J. I. Porter was one of these directors from its organization until its dissolution by the decree in this case.
The corporation became indebted to' one James A. Gibson, who recovered a judgment against it in the Arkansas Circuit 'Court on November 10, 1901. Upon this judgment an execution was issued, and by .the sheriff of said county levied on the above property, which was all the property owned by the corporation. The property was offered for sale under said execution by the sheriff at public outcry on March 2, 1901, and at this sale J. I. Porter was a bidder. He bid $1,100 for the property, and, this being the highest offer, the same was sold to him by the sheriff.
On January 13, 1902, the plaintiffs, W. M. Price, Edwin Pet-tit and S. J. Parks, instituted this suit in the chancery court of Arkansas County against the defendants, the Stuttgart Normal-Institute and J. I. Porter, and in the complaint asked for the ap pointment of a receiver to take charge of the property of the corporation and for the authorization of the receiver to borrow money and redeem the property from said execution sale, and for the dissolution of the corporation. The chancery court, with the agreement of the parties, appointed G. W. Fagan, receiver. On March i, 1902, the receiver, under the above direction, borrowed from Angeline Pettit the sum of $743.21 for the purpose of paying on the redemption of said property from said execution sale. It appears that at the time of said execution sale the amount due on the judgment and cost was $617.23, and that in making good his bid J. I. Porter paid in money the sum of $617.23, and executed his note for the balance of the bid: $482.77. This cash payment so made by Porter amounted with interest at the rate fixed by the statute in redemption at execution sales to said sum of $743.21 on March 1, 1902. At this time and prior thereto the receiver w;as also cashier of the German-American Bank, of Stuttgart, Arkansas, and J. I. Porter was vice-president of this bank and carried an account there. The receiver placed to the credit of J. I. Porter on this account with said bank said sum of $743.21. The receiver testified that he did this in the way of paying this sum to Porter in redemption of the property. But Porter refused to recognize this as a payment, and it remained in this form on the books of said bank at the time of the final hearing of the case in 1907. The note for $482.77 which 'had been executed by Porter on his bid was left with the circuit clerk by the sheriff, and Porter paid the amount thereof to the clerk who thereupon paid the same to the receiver. Thereafter, on May 22, • 1902, the sheriff executed a deed to J. I. Porter for the property under the above execution sale.
About this time and prior to June 4, 1902, J. I. Porter entered into negotiations with the president of Hendrix College for the purpose of establishing a school on the property under the supervision and ownership of said Hendrix College or the Trustees of the Methodist Episcopal Church, South. It appears that' Hendrix College is a corporation organized under the laws of Arkansas governing the incorporation of institutions of learning, and that its board of trustees are selected by controlling authorities of the Methodist Episcopal Church, South.
On June 4, 1902, the plaintiffs W. M. Price and Edwin Pet-tit and a number of citizens of Stuttgart, Arkansas, signed an instrument which therein is denominated, “Subscription paper for funds to establish a Hendrix Academy at-the Town of Stuttgart, Arkansas;” and is as follows:
“For the purpose of securing the property of the school known as the Stuttgart Normal Institute and sufficient money to meet the $10,000.00 conditions of the trustees of Hendrix College (the college of the Methodist Episcopal Church, South, located at Conway, Ark.), we, the undersigned, agree to pay to the properly designated representatives of Hendrix College the sums set opposite our respective names; provided, that: First, all money and property donated under the terms of this subscription shall be used to improve, equip and maintain the college property at Stuttgart; second, the deed shall be made in fee simple to Hendrix College, but provision shall be made so that if it may become necessary to separate the college and academy the latter shall be owned and controlled by trustees appointed by the annual conference of the Methodist Episcopal Church, South, in which it is located, and, while the oollege and academy shall not be liable each or either for the other’s debts, if the property should be sold, the proceeds must be invested in a similar school in Stuttgart, so tnat the object for which these subscriptions are made shall not be defeated; and, third, these subscriptions shall not be due and payable until the-president of Hendrix College, in writing, acknowledges that the conditions of the constitution of Hendrix College can be satisfied.”
Each of the subscribers to said instrument agreed to its terms, and amongst them was the defendant, J. I. Porter, who subscribed the above school property, which was placed at $5,000, and also $1,000 in money; and the remainder of the $10,000 was subscribed by numerous public spirited citizens of Stuttgart. On the same day J. I. Porter executed an instrument whereby he agreed to convey to Hendrix College or said trustees all the property described in said sheriff’s deed upon demand, this being the property referred to in said subscription instrument. Thereupon, the various subscriptions were substantially all collected; and with the funds buildings were erected on the said land during 1902. And Hendrix College at once took possession of the property for the purpose of conducting a school thereon; and ever since said time such school has been maintained thereon under the name of the “Stuttgart Hendrix Academy.” In pursuance of the above agreement, J. I. Poner executed a deed for said property to certain named trustees of .and for the the Little Rock Conference of the Methodist Episcopal Church, South.
During all the above time the above suit lay dormant; and there is evidence tending to prove that J. I. Porter, Hendrix College and all the subscribers to the above instrument, including the plaintiffs who signed same, understood that the above agreement evidenced by said subscription paper and the payments made thereunder, together with the execution of the bond for deed and the acceptance of the property by Hendrix College, was a settlement of said litigation, and operated in placing a good and perfect title to the property in said trustees. And such evidence was sufficient to sustain a finding to that effect.
Thereupon the court made an order dissolving the corporation, the Stuttgart Normal Institute, and proceeded further in its order to provide for winding up its affairs.
For some time the suit again lay dormant, but it was still pending. Thereafter the plaintiffs filed a supplemental complaint, in which they sought to set aside the above sheriff’s deed to Porter and to restore the property for the benefit of the stockholders of the Stuttgart Normal Institute, or to charge said Porter with the value thereof. The receiver was made a party plaintiff, and adopted the above supplemental complaint. Thereupon said Hendrix College intervened, and asked that the supplemental complaint be dismissed, or that it have a lien declared in its favor on the property for the $4,000 expended by it on the ■property. Later the said Angeline Pettit filed an intervention, seeking a .recovery of the money loaned by her to the receiver.
Upon a final hearing, the chancellor dismissed the supplemental complaint of plaintiffs and the receiver and the intervention of Angeline Pettit, and ordered that G. W. Fagan strike ■ from the credit of the account of J. I. Porter on the books of said bank the said sum of $743.21, and ordered that the said sum of $482.77 in the hands of the receiver be distributed amongst the stockholders of the corporation. And from this decree the plaintiffs and intervener, Angeline Pettit, have appealed to this court.
The pleadings in this case are very numerous, and the testi mony voluminous; and we have endeavored above to give as briefly as practicable the issues involved and the testimony relating thereto. From this it appears that J. I. Porter was a director of the corporation, the Stuttgart Normal Institute, at the time of his purchase of its property under the sale made under the execution against it. The effect of his relation to the corporation made that sale voidable. A director cannot, as a general rule, make a valid purchase of the property of the corporation at a public or judicial sale. He may become a creditor of the corporation, if the transaction is open and bona ñde; and in such event, to protect himself, he may purchase at a judicial sale. But, if he purchases at such a sale to satisfy the claim of another, his purchase, in equity, is subject to be set aside at the instance of a party in interest. He is considered in equity as being a -trustee for the stockholders and creditors of the corporation, and his position as a bidder is inconsistent with that relation. His appearance as a bidder may have the effect to prevent bidding; and his private interest may -conflict with his duties as a trustee of the corporators in protecting their interest. The rule, as sustained by sound-moral principles and the weight of authority, is that where a director purchases at a judicial sale made under process in favor of another the properties of the corporation, he does so subject to the right of the corporation or its stockholders to disaffirm the sale and to demand a resale without showing any actual fraud or any actual prejudice. Little Rock & Ft. Smith Ry. Co. v. Page, 35 Ark. 304; Jones v. Ark. Mechanical & Agricultural Co., 38 Ark. 17; Crawford County Bank v. Bolton, 87 Ark. 142; McAllen v. Woodcock, 60 Mo. 174; San Francisco Water Co. v. Pattee, 86 Cal. 623; 3 Thompson on Corporations, § 4071; 6 Thompson on Corporations, § 7866 ; 21 Am. & Eng. Enc. Eaw (2 Ed.) 904; 10 Cy-c. 814. But such a purchase by the director is good at law, and is only voidable in equity^ at the suit of some party in interest and with equitable rights. Twin Lick Oil Co. v. Marbury, 91 U. S. 587. Under the evidence in this case the plaintiffs are not now in an equitable position to ask that this sale be set aside. After the -purchase by Por-ter at the sheriff’s sale, he entered into negotiations with Hendrix College for a transfer of his title, thus obtained, to it or to trustees for its benefit. The plaintiffs or those representing them not only agreed to these negotiations, but they executed a written instrument by which they encouraged Hendrix College in accepting this title. They thus recognized the validity of the sheriff’s deed to Porter, and by their conduct and their act in writing caused a number of citizens to subscribe and pay towards obtaining that title. These parties actually invested their money on this assurance, and Plendrix College erected new buildings on the land on this assurance. By this act and this conduct the plaintiffs in equity and good conscience should not now be permitted to take a different position and attack this sheriff’s sale to Porter and the deed executed thereunder.
In the case of Trapnall v. Burton, 24 Ark. 372, the trustees of a college were about to purchase certain land which was in litigation, and spoke to the plaintiff in the case in which the land was involved, relative thereto. The trustees, relying upon his acts and conduct indicating that he would place no obstacle in the way of the purchase, made the purchase. In that case the plaintiff was held to be estopped to set up any claim that would impair such purchase.
In this case the plaintiffs by their actions induced Hendrix College and its representatives to act upon the reasonable belief that they waived or would waive any rights, remedies or objections which they might have insisted on against the purchase by Porter at the sheriff’s sale. And to permit the plaintiffs now to assume a different position would work an injury and a prejudice, not only to Hendrix College, but to every citizen who subscribed and paid towards this commendable cause. The principle of equitable estoppel is “that when a man has done an act or said a thing, and another, who had a right to do so, has relied on that act or word and shaped his conduct accordingly and will be injured if the farmer can repudiate the act, it shall not be 'done.” Trapnall v. Burton, 24 Ark. 371; Youngblood v. Cunningham, 38 Ark. 571; Gill v. Hardin, 48 Ark. 409; Cox v. Harris, 64 Ark. 213; Rogers v. Galloway Female College, 64 Ark. 627; Warren & O. V. Rd. Co. v. Garvin, 74 Ark. 136; 16 Cyc. 774-805.
It follows, therefore, that the chancery court was correct in dismissing the supplemental complaint of the plaintiff. However, we are of opinion that the intervention of Angeline Pettit should not have been dismissed, but the relief should have been granted to her. Under the direction of the chancellor the sum of $743.21 was borrowed by the receiver from her, and the receiver executed to her a note with interest therefor. That should be paid to her. There is really in the hands of the receiver through the German-American Bank the sum of $743.21, and in addition to that the sum of $482.77. Out of these funds the receiver should be directed to pay to said Angeline Pettit the amount of said note and interest, if there shall be sufficient funds. And that the receiver should distribute any balance- to the stockholders, as provided in the decree of that court.
The decree, in so far as it dismisses the supplemental complaint of plaintiffs, is affirmed. But it is reversed, in so far as it dismisses the intervention of Angeline Pettit; and this cause will be remanded with directions to enter a decree in accordance with this opinion. | [
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Robert H. Dudley, Justice.
Appellant was arrested on September 6, 1988, and was thereafter charged with four felonies. He was not tried until October 6, 1992, over four years later. At that time he moved to dismiss the charges for lack of a speedy trial. The trial court denied the motion. Appellant appeals. We affirm the judgment of conviction for failure to comply with Rule 4-2 (a)(6) of the Rules of the Supreme Court and Court of Appeals.
The abstract reflects that shortly after his arrest, appellant requested time to obtain counsel, and then failed to appear for trial. A bench warrant was issued. About two years passed before he was re-arrested and again released. He again failed to appear, but was subsequently arrested on additional charges. He requested another continuance, and still later his case was continued because of docket congestion. He then filed a motion asking for a dismissal for lack of a speedy trial. The trial court heard arguments and apparently examined the docket sheet and various orders and denied the motion to dismiss.
Appellant’s abstract does not summarize the proof at that hearing, nor does it summarize the findings of fact by the trial court, nor does it summarize the written order, if any, by the trial court. We cannot know, without examining the transcript, the periods of time that the trial court found to be excluded. In sum, we have no way of knowing whether the trial court erred without examining the transcript. As we have often pointed out, there is only one transcript and there are seven judges on this court, and it is impossible for each of the seven judges to examine the one transcript. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). We are hesitant to affirm a criminal case for failure to comply with Rule 4-2, but we must do so in this case because the abstract wholly omits the hearing and ruling on the motion that is the basis of the appeal.
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
This is an appeal of the chancery court’s finding that a restrictive covenant prevents the appellants, Roy, Norma, Kenneth and Kathy Ingram, from placing two homes on their property, Lot 3, Block 5, Kellogg Addition of Pulaski County, Arkansas. We affirm.
The portion of the Kellogg Subdivision at issue is owned and divided as follows: appellees, Sedric Wirt and his wife, Phyllis, live on Lot 4 and Mr. Wirt’s son lives on Lot 5. Appellees, the Henleys, live on Lot 6, and the Wirts’ daughter’s home is located on Lot 7. Each of the lots in blocks 5 and 6 of this addition are approximately 100 feet wide and 1300 feet deep as evidenced by a plat which was placed in evidence as appellants’ Exhibit 4, and reproduced as follows:
Included on the plat and Bill of Assurance for Lot 3 is a restrictive covenant that reads:
Said lot shall be restricted to one family residence only and no business or amusement houses may be built or maintained at any time upon any part of said lot, and this clause shall be taken to include boarding houses, tenement houses, inns, hotels, eating houses, clubs and restaurants.
A similarly worded, though not duplicate, version of this covenant is included in the plats and Bills of Assurance for Lots 4,7,8,9,12 and 13 (although Lots 12 and 13 are listed as being in the Sylvan Acres subdivision rather than in Kellogg). According to these documents, all of these lots were developed by Metropolitan Trust Company.
Mrs. Bessie Rea, Roy Ingram’s mother, owned Lot 3 in Kellogg Addition. Her frame home was located on the north one-third of the lot. In October of 1973, she deeded the south two-thirds of Lot 3, Block 5 (3B) to her son and daughter-in-law, Roy and Norma.
In 1975 the neighbors, the Wirts and the Henleys, gave Mr. and Mrs. Ingram permission to move a house onto the south end of Lot 3 so that Roy Ingram could, take care of his ailing mother. This approval was given despite the existence of the restrictive covenant forbidding more than one home per lot in the subdivision. As Sedric Wirt explained during his testimony at the trial, “We agreed to do this because we were trying to be good neighbors.” The Ingrams moved a house on a transport trailer across the Wirt property onto the south end of Lot 3 in 1975 — the house was later remodeled with brick veneer, and a swimming pool was placed behind the house some time later.
In May 1983 the Ingrams purchased the north one-third of Lot 3 from Mrs. Bessie Rea. Mrs. Rea subsequently died, and on April 1, 1989 her frame home burned beyond use and was later torn down. Shortly after the home burned, Mr. Wirt approached Mr. Roy Ingram concerning buying the north one-third of Lot 3 where the house had been situated, but Mr. Ingram refused. In May 1989, the Roy Ingrams sold the north one-third of Lot 3 to their son and daughter-in-law, Kenneth and Kathy Ingram.
Mrs. Roy Ingram mentioned to Ms. Wirt that her son would be putting a manufactured home on the north end of the property in place of the house which had burned down. The Wirts objected to this arrangement as did the Henleys, and as a result, they filed a lawsuit in Pulaski County Chancery Court asking that an injunction be issued against the Ingrams to prevent them from violating the restrictive covenant by placing a second residence on Lot 3. Two days before the trial, the Ingrams filed a replat and new Bill of Assurance as to this lot, replatting it into Lots 3A and 3B and amending the Bill of Assurance to allow one residence per each subdivided lot.
Mr. Basil Shoptaw, a civil engineer and land surveyor with Thomas Engineering Company, testified for the Ingrams. He stated that he had been involved in the replatting of their property. In order to accomplish this task, he had to go to the City of Sherwood for permission — an approval hearing was held on this issue, and the replatting was approved. A new Bill of Assurance was issued allowing two single-family residences on the original Lot 3.
After hearing Mr. Shoptaw’s testimony as well as that of the parties, the chancellor determined that there was a common scheme of development at the time that the Kellogg Addition was formed that mandated only one single family residence per lot. In her final order, the chancellor provides an explanation for her decision:.
3. Neither the doctrines of laches or estoppel were successfully shown by Defendants. The evidence at trial showed the Plaintiffs had previously acquiesced to two residences on the Defendants’ lot, one of which burned, however, this did not constitute laches which would bar the Plaintiffs from seeking removal of the mobile home presently on the lot. The Court finds that the Plaintiffs delay in resorting to court action was not unreasonable under the circumstances and the Defendants did not suffer a detrimental change in position necessary to sustain the defense of laches.
4. The evidence presented at trial supports a finding that there exists a general plan of development in Kellogg Addition that, at the time Kellogg Addition was formed, a common scheme existed for one single family residence per lot.
5. The Court finds there are two residences located on Defendants’ lots.
6. The Court finds the Plaintiffs are entitled to enforcement of the restrictive covenants in the Bill of Assurance which restricts one single family residence per lot in Kellogg Addition.
7. The Defendants cannot defeat the restrictive covenants by simply obtaining a replat from the planning commission subdividing their lot. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). The Court finds the facts in Constant v. Hodges are virtually identical to this case and, further, that Constant is controlling.
8. The Defendants are, therefore, hereby enjoined from further violations of restrictive covenants contained in the Bill of Assurance by Metropolitan Trust Company, Grantor, to the Public, filed for record.....and ordered to remove the second home from their lot within 30 days of entry of this Final Order.
As a result of this order, the Ingrams filed a Motion for Reconsideration.
Thereafter, the Ingrams filed a motion, pursuant to Ark. R. Civ. Pro. 60 (b), to vacate judgment. In a hearing on this motion, they attempted to introduce aerial photographs of the Kellogg Subdivision, one of which was made in 1974. These photographs were obtained from the Highway Department. The court refused admission of this evidence but did allow the Ingrams to proffer it.
On appeal, we consider the evidence in a light most favorable to the appellee. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). This court tries chancery cases de novo on the record and does not reverse a finding of fact made by the chancellor unless it is clearly erroneous. Merchants & Planters Bank & Trust Co. v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990).
Replat — Restrictive Covenant
The Ingrams first argue that the chancellor erred in holding that they could not replat their lot and that they were governed by the restrictive covenant. In finding for the plaintiffs/appellees, the chancellor relied on Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). In Constant the appellants attempted to subdivide a 1.73 acre lot in Robin wood Subdivision in Little Rock. The Bill of Assurance provided that the land would be restricted to single-family residences since the bill’s purpose was to carry out a “general plan to develop said lands as a high-class suburban residential property.” Constant, 292 Ark. at 441, 730 S.W.2d at 893. The chancellor found that a general plan of development existed in Robinwood and that, accordingly, the restrictive covenant was enforceable. In making his decision, the chancellor noted a few characteristics of the area:
The character and nature of the Robinwood Subdivision referred to in the Bill of Assurance signed by Cecil Gibson and Vera Gibson has been and is single-family residences consisting of very valuable, large homes on large lots. The nature of the neighborhood and this pattern of development have not changed since the lands described in the Bill of Assurance were developed beginning in 1949, and this pattern has continued through the present time. Although there may have been some violations (as alleged by defendants) of some of the provisions of the Bill of Assurance or some of the restrictions contained in deeds subsequently conveying lands subject to the Bill of Assurance, those violations have been minor and they have not destroyed the purpose of the Bill of Assurance or deed restrictions and these violations have not adversely affected the adjoining property owners.
Constant, 292 Ark. at 443, 790 S.W.2d at 894 (emphasis addedj.
The chancellor looked at the character and nature of the neighborhood, the continuity of the pattern of development and whether any major violation of the purpose of the Bill of Assurance had occurred. This court agreed with the chancellor and affirmed his decision. Id.
Applying this test to the facts before us brings the same result. First of all, the permitted violation of the purpose of the Bills of Assurance, although major, was temporary. While it is true that the Wirts and Henleys gave the Ingrams permission to move a second house onto Lot 3 in 1975, this permission was of limited duration. Testimony at trial revealed that the Wirts and Henleys gave their permission only in order for the Ingrams to care for their ailing mother who was up in years and unable to care for herself. Once Mrs. Rea passed away, Mrs. Ingram’s daughter and son moved into Mrs. Rea’s home. Mrs. Henley testified that her family’s reason for not complaining at that point was:
Mrs. Ingram’s daughter and her son moved into the house. We talked about talking to the Ingrams, but Mrs. Ingram’s daughter had cancer, so we didn’t say anything. We felt that she needed to be there close to her mother. She got sicker and she moved back in with her mother and dad in the back of the property. Then it was a rent house for a short time. And we had discussed very definitely that we were going to have to take action about the renters because we could not tolerate the noise. About that time the kids that rented the house moved and the house burned. So we still had hopes that, perhaps, Roy would keep it to have the space or that he would sell it to Mr. Wirt.
I think our expectations were that Mr. and Mrs. Ingram would. . .their children would move away and then it would be a couple there as there is at Mr. Wirt’s house and mine. It hasn’t worked like that. There are lots of people that live in one house with lots of traffic and now it’s moved to the front, to Kellogg, and now it’s going to be more traffic.
Clearly, the Wirts and Henleys gave their permission for placement of the second house on Lot 3 only in order to help their neighbors take care of an ailing family member. Once Mrs. Rea passed away and her home burned down, Lot 3 contained one family residence and was in compliance with its Bill of Assurance. Lot 3 was then in keeping with the common scheme of development in Kellogg Addition.
The Ingrams also argue that there were other violations proven at the trial. We disagree. For example, the Ingrams contend that Lots 12 and 13 of Block 5, which originally were governed by the same restrictive covenant as Lot 3, were transformed into a subdivision containing approximately thirty lots. These lots now have about twenty five to thirty homes on them. While these two lots are only four lots away from the Henley’s property, the original Bill of Assurance for Lots 12 and 13 lists them as being in Sylvan Acres not Kellogg Addition. Thus, these lots are simply not part of the Kellogg Addition. The fact that Metropolitan Trust was a common developer of both subdivisions is of no moment.
After examining the Bills of Assurance provided in the exhibits and noting the same restrictive covenant in all of them, it is easy to see how the Chancellor arrived at the decision that there was a general scheme of development in this area. The primary test for the existence of a general plan of development is whether substantially common restrictions apply to all lots of like character or similarly situated. Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981).
For their next arguments on appeal, the Ingrams claim that the trial court erred in refusing to hold that either waiver or unclean hands defeat the restrictive covenant. These arguments have no merit.
Waiver
The Ingrams contend that the Henleys and Wirts waived any right to enforcement of the restrictive covenant when they permitted the Ingrams to place the second home on Lot 3.
The Ingrams concede that waiver was not raised in the pleadings but argue that the facts giving rise to this claim were tried with the consent of both parties. In support of this argument, they refer to comments made by the chancellor at trial in which she allegedly “implicitly recognized” the issue of waiver:
Also I’m inclined to rule that neither the doctrine of laches or estoppel prevents the plaintiffs from bringing this case. . . . Clearly they knew about and allowed the home the [sic] be placed on the rear of the lot and so long as that house was there and there was a house in the front I don’t think they could ever have complained about either of those houses because they allowed that to happen. And I recognize that they did it because they felt like the family needed to look after Mrs. Rea and that once Mrs. Rea was dead that they still weren’t too happy about the two houses there but that whether they were happy about it or not they hadn’t gotten any conditions, they’s agreed to it. But now when that, you know, frame house burned down in ‘89,1 think there could be a question about whether or not by agreeing to a second house going on they were forever forbidden to complain about it. But before anything else was — now, I recognize some planning steps may be have been taken, but before anything else was done they talked to the Ingrams and said, you know, we don’t want you to move another house on here. . . .But I think they did serve notice that their agreement to allow two houses on there had been to the houses, the structures, that were there and that. . .anyway, I’m just not inclined, unless somebody shows me a case that’s very explicitly like this, to say that by agreeing to allow the house that the Ingrams now live in to be moved onto the back part of the lot they forever agreed that two houses could be there.
Estoppel and waiver are not synonymous. Black’s Law Dictionary 1417 (5th ed. 1979). However, the two terms are commonly used interchangeably, especially in insurance law. Black’s Law Dictionary, 495 (5th ed. 1979); See Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). Here, it seems, the chancellor, while referring to estoppel, was actually discussing the defense of waiver. Accordingly, we will address this issue on appeal. Nevertheless, we find that it has no merit.
In Continental Ins. Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978), an insurance case in which estoppel and waiver are used interchangeably, we defined waiver as:
[Voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of material facts, does something which is inconsistent with the right or his intention to rely upon that right. The relinquishment of the right must be intentional.
Applying this definition to the facts at hand, it seems that the appellees did not voluntarily abandon the restrictive covenant when they permitted Mr. Ingram to place a second home on Lot 3 so he could care for his mother. Clearly, when the Henleys and Wirts gave their permission for the placement of a second home on the premises in violation of the Bill of Assurance, they did not intend to “forever be deprived of its benefits.” See Stanley. Accordingly, we hold that they did not waive their right to the restrictive covenant.
Unclean Hands
The Ingrams also argue that the trial court should have refused to enforce the restrictive covenant because of the doctrine of unclean hands — in' other words, “equity will not intervene on behalf of a plaintiff whose conduct in connection with the same manner has been unconscientious or unjust.” Merchants and Planters Bank & Trust Co. of Arkadelphia v. Massey, 302 Ark. 421, 790 S.W.2d 889 (1990).
The basis of this argument is that there was some confusion as to whether there was more than one house located on Lot 6 which is owned by the Henleys. Chancellor Brantley adopted the testimony of the appellees, specifically Mrs. Henley, as to the existence of only one house on this lot. The Ingrams contended that there was a rent house on the Wirt’s property which bordered on Lot 6 and the Henley home was located on Lot 6. There was contradictory evidence on this issue, and the Chancellor chose to believe Mrs. Henley when she said there was only one home located on this lot. We will not set aside a chancellor’s finding of fact unless clearly erroneous. Southeast Arkansas Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993). Deference is given to the superior position of the chancellor to judge the credibility of witnesses. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). In order to overturn the chancellor’s ruling, the appellants must demonstrate that the trial court abused its discretion by making a judgment call that was arbitrary or groundless. Employers Nat’l Ins. Co. v. Grantors, 313 Ark. 645, 855 S.W.2d 936 (1993). The Ingrams have failed to provide proof of such abuse, and we, therefore, hold that their argument fails.
Motion to Vacate Judgment
For their final issues on appeal, the Ingrams contend that the chancery court erred in refusing to admit the aerial photographs during the hearing on the motion to vacate judgment and in denying this motion. At the hearing on the motion to vacate judgment, some three months after the final order in this case was entered, the Ingrams attempted to admit aerial photographs obtained from the Arkansas Highway Department of the Kellogg neighborhood to establish “that a general plan of development had not been applied to all lots of like character to the lot of Defendants in the Kellogg Addition.” The Ingram’s motion to vacate was filed pursuant to Ark. R. Civ. Pro. 60(b) which provides:
Ninety-Day Limitation. To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.
869 S.W.2d 685
In interpreting the language in Ark. R. Civ. Pro. 60(b) we have said that the “miscarriage [s] of justice” referred to in the rule are a reference to those clerical errors or mistakes described in Rule 60(a). Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991). Rule 60(a) provides:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
Such a clerical mistake was not demonstrated to the chancellor. Accordingly, we hold that the chancellor was correct in refusing to admit the aerial photographs. Similar to this argument is the Ingram’s claim that the denial of the Motion to Vacate was error.
In their Motion to Vacate Judgment, the Ingrams stated that the trial court made a mistake in determining that there was a general plan of development in the Kellogg Addition. Other than the aerial photographs — which were not admitted — the Ingrams had nothing more to offer the judge as a basis for vacating the judgment. Under the circumstances, the decision to deny the motion was proper.
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David Newbern, Justice.
Christopher Fendley was found guilty and sentenced as an habitual offender to six years imprisonment for being a felon in possession of a firearm. The Statute making it an offense for a felon to possess a firearm criminalizes that conduct “Unless so authorized by and subject to such conditions as prescribed by the Governor. . . .” Fendley contends the State failed to prove he had not been authorized by the Governor to possess a firearm. We affirm the conviction because the language to which he refers creates a defense to the crime rather than an element of it, and the evidence was sufficient to prove he conducted himself in violation of the Statute.
Mr. Fendley pawned a shotgun at a pawn shop in Hot Springs. Fendley completed an information card that listed his name, driver’s license number, and address. The card was sent to the Garlarid County Sheriff’s Office where it was determined that Fendley was a convicted felon, and a warrant for his arrest was issued.
The Statute mentioned above is Ark. Code Ann. § 5-73-103 (Supp. 1991). It states, in pertinent part:
(a) Unless so authorized by and subject to such conditions as prescribed by the Governor, or his designee, or the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department, or other bureau or office designated by the Treasury Department, no person shall possess or own any firearm who has been:
(1) Convicted of a felony; ....
The prosecutor presented evidence that Fendley was a convicted felon, and he presented the information card Fendley completed to pawn the shotgun. Fendley’s attorney moved for a directed verdict, stating that the prosecutor had failed to prove all the elements of the offense.
The State contends the “authorization” clause permitting a felon to possess a firearm if authorized by the Governor, his designee, or the Treasury Department creates a defense on which Mr. Fendley was obliged to present evidence rather than an element to be proved by the State. Fendley presented no such evidence at his trial.
Arkansas Code Ann. § 5-1-111(c) and (d) (1987), refer to two types of criminal defenses as follows:
(c) The issue of the existence of a defense need not be submitted to the jury unless evidence is admitted supporting the defense. If the issue of the existence of a defense is submitted to the jury, the court shall charge that any reasonable doubt on the issue requires that the defendant be acquitted. A defense is any matter:
(1) So designated by a section of this code; or
(2) So designated by a section not a part of this code; or
(3) Involving an excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to introduce supporting evidence.
(d) The defendant must prove an “affirmative defense” by a preponderance of the evidence. An “affirmative defense” is any matter:
(1) So designated by a section of this code; or
(2) So designated by a statute not a part of this code.
The “authorization” clause in subsection (a) of § 5-7 3-103 creates a defense as defined by § 5-1-111(c)(3). Were that not so, we would have to hold that the General Assembly intended to require the State to prove a negative, that is, to prove a defendant has not been authorized, by one of the several official officers or office mentioned, to possess a firearm. That he had been authorized officially to possess a firearm would be “peculiarly within the knowledge of the defendant.”
Mr. Fendley cites Irvin v. State, 301 Ark. 416, 784 S.W.2d 763 (1990). Irvin had been convicted under the Youthful Offender Alternative Service Act of 1975 which requires expungment of the conviction upon completion of sentence. There was no showing that Irvin’s conviction record had been physically expunged, and it was used to convict him under § 5-73-103. We reversed, holding that Irvin was not required to produce evidence that the conviction had, in fact, been expunged and thus he was no longer a “felon” who could be charged with unlawful possession of a firearm.
The point was that one convicted under the Youthful Offender Alternative Service Act may assume, due to the law requiring it, the conviction has been expunged. Under § 5-73-103(a), however, no governmental entity is required to authorize a convicted felon to possess a firearm. Unlike the “automatic” expungment requirement we found in the Irvin case, a request for and the granting of authority to possess a firearm are matters which should clearly be within Fendley’s knowledge but not necessarily within the State’s knowledge. Under these circumstances it is fair to require a defendant to introduce evidence that he has authorization to possess a firearm.
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Tom Glaze, Justice.
On December 3, 1991, the appellant, Minnie Marie Missildine, shot her daughter, Sheila Robertson, in the head causing her death. Following trial by jury, Missildine was found guilty of first degree murder and sentenced to life imprisonment.
As background, Missildine had had psychiatric problems for a number of years, had been hospitalized several times, and at one point, underwent a left frontal lobectomy due to seizures. On the day of the crime, Missildine apparently told Sheila she intended to kill herself.
At approximately 2:00 p.m. on December 3, officers were called to a disturbance at the home of Ruth Franklin, mother of Missildine; Sheila was present. Sheila and Franklin expressed concern to the officers because Missildine had locked herself in her home with pills and guns. The officers informed them of the need to start commitment proceedings and left.
Later that same day at approximately 4:00 p.m., officers were called to a suicide attempt at Missildine’s residence. Tom Douglas, a deputy sheriff for Miller County, testified that Gary Woods , Danny Robertson , and Sheila Robertson were attempting to get Missildine out of the house, and away from the pills and guns for her own protection. Sheila was near the house and did not respond when officers and her husband urged her to retreat. As Sheila was circling the house, beating on the outside wall, and yelling to her mother, she disappeared from view. Shortly, a single gunshot was heard.
Missildine bases her appeal on the following two points: insufficiency of the evidence through motions for a directed verdict and ineffective assistance of counsel. Missildine argues that the state failed to present any evidence that she acted with the purpose of causing the death of her daughter and that her trial counsel failed to adequately represent her by calling the proper witnesses.
When the sufficiency of the evidence is being challenged on appeal, this court reviews the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. This court does not weigh evidence on one side against the other, but simply determines whether the evidence in support of the verdict is substantial. McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993); Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another, and requires more than mere speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991). It is permissible to consider only the testimony which supports the verdict of guilt. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993).
A person commits murder in the first degree if with a purpose of causing the death of another person, he causes the death of another person. Ark. Code Ann. § 5-10-102(a) (2) (Supp. 1991). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. § 5-2-202(1) (1987).
Here, even though there were no eyewitnesses to the actual shooting, a number of sheriff’s deputies were at the scene at the time the shooting occurred. Circumstantial evidence may constitute substantial evidence when it excludes every other reasonable hypothesis consistent with innocence. Guilt may be proved even in the absence of eyewitness testimony, and evidence of guilt is no less because it is circumstantial. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). It is for the jury to determine whether the evidence excludes every other reasonable hypothesis. Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992).
Sheila was last seen going around the house, calling to her mother. A single gunshot was heard. Shortly, Missildine exited the house near where Sheila was last seen and called for someone to “come get her out of my yard.” Both deputies Tommy Douglas and Charles Wise testified that Missildine sounded “angry” when she yelled at them to come and get her daughter, and that the tone of her voice was rough and raspy. Missildine was pointing the gun toward the officers and had to be told several times to drop it before she actually complied. As the deputies approached her, Missildine turned and attempted to escape. When the deputies rounded the house toward Missildine, they saw Sheila lying on her back with a bullet wound in her forehead, several feet from a window. Missildine’s defense was based on an accidental shooting or a shooting due to drug impairment.
John Mackey, a criminal investigator for Miller County, testified that he determined the fatal bullet came from inside the house through the window and screen near the body. The window and screen had a hole in them, and broken glass was found inside on a table and on the floor near the window. Mackey testified that these findings were consistent with a bullet being shot through the window and screen. Further, the shot through the window occurred within a narrow space between a fan and a clothes basket sitting on a washing machine, the inference being that the gun was aimed through the narrowed space. A .22 revolver was found in the yard where Missildine tossed her weapon. In the revolver, Mackey found five unspent cartridges and one spent shell in the chambers. He also collected several prescription drug containers, ammunition, and a .38 revolvér from the house.
Berwin Monroe, an expert in the firearms section of the Arkansas Crime Laboratory, testified the bullet removed from Sheila’s head was too mutilated to determine barrel markings. He testified that the degree of mutilation present was consistent with the bullet being fired through an intervening material such as glass, penetrating the front of the skull, and then bouncing off the back of the skull as occurred in this case. Monroe was able to determine that the bullet was of the .22 caliber class. Further, he testified that the .22 revolver he received from the crime scene was a single action. In order to fire the .22 revolver with such an action, a person must first pull back or cock the hammer before pulling the trigger.
After being apprehended, Missildine was taken to the hospital and screened for a drug overdose. Drug testing revealed the presence of an unknown amount of benzodiazepines (once called tranquilizers), a low therapeutic dose of Dilantin (for control of seizures), and a low therapeutic dose of an antidepressant, Pamelor. Dr. Charles Poteet, the emergency room physician who examined Missildine, testified that there was no objective evidence indicating Missildine had overdosed, but that her sleepiness at that time, coupled with her medical history, was suggestive of overdose. He was able to state positively that a lethal dose of the benzodiazepine could be ruled out.
Missildine argues that Poteet testified that a person on Valium, a benzodiazepine, will react with anger if you try to stop them. While the benzodiazepine found in Missildine was of an unknown type and amount, no Valium pills or container were found in Missildine’s house. Further, Missildine argues that because there were no eyewitnesses, there was no proof that she acted with the intent necessary to purposely shoot her own daughter. And because three drugs were found in her system, she was not acting under her own will.
Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). Even premeditation, deliberation, and purposeful intent can be formed on the spur of the moment. Further, the intent necessary for first degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991).
Here, the circumstantial evidence is sufficient to show that Missildine acted with the purposeful intent to kill her daughter. First, the single action gun required an overt act of positioning the hammer before it would fire. The fatal bullet passed through a narrow space raising the inference that the gun had to be purposely aimed in order for the bullet to pass undeflected by obstacles. The bullet entered the deceased’s left forehead. Finally, after the shooting, Missildine reacted with anger in calling for the police to remove her daughter, and was reluctant to drop the gun when ordered to do so. From this evidence the trial court determined that there was a question of fact which was properly placed before the jury.
In Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985), this court upheld a capital felony murder conviction where the appellant was found to be legally intoxicated by registering .10 on the breathalizer. There, Novak argued that because he was intoxicated at the time of the crime, he could not have had the requisite intent as a matter of law. In rejecting his argument, we found that there was evidence that Novak was rational and coherent. Further, we stated the fact that Novak was shown to have the minimum intoxication to support a charge of DWI did not establish, as a matter of law, that he lacked the ability to form an intent to commit murder. We held these matters presented a question for the jury to decide.
In our case, Dr. Poteet, who examined Missildine immediately following the killing, testified that Missildine was sleepy but able to communicate with him. When he inquired as to what drugs she had taken, she told him dilantin and phenobarbital. He said that, although her sleepiness was suggestive of it, he found no objective evidence that Missildine had overdosed. From the record, there is evidence from which the jury could find that Missildine was rational and coherent, and that she could have formed the purposeful intent to shoot and kill her daughter.
The jury was instructed on first and second degree murder, and on manslaughter. Based on the record as presented, we conclude that the jury’s verdict finding Missildine guilty of first degree murder was based on substantial evidence.
For her second point, Missildine argues that she was assisted ineffectively at trial by her counsel. Attorney Carolyn Lee Whitefield raised the issue following the trial by filing a motion for a new trial and a motion to arrest judgment, alleging that Missildine received incompetent representation at trial from attorney Thomas A. Potter. The trial court denied the motion for a new trial, finding that “there is no credible proof that [Missildine] did not receive a fair trial.”
We first must consider the state’s argument that, according to our recent decision in Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993), Missildine may not claim on direct appeal that her counsel was ineffective. In Tucker, the defendant jiled a motion for a new trial and, among other things, claimed ineffective assistance of counsel, and after a hearing, the trial court denied the defendant’s motion. On appeal, we held Tucker’s ineffective counsel claim was premature, because under Rule 37, this court had held that it would not consider collateral attacks on a judgment of conviction as a part of the direct appeal.
Although Rule 37 generally provides the procedure for postconviction relief due to ineffective counsel, this court has recognized such relief may be awarded a defendant on direct appeal in limited circumstances. For example, in Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986), this court held that, ordinarily we do not consider a charge of ineffectiveness when a case is first appealed because the facts relevant to that issue have not been developed. However, when the proof is presented at a hearing on a motion for a new trial, economy of procedure would require a single appeal of all the issues. Id.; see also Tisdale v. State, 311 Ark. 220, 833 S.W.2d 776 (1992) (the court decided an ineffective assistance of counsel issue on direct appeal because the defendant raised the issue at trial and by a motion for a new trial); Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976) (the court recognized that the ineffective counsel issue could be raised and heard by the trial court by defendant’s motion for a new trial, but if the accused had not adequate opportunity to raise the question, he could raise the question by motion for postconviction relief).
Because Missildine raised her ineffective counsel issue by motion for new trial and a hearing was conducted on the issue, we conclude it is proper for her to argue this subject on direct appeal. To the extent our Tucker holding is in conflict with this decision, that holding is overruled. We now address Missildine’s ineffec tive counsel argument.
The criteria for assessing the effectiveness of counsel has been enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show counsel’s representation fell below an objective standard of reasonableness, and that, but for counsel’s errors, there is a reasonable probability that the jury would have decided differently. Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Finally, a court hearing a claim of ineffective assistance of counsel must consider the totality of the evidence that was placed before the jury. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993).
Missildine bases her argument on Potter’s failure to (1) subpoena expert witness, Dr. Richard Tyler, to testify as to Missildine’s mental status; (2) hire an expert psychologist to testify as to her mental status before, during and after the crime; and, (3) in the absence of an psychiatric expert, call members of her own family who were present at the trial.
Mr. Potter testified that it was his intent to subpoena Dr. Tyler as a witness, but did not when the deputy prosecutor told him that the prosecutor’s office had already subpoenaed Dr. Tyler. Further, Potter testified that on the morning of the trial, he was informed that the state would not call Dr. Tyler, but that he would be left under subpoena so that Potter could call him. Dr. Tyler did not show up for the trial, and afterwards, Potter learned that Tyler had not been properly served. Deputy prosecutor, Charles Black, denied that he had told Potter that the state planned to call Tyler as a witness, but Black did state that he told Potter the prosecutor’s office had mailed a subpoena to Tyler. Missildine’s new counsel, Whitefield, did not subpoena Tyler for the post-trial hearing but did attempt to get Missildine’s hospital records entered into evidence. The state objected on the basis that the majority of Tyler’s notes in the record were the product of what other doctors and family members had related to him about Missildine, and thus were hearsay. The court agreed, and the records were proffered by Missildine.
While Missildine argues that a psychiatric or psychological expert should have been hired by Potter, she failed to show that such an expert would have testified that she was incompetent or impaired at the time of the crime. Further, testimony showed that Missildine had been examined by the State Hospital, as required due to her defense, and that she was found to be both competent to proceed with trial and competent at the time of the crime. Additionally, there was some testimony regarding whether Potter should have applied $2000 given to him by Missildine’s mother for expert testimony rather than to his fee. Again, the state points out that there is no evidence to prove that use of the funds for an expert would have resulted in a different verdict.
Finally, Missildine argued that if Potter had called members of her family, who were present at trial, to testify as to her mental status, the verdict would more probably than not have been different. At the hearing Potter testified that he decided not to call Missildine’s mother as a witness because he did not want to open the door for admission of evidence as to Missildine’s propensity for violence, namely, shooting at her exhusband and violating her bond because of a fight. Further, he had intended to call a friend of hers as a witness, but decided against it at the last minute because he doubted the man’s credibility, and did not want to violate the Rules of Professional Responsibility by offering testimony that Potter did not believe to be the truth. Potter stated that his decisions on these matters were based on trial strategy so as to act in the best interest of his client.
The trial court determined that Missildine received a fair trial and that from the evidence presented at the hearing on the motion for a new trial, all the issues raised were related to trial tactic by the defense attorney. As we have stated before, matters of trial strategy and tactics, even if arguably improvident, are not grounds for a finding of ineffective assistance of counsel. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992); Hill v. State, 292 Ark. 144, 728 S.W.2d 510, cert. den. 479 U.S. 1101 (1987).
Missildine has failed to show that the trial court’s ruling was clearly erroneous in denying her motion for a new trial. Further, she has failed to show that her trial attorney’s conduct fell below reasonable standards of professional conduct and that, but for her trial attorney’s conduct, the verdict would have been different.
The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and the objections have all been abstracted and certified by the state. We have found no other rulings adverse to Missildine which constituted prejudicial error.
For the reasons discussed above, we affirm.
Brown, J., concurs.
Friend of Missildine.
Husband of Sheila.
Our ruling here does not preclude the defendant in Tucker from pursuing a Rule 37 petition for postconviction relief. | [
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David Newbern, Justice.
The appellant, Louis Fight, was convicted of manslaughter, leaving the scene of a personal injury accident, and two counts of aggravated assault. He was sentenced to 10 years incarceration on the manslaughter count and six years on each of the other counts. The death and injuries were inflicted by a person other than Fight who drove her vehicle into the victims and then away from the scene. The basis of Fight’s conviction was that he contributed to the driver’s intoxication by sharing a marijuana cigarette with her. We agree with Fight’s contention that the evidence was insufficient to support the conviction, thus the conviction is reversed and dismissed. Other arguments need not be addressed.
The case was tried before a jury. From the evidence presented, viewed most favorably to the State’s case, the Trial Court could have concluded the following events took place in the early morning hours of August 27,1992. Fight and Renee Smith were together at her home. Both were drinking, and Fight rolled one marijuana cigarette which he shared with Ms. Smith when they left her house. They got in Ms. Smith’s pickup truck with Ms. Smith driving. Her blood alcohol level was .16 % and his was .15% when they were arrested a short time later.
Ms. Smith drove on a highway past the scene of a burning car. She then turned her truck around and headed back to the fire scene where there were several emergency vehicles with their emergency lights flashing. At least one emergency vehicle was parked in the middle of the highway, and hoses were stretched from the emergency vehicle over to the burning car which was at the side of the highway. Instead of driving on the vacant part of the highway, and thus around the emergency vehicle and the burning car, Smith drove between the emergency vehicle and the burning car. Her truck struck two policemen, Jerry Stallings and James Andoe, and one fireman, Johnnie Grizzle. Stallings was killed, and the other two were injured.
Ms. Smith continued driving even though she blew out one of her tires on a fire hose coupling. Officer Andoe chased the vehicle until it was forced to stop, and he arrested both occupants.
Sufficiency of the evidence
There is no question that a directed verdict motion was made at the proper points in the trial on the ground that there was a lack of evidence to support the conviction. The State contends we should not address the sufficiency of the evidence issue as Fight’s abstract does not apprise us of the argument made to the Trial Court in conjunction with the motions for directed verdict. The State does not deny that the argument made by Fight on appeal was made to the Trial Court, but contends that it is not properly abstracted.
We agree with the State’s citation of Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991), for the proposition that the record on appeal is limited to that which is abstracted. The State also quite correctly cites Moore v. State, 304 Ark. 257, 801 S.W.2d 638 (1990); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); and Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989), holding that a directed verdict motion setting forth a specific theory must be made to the Trial Court.
Unlike cases where we have dismissed appeals for total failure to abstract an essential motion or judgment, see, e.g., Taylor v. State, supra, or where the abstract displays a different argument made to a trial court than is made on appeal, see, e.g., Pilcher v. State, supra, we do not find this abstract to be “flagrantly deficient.” See Arkansas Supreme Court and Court of Appeals Rule 4-2(b)(2). From Fight’s abstract, we know that the directed verdict motions were made. From his argument we know what his contention with respect to the directed verdict motions is. Again, the State does not deny that the contention now argued was argued to the Trial Court.
It is obvious that, as Fight did not directly cause the injuries resulting in the charges, his criminal responsibility must be based upon accomplice liability. Fight asserts there can be no basis for the conviction because there can be, as a matter of law, no accomplice liability based solely upon supplying an intoxicant to one who then commits a criminal act. In general, when the sufficiency of the evidence is challenged, we look to the evidence presented and affirm if there is substantial evidence to support the verdict. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). We review the evidence in the light most favorable to the appellee, considering only that which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). But the evidence thus considered must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987).
The evidence in this case concerning intoxicants came from Fight’s statement after he was arrested that he shared a marijuana cigarette with Ms. Smith at some point in the evening. There was undisputed evidence presented by toxicologist Randall Tucker that Ms. Smith was over the legal limit of .10% for alcohol consumption and operation of a vehicle at the time of the incident. See Ark. Code Ann. § 5-65-103 (1987). There were in addition traces of cannabanoids in her fluid sample. No evidence was presented suggesting that Fight supplied any alcohol to Ms. Smith, and no witness testified that intoxication from the sharing of whatever quantity of marijuana Fight shared with her created or enhanced the danger of injury to another.
Fight cites cases which demonstrate that we have clearly held in civil litigation there is no liability on the supplier of intoxicants because it is the consumption of them that is to blame rather than the supplying of them. Rone v. H. R. Hospitality, Inc., 297 Ark. 107, 759 S.W.2d 549 (1988); Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965). We have repeatedly stated that the issue of civil liability for supplying alcohol to one who then injures another rests in the hands of the Arkansas General Assembly. He also cites older dram-shop cases which considered the effect of a statute requiring one selling liquor to post a bond. In those cases it was held that the statute imposed no liability on the supplier beyond the natural consequences of the consumption of alcohol, generally stating that the supplying of alcohol was not the proximate cause of the injuries in question. Bolen v. Still, 123 Ark. 308, 185 S.W. 811 (1916); Peter Anderson & Co. v. Diaz, 77 Ark. 606, 92 S.W. 861 (1906); and Gage v. Harvey, 66 Ark. 68, 48 S.W. 898 (1898).
The State responds on the manslaughter charge by citing Lewis v. State, 220 Ark. 914, 251 S.W.2d 490 (1952), for the proposition that it is possible for a defendant to be criminally liable for recklessness causing the death of another in a vehicular homicide even if that defendant is not driving the vehicle at the time of the incident. The Lewis case opinion referred to Fitzhugh v. State, 207 Ark. 117, 179 S.W.2d 173 (1944), in which we held that a drunk passenger could be convicted as an accessory before the fact to involuntary manslaughter and held to the same degree of fault as the driver who was the principal offender.
In the Fitzhugh case, each of the occupants of the truck, Fitzhugh and Davis, contended the other was driving and that he had no recollection of the incident. Fitzhugh and Davis were drunk or had been drinking in the truck belonging to Fitzhugh, and we said the jury could have found that, even if Fitzhugh was not actually driving, he was not so drunk that he could not know that his truck was being driven on the wrong side of the road in such a manner as to become an instrument of death.
The facts and instructions in the Lewis case were similar to those in the earlier Fitzhugh case. Lewis owned the car, and each defendant stated the other was driving and denied recollection of the incident. Both were charged under the accessory before the fact law. The instructions stated that if one of the defendants was driving the car in a reckless, willful manner with wanton disregard for the safety of others, and the other defendant was riding as a passenger and was aiding, abetting, or assisting in the unlawful operation of the car by the co-defendant, then both defendants could be found guilty of involuntary manslaughter. The jury was also told that if either defendant was under the influence of intoxicants and incapable of properly operating the car and the non-driver, with knowledge of the co-defendant’s condition and incapacity, knowingly permitted him to operate the car in a reckless manner without protest and encouraged such driving, then the non-driver would be guilty of criminal negligence and involuntary manslaughter in the event the jury found the driver guilty of the charge.
The Lewis and Fitzhugh cases are distinguishable from, and provide no support for the Trial Court’s ruling in, this instance. At the time those cases were decided, “accessory before the fact” was defined as one who stands by, aids, abets, or assists, or who, not being present, advises and encourages the perpetration of the crime. The same was true when we decided Stacy v. State, 228 Ark. 260, 306 S.W.2d 852 (1957), where the owner of a truck was responsible for having an intoxicated person drive it, and a death resulted.
The current Criminal Code treats the concept of accessories differently. An accessory before the fact is now referred to as an accomplice, and one who was formerly an accessory after the fact is now guilty of a separate crime — hindering apprehension and prosecution. See Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979). An accomplice is no longer one who merely stands by while a crime is being committed. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991).
An accomplice of another person in the commission of a crime has, since 1975, been defined in Ark. Code Ann. § 5-2-403 (1987) and its predecessor codifications as follows:
(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:
(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or
(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.
Mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). There is no evidence that Fight did anything with the purpose of promoting or facilitating the crimes charged against Smith and insufficient evidence to move one beyond conjecture that Fight’s actions aided the conduct which resulted in the death.
The State’s argument on the merits of the question whether Fight was properly convicted points out that manslaughter, as defined in Ark. Code Ann. § 5-10-104(a)(3) (1987), requires a finding of a particular result, i.e., the death of another person. The definition of aggravated assault, found in Ark. Code Ann. § 5-13-204(a) (1987), does not require a finding of a particular result, only that the accused acted in a certain way in certain circumstances. The latter is also true of the offense of leaving the scene of a personal injury accident as defined in Ark. Code Ann. § 27-53-101(a)(1) (Supp. 1991) making the “driver” responsible. The State’s point is that Fight’s argument on the aggravated assault and leaving the scene charges is without merit because a lack of causation argument may succeed only with respect to those criminal offenses requiring proof that the accused caused some result to occur, citing Neely v. State, 18 Ark. App. 122, 711 S.W.2d 482 (1986).
The Neely case does not support the State’s argument. Neely argued that because he did not intend to kill his victim he could not be guilty of aggravated assault for having held a knife up to him with the intent of cutting him and scaring him. The Court of Appeals held that the requirement that the defendant act “purposefully” to be guilty of aggravated assault related to the conduct of the defendant rather than the intended result. In Fight’s case, we are dealing with an entirely different matter, i.e., whether it was proven that Fight, in the words of our accomplice liability statute, did anything “with the purpose of promoting or facilitating the commission of an offense” allegedly done by someone else, or was shown to have “act[ed] with respect to that result with the kind of culpability sufficient for the commission of the offense.” Ark. Code Ann. § 5-2-403(a) and (b) (1987).
As to manslaughter, the State argues Fight was properly convicted if it was shown he “acted recklessly with regard to the required result, which is the death of another person.” Again, the only citation given is Lewis v. State, supra, which we have distinguished.
We have found neither an Arkansas case nor a case from any other jurisdiction in which there has been an attempt to impose accomplice criminal responsibility on the basis of supplying an intoxicant to one allegedly responsible as a principal. We have, however, found one case which is close enough to present a helpful, albeit imperfect, analogy, State v. Etzweiler, 480 A.2d 870 (N.H. 1984).
Etzweiler and Bailey arrived at Etzweiler’s place of employment in a car owned by Etzweiler. Bailey was intoxicated, but Etzweiler loaned Bailey his car, and Bailey drove away and caused an accident resulting in two deaths. Etzweiler was charged in two counts of negligent homicide and in two counts as an accomplice to negligent homicide. The Trial Court certified questions on appeal to the New Hampshire Supreme Court. One of them was “whether the legislature in enacting RSA 630:3,1 [negligent homicide], and RSA 626:8 [manslaughter], intended to impose criminal liability upon a person who lends his automobile to an intoxicated driver but does not accompany the driver, when the driver’s operation of the borrowed automobile causes death.”
The question was answered in the negative. As we have done here, the New Hampshire Supreme Court pointed out the distinction between common law and older accessory statutes and the current New Hampshire accomplice liability statute which is like the Arkansas law. As to charges of negligent homicide against Etzweiler, the Court said:
If he aided and abetted Bailey, although not present at the commission of the crime, Etzweiler, at common law, may have been guilty as an accessory before the fact to involuntary manslaughter. See, e.g., Stacy & Rusher v. State, 228 Ark. 260, 306 S.W.2d 852 (1957). However, at common law, the crimes of principals and accessories before the fact were distinct and separate. [Citation omitted.]
In 1973, the legislature enacted the Criminal Code and created RSA 626:8, the accomplice liability statute. That statute abrogated the common-law distinction between principals and accessories and narrowly defined those situations in which an individual could be held criminally liable for the conduct of another. [Citation omitted.] Etzweiler’s conduct, in lending his automobile to Bailey, must be measured against the standards set forth in the statute.
Etzweiler’s conduct may fall within the statutory language defining negligent homicide. However, whether to impose criminal liability on Etzweiler involves an important policy decision of broad social consequences. The awesome deliberative task of making such a judgment should not, in the first instance, be thrust upon the juries of our trial courts but should be resolved through the legislative process to determine in what manner society seeks to deal with the criminal liability of those who permit unqualified operators to wreak havoc upon our public ways. This is a matter for legislative concern and is not a matter for judicial innovation. [Citations omitted.]
The Court then discussed the charges against Etzweiler as an accomplice, quoting RSA:8 III, the New Hampshire accomplice liability statute which is the same as § 5-2-403 quoted above. It was held that to be guilty under the negligent homicide statute, the accused must be unaware of the risk created by his or her conduct; one cannot intentionally aid another in committing an offense of which the latter is unaware.
While the analogy is thus not apt in all respects, we agree with this statement made by the New Hampshire Supreme Court:
Our interpretation of the accomplice liability statute effectuates the policy that an accomplice’s liability ought not to extend beyond the criminal purposes that he or she shares. Because accomplice liability holds an individual criminally liable for actions done by another, it is important that the prosecution fall squarely within the statute.
The Trial Court erred in failing to grant Fight’s directed verdict motions. The evidence was not sufficient to prove beyond speculation or conjecture that Fight’s actions in any way were done “with the purpose of promoting or facilitating the commission” of any of the crimes allegedly committed by Ms. Smith. Nor is there evidence to show that Fight took any action which could be shown to have aided or encouraged Smith to engage in the conduct causing death or in the language of the statute, to have acted “with respect to that result [manslaughter] with the kind of culpability sufficient for the commission of the offense.”
As we have done with respect to the question of civil liability of the supplier of an intoxicant to one who causes injury, we point out that it is up to the General Assembly to decide whether to impose criminal responsibility in circumstances where it is shown that the mere supplying of an intoxicant, rather than the consumption or use of it, resulted in criminal misconduct by another.
Reversed and dismissed. | [
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Per Curiam.
Petitioner, Samuel Langford, by his attorney, Vandell Bland, Sr., has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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Robert H. Dudley, Justice.
Appellant was found guilty of kidnapping, burglary, aggravated assault, and battery. He makes two arguments on appeal. We do not reach the first, there is no merit in the second, and, accordingly, we affirm.
Appellant’s first point of appeal does not specify a trial court error, but merely states, “Appellant was not identified beyond a reasonable doubt as a perpetrator.” The argument is based either on appellant’s motion to suppress the witnesses’ identification of him, or on the sufficiency of the identification evidence; but, in either event, is procedurally barred. The argument is perhaps predicated on appellant’s motion to suppress any in-court identification because a photographic lineup was unduly suggestive. However, there is nothing in the abstract to indicate that a ruling was made on the motion. The burden of obtaining a ruling is upon the movant, and unresolved questions and objections are therefore waived and may not be relied upon on appeal. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). Because appellant did not obtain a ruling on his motion to suppress, he is barred from raising the issue on appeal. Burnett v. State, 299 Ark. 553, 560, 776 S.W.2d 327, 331 (1989).
The argument is more likely predicated on the sufficiency of the evidence because, in his argument, he contends in part that witnesses did not have the ability to identify him in court. If this is his argument, it is also procedurally barred. To preserve a challenge to the sufficiency of the evidence in a jury trial a defendant must move for a directed verdict both at the close of the prosecution’s evidence and at the close of the case. A.R.Cr.P. Rule 36.21 (b). We have repeatedly held that failure to so do results in a waiver of the issue. Andrews v. State, 305 Ark. 262, 807 S.W.2d 917(1991).A directed verdict motion must be a “specific motion to apprise the trial court of the particular point raised.” Middleton v. State, 311 Ark. 307, 309, 842 S.W.2d 434, 435 (1992). To preserve an issue for appeal, that issue must be stated clearly and specifically to the trial court. Parette v. State, 301 Ark. 607, 616, 786 S.W.2d 817, 822 (1990). At the close of the State’s case, appellant moved to dismiss either the kidnapping charge or the aggravated assault charge on the basis of continuing conduct. See Ark. Code Ann. § 5-1-110(a)(5) (1987). Immediately thereafter, appellant moved to dismiss the battery charge on either of two grounds: first, the injury was not sufficient to constitute battery in the first degree, and, second, the evidence would not support accomplice liability. He did not move for a directed verdict because the evidence used to identify him was insufficient. After all of the evidence, he “renewed” his motion for a directed verdict “on the same basis as announced at the close of the state’s case.” Appellant did not give the trial court an opportunity to rule on the sufficiency of the identification evidence, and, as a result, an appeal on the issue is procedurally barred. Price v. State, 285 Ark. 148, 685 S.W.2d 506 (1985).
Appellant’s second assignment of error involves the trial court’s refusal to grant a mistrial. The facts leading to the ruling are as follows. Six armed men together committed these crimes. The prosecutor was attempting to show that appellant was one of the six and asked the investigating officer about an interview with appellant at the time appellant had been returned to Arkansas from Washington. Most of the details focused on appellant’s identification; questions relating to size, hair style, date of birth, and place of residence. The prosecutor next asked the officer to read a statement from appellant about where he was on the date in question, and then the prosecutor asked, “Were other suspects developed in this case?” The officer answered, “Steven Glover, which has pled guilty, and.......” Appellant objected and moved for a mistrial. The trial court denied the motion for a mistrial but admonished the jurors not to consider the statement about another person pleading guilty. The prosecu tor did not bring the matter before the jury again.
Here, the trial court could reasonably conclude that the question was asked in good faith since it is undisputed that six men together committed these crimes. The trial court could also reasonably conclude that the question was not designed to show guilt by association, but rather to show that appellant was indeed one of the six persons who committed the crime. The trial court could additionally conclude that the reference to a guilty plea by another person was volunteered by the officer, was not in direct response to the question, and that it caused prejudice, but not such prejudice that it could not be cured by an admonition. In such case, the trial court has discretion to determine whether an admonition to the jury is sufficient to cure the prejudice, or whether it is necessary to grant a motion for a mistrial. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
Appellant cites the cases of Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987) and Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983), and argues that we have reversed trial courts for abuse of discretion in refusing to grant mistrials and that we should do so in the case before us. We decline to so do. Neither of the cited cases has facts comparable to the facts of the case at bar. In each of the cited cases, the prosecutor asked a highly prejudicial question and did so without any legitimate reason. The trial court refused to grant a mistrial. As a result, we reversed and remanded for a new trial. Here, the question had a legitimate basis; it was the extra information volunteered in the answer that caused the prejudice, and the trial court concluded that its admonition was sufficient to cure that prejudice. The ruling did not constitute an abuse of discretion.
Affirmed. | [
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Per Curiam.
On July 20, 1992, the petitioner Jeff Bealer was found guilty by a jury of delivery of a controlled substance and sentenced to thirty years imprisonment. A fine of $10,000 was also imposed. A notice of appeal was filed, but the record was not tendered to the appellate court. Petitioner subsequently sought to lodge the record belatedly. Petitioner was represented at trial by Mr. J. Skylar Tapp, who filed an affidavit in response to the motion. We remanded the matter to the trial court for an evidentiary hearing, and the trial court’s Findings of Fact and the record of the evidentiary hearing are now before us. The trial court found that petitioner waived his right to appeal by not directly informing Tapp within thirty days after petitioner’s trial ended on August 24, 1992, that he desired an appeal.
In those cases where a finding that a petitioner did not inform his attorney of his desire to appeal in a timely manner is based merely on weighing the credibility of the witnesses at the evidentiary hearing, this court will accept the finding of the trial court as it is the task of the trial court to assess the credibility of witnesses. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). Here, however, a timely pro se notice of appeal was filed by petitioner on September 21,1992. We said in Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986), that the filing of a timely notice of appeal pro se is proof of the convicted defendant’s desire to appeal. Tapp’s explanation that he was simply unaware of the timely notice of appeal is not sufficient cause in itself to find that he was justified in abandoning the appeal.
As there was a timely notice of appeal filed in the case and Tapp had not been relieved by the trial court of his obligations as counsel, he must be held responsible for being aware of filings in the case in which he remained attorney-of-record. Tapp is directed to proceed as counsel in the appeal and file a petition for writ of certiorari in this court within thirty days to bring up the entire record, or that part of the record, which is necessary to the appeal. Petitioner has filed an affidavit of indigency which the state has not contested. He is granted permission to proceed as an indigent in this appeal. See Strode v. State, 301 Ark. 351, 783 S.W.2d 859 (1990).
Motion granted. | [
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Gtrieein Smith, C. J.
The appeal is from a circuit court order directing the county treasurer to pay two warrants: one in favor of Frank Masters for $84, the other in favor of Eowland Smith for $58. It is appellant’s contention the law as declared in White v. Chotard, County Treasurer, 202 Ark. 692, 152 S. W. 2d 552, is being violated. The opinion was delivered June 9, 1941, the holding being that the initiated salary act did not authorize the Chicot county judge to employ a road superintendent at a fixed salary of $150 per month. It was said, however, that the court did not intend to lay down a rule under which the county judge would be prohibited from employing competent men to handle county machinery and equipment-.'.
The claim filed by Masters, dated July 1, 1941, was to compensate for fourteen days “servicing county equipment” at $6 per day. Smith’s claim covered similar services for thirteen and a half days at $4 per day.
The cause was heard by the judge, a jury having been waived. Factual findings were that Masters had performed the services, rate of pay being sixty cents per hour for a ten-hour day. Masters’ contract of employment required him to prepare claims for other road workers and to keep their time; also to receive and account for shipments of materials ordered by the county judge, etc. He “looked after” machinery in a warehouse, and performed various engineering tasks incident to work done by men who used a large amount of machinery. Other duties required of Masters were mentioned by the circuit court.
Smith’s duties required him to transport county road employes to and from work. He also assisted in maintaining road machinery.
County Judge Warfield testified that work done by Masters was of a technical nature “. . . and absolutely necessary to prevent destruction of machinery or ‘botching up’ roads and bridges.” These activities, said the judge, were akin to engineering, as distinguished from supervisory work.
There are approximately 800 miles of roads in Chicot county. The judge testified that twenty miles of new highways had been completed under his administration, in addition to twenty or thirty miles of “dumps.” Seventy-five or eighty miles of dirt road had been repaired and graded, and, generally speaking, essential machinery had been over all county roads ‘ ‘ one to three or four times” during the year. Equipment consisted of two caterpillar tractors, two graders, three diesel patrols, two “jeeps,” three large trucks, and three pickup trucks.
WPA apportioned $114,000 to the county on condition one-fourth the sum should be matched. Money was not available, but an arrangement ivas made whereby the county was credited with allowances for use of machinery. “In this way this year,” said the county judge, “we have . . . received $86,000 worth of expenditures in nine months and our contributions have run $29,254.50. That [represents] rental on machinery and what cash we could pay for materials furnished. For twelve months last year the total amount of expenditures received [from WPA] ivas $61,478.64, and the county’s contribution amounted to $13,357.”
In letting machinery to WPA, the county supplied operators. There was testimony that the work done by Masters was of a character requiring mechanical and engineering ability, and the judge did not have requisite technical knowledge.
In deciding that the county judge, under the initiated act for Chicot county, was not authorized to employ a road supervisor, this court recognized the practical difficulties that might arise and expressly disclaimed an intent to substitute its mandate for discretion of the county judge. What we held was that the county judge could not relieve himself of duties enjoined upon him as road commissioner by shifting them to an appointed superintendent and adding to the county budget a fixed salary not contemplated by the electorate. To prevent impracticable limitations upon authority, there was the very positive statement that the judge could not be denied authority to employ competent men to handle machinery and equipment.
Prima facie it appears that Judge Warfield is doing by indirection what this court said he could not do directly. But there is this difference: In the WhiteChotard case essence of the controversy was that a superintendent had been employed at $150 per month to perform duties assigned the judge.
In the case at bar payment of $.84 representing services rendered by Masters for fourteen days at sixty cents an hour is the principal -issue. Incidentally, it is shown that Masters is regularly retained. This employment, however, is distinguishable from that involved in the previous case. Whether continuous use of Masters has been necessary is not the question. The dispute submitted to the court had to do with the warrant for $84. The result, in substance, was a finding- that Masters served in the capacity of a foreman, and that insofar as the controverted item was involved, services had been rendered. In other words, the claim was not fraudulent; nor was the county judge without power to authorize the work to be done, in consequence of which it was his duty to approve the claim.
There is substantial evidence to support the judgment. Whether subsequent employment was necessary is a different question, even though the record indicates that it was. Conduct of the county judge in the employment of a foreman, or “coordinator,” as his position is denominated in the testimony, would justify disallowance of a claim if evidence should show that services alleged to have been rendered were fictitious, that the amount claimed was absurd, that the transactions were fraudulent, and that the county was being cheated.
These elements are not present in the instant case. Hence, the judgment is affirmed.
The question was asked: — “Isn’t it a fact that Masters does not perform any mechanical labor for the county, but that he acts as a kind of coordinator with the WPA, and that [his classification is that of a deputy] to you?” Answer: — “He can’t be a deputy. He does ail the things you mention. Masters has a full-time job. It takes more . than ten hours a day. He gets up at daylight and comes to the county road office, checks over all the machinery, sees whether the units are properly oiled and greased, checks to see that the operators keep the machines tightened up. I am down there myself most of the mornings —not every morning, but when I can I am down there to lay out the day’s program. If I am not down there, I have previously planned and gone over the program with Masters. He never puts the machines anywhere until I have told him where they are to go.” | [
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McHaney, J.
Appellant, Drainage District No. 9, Miller County, Arkansas, was organized under the provisions of §§ 3607 et sec/, of C. & M. Digest, and was begun by petition filed in Miller County Court on August 16, 1927. The procedure provided by statute having been complied with, the court, on August 17, 1927, made an order fixing September 3 thereafter ias the day on which the court would hear -said petition, and directed the clerk to give notice, calling upon the property owners to appear at such hearing and show- cause for or against the establishment of the district. The clerk complied with the order of the court by publishing such a notice in the Texarkana Evening News, 'a newspaper actually printed in the State of Texas, about one-half block across the State line from the Arkansas side, but which carried a Texarkana, Arkansas, headline and dating, and the whole issue of such newspaper, after being so printed in Texas, was actually carted to the office of the Texarkana Evening News on the Arkansas side of the State line, and about one-half block therefrom, and there, for the first time, released and distributed to the public, both by newsboys and by mail.
On the day so appointed for the hearing a.majority petition was filed, and the court made an order establishing the district and appointing commissioners, in which it found that the clerk “has given due notice by-publication for more than two weeks in the Texarkana Evening News, a newspaper published and having a general circulation in Miller County, Arkansas,” etc. Thereafter the commissioners appointed by the court filed their assessment of benefits, and the court fixed October 3, 1927, for a hearing- thereon, and the clerk was again directed to publish a notice of this hearing. The notice thereof was published in the same newspaper. On October 1 the appellee, being- a property owner in the district, filed its protest against the assessment, on the ground that the assessment of benefits was void, for the reason, as alleged, that no notice had been given by the clerk to property owners of the date fixed by the court to show cause for or against the establishment of the district “by any publication in a newspaper published in and having a general circulation in Miller County, and no notice has been given as required by law of the assess ment of benefits by publication for two weeks in any weekly newspaper published and issued -and having la general circulation in Miller County, Arkansas.”
•On October 3, the date set for the hearing, the court entered an order finding “that the Texarkana Evening News is run through- the presses and printed in Texarkana, Texas, and is thereafter brought in bulk to. the office of said paper at 217 Vine Street, in Texarkana, Miller County, Arkansas, and is there distributed to newspaper boys for sale on the street and to carriers for delivery to subscribers. The court finds that said newspaper i-s not published in Miller County, Arkansas, that no other notice -of said hearing was given, and that said order establishing -said district is void.”
From that order appellant took an appeal to the circuit court, where, on December 15,1927, it made a finding substantially in the same language as the finding of the county court, and in addition that “said paper has a bona fide circulation in Miller County, and there is no other paper which purports to -be published or issued in said county.” And entered an order confirming the judgment of the county court, from which the drainage district has appealed to this court.
The only question we find it necessary to decide in this case is whether the above notices were published in compliance with the statute. If so, then the district was legally organized, and notice of the assessment of benefits was properly given, otherwise the judgment of the circuit court is correct.
That part of § 3607, C. & M. Digest, relating to the publication of a notice to the property owners in the establishment of the district, reads as follows: “The county clerk shall thereupon give notice by publication for two weeks in some newspaper published and having a general circulation in the county, calling upon all persons owning property within said district to appear before the court on some day to be fixed by the court,' to show cause in favor-of or against the establishment of said district. ’ ’
And that part of § 3615 relating to the notice to be given by the clerk on the filing of the assessment of benefits reads as follows: “Upon the filing of said assessment the county clerk shall give notice of the fact by publication two weeks in some weekly newspaper issued in each of the counties in which the lands of the district may lie.”
The act of May 8, 1899, brought forward in the Digest as § 6807 under the head of “Legal Notices and Advertisements,” reads as follows:
“All advertisements and orders of publication required by law of order of any court, or in conformity with any deed of trust, or real estate mortgage, or chattel mortgage, where the amount therein received exceeds the sum of $350, or power of attorney or administrators’ notices to be made, shall be published in some newspaper published and having a bona fide circulation in the county in which the proceedings are had, to which such advertisement or order of publication shall pertain; if there be no newspaper published in such county, then by posting five written or printed notices in five of the most public places in such county; provided, the provisions of this act shall not apply to sales under executions issued by justices of the peace; and provided further, that, as to amounts under $350, notices, written or printed, may be posted in five conspicuous places in the county, and notice shall be served in all cases upon the debtor as summons are now served.”
It will be noted in none of the statutes above quoted that the word “printed” is anywhere used therein so as to require such notices to be “printed” and “published” in the county. In the first statute quoted, § 3607, the notice is required to be given by publication “in some newspaper published and having a general circulation in the county.” The next section quoted, § 3615, is that the publication shall be in some newspaper “issued” in the county, and that the general statute pertaining to legal notices and advertisements is that they “shall be
published in some newspaper published and having a bona ficle circulation in the county.”
Under the statute existing prior to 1899 relating to legal notices and advertisements, which provided that the publication shall be “in some daily or weekly newspaper printed in the county where the suit or proceeding is pending, or where the * * * subject of the proceeding or publication is situated, provided there be any newspaper printed in the county having a bona fide circulation therein, which shall have been regularly published in said county for the period of one month next before the date of the publication of said advertisement,” this court held, in Jackson v. Beatty, 68 Ark. 269, 57 S. W. 799, that the word “published” as used in that statute was synonymous with the word “printed.” The court there said: “Nor will we, in this special statutory and summary proceeding, indulge in any astute refinements of construction in order to show that the statute in regard to jurisdiction has been complied with.”
The substance of the opinion in this case is stated in the syllabus as follows:
“An order calling in county warrants for cancellation and reissue is void where neither the.proof of publication, nor the sheriff’s return, nor the record of the court, shows that the newspapers in which such order was advertised were regularly published in the county for the period of one month next before the date of the first publication of said advertisement, as required by Mansfield’s Digest, § 4356.”
The decision in this case, being under a different statute, cannot be controlling here. Since, as we have seen, the Legislature has removed the requirement that the notice of publication be made in a newspaper printed in the county, the question for our determination is, whether the Texarkana Evening News was published in Texarkana, Miller County, Arkansas, although printed in Texarkana, Texas. Nor do we think that the decisions of this court in Wolf v. Phillips, 107 Ark. 376, 155 S. W. 924, where it was held that a paper printed in one judicial district and having a circulation in the other did not comply with the law requiring publication in a newspaper in the district where the land is located, and Gibson v. Incorporated Town of Hoxie, 110 Ark. 547, 162 S. W. 568, where it was held that the statute requiring certain city ordinances relating to improvement districts to be published in some newspaper published in said city or town for one insertion, were mandatory, and required such notices to be published in a paper actually published in the city or town where the ordinance is passed, and the publication of the ordinance in a newspaper published in the adjoining town of Walnut Ridge was not in compliance with the statute, although there was no paper published in Hoxie at that time, are controlling here.
The whole object of the statute relating to notice in the formation of drainage districts and the assessment of benefits therein is to give notice to that part of the public affected thereby, and is jurisdictional. The publication of the notice must be made in accordance with the statute, as it is in the nature of constructive service and takes the place of actual service on those interested. As was said by this court in Winn v. Campbell, 94. Ark. 841, 126 S. W. 1060: “That publication required by the statute was intended as a substitute for personal service, and, in order to give the court jurisdiction, compliance with the terms of the statute was imperative.”
The best definition of the word “publish” that has ' been brought to our attention, and the one that apparently has been adopted and accepted generally by the. courts of last resort throughout the country, was that of Mr. Justice Field in Leroy v. Jamison, Fed. Cases 8271, where he said:
“In one sense, a paper is published in every place where it is circulated, or its contents are made known But it is not in that general sense that the language, ‘place of publication’ in the statute is used. That language refers to the particular place where the paper is first issued, that is, given to the public for circulation.”
This definition was followed by the New York Court in the case of In re Gainsway, 66 Misc. Rep. 521, 123 N. Y. Supp. 966, where the court said:
“The proof is satisfactory that the notice appeared in a printed newspaper known as the Remsen News, which was circulated in the town of Remsen, at least five days before the election. But the claim is that the Remsen News is not a newspaper published in the town of Remsen. The proof shows that the Remsen News is ia weekly newspaper, printed in some place other than the town of Remsen, but entered as second-class matter in the town of Remsen, and mailed to a large number of subscribers in the postoffice at the village of Remsen, and itself shows that it is intended for the town of Remsen and to be uttered and distributed in the first instance in said town. In my opinion, at the time of the alleged publication, it was a newspaper published in the town of Remsen, and the notice was legally published.” ■
That decision was under a statute that provided that the notices “shall * * * be published at least five times before the vote is to be taken, once in one newspaper published in the county in which such town is situated, which shall be a newspaper published in the town, if there be one.”
The Illinois Supreme Court, in Polzin v. Rand-McNally & Co., 250 Ill. 561, 95 N. E. 623, Ann. Cas. 1912B, 471, defined the word “published” as follows: “By the word ‘published’ is clearly meant the place where the newspaper is first issued or printed, to be sent •out by mail, or otherwise.”
See also People v. Bead, 256 Ill. 408, 100 N. E. 230, Ann. Cas. 1913E, 293; Nebraska Land etc. Co. v. McKinley-Lanning Loan & Trust Co., 52 Neb. 210, 72 N. W. 357; Amos Brown’s Estate v. City of West Seattle, 43 Wash. 26, 85 Pac. 854; LeFavor v. Ludolph, 35 Cal. App. 145, 169 Pac. 412. And in 29 Cyc., under the head of “Notices,” it said: “The place of publication of a newspaper is that indicated on its face, and such paper is printed in the place so designated, within the meaning of a statute requiring the publication of a certain advertisement, and it matters not that part or even all of its issue is printed elsewhere, or that part of its issue is mailed elsewhere. The whole city, village or township in which a newspaper is published is its place of publication within the meaning of la statute requiring an advertisement to be published in a newspaper.”
iSince, as we have already seen that the Texarkana Evening News, although printed in Texarkana, Texas, is brought across the line into Texarkana, Miller County, Arkansas, showing on its face that it is a Texarkana, Miller County, Arkansas, publication, with such a headline and dating, and for distribution to the public in the first instance, it necessarily follows that such newspaper was published in Texarkana, Miller County, Arkansas, within the meaning of the statutes relating to notices in the organization of drainage districts and the assessment of benefits therein, as heretofore quoted.
The judgment of the circuit court will therefore be reversed, and remanded with direction to enter a judgment overruling the order of the county court and sustaining the legality of the organization of the district, and the assessment of benefits therein, in so far as affected by the legality of the notice published in the Texarkana Evening News, and for further proceedings according to law. | [
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McHaney, J.
'This appeal involves another construction of Amendment No. 11 to thé Constitution of this State. Appellee, Mena Star Company, is a printing-establishment in the city of Mena, Polk County, Arkansas, and in the year 1926, by order of the county board of election commissioners of said county, printed election supplies for the general State election in October and the congressional election in November, consisting of ballots, poll-books, tally sheets, etc., the bill for which amounted to $114.50. The appellee, G. F. Bickle, is the sheriff of said county and, as such officer, had charge of the prisoners charged with crime in said county who were confined in the county jail, and incurred charges against the county in the lawful sum of $19 for feeding’ them. Both appellees presented their claims to the county court, which were disallowed, and they thereupon, within apt time, appealed to the circuit court. The cause was submitted to the circuit court upon these claims and an agreed statement of facts, which is as follows:
“It is agreed that, at the end of the fiscal year 1924, Polk County was indebted in a large amount upon outstanding- county warrants, which were legal obligations of said county, and that bonds have never been issued to liquidate said indebtedness.
“That, for the year 19.25, the revenues accruing to said county for said year exceeded the allowance by the county court of said county of claims accruing during said year, but that, during said year, a large amount of the warrants which were outstanding at the close of the fiscal year 1924 were presented to and paid by the county treasurer of said county out of the revenues of said year 1925, and that, by reason of said payments, the revenues for said year were not sufficient to pay all warrants issued upon allowances for said year 1925.
“That, for the year 1926, the revenues accruing to said county for said year amounted to the total sum of $33,054.72, and that allowances by the county court for said year of claims against said county amounted to the sum of $19,717.53, and that additional obligations of said county were contracted during said year to the amount of $8,453.4$, but that such claims as were presented therefor were not allowed, for the reason that, at the time of their presentation, the funds of the county had been exhausted by reason of the fact that there had previously been presented to and paid by the county treasurer of said county the sum of $14,399.61 of warrants of the 19'25 issue; that the total revenues of said county for the year 1926 exceeded the total amount of the legal obligations of said county which accrued during said year in the sum of $4,883.74, and that the claims of the claimants herein were among the obligations of said county which accrued during said year.
“That the claims of the claimants herein were not presented to the court for allowance until April 15,1927, and that, at the time of their presentation, there were, and still are, sufficient revenues of said county of the year 1927 to pay said claims as well as all other legal obligations which were incurred by said county during the year 1926, in addition to the claims that have been presented for allowance during’ the year 1927, the said obligations for the year 1926 unpaid amounting to the total sum of $8,453.48 as aforesaid. ■
“That the claim of the claimant, the Mena Star Company, is for printing the ballots, poll-books and other election supplies ordered from claimant by the election commissioners of said county and used by them in the conduct of the general elections held in said county during said year 1926, and were used for said purpose; that the amount of said claim is correct, and that said claim has not been paid, and that the amount thereof is $114.50.
“That the claim of the claimant, Gr. F. Bickle, is for services rendered by him during the year 1926 as sheriff of said county for keeping and feeding prisoners confined in the jail of ¡said county, which, under the law, he was required to keep and feed, and that said claim is correct in amount, and has not been paid, and that the amount thereof is $19.
“That said claims were duly and in due form of law presented to the county court of said county for allowance and were by the court disallowed, from which orders of disallowance said claimants have duly prosecuted their appeals to the circuit court of said county.”
Thereupon the circuit court rendered judgment allowing both claims, made an order directing the county clerk to draw his war rapt on the treasurer in payment thereof, and directed the certification of its judgment to the county court, to be spread upon its records. An appeal was prayed and granted, so the case is here for our determination.
As heretofore stated, it becomes necessary again to construe Amendment No. 11, the pertinent parts of .which are as follows:
“The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any .contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip, warrant or make any allowance in excess of the revenue from all sources for the current fiscal year; nor shall any city council, board of aldermen, board of public affairs, or commissioners of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any purpose Avhatsoever, or authorize the issuance of any contract or Avar rants, scrip or other evidence of indebtedness, in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk, or recorder, or any other officer or officers, however designated, of any city of the first or second class, or incorporated town, sign or issue any scrip, warrant or other certificate of indebtedness, in excess of the revenue from all sources for the current fiscal year. ' Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax, in additiozz to that ziow authorized, not exceeding three mills, may be levied for the time as provided by law until such izzdebtedness is paid.”
This court has already had this amezzdmezit under consideration in the same or differezit phases in the following cases: Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865, where the amendment was held adopted; Kirk v. High, 169 Ark. 152, 273 S. W. 289; Matheny v. Independence Co., 169 Ark. 925, 277 S. W. 22; Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649; Jewett v. Norris, 170 Ark. 71, 278 S. W. 652; Nelson v. Walker, 170 Ark. 172, 279 S. W. 11; Airheart v. Winfree, 170 Ark. 1126, 282 S. W. 963; Martin v. State ex rel. Saline Co., 171 Ark. 576, 286 S. W. 873; McGregor v. Miller, 173 Ark. 459, 293 S. W. 30; Independence Co. v. Lester, 173 Ark. 796, 293 S. W. 743; Dixie Culvert Mfg. Co. v. Perry Co., 174 Ark. 107, 294 S. W. 381; Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006. It will therefore be readily seezi that this court has beezz called upozi to answer differezit questiozzs arisizig under, because of, or out of this amendment a goodly number of times since it was declared adopted in Brickhouse v. Hill, supra, decided February 16, 1925.
Before proceeding to a discussiozi of the issues izivolved in tliis case, it may be -well to bear in mind a few of the fundamental rules of construction relating to constitution fil amendments, izi cozzneotiozz with the original Constitution, and also the language of § 2 of this Amend ment, -which specifically provides that it shall repeal only such provisions of the Constitution as are in conflict with the provisions of this Amendment. In Kirk v. High, supra, this court said:
‘ ‘ The rule by which amendments to the Constitution are to be construed was stated in the case of Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656, where it was said: ‘The amendment being the last expression of the popular will in shaping the organic law of the State, all provisions of the Constitution which are necessarily repugnant thereto must, of course, yield, and all others remain in force. It is simply fitted into the existing Constitution, the same as any other amendment, displacing only such provisions as are found to be inconsistent with it. Like any.other new enactment, it is a “fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it.” State v. Sewell, 45 Ark. 387. In the construction of its terms, and in the determination of its scope and effect, the courts should follow settled rules of interpretation.’ ”
Therefore this amendment simply took its place in the Constitution of this State as already written, as a part thereof, neither more nor less than any other section, clause or part thereof. It was simply a “fresh drop added to the yielding mass of the prior law, to be mingled by interpretation with it”. (State v. Sewell, 45 Ark. 387) and was devised by its framers and adopted by the people with two purposes in view: (1) to prevent them from incurring any indebtedness in any fiscal year in excess of the revenue from all sources for such year; and, (2) to provide a way to pay indebtedness existing at the time of the adoption of the Amendment. So, as was said again in Kirk v. High, supra, “No interpretation of the Amendment under consideration in this case should be allowed which would conflict with any other provision of the Constitution, unless it is absolutely necessary in order to give effect to the Amendment. On the other hand, such construction should be given as will, if possible, leave all the other provisions of the Constitution unimpaired and in full force.” State v. Donaghey, 106 Ark. 56, 152 S. W. 746.
The court in the same case quoted from People v. Potter, 47 N. Y. 375, as follows:
“The intent of the lawmaker is to be sought for. When it is discovered, it is to prevail over the literal meaning of the words of any part of the law. And this intent is to be discovered, not alone by considering the words of any part, but by ascertaining the general purpose of the whole, and by considering the evil which existed calling for the new enactment, and the remedy which is sought to be applied. And when the intent of the whole is discovered, no part is to be so construed as that the general purpose shall be thwarted, but all is to be made to conform to reason and good discretion. And the same rules appty to the construction of a Constitution as to that of a statute law. ’ ’
Again, in the same case, the following was cited and approved from State v. Scott, 9 Ark. 270 :
“In determining the intentions of the framers of the Amendment we must keep in view the Constitution as it stood at the time the Amendment was made, the evil to be remedied by the Amendment, and the Amendment proposed by which the evil is to be remedied. No interpretation should be allowed which would conflict with any other provision of the Constitution, or which is not absolutely necessary in order to give effect to the proposed Amendment. On the contrary, such construction should be given as will, if possible, leave all the other provisions in the Constitution unimpaired and in full force.”
Bearing these well established and universal rules in mind, we are of the opinion that it was not the purpose of the framers of this Amendment or the intention of the people in adopting it to obstruct the necessary and orderly administration of the affairs of the counties, such as are imposed upon them by the other provisions of the Constitution and laws of this State. The holding of elections, printing ballots, poll-books, tally sheets and other election supplies; the feeding of prisoners confined in the county jail; the holding of courts of record and fees of justices of the peace; the salaries and fees of county officers, including the prosecuting attorneys; the making of assessments and taxbooks, and collecting-taxes, are all necessary county expenses imposed by law, over which the county court has no control or discretion, except possibly the amount to be allowed for the service rendered* as all compensation is either fixed by law or is provided for.
The sixth subdivision of § 1982, C. & M. Digest, reads as follows:
“The court shall then proceed to the making of appropriations for the expenses of the county or district for the current year, including as such expenses any items for blank printed forms used by any of the several county officers, to-wit: Sheriff, clerk, coroner, collector, assessor or treasurer of said county or district, and also for fuel, lights and stationery used by such officers in their respective offices, and for official purposes; and said appropriations shall be made in the following order:
“ (1). To defray the lawful expenses of the several courts of record of the county or district and the lawful expenses of criminal proceedings in magistrate’s courts, stating the expenses of each of said courts separately. (2). To defray the expenses of keeping persons accused or convicted of crime in the county jail. (3). To defray the expenses of making the assessments and taxbooks and collecting taxes on real and personal property. (4). To defray the lawful expense of public records. of the county or district. (5). To defray the expense of keeping paupers of the county or district. (6). To defray the expense of building and repairing-public roads and bridges' and repairing and taking care of public property. (7). To defray such other expenses of county government as are allowed by the laws of this State. ’ ’
In the case of Worthen v. Roots, 34 Ark. 356, construing the foregoing section with reference to items 1 to 7, this court said:
“The nature and reason of this distinction, and, indeed, the full scope of the operation of the Constitu tion itself, will become apparent from a consideration of the various purposes for which the tax is to be levied. Reverting to them, it will be seen that the first four are of an indispensable nature, essential to the support of the Government. They are for services that must be performed, or the business of the counties must stop. The last three are not supposed to be imposed by necessity, but are matters of contract.”
It will therefore be seen that this court, many years ago, determined and held that there were two classes of obligations dealt with in this section of the statutes; first, those that are imposed on the counties by law and about which the county court is substantially without any discretion; and, second, those that relate to matters of contract regarding the internal affairs of the county, or internal improvement thereof, over which the county court has discretionary power — items 1 to 4 inclusive being in the first class, and items 5, 6 and 7 being in the second class.
Bearing this section of the statutes in mind, let us analyze that part of § 1 of Amendment No. 11 now under consideration. The first clause thereof reads: “The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk, or any other county officer, sign or issue any scrip, warrant, or make any allowance in excess of the revenue from all sources for the current fiscal year.” The remainder of that paiag'raph has reference to cities and towns. It will be seen that the prohibition therein is against the making of contracts or allowances in any year in excess of the revenue from all sources for that year. In other words, the levying court may appropriate the total revenue and the county court may make contracts and allow claims for all the revenue of any fiscal year, regardless of indebtedness existing at the time of the adoption of this Amendment, December 7, 1924, and regardless of other -indebtedness incurred subsequent to December 7, 1924, provided same was not in excess of the revenue for the year in which it was incurred. According to the agreed statement of facts, contracts and allowances made by the county court for the year 1925 did not absorb all the revenue for that year, but that the payment of warrants outstanding at the time of the ¡adoption of this Amendment made it impossible to redeem all claims contracted and allowed during such year. . The same thing is true for the year 1926. This was not in violation of the Constitution, for the reason that the contracts and allowances for- those fiscal years did not exceed the revenues for such years, but in fact were much less, thereby enabling the county to reduce its indebtedness without exercising the bond-issuing provisions of this 'amendment. The revenue for Polk County for 1926 was $33,054.72. The county court allowed claims for said year in the sum of $19,717.53 and contracted other obligations amounting to $8,453.48, or a total of $28,171.01, or nearly $5,000 less than the revenue, but, by reason of a large indebtedness brought over from 1924, incurred prior to December 7, a large part of which had 'been paid in 1925 and ’26, the county was unable to pay out of the revenue of 1926. all the allowances and contract obligations incurred in that year. Under this state of facts, we hold that they may be paid out of revenues for 1927, or subsequent revenues, and that they are valid claims against the county in so far as they may be affected by Amendment No. 11. -
Quorum or levying- courts should follow the provisions of the sixth subdivision of § 1982 of C. & M. Digest ' strictly in making appropriations. They should first make ample provision for those necessary expenses imposed on the counties by law, including outstanding warrants payable in that year, as, for instance, an installment due for construction of a courthouse; and, after having done this, they are at liberty to make appropriations of part or the whole of the remainder of the revenue for the purposes provided by items 5, 6 and 7, but they cannot exceed the amount of the revenue for the fiscal year. If contracts are made or warrants issued in any year in excess of the revenue for that year, they are void. Dixie Culvert Mfg. Co. v. Perry Co., supra.
It follows from the foregoing that the judgment of the circuit court is correct, and must be affirmed. It is so ordered. | [
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Griffin Smith, C. J.
1. Has a divorced man (who bad an infant daughter when the decree was rendered in 1924) a homestead in lands devised to himself and others, subject to a life estate in the testator’s wife, such remainderman having occupied the premises with his mother until she died in 1929 ¶
2. Did the divorce, in consequence of which (a) the wife was given a third interest for life in her husband’s undivided fourth interest in his father’s estate; (subject to rights of the remainderman’s mother) and (b) was awarded custody of the daughter toward whose maintenance the father was directed to pay ten dollars monthly —did these facts, coupled with failure of the father to pay the maintenance judgment, or to account to his former wife for rents and profits from 1929' when the remainder vested, destroy the father’s status as head of a family?
3. Did the chancellor err in finding that, although the remainderman resided on the undivided lands from 1929 until his interest was assigned in 1937; that he remarried at a time decidedly vague and did not establish a new domestic status on the property until lien of the judgment attached — was it error, in these circumstances, to hold that such judgment creditor’s rights were prior to the so-called homestead it was claimed had been acquired with Wife No. 2?
4. Did the purchaser at the execution sale February 26, 1937, become a tenant in common?
5. Did the creditor’s purchase from the state in 1938 for tax forfeitures of 1934 extinguish the rights of Wife No. 1?
These and other questions are presented by the appeal. A statement of essential facts appears in the margin.
& * *
Was Reece W. Jones the head of a family within that contemplation of law which would entitle him to claim homestead rights; or, if the right existed, was it waived? After Elizabeth divorced him, Reece lived on the property with his mother until she died in April, 1929. His undivided interest became vested. Certainly, during the life tenant’s possession the homestead now contended for did not attach. Smith v. Watkins, 187 Ark. 852, 62 S. W. 2d 41. It was there said that “No particular tract of the 320 acres was owned by any of [the remaindermen] until the termination of the life estate, and a partition of the land among the nine heirs.” Brooks v. Goodwin, 123 Ark. 607, 186 S. W. 67, was cited as authority for the proposition that “ . . .. occupancy must be accompan ied by a present claim of a right to occupy, and one can-' not occupy an estate in remainder as a residence.” This, it was held, was true because only the owner of a particular estate has the present right of occupancy “essential to impress the homestead character upon the land.”
Elizabeth and Reece separated in April, 1922, although divorce was not decreed until 1924. Between 1922 and 1924 the daughter, Juliette, was born. Neither the mother nor child lived with Reece after 1922. In fact, the father testified he had not seen either since 1924.
It does not seem to have occurred to Reece when he answered Thompson’s complaint that homestead should be claimed because of his status as a father. For some unexplained reason the daughter passed out of his life. A few payments were made on the monthly award of ten dollars intended for the child’s benefit; but these stopped so many years ago that the accumulated delinquencies amounted to $1,750, for which judgment was given against Reece. He did not pay the former wife anything in satisfaction of the life interest she was given in the land. This, as is shown in the statement of facts appearing as a footnote, was claimed by Elizabeth to be $2,400.
It is true, therefore, that from April, 1929, until Ruby came to the farm, Reece was, to all outward appearances, a divorcee conducting his agricultural affairs as a single person, without weight of obligation insofar as the daughter was concerned. Neither had he, before June, 1933, confided to anyone that a second marriage had been consummated; and in the meantime Thompson’s judgment became a -lien unless Reece was head of a family, entitled to the property as a homestead, if the right had not been waived. And here, again, it is important to. remember that the family status was predicated upon marriage to Ruby. The daughter was still forgotten.
Evidence regarding time of the second marriage is the testimony of Ruby and Reece that they went from Mississippi to St. Louis, where, Ruby says, the ceremony was performed at the home of a Baptist minister. She and Reece remained in the city “several days.” The wedding, Ruby testified, was on Sunday, July 2. Reece confirmed his wife’s statement that they went to the home of a Baptist minister, but he did not remember the clergyman’s name, nor what the house looked like, where it was, or in what building license was procured:— “I was directed: I just asked where to go, and was directed. ’ ’ He did not know where they stayed — at what hotel, and: —“I don’t remember whether we left the same day, or the next. ’ ’
Interrogatories answered by officials having exclusive custody of records of licenses issued in the City of St. Louis, and in the county, contradicted the claim of marriage in either jurisdiction. No license had been issued to Reece W. Jones or R. W. Jones to marry either Ruby L. Wright, or Ruby Lee Wright. A three-year period — -T931,1932, and 1933 — was checked.
Returning to Arkansas, Reece says he went to his farm, and that Ruby joined her parents at their home south of McCrory. Question: “And you continued your residence that way until June, 1933?” Answer: “That is right. ’ ’
Annie Wise, clerk for M. D. Thompson & Son (Mc-Crory merchants) identified sales tickets representing purchases by Ruby, beginning June 23, 1933. It was also shown that the second of July in 1932 came on Saturday, and not on Sunday as Ruby had testified. D. M. Huff, as exhibits to his evidence, filed charge tickets showing that Reece was in the store July 2.
The Chancellor was justified in holding that a marriage consummated prior to the lien of Thompson’s judgment had not been proved. Result is that the attempt to establish homestead rights failed unless the fact (incidentally developed) that Reece was a father entitled him to shift the ground of his claim and rely upon a strict construction of the law which would violate the principles. of equity, and permit evasion of parental responsibility to prevail over the claims of a creditor, the justness of whose account is not questioned.
It is well established that as to a homestead there are no creditors. White v. Turner, 203 Ark. 95, 155 S. W. 2d 714. One who, as head of a family, has acquired a homestead, does not lose it by subsequent dissolution of the family if the claimant retains the property as a residence. Baldwin v. Thomas, 71 Ark. 206, 72 S. W. 53. In Stanley v. Snyder, 43 Ark. 429, it was held that when the association of persons which constitutes the family is broken up, whether by separation or the death of the members, “the right of homestead continues in the former head of the family, provided he still resides at his old home.”
That a homestead acquired by a married person is not lost by his wife’s divorce, though no family lives with the former husband, was held in Butt v. Walker, 177 Ark. 371, 6 S. W. 2d 301. [See cases collected under “Homestead,” Arkansas Digest (West). §§ 154 et seq.~\
But is is equally certain that the homestead may be abandoned, and whether abandonment has occurred is always a question of intention. Gates v. Steele, 48 Ark. 539, 4 S. W. 53. The exemption, it was said in Barnhart v. Gorman, 131 Ark. 116, 198 S. W. 880, is a personal one. It must be claimed by the party who seeks its benefits.
It is basic that if a court reaches the right conclusion by an erroneous reasoning, the judgment or decree will not be reversed because a wrong theory was followed, provided the cause was fully developed and the losing party was not misled.
In the instant ease Reece Jones, knowing he was the father of a seventeen-year-old daughter; knowing that, unless the status should be waived he remained the head of a family within legal contemplation, though not in fact; fully cognizant of his right to test a claim to the homestead in question, yet conscious of having abdicated a position he had no intention of attempting to retrieve — in these circumstances he affirmatively declared himself the head of a family because of a marriage he said was consummated July 2, 1932: a marriage the chancellor, on ample evidence, found did not occur until months later. No word of testimony communicates even a suggestion that if adjudged homestead rights Reece expected to discharge his obligation to the child — a daughter upon whose' existence, coupled with what would be termed a strained quirk in construction, it is now sought to use, to amplify, and to dilate that which common sense must treat as a legal myth. It is a construction we cannot accept.
# * #
The final question is, Did Thompson’s purchase from the state extinguish Elizabeth’s interest?
Following the 1924 divorce decree, Elizabeth and the child lived in Little Rock, then moved to Ft. Smith. Elizabeth married and is now Mrs. White. It is argued that she neglected “to pay any attention” to the land interest assigned her. This is inferentially contradicted by an answer Reece gave to the question, “Has [your former wife] ever made demand upon you to share with her or to pay to her anything from these lands?” He •replied: “Well, there have been several court actions on that and I don’t recall. Several times something has been brought up. ’ ’
• It was then conceded that no rents or profits had been paid; nor, on the other hand, had Elizabeth contributed to taxes or expense of repairs.
It must be borne in mind that when the life tenant named in the will of Stith M. Jones died in 1929, values were depressed; and net income from farm properties was non-existent except in rarest instances. Elizabeth had no claim from 1924 until April, 1929. The life estate of the testator’s wife intervened. Therefore income from the property must have been small for several years. That Elizabeth did not unduly harass Reece when values became normal should not be urged as laches.
It was not until July 12, 1937, that final orders were made in the suit which set aside to Reece the land he now claims as exempt. Thompson was a party to the proceedings. There was a finding that . . Elizabeth Aubrey Jones White is the owner of an undivided one- third interest for life of the lands [now assigned Reece Jones], as provided for in a decree of this court [rendered in 1924”].
Thereafter (January 10,1938) Thompson purchased the state’s title; and still later (May 9, 1938) the lands were included in the confirmation decree. Act 119 of 1935. Whether title in the state was good, or whether the collector’s sale was voidable, passed from consideration with confirmation if there was power to sell.
While confirmation was pending Reece asked that the cause asserted against him by Thompson be consolidated with the state’s suit, and this was done September 12, 1938.
Elizabeth, in her answer and cross complaint to the suit (consolidated with the state’s foreclosure action at her former husband’s request) challenged validity of the. tax sale. This occurred less than a year from May 9, 1938. But, it is argued, Elizabeth did not deny knowledge that confirmation had been decreed, or make the tender required by § 6 of Act 119.
Although it is insisted a tender was made and that allegations necessary to confer jurisdiction were in the answer and cross complaint filed by Reece to Thompson’s suit, we think these disputations are beside the issue and that Thompson’s purchase through the land commissioner should be treated as a redemption.
^ it5
Thompson’s purchase at the execution sale February 26, 1937, was subject to Elizabeth’s interest. When the sheriff’s deed was delivered March 14,1938, it related back to the time of purchase. Four months after Thompson’s bid was accepted, the partition decree was rendered ; and, as has been said, Thompson was a party to that proceeding. He therefore became a tenant in common with Elizabeth, and Elizabeth had been a tenant in common with Reece. This seems to have been the view of the lower court, where judgment against Elizabeth was for $296.16. The judgment against Reece for $1,750 is not questioned; nor is the allowance of $300 to Elizabeth’s attorney a matter of controversy. Smith was employed by Elizabeth to look after her interests in the property, and not to seek partition; hence, § 10530 of Pope’s Digest has no application. Neither is it contended that the chancellor’s action in disallowing Elizabeth’s claim for rents and profits was erroneous.
The decree is affirmed in all respects.
On rehearing Mr. Justice Robins concurs in the result, but not in all the declarations of law.
Stith M. Jones died testate in 1907 survived by children, and by his wife, Blanche M. Jones, who elected to take under the will. His real estate was devised to the wife for life. Stith M. Jones, Jr., a son of the testator, received by voluntary assignment and acceptance the share to which he was entitled. Paul M. Jones, another son, died during the life of the testator’s widow, leaving two children. Other than the land assigned to Stith, Junior, the remainder was held in common by those favored in the will.
Blanche M. Jones died in March or April, 1929. September 12, 1932, Vance M. Thompson and others in business with him procured judgments against Reece W. Jones, Blanche Joy Jones McPayden, and Egbert Jones for a large sum. Thompson and his associates conducted a mercantile business and supplied farmers. February 3, 1937, an execution based on the judgment, which was revived in 1936, was delivered to the sheriff, and levy was upon lands involved in this appeal. Reece W. Jones, Blanche Joy Jones McFayden and Egbert A. Jones were treated as owners of an undivided one-fourth each. At the sale conducted February 26, 1937, Thompson’s bid of ¡¡>18,000 was accepted. The sheriff’s! certificate of purchase was issued March 14, 1938.
With receipt of his deed, Thompson immediately sued in ejectment, naming Reece W. Jones as defendant and describing the lands he contended were being withheld from his possession.
September 12, 1938, Reece W. Jones answered Thompson’s complaint. Ruby L. Jones filed an intervention and cross complaint, in which it was alleged that, after the death of Blanche M. Jones, estates in fee vested in the children and grandchildren. It was contended by the cross complaint and intervener that she married Reece W. Jones “in the month of July, 1932.” They were, therefore, husband and wife when in September, 1932, Thompson procured his judgment. Further, it was alleged, the couple resided on the undivided lands. Their home was on the southwest quarter of the southeast quarter of section twenty-four and the west half of the northeast quarter of section twenty-five, township eight north, range three west. Other described lands of the estate were said to be contiguous.
Insistence is that the land in question constituted the homestead of Reece W. and Ruby L. Jones. There was a prayer for transfer to chancery.
As an exhibit to his amended complaint, Thompson attached the state’s deed evidencing his purchase of the lands, forfeiture having been for 1934 taxes. The deed is dated January 10, 1938. Title in the state, the complaint averred, was confirmed May 9, 1938, under authority of Act 119 of 1935.
In the answer, cross complaint, and intervention of Reece W. and Ruby L. Jones, it was alleged that [January 17, 1924] Elizabeth Jones, on her cross complaint to the action of Reece W. Jones, procured a decree of divorce, the marriage having been solemnized July 7, 1921. The decree awarded Elizabeth an undivided one-third interest in lands described. There was a finding by the court that Reece W. Jones was owner of an undivided fourth interest in the property, subject to the life estate of his mother, Blanche M. Jones. The estate awarded Elizabeth was for life. Custody of an infant daughter, Juliette, was given to the mother. There was judgment against Reece for $10 per month for support of the child, with right of visitation by the father at reasonable times.
The pleadings in which mention was made of Jones’ first marriage, emphasized failure of Elizabeth to take possession of any part of the land. In his brief Reece says of the former wife that “she is probably barred by the statute of limitations, but that question has never been settled by agreement, or by order, judgment, or decree of any court.” Finally, Reece stated the fact to be that there was partition of lands owned by .Stith M. Jones, Sr., and “lands described in the complaint were awarded by final decree to Reece W. Jones, and other heirs claim no interest.” The final proceeding in the partition suit was in 1:937.
In an amendment to their answer and cross complaint, Reece and Ruby alleged that, inasmuch as Thompson purchased through the land commissioner January 10, 1938, and the decree confirming the state’s title was not rendered until May 9 of the same year, the state had no title to confirm because Thompson had acquired the outstanding interest. There was the further averment that Thompson claimed to have previously purchased part of the lands, “. . . and these two defendants claim their homestead as part of the same, so that the said Vance M. Thompson was a tenant in common with the two defendants and could not purchase their interest at a tax sale or as forfeited lands.”
August 18, 1939, Elizabeth [Aubrey Jones White], on behalf of herself and as natural guardian and next friend of Juliette, intervened. The marriage of 1921 was referred to, as was also the divorce and awards set out in the decree, as heretofore mentioned. Juliette, Elizabeth said, was born August 20, 1922, and was seventeen years of age when the intervention was filed. No part of the judgment for monthly payments of ten dollars had been discharged. It was further alleged that on September 13, 1937, the Woodruff chancery court, in a decree partitioning lands in which Blanche M. Jones formerly had a life estate, awarded Reece Jones the west half of the southwest quarter of section thirty, township eight north, range two west; southwest quarter of the southeast quarter of section twenty-four, township eight north, range three west; northwest quarter of the southeast quarter and the east half of the northeast quarter of the southwest quarter, and the west half of the northeast quarter of section twenty-five, township eight north, range three west.
Assignment was subject to the undivided third interest for life decreed to Elizabeth. The intervener (Elizabeth) also alleged that the tax sale to Thompson for 1934 forfeitures was void for the reasons mentioned in her former husband’s answer. There was further contention that Reece had been in possession since 1929, collecting rents, and had failed to account. Six dollars per acre applicable to 129 acres in cultivation was a fair rental, she said; therefore $2,400 was due her, less taxes and reasonable allowances for repairs.
In answer to the cross complaint and other pleadings, Thompson denied that Reece and Ruby were married in July, 1932. The relationship of man and wife, he said, was not publicly assumed prior to March 7, 1933. '
The chancellor’s findings were that Thompson was entitled to possession of the land, subject to the undivided third interest for life awarded Elizabeth in 1924. The cross complaint of Reece and Ruby was dismissed for want of equity. Elizabeth’s life estate was made subject to a lien in Thompson’s favor for $296.16, covering taxes he had paid. Judgment in favor of Juliette was for $1,750. Commissioners were appointed to designate a third of the land on an equitable basis in favor of Elizabeth.
Reece W. and Ruby L. Jones appealed from that part of the decree finding in favor of Thompson. Thompson appealed from that part awarding Elizabeth a third interest for life. He also appealed from the court’s action in allowing Elizabeth’s attorney, J. Ford Smith, a fee of $300 and making it a lien on the land. | [
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McHaney, J.
Prior to January 29, 1922, there were two Baptist churches in the town of Bald Knob, one, the First Baptist Church, being- the Landmark Church, and the other, the Central Baptist Church, being- the Missionary or Conventional Baptist Church. On that date they were consolidated into one Landmark Baptist Church, one of the resolutions adopted on that date by the -Central Baptist Church being- as follows:
“That we, as a 'body, agree to go to Landmark, under the condition that you come and worship in the building- of the Central Baptist Church, until such time as the united bodies agree and erect a new church. We feel that we have gone more than half way in this offer, and that you should be willing to do this much for the uplifting of the Baptist cause in Bald Knob.
“Be it further resolved, that each church or body reserves the right to dispose of its church property until same is placed in -a new church.
“J. T. Reed, moderator.
“Mrs. T. W. Leggett, church clerk.”
After the consolidation, the consolidated body held its church services and meetings in the church-house of the Central Baptist Church. Some time after the consolidation the church-house of appellant was remodeled and converted into a residence, and, in order to obtain the money to make such improvements, they placed a mortgage upon this property in the sum o.f $1,350 to secure a note for borrowed money in such sum. The consolidated body continued to work together until the first Sunday in January, 1927, but with considerable discord for some months prior thereto, at which time the pastor announced that there would be a church meeting that afternoon, and that no one but Landmark Baptists would be permitted to vote at such meeting. This meeting- was held and a resolution adopted withdrawing fellowship from the appellees, the former members of the Central Baptist Church, the effect of which was to turn them out of church. Thereafter appellees took charge of the Central Baptist Church property, excluded the Landmark Baptists from using same, and brought a suit to enjoin them from using the property or from interfering with their possession of said property. A temporary restraining order was granted, and, on a final hearing, the chancellor found that the Central Baptist Church and the trustees thereof were the owners of its church property, including the grounds and the building, and had the fight to occupy, control and manage the same, free from any interference on the part of the appellants, and the temporary injunction theretofore granted was made perpetual. The chancellor further decreed a lien in favor of appellants against the piano belonging to the appellees in the sum of $63, which the appellants had paid on the purchase price thereof, and ordered the $270 then on hand and in bank to be divided equally between the parties. From this decree this appeal is prosecuted.
It is first contended by appellants that, by the act of consolidation on January 29, 1922, the property of the Central Baptist Church became the property of the consolidated bodies, under the name of the First Baptist Church, and that therefore the Central Baptist Church lost title to its property. But for the agreement between the bodies, as exemplified by the resolution adopted by the Central Baptist Church heretofore set out, that each body would retain title to its property until such time as same should be sold and put into a new church, appellants’ contention would undoubtedly be true. We think the chancellor put the correct construction upon the act of consolidation and the resolution adopted in connection therewith, that is, that each body would retain the ownership and title to its separate property until such time as they separately might sell or dispose of same and invest it in a new church to be the property of the consolidated body. The' resolution heretofore quoted specifically so says, and this resolution was accepted by the appellant church. No sale having been made by either body of its church property, it cannot be said that the church property of the' Central Baptist Church became the .property of the consolidated church, known as the First Baptist Church, We therefore hold that the title to the church-house and lot' belonging to the Central Baptist Church never did become the property of the consolidated body known as the First Baptist Church, or the Landmark Baptist Church.
It is next insisted that, if the court should hold that the title to the property of the Central Baptist Church did not pass by the consolidation, since the consolidated church remodeled its property, converting’ it into a residence for rental purposes, upon which a mortgage of $1,350 was placed, the membership of the Central Baptist Church should be chargeable with one-half the cost of such improvements. We cannot agree with this contention. That property belongs to the First Baptist Church, and it and its membership alone are responsible for such debts incurred against it, even though made and incurred with the knowledge, acquiescence, consent or active participation' of some of the present members of the Central Baptist Church. The improved property is still its property, and the membership of the Central Baptist Church have no rights or interest therein. This mortgage was placed thereon by authority of the then membership of the First Baptist Church, and the membership still existing therein are the beneficial owners thereof. Being the owners of this property, the organization as it now stands is responsible alone for this debt. The action of the Landmark members in excluding the other part of their membership was tantamount to an assumption of this indebtedness. The First Baptist Church, being the owner of the property, entitled to receive all the rents and profits therefrom, is likewise liable for its debts. We do not understand just how a court of equity could hold the members who had been expelled from the church by the voluntary action of that church liable for the church’s debts.
It is finally contended that the court erred in finding that the First Baptist Church had paid only $63 on a piano now in use at the Central Baptist Church, for which a lien was fixed on said piano, and that the joint organizations have on deposit in the banks sit Bald Knob the sum of $270 contributed by the congregations of both bodies, which it ordered divided equally between them, because, appellant says, there is no evidence to support such findings. There is evidence to show that a piano owned by the appellants was sold and the proceeds used to pay a balance due on the piano of appellees, and there is evidence in the record to show that, at the time of the separation, the joint body had money, on'deposit in the banks. Just how the court arrived at the exact amount of each item we are unable to tell, but, since appellant has not questioned the correctness of the- amount, only that it is without evidence to support it, we overrule this contention. Appellants did not offer to show that these amounts were other and different from that found by the ■ court.
We find no error, and the decree is affirmed. | [
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Kirby, J.,
(after stating the facts). It is insisted for reversal that there is no testimony sufficient to support the judgment, and that the court erred in giving certain instructions in which it is’ claimed the driver of the truck causing the damage in the collision was assumed to'be the agent of appellant, instead of leaving the question to be determined by the jury.
It is true that the plantation manager who hired the trucks to be used in the transportation of the hands or laborers from Pine Bluff to the plantation testified that lie employed Starks as the driver of one of them, the one afterward in the .collision, and put him in charge thereof, and had no knowledge or information that another driver, Wells, had been substituted for him on the trip to the farm in the morning, and knew nothing about the different driver taking the loaded truck back to Pine Bluff in the evening, until after hearing of the collision and wreck that night; stated, however, that he did come along in his own car. near the trucks, when they started out, and had waited, for them at the free bridge to inquire how they were proceeding, and had given Jim Greer, the agent of the company, who collected the hands and accompanied them to the plantation in their work there, money to purchase a fan belt for one of the trucks. The change of drivers, was made about this time, or had been made before.
Several witnesses testified that Mr. McKenzie, the 'manager, was present when the change was made. One or two of the witnesses being carried in his car stated they had noticed the driver being changed, and that Wells had been substituted for Starks at the store near the bridge. The testimony also shows that the hands were paid off by the bookkeeper at the store upon the identification of Jim Greer, and that Wells was paid as a truck driver at his suggestion.
The driver, Jack Jaggers, furnished by the hiring ' agency for one of the trucks, was necessarily the servant of the appellant company, engaged in its business in transporting the hands or laborers to the plantation, and subject to the control and direction of his employer, as was also Jim Greer, whose business it was to collect the hands, assist in getting them to the plantation, and see that they did the work which they were employed to do.
The testimony tends to show that McKenzie, the manager, was present when the change of drivers was made, and one witness said that he knew it was done. In any event, whoever drove this truck taking the laborers to the plantation for cotton chopping, was engaged in the service of the master, whose duty it was to carry them to and from their place of labor, under the terms of their employment.
The driver of one truck sent along by Hood, from whom the three trucks were hired, was not charged with any duty to Hood, the proprietor of the “U-Drive-’Em” agency, to procure or supply drivers for the other two trucks, nor for their safe operation, being sent along by the hiring agency, so far as the other trucks were concerned, only to keep them in good mechanical condition. He was otherwise the servant of appellant company in the transportation of its laborers to and from the plantation.
If Starks, the driver employed by appellant’s manager, had abandoned the truck on the trip without reason or excuse, in the absence of the manager, McKenzie, who had started out with and accompanied the trucks for some distance on the way, and either Greer, who had employed and collected the laborers and was accompanying them to the'plantation, or Jaggers, who was the driver hired with one of the trucks for transporting them, had assumed to place another driver in charge of the truck abandoned by Starks for completion of the trip, there is no reason to say that such substituted driver would not have been the servant of the appellant company in such operation. This substitute for Starks drove the truck on down to the plantation, and was paid off by the bookkeeper of appellant company, upon the designation by Jim Greer as a truck driver, when the other laborers were paid for the day’s work.. He started on back to Pine Bluff, driving the truck, the former driver, Starks, having departed on the afternoon train, transporting and returning the farm laborers to their home in the evening in accordance with their contract of employment, and we hold that he was a servant of the master engaged about the master’s business in so doing, and necessarily for whose negligence, so far as the public is concerned, the master must be held to account.
The instructions complained of do not tell the jury that the truck was operated by the agent of the appellant company, bnt it is. apparent that it was -the intention to leave the jury to find from the evidence that it was operated or driven by the agent of the appellant; and if its meaning was regarded doubtful on this point, the error should have been corrected by a specific objection, which was not made.
The jury has found, on conflicting evidence, that the collision with appellee’s automobile and its destruction and the injury to appellee Nelson was caused by the negligent operation of appellant’s truck in the conduct of its business, and its verdict will not be disturbed.
The assignment that the damages adjudged for personal injury to appellee Nelson are excessive seems to have been abandoned here, but the testimony is sufficient to support the verdict, in any event.
We find no prejudicial error in the record, and the judgments are affirmed. | [
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Hart, C. J.,
(after stating the facts). The main reliance of counsel for the defendant for a reversal of the judgment is that the plaintiff is bound by the release which he executed in favor of the railroad company. The release recites that, for the sum of $3,500, the plaintiff releases, discharges'"''find receives full satisfaction of all damages for personal injuries growing out of the accident in question.
In 48 A. L. R. 1464, it is said that the general rule is that a release of damages for personal injuries "cannot be avoided on the ground of mistake merely because the injuries prove more serious than" the releasor, at the time of executing the release, believes them to be, and several Arkansas cases are cited. On page 1467 of the same case-note it is said that the rule is well settled, according to the great weight of authority, that a general release of a claim for personal injuries may, under proper circumstances, be avoided on the ground of mutual mistake as to the nature or circumstances of the -injuries, and several Arkansas decisions are cited on page 1471 in favor of the rule. It is true that, where there is no misrepresentation or fraud" on the part of the releasee, a releasor cannot subsequently avoid his release on the ground that his injuries were more serious than he had thought them to be, even though his opinion at the time of making the settlement may have been based upon that of a physician employed by the releasee to examine and report on the extent of his injuries. It is equally true, however, that an innocent misrepresentation of the releasor’s injury, made by the releasee’s physician, may be effective to avoid a release induced thereby. In the first type of cases the parties rely upon opinions and in the latter cases upon statements of existing facts.
In St. Louis, Iron Mountain & Southern Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, it was held that, if the chief surgeon of a railroad company fraudulently represents to an injured employee that his injuries are slight and temporary, when they are serious and permanent, and this induces him to sign a release of the railroad company from damages, such release is not binding. It was also held that, if the chief surgeon of a railroad company in good faith represents to an injured employee that his injuries are slight and temporary, when they are serious and permanent, and thereby misleads him into signing a release of the railroad company from damages, such release is not binding.
Again, in St. Louis, Iron Mountain Southern Ry. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187, where, in an action for injuries to a railroad employee, there was evidence sufficient to warrant a finding that the physician or surgeon who treated the plaintiff at the hospital represented to him that he was not permanently injured, and that .the settlement was induced by this statement, the court held that, even if this statement of the company’s physician was made in good faith, the release was not binding if the injuries were not slight and temporary, as represented, but were serious and permanent.
In a later case, F. Kiech Manufacturing Co. v. James, 164 Ark. 137, 261 S. W. 24, it was held that, where a plaintiff, injured in the defendant’s employment, signed a release, relying upon a mistaken opinion of the defendant’s doctor that his injury was not permanent, he was not bound thereby, notwithstanding the release recites that he acted on his own judgment, and that no representations were made on which he relied.
In St. Louis-San Francisco Ry. Co. v. Cox, 171 Ark. 103, 283 S. W. 31, it was held that, where a release of liability was procured from a passenger injured in the derailment of a train, by means of false representations made by a surgeon connected with the railroad hospital, to the effect that her injuries were cured, when in fact they were not, the release was not binding.
In Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9, it was said that this court has frequently held that a release executed by an injured party, relying upon the mistaken opinion of the physician of the party responsible for the injury, that it was slight and temporary, and not permanent, is not binding upon the party making it.
Under the evidence in the ease before us the jury was fully warranted in finding that the settlement was made under a mutual' mistake of .fact as to the nature and extent- of the plaintiff’s injuries. In fact, the undisputed evidence shows that the injuries to the plaintiff turned out to be permanent, when, at the time of the settlement, both parties thought they were only temporary. . The physician uf the' defendant, who set the leg of the plaintiff and had him under his charge for about thirty days after the accident, told the plaintiff that the bones had been placed in good alignment and that they were united. It turned out that there had been no union of the bones, and that, as soon as the splint was removed, which was done on the next day aftér the settlement was made, the bones overlapped, and that, after successive operations by eminent surgeons, no union .of the bones could be had. In the opinion of the physician, non-union was caused because of the bad condition of the blood of the patient resulting from syphilis, which he had contracted during the World War. According to the evidence for the defendant, its physician expressly asked the plaintiff, after the accident, if he had ever had syphilis, and the plaintiff replied that he had not. The plaintiff denied that the physician 'asked him this question, and said that he would have told him the facts if such question had been asked him. The jury found this issue in favor of the plaintiff, and the case stands as if no such question had been asked. It follows then that the undisputed proof shows that the settlement was made under a mutual mistake of the parties as to whether - the injuries were temporary or permanent.
It is earnestly insisted, however, by counsel for the defendant that the release must stand because the plaintiff did not tender the consideration received by him before he instituted the present action. It may be conceded that this is the general rule laid down by the text-writers, but we are of the opinion that this court has adopted the contrary rule. The text-writers recognize that there is much confusion and doubt in the adjudicated cases bearing on the question. It is conceded that there need not be a return of the consideration where the settlement was induced by fraud, or when it was made at a time when the releasor was suffering great pain, or when he was under the influence of opiates; but it is contended that, where it was made and intended to be made by the parties, a return of the consideration should be made before bringing suit, even though the settlement was the result of á mutual mistake of the parties or of a mistake on the part of the releasor coupled with, fraud on the part of the releasee.
In the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, it was argued that the court erred in entertaining the suit without the plaintiff having made a tender of the amount received in the settlement. The court held that tender was not necessary. It is now claimed that the court based its holding in this respect 'on the ground that the •release was induced by fraud, because the plaintiff only thought he was making a settlement for doctor’s bills, expenses and wages, and did not know that the element of compensation for his injuries entered into the settle- . ment. It is true that this seems to be the reasoning of the court, but it will be remembered that the court also submitted to the jury the question whether the settlement was made under a mistake of fact, that both parties believed the injuries to be slight and temporary, when, in fact, they were serious and permanent, and that the plaintiff was thereby misled into signing the release. The court held that a tender of the consideration of the ■ release before- suing was not necessary, and this was bound to apply to the question • of mistake of fact as well as to the question of fraud in inducing tbe release.
This will be seen to be tbe reasoning of the court in St. Louis, Iron Mountain & Southern Ry. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187. In that cáse it was contended that tbe Hambright case could and should have been decided entirely on the question that the release was obtained by fraud, but the majority of the court based their views upon the decision of the law that, even if the settlement was not fraudulent, it constituted a mistake of fact which absolved the parties from the binding force of the contract. The court then quoted the. syllabus on this phase of the case, and said that it correctly reflects the' substance of the decision.
In the case of St. Louis-San Francisco Ry. Co. v. Cox, 171 Ark. 103, 283 S. W. 31, it was expressly held that, where a passenger was induced to sign a release of liability for personal injuries by a false representation, he is not bound, in this State, to return the sum had before suing to recover the damages sustained, though the injury was received and the release executed in another State, in which he would have been bound to make such return before suing, if his suit had been brought in that State. In that case the injury was received in the State of Missouri, and the settlement was made there. According to the evidence for the plaintiff, the release of liability was secured from her by means of false representations made by a surgeon connected with the railroad hospital, to the effect that her injuries were cured, when in fact they were not; and the court held that, under such a state of facts, the release was not binding, and no return of the consideration was necessary. Attention was called in the opinion to the Hambright case, and it was construed as a case holding that it is not a condition precedent to a maintenance of the action that the consideration for the release be tendered to the defendant before the action is instituted. In the Cox case the court expressly said that, under our decisions, as reviewed in the opinion, a failure to return or make tender of the consideration for the release relates only to the remedy, and is not a matter of substance pertaining to the right of the action itself. Hence it was held that it was not necessary to return the consideration for the execution of the release as a condition precedent to the maintenance of the action. The court said that, in this jurisdiction, the failure of tender is a matter that does not reach to the basis of the right of the action itself, but is connected merely with the remedy.
There can be no difference in principle whether the release was the result of a mutual mistake of the parties or whether it was the result of a mistake on the part of the releasor coupled with fraudulent representations on the part of the releasee that the injuries were temporary, when in fact they were permanent. In each case the releasor signed the release because he relied upon the representations of the physician of the releasee, who told him that his injuries were temporary, when in fact they were permanent. The gist of the matter is that he signed the release believing that his injuries were temporary, when in fact they were permanent, land that he was' induced to do this by the representations of the physician of the releasee stating matters as an existing fact, and not merely as his opinion. No good reason appears to us why there should be any distinction as to the restoration of the consideration in the two classes of eases. The decision in the Cox case is our latest enunciation on the subject, and, from the opinion, appears to have been made after a deliberate review of our former decisions by a judge who has been on the bench during the whole period of time when the subject has come up for consideration, and there does not appear to have been any dissenting voice from the decision. Therefore the decision' in the Cox case will be taken as the rule governing cases of this sort in this State.
Again, it is insisted that there was a ratification of the settlement by the plaintiff because he collected the draft given him by the railroad company in settlement after an X-ray picture had been made and he had ascertained that there had been no union of the bones, and that his injuries were probably permanent. If we are correct in holding that the plaintiff was not required to return the consideration, there would seem to be no useful purpose to be served by him in refraining from collecting the draft. If he was entitled to receive the consideration, he might expend it for any necessary purpose and use it as a credit on his ultimate settlement with the railroad company. This was what the plaintiff said that he did in the present case. According to his testimony, which is not disputed, he expended the full amount of the release and in addition $800 in a vain attempt to secure a union of the bones in his injured leg by operations performed by eminent specialists. Hence we hold this assignment of error was not well taken.
On the subject of the negligence of the defendant but little need be said. In addition to the statutory presumption of negligence arising from the injury having been caused by the operation of one of the defendant’s trains, it may be said that the great weight of the affirmative evidence shows that the injuries were caused by the negligence of the defendant. There was an implied invitation to cross the track resulting from the action of the flagman in failing to raise his stop signal. Chicago, Rock Island & Pacific Ry. Co. v. Hamilton, 92 Ark. 400, 123 S. W. 379; Bush v. Brewer, 136 Ark. 246, 206 S. W. 322; and Mo. Pac. Rd. Co. v. Havens, 164 Ark. 108, 261 S. W. 31.
It is next insisted that the court erred in failing to give an instruction requested by the defendant on contributory negligence. We do not think the court erred in refusing to give the instruction. The Legislature of. 1919 passed an act providing, in substance, that in all suits against railroads for personal injury or death caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of a less degree than the negligence of the employees of the railroad causing the damage complained of; provided, when such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence. Crawford & Moses’ Digest, § 8575. The instructions given by the court on the question of contributory negligence or comparative negligence were in accord with the construction of the statute by this court in Missouri Pacific Rd. Co. v. Robertson, 169 Ark. 957, 278 S. W. 357.
Finally, it is insisted that the judgment should be reversed because the verdict is excessive. We do not agree with counsel in this contention. There was a verdict of $18,500. The plaintiff was forty-four years of age at the time of the accident which caused him to have a fractured thigh bone. He was first carried to' a hospital for about thirty days, and during this time suffered great pain. When the splint was removed from his leg it was found that the bones had not united, and he was compelled to undergo several operations in a vain endeavor to secure a union of the bones of his leg.. This he was unable to do, and his injury appears to be permanent. He lay in a hospital for many months while undergoing these operations, and suffered intense pain. He was a fruit and melon packer, and in that capacity earned $50 a week. He is not able to do that work any more, because it necessitates his standing on his feet. He has expended more than $4,300 in hospital bills and expenses. The great weight of the evidence tends to establish that the defendant was negligent and that the plaintiff was not guilty of contributory negligence.
Under these circumstances we do not think that it can be said that the verdict of the jury was the result of passion or prejudice, and so excessive. We are asked to make a comparison with other cases, and have examined many cases with a view of determining whether or not it is excessive, but no useful purpose could be served by reviewing the cases in this opinion.
Especial reliance is placed on the case of Aluminum Company of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568, where the plaintiff suffered an injury to one of his legs, resulting in amputation and a verdict for $20,000, which was reduced by the court to $12,000. It is true that in that case the yijured person was only twenty-two years of age, while in the present ease the plaintiff is forty-four years old. The earning capacity of Ramsey was $2.40 per day, while Elvins was capable of earning $50 per week as a fruit-packer. Ramsey!s medical bill and hospital fees only amounted to $386.22. Elvins has already spent more than $4,300, and has suffered intense pain throughout a period of many months.
In Boyle-Farrell Land Co. v. Haynes, 161 Ark. 183, 256 S. W. 43, a laborer 35 years old, earning $2.25 a day, sustained permanent injuries by his leg being shortened and its use almost totally impaired, and in addition will continue to suffer pain and be disfigured for life, and a verdict for $18,500 ivas held not to be excessive.
In Zumwalt v. Chicago & A. R. Rd. Co. (Mo.), 266 S. W. 717, the Supreme Court of Missouri upheld a verdict for $18,500-damages for a compound fracture of the leg, which, evidence indicated, might never heal properly.
In Gulf, C. & S. F. Ry. Co. v. Crow (Tex. Civ. App.), 220 S. W. 237, the Court of Civil Appeals of Texas, upheld a verdict for $18,000 to a railroad engineer, where he was thirty-two years of age, the injury consisting of an oblique fracture of the thigh bone resulting in a shortening of the leg.
In Hurst v. Chicago, B. & Q. R. Co., 280 Mo. 566, 219 S. W. 566, 10 A. L. R. 174, the Supreme Court of Missouri held not to be xcessive- a verdict of $15,000 to a railroad conductor for the loss of his leg below the knee by an accident which caused him great pain and suffering, and where his earning capacity was reduced from $150 to $20 per month.
In this connection it may be also stated that the jury may consider to some extent that money today has much less purchasing power than it had twenty or even fifteen years ago. This is a matter of common knowledge to all, of which courts and juries may take judicial notice. On this point see notes to 18 A. L. R. 564, 10 A. L. R. 179, and 3 A. L. R. 610.
We find no prejudicial error in the récord, and the judgment will therefore be affirmed
Smith, J., dissents.- | [
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M cIIaney, J.
Appellant and appellee were married April 3, 1938. They thereafter lived together as husband and wife in Hot Springs, Arkansas, until September 21, 1940, when appellee left appellant, and has continued from that time to live separate and apart from him without cohabitation. On October 27,1941, appellant brought this action for divorce against her on the ground of willful desertion without reasonable cause for the space of one year as provided by the second subdivision of § 4381 of Pope’s Digest. After an order allowing her suit money and counsel fees, she answered, admitting the marriage and separation, alleged that she had reasonable cause to leave appellant, and prayed an allowance for alimony.
Trial resulted in a decree dismissing appellant’s complaint for want of equity, and, on the cross-complaint of appellee, he was ordered to pay into the registry of the court $40 per month, $20 on 1st and 15th of each month, beginning May 1, 1942, for her support and maintenance. This appeal is from that decree.
It is undisputed that appellee deserted appellant on September 21, 1940', and has lived separate and apart from him from that time to the present, although he has several times importuned her to return and live with him and, on the date of her departure, he begged her not to leave him and told her she was making a great mistake in doing so. Desertion alone for one year is not a ground for divorce, but such desertion “without reasonable cause” is. Section 4381, Pope’s Digest. “What constitutes “reasonable cause” becomes a pertinent inquiry. In Rie v. Rie, 34 Ark. 37, it was held that a “reasonable cause which, within the divorce statutes, will justify one of the married parties in abandoning the other must be such conduct as could be made the foundation of a judicial proceeding for divorce.” This language was quoted in Craig v. Craig, 90 Ark. 40, 117 S. W. 765, and, following the quotation, the late Judge Frauenthal, speaking for the court, said: ‘ ‘ There is no corroborative evidence that shows that plaintiff had such a reasonable cause as above defined, to leave the defendant.” In the famous case of Warfield v. Warfield, 97 Ark. 125, 133 S. W. 606, where the husband deserted the wife, she sued him for divorce on the ground of desertion. He answered admitting the separation, but alleged that he had reasonable cause therefor by reason of the adultery of his wife. The late Judge Wood for the court said: “To justify appellant (the husband) in his desertion of appellee, which he admits, it devolved upon him to prove that appellee had been guilty of adultery. The evidence he adduces for that purpose is entirely insufficient.” Therefore, before the court would be justified in denying a decree of divorce on the ground of desertion, the spouse who seeks to justify his or her desertion, on the ground of reasonable cause, must prove a ground of divorce which would justify the court in granting him or her a decree of divorce on a cross-complaint.
Applying this well settled rule to the facts here presented, we are of the opinion that appellee wholly failed to prove reasonable cause for her admitted desertion of appellant, and that had she filed a cross-complaint against him, (which she did not) praying a divorce on the ground set out in the last clause of the fifth subdivision of said § 4381, which provides, “ — or shall offer such indignities to the person of the other as shall render his or her condition intolerable, ’ ’ which is the only statutory ground to which her testimony is directed, the court would not have been justified in granting her a divorce on the record here presented.
Appellee testified to a number of unpleasant incidents occurring during their married life, before separation, such as his spilling the shoe polish in the bathroom, his throwing the car keys at her on one occasion, his scolding her for asking for the car, a relaxation of interest on Ms part, and a number of other unpleasant occurrences arising- in discussions of his family and hers, including- his relations with her little girl by a former marriage, and his reference to her as a “damned brat.” Assuming without deciding that some or all of these incidents would have constituted a ground of divorce, if they had been alleged, there is absolutely no corroboration of her testimony concerning them, and so they cannot be said to be established. A ground of divorce cannot be established on the uncorroborated testimony of one of the parties. We do not set out her testimony in detail further, as no useful purpose could be served by so doing. There was no corroboration. The only witness who testified for appellee was her mother and she frankly stated that she never heard them have an argument or a cross word either in her home or in theirs.
In Rose v. Rose, 90 Ark. 16, 117 S. W. 752, it was held, to quote a headnote: “Where the evidence establishes that a wife voluntarily abandoned her husband without just cause, and so remained for the statutory period, it was error to refuse him a divorce.” In the body of the opinion in said case, the court used language which we think very appropriate to this case, under similar facts as follows: “We do not think that there is sufficient evidence to sustain a finding that appellant was guilty of misconduct which justified desertion by appellee or which precludes him from obtaimng a divorce on account of such desertion. The preponderance of the evidence shows that appellant was not unkind to his wife, and gave her no just cause for leaving him. Though he was probably not wholly free from fault, we can discover nothing in his conduct, judged by the evidence, calculated to render his wife’s condition intolerable or to drive her from him.”
A number of love letters written to each other by the parties after their separation are set out in the record. In several of them appellee suggested that he should get a divorce from her and that she would not oppose it, nor ask for support. These letters indicate the parties are still in love with each other. Perhaps they can yet get together.
It is our conclusion that the learned trial court erred in refusing to grant appellant a divorce on his complaint and in awarding alimony to appellee. The decree will be reversed and the cause remanded with directions to enter a decree of divorce in his favor, but without alimony to her. | [
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Humphreys, J.
Appellee brought suit against appellant in £he circuit court of Washington County for ■$2,500 damages on account of the alleged breach of a contract for lease and option to appellee by appellant of certain lands in Franklin County, Arkansas, when it got ready to sell same, and, if appellee should not then desire to purchase said lands, that he should have the right to remove such improvements as he had made thereon.
Appellant filed an answer, denying the material allegations in the complaint.
The cause was submitted upon the pleadings, testimony introduced by the respective parties, and the instructions of the court, resulting in a verdict and consequent judgment in favor of appellee for $700, from which is this appeal.
According to the undisputed testimony, appellant is a domestic business corporation, and in 1919 owned 9,000 acres of timber land in Franldin County. It was engaged in the hardwood lumber business, railroad and mercantile business, the two latter being incidental to the manufacture of hardwoods for the market. Jay Fulbright was its president, and J. H. Phipps its vice presir dent and manager. Jay Fulbright controlled a majority of the stock, and dominated the corporation. In the fall of 1919 Fulbright, acting for the corporation, but without any express authority under charter or specially delegated to him by the board of directors, entered into a contract of lease and option to appellee of about one hundred acres of said land, with the privilege to appellee to remove his improvements off the land if he should not choose to buy same when appellant decided to sell its lands, or this particular land. The directors and officers of appellant knew of the contract, but never approved it in a formal way. The minutes of the meeting’s of the board are silent on the matter, and the.directors and officers who testified in the case had no recollec-. tion of the matter ever having been reported to the board or acted upon by them. Appellee testified that he talked to some of the directors about it, but made no formal report to the board relative to the contract or its terms. He said that, in making the contract, he regarded and treated Pulbright as the corporation itself.
Pursuant to the agreement between Fulbright and appellee, he built a house upon the land, which cost $2,000, and built a hog-proof wire fence around same at an expense of $500. The improvements were completed in the spring of 1920, and appellee’s son moved on the property to farm it and look after the hogs and herd of cattle, wdiich appellee bought from Pulbright. At the expiration of two years appellee’s son moved away, and the house was unoccupied most of the time prior to the purchase of the land, in 19'24, by the United States Government, from appellant. The Government purchased said tract of over 9,000 acres from appellant for forest reserve purposes, at $2.75 per acre, and refused to allow appellee to remove his improvements. This sale was made after Jay Pulbright died, and after he was succeeded as president of appellant by his son, Jack Pulbright. When appellee heard of the sale to the Government, he consulted Jack Pulbright with reference to removing his improvements, and was informed that he would have to take the matter up with the United States Government. He did so, and was notified by the United States Government not to remove the improvements.
The original charter conferred authority upon it to purchase, lease and sell real estate. The charter, as amended in 1913, authorized the purchase of real estate, hut contained no provision authorizing it to lease or sell same.
Learned attorneys for the respective parties differ in their interpretation of the testimony relative to the agreement to pay rent for the land upon which the improvements were made. Appellants’ attorneys interpret the evidence to mean that the agreement to pay rent was a separate contract, and wholly disconnected from and not growing out of the contract of lease and option made between Fulbright and .appellee; whereas appellee’s attorney interprets the evidence as meaning that the agreement was to pay $100 per year for the use of the land as a part of the lease and option contract. The testimony shows, without dispute, that the rent was paid directly to appellant corporation for two years, 1920 and 1921, during which time appellee occupied and used the house and land which he had fenced. Appellee testified, on page 37 of the transcript, that he paid rent in 1920 and 1921, in connection with his statement that his son moved out of the house after occupying it two years.
Mr. Jeter, who was in charge of appellant’s mills, and who was interested in the corporation, testified, on page 50 of the transcript, relative to the lease and option contract made hy Fulbright and appellee at Combs, as follows :
“Q. Mr. Jeter, was there anything said in that conversation as to how much land Mr. Phipps was to rent or use? A. "Well, I do not know that there was any more than to use all there was in that country for grazing purposes; he had that privilege from the company. Q. Was there anything said in that conversation about Mr. Phipps paying rent? A. I do not remember as to that. Q. You do not remember as to that? A. No, that was settled, I think, in the office here; however, I understand that he did pay rent. Q. Do yon know whether Mr. Phipps paid rent at the rate of $100 a year? A. That is my understanding that he did.’"’
Appellant’s first contention for a reversal of the judgment is that the court should have instructed a verdict in its favor, under the undisputed facts in the case. It requested a peremptory instruction, which the court refused, over its objection and exception. It argues that-the contract was in excess of the charter powers, and ultra vires, because the amended charter of 1913 did not authorize the corporation to lease or sell its real estate. The amended charter authorized it to purchase and hold real estate in connection with its business. The charter, prior to being amended, authorized it to lease and sell its real estate. This provision was omitted from its amended charter. Although omitted from the charter, the power was inherent in the corporation to lease or sell its real estate which it bought in connection with its business; else how could it realize on its assets? Especially is this true of lumber concerns, which buy large tracts of timber land to obtain raw material for manufacturing the lumber. It would be indeed a strange doctrine that such corporations could not dispose of their cut-over lands or could not lease them for agricultural purposes, simply because express authority was not conferred in their charters.
We cannot agree with appellant’s contention that the contract was ultra vires. It argues, however, that the president of the corporation had no right to make the contract without authority conferred by charter or by the board of directors. It is true that the general inherent power of a president of a corporation does not include the authority to make contracts for the corporation, but this cause .was sent to the jury upon th’e theory that the president, Jay Fulbright, had authority to lease and option the lands on account of holding a majority of the stock and dominating the business affairs of the corporation. The issues 'submitted to the jury were whether Fulbright had implied authority to act for the corporation, by virtue of owning most of the stock and being permitted to dominate its affairs, and whether the corporation was bound under the contract by accepting benefits under it. Tbe testimony tended to show that the corporation was a one-man corporation, being controlled and dominated by its president, who was also the owner of most of the stock, and also tended to show that the corporation," through its officers and directors, accepted rents for the use of the land, and subsequently sold same to the United States without reserving the improvements for removal by appellee. The improvements were substantial and valuable. The inference may have been drawn by the jury that these ■improvements enhanced the value of the land and that appellant received benefits from them in the sale thereof. It is true that, it does not affirmatively appear in the record that the Grovernment and appellant took the improvements into consideration in agreeing upon the purchase price, yet the Grovernment refused to allow the improvements to be removed, and appellant did not reserve them when it sold the land. In the state of the record the jury may have concluded that the agreement to pay rent of $100 a year was a part of the consideration for the lease and option contract. .If so, then the corporation received $200 in rents on account of the lease and option. Certainly appellee would not have paid $200 for the purpose of grazing cattle and hogs on open or range land owned by the corporation, when .he or any one else could have let his stock run at large on the land without paying anything for the privilege; but, to say the least of it, the issue was one for the jury.
Appellant contends for a reversal of the judgment because Phipps and Jeter were permitted to testify relative to the contract and terms thereof without first showing that Jay Pul'bright had express authority to act for the corporation. The testimony of both was admissible, because testimony was- introduced from which such authority might be implied, and because there was testimony tending to show a subsequent ratification of the contract by receiving benefits therefrom or thereunder.
Appellant also contends for a reversal of the judgment because' appellee and his witness, Duncan, were permitted to testify to a bill of lumber bought from T. J. Gillstrap Lumber Company and to identify and introduce the bill of lumber as an exhibit, which lumber was used in the construction of the house. This bill of lumber amounted to $557.21. It was admissible to introduce the original bill of lumber used in the house as a basis for estimating the value thereof as second-hand lumber in the knockdown.
Appellant also insists upon reversal of the judgment because appellee was'permitted to testify relative to receiving a notice or letter from the Government inspector at Russellville in 1924, directing him not to remove the improvements. The basis of the suit was the refusal of appellant to allow appellee to remove the improvements, and appellee was told by appellant’s president to take the matter up with the United State Government, to whom it had sold the land. This piece of evidence was a circumstance to show a breach of the contract, and was clearly admissible, the notice and letter purporting to come from a representative of the United States Government.
Appellant also contends for a reversal of the judgment because the court gave instruction No. 1. The objection urged to the- instruction is that it assumed that Fulbright acted as agent for the corporation in making a contract of lease and option with appellee. It does not assume agency. It submitted that issue to the jury, and properly so, for testimony was introduced in the case tending to show that Fulbright owned and dominated the corporation, in which event the jury might have drawn a reasonable inference that he was acting for the corporation.
Appellant also contends for a reversal of the judgment because the court instructed the jury upon the law of ratification and the refusal to give its requested instructions because they omitted any reference to the law of ratification. The argument is made that no evidence was introduced tending to show a ratification of the contract toy the corporation. We think there was. The testimony tended to show that the corporation accepted benefits under the contract. Appellant pleaded the statute of frauds as a defense to the action, and contends for a reversal of the judgment because the contract had relation to the lease and sale of lands, and, to be binding, should have been written. The contract was partially performed, which removed it from the operation of the statute of frauds.
Appellant also contends for a reversal of the judgment upon the ground that the circuit court of Washington 'County had no jurisdiction to try the cause of action. It is argued that the action is local, and should have been brought where the land is situated. This is not a suit for specific performance of the contract, but for a breach of contract for lease and option to buy, and is transitory and not local. The Arkansas domicile of the corporation is in Fayetteville, hence the suit was properly 'brought in Washington County, of which Fayetteville is the county seat.
There being no reversible error in the record, the judgment is affirmed. | [
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George Rose Smith, Justice.
This is an action in unlawful detainer brought by the appellant, Margaret Gr. Sanders, in March, 1966, to recover possession of a farm in Yell county. The two defendants — Robert Keenan, who was Mrs. Sanders’s tenant under a written one-year lease which expired on December 31, 1965, and Delma Merritt, who was Keenan’s subtenant — retained possession of the land during the year 1966 by executing a bond for retention of the property. Ark. Stat. Ann. § 34-1510 (Repl. 1962). In the court below Mrs. Sanders obtained a $5,000 verdict and judgment against Merritt only. Her principal contentions for reversal are that the trial court erred (a) in directing a verdict for Keenan, and (b) in refusing to submit to the jury her claim for triple damages under the statute.
Over a period of about forty years the farm in question was the subject of an annual Sanders-Keenan lease. At first the lessor was the plaintiff’s husband; after his death it was Mrs. Sanders herself. At first the lessee was Dan Keenan; after his death it was his son, the defendant Robert Keenan. The 1965 lease, which adhered to a form used by the parties for several years, specified a rental of $5,000, payable in installments of $2,000 on October. 15, 1965, $1,500 on November 15, and $1,500 on December 15. It is conceded that Keenan paid the 1965 rental and that the parties — apparently for the first time in some forty years — did not agree upon a lease for 1966.
We consider first the court’s action in directing a verdict in favor of Keenan. Merritt had been Keenan’s subtenant for several years. Merritt testified that Keenan did not finance Merritt’s farming operations in 1966, as he had done in prior years. Merritt went on to say, in response to a question by the court, that Keenan had no interest at all in the 1966 farming operations. Keenan did not elect to testify. Upon that state of the record, as far as the defendants’ testimony was concerned, the trial court concluded, with some expressed doubt, that Keenan was entitled to a directed verdict.
The court was in error. It is settled by decisions far too numerous for citation that a verdict ought not to he directed against the plaintiff if there is any substantial evidence to support a finding in favor of the plaintiff. Here there are no fewer than three considerations that might have induced the jury to find that Keenan was actually a participant, as a tenant, in the detention of the land in 1966. First, during the year 1966 Keenan sent Mrs. Sanders a $5,000 check for the annual rent (which was not accepted). That same check was again tendered to the plaintiff at the beginning of the trial. Secondly, Keenan hnd Merritt, as joint principals, executed the bond to retain possession of the farm during 1966, after the suit had been filed. Thirdly, the answer filed in the case by the two defendants, Keenan and Merritt, admitted that ‘‘the Defendants have remained in possession of said lands since the first day of January, 1966.” Despite the possibility that the pleadings may be amended before the case is tried anew, Stucker v. Hartford Acc. & Ind. Co., 222 Ark. 268, 258 S. W. 2d 544 (1953), we must determine the present appeal upon the record presented. Any one of those three considerations might well be a basis for denying Keenan’s motion for a directed verdict. The combined thrust of all three is irresistible.
The remaining issue is that of the appellees’ possible liability for multiple damages. At the trial the plaintiff requested an instruction under the triple damage statute, Ark. Stat. Ann. § 34-1516, but the court refused that request and submitted only the issue of Merritt’s liability for single damages (Keenan having already received a directed verdict, as we have said).
The court was right in excluding the issue of triple damages. Under the statute such damages are recoverable only for the unlawful detention of property that is used either for commercial or for mixed residential and commercial purposes. Section 34-1516. Multiple damage statutes, being penal, must be strictly construed. Missouri Pac. R. R. v. Lester, 219 Ark. 413, 242 S. W. 2d 714, 27 A. L. R. 2d 1182 (1951). “Commercial” means pertaining to commerce, which is ordinarily defined as the exchange or buying and selling of commodities. Webster’s Second New International Dictionary; Random House Dictionary of the English Language. Under that definition statutes relating to commercial purposes, even when not strictly construed, are not considered to be applicable to agricultural pursuits. Terrace v. Thompson, 263 U. S. 197 (1923); Jones v. Johnson, 80 Ga. App. 340, 55 S. E. 2d 904 ,(1949); Armand v. Bordelon, La. App., 53 So. 2d 168 (1951); Partridge v. Blackbird, Minn., 6 N. W. 2d 250 (1942). In the case at bar our statute, a fortiori, must be narrowly interpreted.
The appellant’s brief, more or less in passing, also suggests alternatively that she would in any event be entitled to an instruction under the double damage statute. Ark. Stat. Ann. § 50-509 (1947). The theory of a recovery under that statute was not in issue at the first trial, under either the pleadings or the requested instructions. We do not feel called upon to speculate about its possible relevance when the case' is tried anew. The appellant also complains of the trial court’s refusal to give her Instruction No. 1. Part of that instruction — a reference to the tenants’ belief that they owned the land— was abstract; so it should not be given, in the form requested, upon a new trial.
As to Keenan, the judgment is reversed and the cause remanded for a new trial. As to Merritt, the judgment is affirmed, no error prejudicial to the appellant having been shown with respect to Merritt. | [
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Kirby, J.
The undisputed testimony shows that the loan was procured and- the money used for the benefit of the property of Susie Crabtree, which was mortgaged to secure the payment of it. The president of 'the bank stated that they knew the amount of insurance collected, and that it was necessary to have this money for completing the improvement in addition to the insurance and the amount of money advanced by A. A. Crabtree.
Crabtree stated that all of said sum of money was borrowed from the bank for the purpose of making the improvement on Mrs. Crabtree’s property and so used, in addition to the insurance collected and the $600 he had advanced, for which no claim was made; that the money could not be borrowed upon the security of the Searcy lots only, the property of his wife, but, in addition, he had to include the 80 acres of his land in Jackson County.
The testimony also shows that all payments made were made by Crabtree out of his own funds, and that the amount of the indebtedness was never reduced below the amount of the original loan. .The mortgage provided that it should be security for the payment of any extensions or renewals of the whole dr any part of said indebtedness in lieu thereof, and also for the payment of any other liability or liabilities of the grantor already or thereafter contracted to the said Union Bank & Trust Company, until the satisfaction of the said deed of trust upon the margin of the record thereof.
This provision is inclusive, and only needs interpretation according to its plain meaning and intent, and must be interpreted to mean what it says. Certainly there is no inequity in requiring the sale of the property belonging to Mrs. A. A. Crabtree for the payment of her debt- .secured by it, which the undisputed testimony in fact showed never to have been reduced below the amount of the original note. Howell v. Walker, 111 Ark. 362, 164 S. W. 746; Word v. Cole, 122 Ark. 457, 183 S. W. 757; Hollam v. Amer. Bank of Commerce & Trust Co., 168 Ark. 939, 272 S. W. 654.
There was some testimony indicating that the original note had been marked paid and delivered to Mrs. Crabtree. The testimony shows, however, that moneys paid to the bank had been paid by Crabtree, and that the amount of the indebtedness had not been reduced below the amount of the original note, which had been renewed several times, ¡and may have been marked “Paid” on renewal. The president also testified that Mrs. Crabtree was never in the bank after the execution of the original note and mortgage there. The testimony supports the chancellor’s finding that the original loan had not been paid off; ¡and, even though it had, the mortgage could have been kept alive and necessarily continued to be an existing security for any and all renewals of the original note and any other indebtedness secured by it, so far as the rights of -the parties and privies are concerned. It could have been kept alive for other purposes' where the intention of the parties was, as here, that it should be, no rights of third persons or creditors having intervened. 41 Corpus Juris 787.
We do not think there is any merit in appellant’s contention that the loan should be considered a gift or advancement by the husband to the wife, within the doctrine of the cases cited. A contrary intention was shown by the evidence on the part of the parties resulting in the mortgage given, charging the separate property with a lien for the payment of the loan, which the chancellor correctly found had not been, in fact, paid. Only the amount of money borrowed and used in the improvement of the wife’s property was charged against it, as secured by the lien under the mortgage, and we do not find it necessary to determine from the state of the record whether or not the wife’s separate property mortgaged to secure present and future indebtedness could be held to tbe payment of other moneys than the original loan, thereafter borrowed.
We find no error in the record, and the judgment is affirmed. | [
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Marian F. Penix, Judge.
The Claimant was employed as an assistant manager of Franke’s Cafeteria. Both of her parents were seriously ill. It became necessary for her to temporarily leave her job to care for them upon their release from the hospital. Claimant informed her employer she would have to quit work in two weeks in order to care for her parents. The day before the two weeks expired she asked if she might have 30 days leave of absence to attend to her parents. Her employer asked if she could insure she would not quit at the end of the 30 days leave. She told him she couldn’t be sure because she didn’t know what condition her parents would be in at the end of the 30 days. She was awarded benefits by the Agency under Section 5 (a) which determined she left her work voluntarily due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification. The employer appealed and the Appeals Tribunal reversed and denied the benefits, stating she left her last work voluntarily and without good cause connected with the work. The Board of Review affirmed this finding of disqualification for benefits. The Claimant appeals.
In reviewing the record we find the evidence upon which the disqualification is based to be not substantial. The Claimant had two ill parents who needed her care. She introduced a letter from Dr. Robert Taylor which described the physical conditions of the Claimant’s parents and which stated they were unable to care for themselves.
Section 5 (a) of the Arkansas Employment Security Law provides:
. . . Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency of such nature and compelling urgency that it would be contrary to good conscience to impose a disqualification. . . .
It is this Court’s belief the preceding paragraph was written to take care of just such personal emergency as we have in this case. The Claimant could not with good conscience abandon her parents at such a critical time. She couldn’t tell her employer the exact date when her parents would improve to the point when she could return to work. She was honest and candid with her employer. As the facts indicate, she was able to leave her parents alone after three weeks time. She conscientiously sought a 30 days leave of absence. We do not find that to be an unreasonable request. We are remanding this case to the Board of Review to make provisions for the award of benefits.
Reversed and remanded. | [
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Frank Holt, Justice.
Based upon a negotiated plea, appellant pled guilty to eight counts of theft by receiving. Ark. Stat. Ann. § 43-2206 (Repl. 1977). The court sentenced him to ten years on each charge with the sentences to run concurrently and ordered that he serve one-third of his sentence before becoming eligible for parole. However, the sentences in four of the eight charges were suspended. This appeal results from denial of appellant’s Rule 37 petition, after an evidentiary hearing, challenging the voluntariness of his negotiated plea.
Appellant alleged in his petition he had discovered after being incarcerated that, due to the provisions of Ark. Stat. Ann. § 43-2829 (B) (3) (Repl. 1977), he would not be eligible for parole until he served one-half of his sentence, since he had a prior conviction. He further alleged that the trial judge failed to advise him he might be subject to additional or different punishment, as required by Rules of Crim. Pro., Rule 24.4 (d), because of his status as a prior offender. He, therefore, requested his concurrent sentences be modified and reduced so that the time of actual incarceration equals that imposed by the trial judge.
At sentencing the trial court questioned appellant as to the voluntariness of his plea. Appellant stated he understood the charges and the punishment; he was satisfied with the services of his attorney; he knew that he was entitled to a jury trial; his plea of guilty was voluntary because he was in fact guilty; he advised the court of a prior conviction in another state; and, after the court imposed sentence, appellant stated he understood the sentence and had no questions concerning it. As indicated, the court told appellant he would be required to serve one-third of the ten year sentence before becoming eligible to apply for parole.
At the evidentiary hearing on the petition for postconviction relief, the court, in denying the petition, found that the record indicated appellant’s plea was entered voluntarily and under proper constitutional safeguards after adequate advice of counsel. We agree. The attorney, a member of the Public Defender’s office who represented appellant during his negotiated plea, testified he advised appellant he might have to serve one-half of his sentence before parole eligibility if the Department of Correction found out about his prior felony conviction. He also advised appellant the Department of Correction was not under the control of the court, and even if the trial judge did not apply this provision, there was still the possibility the Department of Correction might treat him as a second offender. Another member of the Public Defender’s office, who was present when appellant was so advised, testified to the same effect.
In Sims v. State, 271 Ark. 142, 607 S.W. 2d 393 (1980), we held that a “substantial, though not technical compliance” with Ride 24.4 is sufficient. “The critical question ... is whether the plea was voluntary.” There we quoted Irons v. State, 267 Ark. 469, 591 S.W. 2d 650 (1980), that even a silent record does not require automatic reversal if it be proved at a postconviction evidentiary hearing that the plea was voluntarily and intelligently made. Furthermore, in Houff v. State, 268 Ark. 19, 593 S.W. 2d 39 (1980), a situation somewhat similar to the present one, we observed that the appellant’s remedy was not in a Rule 37 proceeding but in a proceeding against the Department of Correction, noting the defendant there had received what he bargained for.
There is ample evidence that appellant’s plea was voluntary and with the knowledge that the provisions of § 43-2829 (B) (3), supra, might eventually be applied to him by the Department of Correction. In the circumstances we find no error.
Affirmed.
Purtle, J., dissents. | [
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Richard L. Mays, Justice.
This is the second appeal of this case. See Leggins v. State, 267 Ark. 293, 590 S.W. 2nd 22 (Dec. 3, 1979). On the first appeal, James LEGGINS, appellant herein, sought reversal of his conviction of two counts of aggravated robbery because the trial court permitted evidence of a prior conviction of James LIGION to be submitted to the jury as evidence that he, James LEGGINS, was an habitual offender. Finding insufficient evidence to establish that James LIGION and James LEGGINS were the same person, we granted the appellant a new trial unless the Attorney General agreed to a reduction of his sentence from 30 years to 10 years. When the Attorney General refused to accept the reduction, the appellant was retried and again convicted of two counts of aggravated robbery and sentefced to two consecutive terms of life imprisonment. Again on appeal appellant renews his argument concerning the admission of the evidence of the prior conviction of James LIGION, which was also introduced in the second trial, and additionally asserts that he was unfairly denied his right to select an attorney of his choice. Finding no merit in either contention, we affirm.
This court answered in the first appeal appellant’s argument that there is insufficient evidence to support the jury’s finding that appellant, James LEGGINS, is the same person convicted of a felony in Crittenden County Circuit Court as James LIGION. See Leggins v. State, supra. There, recognizing the doctrine of idem sonans, a rule of criminal practice which ignores spelling differences in names if the pronunciation is practically the same, the Court emphasized that it would have reached a different result had the state also introduced appellant’s affidavit of indigency form, which he signed as LIGGION, since the similarity in sound between LIGGION and LIGION provides substantial evidence of appellant’s connection with the prior conviction. When the indigency affidavit was introduced along with the prior conviction in the second trial, the evidentiary deficiency which caused the reversal in the first trial was cured.
Appellant also contends that his convictions should be reversed because he was unfairly denied his right to select an attorney of his choice. The factual predicate for this contention stems from a letter written by appellant to the court more than seven weeks after his trial had been set and only two weeks before it was to occur, asserting that he was financially able to hire his own attorney and requesting that he be relieved of his court appointed attorney. No further reason for desiring to discharge his court appointed attorney was provided. Responding within four days of receipt of appellant’s letter the court wrote:
Your request for a change of counsel has not been timely made due to the fact that a new attorney would not have time to properly prepare your case for trial. I will not continue the case at the last minute for a change of attorney.
Although appellant did not specifically request a postponement of his trial, the trial court appropriately treated his request as a motion for continuance since a change of attorneys so close to trial would have required the granting of one.
We have consistently held that a motion for a continuance is addressed to the sound discretion of the trial judge and his judgment will not be reversed on appeal in the absence of clear abuse. Golden v. State, 265 Ark. 99, 576 S.W. 2nd 955 (1975). The burden of establishing such abuse rests squarely on the shoulders of the appellant. Freeman v. State, 258 Ark. 496, 527 S.W. 2nd 623 (1975). We have also recognized that the right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Tyler v. State, 265 Ark. 822, 581 S.W. 2nd 328 (1979). Although a defendant must be offered a reasonable opportunity to obtain competent counsel, once competent counsel is obtained, any request for a change must be considered in the context of the public’s interest in a reasonably prompt and competent dispensation of justice. If such a change would require the postponement of trial because of inadequate time for a new attorney to properly prepare a defendant’s case, in denying or granting the change, the court may consider such factors as the reasons for the change, whether other counsel has already been identified, whether the defendant has acted diligently in seeking the change, and whether the denial is likely to result in any prejudice to defendant. Thorne v. State, 269 Ark. 556, 601 S.W. 2nd 886 (1980).
In the instant case, the appellant neither provided a material reason for his requested change of attorneys, nor identified an attorney who would proceed to trial with him. He was dilatory in making the motion and identified no prejudice to his case from a failure of the trial court to grant the motion. His court appointed counsel were not only prepared and willing to represent him at trial, but, as far as we can discern from the record, ably did so. Under these circumstances, we must sustain the judgment of the trial court.
Affirmed.
Purtle, J., not participating. | [
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Steele Hays, Judge.
This workers’ compensation case is appealed by the employer from an award of total disability. Appellants contend that the claimant is not totally disabled and that the Workers’ Compensation Commission should have applied the second injury statute. We find the evidence sufficient to support the award and that the second injury statute is not applicable to the findings reached by the Commission.
The claimant is forty years of age and has a seventh grade education. His employment history includes work as a truck driver, mechanic and service station attendant. In 1962 and 1967 claimant sustained injuries to his back and in both instances surgery for removal of disc material was required. The 1962 injury was at the L4-L5 vertebral level on the left and a completely ruptured. intervertebral disc was surgically removed. This injury produced a ten per cent permanent, partial disability. The 1967 injury required surgery at the T5-S1 interspace on the right side for the removal of herniated intervertebral disc laminates. This injury produced additional disability.
In June, 1974, while employed by appellant, G. W. Nall, as a truck driver, claimant sustained the injury from which this claim arises as he was engaged in changing a truck tire. The injury resulted in a “severely ruptured L2 intervertebral disc.”
Claimant was released by his physician in January, 1975, with a rating of twenty-five per cent permanent disability and he returned to Mr. Nall’s employ, where he remained until late summer. Claimant attributes his leaving to not being able to do the work. Claimant appears to have worked off and on since the summer of 1975 at various jobs similar to the work he was accustomed to.
I
The sufficiency of the evidence to support the finding of total and permanent disability can hardly be seriously challenged. Appellants reason that because claimant returned to his previous employment changing tires and perform ing some of the same duties there and for other employers he cannot be regarded as totally disabled. But it is rather evident from the testimony that while the claimant seems to have made the effort, he is incapable of performing regularly the duties of the type of work for which he is qualified. At least that is the import of the findings below and we are bound to resolve all inferences against the appellants and to view the evidence most favorably to the claimant. Richardson v. Rogers, 266 Ark. 980, 588 S.W. 2d 465 (Ark. App. 1979); Price v. Servisoft Water, 256 Ark. 702, 510 S.W. 2d 293 (1974). In gauging the sufficiency of the evidence in support of the findings of the Commission, the Supreme Court often says that the test is not whether there is sufficient evidence to support a contrary finding, but whether the evidence suffices to support the finding which was made. Hollingsworth v. Evans, 256 Ark. 387, 500 S.W. 2d 382 (1973).
Weighing the medical evidence in this record from Dr. John Lohstoeter dated November 28, 1977:
I can think of no job this man could pursue that would be in any essence of the word “worthwhile” at this time. The factors keeping him from productivity are, of course, multiple. Mechanically, he is unable to ambulate any distance, he cannot drive without worsening his pain, etc. The major fact presents itself that he must spend the bulk of every day just trying to remain comfortable, and, no matter what he does, he cannot bring this to a successful conclusion. This is a sad state for a 40-year-old to endure.
against claimant’s limited educational qualifications, we are thoroughly satisified that the finding of total disability by the Commission is supported by substantial evidence. Upon that belief, we must affirm the finding. Richardson v. Rogers, supra Foster v. Johnson, 264 Ark. 894, 576 S.W. 2d 187 (1979).
II
Appellants insist that they are entitled to relief under the provisions of the second injury statute, Ark. Stat. Ann. § 81-1313(f)(2)(H):
In cases of permanent disability arising from a subsequent accident where a permanent disability existed prior thereto:
(2) If an employee has a prior permanent disability not occasioned by an injury resulting while in the employ of the same employer and in whose employ he received a subsequent permanent injury, the amount of compensation for this subsequent injury shall be fixed as follows:
ii. If the subsequent injury is one that is not scheduled under section 13(c) [subsection (c) of this section], the injured employee shall be paid compensation for the healing period and for the degree of disability that would have resulted from the subsequent injury if the previous disability had not existed.
Appellants point out that the 1962, 1967 and 1974 episodes involving claimant’s back are, in effect, sequential; that even the claimant recognized his own condition as involving a “bad back” prior to the 1974 injury; that this back condition was noticeable to others; and that claimant admitted being given restrictions on his physical activities as a result of his earlier injuries. It is argued that these facts bring the case squarely within the language of the second injury statute. Admittedly, these circumstances do give support to the premise that claimant’s total disability is the result of a combination of partial disabilities. But the problem is, the Full Commission made a contrary finding. The Administrative Law Judge and the Full Commission found that claimant’s total disability was the direct result of the 1974 injury, rather than being the result of the combined injuries and that determination has been held to be one of fact for the Commission. Davis v. Steams-Rogers Construction Company, 248 Ark. 344, 451 S.W. 2d 469 (1970); O.K. Processors, Inc. v. Dye, 241 Ark. 1002, 411 S.W. 2d 290 (1967). The specific finding, though not fully abstracted, appears in the order of the Administrative Law Judge, adopted by the Commission, as follows:
Notwithstanding the fact that the claimant had residual physical impairment from the 1963 and 1967 injuries, the fact remains that not only did he appear not to be symptomatic, but he had worked since 1967 in the workforce. At the time of his 1974 injury, he was not only working steadily but at a physically demanding job. That evidence, together with the medical evidence, convinces this author that the claimant has been rendered, totally disabled as a direct result of his June 22, 1974, episode. (Emphasis supplied.)
Therefore, we believe that the Workers’ Compensation Commission was correct in not applying the second injury statute to the specific findings of fact reached in this case. In order for the second injury statute to apply, it must be found that the previous injury (or injuries) combined with a second injury to cause the disability complained of. Wooten v. Mohawk Rubber Company, 259 Ark. 837, 536 S.W. 2d 734 (1976); Davis v. Steams-Rogers Construction Company, 248 Ark. 344, 541 S.W. 2d 469 (1970).
Finally,- it should be said that the finding of claimant’s total disability is attributable to the 1974 injury alone, rather than to the injuries combined, is supported by medical evidence. The earlier injuries involved the L4-L5 interspace, whereas the 1974 injury occurred at the point of the L2 intervertebral disc. Dr. Roy Tyrer’s report of March 4, 1976, discloses that he regards claimant’s present condition sa “essentially unrelated” to the previous injuries.
Thus, on the findings reached, the second injury statute is not applicable and the Commission was correct in so holding.
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Marian F. Penix, Judge.
Breshears, aged 55, was injured while working for the Arkansas Highway Department. He and a fellow employee were painting a ceiling at a highway rest area building on October 25, 1977. While engaged in the overhead painting Breshears felt a pop and heard a grinding sound in his left shoulder. Dr. Ralph D. Cash, an orthopedic surgeon, diagnosed Breshears’ condition as “degenerative cervical arthritis”. The claim was controverted in its entirety.
The Administrative Law Judge found Breshears was temporarily totally disabled from October 27, 1977 to May 17, 1978, with no permanent disability. Benefits were paid for this seven month period. On April 14, 1979 Breshears filed a claim for additional temporary total benefits ands permanent partial benefits. On June 5, 1979, a hearing was held to determine the question of additional benefits. On February 11, 1980, as a result of the June 5, 1979 hearing, the Administrative Law Judge found Breshears was temporarily and totally disabled from the date of the injury until November 9, 1978, and awarded Breshears the additional temporary total sum, plus 25% permanent partial disability to the body as a whole, all medical expenses, and maximum attorney fees. The Highway Department appealed to the full Commission which affirmed.
The Highway Department accepted the Commission’s award of 25% permanent partial disability. However, the Highway Department has appealed the award of additional temporary total.
The Highway Department contends the temporary total disability period ended on May 3, 1978. It bases its contention upon the May 3, 1978 letter of Dr. Ralph D. Cash which states “Mr. Breshears returned to my office today ... I am returning him to light duty at this time and will check him again in six weeks.’’ Again in a July 5, 1980 deposition Dr. Cash responded:
Q. In the letter of May 3rd, you mentioned that Mr. Breshears had full range of motion to his left shoulder. You also mentioned that he was non-tender over the bicep and at that time he was able to return to light work or light duty. You also said you would check him again within six weeks. My question is whether or not my mentioning light duty in that letter — were you talking about the type work previously described to you by me from the record with exception of overhead painting?
A. Yes, sir. I felt that his main problem at the time was stiffness in his neck. I thought he should do something that didn’t require heavy lifting, frequent jerking. I didn’t think he could look overhead and do overhead painting at the time. But I thought as you described light maintenance work that he could probably do.
The Highway Department argues Dr. Cash was aware of the Claimant’s duties as a rest area attendant and that such duties did not ordinarily require overhead painting, heavy lifting. It further argues Claimant was not disabled beyond May 3, 1978, as required by Ark. Stat. Ann. § 81-1310 which provides for compensation only during periods of disability. It contends the healing period is not synonymous with the disability period, and the Commission erred in holding Breshears’ healing period to be the basis for his disability. The Commission found the healing period to have ended November 9, 1978 and awarded temporary total benefits to that date.
It contends the legislature never intended the healing period be used to determine temporary disability. It further argues if the legislature had intended such the Act would have based compensation payments on “healing period” rather than on “disability”. §§ 81-1310 and 1313 speak of “period of disability” — not “healing period”. Disability is defined by Ark. Stat. Ann. § 81-1302(e) (Repl. 1976) which provides:
Disability means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.
The Highway Department argues Breshears was just as able to return to work on May 3 as he was on November 9- It argues Dr. Cash’s May 3 letter stating Breshears is able to return to light work is evidence his temporary “disability” was ended on May 3 and not on November 9, “the end of his healing period”.
The Highway Department concedes there are cases where the healing period and the temporary total disability period are concurrent. But in this case it argues there is substantial medical evidence of Breshears’ ability to return to work six months before the end of healing.
This Court recently dealt with this precise point in Pyles v. Triple P. Feeds of Texas, et al, 270 Ark. 729, 606 S.W. 2d 146 (Ark. App. 1980). In that case we rejected the argument that temporary' total is only available when the claimant is unable to work and held temporary total benefits may continue until the healing period ends.
Temporary disability is defined as the healing period following an injury. It exists until the employee is as far restored as the permanent character of his injury will permit. Blair, Workmen’s Compensation Law, § 11:02 (1974). Temporary disability is a separate and distinct disability from any permanent disability and may be compensated separately. See McKenzie v. Campbell & Dann Mfg. Co., 209 Tenn. 475, 354 S.W. 2d 440 (1962), where the Tennessee court held that temporary total disability benefits are payable without interruption from the time of the injury to the time at which the degree of permanent disability is ascertainable.
See also International Paper Company v. McGoogan, 255 Ark. 1025, 504 S.W. 2d 739 (1974).
Finding the payments are not barred by law, we next turn to whether there is substantial evidence to support the decision the healing period ended on November 9, 1978.
The record reflects Breshears returned to Dr. Cash on June 14, 1978 suffering from the same physical problems. In a July 5, 1978 letter Dr. Cash stated Breshears could do nothing which required lifting or overhead working. In Dr. Cash’s report of December 20, 1978, he states “I last saw Mr. Breshears on November 9, 1978. At this time, I feel he has reached his period of healing.” Again in Dr. Cash’s deposition he specifically refers to November 9, 1978 as being the date at which Breshears had reached his healing.
The Commission found, as a matter of fact, Breshears was temporarily and totally disabled from October 25, 1977 until November 9, 1978. The Commission’s findings of fact are binding upon this Court if we find substantial evidence to support them. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979).
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Darrell Hickman, Justice.
Curtis Allen Gipson was convicted of theft of a 1979 four wheel drive Ford pickup truck and sentenced to six years imprisonment. He was sentenced as an habitual criminal with two prior felony convictions.
On appeal he argues there was insufficient evidence to corroborate the testimony of an accomplice. We find sufficient evidence and affirm his conviction. Gipson and an acquaintance, James Allen Allred, both of whom live at Ola, Arkansas, went to Little. Rock on the 14th of February, 1979. Gipson went on business and Allred went along for the ride. They picked up a hitchhiker on their return. The hitchhiker, identified as Steven Hearn, was not a witness at the trial but was admittedly a confidential informant for the authorities in Hot Springs, Arkansas.
Allred pled guilty to theft and testified against Gipson. Since Allred was an accomplice and his testimony must be independently corroborated by other evidence which not only establishes that the crime was committed, but also tends to connect Gipson to that crime. Ark. Stat. Ann. § 43-2116 (Repl. 1977). Olles v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976).
Allred’s story was that the hitchhiker and Gipson agreed that Hearn would steal a truck and deliver it to Gipson for $100.00. They drove through Arkadelphia and Malvern looking for trucks at dealers and ended up in Hot Springs at Resort Ford Company. Allred said Gipson entered the truck with a screwdriver and gave a tool to Hearn which could be used to pull the ignition so the truck could be started: Gipson and Allred left, agreeing to meet Hearn later that evening.
Early the next morning they met Hearn, who was driving the stolen truck, in a remote area. There the police arrested them. Lt. Charles Evans of the Hot Springs Police Department said that he had used Hearn as a confidential informant in drug cases and had received a call from him about two or three o’clock in the afternoon of the 14th of February. Hearn told Evans about the proposed theft of a truck. Evans instructed Hearn to proceed as planned. Later, at one o’clock in the morning Evans again met with Hearn at the police station. Hearn had the stolen truck and showed the officers a dent-pulling tool he had used to pull the ignition system so that the truck could be driven. Evans marked the tool and instructed Hearn to return it to the man who had given it to him. Hearn related where he was supposed to meet Gipson later and the police notified other law enforcement officers of the place of the meeting. Surveillance by several officers was arranged.
In the early morning hours of the 15 th the stolen pickup and a Pontiac car were seen in a remote area near Ola with the truck following the car. After driving around, the two vehicles stopped. Hearn was in the truck. The officers testified that the parties were talking when it was decided to arrest them. The arrest took place at about 5:00 a.m. Evans testified, and his testimony was corroborated by other officers, that the tool brought to him by Hearn and marked at the police station was found in Gipson’s vehicle.
A witness for Resort Ford testified that he was informed by the police of the proposed theft beforehand. He identified the truck as his. It was a new 1979 orange and white Ford pickup truck.
Gipson elected to testify against the advice of his attorney. He stated that he did not discuss stealing a truck with Hearn, but it was Allred and the hitchhiker who talked about “a big, big-time business deal, and I wasn’t paying all that much attention to them at all, no way.” He said Allred told him they were supposed to meet the hitchhiker and “look at” a truck. He said when he first saw the truck and looked it over he knew it was stolen and he “didn’t even touch it.” He said he was going home when the officers stopped him. Apparently he never explained to the jury’s satisfaction why he was meeting Hearn in a remote area at 5:00 a.m. He denied ever being at the Ford dealership, entering the vehicle, or seeing the “pulling” tool.
It is not necessary that the corroborating evidence prove the guilt of the accused beyond a reasonable doubt. It must simply establish that a crime was committed and tend to connect the accused with that crime. Here, a truck was stolen and the owner testified to that fact. A tool, delivered in advance to the police and marked by them, was found in Gipson’s car. Gipson was on top of Ola Mountain, a remote area of Yell County, at 5:00 a.m. He was talking to a man in the stolen truck and Gipson admitted that he had already suspected that the truck was stolen. Obviously the evidence tends to connect Gipson to the theft and this, along with the testimony of the accomplice, was sufficient for the jury to find him guilty.
Gipson’s own testimony, no doubt, was not helpful. He admitted that he agreed to meet a stranger at 5:00 a.m. in a secluded place to discuss buying a pickup truck. Those are not the normal circumstances surrounding the sale of any pickup truck — much less a brand new orange and white four wheel drive truck. The tool and all the circumstances of the clandestine meeting tend to connect Gipson to the theft.
Affirmed. | [
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Steele Hays, Judge.
Appellant, James Edwin Brown, is appealing from the decision of the trial court granting appellee’s motion for summary judgment. Appellee, Brenda Aquilino, had filed a complaint against Brown contending that he had defaulted on his payments on a promissory note. Brown asserted numerous defenses to the action; i.e., lack of consideration, fraud in the execution, exclusiveness of remedy, breach of contract, frustration of purpose of the contract and impossibility of performance.
A hearing was held on the motion for summary judgment and the parties were given leave to file additional affidavits and briefs in support of their contentions. Upon review of all the evidence, the court granted Aquilino’s motion for summary judgment.
On appeal, Brown alleges that the trial court erred in granting summary judgment. At the outset, we recognize that summary judgment is an extreme remedy which should only be allowed when it is clear that there is no issue of fact to be litigated. Saunders v. National Old Line Insurance Company, 266 Ark. 247, 583 S.W. 2d 58 (1979); Robinson v. Rebsamen Ford. Inc., 258 Ark. 935, 530 S.W. 2d 660 (1975).
The burden is upon the moving party to demonstrate that there is no genuine issue of material fact for trial, and evidence submitted in support of the motion must be viewed most favorably to the party resisting the motion. Dodrill v. Arkansas Democrat Company, 265 Ark. 628, 590 S.W. 2d 540 (1979).
Brown contends on appeal that a contract for the sale of common stock provided the consideration for the promissory note. Furthermore, he alleges that an oral employment agreement had been reached by the parties whereby Aquilino was to work for him and that this agreement provided part of the consideration for the contract for the sale of common stock. We conclude that such an agreement is excluded from evidence by the parol evidence rule and accordingly affirm the judgment of the trial court.
Where a contract is plain, unambiguous and complete in its terms, parol evidence is not admissible to contradict or add to the written contract. Carolina Casualty Insurance Company v. Helms, 248 F. Supp. 268 (8th Cir. 1957). The “parol evidence” rule is a rule of substantive law in which all antecedent proposals and negotiations are merged into the written contract and cannot be added to or varied by parol evidence. City of Crossett v. Riles, 261 Ark. 522, 549 S.W. 2d 800 (1977). Applying the rule to the facts in this case, we find that the promissory note is complete on its face with no ambiguous terms. We agree that the contract for sale of common stock and the promissory note are part of the same transaction and, hence, to be construed together, and that the contract for sale was a part of the consideration for the promissory note. However, it would strain to the breaking point the purpose of the parol evidence rule to allow an alleged oral contract of employment to be considered as evidence upon the assertion that such agreement formed part of the consideration for the agreement under the circumstances of this case. The rule as we find it in Arkansas is that where the consideration clause is itself a part of the written contract, oral evidence is not admissible to vary or contradict the written part. Sims v. Best, 140 Ark. 384, 215 S.W. 519 (1919). Another case in accordance with this rule is Harris v. Trueblood, 124 Ark. 308, 186 S.W. 836 (1916), where it was held in an action for fraud in the sale of a business, that parole evidence was inadmissible to show that a promise had been made by the seller to refrain from competing in the same business in the city for one year. The court held that parol evidence of the promise not to compete was not admissible “for the reason that there was a written contract reciting all of the considerations, which were of a contractual nature, and the introduction of the parol proof would vary the terms of the contract itself.”
In Central Life Insurance Company of Illinois v. Thompson, 182 Ark. 705, S.W. 2d 388 (1930), the court stated:
The written contract recites the many reciprocal agreements and obligations of the respective parties, and the statement therein, as to the consideration, is more than a mere statement of fact and acknowledgment of payment of a money consideration, and is of a contractual nature, and the part of the contract relative thereto can no more be changed or modified by parol or extrinsic evidence than any other part.
However, appellant argues that proof of a collateral agreement not inconsistent with the written contract is not excluded by the parol evidence rule. In Lane v. Pfeifer, 264 Ark. 162, 568 S.W. 2d 212 (1978), the court stated the rule succinctly:
. . . When testimony is offered to prove an independent collateral fact about iuhich the contract is silent, the parol evidence rule is not applicable. [Emphasis added.]
Here, the written contract is not silent as to the consideration of the agreement. As the contract for sale recites, the seller sold, transferred and delivered to the buyer 200 shares of common stock for a price of $40,000. Hence, we recognize the general rule that parol evidence cannot be introduced to change or alter a contract in writing. Lane v. Pfeifer, supra; Equitable Discount Corporation v. Trotter, 233 Ark. 270, 344 S.W. 2d 334 (1961). We find that the rule is applicable to the facts of this case and, accordingly, agree with the trial court that no genuine issue of material fact is shown to be present. That being so, the trial court’s granting of appellee’s motion for summary judgment was proper. This conclusion is buttressed by the fact that the parties took the pains to prepare two carefully drafted instruments, the note and the contract, replete with details of the terms and conditions of the agreement, without the slightest reference to appellant’s alleged oral and contemporaneous contract of employment. When we consider, as well, the fact that these documents were prepared by Brown’s attorney, it becomes too much to ask of the law to hold that a thorough, written agreement entered into under the circumstances here prevailing, must accomodate an oral agreement of dubious existence.
Appellant has cited Weaver & Weaver v. Fletcher & Hotze, 27 Ark. 510 (1872) and argues that the alleged contemporaneous oral agreement comes within the rule announced in that decision. But the two cases are easily distinguishable in that the language in rule announced in the Weaver decision permits parol evidence where it is not inconsistent with the terms of the note. The oral agreement appellant relies on is wholly inconsistent with the provisions of the note. The note reflects the monthly payments to be installments against the principal indebtedness. Whereas the alleged oral agreement, according to appellant’s theory, provides that such payments are in reality earnings under the appellee’s contract of employment. It is impossible to reconcile the note and the asserted oral agreement and say that the two are consistent.
Finally, appellant insists that in the event of default in the monthly payments, the contract of sale, paragraph (5), provides that shares of stock equal in value to the balance due on the note shall be returned to Seller and the balance of the shares for which payment has been made shall be delivered to Buyer. This provision, according to appellant, is an exclusive remedy in the event of default. But we find nothing in the contract, either in paragraph (5), or elsewhere, suggesting that this is an exclusive remedy in the event of default and we are not willing to infer that appellee’s recourse in the event of a default was intended to be so restricted. Everything in the two instruments suggests a contrary intention. The promissory note provides, on default, that “the entire principal sum shall at once become due and payable, without notice at the option of the holder of this note.” As appellee correctly points out, when one party has two or more concurrent and consistent remedies, he may pursue one or all until satisfaction is had. Gibson v. Gibson, 266 Ark. 622, 589 S.W. 2d 1 (1979); Davis v. Laivhon, 186 Ark. 51, 52 S.W. 2d 887 (1932). Accordingly, we find that the language of the contract does not contravene the right of the appellee to sue on the note in case of default.
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Per Curiam.
Albert Browning, by his attorney, has filed a motion for a rule on the clerk.
The motion admits that the record was not timely friled and states the reason for the delay is:
The attorney for the appellant had been assured by the reporter preparing the transcript that it would be ready prior to running of the 90 days after filing of the notice of appeal, and that if it were not the reporter would obtain a timely extension of time.
Relying upon these assertions the attorney for the appellant had no knowledge or indication that the time schedule prescribed by the rules of the Court had not been complied with.
It is not the duty of the court reporter to advise the attorney whether “. . . the time schedule prescribed by the rules of the Court had been complied with.” It is the duty of the attorney to see that the record is timely filed. Hence, no good reason is shown for the delay and we will deny the motion as it is filed.
If the affidavit attached to the motion had stated that the attorney made an error or had been careless in the computation of time, or gave any good cause, the motion could be granted. In a per curiam opinion regarding belated appeals rendered February 5, 1979, 265 Ark. 964, we discussed the problem of an untimely tendor of a record caused by the attorney. We decided that we have no alternative but to grant the motion for relief in such a case. However, we pointed out that a copy of the opinion would be forwarded to the Committee on Professional Conduct as is our practice.
We do not hold that we will deny a belated appeal if a reason is shown to grant the rule. | [
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George Rose Smith, Justice.
Three companion suits, consolidated below, were brought by the appellants in the Washington Chancery Court, seeking to enjoin Southwestern Electric Power Company, a licensed foreign corporation, from trespassing upon the plaintiffs lands and to recover a total of $175,000 as damages for past trespasses. SWEPCO defended its entry upon the plaintiffs lands as having been made under the authority of circuit court orders by which SWEPCO’s wholly owned subsidiary, a domestic corporation, had condemned a right of way for the construction of electrical transmission lines across the plaintiffs lands. The case was tried on admissions and other conceded facts, without testimony. The chancellor dismissed the complaints for want of equity. The appeal comes to this court under Rule 29 (1) (a).
The ultimate question is whether SWEPCO should be permitted to use its subsidiary, Southwest Arkansas Utilities Corporation, to condemn a right of way so that SWEPCO itself can construct its transmission lines upon the plaintiffs’ lands. That precise question was answered in the affirmative in earlier cases involving this same parent corporation and this same subsidiary, though SWEPCO has changed its name slightly since then. Patterson Orchard Co. v. Southwest Ark. Utilities Corp., 179 Ark. 1029, 18 S.W. 2d 1028, 65 A.L.R. 1446 (1929); Southwestern Gas & Elec. Co. v. Patterson Orchard Co., 180 Ark. 148, 20 S.W. 2d 636 (1929). Both the Patterson Orchard cases arose, as did this one, from that section of our Constitution denying to foreign corporations the right of eminent domain. Ark. Const., Art. 12, § 11 (1874).
The first Patterson Orchard case is almost indistinguishable from the case at bar. There SWEPCO’s predecessor, a Delaware corporation, was relocating an interstate transmission line when it reached the Patterson property and was unable to get permission to cross the orchard. On March 7, 1928, the company filed a condemna tion action in the circuit court and obtained an order permitting it to enter the land and construct its line. The landowner at once protested on the ground that Southwestern Gas & Electric was a foreign corporation without power to condemn a right of way. The company, however, went ahead and practically completed its construction.
Three days later, on March 20, the landowner presented its protest to the circuit judge, who suspended his earlier order and set the matter for a hearing on March 24. In that four-day interval Southwestern Gas & Electric hastily formed its present subsidiary, Southwest Arkansas Utilities, whose corporate purpose as stated in its charter was to generate and transmit electricity for public use. The parent company conveyed part of the new transmission line, including the segment across the orchard, to the subsidiary in exchange for all its capital stock except two qualifying shares. The parent company then leased the line from the subsidiary, which intervened in the case on March 24. After the parent company abandoned its original condemnation effort the case was transferred to chancery and resulted in a decree condemning a right of way for the subsidiary company. The landowner appealed to this court.
We stated much the same question that is again presented in the case at bar: “Could the appellee, a domestic utilities corporation, clothed with the power of eminent domain, exercise that power for the benefit of a like foreign corporation which had complied with the general laws of the state prescribing upon what terms a foreign corporation might do business therein?” It was argued there, as it is here, that the creation of the subsidiary “was but a subterfuge for acquiring a right-of-way indirectly” for the parent company, which could not be done directly because of the constitutional prohibition.
We followed the great weight of authority in upholding the right of a foreign corporation to exercise the power of eminent domain through a domestic subsidiary. The opinion discussed cases from Iowa, Utah, and New York, and distinguished the only contrary holding because the Nebraska con stitutional provision was different from ours. Our final reasoning was this:
Since the power to acquire rights-of-way by purchase, lease, or otherwise, is not excepted from the general powers granted, it follows that a foreign corporation may exercise such power. The privilege granted a foreign corporation to do business in this State would be practically nullified if it were restricted from doing the act which was necessary to the prosecution of that business, and, as it it is a necessary incident to the business of companies engaged in the transmission of electricity for public use to acquire rights-of-way, this authority must be deemed to have been granted under its general powers, unless expressly or by necessary implication prohibited in terms expressed in the Constitution, and which it does not do.
In the present litigation there was not even a suggestion of concealment or subterfuge in the condemnation actions brought by Southwest Arkansas Utilities against these appellants. The complaints alleged that the plaintiff was an Arkansas corporation authorized to engage in the businesss of generating, transmitting, and supplying electricity for public use, that it had the power of eminent domain, and that it was a wholly owned subsidiary of SWEPCO. The complaints recited that plaintiff was acquiring the right of way for the use and benefit of SWEPCO and at its direction. The pleadings cited the plaintiffs own statutory authority to exercise the power of eminent domain and also stated that SWEPCO, about three earlier, had obtained from the Public Service Commission certificates of environmental compatibility and public need for the major utility facilities which would be constructed after the right-of-way had been' acquired by Southwest Arkansas Utilities and assigned or leased by it to SWEPCO. Ark. Stat. Ann. § 73-276.15 (RepL 1979). The condemnation orders approved deposits to secure the landowners, put the plaintiff in possession of the rights of way, and vested title in the plaintiff with all rights of enjoyment set forth in the complaints.
The appellants attempt to distinguish our holdings in the Patterson Orchard cases on the ground that in those cases the subsidiary corporation actually held title to the transmission lines and leased them to the parent company, while here SWEPCO itself entered the right of way and constructed the lines. We do not see that this distinction is of controlling importance. Our rule is that separate corporate entities will be disregarded only “when the privilege of transacting business in corporate form has been illegally abused to the injury of a third person.” Pounds & Porter Lbr. Co. v. Burns, 216 Ark. 288, 225 S.W. 2d 1 (1949). SWEPCO has not used the device of a subsidiary illegally, its procedure having been approved in Patterson Orchard. Nor have the appellants suffered any pecuniary injury. In the condemnation cases they had the opportunity to obtain just compensation for the use of their lands; presumably they did so. They knew from the condemnation complaints that the rights of way were being acquired for SWEPCO and would be used by SWEPCO. The proof does not show the arrangement between Southwest Arkansas Utilities and its parent company, but we do not see how the landowners have any basis for complaint even if the subsidiary merely gave the parent company oral permission to use the right of way, instead of executing a formal lease.
The appellants recognize the Patterson Orchard cases as precedents and have not asked us to overrule them, but that suggestion has been made during our consideration of this case. We are firmly of the view that those cases, which construed our Constitution and statutes and laid down a rule of property which has since been relied upon, should not be disapproved. As the court said in our earlier quotation from the first Patterson case, the legislature authorized SWEPCO’s predecessor, although a foreign corporation, to engage in the business of generating and transmitting electricity for public use, knowing that it was essential to the business that the company acquire rights of way for its lines. More than 50 years have passed since the Patterson cases were decided, but the legislature has not seen fit to change the rule announced in those decisions. If any change is to be made at this late date, it should be made by the legislature, not by the courts. A repudiation of the Patterson Orchard rule would undoubtedly disrupt many public utility businesses, but as far as we can see there would not be the slightest compensating benefit either to landowners or to the general public.
Since we are affirming the chancellor’s decree on the authority of our earlier precedents, it is unnecessary for us to consider SWEPCO’s alternative contention, that our constitutional distinction between domestic and foreign corporations with respect to the right of eminent domain is a denial of the equal protection of the laws.
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Frank Holt, Justice.
This is a products liability case. The appellees purchased two gasoline underground storage tanks, gasoline pumps, lines, and other accessory equipment from appellant. These items were installed by the appellant in October of 1975 on appellees’ premises, a drive-in business, which included a laundromat, restaurant, motel, and a house trailer. In July, 1976, the appellees and their customers began to notice the odor of gasoline in the water system. Appellees’ water supply consisted of a 30' deep well located 40' or 50' from the underground storage tanks. This well supplied water for the trailer, restaurant and motel. Another well, 94' in depth and located uphill approximately 25' from the first well, supplied water to the laundromat. Gradually, the odor became worse and the tap water began to show a substantial amount of gasoline in it. Eventually, appellees had to stop using the water supply and began hauling water in by truck. In June and July, 1977, at appellees’ request, appellant tested the equipment fqr leaks and found none. The contamination continued to worsen. In August, 1977, or a month later, the appellant removed the tanks, lines and other equipment, and again the test revealed no leaks; however, parts of a protective coating on the tanks were corroded by gasoline. The tanks were recoated' and reinstalled. Appellant does not question the contamination of the well closest to the pumps. Appellant acknowledges that when making the last test for leaks, it found this well contained 6 and 1/2" of gasoline on the surface of the water. Appellees testified that after the removal and reinstallation of the tanks, lines and other equipment, the contamination began to gradually lessen, and it was almost nonexistent at the time of trial in April, 1979-
Appellant filed this action in chancery court to enforce its liens on the premises because of appellee’s refusal to pay appellant $3,719-92 for testing and reinstalling the equipment. The appellees filed a cross-complaint seeking to recover from appellant the damages caused by the gasoline contaminated water. The chancellor found appellant was liable, under Ark. Stat. Ann. § 85-2-318.2 (Supp. 1979), and allowed a setoff against appellant’s claim. Appellant asserts that the trial court erred in finding for the appellees on strict liability since the appellees failed to establish by a preponderance of the evidence that the product was supplied to them in a defective condition and the defective condition was the proximate cause of the harm to the property. Appellant argues there was no evidence that the tanks, lines and pumps were supplied in a defective condition; rather, the evidence as to the tests shows they were not defective. Therefore, it was speculation to say these products caused the damage when other causes were possible and not ruled out.
We have adopted the doctrine of strict liability in torts in products liability cases. Section 85-2-318-2, supra, provides:
A supplier of a product is subject to liability in damages for harm to a person or to property if:
(a) the supplier is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product;
(b) 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 property.
The doctrine of strict liability does not change the burden of proof as to the exitence of a flaw or defect in a product. However, it does away with the necessity of proving negligence in order to recover for injuries resulting from a defective product. Higgins v. General Motor Corp., 250 Ark. 551, 465 S.W. 2d 898 (1975); and Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W. 2d 455 (1979). Prosser, The Fall of the Citadel, 32 ATL L.J., p. 21 (1968), has discussed the elements of proof:
Strict liability eliminates both privity and negligence; but it still does not prove the plaintiff s case. He still has the burden of establishing that the particular defendant has sold a product which he should not have sold, and that it caused his injury. This means that he must prove, first of all, not only that he has been injured, but that he has been injured by the product. The mere possibility that this may have occurred is not enough, and there must be evidence from which the jury may reasonably conclude that it is more probable than not .... The plaintiff must prove also that he was injured because the product was defective, or otherwise unsafe for his use ....
Further is Prosser Torts, § 102, p. 672 (4th Ed. 1971), it is stated that such proof may be by circumstantial evidence:
The difficult problems are those of proof by circumstantial evidence. Strictly speaking, since proof of negligence is not in issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are not less applicable. The plaintiff is not required to eliminate all other possibilities, and so prove his case beyond a reasonable doubt. As on other issues in civil actions, it is enough that he makes out a preponderance of probability. It is enough that the court cannot say that reasonable men on the jury could not find it more likely than not that the fact is true.
See also, Woods, Comparative Fault, §§ 14:18 and 14:19 (1978); and Restatement, Torts 2d § 402A (1965).
It is true, as appellant argues, that liability cannot be based on mere conjecture and guess. Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S.W. 2d 885 (1964). However, in the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product, not attributable to the defendant, and thus raises a reasonable inference that the defendant as argued here, is responsible for the defect. Higgins v. General Motors Corp., supra, and Cockman v. Welder’s Supply Co, supra. See also Jakubowski v. Minnesota Mining and Manufacturing, 42 N.J. 177, 199 A. 2d 826 (1964); Greco v. Bucciconi Engineering Co., 407 F. 2d 87 (3rd Cir. 1969); Corbin v. Camden Coca-Cola Bottling Co., 290 A. 2d 441, 60 N.J. 425 (1972); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F. 2d 631 (8th Cir. 1972).
The burden of proof was upon appellees to show that the circumstances surrounding the transaction were such as to justify a reasonable inference of probability rather than a mere possibility that appellant is responsible. Appellant argues it could have been caused by car owners overflowing their tanks, the surplus running down through some broken concrete into the sand below and into the ground. However, appellees testifed they broke the concrete over the tanks after the problem arose so appellant could dig up the tanks to test them. Appellees replaced the concrete afterwards. The contention that the supplier could have spilled gasoline when filling the storage tanks was also rebutted by appellees. Although appellant argues there may have been gasoline stored at a lumber mill in the vicinity which could be causing the contamination, the mill was separated from appellees’ business by a valley, and there was no evidence that gasoline was stored there. It is also asserted there is no evidence negating the possibility that the contamination resulted from some source of gasoline, such as the gasoline station 3 miles distant, which might be transmitted by the underground water table. The evidence, however, is uncontroverted that no contamination of appellees’ water system existed during the 30 years appellees were in business preceding appellant’s installation of its product. Further, since appellant’s removal, testing, recoating, and reinstalling their product, the presence of gasoline in their water system has gradually diminished and has become practically eliminated.
In our view, the chancellor correctly found by a preponderance of the evidence that appellees’ evidence sufficiently negated the other possible causes argued by appellant, and, therefore, appellant is responsible for appellees’ damages.
Affirmed.
Fogleman, C.J., dissents. | [
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Tom Glaze, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission denying appellant’s claim for statutory fees on temporary total disability benefits and medical expenses arising from a compensable injury sustained on September 7, 1977. The appellant’s contention on appeal is simply that although benefits were paid, they were not timely paid by the appellee. Moreover, it is contended that nothing would have been paid unless appellant had hired an attorney. This being true, appellant argues that benefits were controverted, and she is entitled to attorney s fees. The Supreme Court in Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480 (1976) treated the question of controversion as one of fact. More specifically, the Court in Henning set forth the following standard of review on the controversion issue:
A liberal construction favoring the claimant mandates a holding that the question whether a claim is controverted be one of fact to be determined from the circumstances of the particular case, only one of which is the status of the formal proceedings before the commission, and that, as in other such determinations, the commission’s finding should not be reversed if there is substantial evidence to support it, or unless it is clear that there has been a gross abuse of discretion.
The facts in this case are clear and are generally not in dispute. The appellant, Hamrick, sustained a compensable injury to her arm on September 7, 1977. The appellee, Colson, sent Hamrick to its physician, Dr. Wisdom. On this same day Hamrick also saw her family doctor, Dr. Reynolds, who stated she could return to work but must have light duties for at least two weeks. Hamrick returned to Dr. Wisdom on September 9, 1977, at which time the doctor released her for work commencing September 13, 1977. On September 13, Hamrick also saw her attorney and the attorney arranged a doctor’s appointment for her on November 16, 1977, with Dr. Lester.
Hamrick returned to work on September 13, and after incurring difficulties in handling her duties, she was unable to continue working from September 15 until September 29. At Hamrick’s request, Colson her to Dr. Hudson, a neurosurgeon. It was his opinion that Hamrick had muscle spasms and he advised two or three days rest. Hamrick returned to work on September 29.
The next important event occurred on October 10, 1977, when Hamrick’s attorney filed a workers’ compensation claim, stating Colson had controverted Hamrick’s claim for benefits. Colson then engaged an attorney on or about October 21, 1977, who, by letter to the Commission, stated that from the medical provided it would controvert any sums over and above the monies already paid.
On November 16, 1977, Hamrick kept her appointment with Dr. Lester, but the same day Lester referred her to Dr. Allen. It was Dr. Allen, who, on November 16, first decided Hamrick required surgery. Hamrick arranged for the surgery to be done on December 5, 1977. Colson then received Dr. Allen’s report on November 21,. 1977, and its attorney, by letter dated November 23, 1977, requested a second opinion by an orthopedist, Dr. Dickson, and further asked Hamrick’s attorney to permit the second examination prior to any surgery to be performed by Dr. Allen. On or about November 30, 1977, Hamrick apparently first notified Colson that she would have her surgery on December 5, 1977, and Colson in turn promptly notified its attorney. After some scheduling difficulties in trying to arrange an appointment prior to December 5, Colson did schedule and Hamrick met an appointment with Dr. Rosensweig on December 2, 1977. Dr. Rosensweig agreed with Dr. Allen’s opinion and decision that surgery was necessary. After learning of Dr. Rosensweig’s opinion, Colson’s attorney confirmed by letter dated December 8, 1977, to the Commission that Colson acknowledged Hamrick’s claim to be compensable and did in fact pay all benefits commencing December 19, 1977, two weeks after the date of surgery.
After the Commission reviewed the above facts and evidence of record, it concluded, among other things, that Colson had demonstrated good faith in meeting its obligations under our workers’ compensation law, and the Commission rendered an opinion that Hamrick had simply not shown by a preponderance of evidence that her claim had been controverted. As is noted in Henning, the finding should not be reversed if there is substantial evidence to support it or unless the Commission abused its discretion. See also, Turner v. Trade Winds Inn, 267 Ark. 861, 592 S.W. 2d 454 (1980). Moreover, it is well settled that the mere failure of an employer to pay compensation benefits does not amount to controversion, especially in instances when the carrier accepts the injury as compensable and is attempting to determine the extent of disability. Horseshoe Bend Builders v. Sosa, 259 Ark. 267, 532 S.W. 2d 182 (1976).
In resolving the issue of whether the evidence warrants the Commission’s finding that no controversion occurred, there are certain facts in the record which we conclude substantiate such a decision. First, Hamrick had seen three doc tors (including her own) who had never diagnosed her specific medical problem, and therefore, none of the three recommended surgery. The doctors informed her she suffered from a pulled muscle or muscle spasms. Colson relied on this medical advice in its decision to pay no further medical expenses. The general rule is that when an employer contends that he acted in reliance upon responsible medical opinion in refusing or terminating benefits, penalties (statutory fees) are not ordinarily imposed. 3 Larson’s Workmen’s Compensation Law, § 83.40 (1976). In this case, Hamrick was not only referred to the doctor who normally evaluated Colson’s employees, but also she saw a specialist (neurosurgeon), and her own family doctor. There is no reason to believe from the record that Hamrick did not receive responsible medical treatment. Secondly, no additional or contrary medical evidence to that which Colson already had was provided by Hamrick’s attorney until November 21, 1977. This was true even at the time Hamrick’s attorney filed her claim on October 10, 1977. The proof clearly shows that no one knew the extent of Hamrick’s real injury until Dr. Allen’s diagnosis on November 16. Thus, it is logical to assume from these facts that no actual controversion could have existed until Dr. Allen’s opinion was obtained and presented to Colson for its evaluation. It was after receipt of Dr. Allen’s report that the extent of Hamrick’s injury became known by Colson.
The statutory law which controls when the employer must provide medical, surgical, hospital and nursing services to the employee is set forth in Ark. Stat. Ann. § 81-1311, which in pertinent part states:
The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing services ... as may be reasonably necessary for the treatment of the injury received by the employee . . . within a reasonable time after knowledge of the injury. [Emphasis supplied.]
As mentioned earlier, Colson was unaware of the extent of Hamrick’s injury until November 21, .1977, which was forty-two days after Hamrick’s attorney filed her claim and thirty-one days after Colson filed a letter controverting the claim based on the previous medical. Up to this point in time, all medical reports indicated no need for surgery and, in fact, Hamrick worked during this entire period from September 29, 1977, to December 5, 1977. Based on these facts, it is difficult to understand what more Colson could have done. Colson had paid medical expenses and compensation benefits based on the current medical, it referred Hamrick, upon her request, to another physician, a neurosurgeon, and Hamrick was permitted to work and draw wages until the date of surgery. Certainly these facts are consistent with the Commission’s finding that Colson demonstrated good faith.
Colson’s actions after it was confronted with Dr. Allen’s new and conflicting medical report are important. The attorney for Colson promptly sought an early, independent medical opinion to confirm Dr. Allen’s diagnosis and surgery recommendation. Since Hamrick had already scheduled her surgery for December 5, 1977 (which she chose not to delay), problems arose in scheduling an appointment in advance of surgery. A letter by Colson’s attorney dated December 1, 1977, indicated that Hamrick had not advised Colson until on or about November 30, 1977, that her surgery would be on December 5. An appointment was finally arranged, however, and Hamrick was examined by Dr. Rosensweig on December 2, 1977, i.e., eleven days after Colson first gained knowledge of Dr. Allen’s opinion and three days before the date of surgery. Under these pressing circumstances and time deadlines, Colson’s actions were prompt in its attempt to obtain another medical opinion upon which it could base a decision to either controvert or not controvert the medical expenses and disability payments to be incurred due to Dr. Allen’s opinion. Colson assumed responsibility for Hamrick’s medical expenses and surgery six days after Dr. Rosensweig examined Hamrick, confirming the extent of her injury. Again, the time and manner in which Colson acted was such that the Commission could find it to be reasonable.
If there had been conflicting medical evidence at the time Hamrick’s claim was filed, our decision, and most likely the Commission’s, would be different. Moreover, if there was other evidence which would show Colson had acted in bad faith or had unreasonably delayed its investigation of Hamrick’s claim, a different result would have been reached. We have indicated that on appeal this court will not interfere with the Commission’s determination on the issue of attorney’s fees unless there is an abuse of discretion. We are of the view that the Commission did not abuse its discretion and, further, there was substantial evidence to sustain its finding that appellant failed to show her claim was controverted.
Affirmed.
Cloninger and Cooper, JJ., dissent. | [
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James H. Pilkinton, Judge.
This suit was filed by appellants seeking rescission and restoration of $2,000 paid as a real estate brokerage fee.
The record shows that appellants executed an exclusive listing contract to appellee d/b/a Jan’s Realty to sell the property involved at a gross price of $52,900, and providing for a professional fee to be due the realtor of $2,000. There was a space provided in Paragraph 4 of the contract for any specific conditions to be written, but none were inserted, and this space is blank on the instrument.
There was an offer and acceptance later signed by Dorothy Mathews as buyer, and Jan’s Realty as agent, which was accepted by appellants as sellers. This instrument provided for the payment of $9,000 to appellants for their equity, and the assumption of a certain note and mortgage then existing in favor of Union Fidelity Savings and Loan Association.
There was also a separate agreement executed by Dorothy Mathews, as purchaser, the appellants as sellers and mortgagors, and Union Fidelity Savings and Loan Association, under which Dorothy Mathews agreed to assume the note and mortgage and make the payments. This document expressly provides that the appellants were not to be released in any manner from the obligation of the mortgage, although it was being assumed by Dorothy Mathews with the approval of Union Fidelity. Dorothy Mathews paid the $9,000, and assumed the loan, or so all parties then thought. Union Fidelity later reneged on its approval, and caused a line to be drawn through the signature of Mr. Robert S. Boardman, who had signed for the Savings and Loan Association. The following notation was made over the signature: “Void — not approved by the board of directors.”
The mortgage provided in one paragraph that if the property is sold or transferred without the lender’s prior written consent, the lender may declare all sums secured by the mortgage due and payable. After Union Fidelity refused to assume the assumption, the monthly payments tendered by Mrs. Mathews were refused; and, the entire indebtedness was declared due, and foreclosure followed. Union Fidelity purchased the property for the amount of the judgment and the appellants actually suffered no loss. The record shows that appellants received exactly what they would have received had the buyer been allowed to assume the mortgage. The only expenses the appellants incurred were for attorney’s fees. Union Fidelity had earlier returned the $100 paid by Jan’s Realty for the transfer fee, which was for the assumption later vacated and denied. The record shows that this $100 had been deducted from the amount paid the apellants by Jan’s Realty in the closing of their transaction with Dorothy Mathews.
After trial below, the chancellor refused to grant rescission, and dismissed the suit except for the $100 withheld for the transfer fee. The trial court directed that this $100 be returned to appellants by appellee. Otherwise the suit was dismissed for want of equity, and appellants question that decision on appeal.
Appellants first sued appellee for damages. Since it was clear that no damages were suffered, appellants then amended their complaint alleging breach of contract and seeking rescission and restitution to them of the $2,000 brokerage fee. The argument of the appellants on appeal is somewhat difficult to follow as the purpose of the remedy of restitution is to restore the injured party to as good a position as he or she occupied before the contract was made. Restitution is an alternate remedy to damages or for specific performance. Likewise, as a general rule, payments which are voluntarily made cannot be recovered except for payments made as a result of duress, fraud, mistake or failure of consideration. There is no duress, fraud, mistake or failure of consideration pleaded or proved by the appellants in the case at bar.
In the absence of an express contract by which a broker warrants the financial ability of the purchaser procured by him, or in the absence of fraud on the part of the broker, the realtor does not lose the commission where a binding contract of sale is effected through the agency simply because the purchaser, procured by the broker, is financially unable, or for any other reason fails to carry out the contract of purchase. Harnwell v. Arnold, 128 Ark. 10, 193 S.W. 506 (1917). Moore v. Irwin, 89 Ark. 289, 116 S.W. 662 (1909).
We think the chancellor was correct in finding that there is no evidence to show that the contract between appellants and appellee was conditioned upon the final approval by Union Fidelity of the assumption of the loan by the purchaser. We also agree with the chancellor that the record shows clearly that appellee earned the commission by securing the buyer and obtaining execution of the offer and acceptance. While decisions of the chancery court are reviewed de novo on appeal, the appellate court does not reverse unless the decision below is clearly erroneous (clearly against the preponderance of the evidence). Rule 52, Arkansas Rules of Civil Procedure. We certainly cannot say that the decision of the chancellor in this case is clearly against the preponderance of the evidence. Therefore we must, affirm.
Appellants have filed a separate motion to tax the costs of what they term as “unnecessary parts of the record” against appellee. Appellants did designate only a limited part of the record for the purpose of appeal; and appellee additionally designated other parts, thus causing to be brought forward all of the record below, including the foreclosure proceedings. We cannot say here, however, that appellee under the circumstances has violated Rule 6 (c) of the Arkansas Rules of Appellate Procedure to an extent which calls for the imposition of costs under Rule 24. Therefore, all costs on appeal must be assessed against appellants.
Affirmed. | [
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