text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Darrell Hickman, Justice.
Louis and Kathleen Rabalais sued five named members of the First United Methodist Church in Batesville for breach of contract and for the tort of outrage. On motion by the church members, the trial court dismissed the complaint. On appeal it is argued that the trial court was wrong in four instances.
Two points are meritless. First, no facts at all were alleged regarding the tort of outrage. It was only asserted that the appellees wilfully and wantonly breached the contract with the Rabalaises to repair and rebuild the church organ causing the Rabalaises emotional distress. ARCP Rule 8 requires that a claim for relief shall contain “a statement in ordinary and concise language of facts showing that the pleader is entitled to relief.” Rule 12 (b) (6) provides for dismissal of a complaint for “failure to state facts upon which relief can be granted.” The two rules must be read together in testing the sufficiency of a complaint; facts, not mere conclusions, must be alleged. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). Since no facts were alleged regarding the tort, the trial court was right to dismiss the claim. Therefore, we need not reach the question of whether the appellees enjoy charitable immunity from tort actions.
When our rules are applied to the claim for breach of contract, we conclude that the trial court was wrong in dismissing that claim. First, in testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint. Home Ins. Co. v. Williams, 252 Ark. 1012, 482 S.W.2d 626 (1972). Pleadings are to be liberally construed and are sufficient if they advise a defendant of his obligations and allege a breach of them. Allied Chemical Corp. v. Van Buren School Dist., 264 Ark. 810, 575 S.W.2d 445 (1979). In order to state a cause of action for breach of contract, “the complaint need only assert the existence of a valid and enforceable contract between the plaintiff and defendant, the obligation of defendant thereunder, a violation by the defendant, and damages resulting to plaintiff from the breach.” Williams v. Black Lumber Co., 215 Ark. 144, 628 S.W.2d 13 (1982).
In their complaint the Rabalaises alleged that they entered into a contract with the appellees on June 30, 1975, to rebuild the church organ. Prior to rebuilding the organ the appellees discontinued the services of the appellants. For their breach of contract the appellants prayed for damages. The appellees moved to dismiss for several reasons, among which was that the contract and notice of termination were not attached as alleged in the complaint. The appellants amended their complaint and attached the contract and letter of termination. Another motion to dismiss stated that the amended complaint referred to a modification of the contract but that no modification was attached. The motion also alleged that Mrs. Rabalais had no cause of action for breach of contract since she did not sign the contract.
The trial court heard testimony only on whether Mrs. Rabalais could be a party to the action for breach of contract.
There was undisputed testimony that Mrs. Rabalais had been an equal partner in the business since 1962, had worked on the restoration of organs, including the one at the appellees’ church, and kept the books. The trial court held that she had no cause of action. It also ruled that the complaint should be dismissed because no cause of action for breach of contract was stated since it did not provide the substance of the modification to the contract or allege the specifics of the breach.
Undoubtedly, the trial court was treating the motion to dismiss like a motion to make more definite and certain rather than testing the sufficiency of the complaint as is required by our rules. In this case the complaint stated a cause of action for breach of contract. The Rabalaises did not explain in detail all of the reasons for the disagreement, but that is not required. The appellants should not be denied their right to the claim. Furthermore, the preponderance of the evidence showed that the Rabalaises were partners in their business and, therefore, Mrs. Rabalais had a right to sue to enforce the contract. See Smith v. Dixon, 238 Ark. 1018, 386 S.W.2d 244(1965).
Reversed and remanded.
This action was brought as a class action in an attempt to avoid the church’s charitable immunity. We do not reach the issue. | [
-80,
108,
-99,
-83,
-120,
-31,
50,
-70,
115,
-125,
39,
83,
-19,
-45,
21,
39,
-10,
121,
81,
105,
81,
-89,
38,
0,
-46,
-105,
115,
65,
-79,
-17,
-28,
-4,
68,
56,
-29,
-43,
-31,
107,
-51,
20,
2,
-127,
-88,
-25,
-7,
-44,
-72,
59,
84,
15,
117,
-34,
-21,
-84,
24,
-50,
-119,
58,
-33,
63,
116,
-72,
-114,
15,
126,
5,
-79,
36,
28,
35,
114,
104,
16,
57,
3,
-8,
115,
-74,
-126,
116,
65,
-103,
9,
98,
98,
18,
16,
101,
-64,
-100,
47,
-73,
29,
38,
-109,
73,
75,
13,
-73,
-99,
116,
16,
-89,
-6,
-16,
28,
-35,
44,
3,
-122,
-106,
-91,
-65,
52,
30,
3,
-61,
-121,
52,
85,
-50,
-94,
92,
3,
19,
-37,
30,
-97
] |
John I. Purtle, Justice.
Appellant was convicted of aggravated robbery and theft of property and was sentenced, as an habitual criminal, to a total of 35 years in prison. On appeal, he argues that the court erred in failing to direct a verdict in his favor and in allowing a police officer to testify to a witness’s lineup identification of appellant. We think the trial court was correct in both instances and affirm.
Appellant contends that the trial court should have directed a verdict because the evidence was insufficient to sustain a conviction. Appellant’s trial was held over six years after the robbery took place. The only evidence implicating appellant in the crimes was the testimony of the manager of the store that was robbed. The manager testified that appellant pointed a gun at his head during the course of the robbery and that over $12,000 was missing after appellant and his accomplices left the store. The manager was unsure whether appellant was then wearing a beard, but he testified that he remembered certain other features of appellant’s face. The manager was positive in his identification of appellant as one of the robbers. The manager and a police officer testified that the manager had identified appellant in a lineup held just over a year after the robbery.
Appellant testified that he was out of the state on the day of the robbery. A convicted accomplice who denied his own participation testified that he was not yet acquainted with appellant on the day of the robbery and could not account for appellant’s whereabouts on that day.
The manager’s testimony, if believed, is clearly sufficient to establish the elements of the crimes of aggravated robbery and theft of property. Ark. Stat. Ann. §§ 41-2102; 41-2103 and 41-2203 (Repl. 1977).
On appeal we review the evidence in a light most favorable to the appellee and affirm if there is substantial evidence to support the conviction. Substantial evidence must do more than create a suspicion; it must be of sufficient force to compel a conclusion with reasonable certainty. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The accuracy of the manager’s identification of appellant and the alleged weaknesses of that identification were matters of credibility to be resolved by the jury. The jury in this case had the choice of believing the manager or believing appellant. They obviously believed the manager and we are bound by the jury’s judgment as to the credibility of witnesses. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). We have held before that the uncorroborated testimony of one state’s witness is sufficient to sustain a conviction. Meeks v. State, 161 Ark. 489, 256 S.W. 863 (1923). See also Clark v. State, 246 Ark. 1151, 442 S.W.2d 225 (1969); Canada v. State, 169 Ark. 221, 275 S.W. 327 (1925); Melton v. State, 165 Ark. 448, 264 S.W. 965 (1924); and Boykin v. State, 270 Ark. 284, 603 S.W.2d 911 (Ark. App. 1980). We find substantial evidence to support the convictions.
Appellant’s second point concerns a police officer’s testimony that the manager identified appellant at a lineup. The manager testified by way of a videotaped deposition because he is now in the armed forces and stationed at a distant post. He was cross examined by appellant’s attorney. There is no allegation that the lineup procedure was defective in any way.
Appellant recognizes that we have held proof of this type to be admissible and not hearsay under Unif. R. Evid. 801 (d) (1) (iii). Hilton v. State, 278 Ark. 259, 644 S.W.2d 932 (1983); Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982); Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981). He urges us to overrule these cases.
Appellant has presented neither citation nor convincing argument which suggests to us that these cases, and indeed Unif. R. Evid. 801 (d)(l)(iii) itself, should be overruled. We decline to do so. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Affirmed. | [
112,
-18,
-23,
61,
24,
-32,
58,
-70,
97,
-93,
55,
-45,
37,
-64,
20,
111,
-42,
79,
-43,
112,
-50,
-73,
35,
97,
-14,
-77,
27,
-59,
-79,
75,
-90,
-44,
79,
112,
-30,
-43,
102,
74,
-61,
88,
-50,
5,
-94,
-32,
113,
0,
36,
42,
52,
15,
-79,
-100,
-13,
42,
18,
-50,
73,
44,
75,
-67,
112,
56,
-54,
5,
109,
21,
-77,
36,
-101,
7,
-40,
44,
-104,
49,
1,
-40,
115,
-74,
-126,
84,
105,
25,
12,
98,
98,
16,
9,
-17,
36,
-127,
62,
126,
-97,
-89,
-104,
104,
75,
45,
-106,
-35,
110,
52,
-122,
-4,
-13,
92,
95,
108,
5,
-97,
-74,
-79,
13,
36,
-106,
-5,
-13,
1,
-76,
113,
-50,
-30,
84,
69,
90,
-37,
-114,
-106
] |
Webb Hubbell, Chief Justice.
The question to us is the enforceability of a restrictive covenant incorporated by reference in a deed. Appellant, Juanita Harbour, paid off the balance owing on a Purchase Agreement between Northwest Land Co., Inc. as seller and her brother as buyer. Appellant was living in Houston, Texas at the time of the purchase and received the deed when she moved to Arkansas. The deed conveying the unplatted property recites: “Subject to restrictions and easements set forth in Plat and Bill of Assurance of Berthe Acres in Deed Record Book 714, Page 555, Records of Pulaski County, Arkansas.” Among the restrictions in the Bill of Assurance for Berthe Acres, a subdivision north of appellant’s property, is a provisions stating: "No structure of a temporary character, trailer,. . . shall be at any time used for human habitation. . . nor shall any structure of a temporary character be used for human habitation.”
Three of the deeds to other parcels in the same quarter section contain the same restrictions as appellant’s. Four other deeds contain various restrictions but are not subject to the Berthe Acres Bill of Assurance. One deed contains no restrictions. Five other lots under contract for sale have no restrictions because no deeds have as yet been conveyed.
Appellant placed a mobile home on her property. Because of objections raised, appellant sought a declaratory judgment declaring the prohibition ineffective, but the chancellor found a general plan of development and granted appellees’ cross claim for the enforcement of the restrictive covenant. The issues on appeal are whether the restrictions in the Berthe Acres Bill of Assurance, incorporated by reference in the deed to appellant’s property, are valid, and whether a mobile home constitutes a temporary structure.
Courts do not favor restriction upon the use of land, and if there is to be a restriction it must be clearly apparent. It is not always essential that there be a bill of assurance filed with the plat of a subdivision; the restricted use may be annexed to the conveyances of the land. Moore v. Adams, 200 Ark. 810, 141 S.W.2d 46(1940). One taking title to land with notice that it is subject to an agreement restricting its use will not, in equity and good conscience, be permitted to violate its terms. Rickman, et al., v. Mobbs et ux., 253 Ark. 969, 490 S.W.2d 129 (1973). Moore v. Adams, supra. Thus, where a general plan of development exists, restrictive convenants are enforceable. Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981).
The test for a general plan of development is whether substantially common restrictions apply to lots of like character or similarly situated. Jones v. Cook, supra. In this case some of the deeds were subject to the Berthe Acres Bill of Assurance; others were not. Some deeds recited a minimum construction cost of $8,500.00, and some had a different minimum. Some deeds had a minimum square footage requirements of 750 square feet, and others had no minimum. Some deeds had restrictions against dog raising. A few deeds contained a heating requirement. One deed contained no restrictions whatsoever. There is simply no substantial evidence to support a finding of a uniform development plan. Under these facts and circumstances, we must conclude that because of the many inconsistencies in the restrictions to the various deeds that no general plan of development exists. This finding precludes any need to reach the other issues raised on appeal.
Reversed.
Hays, J., not participating. | [
-11,
125,
-44,
-83,
-118,
-32,
24,
-80,
-7,
-94,
-28,
83,
-17,
-38,
-124,
121,
-89,
127,
65,
104,
-43,
-74,
47,
64,
81,
-45,
-125,
-35,
-83,
79,
-9,
71,
76,
32,
-54,
-43,
-58,
-120,
-115,
24,
70,
-63,
10,
97,
-39,
70,
32,
43,
20,
78,
69,
-113,
-77,
44,
17,
75,
109,
44,
75,
37,
-48,
-8,
-66,
-116,
127,
22,
49,
69,
-104,
69,
-6,
72,
-112,
49,
9,
-24,
119,
38,
-106,
116,
79,
-69,
8,
38,
99,
0,
96,
-1,
-4,
24,
15,
-6,
37,
-90,
-126,
24,
106,
104,
63,
-107,
93,
0,
12,
122,
-26,
-123,
95,
104,
13,
-81,
-108,
-89,
13,
-8,
-111,
0,
-9,
119,
49,
65,
-58,
-82,
125,
98,
48,
-101,
-114,
-6
] |
George Rose Smith, Justice.
This is an election contest. The results of the 1983 election for school director in the Mt. Vernon School District were certified as 175 votes for Loyd, 169 for Keathley, and 31 for Brady. Keathley filed this contest. After an extended hearing the circuit court excluded 14 votes for Loyd because the voters did not sign the applications for the absentee ballots, 8 votes for Loyd because the voters were not residents of the district, and 1 vote for Loyd for a reason not now important. After the exclusion of a total of 23 votes for Loyd, the circuit judge declared Keathley the winner by a vote of 169 to 152. The judgment placed him in office. Our jurisdiction of the appeal is under Rule 29(l)(g). Five points for reversal are argued.
First, the 14 absentee votes. In each instance the county clerk permitted a person other than the voter to pick up the absentee ballot and sign the application for it. Amendment 51, however, sought to minimize fraud in absentee voting by requiring in Section 6 that the voter sign the affidavit of registration and in Section 13 that the voter’s signature on an absentee application be determined by comparison to be identical with his signature on the affidavit. That constitutional safeguard is undoubtedly important. Martin v. Hefley, 259 Ark. 484, 533 S.W.2d 521 (1976). Since the procedure followed in this election would have nullified the constitutional safeguard, the trial court was right in excluding the 14 absentee votes.
Second, the eight votes by nonresidents. The appellant concedes that the trial court was right as to five of these. When those are added to the invalid absentee votes, and the resulting total of 19 is subtracted from appellant’s certified vote of 175, leaving him with only 156, the other four disputed votes need not be considered, for they could not change the result.
Third, it is argued that the county clerk and the election commissioners should have been joined, as necessary parties, within 20 days after the election. The appellant cites no authority on this exact point, only general statements such as the language of Civil Procedure Rule 19 (a). We perceive no reason for joining the clerk and commissioners, for complete relief can be accorded in their absence. See Rule 19 (a), supra. Furthermore, the appellant has demonstrated no prejudice suffered by him as a result of their omission as parties defendant.
Fourth, it is insisted that the trial court should not have sustained the plaintiff’s motion asking that, because the defendant had not pleaded, within the 20 days allowed for his answer, any irregularities nullifying specific votes for the plaintiff, he not be allowed to introduce proof of such irregularities. When the motion was granted, defense counsel stated he had the names of several people who would have testified, but he did not give further details. A definite proffer is essential for appellate review. “[Tjhere must be a proffer of the evidence that is improperly excluded for us to find error.” Parker v. State, 268 Ark. 441, 597 S.W. 2d 586 (1980). Otherwise we might order a new trial that proves to be useless because the appellant cannot in fact produce admissible proof to support his contention.
Fifth, the trial court’s judgment declared the appellee to be the winner of the election and placed him in office. The appellate makes the novel contention that under Ark. Stat. Ann. § 3-1007 (Repl. 1976) the court’s power to enter judgment was limited to ousting Loyd, the apparent winner, from the office of school director, leaving a vacancy to be filled as provided by law. Under the school law the vacancy would be filled by the other directors. Ark. Stat. Ann. § 80-504 (Repl. 1980).
We cannot sustain the appellant’s contention, and not merely because it proposes an innovation contrary to our traditional practice of putting the actual winner in office. Bradley v. Jones, 227 Ark. 574, 300 S.W.2d 1 (1957); Purdy v. Glover, 199 Ark. 63, 132 S.W.2d 821 (1939); Dodd v. Gower, 188 Ark. 958, 68 S.W.2d 463 (1934). The proposed innovation would also be unwise and unj ust for at least three reasons: (1) The true winner would be deprived of the office for which he had campaigned successfully. (2) The power of the people to put the person of their choice into office would be nullified for no reason. (3) There would be no real incentive for a defeated candidate to undertake a costly election contest even though his proof was overwhelming, for his victory would be hollow.
We think it clear that the appellant misinterprets the legislative intent underlying the language of the statutes. Act 465 of 1969 was a comprehensive election code superseding many existing laws. Article 10 of that code consists of seven sections that are pertinent to this case. Sections 1 to 7; Ark. Stat. Ann. §§ 3-1001 to 3-1007. The appellant is relying solely on Section 3-1007. That view is too narrow.
This case is a typical election contest between two candidates qualified to hold he office. The only issue is which one received more valid votes. Such a contest is governed solely by the first four sections of Article 10. Section 3-1001 fixes the venue, specifies the court in which the contest is to be filed, and limits the time for filing the pleadings. The next two sections give extraordinary precedence to such cases and provide for special judges, Section 3-1004 dispenses with the need for a jury, empowers the circuit judge to enter judgment enforcing the proper certification of the result, and directs the supreme court to advance the hearing of any appeal. Those four sections contain all the details needed to enable the courts to handle cases such as this one, a simple election contest.
By con tras t, the next three sections of Article 10 apply to a.different situation — that in which an ineligible candidate is obstensibly elected. Section 3-1005 permits any ten reputable citizens to file a complaint alleging the casting of illegal or fraudulant votes, the making of fraudulent returns or certifications, or violations of the Corrupt Practice Article. A grand jury is to be called at once. Indictments must be speedily tried. By Section 3-1006 if the successful candidate in a primary is found guilty of violations he is deprived of the nomination. Finally, Section 3-1007 provides if the criminal proceedings are not finally determined until after the primary or general election, at which the miscreant has apparently emerged as the winner, the judgment is to operate as a forfeiture of his nomination or an ouster from office, as the case may be. That situation is not presented by the case at bar.
The appellant is mistaken in arguing that two cases decided under an earlier statute apply to this case. Robinson v. Knowlton, 183 Ark. 1127, 40 S.W. 2d 450 (1931); Cain v. CarlLee, 169 Ark. 887, 277 S.W. 551 (1925). In those cases there was a contest of a primary election, but the contest was not finally decided until the party nominee had also won the general election. We merely pointed out that if the contestant had won the contest, the winner of the general election would have been ousted as not having been the rightful party nominee, but the constestant, not having been a candidate in the general election, would not be entitled to the office. Again, that situation is not presented by the case at bar.
Affirmed, the mandate to issue immediately. | [
-75,
-20,
-8,
44,
10,
0,
59,
-114,
88,
-93,
-25,
83,
45,
-38,
-107,
125,
-77,
111,
113,
104,
-47,
-77,
23,
98,
-74,
-13,
-53,
-35,
-65,
79,
-12,
-11,
12,
-80,
-54,
-11,
70,
-50,
-57,
88,
-58,
-122,
-85,
111,
-40,
-45,
44,
108,
82,
-113,
117,
-86,
-13,
44,
-104,
71,
-23,
40,
89,
-31,
-62,
-77,
-108,
5,
95,
22,
-77,
-59,
-102,
-123,
80,
38,
-40,
57,
4,
-7,
50,
-90,
-122,
-44,
108,
-87,
8,
96,
40,
-120,
-67,
-33,
-68,
-87,
46,
102,
29,
-26,
-109,
25,
106,
14,
-74,
-99,
119,
80,
6,
126,
-26,
-59,
91,
44,
52,
-34,
-74,
-109,
13,
112,
-114,
10,
-25,
50,
16,
117,
-40,
-6,
94,
68,
51,
91,
70,
-48
] |
George Rose Smith, Justice.
For about six months in 1981 the parties were partners in the construction of buildings. After that Burson brought this suit for an accounting and recovery of his share of the profits. The dispute was referred to a master, who based her report upon extensive testimony presented by the parties and their C.P.A.’s. The chancellor, slightly modifying the master’s figures, found that Burson’s 40% share of the profits was $27,670.23, for which he was given judgment after a deduction of the $7,800 he drew during the partnership. Burson was also awarded $400.80 as the residual value of tools on hand. He argues in this court that he should have received larger amounts, plus prejudgment interest. Our jurisdiction is under Rule 29 (1) (c).
Burson’s first three arguments involve questions of accounting. When the partnership was formed, Day already had a construction business of his own, which he continued. He alone contributed tools and other property to the partnership. Apparently by common acquiescence the financial records of the two businesses were not kept separately. This commingling of the records unquestionably made it difficult for anyone to make an accurate allocation of the profits as between the two concerns. The C.P.A.’s both recognized that profits could be determined in a number of ways, involving not merely an examination of the records but also the exercise of judgment in allocating costs of labor and materials, in fixing the percentage of completion as to construction work in progress, and in other matters. After studying the appellant’s abstract of the conflicting testimony, along with the briefs, we are firmly of the view that the appellant has not met his burden of showing that the chancellor’s award of profits was clearly erroneous.
A fourth argument is that the award to Burson for his share of the value of tools at the termination of the partnership should be raised from $400.80 to $1,260.98, because the master wrote: “The amount to be included in residual value of tools if determined to be an income item would be $3,152.46.” The statement of the condition, “if determined to be an income item,” undermines the appellant’s argument. Day testified that the master’s evaluation should not be included in partnership income, because Burson contributed no tools to the partnership, while Day already had “every tool that you could imagine to work with to do the projects.” He also said that the depreciation resulting from the use of his tools “used up” the value of the new tools that were acquired. On this point the weight of the evidence supports the chancellor.
Fifth, it is argued that the appellant is entitled to prejudgment interest, because the Uniform Partnership Act provides that when a partner retires and the business is continued, he shall receive the value of his interest in the partnership “with interest.” Ark. Stat. Ann. § 65-142 (Repl. 1980). The statute manifestly applies only when two or more remaining partners continue the business. An award of interest compensates the retiring partner for the continued use of his property. Here Burson contributed no property to the firm, and the partnership business was not continued by others. Burson’s share of the profits has been definitely determined only after this prolonged litigation. Since Day was not indebted to Burson for an ascertainable amount which Day could have paid before the chancellor’s final determination of the amount, prejudgment interest is not allowable. Loomis v. Loomis, 221 Ark. 743, 255 S.W. 2d 671 (1953).
The appellant’s final argument is that the record should be supplemented by accounting reports submitted to the master but not made a part of the record and not filed in this court until five days before the case was submitted for consideration on abstracts and briefs already filed. It is an appellant’s responsibility to see that the complete record is filed in a timely manner in this court. See Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983); Davis v. C & M Tractor Co., 2 Ark. App. 150, 617 S.W.2d 382 (1981). Our practice does not allow the appellant to obtain time for a supplemental brief based on matters filed too late and, in this instance, not shown to be relevant to the issues.
Affirmed. | [
64,
122,
-40,
-4,
24,
-96,
58,
-38,
105,
-120,
119,
87,
-35,
-53,
69,
109,
-78,
125,
81,
106,
-41,
-77,
7,
-62,
-10,
-13,
-7,
-60,
-71,
77,
-43,
84,
76,
48,
-62,
-99,
98,
-122,
73,
16,
-114,
4,
42,
104,
-7,
96,
52,
91,
112,
15,
49,
-116,
-5,
44,
28,
75,
76,
44,
109,
41,
-47,
-7,
-126,
5,
79,
21,
-79,
37,
-70,
71,
-40,
44,
-104,
-68,
1,
-55,
114,
-90,
70,
116,
35,
-69,
12,
34,
98,
2,
-127,
-25,
-40,
-120,
14,
-2,
29,
-91,
-109,
24,
19,
77,
-66,
-67,
120,
16,
-89,
126,
-10,
29,
-97,
45,
27,
-113,
-42,
-126,
-113,
102,
-98,
-117,
-17,
-117,
18,
96,
-50,
-94,
94,
101,
122,
-101,
-34,
-48
] |
John I. Purtle, Justice.
The trial court convicted appellant of criminal trespass pursuant to Ark. Stat. Ann. § 41-2004 (Repl. 1977). We reach only the first point argued for reversal because we hold that it was not the intent of the legislature to treat an ordinary landlord-tenant relationship within the framework of Ark. Stat. Ann. § 41-2004. Therefore, we must reverse and dismiss this conviction.
Appellant was a monthly renter of residential property in Pine Bluff, Arkansas. She failed to pay her rent for February, 1984, and the owner gave her a three day notice to vacate. The written notice was served on February 14, 1984. The only reason for the notice was appellant’s failure to timely pay her rent. On February 24, 1984, the city of Pine Bluff issued a criminal trespass charge pursuant to Ark. Stat. Ann. § 41 -2004. She pled not guilty and defended only upon the grounds that the statute was inapplicable to her as a tenant. She was convicted and fined in municipal court and on appeal convicted and fined in the Circuit Court of Jefferson County.
There is no dispute of the fact that the appellant failed to timely pay her rent. We are faced squarely with the question of whether the criminal trespass statute or the unlawful detainer statute applies to the facts of this case. We consider three statute in reaching our decision. Arkansas Stat. Ann. § 50-523 (Repl. 1971) relates to failure to pay rent. Under this statute when a tenant fails to pay the rent when due, receives a written 10-day notice to vacate, and willfully refuses to vacate within ten days, he is guilty of a misdemeanor and may be fined from $ 1.00 to $25.00 for each day he refused to vacate. There was no attempt to comply with this staute.
The second statute we consider is Ark. Stat. Ann. § 34-1504 (Supp. 1983). This is the holdover of unlawful detainer statute as updated by Act 615 of 1981. It provides that any person who willfully and without right holds over for three days after having received a written notice to quit is guilty of unlawful detainer. Act 615 clearly spells out the procedure to be used in Circuit Court to remove a tenant who is a holdover and fails to vacate within three days after the notice. Only the first requirement of this Act was met.
The third and final statute we must consider is Ark. Stat. Ann. § 41-2004 (1) (Repl. 1977). That statute is contained in Chapter 20 of the Criminal Code, which is entitled “Burglary and other Criminal Intrusion.” The title of the statute is “Criminal Trespass.” While the compiler’s words and arrangement of the statutes are not part of the law, we note that this statute is codified in the criminal section while the two previously mentioned statutes are not. Arkansas Stat. Ann. § 41-2004 (1) states: “A person commits criminal trespass if he purposely enters or remains unlawfully in or upon a vehicle or the premises of another person. ’ ’
It is not necessary that the words of a statute be ambiguous in order to construe it. Courts consider ambiguity to exist when two or more statutes have been enacted on the same subject and each statute’s clear wording seems to indicate inconsistent results. Carter v. Bush, 283 Ark. 16, 669 S.W.2d 902 (1984). In construing a statute it is our duty to ascertain and give effect to the intent of the legislature. Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964).
The state relies upon the case of Poole v. State, 244 Ark. 1222, 428 S.W.2d 628 (1968) wherein we construed Ark. Stat. Ann. § 50-523. However, the proceedings in this case, except for the three day notice, were pursuant to Ark. Stat. Ann. § 41-2004. The federal courts considered Ark. Stat. Ann. § 50-523 in the case of Munson v. Gilliam, 543 F.2d 48 (8th Cir. 1976) wherein holdover renters obtained a preliminary injunction preventing the prosecuting attorney from seeking convictions against holdover renters. The Court of Appeals reversed on the grounds that the mere prospect of facing criminal charges was not per se irreparable inj ury and further that there was no indication that the constitutional rights of tenants would not be protected in the state courts. In Munson, Ark. Stat., Ann. § 41-2004 was not discussed. Therefore neither Poole nor Munson is apposite in the present case.
No case has been cited nor have we found an appellate case where a holdover tenant has been convicted of criminal trespass. This court held in Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978) that criminal trespass is a lesser included offense in the crime of burglary. There is no doubt but that this court has previously considered the criminal trespass statute to require an illegal entry and such entry to constitute the criminal offense. Grays v. State, supra; commentary to Ark. Stat. Ann. § 41 -2004. Oh the other hand we have treated Ark. Stat. Ann. §§ 50-523 and 34-1504 as the correct statutes in the holdover tenant situation. Both statutes deal with individuals who fail to pay rent. Neither statute mentions criminal trespass, and Ark. Stat. Ann. § 41-2004 does not mention or refer to landlords or tenants. Thus, it is apparent the legislature has historically treated the two types of illegal occupancy in different ways. In determining the intent of the legislature the reason and spirit take precedence over the letter of the law, especially in cases where strict adherence to the letter would result in absurdity or injustice or would defeat the plain purpose of the law. Carter v. Bush, supra; Berry v. Gordon, supra.
The General Assembly clarified and updated the unlawful detainer statute by Act 615 of 1981. There can be no doubt but that the legislature was aware of the two different types of illegal entry or occupancy of property. The landlord-tenant statutes have been in force in almost the same words since 1875. The fact that a long standing statute has gone unchallenged is persuasive of its validity. Poole v. State, supra. It is obviously the intent of the legislature that the criminal trespass statute does not apply in landlord cases.
A general law does not usually apply when a specific one governs the subject matter. Thomas v. Easley, 277 Ark. 222, 640 S.W.2d 797 (1982). Arkansas Stat. Ann. § 41-2004 is clearly general and Ark. Stat. Ann. §§ 50-523 and 34-1504 are specific. The latter statute is both older and newer than the former, as the 1875 version was amended in 1981. For the foregoing reasons we hold that the conviction of appellant should be reversed and dismissed.
Reversed and dismissed.
Dudley and Newbern, JJ., dissent. | [
84,
-22,
-48,
46,
43,
65,
42,
-104,
83,
-125,
51,
83,
-19,
-64,
20,
41,
99,
-1,
117,
121,
-61,
-94,
101,
105,
-14,
-13,
3,
85,
-69,
75,
-12,
-44,
74,
48,
-62,
-43,
6,
-62,
-11,
92,
14,
-121,
-117,
100,
81,
64,
60,
43,
0,
75,
49,
-100,
-13,
111,
16,
-52,
-56,
44,
13,
53,
106,
59,
-38,
13,
111,
6,
-111,
4,
-102,
-123,
-16,
124,
-100,
49,
0,
-24,
115,
54,
-122,
116,
103,
27,
44,
96,
98,
1,
77,
-1,
-24,
-96,
46,
-2,
-103,
-90,
-40,
104,
11,
72,
-66,
-107,
110,
-108,
76,
-2,
103,
-116,
61,
108,
-126,
-50,
-12,
-79,
13,
40,
-106,
-5,
-61,
101,
-79,
112,
-49,
-26,
92,
70,
83,
-101,
-114,
-3
] |
John I. Purtle, Justice.
Petitioners are practicing attorneys with offices in Pulaski County, Arkansas. They have asked this court to stay enforcement of a local rule adopted by the First and Third Divisions of the Pulaski Probate Court dealing with adoptions. The Judges of the Second and Fourth Divisions of the Pulaski Probate Court declined to join in the enactment of the rule. We granted a temporary stay in order that the arguments could be briefed.
The local rule, adopted pursuant to ARCP Rule 83, was filed with this court and contains the following provisions: 1) the Arkansas Department of Social Services must be informed of the presence of the pregnant mother in this state; 2) in all out of state adoptions, the adopting parents must furnish a home evaluation report from their home state from a state agency charged with the responsibility of placement of children in that state; 3) the local courts will apply the adoption criteria of the adoptive parents’ home states; 4) the natural mother must appear before the local court in a separate hearing before any hearing involving the adoptive parents; 5) if the mother of the child to be adopted is less than 18 years of age her guardian must appear for the purpose of giving consent; 6) all expenses of the adoption must be presented at the time of the initial hearing, and only reasonable expenses will be approved; 7) when the mother and adoptive parents have entered into an adoptive agreement, the adoption proceedings should be commenced when the pregnant mother becomes domiciled in this state, a copy of such agreement to be filed of record and notice to be given to the Arkansas Department of Social Services; and 8) the natural mother and prospective parents must file an agreement that if the child is born with defects he will not become a ward of the State of Arkansas and that they are mutually responsible for the care and welfare of the child’s future.
Petitioners argue the rule is in conflict with Ark. Stat. Ann. § 56-201 through § 56-221 (1983 Supp.), our Revised Uniform Adoption Act, being Act 735 of 1977, and constitutes judicial legislating in violation of Article 4, Section 2, of the Constitution of Arkansas. The brief of the Attorney General refutes those arguments.
In some respects the provisions of the rule in question do appear to run counter to the Revised Uniform Adoption Act, but in many respects we think the Probate Judge has the inherent power to order the identical steps set out in the rule as a matter of judicial discretion. However, we need not take up the provisions piecemeal, or on their merit, as we have the matter of all local rules under consideration and whether local rules should be retained. For that reason alone we ought to decline at this time to approve a local rule of doubtful necessity, particularly in light of the fact that two of the four divisions involved would be governed by the rule, whereas the remaining two would not, with obvious problems for the practitioner and the litigant. Accordingly the petition for a stay of enforcement of the order is granted.
These rules may from time to time be supplemented by local chancery and circuit courts provided such supplemental rules do not conflict herewith and further provided that such supplemental rules shall not become effective until a copy thereof shall have been filed with the Clerk of the Supreme Court of Arkansas. In all cases not provided by rule, each chancery and circuit court may regulate its practice in any manner not inconsistent with these rules. | [
-43,
-20,
-11,
124,
74,
65,
56,
25,
83,
-93,
101,
83,
-17,
92,
20,
105,
107,
43,
113,
113,
81,
-74,
85,
72,
112,
-14,
-79,
-41,
-71,
123,
-28,
-9,
72,
97,
-54,
-43,
70,
74,
-123,
-36,
-30,
11,
-117,
109,
-47,
-58,
48,
113,
18,
15,
5,
-98,
-89,
-88,
126,
-62,
-84,
12,
-39,
-66,
-104,
114,
-114,
23,
-33,
7,
-127,
116,
-102,
-91,
88,
106,
24,
49,
-127,
-24,
115,
54,
-98,
118,
75,
89,
13,
124,
110,
0,
-24,
-29,
-8,
8,
78,
-65,
-115,
-122,
-112,
57,
42,
14,
-65,
-76,
125,
16,
78,
-6,
-90,
13,
94,
100,
4,
-114,
-34,
-91,
-121,
-72,
-112,
3,
-29,
71,
48,
117,
-62,
-14,
85,
-57,
51,
-45,
-114,
-14
] |
P.A. Hollingsworth, Justice.
On December 11, 1981, the appellee, Barbara Michaelis, issued a check for $19.56 to appellant, Machen Ford-Lincoln-Mercury, Inc., for repairs to her 1981 Ford Escort automobile. After driving the automobile for several miles, the same problem appellee had paid to have corrected reoccurred. She immediately returned to the Ford dealer and talked to the service manager, Don Smith, about the problem. The two of them were unable to reach a resolution on how the repairs were to be made. Before her check reached her bank, appellee stopped payment on the check because she contends the appellant did not perform the repairs to her automobile. It is undisputed at the time the stop payment was directed the appellee had $315 in her checking account.
When the check was returned to appellant Machen Ford by the bank, an agent of the appellant signed an affidavit alleging that appellee had violated the Arkansas hot check law Ark. Stat. Ann. § 67-720 (Supp. 1983), a misdemeanor under the facts of the case. A warrant was issued. When the case was presented for trial in the municipal court, appellee’s motion to dismiss the charge was granted.
In April 1982, the appellee brought this suit against the appellant automobile agency for malicious prosecution. The appellee pleaded mistake as a defense in that the Municipal Clerk did not understand that there was a stop payment on the check rather than an account with insufficient funds. After a jury trial, the appellee was awarded $20,000 in compensatory damages. It is from that decision that this appeal is brought. This case is before us under Sup. Ct. R. 29 (l)(o) as it presents a question in the law of torts. We affirm.
The only issue raised in this appeal is the failure of the trial judge to give the appellant’s requested jury instruction number one. That instruction is worded as follows:
If you find from a preponderance of the evidence that a representative of Machen Ford-Lincoln-Mercury, Inc., disclosed in good faith to a public officer all facts within its knowledge having a material bearing on the question of the guilt of persons suspected and left it to the office to act on his judgment as a public officer, whether there shall be a prosecution, it is not liable in an action for malicious prosecution by reason of the erroneous conclusion of the office that the facts warrant him in instituting a criminal prosecution.
The facts are that Doris Hartman, an employee of appellant, signed an affidavit stating: “I swear that Barbara Michaelis . . .did. . .commit the offense of violation of Arkansas Hot Check Law by tendering to Machen Ford a check in the sum of $19.56 for merchandise, money, or services.” Municipal Judge John Bridg forth signed the warrant for her arrest. It was established that the Municipal Judge’s policy was not to allow charges to be dropped or dismissed once affidavits and warrants had been issued. It was also established that a “Notice of Payment Stopped Check” was sent to Barbara Michaelis threatening criminal prosecution if the check was not honored.
The appellant argues that since a layman is not charged with knowing the law, he cannot be held responsible for a mistake of law if he truthfully states the facts to a public officer. The .question then according to the appellant, is whether there is sufficient proof that such a disclosure was made. The appellant maintains that the proof was that the appellant disclosed the fact that payment had been stopped on the check by supplying the check itself and by submitting the notice form on which “payment stopped” appeared. This proof was sufficient to have allowed the disclosure question to be submitted to the jury in the form of a jury instruction, according to the appellant.
We have held that “[t]he law is well settled that, where one lays all the facts in his possession before the public prosecutor, or before counsel learned in the law, and acts upon the advice of such counsel in instituting a prosecution, this is conclusive of the existence of probable cause, and is a complete defense in an action for malicious prosecution.” L.B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S.W. 194, (1911). In Cuilla, the evidence showed that the complainant went before a deputy prosecuting attorney before he filed suit and acted upon his advice in deciding to sue. Similarly, in Laster v. Bragg, 107 Ark. 74, 153 S.W. 1116 (1913), the complainant consulted a judge who sent him to a prosecuting attorney before he filed suit. The complainant then acted upon the advice he was given. See also Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961), where an attorney was consulted before charges were filed. The rationale for this rule was explained in Kansas & Texas Coal Co. v. Galloway, 71 Ark. 351, 74 S.W. 521 (1903), where we said:
It may perhaps turn out that the complainant, instead of relying upon his own judgment, has taken the advice of counsel learned in the law, and acted upon that. This should be safer and more reliable than his own judgment, not only because it is the advice of one who can view the facts calmly and dispassionately, but because he is capable of judging of the facts in their legal bearings. A prudent and cautious man is therefore expected to take such advice; and when he does so, and places all the facts before his counsel, and acts upon his opinion, proof of the fact makes out a case of probable cause, provided the disclosure appears to have been full and fair, and not to have withheld any of the material facts.
That a prosecution was begun or a civil suit instituted under advice of counsel is frequently referred to as a complete defense to an action for malicious prosecution. This rule has been held to apply, although the facts stated to counsel did not warrant the advice given, or though the facts did not, in law, constitute a crime, or however mistaken or erroneous were the opinion expressed by the counsel and the course advised, (citation omitted).
In this case, the general rule does not apply because the appellant company did not consult either an attorney or a prosecutor before filing charges. In Kable v. Carey, 135 Ark. 137, 204 S.W. 748 (1918), we held that it was not a defense to a suit for malicious prosecution when the complainants claim they relied in good faith upon the advice of a justice of the peace after making a full and fair disclosure of the facts to him. In that opinion we reiterated the general rule, supra, and explained that because a justice of the peace is not necessarily a lawyer and has no duty to advise prospective litigants, “[tjhey are not usually learned in the law and on that account can not be safe advisers on important legal questions.” The same rationale applies to municipal court clerks. We feel where it is shown that the officer is not expected to exercise his: judgment and responsibility as a public officer, the defendant is responsible for the officer’s subsequent acts. The facts here indicate that once the agent swore to a statement that the appellee had violated the hot check law,... the warrant was issued to be signed by the judge. It was well established that the policy of the court was not to recall or dismiss charges once warrants were issued. There is a valid public policy reason for this as the municipal court is not to serve as a collection agency for private merchants. The fact that the judge signed the warrant should not be a defense since the policy of the law forbids a magistrate to act as an attorney, or give advice in regard to a prosecution intended to be instituted before him. This is the general rule in this country. 52 Am Jur 2d Malicious Prosecution § 89 p. 243-44 (1970).
Under the facts of this case, we hold that in an action ;for malicious prosecution, the defendant cannot justify his action in instituting the prosecution by pleading that he relied in good faith on the advice of a clerk of court and judge.
It was not error to refuse to give the instruction.
Affirmed.
Smith, George Rose and Purtle, JJ., dissent. | [
-80,
-4,
96,
-20,
10,
-32,
50,
26,
84,
-115,
-3,
-109,
-19,
74,
20,
57,
-20,
61,
101,
105,
-45,
-78,
7,
66,
98,
-77,
-8,
-59,
-67,
73,
-12,
-44,
76,
48,
-54,
-107,
38,
74,
-123,
88,
-114,
4,
105,
101,
89,
-54,
48,
42,
6,
75,
49,
-98,
-29,
46,
19,
75,
45,
12,
123,
-65,
-48,
-15,
-117,
5,
127,
20,
-77,
36,
-100,
11,
-8,
56,
-112,
49,
32,
-8,
50,
-74,
-126,
84,
105,
-69,
8,
98,
98,
16,
21,
-55,
-4,
-120,
38,
-2,
-115,
-89,
-48,
57,
11,
105,
-74,
-100,
126,
22,
4,
-4,
122,
-123,
93,
108,
10,
-50,
-76,
-109,
-19,
52,
28,
42,
-17,
-93,
20,
117,
-49,
-14,
95,
71,
27,
-103,
-114,
-15
] |
David Newbern, Justice.
This is a case presenting a question of oil, gas or mineral rights, thus our jurisdiction is based on Supreme Court and Court of Appeals Rule 29(1) (n).
In 1926 Nelson Williams, owner of the North 9/20ths of the Northwest Quarter of the Northwest Quarter of Section 26, Township 18 South, Range 17 West, Union County, Arkansas, conveyed a one-half mineral interest in the property to J. H. Long. The remaining surface and one-half mineral interest held by Williams was forfeited to the state by Williams in 1931 for failure to pay taxes. The State of Arkansas conveyed the surface and one-half mineral interest, which Williams had forfeited, to Jefferson Phillips in 1935. In 1937, Phillips conveyed a one-fourth non-participating interest in the minerals in the same property to Grimes. Later in 1937, Phillips conveyed to S. E. Gilliam an undivided one-half interest in the property. The parties to this case agree that at that point Gilliam owned an undivided one-half interest in the surface and an undivided one-half interest in the minerals of the North 9/20ths of the Northwest Quarter of the Northwest Quarter of Section 26, subject only to the outstanding one-fourth non-participating mineral interest held by Grimes.
In 1947, Gilliam, joined by his wife, executed a quit claim deed back to Phillips. The deed contained the following:
[W]e ... do hereby grant, sell and quit-claim subject to the reservations set out below . . . the following lands lying in the County of Union and State of Arkansas; to wit: North 9/20 acres of the NW 1/4 of the NW 1/4 of Section 26, Township 18 South, Range 17 West.
The language of the reservation came immediately thereafter and was as follows:
The grantors hereto reserve from this Deed an undivided 1/2 interest in and to the oil, gas and other minerals, in, under and upon the above-described lands, or which may be produced therefrom, together with the right of ingress and egress for the purpose of prospecting for, producing, removing, refining and marketing of same, and all other rights useful or incident thereto.
The heirs of Phillips brought this action to quiet title, claiming that Gilliam’s reservation was not effective to reserve to Gilliam the one-half interest in the minerals rights. The defendants, heirs of Gilliam, contended the reservation had the effect of keeping the one-half mineral interest in Gilliam. The chancellor agreed with the defendants, and the plaintiffs appeal. We affirm.
The Phillips heirs argued that application of the rule of Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940), would require the chancellor, and now this court, to construe the deed as having conveyed the one-half mineral interest owned by Gilliam to Phillips and reserving nothing to Gilliam. The Gilliam heirs agrued that even if the rationale of the Duhig Case were to be adopted, it would be subject to an exception which makes the rule inapplicable to quit-claim deeds. The Duhig Case involved construction of a warranty deed containing a reservation, and in Rosenbaum v. McCaskey, 386 So. 2d 387 (Miss. 1980), the Mississippi Supreme Court held the Duhig case inap plicable to a quit-claim deed containing such a reservation.
In his letter opinion, the chancellor relied on the Rosenbaum Case and held the Duhig Case does not apply when the reservation appeals in a quit-claim deed. He also noted estate tax returns of S. E. Gilliam and his wife which had been introduced by the Gilliam heirs to show that the one-half undivided mineral interest was included in their taxable estates. The Phillips heirs contend the returns were irrelevant and thus inadmissible. As the case can be decided on the basis of the written instrument under consideration, we need not decide whether it was error for the chancellor to admit into evidence the Gilliam’s estate tax returns. If it was error, it was harmless and may be disregarded in the de novo review. Walker v. Walker, 262 Ark. 648, 559 S.W.2d 716 (1978).
The opinion in the Duhig Case was composed for the Texas Supreme Court by a commissioner who expressed his personal opinion that when a deed purports to reserve one-half of the mineral interest, and the grantor owns only one-half of the mineral interest, the language of the deed is ambiguous but that “. . .when resort is had to established rules of construction and facts taken into consideration. . .it becomes apparent that the intention of the parties to the deed. . .” was that the grantee take the one-half interest in the minerals owned by the grantor. 135 Tex. at 506-507, 144 S.W.2d at 879-880. Apparently the “construction” rule the commissioner would have applied was that the language of reservation used by the grantor referred only to the one-half mineral interest owned by the third party.
The commissioner, however, noted that the members of the Texas Supreme Court for whom he was writing had expressed a rationale for decision which was entirely different. The Texas Supreme Court’s decision, and thus the holding of the case, is that a grantor may not agree to warrant and defend title to a property interest and then, in a later clause in the same instrument, breach that warranty by reserving to himself some portion of that same property interest. The principle of estoppel is held to apply just as it would if the grantor in a warranty deed did not own property at the time he executed the deed but acquired it later. 135 Tex. at 507-508, 144 S.W.2d at 880-881.
Thus, the holding of the Duhig Case is not at all inapplicable here, as Gilliam warranted nothing by conveying by quit-claim. The chancellor’s refusal to apply the holding of the Duhig case was thus correct.
The Phillips heirs would have us apply the so-called “one step” approach, i.e., that the grantor’s reservation is not a second step but is merely a reference to the already outstanding interest. That is the rationale expressed by the commissioner in the Duhig Case opinion. They cite Brown v. Kirk, 127 Colo. 453, 257 P.2d 1045 (1953); Garraway v. Bryant, 224 Miss. 459, 80 So. 2d 59 (1955); and Murphy v. Athans, 265 P.2d 461 (Okla. 1953), as having adopted that approach. While the estoppel principle is not specifically mentioned in Sny of those cases, the holding of each is entirely dependent upon the conveyance having been by warranty deed. In each it is noted that the grantor’s reservation was construed as an exception to the warranty or intended to protect the grantor against a suit on his warranty.
In the case of a quit-claim deed containing a reservation such as the one here the reservation can have only the purpose of notifying the grantee of the mineral interest not owned by the grantor or the purpose of keeping the title to the reserved interest in the grantor. A quit-claim deed conveys the interest of the grantor in the property described in the deed. Smith v. Olin Industries, Inc., 224 Ark. 606, 275 S.W.2d 439 (1955). It is not suggested the grantor of such a deed has any duty or reason whatever to notify his grantee of the interest he does not own. In this case, the grantee, Phillips, was known by Gilliam, the grantor, to have knowledge of Long’s one-half interest in the minerals, as Phillips was in the chain of title subsequent to the grant to Long and had been the grantor in the deed to Gilliam.
We look to the deed and the context in which it was made to ascertain the intent of the parties. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971); Davis v. Collins, 219 Ark. 948, 245 S.W.2d 571 (1952). In this case the deed and the context in which it was made show it was intended that Gilliam keep the one-half mineral interest. In view of the unlikeliness that Gilliam intended the reservation as notice to Phillips of Long’s one-half interest in the minerals, the language of the reservation would be surplusage if it was not intended to keep the one-half mineral interest in Gilliam. We will not treat language of a deed as surplusage if we can attribute a reasonable meaning to it. Wynn v. Sklar, 254 Ark. 332, 493 S.W.2d 439 (1973). The reference to the reservation in the granting clause is an additional factor showing the grantor’s intent to keep the mineral interest.
Affirmed. | [
116,
105,
-16,
28,
56,
64,
58,
-125,
73,
-79,
-27,
83,
-87,
90,
21,
121,
-93,
125,
117,
107,
-41,
-73,
11,
0,
80,
-77,
121,
-51,
52,
89,
-90,
-41,
76,
32,
-54,
17,
-60,
96,
-57,
92,
-90,
1,
9,
105,
89,
2,
56,
47,
18,
75,
33,
-76,
-15,
-84,
29,
-53,
77,
46,
-19,
58,
89,
58,
-86,
70,
61,
52,
1,
1,
-112,
-121,
-40,
74,
-110,
48,
8,
-24,
115,
54,
82,
-11,
13,
-103,
-116,
40,
102,
51,
61,
-17,
-32,
24,
6,
-6,
-115,
-89,
-60,
0,
99,
73,
-105,
28,
126,
28,
68,
-12,
-30,
-123,
84,
108,
19,
-50,
-106,
-95,
13,
-20,
-107,
19,
-13,
7,
52,
116,
-49,
-22,
92,
69,
122,
27,
14,
-15
] |
Steele Hays, Justice.
By this appeal we are asked to determine whether the trial court abused its discretion in declaring Road No. 244 in Calhoun County to be a county road pursuant to Act 166 of 1983, and whether that act is unconstitutional.
Road 244 is a gravel road running west from Highway 167 in Calhoun County. It is located for the most part on lands belonging to Calion Lumber Company and ends in a cul-de-sac at Champagnolle Creek, a feeder of the Ouachita River. The road serves some ten or twelve families, including John and Pauline Bean and the appellants, Jessie and Evie Lou Johnson. The Johnsons own lands at the turnaround, with the Beans having an easement. Disputes between the Beans and the Johnsons over the use of the road have resulted in two previous suits, the more recent terminating in this court on April 25, 1983. See Bean v. Johnson, 279 Ark. 111, 649 S.W.2d 171 (1983).
In 1983 the Arkansas General Assembly enacted Act 166, amendingActs461and666of 1923 [Ark. Stat. Ann. § 76-104 et seq. (Repl. 1981)], giving county judges the discretion to designate roads used as school bus routes as county roads and obligating the county to maintain and repair roads having been so designated.
In July of 1983, the county judge declared the road to be a county road and the Johnsons filed suit against him to set the order aside. The Chancellor held for the county judge upon a finding the road had been used as a school bus route for ten years or longer and had been maintained by the county for an equal period. He upheld the constitutionality of the statute. We affirm the decree.
On appeal the Johnsons urge the order of the county judge was an abuse of the discretion given him under the act. We disagree with that contention. The argument is grounded on the fact that a number of individuals testified they did not want the road declared a county road, the exception being John Bean, whose objective was said to be the sale of his property. Appellants submit the taking was to further the interests of the Beans.
Appellee admitted giving consideration to Bean’s request, but that cannot be said to be the only reason for his action. He said there had been problems over the use of the road for several years; that people had asked him why they couldn’t use the road if it was a route for the school bus. They complained of being stopped on the road and verbally abused. Appellee had discussed the problem with a mail carrier, the sheriff and a Hampton city councilman prior to his actions. He said he already regarded the road as being a county road, the only one he knew of serving as a school bus route which had not been designated as a county road. These factors, and more importantly, the prolonged use as a school bus route and the maintenance for many years by the county provide an ample basis for the appellee to have acted under the statute. The Chancellor’s finding that the appellee did not exercise his discretion improperly is not clearly against the preponderance of the evidence. ARCP Rule 52.
The argument that Act 166 is unconstitutional is also without merit. Certainly under Article 2, Section 22 of our Constitution, private property may not be appropriated for public use without just compensation. But there was no taking here in the sense contemplated by the Constitution and the several cases cited by appellants. Where an owner permits what might otherwise have been a private road to be used as a school bus route for upwards of ten years and permits the county to repair and maintain the road for a comparable period, he cannot be heard to complain that his property has been taken without compensation. In effect, the declaration of public usage simply recognizes what his actions have already created by sufferance. Mr. Johnson conceded the school bus had used the road regularly and the county had applied gravel and used a grader on the road once or twice a year. Given the strong presumption in favor of the constitutionality of legislative enactments the Chancellor’s holding that Act 166 is not unconstitutional was not error as applied to the facts of this case. Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).
Appellee submits that in our recent decision in Neyland v. Hunter, 282 Ark. 323, 668 S.W.2d 530 (1984), we upheld the constitutionality of Ark. Stat. Ann. § 75-104 and 105 (Repl. 1981), which Act 166 amended. But constitutionality was not argued in Neyland. We held those sections were not intended to be literally construed to shorten the duration of seven years required for a prescribed easement to take effect, the adverse time lapse in Neyland being just over two years.
We need not determine whether that same interpretation applies to Act 166, as the time element is undisputedly in excess of ten years, and the Act is dependent upon a circumstance not prescribed in § 75-104 and 105, i.e. the exercise of discretion by the county judge in declaring the road to be a county road. No doubt the duration of usage as a school bus route and the extent of maintenance by the county will have its influence on the exercise of such discretion in other cases. Clearly the county judge in this case was influenced by these factors.
Appellant’s final argument that they are entitled to an injunction prohibiting entry to the road pursuant to the order is answered under the other points.
The decree is affirmed.
Hickman, J., and Hollingsworth, J., dissent.
Purtle, J., not participating. | [
113,
-17,
-36,
60,
58,
66,
27,
-120,
81,
-93,
-28,
-45,
-81,
90,
21,
97,
-77,
-33,
-11,
121,
-43,
-77,
119,
-32,
50,
-5,
-39,
71,
-71,
73,
-28,
-42,
12,
112,
-50,
-43,
70,
72,
-113,
-36,
-50,
2,
-53,
76,
-55,
67,
60,
43,
82,
79,
117,
-83,
-14,
44,
17,
67,
-23,
44,
89,
61,
89,
-46,
-68,
23,
93,
6,
49,
100,
-118,
-123,
-24,
40,
-112,
49,
10,
120,
115,
-94,
-122,
-12,
75,
-103,
8,
-10,
98,
3,
44,
-57,
-68,
-120,
14,
-6,
13,
-90,
-110,
24,
67,
8,
-73,
-105,
92,
84,
-122,
-2,
103,
-115,
30,
44,
13,
-50,
-76,
-95,
-123,
-87,
-108,
66,
-29,
35,
48,
113,
-63,
-50,
89,
71,
49,
-101,
-50,
-11
] |
John I. Purtle, Justice.
Appellant was convicted under the “Omnibus DWI Act” [Ark. Stat. Ann. §§ 75-1031.1; 75-1045; 75-2501 through 75-2514 (Supp. 1983)]. On appeal he challenges the Act and the evidence in this case. The four points argued on appeal are: (1) the Act violates the separation of powers doctrine; (2) the Act violates due process by failure to give notice of proscribed conduct; (3) the evidence was insufficient; and (4) the court erred in allowing the breathalyzer test results to be introduced. We do not reach the separation of powers argument and the other three points have been recently decided adversely to the appellant.
On May 7, 1983, the appellant was stopped by a city officer because he was speeding. After the officer talked with the appellant he decided the appellant had been drinking. According to the officer the appellant failed two of the three field tests given. The officer testified that appellánt was “moderately” intoxicated. Therefore, appellant was taken to the Fayetteville Police Department where he was given a breath test. The test sample was not preserved. The indicated blood alcohol content (BAC) was 0.21%. Prior to the breath test the appellant had been under the combined observation of officers for more than 30 minutes. He was informed he could take a different type test if he disagreed with the result of the one administered. The officer agreed to assist him in obtaining another test. No request for a different test was made.
We first take up the statement that Act 549 is violative of the separation of powers doctrine as established by the Constitutions of Arkansas and the United States. It is stated by the appellant that the various sections of this Act amount to legislative encroachment upon the functions of the judicial department. The briefs contain no convincing argument or citation of authorities on this issue. An issue of such vital importance should be developed at the trial court and fully briefed and argued before we write an opinion. Under the authority of Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), we decline to decide the issue in this case.
Appellant next argues the statute is too vague to give notice of proscribed conduct. We recently decided this issue adversely to appellant. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). The reasons, definitions and authorities applied in Lovell and Long are equally applicable to the present case and will not be repeated here.
The evidence was sufficient to sustain the conviction in the present case. The proof revealed appellant’s BAC registered 0.21%. The officer first stopped him for speeding and thereafter notice he had symptons of being under the influence of alcohol or intoxicated. No one officer observed him for 30 minutes before the test was administered but collectively he was observed by the officers for at least 30 minutes. There was the usual testimony about appellant’s being under the influence and no good purpose would be served by repeating it here.
The final argument is that the breathalyzer test was improperly admitted. Although the notice to appellant by the officers that he had the right, to have a subsequent or different test was not as complete as it should have been, we do not find error in allowing the test result to be introduced. He was notified he could request a test of a different type but he made no such request. Arkansas Stat. Ann. § 75-1045 (c) (3) does not require the police to administer the test more than once but the testimony here was that it was department policy to give a second test if requested. The statute provides that the accused may have a physician, qualified technician, registered nurse or other qualified person of his own choice administer a complete chemical test or tests in addition to the one administered at the direction of the law enforcement officer. The officer is required to advise the accused of this right. Appellant was notified that he had the right to request a test of a different type. We do not believe the notice precluded the appellant from requesting another breathalyzer test and he could have done so but he did not. The statute requires the officers to assist an accused in obtaining other tests but it does not require them to initiate a request for additional tests. There was no showing that the test administered was defective. Therefore, the court did not err in allowing the test results to be admitted.
Affirmed. | [
116,
-17,
-3,
28,
8,
64,
50,
-106,
81,
-97,
117,
114,
-83,
-39,
5,
99,
-30,
-5,
117,
121,
-43,
-73,
87,
1,
-22,
-13,
-104,
71,
-111,
75,
-28,
-12,
78,
44,
-54,
-43,
103,
74,
-59,
92,
-90,
10,
-101,
96,
82,
-110,
32,
107,
18,
15,
49,
-97,
-62,
46,
24,
-54,
-19,
44,
89,
-92,
64,
112,
-116,
29,
-35,
18,
-79,
5,
-103,
5,
112,
59,
-100,
49,
1,
-8,
115,
-90,
-118,
-12,
107,
-103,
13,
98,
99,
-124,
21,
-17,
-68,
-95,
38,
59,
-99,
-90,
-104,
1,
73,
12,
-105,
85,
110,
16,
15,
-8,
115,
-44,
83,
124,
-122,
-49,
-108,
-79,
-17,
48,
-126,
83,
-61,
35,
16,
117,
-63,
-30,
84,
85,
83,
27,
-34,
-108
] |
Per Curiam.
This case is similar to and controlled by the opinion in Rodney Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). The judgment is affirmed. | [
-76,
-24,
-43,
60,
10,
64,
58,
-78,
91,
-85,
-32,
-47,
-81,
-126,
20,
125,
-77,
111,
113,
115,
-108,
-73,
55,
-63,
88,
-13,
-69,
-33,
51,
-35,
-18,
118,
92,
112,
-118,
-59,
70,
-56,
-59,
80,
-58,
-117,
11,
76,
81,
18,
52,
43,
16,
-113,
113,
23,
-31,
42,
31,
-57,
-23,
44,
-55,
-89,
81,
-7,
-34,
31,
111,
21,
-125,
36,
28,
-121,
-8,
46,
-36,
49,
1,
-8,
115,
-90,
-122,
116,
111,
-39,
12,
-26,
98,
9,
64,
-17,
-96,
-104,
4,
-10,
-115,
-73,
-102,
25,
-22,
71,
-122,
126,
110,
20,
12,
-2,
-31,
-19,
31,
108,
5,
-113,
-108,
-95,
71,
125,
-44,
-53,
-31,
115,
48,
21,
-59,
-22,
92,
71,
49,
83,
-102,
-10
] |
McCulloch, C. J.
The sole question involved in this appeal is whether or not a witness in a civil case pending in the circuit court is entitled to have his fees for attendance and mileage taxed against the losing party without having, in the time and manner provided by statute¿ proved his account therefor. The statute is as follows:
“Every account for attendance as a witness shall be sworn to, and shall state that he was summoned to attend as a witness in the cause upon which the charge is made and the number of days he attended and, if summoned without the limits of the county, the number of miles he traveled in consequence o.f the summons.” Section 3524, Kirby’s Digest.
This court, in Fulks v. State, 64 Ark. 148, held that a witness in a criminal case could not''have his fees taxed unless he proved same in the manner and within the time prescribed by the statute. The statute applies equally to" civil and criminal cases.
It was shown in evidence in the present case that it had always been the prevailing custom in Cross County, where the case was pending, for witnesses to report to the clerk verbally the number of days’ attendance, without making out an account and swearing to it, as provided by the statute. This alleged custom does not alter the rights of the parties, nor prevent the operation of the statute. Parties, witnesses and officers are all presumed to know of the existence of this statute, and it cannot be abrogated by custom.
Reversed and remanded with directions for further proceedings on the motion to retax costs not inconsistent with this opinion. | [
-78,
-24,
-28,
-4,
-53,
64,
35,
-72,
72,
-29,
38,
19,
109,
-62,
0,
35,
-93,
127,
117,
105,
76,
-74,
7,
65,
98,
-13,
-47,
70,
-67,
-53,
-92,
-12,
76,
56,
-22,
-43,
70,
75,
-123,
88,
-114,
8,
-72,
73,
-7,
4,
48,
-87,
22,
11,
49,
-42,
-5,
10,
24,
79,
104,
40,
127,
-77,
-40,
-15,
-102,
9,
127,
5,
-79,
22,
24,
5,
120,
10,
-116,
57,
66,
88,
115,
-74,
-126,
-44,
105,
-71,
9,
110,
102,
33,
24,
-9,
-72,
-95,
46,
26,
-65,
-89,
-112,
121,
11,
47,
-74,
-97,
127,
80,
14,
-4,
-24,
68,
-47,
36,
3,
-49,
-46,
-77,
-123,
68,
-105,
2,
-58,
51,
16,
113,
-52,
-30,
94,
71,
50,
-101,
-122,
-36
] |
McCuuuoch, C. J.
Certiorari to the chancery court of Pulaski County to review and quash the judgment of that court adjudging petitioner, J. A. Pitcock, to be guilty of contempt in disobeying an injunction.
On January 14, 1909, the Arkansas Brick & Manufacturing Company, a corporation, instituted suit in the Pulaski Chancery Court against appellant J. A. Pitcock, superintendent of the Arkansas State Penitentiary, and Geo. W. Donaghey, Governor of the State, O. C. Eudwig, Secretary of State, Hal L. Norwood, Attorney General, Jno. R. Jobe, Auditor of State, and Guy B. Tucker, State Commissioner of Mines and Agriculture, composing the Board of Commissioners of the Arkansas State Penitentiary, to restrain them from violating an alleged contract which had been entered into between them and the plaintiff for furnishing to the latter of the labor of State convicts. It is alleged in the complaint that bn February 3, 1899, a written con tract was duly entered into between the Arkansas Chair Factory, a corporation, and the superintendent and financial agent of the State Penitentiary, with the approval of said Board of Commissioners, whereby the convicts of the State were hired to said corporation at price of fifty cents per day for each man worked, for a period commencing on that day and ending January 1, 1909; that, according to the terms of said contract, it was agreed that forty able-bodied convicts were 'hired for the first year, and as many thereafter as needed, not exceeding two hundred; that the board should furnish all necessary buildings to be used under the contract (except certain ones specified), and also clothe and feed the convicts; that prior to July 31, 1899, said Arkansas Chair Factory, with the consent of said board, assigned said contract to plaintiff; that on the last-named date said contract was by mutual consent of the parties amended so as to permit the working of convicts by plaintiff outside of the walls of the Penitentiary in manufacturing, agriculture, railway building and other pursuits, and that said board should furnish to plaintiff three hundred able-bodied men on demand of the plaintiff after January 1, 1900, and that plaintiff should work not less than one hundred men at all times; that plaintiff complied with its part of the contract, and at great expense prepared to work said convicts ; that the Board of Commissioners complied with said contract except that after January 1, 1901, they failed to furnish the number of convicts required by the -contract, and only furnished a far less number; that'since the first day of January, 1900, and up to the time of the commencement of this suit, the plaintiff has continuously demanded from said board the amount of convict labor called for by said contract, but that the board and superintendent at various times and under various pretexts failed to furnish the amount of labor so demanded, 'but that in each instance, when the requisite number were not furnished on demand, said Board of Commissioners represented to the plaintiff that it would subsequently make good the deficit thus caused by furnishing to said plaintiff such an amount of convict labor, as to make it receive eventually the aggregate number of convicts called for by said contract, and that “in each instance the said superintendent and board expressly promised to make good said deficit and adopted resolutions to this effect, which were spread at length upon the minutes of said board, and the plaintiff could not other than rely upon said representations and promises, and for this reason it accepted the same;” that, “in reliance upon said representations and promises of the board and believing that the State would carry out its contract with it in all respects, it was induced to make the large expenditures hereinbefore stated, which were absolutely necessary in order to prepare the proper facilities for making it profitable to the plaintiff to use the amount of labor due it under said contract, and which it fully expected would eventually be furnished to it;” that the said members of the Board of Commissioners, pretending to act as the Board of Penitentiary Commissioners, had on the 14th day of January, 1909, made and were about to enforce a resolution in substance declaring said contract to be at an end and directing the superintendent of the Penitentiary to withdraw all convicts from the premises and works of the plaintiff and place them on the State farm or within the walls of the Penitentiary.
It is further alleged in the complaint “that the Board had no authority in law to make said pretended order, and that the same is null and void; that the said board had no authority to take the said convicts from the plaintiff until the balance of the convict labor due to the plaintiff, as aforesaid, has been furnished to the plaintiff in full; that the said resolution was passed, not because of any default on the part of the plaintiff in carrying out the terms of said contract, and not because the board does not acknowledge the violation of said contract on its part as herein alleged, but solely on the ground that the board pretends to possess the arbitrary power of withholding said labor from the plaintiff on the theory that the State is not amenable to any legal proceeding against it, and that the members of the board can shield themselves by this protection in favor of the State.”
The prayer of the complaint us as follows: “Premises considered, the plaintiff prays that a temporary restraining order be made, restraining the defendants, and each of them, from taking any action looking to the withdrawal of the convicts now in its possession, and particularly from taking from plaintiff’s brick works any of the men now engaged in labor therein, and requiring said Board of Penitentiary Commissioners, and the super intendent of said Penitentiary, to carry out the terms of the agreement hereinbefore set forth — that is, to require said board and superintendent of the Penitentiary to furnish the plaintiff a sufficient number of able-bodied convicts to repay it for the labor of the convicts so withheld, 'withdrawn and taken from it by the Board of Commissioners as set forth herein. Plaintiff prays that upon the final hearing a decree be entered as above prayed, and that the said order of the board directing the superintendent to take away from the plaintiff the convicts now held by it, and refusing to carry out the terms of the agreements before stated, be declared null and void.”
It will be seen from the foregoing statement of facts that the contract, dated February 3, 1899, as amended on July 31, 1899, is the same contract which was the subject of litigation in the case of McConnell v. Ark. Brick & Mfg. Co., 70 Ark. 568, and it is so pleaded in this action, it being alleged that the contract had, by the Pulaski Chancery Court, and by the Supreme Court on appeal, been adjudged to be valid and enforceable.
Upon the filing of said complaint, the same was presented to the chancellor at 'chambers, and he at once granted a temporary injunction in accordance with the prayer of the complaint, restraining said members of the Board of Commissioners and the superintendent of the Penitentiary from withdrawing said convicts. The injunction was duly issued by the clerk after execution of the bond by plaintiff in accordance with the statute and the order of the chancellor, and immediately served on all the members of the board; but the sheriff was unable to serve same upon appellant Pitcock until Monday morning, January 18, 1909. He was, however, duly notified of the issuance of the injunction by the sheriff, and by one of the attorneys for the plaintiff in a conversation over the telephone, immediately after the issuance of the injunction, and before lie removed the convicts.
Immediately after the adoption of the resolution by the Board of Penitentiary Commissioners, and regardless of the notice to him of the issuance of the injunction, Pitcock set about complying with the resolution, and within the succeeding three days withdrew all convicts from the plaintiff’s works and premises, and returned same to State convict farm and to the walls of the Penitentiary. .
Upon the affidavit filed by the plaintiff setting forth the issuance and violation of said injunction, Pitcock was cited by the chancellor to appear and show cause why he should not be punished for contempt, and upon a hearing he was adjudged by the chancery court to be in contempt on account of having violated said injunction, and a fine of $500 was imposed upon him. The record has been brought -here by writ of certiorari to review the action of the chancery court in adjudging Pitcock to be in contempt and imposing the fine upon him.
It is earnestly insisted on behalf of appellant that the evidence introduced at the hearing does not sustain the finding of the chancellor that appellant was informed of the issuance of the writ of injunction prior to the service on him on January 18, 1909, or that he had violated the injunction after being notified thereof. We are convinced, however, from a careful consideration of the testimony adduced at the hearing, that Pitcock, after receiving actual notice of the issuance of the injunction, evaded the service of the writ by the sheriff, and intentionally violated its terms by withdrawing the convicts from the premises and works of said plaintiff, pursuant to the resolution adopted by the Board of Penitentiary Commissioners. Actual notice of the issuance of the injunction, without formal service of the writ upon him, was sufficient to put him in contempt of the court by violating the terms of the writ, if the court possessed jurisdiction of the cause. Kirby’s Dig. § 3984; 1 Joyce on Injunctions §§ 247-249, 251; High on Injunctions §§ 352, 353. We therefore treat as settled the fact that appellant Pitcock intentionally violated the injunction; and the only remaining question is whether or not the court had jurisdiction, for it is well settled that errors of the court in issuing an injunction cannot be taken advantage of by one who has violated the injunction.
If the court had the jurisdiction of the parties and subject-matter of the cause of action in which the injunction was issued, the fact that it was érroneously and improvidently issued does not excuse disobedience on the part of those who are bound by its terms. Meeks v. State, 80 Ark. 579.
In considering this question, the distinction must not be overlooked between the violation of a preliminary injunction preserving the status quo of the subject-matter of the litigation during the pendency thereof, and the final decrees of courts requiring the parties to do or not to do the things enjoined upon them by such decrees. In the latter cases, if the decree was rendered without jurisdiction, it can be disobeyed with impunity, for no one owes obedience to a void decree, as it is without any force whatever. “A void judgment is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one.' All acts performed under it and all acts flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers.” Rankin v. Schofield, 81 Ark. 463. On the other hand, a court possesses the power of hearing and determining the question of its jurisdiction, and may, while so doing, require the parties to preserve the status of the subject-matter. United States v. Arredondo, 6 Pet. 709; United States v. Shipp, 203 U. S. 563. However, when the pleadings show on their face that the court is wholly without jurisdiction of the subject-matter set forth therein, any preliminary order made or final judgment rendered is void. Williford v. State, 43 Ark. 62.
It becomes necessary, therefore, to inquire as to the alleged cause of action set forth in the complaint — whether any cause of action is set forth at all, and, if so, whether or not it falls within the jurisdiction of the chancery court.
The complaint alleges in substance that -the State of Arkansas, acting through its authorized officers and agents, entered into a written contract with the plaintiff’s assignor for the hire of convicts, that the said contract was subsequently assigned to plaintiff and amended in writing, and also was subsequently amended by a verbal promise and undertaking of the Board of Penitentiary Commissioners, which was duly entered in writing on the minutes of the board, to the effect that the deficit in the number of convicts called for in the, contract to be furnished to the plaintiff should be made good, so that the plaintiff should receive the aggregate amount of convict labor specified in the contract. In other words, the complaint sets forth an alleged contract entered into with the Penitentiary Board, evidenced partly by the original and'amended writings, and partly by the minutes of the board, to furnish the aggregate amount of convict labor provided for in the written contract. These allegations can only be construed to mean that the board agreed to continue to furnish convict labor to plaintiff until the aggregate amount specified in the contract should be supplied. The only difference between this case and that of McConnell v. Ark. Brick & Mfg. Co., supra, is that the latter was a suit to prevent an attempted rescission and breach of the written contract of February 3, 1899, as amended in writing on July 31, 1899, while the present suit is one to restrain an attempted breach of said amended contract as further amended subsequently by the alleged additional agreement of the Penitentiary Board, entered on the minutes thereof, to make good the deficit in the aggregate amount of convict labor agreed to be furnished. The contract and each of the alleged amendments thereto were based on the same character of consideration, viz: the mutual undertakings of the contracting parties. The present suit, as was the McConnell case, is plainly one to restrain an attempted breach by the Penitentiary Board of a contract alleged to have been entered into by that board for the State of Arkansas whereby convict labor should be furnished to the plaintiff; the question at issue in each of the cases being whether or not the contract was a valid and subsisting one, and whether such suit was one against the State.
The first and only question necessary for us to determine in this case is whether or not this is a suit against the State; for, if it is, then the chancery court was wholly without jurisdiction to proceed, and all orders and judgments attempted to be rendered therein were void. In the matter of Ayres, 123 U. S. 443. A sovereign State cannot be sued except by its own consent; and such consent is expressly withheld by the Constitution of this State. Art. 5, § 19.
The question whether a suit is one against a State is not necessarily determined by reference to the parties to the record. If the State is the real party in interest, though only its officers and agents are parties, then it is in effect a suit against the State, and falls within the rule of prohibition. Poindexter v. Greenhow, 114 U. S. 270; Hagood v. Southern, 117 U. S. 52; In the matter of Ayres, 123 U. S. 443; Pennoyer v. McConnaughy, 140 U. S. 1; Fitts v. McGehee, 172 U. S. 516; Farmers National Bank of Hudson v. Jones, 105 Fed. 459; Louisiana v. Jumel, 107 U. S. 711.
In Fitts v. McGhee, supra, Mr. Justice Harlan, speaking for the court, said: “As a State can .act only by its officers, an order restraining those officers from taking any steps, by means of judicial proceedings, in execution of the statute of February 9, 1895, is one which restrains the State itself, and the suit is consequently as much .against the State .as if the State were named as a party defendant on the record. If the individual defendants held possession of, or were about to take possession of, or to commit any trespass upon, any property belonging to or under the control of the plaintiffs, in violation of the latter’s constitutional rights, they could not resist the judicial determination, in a suit against them, of the question of the right to such a possession by simply asserting that they held or were entiled to hold the property in their capacity as officers of the State.”
In Farmers Nat. Bank v. Jones, supra, Judge Caldwell said: “As a State can perform its functions through officers and agents only, it was soon perceived that, if these officers and agents of the State were liable to be sued and coerced to comply with the judgments and decrees of a Federal court, the whole scope and purpose of the amendment would be nullified. * * * It is now settled that the jurisdiction in such cases is dependent upon the real, and not the nominal, parties to the suit, and it is now clear, both upon principle and authority, that a suit against the officers of a State to compel them to do acts which would impose a contractual pecuniary liability upon the State, or to issue any evidence of debt, in the name of the State, which would have that result, is in fact and legal effect a suit against the State, though the State itself is not named a party on the record.”
In the Ayres case, supra, Mr. Justice Matthews, speaking for the Supreme Court of the United States, said: “A bill, the object of which is, by injunction, indirectly to compel the specific performance of the contract by forbidding all these acts and doings which constitute breaches of the contract, must also, necessarily, be a suit against the State. In such a case, though the State be not nominally a party on the record, if the defendants are its officers and agents, through whom alone it can act in doing and refusing to do the things which constitute a breach of its contract, the suit is still, in substance, though not in form, a suit against the State.”
And again, in the same case, it is said: “Where the contract is between the individual and the State, no action will lie against the State, and any action founded upon it against defendants who are officers of the State, the object of which is to enforce its specific performance by compelling those things to be done by the defendant which, when done, would constitute a performance by the State, or to forbid the doing of those things which, if done, would be merely breaches of the contract by the State, is in substance a suit against the State itself, and equally within the prohibition of the Constitution.”
In actions against officers of the United States, the same principle has been announced. Belknap v. Schild, 161 U. S. 10; Minnesota v. Hitchcock, 185 U. S. 373; International Postal Supply Co. v. Bruce, 194 U. S. 601; Naganab v. Hitchcock, 202 U. S. 473.
In Belknap v. Schild, supra, which was a suit filed against Belknap, a commodore in the United State Navy and commandant of the United States Navy Yard at Mare Island, California, to restrain him from using caisson gates which, it is charged, were an infringement of letters patent granted by the United States to the plaintiff, the court held that it was a suit against the United States, and could not be maintained. In discussing the question, the court said: “No injunction can be issued against the officers of a State to restrain or control the use of property already in the possesion of the State, or money in its treasury when the suit is commenced; or to compel the State to perform its obligations; or where the State has otherwise such an interest in the object of the suit as to be a necessary party.”
The doctrine of these cases is reaffirmed by the Supreme Court of the United States in the recent case of Murray v. Wilson Distilling Co., 213 U. S. 151.
The only distinction found in these cases is that where the suit is against an officer to prevent him from doing an unlawful act to the injury of the complaining party, such as the taking or trespass upon the property belonging to the latter, the former cannot shield himself behind the fact that he is an officer of the State; and also where the officer refuses to perform a purely ministerial act, the doing of which is imposed upon him by statute. In either of such cases a suit against such an officer is not a suit against the State.
In determining whether a suit is against the State, it is unimportant whether the contract sought to be enforced, or t'he breach of which is sought to be enjoined, is or is not a valid one. The fact that it is a'valid contract does not justify the suit against the State, and that question has no place in an inquiry as to whether or not a suit is against the State. “An injunction restraining the breach of a contract is a negative specific enforcement of the contract. The jurisdiction of equity to grant such injunction is substantially coincident with its jurisdiction to compel a specific performance. Both are governed by the same doctrines and rules; and it may be stated as-a general proposition that wherever the contract is one of the class which will be affirmatively specifically enforced, a court of equity will restrain its breach by injunction, if this is the only practical mode of enforcement which its terms permit.” 4 Pomeroy, Eq. Jur. § 1341; McDaniel v. Orner, ante p. 171.
This court in the McConnell case, supra, held that that was not a suit against the State because the Penitentiary Board had executed a valid and then subsisting contract with the plaintiff, but was attempting without legal authority to break it by a refusal to perform it. That distinction is untenable. The Penitentiary Board is created by statute as the agent of the State to manage and provide for working the convicts of the State. That board has the power to make contracts for the State, and it is the sole agent of the State in the performance of such contracts. The board does not perform merely ministerial acts; what it does involves judgment and discretion, and all that it does for the State. The State can, under the present statute, make and perform contracts with reference to the management of convicts only through t'he agency of this board. Therefore, an injunction against the board restraining it from violating a contract necessarily results in requiring the board, and through it the State, to specifically perform its contract.
The alleged contract was one merely to furnish the labor of convicts. The board, acting for -the State, retained custody and control of the convicts, and were to permit them to labor for the plaintiff for a stipulated price. A withdrawal of the convicts from the premises of the plaintiff was not a taking or trespass upon the latter’s property. It was only a refusal to perform the alleged contract which plaintiff seeks to restrain.
It is with great reluctance that we have concluded to review the McConnell case and overrule the doctrine therein announced, but a majority of the judges are of the opinion that the decision was wrong, and contrary to the great weight of authority. The overruling of a decision has the unfortunate tendency of rendering the laws of the State less certain. Decisions which become rules of property should never be overruled, whether they are right or wrong. But where, as in this instance, no rule of property is disturbed, and the dignity and sovereignty of the State is involved, we conceive it to be our duty to correct the mistake of the court as speedily as possible by overruling a former decision which we have become thoroughly satisfied is erroneous and contrary to the recognized rules established by the other courts of the country. No one can have a vested right to sue the State. The State can either extend or withhold the right. All who contract with the State must do so with full knowledge that they must rely solely upon the legislative branch for performance of the contract and for satisfaction of the State’s just obligations. Even the privilege of suing the State, when once extended, does not afford the basis of a vested right to sue or to prosecute to termination a suit once commenced; and such privilege may be withdrawn without disturbing any vested right, even after suit has been commenced. Beers v. State, 20 Howard, 572.
The plaintiff cannot complain because the court overrules its former decision, even though that decision permitted the plaintiff to maintain its suit similar to the one now before us.
The judgment of the chancery court, adjudging the petitioner to be in contempt of that court, is therefore quashed, and said proceedings against the petitioner are dismissed. | [
52,
106,
-4,
-51,
10,
-63,
120,
-102,
103,
-127,
101,
83,
-23,
84,
17,
97,
-29,
77,
-44,
121,
-27,
-109,
113,
105,
-62,
-13,
-67,
-59,
-72,
75,
-27,
-10,
72,
36,
-54,
-119,
-58,
64,
-61,
92,
-50,
1,
11,
-56,
-15,
16,
52,
125,
16,
-113,
17,
-122,
-77,
40,
86,
-49,
108,
60,
77,
45,
81,
-5,
-112,
-107,
127,
23,
-95,
38,
-102,
5,
104,
62,
-104,
49,
4,
-8,
115,
-74,
-122,
84,
67,
-39,
44,
98,
98,
34,
-116,
-57,
40,
-24,
54,
-66,
-119,
-90,
-80,
105,
107,
77,
-66,
-100,
106,
86,
14,
58,
-25,
45,
-47,
44,
-127,
-113,
-76,
-93,
15,
45,
-106,
-73,
-23,
-91,
48,
97,
-51,
-78,
93,
-121,
27,
-101,
-114,
-48
] |
Battue, J.
This action was brought by Belle Fultz, as administratrix of Amberson A. Fultz, deceased, against the St. Louis, Kennett & Southeastern Railroad Company, in the Clay Circuit Court for the Eastern District of Clay County, to recover damages for the alleged negligent killing of the deceased by the defendant.
Plaintiff alleged her cause of action, in part, as follows: “That on the 9th of July, 1907, the' said deceased was, and for a long time prior thereto, in the employ of the appellant railroad company in the operation of its trains, and on said date was employed as foreman of a logging crew in loading logs at or near Nimmons, Arkansas, and transporting the same by railway, to Kennett, Mo. That, while said train of appellant, upon which deceased was foreman, was at Nimmons, and while the same was being backed from the main line into and upon a siding or switch, and the deceased was upon the top of the rear car of said train, and while the same was being backed in and upon said siding, it became the duty aof said deceased to go from the top of said car to the ground for the purpose of opening or throwing a switch, so that said train could back from the main line into and upon the siding; that in the rear end of the car upon which deceased was riding, but in the front as the train was being backed into the siding, was a link and coupling pin used by said appellant company to connect said car with and to attach same to other cars operated by appellant. That, as said deceased was getting down from the top of the car for the purpose of throwing the switch, his foot caught in the link of said car, causing him to fall to the ground, and to be run over and killed by said train of cars. That said deceased, in attempting to get from the top of said cars for the purpose of throwing said switch, was acting in the discharge of his duties as such employee, and was performing such duties in the usual and ordinary way, and in the only manner provided by appellant for so doing.”
The defendant answered. A jury was impaneled to try the issues in the action. In the trial which followed evidence was adduced sustaining the foregoing allegations of the complaint, and it was shown that the link in the end of the drawhead was probably ten or twelve inches long, and at the time of the accident hung down, as witness expressed it, “something like a quarter angle,” and the train was running about six miles an hour.
The jury returned a verdict in favor of the plaintiff for $2,000, and the defendant appealed.
The evidence failed to show that any negligence of the appellant was the proximate cause of the accident. “It is generally held that, in order to warrant a finding that negligence * * * is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of attending circumstances.” Ultima Thule, Arkadelphia & Mississippi Railroad Company v. Benton, 86 Ark. 289; Pittsburg Reduction Co. v. Horton, 87 Ark. 576. The catching of the foot of the deceased in the link, ten or twelve inches long, hanging in the drawhead of a car at, as a witness described, “a quarter angle,” as he leaped from the train was improbable, and was one ■ of the consequences that “ought not to have been foreseen in the light of the attending circumstances.” It was an accident for which the appellant is not responsible.
Judgment reversed, and action dismissed on the merits. | [
-16,
105,
-116,
-114,
24,
-8,
10,
-70,
115,
-63,
-27,
-45,
-19,
-51,
89,
37,
-1,
-67,
-15,
107,
118,
-77,
23,
-94,
-110,
-109,
-79,
-57,
-72,
-53,
96,
-33,
73,
32,
74,
-43,
71,
96,
-59,
90,
-116,
32,
-21,
-24,
11,
-46,
-74,
60,
86,
79,
21,
-34,
-6,
42,
24,
107,
76,
59,
-1,
-86,
-30,
59,
-128,
21,
126,
18,
-95,
38,
-100,
-125,
-40,
9,
-104,
53,
32,
-8,
115,
-92,
-126,
-44,
97,
-39,
-120,
34,
102,
35,
-115,
-57,
-88,
-104,
7,
-73,
-113,
-121,
56,
73,
35,
15,
-65,
31,
83,
21,
-106,
126,
-4,
71,
73,
60,
7,
-114,
-78,
-125,
-81,
-92,
-105,
51,
-21,
15,
52,
97,
-52,
98,
92,
6,
58,
-97,
-57,
-67
] |
Wood, J.
(after stating the facts.) It is unnecessary to discuss seriatim the objections of appellant to the rulings of the court. It suffices to say we find no reversible error in any of them. The most important question in the case, as conceded by appellant’s counsel, is whether one who enters a store house, occupied as a saloon, in the night time, with intent formed in his mind before or at the very time he enters to commit a felony, can be guilty of burglary where the house he enters is open for business, and the entry is through the open door during business hours, and without any apparent fraud or deception practiced - on the owner in making the entry. The sections of our statute pertinent to the inquiry are as follows: Sec. 1603. “Burglary is the unlawful entering a house, tenement, railway car or other building, boat, vessel or water craft in the night time, with the intent to commit a felony.” Sec. 1604. “The manner of breaking or entering is not material, further than it may show the intent of the offender.” Sec. 1605, Kirby’s Digest provides: “If any person shall, in the night time, wilfully and maliciously, and with force, break or enter any house, tenement, boat or other vessel, or building, although not specifically named herein, with the intent to commit any felony whatever, he shall be deemed guilty of burglary.”
At the common law burglary was the unlawful breaking and entering in the night of another’s dwelling with intent to commit a felony therein. 1 Bish. New Cr. Daw, § 559; Russell on Crimes, p. 785. As will be seen, our statute, while retaining the elements of common law burglary, has also greatly enlarged upon these, so that, under the statute supra, the unlawful entering, without breaking, of the house, etc., in the night time with the intent to commit a felony is burglary. The unlawful entering, in the sense of the statute, is going into the house, etc., with the intention formed in the mind at the time the entry is made to commit a felony. No one has the right to enter upon the premises of another with the intent at the time he does so to commit a felony. No one is invited or has permission to do any such thing as that. A saloon keeper even extends to the public no such invitation as that, and one who enters a saloon with the predetermined purpose to commit some felony therein, whether by day or night, goes there in invitum, and, were such purpose known to the owner beforehand, he could prevent such person from entering his place of business. Therefore one who enters with such evil design perpetrates a fraud and deception upon the owner, for the owner invites only those who come for lawful purpose. Section 459 of the Penal Code of Caliifornia provides: “Every person who enters any house, room, store * * * with intent to comit grand or petit larceny, or any felony, is guilty of burglary.” In People v. Barry, 94 Cal. 481, the Supreme Court, construing the section, says: “As to the acts which shall constitute burglary, that is a matter left entirely to the policy of the Legislature, within its constitutional powers; and when that body has said that every person who enters a store with the intent to commit a larceny is guilty of burglary, the language is so plain and simple that rules of statutory construction are not required to be consulted; the meaning is patent upon the face of the statute. No words are found in the statute qualifying the character, kind, time, or manner of entry, save that such entry must be accompanied with certain intent; and it would be judicial legislation for this court to' interpolate other conditions into the section of the code.” The court then proceeds to reason upon facts which showed that one had entered a grocery store during business hours, and had attempted to commit larceny, and concludes that the entry was unlawful, saying: “He is not one of the public invited, nor is he entitled to enter. Such a party could be refused admission at the threshold, or ejected from the premises after the entry was accomplished.” The court adds: “If the presence of such party in the store is lawful, the fact that he gained ingress openly and publicly through the front door, rather than clandestinely by way of the skylight or the cellar, is not material, and the result would be that no burglary could be committed in a store during business hours, regardless of the nature of the entry.” We adopt the reasoning of this case. See also People v. Brittain, 142 Cal. 8, and cases cited. Of course, in States where the common law rule prevails requiring both the breaking and entry to constitute burglary, decisions based upon such rule could not be authority for construing a statute where the unlawful entry without breaking is sufficient. Such are State v. Newbegin, 25 Me. 502, and Clark v. Com., 25 Gratt. 908.
The case of State v. Moore, 12 N. H. 42, is more nearly in point. But, as pointed out by the Supreme Court of California, speaking of State v. Moore, 12 N. H. 42: “The primary question involved” in the latter case “was as to the sufficiency of the evidence to show a criminal intent in entering the 'building, and did not reach the matter as to the character of the entry.”
We can readily see that there may be great difficulty oftentimes in proving that the entry was with the felonious intent at the time of such entry to commit a felony. But that is no reason for saying that a party who enters during business hours through the open door in the regular way could not be guilty of an unlawful entry, and thus practically annul the statute. That is matter for the Legislature. As the law now stands, where • the unlawful entry is shown, or where the evidence in each particular case as it may arise is sufficient to warrant the jury in finding that there was an unlawful entry, as it does in this case, it must be held, other conditions prescribed existing, that the party so entering is guilty of burglary.
There is no error for which to reverse the judgment, and it is affirmed. | [
65,
-6,
-35,
-65,
27,
-32,
43,
-8,
114,
-111,
-93,
-77,
-81,
-46,
20,
113,
-77,
-1,
85,
32,
-35,
-93,
19,
35,
-14,
-77,
-45,
-43,
56,
75,
-12,
125,
4,
32,
-58,
-11,
102,
10,
-11,
-36,
-118,
-123,
26,
66,
-47,
80,
36,
26,
76,
14,
49,
-35,
-77,
42,
18,
-49,
9,
44,
75,
61,
-16,
121,
-104,
29,
75,
22,
-93,
39,
-67,
-123,
-8,
20,
28,
-111,
1,
-24,
115,
-108,
-112,
124,
111,
-117,
-120,
98,
98,
0,
105,
-21,
-96,
-111,
38,
110,
-67,
-89,
-111,
88,
75,
33,
-97,
-97,
122,
0,
46,
106,
-28,
84,
27,
100,
1,
-49,
-108,
-75,
-115,
116,
-112,
-15,
-49,
37,
-109,
113,
-58,
-82,
92,
112,
82,
-101,
-116,
-43
] |
McCulloch, C. J.
An instrument of writing, purporting to be the last will and testament of J. P. Steen, deceased, executed and attested in due form, was filed and presented for probate to the probate court of Pulaski County. Appellant, Wm. E. Steen, the proponent of the will, is named therein as executor. Appellees, claiming to be collateral heirs of said decedent, appeared to contest the will, and the contest was heard by the probate court on September 15, 1908, and judgment was rendered admitting the will to probate. No letters testamentary or of administration on the estate of said decedent had, up to that time, been issued; but in the judgment admitting the will to probate letters testamentary were granted to the appellant. Bond was duly executed in double the estimated value of the estate as required by statute, and letters were issued pursuant to the judgment of the court.
On October 6, 1908, the appellees filed in the probate court their affidavit for appeal to' the circuit court from the judgment admitting the will to probate and granting letters testamentary to appellant. The appeal was subsequently granted by the court, and a transcript .of the record in the contest proceedings was duly filed in the circuit court.
Mrs. Kate Chittim, one of the appellees, claimed under another will, and she filed a separate contest, and also took a separate appeal to the circuit court. On March 10, 1909, the appellees joined in a petition to the circuit court for a revocation of the letters testamentary issued to appellant, and for the appointment of some other person to administer the estate pending the contest. Appellant filed his response, resisting the prayer; but the circuit court granted the prayer of the petition, and ordered the appointment of the Union Trust Company as administrator of said estate pending the contest. From this order the proponent and executor took an appeal to this court, and now moves the court for an order of supersedeas, staying the judgment of the circuit court appointing an administrator.
Inasmuch as the question of appellant’s right to a supersedeas is necessarily decisive of the merits of the appeal, and practically ends this controversy, we have concluded to decide the whole controversy now as to the right to administer during the pendency of the contest over the will.
The statutes which bear on the point in controversy, being sections of the Revised Statutes of 1838, are as follows:
“Sec. 10. After the probate of any will, letters testamentary shall be granted to the person therein appointed executor, if qualified.”
“Sec. 13. If the validity of any will be contested, or the executor be a minor, or absent from the State, letters of administration shall be granted during the time of such contest, minority or absence to some other person, who shall take charge of the property and administer the same, according to law under the direction of the court, and account for, pay and deliver all moneys and property of the estate to the executor or regular administrator, when qualified to act.”
“Sec. 36. If any will be proved, and letters testamentary thereon granted, and such will be afterwards set aside, the letters testamentary shall be revoked, and letters of administration in succession granted.” (Secs, xo, 13 and 36, Kirby’s Digest.)
The first question presented is, whether or not the power to appoint a temporary administrator during the period of the contest of a will, if it exists throughout that period, follows the contest into the circuit court on appeal so as to give that court the right to exercise it; for, if it does, and the appointment is ancillary to the contest, like the appointment of a receiver pending litigation, then the order is not final but interlocutory, and cannot be appealed from. We hold that the power does not follow the contest proceedings, and that section 13 of the statute applies only to the administration proceedings in the probate court, like other provisions of the statute concerning the administration of decedent’s estates. In re Blair, 60 Hun, 523.
It was not intended by this 'statute to take from the probate court any part of its original jurisdiction over the estates of decedents, but all orders under this statute must originate in that court. An order of that court, either appointing or refusing to appoint an administrator under this section, may, however, be appealed from. Appellees did appeal from the order of the probate court granting letters testamentary to appellant, as well as the order admitting the will to probate; so the question was properly before the circuit court. And the order of the circuit court revoking appellant’s letters testamentary and appointing a temporary administrator was appealable.
This, then, brings us to the particular question decided by the circuit court, whether section 13 is mandatory and provides for the appointment of a temporary administrator at any time during the period of the contest of a will, or at any time after a contest arises, even after letters testamentary have already been issued to the executor named in the will.
A careful consideration of these sections of the statute in their relation to each other convinces us that they do not require the appointment of a temporary administrator to take the place of the executor during the period of the contest after the will has once been admitted to probate and letters testamentary have been issued to the executor. Any other view of the statute is based on a misconception of the purposes for which it was enacted. The design of the statute is not, as contended, to pro vide for the appointment of a disinterested person, instead of the executor, - to take charge of the estate during the pendency of the contest:' Nothing is said about the interest of the person to be appointed. ■ The sole design is to provide for a temporary administrator to take charge of and preserve the estate until the will can be admitted to probate and letters testamentary issued to the executor, if qualified. It is merely for the protection of the estate, and not to provide for - neutrality towards both contestants and the beneficiaries under the will. Under the statutes of this State, executors as well as administrators are required to act impartially toward all claimants of the estate. Executors are required to give bond in double the value of the estate for the faithful performance of their duties, even though the will of the decedent may direct otherwise. Bankhead v. Hubbard, 14 Ark. 298. They act under direction of the probate court, and are amenable to its orders at every stage of the administration. There-is no provision for the granting of letters testamentary until after the probate of the will. Section 10. Jackson v. Reeve, 44 Ark. 496. Therefore, it was necessary to provide some method for the preservation of the estate, and the due progress of administration thereof, during the delay of the contest and before the will can be admitted to probate. This is provided for in section 13 of the statute.
The pendency of a contest does not disqualify, even temporarily, the executor named in the will; but the delay in admitting the will to probate prevents his appointment by the court, and may render it necessary that'a temporary administrator be appointed. If the will be admitted to probate and letters testamentary granted, then there is no necessity for the appointment of a temporary administrator under section 13, even though the contest continue or is thereafter instituted. In that case the executor remains in charge of the estate under his bond until the contest finally results in setting aside the will, and then the letters testamentary are revoked. Section 36. The statute contains no express provisions for the revocation of letters testamentary, once granted, until after the will is set aside at the end of the contest, or unless the executor becomes a non-resident or “of unsound mind, or waste or mismanage the estate or act so as to endanger his co-executor.” Sections 14, 37.
If section 13 of the statute be construed to mean that a temporary administrator must be appointed to take the place of the executor to whom letters testamentary have been granted, then section 36 is meaningless; for, if the former section is mandatory in requiring such appointment, it is superfluous to provide for the revocation at the end of the contest of the letters of an executor who has already been displaced. In other words, if an executor must be removed during the pendency of a contest, it is unnecessary to provide for his remova] at the end of the contest. The fact that the provision with reference to the appointment of a temporary administrator in case of absence from the State or minority of the executor is placed in the same section with that having reference to the contest of the will makes the language a little obscure as applied to all three of these contingencies; but the fact that the section contains provision for all three of those emergencies renders it certain that it was intended to provide for a temporary appointment only when letters testamentary cannot be issued, i. e., before the will has been probated or when the executor is absent from the State or is a minor. If the will has been probated and letters testamentary issued, then the contingency provided for in section 13 is not present.
The views we express are supported by cases decided, by other courts in construing similar statutes.' The Kentucky statute provides that “during the contest about the probate of a will, or when the court for any valid cause shall be delayed in granting letters testamentary or administration, it may appoint a curator to collect and preserve the estate of the decedent until probate of the will be granted or until the cause for which the order was made shall be removed.” The Kentucky Court of Appeals, in Worthington v Worthington's Executors, 35 S. W. 113, speaking through Chief Justice Pryor, said: “This statute does not confer upon the county court the arbitrary power of disregarding the wishes of a testator, by appointing a curator, for the reason, alone, that the paper offered as the last will is being contested, when its probate has been granted, and no disqualification exists on the part of those named as executors.”
In Texas the following statute is in force: “Pending any contest relative to the probate of a will or granting of letters of administration, whether such contest be in the county court or in the district court, it shall be the duty of the county judge, should he deem it necessary, to appoint a temporary administrator, in the manner prescribed in the preceding articles in this chapter, with such limited powers as the circumstances of the case may require ; and such appointment may continue in force until the termination of the contest and the appointment of an executor or administrator with full powers.” The Supreme Court of Texas, in the case of Elwell v. Universalist Church, 63 Tex. 220, construing the above statute, held that “when a permanent administrator is appointed, he administers the estate pending any contest that may in future arise concerning the will, and the court has no right, in the event of such a contingency, to revoke the permanent letters and place the estate in the hands of a temporary administrator pending the contest.”
The Maryland statute on this subject reads as follows: “In all cases where the validity of a will is or shall be contested, letters of administration pending such contest may, at the discretion of the orphan’s court, be granted to the person named executor, or to the person to whom the largest portion of the real estate may be bequeathed in such contested will, or to the person who would be entitled to letters of administration by law, as in cases of intestacy.” . The Court of Appeals of Maryland, in Munnikhuysen v. Magraw, 35 Md. 280, speaking through Chief Justice Bartol, said: “That section applies to cases where the will has not been admitted to probate, or where letters testamentary have not been granted, or, if granted, have been revoked. Where the will has been admitted to probate, and letters testamentary actually granted, the executors have qualified, and their letters remain unrevoked, the Orphan’s Court have no power to appoint an administrator pendente lite. The effect of such an order would be to create the greatest confusion in the administration of the estate; for there would be different and opposing parties, both clothed with the powers of administration at the same time.”
The Missouri court in State v. Guinotte, 156 Mo. 513, held to the contrary view in construing a statute identical with our statute; but we cannot approve the conclusion reached by that court. In that case the will was admitted to probate in the probate court, and letters testamentary, without bond (which is authorized by the statute of that State), were issued to the execu trix. Subsequently suit was brought in the circuit court to contest the will. During the pendency of the contest the probate court appointed an administrator pendente lite, and ordered the executrix to turn over the estate to him, which was done. In the circuit court the will was admitted to probate, and the executrix applied to the probate court for reinstatement. Her application was granted, and the temporary administrator ordered to turn over the estate to her, notwithstanding an appeal was pending in the Supreme Court from the judgment of the circuit court admitting the will to probate. The Supreme Court held, on certiorari, that the tenure of the temporary administrator lasted throughout the contest, and that the order reinstating the executrix before the end of the contest was void. How far the views of the court may have been influenced in its construction of the statute by the fact that the executrix acted without bond, and that the statute authorized it, is not reflected by the opinion in the case. The presence of such a provision of the statute, authorizing an executor to act without bond, would doubtless be of some force in the construction of the other section providing for the appointment of the temporary administrator. We have no such provision in. the statutes of this State and, as before stated, all executors are required to give bond.
The circuit court erred in its judgment, and the same is reversed, and the petition of appellees for appointment of a temporary administrator is dismissed. | [
-74,
-20,
-8,
12,
10,
-32,
106,
26,
99,
113,
37,
83,
-85,
-34,
81,
45,
-21,
13,
113,
107,
-58,
-77,
23,
65,
-61,
-13,
-9,
-57,
-79,
-55,
-12,
87,
76,
32,
8,
-43,
-58,
2,
-59,
-112,
-116,
9,
-103,
-24,
-39,
-46,
52,
35,
82,
-119,
85,
-65,
-73,
43,
93,
-26,
104,
110,
-7,
-95,
73,
-72,
-101,
5,
125,
7,
-111,
6,
-104,
-119,
72,
47,
-104,
53,
-128,
-8,
49,
-74,
-122,
-44,
75,
41,
40,
118,
98,
10,
-32,
-17,
-72,
-88,
31,
46,
-99,
-90,
-110,
121,
-85,
113,
-76,
-99,
117,
80,
15,
-12,
-20,
20,
28,
108,
9,
-49,
-42,
-89,
3,
56,
-116,
11,
-29,
-103,
52,
81,
-51,
-62,
92,
103,
61,
-101,
-121,
-79
] |
Frauenthal, J.
The plaintiff, R. E. L. Wilson, instituted this suit against the defendant, the Chapman & Dewey Land Company, in the Mississippi Chancery Court, to recover the amounts of certain assessments made against the lands of the defendant for the construction of a public ditch or drain in a drainage district known as Tyronza Drainage Canal, and to enforce the lien thereon. The drainage district was established by the county court of Mississippi County under the provisions of sections 1203 to 1232 of Sandels & Hill’s Digest. The complaint alleged in detail each step taken in the formation and establishment of the drainage district, the ascertainment of the benefits to the various tracts of land located in the district, and the assessment made against each tract for the construction of the ditch. It also set out in detail the letting of the contract for the construction of the ditch and its completion. The defendant filed an answer, in which it set forth several grounds upon which it resisted the recovery and enforcement of the assessments. The chancery court rendered a decree in favor of the plaintiff for the amounts of the various assessments against the several tracts of land of defendant and subjecting the lands to salg_for the payment thereof. From this decree the defendant appeals to this court.
The defendant attacks the validity of the order of the county court establishing the drainage district'on the ground that the termini of the ditch were changed from the points as set out in the petition. Upon the filing of the petition the county court appointed viewers who proceeded in~ manner prescribed by the then law to make an accurate survey of the proposed ditch and to perform the duties required by section 1204 of Sandels & Hill’s Digest. The report of the viewers lengthened the ditch at its upper end, but maintained 'the route of the ditch as set out in the petition. It provided for excavations all along the route from said - beginning point to a point where the ditch emptied into what is known as Tyronza Bayou. This bayou extends for a distance of about three miles to where it empties into Tyronza River. And, while the route and extent of the ditch was described from the said beginning point on to Tyronza River, no excavations were reported by the viewers as necessary in said Tyronza Bayou. But these alterations did not change the route of the ditch, and the lands of the defendant, being located between the terminal points, were not affected by the changes. In the formation of drainage districts under the above sections of Sandels & Hill’s Digest, the original petition was not for the purpose of making a final location of the ditch. The viewers had a right to vary the same, and all proceedings were of an ex pm-te character until the report of the viewers was made and filed. It was then that the exact location of the ditch was fixed; and each tract of land affected thereby, either by way of benefit or damage, was set out in the report.
After the filing of such report thus definitely describing the termini and route of the ditch, notice was given to all persons interested in and affected by the location of the ditch of its pendency in the county court, and a time was fixed in the notice when such persons could appear in the said court and be heard. From any order or judgment made by the county court in the matter any person feeling himself aggrieved thereby could appeal to the circuit court, where he was given a trial de novo on the matters. S'o that the defendant had an opportunity to appear in court and be heard on these objections which he now presents. The county court had the jurisdiction of the matter of the construction of the ditch, and had the right and jurisdiction to adopt the termini recommended by the viewers which altered the terminal points of the proposed ditch. Cribbs v. Benedict, 64 Ark. 555; Driver v. Moore, 81 Ark. 80.
And, upon the confirmation of the report of the viewers by the court, the termini' and route of the ditch became conclusively fixed. And the places where and the extent of the work and excavations that should be done in the construction of the ditch became also determined by the order confirming the report of the viewers in these particulars, as well as the assessments of the benefits made against each tract. Stiewel v. Fencing District, 71 Ark. 17; Overstreet v. Levee District, 80 Ark. 462; Driver v. Moore, 81 Ark. 80; Hale v. Moore, 82 Ark. 75; Board of Improvement Dist. v. Offenhauser, 84 Ark. 257.
The Legislature provided that the drainage law should be “liberally construed to promote the drainage and reclamation of wet and overflowed lands; and amounts due contractors holding surveyor’s certificates of acceptance shall not be defeated by reason of any defect in the proceedings prior to the order of the county court establishing the ditch, but such order or judgment shall be conclusive that all prior proceedings were regular and according to law.” (Acts 1899, p. 321.)
The report of the viewers determined that the excavations in the ditch should only be made along its route to the point where it made a junction with Tyronza Bayou, and that it was not necessary to make any excavations in said bayou on to Tyronza River. The report in that respect was also confirmed by the court, and, being unappealed from, it became a final determination that the excavations that should be done should only be in that portion of the ditch that extended from its beginning point down to Tyronza Bayou; that it would be practicable to construct the ditch and drain the lands in the district by that extent of excavations. In the opinion of the viewers and the surveyor and engineer who assisted them Tyronza Bayou from the point where the ditch made junction with it to the Tyronza River was a natural stream sufficient in width and depth to carry all waters that would be emptied into it .to the river, without any excavations being made in said bayou. In the absence of fraud, that became conclusive.
After the confirmation of the viewers’ report the county clerk proceeded to the letting of the contract.- The defendant urges in this court that there is no proof that notice of the letting of the contract was given by the clerk. The complaint specifically and in detail sets out the notice that it alleges was given by the county clerk of the letting of the contract, naming the time and place of such letting and stating the manner in' which the notice was given. To these allegations the defendant made only a general denial in its answer. This court has often held that a general denial of the allegations of the complaint is not sufficient; and that, under the Code, every material allegation of the bill not specifically denied in the answer will be taken as true. Guynn v. McCauley, 32 Ark. 97, 105; McIlroy v. Buckner, 35 Ark. 555, 561.
The object of this rule is to advise the opposing party as to what he must establish by proof. Hecht v. Caughron, 46 Ark. 132.
The defendant did not in its answer deny specifically the material allegations of the complaint which' set out the giving of the notice by the clerk. But, in addition to this, this court has held that, after the work has been duly completed under-the contract, the failure to give such notice is only an irregularity, and it will not affect the validity of the contract. Stiewel v. Fencing District, 71 Ark. 17; Driver v. Moore, 81 Ark. 80.
It is urged that the plaintiff is not the proper party to bring this suit. It appears that at the letting of the contract the General Dredging & Construction Company was the lowest bidder on all the allotments of the ditch, and that the same was knocked off to that company, and that the clerk entered into a written contract with that company for the construction of the ditch. As provided by law, that company then executed a bond for the performance of the contract; and the plaintiff became surety on the bond. Thereafter, the General Dredging & Construction Company failed to carry out said contract, and the plaintiff took up and assumed the performance of the same. In this way the plaintiff assumed the position of the General Dredging & Construction Company and proceeded with the contract. As far as the defendant was concerned, it was as if the General Dredging & Construction Company had employed the plaintiff as its agent to perform the work and the requirements of the contract; and in effect it was that company going on with the contract. It is urged that, inasmuch as the contract was made with the General Dredging & Construction Company, and the certificates were issued in its name, that company should have instituted the suit, or should have been made a party to the suit. But it is alleged in the complaint that the contract and all interest therein were duly assigned to the plaintiff, and that he is the true owner of the certificates. In its answer the defendant itself alleged that the plaintiff “procured an assignment of said contract to himself.” The contract and these certificates could be transferred without a written assignment thereof. Heartman v. Franks, 36 Ark. 501; Lanigan v. North, 69 Ark. 62. The plaintiff, being the owner of the certificate, was the real party in interest, and under our Code he is the proper party to prosecute this suit. Kirby’s Digest, § 5999. But, if the defendant thought that the General Dredging & Construction Company had any interest in the subject-matter of this suit and desired that it be made a party, so that all interests in the subject-matter of the suit could be settled, it could have made a motion in the lower court, asking that that company be made a party. Kirby’s Digest, § 6011. It did not do so; and its contention in this regard, now made for the first time in this court, is not well taken.
It is contended that the plaintiff did not complete the construction of the ditch on or before the time named in the contract, and on this account he is not entitled to recover. It appears from the evidence that the contract provided that the ditch should be completed by January 1, 1904. Upon the expiration of the said time named in the contract the county court of Mississippi County made an order directing the county clerk to extend the time for the construction of the ditch from time to time not exceeding sixty days at any one time; and also in its order recited that the plaintiff was proceeding in good faith and as rapidly as possible with the construction of said ditch. The clerk made such extensions by indorsements on the contract every sixty days during the years of 1904 and 1905 until the completion of the ditch in December, 1905.
It is contended by the defendant that, by section 1219 of Sandels & Hill’s Digest, it is provided that, if the job is not completed within the time fixed in the contract, the clerk may for good cause give further time, but not exceeding sixty days, for the completion of the work; and that therefore time is of the essence of the contract; and, because the plaintiff did not complete the ditch within said time, the contract became forfeited, and he is, therefore, not entitled to recover anything herein.
It is true that parties may agree upon what shall be the effect of a non-compliance with any of the • stipulations of a contract; and so they may agree that the time of performance shall be of the essence of the contract. While -the nature of the subject-matter may be such as to require prompt performance at the time stipulated, yet it must "be so deemed and understood by both parties at the time of the execution of the contract, and ordinarily there should be an express provision making time of the essence of the contract before it will be so regarded. 2 Page, Contracts, § 1161.
In the case of Ahl v. Johnson, 20 How. 511, it is said that in equity the general rule may be said to be that time is not of the essence of the contract. And in Secombe v. Steele, 20 How. 94, it is said: “But it must affirmatively appear that the parties regarded time or place as an essential element in their agreement, or a court of equity will not so regard it. Dermott v. Jones, 23 How. 220; Brown v. Guarantee Trust Co., 128 U. S. 403.
The contract herein was entered into under and in pursuance of the sections of the statute above referred to, which at that time regulated -the construction of public ditches. But it is not provided in any of these sections of the statute in terms that time should be of the essence of such contract, and the contract itself in this case does not contain any such express stipulation. There is no provision of the statute which says that the contract shall be void or of no effect in event the work is not completed within the time named in the contract. The failure to complete the work within the time named might be ground for taking action to avoid the contract; but some affirmative act would have to be taken to so avoid it, if the contractor is still proceeding with the work in good faith and with reasonable dispatch. The statute provides that the contractor upon entering into the contract shall execute a bond obligating himself to pay any damage that might accrue by reason of a failure to complete the job within the time named in the contract. This provides a remedy and a relief to all persons damaged by reason of any failure to perform this stipulation of the contract! The right of the clerk to re-let the contract, without actually doing so, did not avoid the contract. The expiration of the time did not in itself work an avoidance of the contract.
In the case of Driver v. Moore, 81 Ark. 80, it is said: “Lastly, it is contended that the time for completion of the contract had expired by limitation before the construction of the work alloted to appellants’ land, and the contract became void. The expiration of the time did not avoid the contract. It only afforded grounds for avoiding the contract, but no steps to do this were taken. On the contrary, the clerk made an indorsement on the contract, by order of the county court, extending the time for the completion of the work.” In the opinion in that case it does not state the length of time for which the completion of the work was extended. But an examination of the record in that case shows that the time for the completion of the'work was extended for sixty days at a time for a period of two years. The period of each extension and the number of the extensions in the case at bar and in that case are about similar.
In this case there is no allegation, and no proof, that any damage accrued by reason of the failure to complete the ditch within the time named. The nature of the undertaking is such that it would not ordinarily be expected or contemplated that the completion of-the work within the prescribed time was absolutely essential; and, in the absence of such express provision or in tendment either in the statute or in the contract, we do not think that it can be considered that time is of such essence of the contract herein as to avoid it solely by the expiration of the time.
It is contended by the defendant that the work was not done in compliance with the terms of the contract. It is urged that the contract provided that certain openings should be made on each side of the ditch, and it is contended that this was not done. But there was sufficient evidence to sustain the finding of the chancellor that the work was done substantially in compliance with the requirements of the contract in this regard. In addition to this, the official whose duty it was to inspect the job and to find whether or not it was completed according to the contract testified that he made examination of the work and found that same was completed according to the specifications. It is also urged that no excavations were made in Tyronza Bayou. But under the contract this was not required. The contract was made in conformity with the report of the viewers, which report is by the specific terms of the contract made a part of it. The viewers reported that it was only necessary to make excavations in the ditch from the beginning point down to the junction of the ditch with the Tyronza Bayou, and they placed stakes at each 100 feet along the route of the ditch to that point, which became stake number 785, and was the last stake to which the excavation should be made. Upon the basis of that extent of work, the viewers computed the number of cubic yards of earth that would be required to be excavated; and it was upon that report and computation that the bid was made and the contract entered into. The officer whose duty it was to inspect the work and determine whether same had been performed according to the contract did inspect the same and did find that it was completed according to the contract, and did execute certificates of acceptance stating that the shares allotted to the lands of the defendant had been completed according to the specifications of the contract. The official who thus inspected and accepted the work was the official named by the law; and the persons who signed the certificates of acceptance were the officials specified in the provisions relating to the construction,of ditches.
The law required these officials to inspect the work, and made it their duty to make a finding whether or not the same had been completed according to the contract. Their decision should be as binding as the decision of parties who have been selected by individuals to finally decide questions as to manner of construction. Their decision should be sustained unless it can be shown that it was obtained by fraud, or that there was such gross mistake as would necessarily imply fraud. That has not been shown in this case. Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Ozan Lumber Co. v. Haynes, 68 Ark. 185; Kihlberg v. United States, 97 U. S. 398; Martinsburg & Potomac Ry. Co. v. March, 114 U. S. 549; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185; 2 Cooley on Taxation, p. 1280.
It is further urged that there is a variance between the description of the lands in the assessments and in the certificates. We have carefully examined into this, as well as the descriptions of the lands in the decree. We find that the following tract, W. S. E. section 33, township 12 N., range 9 E., is erroneously set out in the decree. The amount of the assessment of $124.37, which is declared a lien upon this tract and the tract described as E. of R. E. p2 of N. W. section 33, T. 12 N., R. 9 E., should be declared a lien only on the last-named tract, and the tract first above described should be stricken from the decree. The decree should be modified in that regard. We also find that the amount per cubic yard for excavation of earth is calculated and placed in the decree at upí. cents per cubic yard, and that this is correct. We also hold that under Sandels & Hill’s Digest, § 1232, as amended by the act of the General Assembly of Arkansas, approved May 8, 1899 (Acts 1899, page 320, § 3), the plaintiff was authorized to institute suit in the courts for the recovery of the assessments.
It therefore follows that the decree of the lower court will be modified by striking therefrom the following tract of land: W. pá of S. E. of section 33, township 12 N., range 9 E. And, so modified, the decree of the lower court is in all respects affirmed.
BatteE, J., dissenting. | [
-12,
-20,
-68,
-20,
-38,
-93,
24,
-90,
91,
42,
-27,
118,
-17,
-62,
8,
117,
-29,
-3,
-11,
107,
-25,
-94,
34,
38,
-14,
-77,
125,
71,
-4,
93,
-12,
-45,
76,
48,
-118,
85,
-58,
32,
-51,
90,
-58,
67,
-71,
101,
113,
-61,
48,
47,
18,
79,
117,
44,
-94,
45,
17,
-61,
105,
46,
-43,
41,
81,
-48,
-120,
-99,
91,
5,
32,
-61,
-104,
3,
-38,
58,
-112,
52,
16,
-8,
79,
-74,
-106,
85,
11,
-103,
-120,
34,
-25,
3,
108,
79,
-39,
-128,
22,
-33,
-120,
-89,
-63,
121,
67,
0,
-65,
-99,
84,
-36,
-57,
126,
110,
-123,
91,
104,
-89,
-113,
-108,
-95,
-83,
-88,
-127,
51,
-29,
11,
48,
117,
-49,
-78,
93,
77,
49,
-101,
-33,
-39
] |
McCueeoch, C. J.
Appellant, Sarah Craig, presented to •the county court of the Greenwood District of Sebastian County a claim for compensation for land used as a public road. The claim was disallowed by the county court, and she appealed to the circuit court, where a trial before the court resulted in an adverse judgment, and she appealed to this court.
The case was tried' on the following agreed statement of facts:
“In the year 19.... the county court of Sebastian County, Greenwood District, pursuant to the requirements of section ........ of Kirby’s Digest, established a public road over the lands of Sarah Craig by definite metes and bounds, thirty feet in width, which road ran along the bank of the Arkansas River, in some places perhaps running as close as ten feet to the bank, and in other places perhaps fifty feet from the bank — as close to the bank as was safe for travel. The road so laid out and defined was paid for by the county court according to the damages fixed by the viewers. From time to time after said road was open to travel, the land caved in along the river bank and destroyed the road in various places, and the travel was forced to go onto the lands of the defendant, and this route so traveled also caved in, so that the public travel again made a route over other lands of defendant adjacent to the bank. The travel is now upon the lands of the defendant and along the bank of the river, and the present route has been so traveled some three or four years, except where it has caved in, and the travel has been diverted upon other lands belonging to the petitioner. The cave-ins began during the second year after the road was open for travel. After the several breaks had occurred and the public travel had been diverted upon her land where the breaks had occurred, Sarah Craig filed in the county court of the Greenwood District of Sebastian County a petition setting out the number of acres so used for travel, and asking that she be paid for same by the Greenwood District. This petition was not acted upon, and each year thereafter she filed a like petition, none of which were acted upon.
“On the .... day of.......she filed the petition presented herewith, which recites all the different claims theretofore filed, in which petition she set forth the fact that the road had been destroyed by the river and other lands of hers taken by the public, and prayed (pursuant to section ........ of Kirby’s Digest) the appointment of viewers to view out another road, that the county (Greenwood District) pay her for the lands so taken and used, etc. Viewers were by the court appointed, and they filed their report stating that they had viewed the premises, and that the land was worth thirty-five ($35) dollars per acre. When the matter came up for hearing before the county court, upon the report of the viewers, it was held by the court, as a matter of law, that the county was not liable to the defendant for the said land, and defendant’s claim was not allowed, whereupon she took an appeal.
“It was further agreed that the land of Sarah Craig, over which the road heretofore referred to ran, is situated in Road District ........, and that they lie in Big Creek Township of Sebastian County, which township, under act of April 18, 1905, was made a separate road district. That the roads in the several townships or road districts are worked or maintained from funds derived from a three-mill road tax levied on the real and personal property in the particular road district in which the said property is located.
“It is further agreed that, after the road as originally laid out along the river bank had caved in, the subsequent routes traveled by the public were traveled without the consent of the county court, as far as any official- action was concerned, and with only such knowledge as was contained in Sarah Craig’s several petitions asking for pay for the land so used by the public, and that no assurance was ever given to the defendant by any one having a right to bind the county that the county would pay for such roads.
“It is further agreed that no appropriation has been made by the last annual levying court, or any other levying court of said county and district, for the purpose of paying for or establishing a new road on defendant’s land. That the evidence does not show whether or not any road overseer has worked the road now used by the public over defendant’s land, but that the public has continuously used this route since the road was established in 19...., though it is agreed that the county court never ordered the said road, as now traveled, worked, nor that it had ever needed any work.
“It is further agreed that by a vote of the last general election, September, 1906, the road tax was put into effect in the Greenwood District of Sebastian County, and the quorum court of said county levied a three-mill tax. That there are twenty-one (21) road districts in the Greenwood District of Sebastian County, each one of which has a road overseer, and each one of which is elected as other township officers are elected, and that the county court has no control over said overseer, and that the funds of each particular road district are separate from all others, and the county court or quorum court has no jurisdiction over same.
“And this was all the testimony introduced by either side.”
A public road may be established by judgment of the county court rendered in accordance with the statute or by voluntary dedication or by prescription. It is only when the road is established in the first mode that compensation can be demanded by the owner for land taken. The county cannot be made responsible for the value of land used as a public highway except after judgment of the county court establishing the road. There is no warrant in the statute for liability of the county to be incurred in any other manner, and in the absence of a statute no liability can be imposed. Granger v. Pulaski County, 26 Ark. 39; Arkansas County v. Freeman, 31 Ark. 266; Nevada County v. Dickey, 68 Ark. 160.
Appellant cites the following statute as justification for her claim: “When any county road may be injured or destroyed by the washing of any lake, river or creek, it shall be the duty of the overseer or overseers of the road district or districts in which such injury or destruction may occur to immediately notify the county court in writing of the nature and extent of such injury; and, if said court shall be satisfied that such road has been injured or destroyed to such an extent as to inconvenience the traveling public, the court shall appoint three viewers, who may, if in their judgment it is necessary, take with them a competent surveyor, and proceed to view and survey a new road upon such ground as will accommodate the traveling public. Such viewers shall determine the compensation to be allowed the owners of the property sought to be appropriated at its true value, and the damages occasioned by such new road, and shall make a report of their do'ings in -the manner pointed out in this act as the duties of viewers of new roads. Appeals may be taken from the appointment and orders of said court, and from the assessment allowed by the viewers as a jury to the owner or owners of property, in the manner provided by this act, within the time allowed by law, after the first regular term of the court thereafter held. The appointment of viewers and order of said court herein provided shall be recorded in the records of the court. The court shall be governed in the reception, approving and recording of said report of viewers in all respects as is prescribed in the case of new roads, except no notice of the destruction or injury to the road shajl be required, except as required by this section. All costs, damages and expenses arising under the provisions of this section shall be paid out of the county treasury.” Kirby’s Digest, § 3009.
But it is sufficient answer to the contention to say that the county court declined to establish a new route for the road over appellant’s land. The basis of her claim is, not that the county court established a road over her land and refused compensation, but that the public used her land for a roadway, and she demands compensation for the taking of it in that way. The public had no legal right to take and use her land for a roadway without her consent (except, perhaps, temporarily until the destruction of the road could become known to the traveling public), and such unauthorized use by the public cannot become the basis of a claim against the county for compensation. Appellant must seek some other remedy. The Constitution of the State wisely leaves it to the county court to determine when and where public roads shall be established and, when once established, what alterations thereof shall be made. Expense of care of public highways cannot be forced upon a county, nor can compensation for land taken for such purposes be demanded of a county without the concurring judgment of the county court es tablishing the road. Road Improvement Dist. v. Glover, 89 Ark. 513.
Affirmed.
Hart, J., dissenting. | [
-12,
-22,
-48,
-20,
-22,
96,
42,
-118,
64,
-93,
-11,
83,
-85,
-64,
16,
35,
-93,
-19,
101,
122,
-26,
-74,
19,
35,
-78,
-77,
-93,
79,
-78,
-51,
-12,
84,
78,
48,
-54,
85,
68,
72,
-49,
-100,
94,
-126,
-69,
105,
81,
10,
60,
43,
2,
15,
117,
63,
-73,
42,
93,
71,
-83,
46,
77,
45,
91,
-16,
-102,
23,
48,
21,
-127,
100,
-101,
3,
-54,
56,
-104,
53,
8,
-72,
119,
38,
-122,
-44,
79,
-101,
8,
48,
102,
1,
-28,
-49,
37,
-88,
34,
-10,
61,
-90,
-14,
41,
75,
73,
-65,
-107,
92,
-108,
78,
122,
-20,
-59,
89,
108,
37,
-33,
-46,
-95,
13,
-76,
-116,
7,
-25,
11,
48,
81,
-49,
-14,
77,
-57,
48,
-101,
-98,
-14
] |
McCurroci-i, C. J.
This is a suit in equity instituted by appellees, Stark Brothers, against G. O. Ward and his wife, N. G. Ward, to obtain foreclosure of two certain instruments of writing, alleged to be mortgages on the same tract of land, which constituted the homstead of G. O. Ward. J. A. Gill, a subsequent purchaser of the land from Ward, was made a defendant in the suit, and he also appeals from the decree of foreclosure.
The first instrument executed is as follows:
“This indenture, made and entered into on this 14th day of October, A. D. 1901, by and between G. O. Ward, of Finch, Ark. (residence 10 miles S. W.), county of Greene, State of Arkansas, party of the first part, and Stark Brothers, of Louisiana, county of Pike, State of Missouri, parties of the second part, witnesseth, that the said party of the first part, in consideration of the parties of the second part selling and shipping to him in the fall of 1901 to Paragould, Ark., railroad charges prepaid, thirteen hundred (1300) fruit trees, binds himself and his heirs and assigns to carefully plant and care for said trees on his farm containing eighty acres, situated in Greene County, State of Arkansas, and more particularly described as follows, to-wit:
“W. Yz. N. W. Y of section 14, township 16 N., range 4 east, boundaries (here gives names of adjoining owners) A. Fletcher on N., Bob Treece on E., on south Elen Edwards, on W., W. J. Hyde, and pay to the order of said second parties, their heirs and assigns, as per first party’s four promissory notes to be executed by said first party to said second parties when the aforesaid trees are shipped, two hundred and seventy dollars ($270) due and payable as follows: all deferred payments and interest hereinafter particularly specified to date from the first date Nov. 1, icjoi .... one-fifth cash on receipt of trees, one-fifth (1-5) in one year, one-fifth (1-5) in two years, one-fifth (1-5) in three years, one-fifth (1-5) in four years, with interest at the rate of six per cent, per annum; and if the interest be not paid annually, the same is to become principal and bear the same rate of interest; to the payment of which sums as the same shall become due the party of the first part binds himself, his heirs, assigns and grantees of and to the aforesaid described lands; the right being reserved to the said party of the first part to pay the full amount remaining unpaid and not yet due, together with accrued interest, at any time he may elect.
“Said first party, for the purpose of obtaining the aforesaid trees, waives all exemptions, and states that the above described real estate is free and clear of all incumbrances, and that he claims the same with a perfect title. And it is also understood and agreed by the parties hereto concerned that this agreement is and shall be a lien upon said farm upon which the trees are planted until the said party of the second part shall receive of the said party of the first part the compensation herein above specified.
“In witness whereof, we have hereunto set our hands and seals this day and year first -above written.
“G. O. Ward.
“N. G. x Ward.
Witnessed by
“State of Arkansas,
“County of Greene.
“Be it remembered that on this day came before me, a justice of the peace duly commissioned and acting, G. O. Ward and N. G. Ward, his wife, to me well known as grantors in the foregoing instrument of writing, and stated that they had executed the same for the consideration and purposes therein mentioned and set forth. In witness whereof I have hereunto set my hand and affixed my official seal at my office in Paragould, the day and year above written.
“Jeff Bratton, J. P.”
This instrument was duly filed for record and recorded, and notes were subsequently executed to cover the debt therein described. The second instrument is regular in form as a mortgage, and was duly executed and acknowledged by G. O. Ward. His wife N. G. Ward joined her husband in the granting clause of the deed, and also expressly relinquished dower and homestead. The certificate of her acknowledgment is as follows: “State of Arkansas,
"County of Greene.
“Be it remembered, that on this day came before me, the undersigned, a justice of the peace within and for the county aforesaid duly commissioned and acting, voluntarily appeared before me the said N. G. Ward, wife of the said G. O. Ward, to me well known, and in the absence of her said husband declared that she had of her own free will signed and sealed the relinquishment of dower and homestead in the foregoing deed for the consideration and purposes therein contained and set forth, without compulsion or undue influence of her said husband.
“Witness.my hand and seal as such justice of the peace on the 10th day of August, 1904.
“S. W. Atchinson, J. P.”
It is contended that the wife’s acknowledgment to this mortgage was an insufficient compliance with the provisions of the statutes (Kirby’s Digest, § 3901) concerning conveyances of a homestead. This objection may, however, be disposed of by reference to the recent case of Gantt v. Hildreth, 90 Ark. 113, which is precisely in point and decisive of this case.
Questions arising on the other branch of this case, involving the first instrument, are, however, more serious. Was it sufficient to constitute an equitable mortgage on the land described? The only language purptirting to create a lien is as follows: “It is also understood and agreed by the parties hereto concerned that this agreement is and shall be a lien upon said farm upon which the trees are planted until the said party of the second part shall receive of the said party of the first part the compensation herein above specified.” This language in the instrument unmistakably manifested the intention of the parties that a lien should be thereby created on the land, and equity will give effect to this intention by enforcing the lien. Mitchell v. Wade, 39 Ark. 377; Bell v. Pelt, 51 Ark. 433; Williams v. Cunningham, 52 Ark. 439; Martin v. Schichtl, 60 Ark. 595; Flagg v. Mann, 2 Sumn. 486; Pinch v. Anthony, 8 Allen 536; Stark v. Anderson (Mo. App.) 78 S. W. 340; Martin v. Nixon, 92 Mo. 26.
“Equity requires no particular words to be used in creating a lien. It looks through the form to the substance of an agreement ; and if, from the instrument evidencing the agreement, the intent appear to give, or to charge, or to pledge, property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows.” Martin v. Schichtl, supra. Mr. Pomeroy stated the rule in substantially the same language. 3 Pom. Eq. Jur., § 1237.
It is also contended that the instrument now under consideration was not executed in compliance with the homestead statute, and therefore was insufficient to create a lien. The wife’s name does not appear in the body of the instrument, but she signed it and acknowledged its execution. It contains no relinquishment of dower, and the wife’s execution of it is referable only to an intention to consent to the creation of the lien and to join in the act creating it. In no otjier way can any effect be given to her signature. Sledge & Norfleet Company v. Craig, 87 Ark. 371.
Any defect in the acknowledgment of the deed was cured by the two statutes enacted on March 20, 1903. Kirby’s Digest, §■ § 783, 786. ■
Appellants introduced testimony tending to establish the fact that Mrs. Ward did not sign the deed or acknowledge its execution; that her name was signed without authority; and that she did not appear before the officer who certified the acknowledgment. The testimony on this point was conflicting, and the preponderance is not against the chancellor’s findings.
Mrs. Ward signed by mark, and the person who signed her name did not attest the signature as provided by statute. Kirby’s Digest, § 7799. The method provided by statute for attesting the signature of .a person who cannot write is not exclusive, but only establishes prima facie the genuineness of the signature without other proof of signing. Ex parte Miller, 49 Ark. 18. Where a person whose name is signed in this way appears before an officer and acknowledges the execution of the instrument, but the statutory requirement relating to signature by mark is not observed, the validity of the instrument is not affected. An unauthorized signature is ratified by the person appearing before an officer and acknowledging the execution of the instrument. Goodman v. Pareira, 70 Ark. 49.
There is a defect in the record as to the description of the property on which the lien is created; but the original instrument in writing which was introduced disclosed the fact that there is no defect. The error was that of the recording officer, and the lienor is not responsible therefor. Oats v. Walls, 28 Ark. 244; Turman v. Bell, 54 Ark. 273.
Decree affirmed. | [
112,
103,
-8,
-116,
-118,
-16,
26,
26,
94,
-85,
37,
87,
-7,
100,
81,
109,
-29,
-19,
101,
121,
116,
-74,
20,
66,
82,
-13,
-125,
-51,
53,
79,
-92,
-41,
72,
48,
-118,
-43,
-58,
-32,
-53,
28,
-50,
69,
-21,
101,
-44,
80,
48,
-65,
80,
74,
117,
31,
-13,
45,
21,
-21,
108,
108,
-51,
9,
-79,
-72,
-71,
69,
127,
23,
1,
71,
-112,
1,
74,
78,
-112,
53,
0,
-24,
90,
54,
-122,
92,
13,
24,
12,
54,
102,
80,
-80,
-17,
-120,
-104,
36,
-42,
-115,
-105,
-32,
121,
2,
40,
-74,
-107,
124,
80,
-106,
-10,
100,
-115,
24,
104,
-127,
-118,
-44,
-77,
21,
-8,
-100,
3,
-21,
-117,
48,
97,
-49,
-30,
93,
71,
123,
-101,
-114,
-9
] |
Battre, J.
This case originated in the probate court of Marion County. It is founded on the note and affidavit as follows, to-wit:
“$9.60. “January 5, 1905.
“Ninety (90) days after date I promise to pay to the order of the Orene Parker Company nine and 60/00 ($9.60) dollars. For value received, negotiable and payable without defalcation or discount and with interest from maturity at the rate of 10 per cent, per annum, and, if interest be riot paid annually, to become as principal, and bear the same rate of interest.
“No........... Due.......... K. J. Hudson.
“State of Arkansas,
“County of Marion,
\ j
ss
“John H. Woods being sworn, states that he is one of the attorneys in this case, for the claimant, the Orene Parker Company, who are non-residents of this State, and are absent from the county; that he has made diligent inquiry, and is acquainted with the facts of this claim, and that he verily believes that nothing has been paid or delivered towards the satisfaction thereof, and that the sum claimed, $9.92, is justly due from the estate of K. J. Hudson, deceased, to said claimants.
“John H. Woods.
“Subscribed and sworn to before me this August 7, 1905.
“J ,W. Smith, Clerk.”
“The administrator declined to allow the claim, whereupon the administrator was duly served with notice that the demand would be presented to the probate court for allowance. On presentation of the claim in the probate court for allowance the defendant filed an answer in substance as follows: (1) That neither the defendant nor the estate of Pludson is indebted to the Oren-e Parker Company, ór liable for said demand. (2) That the claim- is unjust in that it is founded upon an illegal consideration. (3) That said contract was procured in violation of ■section 5133 of Kirby’s Digest, and is void. (4, 5 and 6) That said debt, being for liquors' sold in prohibition territory, is void, etc.
“On the trial in the probate court the claim was allowed. The administrator appealed from the judgment of the circuit court. In the circuit court the administrator filed a motion to dismiss the action in substance as follows: That said demand is not properly verified, the plaintiff being a corporation, and the claim is not verified by the cashier or treasurer as the laws require, and should on that account be dismissed and not allowed. Prayer for dismissal, etc. The court sustained the motion and dismissed the action, to which ruling of the court the appellant at the time excepted and caused the same to be noted of record and prayed an appeal to .the Supreme Court, which appeal was by the court granted.”
The only question in this case is, is an attorney of a corporation authorized by the laws of this State to make the affidavit necessary to authenticate its claim against the estate of a deceased person?
1 Sections 87 and 88, c. 4, of the Digest of the Laws of Arkansas, of 1838, are as follows:
Sec. 87. “Before any executor or administrator shall pay or allow any debt demanded as due from the deceased, founded on any judgment, decree, bond, note, bill or account, the person claiming such debt shall make an affidavit 'that nothing has been paid or delivered toward the satisfaction of such debt, except what is mentioned or credited, and that the sum demanded is justly due.’ ”
Sec. 88. “In case of a debt due a corporation, the cashier or treasurer shall make the affidavit required by the preceding section.”
Under the law as it then was, no one but the claimant could make the affidavit required to establish such a claim. It could not be -made by an agent or an attorney. Beirne v. Imboden, 14 Ark. 237; Marshall v. Green, 24 Ark. 410; Saunders v. Rudd, 21 Ark. 519.
Section two of an act entitled “An act to prescribe the mode of proving certain accounts, and for other purposes,” approved March 5, 1867 (Acts 1866-7, p. 210), was thereafter enacted as follows: “That the affidavit required in sec. 102, chapter 4, Gould’s Digest, to authenticate demands exhibited for allowance against the estate of deceased persons may be made by any person, other than the claimant, who may be acquainted with the facts sworn to, and who is otherwise competent to give evidence in a court of justice; and such affidavit shall have the same force and effect as if made by the claimant.”
The affidavit referred to in this section is the affidavit mentioned in section 87 of the Revised Statutes.
The act entitled “An act to amend sections 102 and 103 of Gould’s Digest of the Statutes of Arkansas,” approved March 13, 1867, provides as follows: “That sections 102 and 103 of chapter 4 of the Digest of the Statutes of Arkansas be, and the same are, hereby amended so as to allow an agent or attorney, who may be cognizant of the facts, to authenticate the claims of their principals against estate [s] of deceased persons, by making affidavits that he has made diligent inquiry and examination, and that he does verily believe that nothing has been paid or delivered toward the satisfaction of the demand, except the amount credited, and that the sum demanded is justly due.” (Act 1866-7, p. 318.)
The effect of this act is to allow and authorize the agents or attorneys of all persons, including corporations, to authenticate-the claims of their principals against the estate of deceased persons. But appellee cites Lanigan v. North, 69 Ark. 68, to the contrary. A careful reading of the opinion in that case will show that it was not held in that opinion that agents or attorneys of corporations or persons could not lawfully authenticate the claims of their principals by complying with the acts of 1867.
The claim of appellant was properly authenticated, and should have been allowed.
Reversed and remanded with directions to the court to allow the claim. | [
82,
111,
-80,
28,
-72,
96,
56,
2,
90,
-47,
53,
83,
-19,
98,
0,
107,
-26,
125,
-15,
120,
-91,
-77,
59,
96,
82,
-77,
-7,
-43,
-79,
-55,
-28,
-43,
76,
48,
-22,
-35,
-61,
-62,
-59,
-36,
-114,
8,
9,
108,
-39,
-64,
48,
105,
51,
75,
97,
-66,
-5,
42,
16,
75,
77,
62,
-3,
59,
80,
-80,
-70,
85,
109,
22,
-127,
-121,
-104,
1,
72,
44,
-112,
53,
10,
-24,
115,
54,
70,
116,
1,
-71,
12,
102,
98,
35,
-83,
-17,
-88,
-98,
47,
-10,
-103,
-121,
-78,
88,
43,
73,
-68,
-100,
60,
17,
-121,
-4,
-79,
-107,
29,
104,
1,
-50,
-10,
-80,
-113,
-84,
-100,
3,
-17,
35,
53,
97,
-59,
-22,
85,
103,
60,
27,
-113,
-71
] |
Frauenthar, J.
The appellants, who were the plaintiffs below, instituted an ejectment suit against the defendant, A. P. Sisk, which was subsequently transferred without objection to the chancery court. The plaintiffs claim title to the land as collateral heirs of one George McCracken, deceased; and the defendant claimed title thereto under a deed executed by the State Eand Commissioner to Celia Sisk, who was the widow of said George McCracken, and a conveyance by Celia Sisk to defendant. On February 24, 1888, an application was made to the Commissioner of State Rands for the donation of the land by George McCracken; and, after receiving a certificate of donation therefor, he, with his wife, Celia McCracken, established his residence thereon and remained in possession thereof until his death, which occurred in October, 1889. He died without issue, and without father living, and left surviving him his widow, the said Celia McCracken, and his mother, Jane McCracken. The said 'Celia McCracken afterwards married defendant, A. P. Sisk. On June 6, 1891, having completed the necessary improvement and period of residence on said land and being the widow of said George McCracken, she submitted final proof under the donation laws of the State and received a deed from the State for the land. The deed was executed to Celia Sisk, widow of George McCracken. In 1899, •the said Celia Sisk conveyed the land to defendant, and she died in 1900. In October, 1905, the mother of George McCracken died leaving the plaintiffs as her only heirs-at-law. The chancellor rendered a decree in favor of the defendant, and •the plaintiffs prosecuted this appeal from that decree.
The question thus presented for determination is whether a donee under the donation laws of Arkansas has an inheritable interest in the land before he has completed the term of residence and other conditions required by the statute to entitle him to make final proof; or whether the right to the land under the donation law goes by designation of person in the statute, upon the death of the donee. Section 4832 of Kirby’s Digest provides: “In case the donee should die before the expiration of the time herein required to submit final proof of the right to pertect, the same shall exténcl, first, to the widow of the donee, and, if she be dead, then to the children of such donee, and, should they be minors, their duly appointed guardian or administrator of the estate of the deceased donee may make such final proof for the benefit of such minor heirs, and, should there be neither widow nor children surviving such donee, such right shall in such case descend to the father of the donee, and, if he be dead, then to the mother of such donee; and, if she be dead, then to the brothers and sisters of the deceased donee, any adult of which shall be competent to make such final proof, and in the event of the death of the donee it shall not be necessary that residence on the land shall be maintained thereafter, but the cultivation of the land must be continu|ously maintained, and no donation shall be liable for any debt contracted by the donee prior to the execution of the deed therefor, nor shall any alienation of the same be binding against the title of the State.”
By section 4815 of Kirby’s Digest it is provided that the “donee shall actually reside upon the land for a period of three years,” and shall make certain improvements before he will be entitled to make final proof and to receive a deed to the land. So that in this case the donee died before the expiration of the time required to submit final proof.
The exact nature of the right which the donee has in the land when he dies prior to the performance by him of the requirements of the statute has never been directly announced by this court. But this court has uniformly held that no title can be acquired under the donation laws of the State until all the requirements of the statute have been fulfilled. In the case of McCauley v. Six, 40 Ark. 244, it is said: “It has been several times held by this court that these donations are matters of grace. The donee is not required to pay any taxes for which the land was forfeited, and he must comply with all the statutory conditions of -the grant, without any regard to their policy or necessity.” Surginer v. Paddock, 31 Ark. 528; Simpson v. Robinson, 37 Ark. 142.
The donee under the statute cannot alienate or in any way dispose of the land, and no greater right is given him by any express term cf the statute than that of possession.
The provisions of the homestead law of the United States designating the persons who have the right to complete the requirements of the statute and to receive patent after the death of the homestead settler and prior to the expiration of the term required to entitle him to make final proof are in many respects similar to the above provision of our donation law in that particular.
Section 2291 of the Revised Statutes of the United States provides: “No certificate, however, shall be given or patent issued therefor until the expiration of five years from the date of such entry; and if at the expiration of such time, or any time within two years thereafter, the person making such entry; or, if he be dead, his widow; or, in case of her death, his heirs or devisees, * * * proves by two credible witnesses that he, she or they have resided upon or cultivated the same, * * * then in such case he, she or they ***** shall be entitled to a patent as in other cases privided by law.”
And section 2296 of the Revised Statutes of the United States provides: “No land acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt - contracted prior to the issuing of the patent therefor.”
In construing these provisions of the homestead law the Federal courts have held that a homestead settler has no devisable interest in the land until he has completed the term of residence required to entitle him to make final proof. And upon his death the right to complete such term and receive the patent passes to his widow.
In case of McCune v. Essig, 122 Fed. Rep. 588, the court' said: “The estate granted to a homestead settler is granted on conditions precedent. These conditions are residence for the required time, cultivation and required proof. Until all of these conditions are complied with, the law gives him no more than the right to possession. It provides that, in case of his death before the completion of the conditions, his widow should have all the rights which he would have had. His right is extinguished by his death, and she, in virtue of the fact that she is his widow, is designated as .the donee of the land. The statute provides for the rights of the children only in case of death of both father and mother before final proof.”
This case was affirmed by the Supreme Court of the United States in McCune v. Essig, 199 U. S. 382.
In the case of Hale v. Russell, 101 U. S. 503, the court, in construing a donation act making a grant to the donee much stronger than our statute, said: “Until the settler was qualified to take, there was no actual grant of the land; and if such settler should die after residence thereon of less than the required period prescribed by the statute, he had no devisable interest therein.”
In the case of Bernier v. Bernier, 72 Mich. 43, that court, in construing the above statute of the United States, said that it “does not treat the land as heritable, but makes the estate go by designation of person.” That case was carried by appeal to the Supreme Court of the United States, and was affirmed in this particular. Bernier v. Bernier, 147 U. S. 246.
In the case of Perry v. Ashby, 5 Neb. 291, that court, in construing this provision of the homestead law, held that the widow, by completing the period of residence, “was entitled to patent in her own right to the exclusion of the heirs of the settler.” "'
In the case of Gjerstadengen v. Van Duzen, 7 N. Dak. 612, it is said: “Before a homesteader has earned a right to a patent he has no such interest in the land as will make it a part of his estate on his death. The patent thereafter issued to the persons specified in the Federal statute is issued to them, not as the heirs of the decedent who have* inherited his title, but as original parties preferred by the statute.” Chapman v. Price, 32 Kan. 446; Jarvis v. Hoffman, 43 Cal. 314.
There is a great analogy betweep thé; above provision of our donation law and the homestead law of the United States. The construction placed upon the above provisión of the homestead law by the above decisions seems to us sound and reasonable; and we are of the opinion that the same construction should be given to the above provisions of our statute. The State has determined who shall be the beneficiary of its bounty under the donation laws. It has first named a qualified donee; and, after his death and before the requirements of the statute have been fulfilled, it then has named his widow as the person entitled to complete the requirements- and to receive the title; not by any law of descent, but as an original party in her own right.
In the case at hand the donee, died before the expiration of the time required by the statute to submit final proof of the right to a perfect donation. In that event the right to perfect the donation and submit final proof thereof was by the statute extended to the widow in her own right as an original donee, and to the exclusion of all children, if there had been any, and to the exclusion of all other persons. Upon making the final proof the widow was entitled to and did receive a deed to the land from the State in her own right and as her individual property, and which she could thereafter alienate as her separate estate.
It follows that the decree of the lower court is correct, and it is in all things affirmed. | [
-16,
105,
-104,
126,
56,
-32,
42,
-104,
83,
-81,
-32,
83,
123,
80,
21,
61,
99,
45,
81,
104,
-25,
-74,
15,
64,
82,
-77,
57,
-57,
-16,
72,
118,
-57,
73,
34,
66,
85,
-58,
-94,
-51,
24,
-50,
68,
-119,
73,
91,
-128,
52,
101,
80,
-49,
97,
-82,
-77,
-85,
117,
71,
44,
46,
-51,
-82,
64,
-86,
-117,
-123,
-1,
23,
-127,
39,
-78,
3,
74,
42,
-102,
53,
8,
-24,
83,
38,
-122,
-12,
75,
-103,
40,
102,
-30,
49,
37,
-1,
-72,
-120,
14,
118,
-83,
-90,
-92,
73,
11,
73,
-66,
21,
103,
-108,
6,
114,
-20,
-59,
92,
40,
5,
-113,
-42,
-91,
6,
120,
-116,
3,
-29,
-121,
48,
113,
-53,
102,
92,
71,
56,
-101,
14,
-46
] |
David Newbern, Justice.
We must dismiss this appeal because not all of the claims against all of the parties have been resolved, and there has been no certification pursuant to Ark. R. Civ. P. 54(b) that there is no need for delay in deciding the case with respect to the parties now before us.
The appellant, Sharon Barr, sued Brotherhood Mutual Insurance Company, Inc., the insurer of Harlan Park Baptist Church, and the former pastor of the Church, Jim Richardson, for negligence. The negligence asserted was the failure of the Church with respect to its duty to provide safe, ethical, and competent counseling for a congregant. Ms. Barr alleged her daughter, while a member of the congregation of the Church, entered into a counseling relationship with Richardson which developed into a sexual liaison and resulting pregnancy.
Summary judgment was awarded the insurance company on the ground that its limited liability policy covering the church did not cover the negligence alleged. Nothing presented to us shows the claims against Richardson to have been resolved.
When multiple parties are involved, Ark. R. Civ. P. 54(b) permits a trial court to enter a judgment which is final “upon an express determination, supported by specific factual findings, that there is no just reason for delay.”
The failure to comply with Rule 54(b) presents a jurisdictional issue which we will raise on our own, and absent compliance, we dismiss the appeal for lack of a final order. State Farm Mut. Auto. Ins. Co. v. Thomas, 312 Ark. 429, 850 S.W.2d 4 (1993); Pardon v. Southern Farm Bur. Cas. Ins. Co., 312 Ark. 198, 848 S.W.2d 412 (1993).
Appeal dismissed. | [
-80,
124,
-12,
-84,
8,
-32,
34,
94,
87,
-86,
101,
83,
-19,
-30,
-75,
107,
-6,
57,
65,
105,
-46,
-77,
87,
96,
118,
-77,
-13,
-123,
-80,
91,
-12,
124,
76,
42,
-118,
-43,
70,
74,
-55,
-104,
6,
4,
-104,
109,
-39,
-53,
48,
-5,
22,
79,
21,
-98,
-93,
43,
56,
67,
105,
40,
-5,
60,
-56,
-16,
-118,
5,
111,
4,
51,
36,
-72,
35,
-8,
62,
-112,
-79,
42,
-8,
112,
-90,
-86,
100,
111,
9,
-120,
102,
99,
-112,
29,
-19,
72,
-104,
30,
62,
31,
-122,
-126,
41,
105,
13,
-73,
29,
97,
20,
-122,
124,
-4,
12,
28,
100,
1,
-50,
-46,
-79,
-81,
-16,
28,
-125,
-18,
-123,
32,
117,
-51,
-26,
92,
87,
118,
95,
30,
-72
] |
Donald L. Corbin, Justice.
Appellant, Freddie Lee Robinson, was charged by felony information with committing the first degree murder of Tony Harper and the second degree battery of Anthony Brown. An Independence County jury convicted appellant of second degree murder and second degree battery. The trial court entered an order sentencing appellant as an habitual offender to serve concurrent terms of 40 years and 15 years at the Arkansas Department of Correction. For reversal of the judgment, appellant asserts two points of error. We find no merit and affirm.
Appellant first contends the trial court abused its discretion in granting the state’s motion in limine to exclude evidence of altercations with persons other than the victims. Appellant proffered evidence showing he had been beaten on two previous occasions in Independence County by persons other than the victims in the current case; that he suffered serious bodily injuries on both occasions; that after one of the altercations, appellant suffered a head injury causing him to be hospitalized locally for two hours and then transported by helicopter to a trauma treatment center in Memphis; that both altercations were reported to law enforcement officers and the prosecuting attorney; that no further investigations were made and no charges were filed as a result of the two altercations.
Appellant’s defense to the crimes charged was justification. He argues these prior altercations with others would be relevant to show his state of mind — the need to defend his life — during the incident giving rise to this case. The trial court stated the facts surrounding the two altercations were probative of appellant’s subjective fear. However, the two altercations were separate from the one being tried and thus the trial court ruled the probative value was outweighed by the unfair prejudice of misleading and confusing the jury. The trial court therefore excluded all evidence, from sources other than appellant, relating to the two prior altercations.
Appellant claims the trial court’s ruling was an abuse of discretion for three reasons. First, he argues the ruling is inconsistent because it allows one witness (himself) to testify as to the two altercations, but prevents other witnesses (the proffered witnesses, including two law enforcement officers and an emergency room physician) from testifying to the same two events. Second, he argues the ruling violates his constitutional rights by forcing him to testify against himself in order to present his defense. Third, he argues the ruling violated his constitutional rights further because it prevented him from calling witnesses on his own behalf.
We do not address the constitutional arguments because the record before us does not indicate they were presented to the trial court. The denial of any right, even a constitutional one, must be objected to at trial to be preserved for appeal. Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). Constitutional objections and fundamental constitutional rights can be waived if not adequately preserved for appeal. Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Ark. R. Evid. 403. As with other evidentiary determinations, the balancing of probative value against prejudice is a matter left to the trial court’s sound discretion, and its decision on such a matter will not be reversed absent abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Appellant took the stand and testified that the unrelated altercations caused him to fear for his safety in the instant case and that he acted in self defense. A defendant may put on evidence of specific prior acts of a victim to demonstrate that the victim was the aggressor. Smith v. State, 273 Ark. 47, 616 S.W.2d 14 (1981). As the challenged evidence did not concern the victims, we cannot say the trial court abused its discretion in excluding the proffered evidence.
Finally, appellant claims he was erroneously sentenced under the habitual offender statute. Appellant reasons that the records of three of the six prior convictions did not reflect he was represented by counsel at the time of pleas to the offenses. This court has held that a record of a prior conviction may be used for enhanced sentencing purposes if the record of such conviction shows on its face that the accused was represented by counsel at the time of the plea. Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980).
Appellant did not abstract the judgments of the prior convictions nor any other record of them. Although he did abstract the trial court’s ruling on each conviction, we have no abstract of the actual convictions from which to review the accuracy of the trial court’s rulings. We have said many times, in cases not involving the death penalty or life in prison, we will confine our review to the record which has been abstracted in the briefs of the parties. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). We do not depart from this long standing rule of the court.
The judgment of conviction is affirmed. | [
48,
-18,
-8,
94,
9,
33,
24,
-76,
83,
-93,
-10,
115,
47,
-39,
69,
105,
-13,
95,
85,
97,
-42,
-73,
23,
65,
-14,
-77,
81,
85,
-77,
79,
-28,
-68,
78,
112,
-50,
85,
102,
74,
-25,
-46,
-118,
-104,
-87,
96,
-46,
64,
100,
46,
80,
7,
49,
-114,
-70,
42,
18,
-53,
105,
44,
75,
55,
80,
27,
-52,
13,
73,
16,
-77,
-90,
-101,
7,
-6,
60,
-40,
49,
0,
-8,
115,
-74,
-126,
84,
111,
-104,
44,
32,
98,
-112,
-115,
-49,
-88,
-119,
47,
126,
-99,
-89,
-104,
105,
75,
13,
-105,
-35,
123,
116,
14,
-2,
117,
12,
80,
44,
37,
-49,
-112,
-93,
-87,
104,
-106,
-6,
-29,
39,
16,
113,
-52,
-30,
85,
7,
113,
-37,
-97,
-108
] |
Donald L. Corbin, Justice.
Appellant, Richard Smith, appeals a judgment of the Pulaski Circuit Court awarding him damages of $19,195.31. He filed a complaint against appellee, Walt Bennett Ford, Incorporated (WBF), and against separate defendants Ford Motor Credit Company and Junior C. Landis for odometer fraud pursuant to Subchapter IV of the Motor Vehicle Information and Savings Act, 15 U.S.C. §§ 1981-1991 (1988 & Supp. IV 1992) (hereinafter “Federal Odometer Fraud Act” or “the Act”) and for common law fraud or misrepresentation. The jury returned a verdict in Smith’s favor against WBF and Landis. Smith asserts five points of error for reversal of the judgment. WBF cross-appeals, asserting five additional points for reversal. Landis and Ford Motor Credit are not parties to this appeal. As this case involves a question in the law of torts, jurisdiction in this court is pursuant to Ark. Sup. Ct. R. 1-2(a) (16).
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
Smith alleges that sometime during December 1986 and January 1987, Landis voluntarily returned to Ford Motor Credit fifteen dump trucks on which he was in default. Landis had purchased all fifteen trucks from WBF several years earlier. Ford Motor Credit assigned the fifteen trucks to WBF. WBF was able to re-sell all fifteen dump trucks previously owned by Landis. Smith purchased one of the fifteen trucks from WBF; that truck, Vehicle Identification No. 1FDYU80U0FVA11368, is the subject of this litigation.
From evidence presented at trial, the jury could have concluded the following. On July 9, 1987, Smith purchased a 1985 Ford dump truck, Model No. LT8000 with a Caterpillar engine, from WBF who certified the mileage on the truck to be 45,974. WBF received the truck from Ford Motor Credit, who certified the mileage to be 45,890 on January 9,1987. On August 4,1988, with the truck’s odometer reading 84,242 miles, Smith’s truck began to overheat so he took it to J.A. Riggs Tractor Company, an authorized warranty repair center for Caterpillar. The service personnel at J.A. Riggs Tractor Company determined the truck had a faulty head gasket and that the truck’s warranty had expired, but that the necessary repairs could possibly be covered under a service program. The service manager checked his computer for the history of warranty and service program work done on Smith’s truck. The computer revealed that Smith’s truck had previously been repaired under the same service program in November 1986 with 84,272 miles on the truck.
Based on the information he obtained from the J.A. Riggs Tractor Company, Smith concluded his truck’s odometer had been tampered with and immediately returned his truck to WBF. Smith left his truck at WBF’s service department for repairs. A dispute arose over who should pay for how much of the repairs and on the next day, August 5,1988, Smith demanded the return of his down payment and all payments he made under the purchase contract. WBF retained possession of the truck and later re-sold it. Smith eventually filed this lawsuit.
Smith’s complaint alleged two causes of action against all three defendants. Count I alleges specific violations of 15 U.S.C. § 1984 for changing the odometer and 15 U.S.C. § 1988 for failing to disclose the actual mileage of the truck. Under Count I, Smith alleged damages of $ 17,860.31 down payment and installment payments; $2,294.33 repair parts and labor; $4,229.00 loss of income; and treble damages and attorneys fees pursuant to 15 U.S.C. § 1989. As an alternative to the foregoing damages, Smith asks for rescission of the sales contract and refund of his down payment and installment payments, plus the statutory penalty of $1,500.00, treble damages, and attorneys fees pursuant to 15 U.S.C. § 1989. Count II alleges an alternative claim for common law misrepresentation. Under Count II, Smith alleged damages of $17,860.31 down payment and installment payments; $2,294.33 repair parts and labor; $4,229.00 loss of income; prejudgment interests and costs; and all other appropriate relief. As an alternative to the foregoing damages, Smith requested rescission of the sales contract and refund of his down payment and installment payments, plus prejudgment interest, costs, and other appropriate relief. Smith filed an amended complaint adding a request for punitive damages.
Prior to trial, Smith was required to elect between proceeding under the Federal Odometer Fraud Act or under the state common law of fraud. Arguing that he should not be forced to elect his remedy until the jury was instructed, he chose to proceed under the federal statute. The jury was instructed, without objection, as follows:
If you decide for the plaintiff, Richard Smith, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following three elements of damage sustained: First, any sums paid in connection with the purchase of the vehicle in question; Second, the cost of any necessary repairs; and third, the value of any profits lost. Now, whether any of these elements of damage have been proved by the evidence is for you to determine.
The jury returned with a verdict and answers to interrogatories finding Ford Motor Credit not liable and both WBF and Landis liable for damages to Smith in the amount of $19,195.31. The jury apportioned liability between WBF and Landis at 65 % and 35% respectively. The trial court subsequently entered judgment awarding Smith the following damages in addition to the jury’s award: $1,500.00 in actual damages pursuant to 15 U.S.C. § 1989(a)(1); prejudgment interest on actual damages of $3,060.96; and $15,000.00 in attorneys fees and $259.12 in court costs pursuant to 15 U.S.C. § 1989(a)(2). Smith appeals and WBF cross-appeals, each asserting five points of error.
On direct appeal, Smith makes the following assignments of error: (1) the trial court violated 15 U.S.C. § 1989(a)(1) by failing to treble the damages awarded by the jury; (2) the failure to admit evidence of similar fraudulent transactions by WBF; (3) the failure to allow evidence of lost profits; (4) the requirement that Smith elect his remedies; and (5) the granting of WBF’s motion in limine on the day before trial. We have reviewed all five assertions of error and conclude only one has merit — the issue of lost profits. Therefore, we reverse on direct appeal.
On cross-appeal, WBF makes the following assignments of error: (1) the denial of WBF’s motion for directed verdict based on agency regulations exempting heavy vehicles from the Federal Odometer Fraud Act; (2) the denial of WBF’s motion for directed verdict based on insufficient evidence that the odometer was altered while the truck was in WBF’s exclusive dominion and control; (3) the denial of WBF’s motion for directed verdict based on insufficient evidence of WBF’s intent to defraud when disclosing the odometer reading; (4) the admission into evidence of two groups of hearsay documents, a computer printout from J:A. Riggs Tractor Company and registration certificates from the Department of Finance and Administration; and (5) the award to Smith of both restitutionary damages, and federal statutory damages. We have reviewed all five assertions of error and conclude only the fifth one has merit. Therefore, we reverse on cross-appeal.
As the two reversible errors concern only damages and not liability, we depart from our practice of addressing the points of error in the order raised by the parties and address the points on damages separately from the other points. This is done in an attempt to make it easier on the reader of this opinion as well as to provide better direction on remand.
II. DAMAGES ISSUES
We have before us the three points of error raised on direct appeal that concern damages — the trebling of the jury’s award, the election of remedies, and the exclusion of evidence of lost profits. Also before us is the single point on cross-appeal concerning damages — the recovery of both a restitutionary award and statutory damages. We find reversible error occurred as to the lost profits and as to the double recovery of both a restitutionary award and damages and therefore reverse on those points. The remaining points on damages are closely related and we address them together to the extent they will arise on remand.
The basic issue common to all the damages questions is the meaning of “actual damages” in 15 U.S.C. § 1989(a). The resolution of that basic issue determines the resolution of the remaining damages issues. Therefore, we consider that basic question first.
A. THE MEANING OF “ACTUAL DAMAGES”
The particular section of the Federal Odometer Fraud Act at issue is 15 U.S.C. § 1989, which provides in part that:
(a) Amount of damages
Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of—
(1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.
There is no statutory definition of “actual damages” as used in section 1989. However, the landmark case interpreting that term has stated that:
“Although ‘actual damages’ is not defined in the statute, it seems reasonable to give it the meaning commonly applied to fraud cases. This is the difference between the amount paid by the plaintiffs — not the value of the car if it had been as represented-and the fair market retail value of a vehicle of the type purchased with the number of miles actually traveled by the car, plus such outlays as are legitimately attributable to the acts of the defendants.'’'’
Duval v. Midwest Auto City, Inc., 425 F. Supp. 1381 (D. Neb. 1977) (emphasis added), aff'd, 578 F.2d 721 (8th Cir. 1978).
The task before us then is to point out those damages that are “commonly awarded for fraud.” See Duval, 425 F.Supp. 1381. This court has recognized the elements of both tort and contract that constitute an action for common law fraud and has accordingly applied two measures of damages, both of which are characterized as affirmance remedies because they are awarded when the contract is affirmed. The benefit of the bargain measure is the difference in value of the property as represented and the property’s actual value at the time of the purchase. The out-of-pocket measure is the difference between the price paid for the property and the property’s actual value when received.
As an alternative to affirmance remedies, this court has allowed a defrauded party the remedy of restitution. This alternative remedy brings in the doctrine of election of remedies. Restitution is characterized as a disaffirmance remedy because it is awarded when the contract is revoked, rescinded, or disaffirmed. However, restitution differs from the two types of affirmance remedies just discussed. “Damages” refers to a money award compensating a plaintiff for losses. Dan B. Dobbs, Law of Remedies, § 1.1 (2d ed. 1993). Although an award of restitution may in fact provide compensation for the plaintiff in some cases, “[tjhe restitutionary goal is to prevent unjust enrichment of the defendant by making him give up what he wrongfully obtained from the plaintiff.” Id. Restitution is thus measured by the defendant’s gain, not by the plaintiff’s loss. Id.
In the traditional view, the affirmance remedies are regarded as inconsistent with the disaffirmance remedies. However, Professor Dobbs has observed that “Contemporary thinking seems to be departing from the old conceptual thinking involved in election doctrine. With the contemporary concern chiefly to avoid duplicated remedies, some courts have flatly said that restitution and punitive damages should be permitted.” Dan B. Dobbs, Law of Remedies, § 9.4 (2d ed. 1993). Among the cases cited for that statement is Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989).
The Thomas Auto Co. case dealt with fraud in the sale of a car. This court followed the contemporary view and held that the plaintiffs were entitled to receive both a restitutionary award (return of the purchase price) and incidental and consequential damages. In so holding, this court made it clear, however, that it would be double recovery to allow a plaintiff to receive damages calculated on the basis of both the benefit of the bargain and restitution. In addition, Thomas Auto Co. allowed for recovery of punitive damages on condition that there be a showing of all the elements of the tort of deceit. That, of course, would not duplicate either compensatory damages or restitution.
We conclude that a defrauded party may recover either affirmance damages or disaffirmance damages, but is prohibited from recovering both. Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989). Obviously, when determining which type of damages is appropriate, it is helpful to determine who has possession of the property. Generally, if the buyer has possession, affirmance remedies are appropriate; if the seller has possession, disaffirmance remedies are appropriate. See Howard W. Brill, Arkansas Law of Damages § 35-7 (2d ed. 1990) (and cases cited therein). We also conclude that, in addition to either affirmance or disaffirmance remedies, a defrauded party may recover consequential damages and punitive damages, depending on the facts of each case. Id.; Thomas Auto Co., 297 Ark. 492, 763 S.W.2d 651.
Our conclusions are consistent with those of other courts interpreting the Act. For example, one court has stated that although the Duval measure of damages is the favored approach, when the market value of the car is unavailable (e.g., when the odometer is non-functional and the actual mileage cannot be determined) then the appropriate remedy is to award the $1,500.00 statutory minimum damages. Williams v. Toyota of Jefferson, Inc., 655 F. Supp. 1081 (E.D. La. 1987). Yet another court has stated that when there is no evidence of market value, the case is appropriate for rescission. Jones v. Fenton Ford, Inc., All F. Supp. 1328 (D. Conn. 1977). The Fenton Ford court reasoned that when the mileage is unknown, it is unreasonable to make the plaintiff keep the car and take the difference in value as damages; it is more equitable to allow the defendant to keep the car and give the plaintiff his payments back. The Fenton Ford court awarded restitution, but did not treble it; instead, it awarded the statutory minimum $1,500.00 because the consequential damages remaining after the restitution award was excluded were less than the $1,500.00 minimum. The Fenton Ford court also allowed attorneys fees under the Act.
We continue with our analyses of the damages issues and apply the foregoing measures of damages that we have determined are “commonly awarded for fraud.”
B. LOST PROFITS — DIRECT APPEAL
We conclude that reversible error occurred on the issue of lost profits. On the day before trial, WBF moved in limine to exclude, among other things, any reference to Smith’s lost income or lost profits. WBF made two arguments in support of its motion. First, WBF argued that Smith was proceeding under the Federal Odometer Fraud Act which allows recovery of “actual damages sustained” and that “actual damages” does not include lost profits. Second, WBF argued Smith’s proof of lost profits was too speculative and based on conjectural evidence. At a hearing on the motion in limine, the trial court relied on Fenton Ford, 427 F. Supp. 1328 (footnote 8), and ruled that the lost profits in this case were similar to the lost wages at issue in Fenton Ford. The Fenton Ford court held the lost profits were “too remote to be recoverable under the [Federal Odometer Fraud] Act.” Fenton Ford, 427 F. Supp. at 1332.
For reversal, Smith argues the trial court erred in holding Fenton Ford precludes recovery of lost profits under the Act as a matter of law. Smith reasons that lost profits are part of the “actual damages” contemplated by the Act. We agree with Smith’s contention and reasoning.
From our review of Fenton Ford, we conclude its holding on lost profits as stated in footnote 8 was limited to that particular case and that the facts of the current case are distinguishable. Moreover, we conclude that lost profits are recoverable under the Act, provided they are proved to be the proximate result of the fraud and in a reasonably certain amount.
In Fenton Ford, the issue was lost wages, not lost profits. The only evidence of lost wages was the plaintiffs testimony. She stated that she was forced to quit her part-time job because she could not get there due to the lost use of her vehicle. In the current case, Smith did not have a job if he did not have use of his truck; it would make no difference if Smith found another means of transportation to his job site — he would still not have a dump truck with which to work. In short, Smith’s vehicle was his job, not merely a means of transportation to and from work. In addition, had the trial court not excluded it, there could have been testimony of Smith’s lost profits from witnesses other than Smith.
Under Arkansas law, lost profits are recoverable in an action for fraud, see Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985), provided, of course, they are proved to be proximately caused by the fraud and in a reasonably certain amount. This is consistent with our previous analysis that consequential damages are recoverable under the Act. Consequential damages are defined as “ [s] uch damage, loss or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act.” First Service Corp. v. Schumacher, 16 Ark. App. 282, 702 S.W.2d 412 (1985), (citing Black’s Law Dictionary, 5th ed., and Richmond Redevelopment and Housing Auth. v. Laburnum Constr. Corp., 80 S.E.2d 574 (Va. 1954)). Lost profits are well recognized as a type of consequential damages. Tremco, Inc. v. Valley Aluminum Prod. Corp., 38 Ark. App. 143, 831 S.W.2d 156 (1992); AM/PM Franchise Ass’n v. Atlantic Richfield Co., 584 A.2d 915 (Pa. 1990); John D. Hollingsworth on Wheels v. Arkon Corp., 305 S.E.2d 71 (S.C. 1983). Thus, we reach our conclusion that lost profits are recoverable under the Act as “actual damages” provided they are proved to the requisite levels of certainty and causation. We read Fenton Ford as holding simply that the proof in that case did not rise to the requisite levels.
WBF attached as exhibits to its brief in support of the motion in limine excerpts from the discovery depositions of two of Smith’s potential witnesses, Jimmy Carter, Smith’s former employer, and Dr. Charles Venus, an economist. Smith was working for Carter when the head gasket broke and he relinquished possession of the truck to WBF. In his deposition, Carter stated that Smith could have had a job working for him for the next six months (the six months after Smith relinquished his truck to WBF on August 4, 1988), making $35.00 per hour, ten hours per day, six days a week. Dr. Venus, stated he made two sets of calculations based on a 50% gross profit margin and a 75% gross profit margin, both of which he thought were reasonable based on his knowledge of studying other companies. His calculations were based on the figures in Carter’s testimony. All of Dr. Venus’ deposition is not in the transcript, thus his final calculations are unknown. However, if the jury were allowed to hear the foregoing testimonies they could have reasonably concluded that Smith lost profits of approximately $27,300.00 (50% profit margin) or $40,950.00 (75% profit margin).
This court has stated that proof of lost profits must be sufficient to remove the question of profits from the realm of speculation and conjecture; the evidence must establish the alleged anticipated profits with reasonable certainty, and the jury must be provided a reasonably complete set of figures from which to determine the amount of profits lost. See e.g., Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764 (1973). We conclude the foregoing evidence meets the requisite level of certainty.
Having concluded that a reasonably certain amount of lost profits could have been established, the issue now becomes whether there was evidence from which the jury could have determined the loss of profits to be the proximate result of the fraud. The jury found WBF liable for either actually rolling back the odometer or for failing to disclose the truck’s actual mileage; either of those actions is therefore the fraud in this case.
Smith testified he questioned the low mileage figure and the heavy truck sales manager at WBF assured him the truck had low mileage but had simply been abused from heavy hauling at a construction site. Smith stated he would not have purchased the truck at all if the mileage was unknown because of his prior experience with a higher mileage International truck. In addition, there was evidence the truck broke down while Smith was on the job and that the truck had previously been repaired for the very same problem. We conclude this evidence was at the very least sufficient to create a jury question as to the proximate result of the fraud.
Therefore, we hold the trial court erred in granting WBF’s motion in limine to exclude Smith’s proof of lost profits. Accordingly, we reverse the judgment on direct appeal.
C. DOUBLE RECOVERY — CROSS-APPEAL
For reversal of the judgment, WBF contends the trial court erred in entering a judgment that awards both restitutionary damages and statutory damages under the Act. WBF claims Smith elected his remedy of proceeding under the Federal Odometer Fraud Act and should therefore be limited to the “actual damages” permitted under the Act. WBF asserts the Act’s “actual damages” are limited to difference-in-value damages (affirmance damages) and do not include restitutionary damages (disaffirmance damages) as awarded in the judgment. WBF further asserts that the award of both restitutionary damages and the statutory minimum $1,500.00 amounts to a double recovery in violation of Thomas Auto Co., 297 Ark. 492, 763 S.W.2d 651.
Smith responds with the argument that he only received disaffirmance damages ($17,860.31 return of payments), and the remaining $1,335.00 of the $19,195.31 verdict could be characterized as consequential damages for repairs. Since one can have disaffirmance damages and consequential damages under both Thomas Auto Co., 297 Ark. 492, 763 S.W.2d 651, and Ark. Code Ann. § 4-2-711 (Repl. 1991), Smith contends the judgment was not in error.
We agree with Smith’s assertion that one can recover disaffirmance damages, consequential damages, and punitive damages. However, we cannot affirm the judgment on this basis because it is impossible for us to tell, without speculation, what the $1,500.00 awarded to Smith represents, be it affirmance damages, consequential damages, punitive damages, or the statutory minimum damages under the trebling policy of the Act.
It is impossible to tell from the verdict itself, or any of the interrogatories, how the jury arrived at the figure of $19,195.31. However, from the evidence presented, the jury could have awarded $17,860.31 as payments Smith made on the truck. There was also evidence presented that would have allowed the jury to characterize the remaining $1,335.00 as either repair damages or past lost profits. Both repair damages and past lost profits are consequential damages. However, the record indicates that the trial court considered the consequential damages in this case to be less than $1,500.00, and that it awarded the $1,500.00 on that basis. This was error, because if indeed the remaining $1,335.00 of the jury’s award represented consequential damages, then when the $1,335.00 is trebled the sum is greater than the $1,500.00 minimum and therefore the.$l,335.00 should have been trebled as “actual damages” under 15 U.S.C. § 1989(a)(1). If however, the $1,335.00 does not represent consequential damages, then the trial court still erred in awarding the $ 1,500.00 because, in that situation, the $1,500.00 could only represent affirmance damages which when combined with the $17,860.31 in disaffirmance damages, would amount to a prohibited double recovery of both affirmance and disaffirmance damages. Thomas Auto Co., 297 Ark. 492, 763 S.W.2d 651.
We agree with WBF’s contention that Smith elected a remedy in this case. We disagree with WBF, however, as to the particular remedy Smith elected. Smith elected the disaffirmance remedy of restitution when he returned the truck to WBF and WBF accepted it. Thus, the disaffirmance remedy of restitution, not affirmance damages, is the appropriate remedy to be granted here. However, just because a disaffirmance remedy is appropriate, does not mean Smith is prevented from recovering consequential damages and punitive damages. Thomas Auto Co., 297 Ark. 492, 763 S.W.2d 651.
For the reasons stated in the foregoing, we reverse the judgment on cross-appeal.
III. DIRECTIONS ON REMAND
Having concluded that error occurred on both direct and cross-appeal as discussed in the foregoing damages issues, we reverse and remand for a new trial. Upon remand, Smith should be allowed to present evidence of his profits lost as a result of the high mileage. In addition, to prevent a claim on appeal of double recovery, all components of any amounts awarded should be identified to the extent possible. Although the only errors we find on appeal pertain to the damages issues, we do not divide the jury’s verdict and remand for a partial new trial on damages. The new trial will include both damages and liability issues.
In at least two cases, we have reversed and remanded for a partial new trial on damages. See e.g., Arkansas State Highway Comm’n v. Cook, 233 Ark. 534, 345 S.W.2d 632 (1961); Wilkinson v. Nottingham, 203 Ark. 270, 157 S.W.2d 201 (1941). These cases are deviations from our long standing rule that we will not affirm a judgment on the issue of liability and remand for a partial new trial on the issue of damages. See e.g., Hinkle v. Perry, 296 Ark. 114, 752 S.W.2d 267 (1988); DeVazier v. Whit Davis Lumber Co., 257 Ark. 371, 516 S.W.2d 610 (1974); Clark v. Arkansas Democrat Co., 242 Ark. 497, 413 S.W.2d 629 (1967) (supplemental opinion on denial of rehearing); Manzo v. Boulet, 220 Ark. 106, 246 S.W.2d 126 (1952); Krummen Motor Bus & Taxi Co. v. Mechanics’ Lbr. Co., 175 Ark. 750, 300 S.W.2d 389 (1927). Our rationale for this longstanding rule is that a verdict is the foundation of the judgment at law and cannot be divided by the court. DeVazier, 257 Ark. 371, 516 S.W.2d 610. In addition, this court has reasoned that the possibility of a compromise in the jury room links the two issues of damages and liability in separably together. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).
We have obviously held to this rule in spite of the language of ARCP Rule 59 suggesting that a trial court may grant a new trial on “all or part of the issues.” We hold to this rule today and reverse and remand for a new trial on the issues of both liability and damages. This is the better course and we do not revert to our prior holdings remanding for a partial new trial.
As it is possible that all the remaining issues raised on direct appeal and cross-appeal will arise on remand, we address those issues.
A. DAMAGES ISSUES
1. Trebling of Jury Award — Direct Appeal
Smith’s first argument on direct appeal is that the trial court erred in refusing to treble the $ 19,19 5.31 in damages awarded by the jury. This argument has no merit. Smith relies on 15 U.S.C. § 1989, and contends that the $19,195.31 awarded by the jury are “actual damages” and therefore should have been trebled by the trial court.
In the present case, the trial court followed Fenton Ford, 427 F. Supp. 1328. The Federal Odometer Fraud Act was applied; although it is impossible to tell from the verdict itself, the trial court interpreted the $19,195.31 verdict as including $17,860.31 in Smith’s payments and characterized such as restitution of the payments made; the restitution was given but not trebled; the statutory minimum $1,500.00 was also given, without clear explanation as to why; and attorneys fees and costs were awarded. WBF, the transferor, was allowed to keep the vehicle.
The problem with Smith’s argument is that it is contrary to the legislative intent behind the Federal Odometer Fraud Act. Congress passed the Act to provide a national policy against odometer tampering. Motor Vehicle Information and Cost Savings Act, Pub. L. No. 92-513,1972 U.S.C.C.A.N. 3960. There is no doubt that the purpose of 15 U.S.C. § 1989 is to punish odometer tamperers by imposing civil penalties upon them and to reward the purchaser who discovers such tampering. Delay, 373 F. Supp. 791. The purposes of punishment and reward are necessary because, ordinarily, the amount of damages awarded for the fraud in such a case would be relatively small. Thus, while we have concluded that the Act does not preclude recovery based on a contract disaffirmance theory, we do not interpret the legislative intent behind the Act to include a trebling of an award based on such a theory. Rather, we think the intent was to provide for trebling of damages awarded for the fraud of odometer tampering.
Most likely the jury’s award of $19,195.31 included some form of contract disaffirmance damages. Thus, it was not error for the trial court to refuse Smith’s request to treble that portion of verdict.
2. Election of Remedies — Direct Appeal
Smith argues the trial court erred in forcing him to elect between causes of action under the Federal Odometer Fraud Act and under Arkansas common law for fraud. He claims that a plaintiff should not be forced to elect between causes of action, only between inconsistent remedies. WBF ignores the distinction between causes of action and remedies and argues simply that a plaintiff should not be allowed to make a recovery of both disaffirmance remedies and affirmance remedies.
We observe that at least one court has held the Federal Odometer Fraud Act does not preempt state causes of action for common law fraud based upon odometer tampering or misrepresentation. Verdonck v. Scopes, 590 N.E.2d 545 (Ill. App. Ct. 1992). The Act specifically provides that it does not preempt causes of action asserted under state odometer fraud statutes. 15 U.S.C. § 1991.
The doctrine of election of remedies applies to remedies, not to causes of action. Westark Specialties, Inc. v. Stouffer Family Ltd. Partnership, 310 Ark. 225, 836 S.W.2d 354 (1992). Contract and tort theories have been determined to be consistent when both seek the same relief and the evidence to support recovery on one theory partially supports it on another. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). However, the fact that claims based on both contract and tort theories have been regarded as consistent causes of action, does not mean that recoveries on both theories are allowed. To the contrary, this court has stated that “[u]nder no circumstances would we permit, over proper objection, both recoveries.” Thomas Auto Co., 297 Ark. at 498, 763 S.W.2d at 654.
But for Smith’s conduct in returning the truck to WBF, we would conclude the trial court erred in forcing Smith to choose between causes of action. However, Smith already elected his remedy by returning the truck to WBF. Absent the return of the truck to WBF, Smith should have been allowed to pursue both causes of action and present evidence of both. Then, he could have either chosen to have the jury instructed on only one remedy or he could have had the jury instructed on both remedies, with an additional instruction telling the jury to choose only one. See Thomas Auto Co., 297 Ark. 499, 762 S.W.2d 651; Howard W. Brill, Arkansas Law of Damages § 2-6, at 24 (2d ed. 1990).
Because Smith elected his remedy when he returned his truck to WBF and WBF accepted it, the jury’s award of restitution was proper. Any error committed by forcing Smith to elect between causes of action is therefore harmless.
B. ISSUES OTHER THAN DAMAGES — DIRECT APPEAL
1. Evidence of Similar Fraudulent Acts
Smith asserts the trial court abused its discretion in excluding evidence that fourteen other dump trucks also had their odometers altered. These fourteen trucks, like Smith’s truck, were previously owned by Landis, repossessed by Ford Motor Credit and assigned to WBF. Smith contends this evidence was admissible for the limited purpose of showing WBF’s general scheme of intent to defraud. He emphasizes that intent to defraud is an element of his cause of action under the Federal Odometer Fraud Act.
WBF moved in limine to exclude any reference to the fourteen trucks. In a written order responding to WBF’s motion in limine, the trial court ruled any evidence relating to the other fourteen trucks would be more prejudicial than probative.
This court has ruled that similar acts are admissible for the limited purpose of showing intent to defraud, not for showing the alleged fraud was actually committed, if the acts are of the same nature and close in point of time to the act in issue. Fulwider v. Woods, 249 Ark. 776, 461 S.W.2d 581 (1971).
The jury found WBF was liable to Smith. Obviously, since Smith successfully proved WBF had the requisite intent to defraud, we cannot say that Smith demonstrated any prejudice from the exclusion of this evidence.
2. Motion in Limine
Smith argues the trial court erred in hearing WBF’s motion in limine on the afternoon before trial without giving Smith ten days to respond to the motion as required by ARCP Rule 78(b). Smith claims WBF had plenty of advance notice through discovery that Smith was going to offer the evidence WBF sought to exclude, and the motion was nothing more than a last minute attempt to deprive Smith of an opportunity to file a written response and to interrupt counsel’s preparation for trial the next day. Here, Smith does not challenge the substance of the trial court’s ruling on the motion. Rather, he challenges the timing of both the motion and the hearing thereon, and the fact he did not have ten days to file a written response pursuant to ARCP Rule 78(b). He claims WBF’s conduct was an abuse of pretrial procedure.
WBF responds that a motion in limine is just what its name implies, a motion made “preliminarily” or on the threshold of trial, and thus WBF committed no error in waiting until the day before trial to file the motion. In addition, WBF points out that Smith had more time to respond to WBF’s contentions at the hearing than he would have had at trial.
We agree with WBF’s response. This court has stated that motions in limine are to enlighten the court and advise counsel of the specific nature of the anticipated evidence so that the court may intelligently act on such motions. Schichtl v. Slack, 293 Ark. 281, 737 S.W.2d 628 (1987). Motions in limine are not ordinarily used to extinguish an entire claim or defense. Rather, they are usually used to prohibit the mentioning of some specific matter, such as an inflammatory piece of evidence, until the admissibility of that matter has been determined out of the hearing of the jury. Id., (citing Lewis v. Buena Vista Mutual Ins. Ass’n, 183 N.W.2d 198 (Iowa 1971)).
Although the subject of responses to motions is contemplated by the Arkansas Rules of Civil Procedure, the subject is not clearly addressed therein. There is no specific requirement of a written response to a written motion; ARCP Rule 78(b) merely requires that if a written response is to be filed, it must be done so within ten days of service of the motion. However, a trial court should either allow a written response to the motion or hold a hearing at which a response is heard. David Newbern, Arkansas Civil Practice and Procedure § 10-3 (2d ed. 1993). As Smith appeared at the hearing and responded to the motion in limine, we cannot say any error occurred in deciding the motion the day before trial.
C. ISSUES OTHER THAN DAMAGES — CROSS-APPEAL
1. Heavy Truck Exemption
WBF moved for a directed verdict on the grounds that it was exempt from providing odometer disclosures under the Federal Odometer Fraud Act. WBF relies on 49 C.F.R. § 580.6(a)(1) (1992), which exempts transferors of vehicles with gross vehicle weight ratings in excess of 16,000 pounds from the Act’s disclosure requirements.
Smith responds with two arguments. First, Smith claims there is a split of authority on whether the heavy truck exemption is valid due to the fact that it was created in regulations promulgated by the National Highway Traffic Safety Administration and not in part of the Act itself. Second, Smith claims even if this court finds the exemption to be valid, WBF waived its exemption by giving the disclosure statement to Smith.
Smith is correct in pointing out the federal district courts’ split of authority on the validity of the exemption. See e.g., Mitchell v. White Motor Credit Corp. 627 F. Supp. 1241 (M.D. Tenn. 1986) (holding the exception valid); Davis v. Dils Motor Co., 566 F. Supp. 1360 (S.D.W.Va. 1983) (holding the exemption void). However, this court need not decide the validity of the exemption because, as the trial court correctly ruled, WBF clearly waived any exemption when it issued the disclosure statement in this case.
Waiver requires the voluntary relinquishment of a known right. This court has defined waiver as the voluntary abandonment or surrender by a capable person of a right known to him to exist, with the intent that he shall forever be deprived of its benefits, and it may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518, (1972).
The trial court ruled that if WBF was not required to issue the odometer statement, it could not voluntarily do so and then claim it was not bound by its voluntary actions. We find no error in this ruling.
W.C. Bennett of WBF stated in a deposition that he was aware of the heavy truck exemption and the split of authority on its validity. John Harrison, heavy truck sales manager for WBF at the time in question, stated in a deposition that he was aware of the exemptions from disclosure of odometer statements but that it was WBF’s policy to issue a disclosure statement on every vehicle sold, including heavy trucks. Based on these testimonies and the fact that WBF gave Smith an odometer statement when the truck was sold, we conclude WBF made a valid waiver of any right to claim exemption from the Act.
2. Insufficient Evidence Appellee Altered Odometer on Appellant’s Truck
This argument deals with 15 U.S.C. § 1984 which prohibits the resetting, disconnection or alteration of the odometer of any vehicle with intent to change the number of miles indicated thereon.
WBF moved for a directed verdict on the grounds there was no evidence that WBF disconnected, altered, or reset the odometer on Smith’s truck. WBF argues the only evidence that WBF could have altered Smith’s odometer is a parts invoice issued by WBF for repairs to Smith’s truck one week before the transfer from Ford Motor Credit to WBF. WBF contends this is purely speculative evidence and does not prove that WBF altered the odometer, therefore, the trial court erred in submitting this issue to the jury.
In determining whether a directed verdict should have been granted, we view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993). A motion for a directed verdict should be granted only if there is no substantial evidence to support a jury verdict. Id. Where the evidence is such that fair-minded persons might reach different conclusion, then a jury question is presented, and the directed verdict should be reversed. Id.
With respect to 15 U.S.C. § 1984, Smith is required to prove that the odometer alteration occurred while the truck was in WBF’s dominion and control. See Delay v. Hearn Ford, 373 F. Supp. 791 (D.S.C. 1974). The invoice indicates the truck was in WBF’s possession before Ford Motor Credit transferred the truck to WBF. Thus, the jury could have concluded the odometer was rolled back while the truck was in WBF’s possession. Viewing the evidence in the light most favorable to Smith, we conclude this evidence is substantial evidence to support the verdict of liability. The trial court did not err in denying WBF’s motion.
3. Insufficient Evidence of Failure To Disclose Actual Mileage
This argument deals with liability under 15 U.S.C. § 1988 which requires a transferor to disclose either the actual mileage on a vehicle’s odometer or that the actual mileage is unknown. This argument also concerns 15 U.S.C. § 1989, which provides for recovery of damages from any person who violates the Act with an intent to defraud.
WBF moved for a directed verdict on the grounds that Smith had not proved WBF knowingly gave a false statement as to the odometer reading with the intent to defraud Smith. WBF contends that Smith is required to prove WBF had actual knowledge that the odometer had been altered.
Actual knowledge is not a requirement under the Federal Odometer Fraud Act; constructive knowledge or reckless disregard is sufficient. Haynes v. Manning, 917 F.2d 450 (10th Cir. 1990). That an odometer was tampered with or that a transferor knew or should have known the mileage was false can be inferred from the facts. Bryant v. Thomas, 461 F. Supp. 613 (D. Neb. 1978). Intent to defraud arises from proof of change in an odometer reading and the seller’s failure to disclose such change, in absence of an explanation of the odometer change. Delay, 373 F. Supp. 791.
Evidence was presented from which the jury could have concluded the odometer disclosure statement issued WBF was false and with an intent to defraud. A service company repaired the truck in November 1986 and noted the mileage at 84,274. In January 1.987, Landis returned the truck to Ford Motor Credit, which then certified the mileage to WBF at 45,890. One week prior to that disclosure statement, WBF had possession of the truck and ordered repairs for it. WBF sold the truck to Smith in July 1987 and disclosed the mileage to be 45,974.
The foregoing evidence is substantial evidence that the odometer was rolled back. In the absence of an explanation of how the alteration occurred, that is all that needs to be proved. Delay, 373 F. Supp. 791. We conclude the trial court did not err in denying WBF’s motion for directed verdict.
4. Admission of Hearsay Documents
At issue here is the admissibility of two sets of documents, a computer printout from J.A. Riggs Tractor Company and registration certificates from the Department of Finance and Administration (DF&A). WBF argues these two sets of documents are hearsay and not admissible under the business records exception or public records exception.
Specifically, WBF contends the computer printout lacked a proper foundation in that no one at J.A. Riggs Tractor Company actually made the record. In other words, the information on the printout was entered by someone who worked for a business other than J.A. Riggs Tractor Company, and no one from that other company testified as to the accuracy and reliability of the information in the printout. WBF contends the DF&A registration certificates should not have been admitted under the public records exception because there is no law requiring the registration certificates to contain the odometer reading.
The service manager at J.A. Riggs Tractor Company testified their computer is part of a system wherein all Caterpillar warranty repairs and service program repairs are entered when made across the country. He acknowledged there was room for error in the entry of information into the computer, but also stated the information contained in the computer system was reliable enough for him to make the decision not to do any service program repairs on Smith’s truck because of the mileage discrepancy and because the same repairs had already been made.
An employee from the Bald Knob DF&A office testified there was no written policy requiring them to put odometer readings on registration certificates, but that she was trained to do so, that it was the policy in her office to do so, and that she had followed that policy since she began work for DF & A in 1976. She also stated she followed that policy when she registered the truck in question in July 1986 and recorded the mileage at 31,022.
Rulings on evidentiary matters are within the trial court’s discretion. In re Estate of O’Donnell, 304 Ark. 460, 803 S.W.2d 530 (1991). Considering the foregoing testimonies and the foundations laid therein, we cannot say the trial court abused its discretion in admitting the questioned documents.
IV. CONCLUSION
We reverse and remand both the direct appeal and cross-appeal for a new trial. Smith should be allowed to present evidence of lost profits resulting from the odometer fraud. The jury should be instructed on an appropriate disaffirmance remedy and if any amount is awarded, it should not be trebled. However, any amount of consequential damages awarded is subject to the trebling provision of the Act.
Brown, J., concurs.
Dudley, J., not participating. | [
-12,
-8,
-56,
-100,
8,
-32,
40,
58,
27,
-31,
55,
-110,
-25,
66,
22,
41,
-25,
61,
117,
98,
-41,
-77,
23,
-29,
82,
-77,
123,
-49,
-67,
73,
108,
20,
76,
48,
-62,
-99,
39,
-120,
-91,
88,
-18,
6,
57,
-3,
-39,
0,
52,
-118,
4,
79,
97,
-100,
-30,
46,
57,
67,
41,
42,
107,
-87,
-48,
-15,
-30,
12,
95,
22,
-79,
20,
-72,
9,
72,
11,
-112,
57,
40,
-7,
50,
-74,
-61,
-28,
107,
-103,
12,
36,
118,
-126,
17,
-49,
-4,
-72,
6,
-38,
31,
-123,
-112,
61,
17,
102,
-66,
-97,
114,
18,
5,
-4,
104,
69,
29,
104,
3,
-21,
48,
-127,
-52,
98,
-50,
27,
-1,
-125,
16,
113,
-49,
-30,
92,
69,
121,
-85,
71,
-106
] |
Jack Holt, Jr., Justice.
This is a case of first impression involving Act 451 of 1983, the statutory prohibition against the use of children in sexual performances as defined in the Act. Ark. Code Ann. § 5-27-401 et seq. (1987). The appellant, Lynn F. Graham, raises four points for reversal of his conviction of the felony offense of employing a child in a sexual performance. Because we reverse on the first issue, a challenge to the sufficiency of the evidence, it is unnecessary to consider the other questions raised on appeal.
The relevant portions of Ark. Code Ann. § 5-27-402 (1987) provide:
(a) It is unlawful for any person if, knowing the character and content thereof, he employs, authorizes, or induces a child under seventeen (17) years of age to engage in a sexual performance.
(c) Any person violating this section is guilty of a Class C felony for the first offense and Class B felony for subsequent offenses.
A definition of “performance” appears at Ark. Code Ann. § 5-27-401(1) (1987):
“Performance” means any play, dance, act, drama, piece, interlude, pantomime, show, scene, or other three-dimensional presentation or parts therof that is exhibited before an audience of two (2) or more persons[.]
A “sexual performance” consists of “any performance or part therof that includes sexual conduct by a child younger than seventeen (17) years of age.” Ark. Code Ann. § 5-27-401(2) (1987). “Sexual conduct” involves “actual or simulated sexual intercourse, deviate sexual activity, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.” Ark. Code Ann. § 5-27-401(3) (1987).
In 1991, the Greene County prosecutor filed an information stating that, on April 28,1990, appellant Graham had employed, authorized, or induced a child under the age of seventeen to engage in a sexual performance.
Graham waived a jury trial. During the bench trial, the State produced as evidence a video tape of Graham and three other males participating in mutual masturbation and oral sex. Nude photographic prints of the parties were also introduced in evidence. The State contended that the defendant had engaged in deviate sexual activity with children under the age of seventeen and had made a videotape of the acts.
Although neither of the two youths in question, who were identified by the names of Clifton and Anthony, were present at trial, a witness for the State, Wendell Pullen, supplied damaging testimony over repeated hearsay objections. Pullen stated that in December 1989, several months before the videotape was made, he and Graham drove from the appellant’s home in Paragould to Poplar Bluff, Missouri, to pick up Graham’s friend, Terry Branch. Pullen stated that they went to Branch’s parents’ house, where they met Branch’s sister and her two sons, whom Branch introduced as his nephews. After a 45-minute visit, Graham, Pullen, and Branch left to return to Paragould.
According to Pullen, Graham told Branch that his nephews were cute, and Branch indicated that he was sexually involved with them. Pullen said that he asked Branch how old the youths were, and Branch stated, in Graham’s presence, that Clifton and Anthony were thirteen and fourteen years old. At that point, Pullen testified, Graham asked Branch how he might get the youths to come to his house in Paragould, suggesting that he give Branch $20 to be split between Clifton and Anthony.
Graham presented as an affirmative defense his reasonable belief that the two youths were at least seventeen years old, based on the good-faith provision of Ark. Code Ann. § 5-27-404 (1987):
It is an affirmative defense to a prosecution under this subchapter that the defendant in good faith reasonably believed that the person who engaged in the sexual conduct was seventeen (17) years of age or older.
Taking the witness stand, Graham stated that both of the boys had told him they were seventeen and, further, that Clifton had offered to produce his driver’s license. Another witness for the defense, David Allison, testified that in November 1989 he had met Clifton and Anthony in the company of Terry Branch and that Clifton had showed him a driver’s license from which he estimated the young man’s age to be “approximately seventeen — almost eighteen years old.” Dr. James Sikes, a pediatrician, also testified for Graham, stating that while it is not possible to pinpoint an exact year of age by examining photographs, he would place the age range for the youths who appeared on the videotape somewhere between fourteen and twenty years.
The trial court found Graham guilty of promoting a sexual performance by a child under the age of seventeen and held that he had failed to meet his affirmative defense. The court sentenced him to ten years imprisonment, the maximum sentence under Ark. Code Ann. § 5-27-402 for a first offense.
For his first point for reversal, Graham asserts that the trial court erred in failing to grant his motions for directed verdict at the close of the state’s case and at the close of all evidence. It is, of course, unnecessary in a trial by the court without a jury for the defense to renew its motion for a directed verdict at the close of the trial in order to preserve the issue for appeal. Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993). Our focus on appellate review, therefore, is limited to an assessment of the posture of the state’s case at the time the first directed-verdict motion was made.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 738 S.W.2d 58 (1990). Evidence is substantial ifit is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
Graham contends that the State failed to provide substantial evidence regarding the elements of the offense of employing a child in a sexual performance under Ark. Code Ann. § 5-27-402(a). “Sexual performance” is defined at Ark. Code Ann. § 5-27-401(2) (1987) as “any performance of part thereof that includes sexual conduct by a child younger than seventeen (17) years of age.”
The precise meaning of the term “performance” was a subject of spirited debate at trial, and Graham argues on appeal that the State failed to put on evidence of an actual “performance” as defined by § 5-27-401(1). The definition, set forth earlier, employs specialized terminology that obviously embraces the traditional aspects of live theatrical production (“play, dance, act, drama,” and so forth), including such antiquities as interludes and pantomimes. It ignores, meanwhile, the more unstructured varieties of contemporary presentation generally known as “performance art,” in which elements of the spontaneous and the random are often prominently featured. Significantly, no mention is made in the definition of “performance” — or, for that matter, in any other section of the Act — of film or videotape.
Although no legislative history is available, it is clear from an examination of the text of Act 451 of 1983 that the intent of the General Assembly was specifically to prohibit the exploitation of children in commercial pornographic stage productions. If it had been the purpose of the legislature to criminalize such privately conducted activities as those in the present case, the Act could have expressly barred, in distinct language, the filming or videotaping of children engaged in any sort of sexual conduct.
The definition of “performance” in § 5-27-401(1) requires that an exhibition of the work before an audience of at least two persons — an indication that the legislators had in mind some form of public display rather than a private recording of sexual intimacies between participating parties. In this regard, Graham further contends that the State failed to present any evidence that the sexual conduct on the videotape amounted to a performance “exhibited before an audience of two (2) or more persons.” The State concedes that the statutory definiton of “performance” set forth at § 5-27-401(1) requires the State to prove that the sexual performance was exhibited to two or more viewers.
Much energy was expended at trial in an attempt to determine how many people were observing the sexual performances as they were being taped. The trial court decided that because there were four persons involved in the taping of the sexual conduct and because during most of the running time of the two different episodes only two persons appeared on camera, the remaining pair must have comprised an audience of two persons.
The trial court’s conclusion relies heavily on conjecture and supposition. There is simply no proof that two or more persons were watching as the tape rolled.
On appellate review, we strictly construe criminal statutes, resolving any doubts in favor of the defendant. Leheny v. State, 307 Ark. 29, 818 S.W.2d 236 (1991). Nothing is taken as intended which is not clearly expressed. Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989). Graham’s conduct, therefore, is not violative of Ark. Code Ann. § 5-27-401 et seq. (1987), and we reverse and dismiss his conviction.
Because we are reversing and dismissing the matter on the issue of the sufficiency of the evidence, it is unnecessary for us to address the other points raised by the appellant.
Reversed and dismissed.
Corbin, J., concurs.
In fact, the General Assembly had, by 1983, already enacted such a prohibition. Act 499 of 1979, the Arkansas Protection of Children Against Exploitation Act, codified at Ark. Code Ann. § 5-27-301 et seq. (1987, Supp. 1991), addresses precisely the situation before us. Section 5-27-303 (a) provides that:
Any person who employs, uses, persuades, induces, entices, or coerces any child to engage in, or who has a child assist any other person to engage in, any sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct shall be guilty of a Class C felony for the first offense and a Class B felony for subsequent offenses.
A crucial difference in the earlier Act is that a “child” is defined as “any person under the age of sixteen (16) years.” | [
-80,
-20,
-99,
124,
26,
-30,
72,
22,
19,
-125,
-13,
115,
-87,
-54,
12,
123,
-45,
-17,
84,
97,
-47,
-77,
23,
1,
-80,
-13,
-35,
87,
-65,
-49,
-84,
29,
76,
112,
-50,
-43,
98,
-54,
-59,
90,
-126,
-93,
-102,
-24,
80,
-125,
36,
115,
82,
79,
49,
-65,
-69,
40,
30,
-53,
107,
46,
25,
57,
74,
65,
-6,
21,
111,
48,
-94,
-124,
-68,
69,
-24,
58,
-40,
57,
17,
-24,
115,
-90,
-128,
-10,
15,
11,
-116,
96,
98,
33,
-119,
-57,
-68,
-119,
55,
119,
-67,
-89,
-104,
105,
99,
77,
-89,
-106,
112,
20,
13,
122,
-61,
-35,
21,
108,
-120,
-49,
4,
-119,
77,
32,
-34,
34,
-13,
21,
16,
117,
-41,
-74,
84,
90,
58,
-33,
-122,
-9
] |
Donald L. Corbin, Justice.
This is an appeal from an order of the St. Francis Circuit Court affirming Minute Order 92-27 of the Arkansas Pollution Control and Ecology Commission (the Commission). Minute Order 92-27 required the termination of an air permit issued to appellant EnviroClean, Incorporated (EnviroClean). EnviroClean now appeals the circuit court’s decision to this court, which has jurisdiction of appeals from the Commission. Ark. Sup. Ct. R. l-2(a)(4). The question presented for our review is whether the Arkansas Department of Pollution Control and Ecology (ADPC&E) correctly construed and ap plied the terms of the permit and the statutes it is charged with enforcing when it revoked EnviroClean’s permit. We find no error in the administrative proceedings below and affirm the revocation of the air permit.
BACKGROUND FACTS AND PROCEDURAL HISTORY
The air permit, Permit No. 462-IR, was originally issued by ADPC&E on May 30, 1990, to EnviroClean and allowed the construction of a medical waste incinerator to be operated at the rate of 250 pounds per hour. On February 7, 1991, pursuant to EnviroClean’s request for an increased capacity, ADPC&E issued a new permit, Permit No. 462-IR-1, allowing incineration at the rate of 1,500 pounds per hour. On its face, the permit contained several conditions, of which the following is at issue in this case:
12. This permit is issued to the applicant alone. It may not be transferred to another party. In the event of the sale of the permitted facility, this permit shall expire and the. purchaser must apply for a new permit.
The dispute giving rise to this case began when 100 % of the stock in EnviroClean was sold and an accompanying change in the corporation’s directors and officers occurred. Originally, 100 % of EnviroClean’s stock was owned by A1 Johnson and it was through Johnson’s efforts that ADPC&E issued EnviroClean the permit. On March 28, 1991, Johnson entered an agreement whereby he sold 100% of the stock in EnviroClean to EnviroClean Acquisition Corporation (EAC). EAC is an Arkansas corporation formed for the purpose of acquiring the stock in EnviroClean and is wholly owned by BioMedical Waste Systems, Incorporated (BioMed), a Delaware corporation. Also on March 28,1991, all of the officers of EnviroClean resigned their positions and Gene J. Frisco, director and president of both BioMed and EAC, was authorized to act as sole director for EnviroClean until the next stockholder meeting. Documents relating to the sale of stock included references to a transfer of assets and to the fact that BioMed would acquire EnviroClean’s permit as a result of the purchase of stock in EnviroClean.
As a result of the foregoing change in ownership and control of EnviroClean, ADPC&E issued a notice of permit expiration to EnviroClean on August 9,1991, revoking the permit for violation of its condition prohibiting a transfer of the permitted facility. ADPC &E later issued an amended notice of permit expiration on November 26, 1991, adding allegations that EnviroClean obtained the permit through misrepresentations and failure to fully disclose information relating to ownership of the permit and the permitted facility. EnviroClean appealed the notices of termination and waived a hearing. The case was submitted to the Commission’s hearing officer who recommended that ADPC&E’s decision to revoke and terminate the permit be upheld. The Commission adopted the findings of the hearing officer in its Minute Order 92-97. EnviroClean then appealed the Commission’s order to the Circuit Court of St. Francis County which affirmed the Commission’s order.
EnviroClean now appeals to this court asserting two broad points of error. First, EnviroClean claims the circuit court erred in affirming the revocation of the permit because ADPC&E’s decision is not supported by substantial evidence and is contrary to the law of corporations. Second, EnviroClean claims the circuit court erred in affirming the revocation of the permit because ADPC&E’s decision was arbitrary, capricious, and an abuse of discretion; made upon unlawful procedure in excess of statutory authority; and violates constitutional rights and statutory provisions.
STANDARD OF REVIEW
We have recently set out the standard of review in an appeal from the Arkansas Pollution Control and Ecology Commission:
Review of administrative.'decisions, both in the Circuit Court and here, is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Administrative action may be regarded as arbitrary and capricious only when it is not supportable on any rational basis. It has been said that the appellate court’s review is directed, not toward the circuit court, but toward the decision of the agency. That is so because administrative agencies are better equipped by specializa tion, insight through experience, and more flexible procedures than courts, to determine and analyze legal issues affecting their agencies.
In Re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992) (citations omitted).
The requirement that the Commission’s decision not be arbitrary or capricious is less demanding than the requirement that it be supported by substantial evidence. Id. To be invalid as arbitrary or capricious requires that the Commission’s decision lacks a rational basis or relies on a finding of fact based on an erroneous view of the law. Id. To determine whether a decision is supported by substantial evidence, we review the record to ascertain if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).
In addition, despite EnviroClean’s assertion to the contrary, when we review ADPC&E’s permitting decisions, which are decisions ADPC&E is charged with administering pursuant to the police powers of the state and Ark. Code Ann. § 8-4-203 (Repl. 1991), we are reviewing determinations made by an executive agency and the doctrine of separation of powers requires that determination to be reviewed with judicial deference to ADPC&E’s expertise and specialization. Arkansas Comm’n on Pollution Control & Ecology v. Land Developers, Inc., 284 Ark. 179, 680 S.W.2d 909 (1984).
I. SUBSTANTIAL EVIDENCE / ERROR OF LAW
EnviroClean argues the decision to revoke its permit is not supported by substantial evidence and is contrary to the concepts of corporate law. Specifically, EnviroClean contends that the sale of 100% of its stock did not result in a transfer of the permit. In support of this argument, EnviroClean relies on Atkinson v. Reid, 185 Ark. 301, 47 S.W.2d 571 (1932) and Red Bird Realty Co. v. South, 96 Ark. 281, 131 S.W. 340 (1910). Atkinson stated that the distinct identity of a corporation, separate from its shareholder, is not lost due to the fact that a single shareholder owns all of the corporation’s stock. Red Bird Realty held that title to corporate property remains with the corporation regardless of who owns the stock. EnviroClean’s argument continues with the assertion that ADPC &E erroneously pierced the corporate veil in concluding the permit was transferred. ADPC&E responds with the claims that there is substantial evidence to support its actions without applying concepts of corporate law, and alternatively, that the form of the corporate entity may be disregarded on the facts of this case.
We agree with the foregoing rules of corporate law enunciated in Atkinson and Red Bird Realty, regarding the separate ownership of property by a corporation and its shareholders. However, corporate law is not the only area of law to be considered here. To the contrary, this is a case in which corporate law collides head-on with administrative law and its underlying public policies.
ADPC&E administers the Arkansas Water and Air Pollution Control Act, which has a legislative intent of maintaining the purity of the air resources of the state so that the least possible injury should be done to human, plant or animal life consistent with the public enjoyment of the state and the state’s economic and industrial well-being. Ark. Code Ann. § 8-4-301 (Repl. 1991). As the agency charged with administering the Water and Air Pollution Control Act, ADPC&E is given authority to issue, modify, and revoke permits regulating the emission of air pollutants. Ark. Code Ann. §§ 8-4-203, -304 (Repl. 1991). ADPC&E may revoke a permit for violation of any condition of the permit or when the permit is obtained by misrepresentation or failure to disclose fully all relevant facts. Ark. Code Ann. § 8-4-204 (Repl. 1991). Moreover, Ark. Code Ann. § 8-4-217(a)(3) (Repl. 1991) makes it unlawful to violate any provision of a permit.
This court has stated that in special circumstances the court will disregard the corporate facade when the form has been illegally abused. Black and White, Inc. v. Love, 236 Ark. 529, 367 S.W.2d 427 (1963). Giving the evidence its strongest probative force in favor of the administrative agency as we are required to do, Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129 (1988), our review of the record reveals there is substantial evidence that BioMed and EnviroClean sought to abuse the corporate form to achieve a transfer of the permitted facility in violation of paragraph 12 of the permit. The prohibition on transfers as stated in paragraph 12 of the permit enables ADPC&E to know who is responsible for the operational decisions of the permitted facility and thereby enables ADPC&E to prevent harm to the environment and the public. Thus, there is substantial evidence to support ADPC&E’s disregarding the corporate facade and concluding the permitted facility was transferred. In other words, there is substantial evidence to support the revocation of EnviroClean’s permit.
The record reveals EnviroClean was originally owned by Johnson as the sole shareholder. Upon the sale of EnviroClean stock, the four officers of EnviroClean resigned their offices and waived any rights to EnviroClean’s assets or permits. BioMed and EAC had common officers and shareholders and after the purchase of EnviroClean, the officers and shareholders of Bio-Med and EAC were common with EnviroClean. BioMed and EAC had the same office, telephone number, and address in Boston, Massachusetts. Two of BioMed’s shareholders, on behalf of BioMed, furnished all of the funds in acquiring EnviroClean.
That BioMed was deceptive in its efforts to obtain a permit issued to another corporation (i.e., EnviroClean as it existed prior to the change in ownership and control) is evident in several of the documents surrounding the sale of EnviroClean to BioMed. The parties contemplated a sale of a permit with incinerator capacity of 1,000 - 1,500 pounds per hour. EnviroClean only possessed a permit with a capacity of 250 pounds per hour. Thereafter, EnviroClean made application for increased capacity and the resulting permit was issued. The parties then contemplated a sale of stock in EnviroClean as well as the sale of the only assets of EnviroClean, which were described as the permit for 1,500 pounds per hour and an option to purchase 2.3 acres of real estate. BioMed had the option to purchase the real estate for the site of the incinerator and “to acquire the stock of EnviroClean (and thereby to acquire the permit held by EnviroClean).” The documents also indicated the transaction included “complete control of the construction and operation by BioMed under the permit previously obtained by EnviroClean.”
That EnviroClean and BioMed sought to circumvent the permitting process and obtain a permit it could not otherwise obtain is also evident in the prospectus BioMed registered with the Securities and Exchange Commission for its initial public offering of common stock. The prospectus states in pertinent parts:
BioMedical Waste Systems, Inc. is a development stage company organized to develop, construct, and operate medical waste incinerators and transfer stations____On May 31,1991 [,] the Company’s wholly owned subsidiary, EnviroClean Acquisition Corporation purchased the stock of EnviroClean, Inc., a company formed in 1990 to open and operate an 18 ton per day incineration facility in St. Francis County, Arkansas. (References in the Prospectus to the Company include the Company and its subsidiary EnviroClean Acquisition Corp.) EnviroClean has not commenced construction of any facilities and currently has no operations. However, it has been granted a permit by the Arkansas Department of Pollution Control and Ecology to construct and operate an incineration facility. ...
The Company, through the acquisition of EnvironClean [sic], has obtained a permit from the Arkansas Department of Pollution Control and Ecology for the construction of its first incinerator. . . . In addition, the permit for the St. Francis facility are [sic] subject to continued review by the Director of the Arkansas Department of Pollution Control and Ecology, and no assurance can be given that the permit will not be modified or even revoked in the future.
The evidence also reveals that EnviroClean and BioMed sought to abuse the corporate form by misrepresenting, the change in ownership and control to ADPC&E. On behalf of EnviroClean, Johnson wrote to the chief of ADPC&E’s air division and requested ADPC&E’s opinion as to the effect of a sale of stock on the permit. ADPC&E assured EnviroClean that a sale of stock would have no effect on the permit. However, EnviroClean’s request did not fully disclose the particular sale of 100% of the stock and the accompanying change in control of EnviroClean that actually occurred in this case; rather, Johnson’s written request referred to a mere “change in shareholders.”
Without question, there was more than a simple sale of stock going on here. Even more significant, however, is the fact that the change in complete ownership and complete control was under negotiation at the very moment in time EnviroClean requested ADPC&E’s opinion as to the effect of a “change in shareholders” and at the time Enviroclean was granted the increase in capacity of its permit. Equally significant is the intent of BioMed to acquire EnviroClean’s existing permit, rather than to apply for a permit itself as required by paragraph 12 of the permit in question.
The foregoing evidence of a transfer of the permitted facility from EnviroClean to BioMed along with the failure to disclose information as to the change in ownership and control of EnviroClean is substantial evidence in support of ADPC&E’s revocation of the permit. Our conclusion that a transfer of the permit and permitted facility occurred is a conclusion we reach because of our required deference to an administrative agency’s determination within its proper police power. We therefore hold there is substantial evidence to support ADPC&E’s actions in revoking EnviroClean’s permit and that no error of law was committed in the revocation.
II. ARBITRARY AND CAPRICIOUS / DUE PROCESS / ESTOPPEL
EnviroClean’s second broad assignment of error is that the revocation of the permit was arbitrary, capricious, and an abuse of discretion; made upon unlawful procedure in excess of ADPC&E’s statutory authority; and made in violation of statutory provisions and EnviroClean’s constitutional due process rights. EnviroClean also includes a claim that ADPC&E should be estopped from revoking the permit.
EnviroClean argues ADPC&E engaged in a selective, arbitrary, and capricious action against EnviroClean because ADPC&E had not previously required notice of a change in a permittee’s stockholders. EnviroClean also claims that because there is no regulation requiring the disclosure of a change in ownership or control of a permittee, ADPC&E had no discretion to revoke EnviroClean’s permit and this court should not give any deference to ADPC&E’s revocation.
We have already pointed out that air permitting deci sions are within ADPC&E’s police power and statutory authority and that such decisions of an executive agency are thus entitled to judicial deference on appeal. Land Developers, Inc., 284 Ark. 179, 680 S.W.2d 909. We need not decide whether the Commission’s revocation was arbitrary or capricious since it automatically follows that where substantial evidence is found, a decision cannot be classified as unreasonable or arbitrary. Wright, 311 Ark. 125, 842 S.W.2d 42.
EnviroClean argues its due process rights were violated in three respects: (l)there was no promulgated rule or regulation requiring the disclosure of a change in ownership or control of a permittee; (2) the existing rules and regulations are void for vagueness; and (3) because ADPC&E’s amended notice of revocation for misrepresentation and failure to fully disclose information amounted to a post-revocation attempt to supplement the initial basis for the revocation — a transfer in violation of the permit. These claims are moot. The permit itself prohibited transfer of the permitted facility and we have just held there was substantial evidence to support the finding that a transfer did occur in violation of the permit. Therefore, no rule or regulation is required to authorize the revocation. We do not decide moot issues. Arkansas Dep’t. of Human Servs. v. M.D.M. Corp., 295 Ark. 549, 750 S.W.2d 57 (1988).
Also under this broad assertion of error, EnviroClean includes a claim that because ADPC&E assured EnviroClean that a sale of stock would not affect the permit, ADPC&E is estopped from revoking the permit. EnviroClean relies on Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980) for the proposition that state agencies may be subject to estoppel in certain situations. However, EnviroClean overlooks that part of Foote’s Dixie Dandy stating that “[m]en must turn square corners when they deal with the government.” Foote’s Dixie Dandy, 270 Ark. at 824, 607 S.W.2d at 327 (quoting Rock Island, Arkansas & Louisiana R.R. v. United States, 254 U.S. 141, 143 (1920)). The hearing officer found that estoppel was not available to EnviroClean because it was not completely truthful with ADPC&E. We cannot say the hearing officer erred in making this finding.
SUMMARY
As the agency charged with enforcing the public policy of the state to protect the environment, and the public’s health, safety, and welfare, ADPC&E must be able to know the true identity of the persons or entities which own and control its corporate applicants and permittees. There was substantial evidence to support ADPC&E’s conclusion that EnviroClean transferred its permitted facility to BioMed, as those terms are used in and prohibited in the permit. Again, given this substantial evidence, we cannot say ADPC&E acted arbitrarily or that it abused its discretion in revoking EnviroClean’s permit.
The judgment is affirmed.
Brown, J. concurs. | [
116,
108,
-12,
-116,
24,
97,
120,
-93,
82,
-85,
-27,
83,
-17,
-42,
21,
59,
-29,
95,
-16,
121,
-58,
-78,
19,
98,
94,
-45,
115,
-53,
56,
79,
-28,
-2,
76,
32,
-54,
21,
-60,
64,
-57,
92,
70,
1,
-117,
96,
121,
70,
48,
43,
82,
15,
81,
28,
-13,
45,
25,
-53,
105,
46,
-23,
45,
75,
58,
-69,
21,
127,
23,
35,
-28,
-103,
-123,
72,
111,
-112,
49,
24,
-24,
115,
34,
-122,
116,
15,
91,
8,
1,
99,
1,
12,
-25,
-8,
8,
22,
-102,
15,
-92,
-112,
56,
75,
2,
-106,
-106,
60,
26,
14,
-2,
102,
-123,
95,
108,
3,
-54,
-44,
-79,
3,
-52,
-100,
1,
-21,
-29,
48,
52,
-33,
-26,
94,
95,
58,
-102,
-44,
-112
] |
Per Curiam.
Appellant, Susan Stanley by her attorney, Michael D. Ray, has filed a motion for rule on the clerk. Her attorney admits that the record was tendered late in an affidavit submitted in response to our per curiam order of September 20, 1993, and accepts responsibility.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam order dated February 5, 1979. In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).
A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
-76,
-20,
124,
60,
-118,
96,
50,
-82,
113,
-23,
35,
83,
-81,
-53,
28,
121,
-61,
-17,
85,
123,
-62,
-77,
119,
65,
54,
-13,
-13,
87,
-89,
-1,
-10,
-11,
76,
49,
-54,
-43,
70,
-118,
-115,
80,
-126,
5,
41,
-27,
-39,
12,
48,
33,
-48,
15,
49,
94,
-29,
42,
30,
71,
-88,
44,
77,
-114,
64,
-95,
-101,
-115,
127,
22,
-95,
-60,
-97,
-122,
-40,
106,
-116,
48,
2,
-24,
50,
-90,
6,
116,
111,
122,
8,
98,
98,
17,
-35,
-17,
-96,
-128,
6,
62,
29,
-90,
-38,
105,
-24,
45,
-122,
-75,
33,
52,
39,
126,
-28,
-51,
125,
44,
11,
-49,
-42,
-77,
15,
112,
-116,
42,
-21,
17,
16,
117,
-119,
-26,
92,
66,
51,
-109,
-50,
-92
] |
Robert H. Dudley, Justice.
Plaintiff Johnnie Peters was driving a pick-up truck on an access road entering Interstate 30 in Pulaski County. He stopped at a “yield” sign, which was positioned just before the access lane merges into the main lanes of traffic, and was struck from behind by a car driven by defendant, William Pierce. Defendant Pierce, appellee in this court, contended below that the accident was not his fault because plaintiff started to pull out onto the interstate and then stopped, and further contended the plaintiff was not damaged by the very limited impact. The only visible damage to the defendant’s car was a small dent in the top of the front bumper. The rear bumper of the plaintiffs truck was not bent, but was pushed downward. The case was tried once before and resulted in a $6,000 verdict for the plaintiff, but he appealed. We reversed and remanded because the plaintiff was not given the opportunity to answer the defendant’s misleading and incompetent testimony. Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992). Upon retrial, the jury returned a defendant’s verdict. The plaintiff again appeals. This time, we affirm.
Before the second trial, plaintiff filed a motion in limine and asked that the defendant not be allowed to argue that the case had been orchestrated by plaintiffs attorney. Defendant was attempting to support this argument, in part, by alleging that plaintiffs attorney had referred plaintiff to a physician. Alternatively, if that motion were denied, plaintiff asked that he be allowed to respond to the argument by showing the reason he employed counsel at the time he did was because the defendant’s insurance adjuster was rude to him. The trial judge listened to the pretrial arguments, weighed them, and ruled that it would be unduly restrictive not to allow the defendant’s attorney to draw an inference from the facts, which might be proved, and additionally ruled that it would create unfair prejudice to allow testimony about insurance. The trial judge concluded his ruling by stating: “I don’t think it would be unreasonable to have the plaintiff testify that I went to a lawyer because I needed help. I think that states the obvious.”
At the retrial, plaintiffs wife testified that plaintiff went to Dr. Jon Dodson before he employed an attorney. She admitted that she made a mistake in her deposition when she stated that her husband employed counsel a month after the accident. She testified he employed a lawyer only about a week after the accident, but that, no matter what the date, he was examined by the doctor before he employed counsel. She further testified: “We had a problem is why we needed a lawyer, yes. We didn’t want to fool with that. We needed to see about doctors, not lawyers at the time.” Plaintiff made a proffer of additional testimony, which he asked the trial court to allow. The only facts contained in the proffer, that were not already in evidence, were:
An adjuster from the insurance company called my husband just as we had gotten back from Dr. Dodson’s office, and was talking to him about his finance stuff. They gave him problems with paying benefits for his time off work, and he told them that he had just come from the doctor and didn’t feel like talking about it.
Plaintiff testified repeatedly, both on direct and cross-examination, that he went to Dr. Dodson for an examination before he employed counsel. He admitted that he was not sure of the dates on which he saw either of them, but he was certain that he was examined by the doctor either two or four days before he employed counsel. He admitted that someone referred him to Dr. Dodson, but stated that he could not remember who recommended that he see that particular doctor. Plaintiff made a proffer of the additional testimony he sought the trial court to allow. The only facts contained in the proffer, that were not already in evidence, were:
When we got home from the doctor, I got a phone call. I answered it. Because I was under medication, I was feeling bad. I didn’t feel like answering questions. I really don’t remember the lady that called me, but I presume it was from the insurance company.
On appeal plaintiff contends that, because the trial court permitted defendant’s counsel to argue that plaintiff’s counsel orchestrated the lawsuit, the trial court erred in refusing to allow him to testify that he went to an attorney only after the insurance adjuster was rude to him. In Younts v. Baldor Electric Co., 310 Ark. 86, 89, 832 S.W.2d 832, 834 (1992), we stated: “As a general rule, it is improper for either party to introduce or elicit evidence of the other party’s insurance coverage. This principle is part of the collateral source rule which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant.” However, a party cannot use the insurance exclusionary rule to mislead a jury or gain any kind of undue advantage, York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980), and, if a party gives misleading testimony, insurance coverage may become relevant to some other issue in the case. Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992); Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W.2d 174 (1962). Here, the proffered testimony would have given the jury the information that the defendant had insurance, and we have said that it is inherently prejudicial to inform a jury of insurance coverage. Hively v. Edwards, 278 Ark. 435, 646 S.W.2d 688 (1983). In addition, the proffered testimony would have had only marginal relevance to the issue of when the plaintiff employed counsel, and it would have been only slightly probative of the issue.
A trial judge may exclude evidence, although relevant, if its probative value is substantially outweighed by the danger of unfair prejudice. A.R.E. Rule 403. The standard of review of a trial court’s weighing of probative value against unfair prejudice is whether the trial court abused its discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Here, the mention of insurance would have caused substantial unfair prejudice, and it would have had only a slight probative value on the issue of orchestration. Thus, we cannot hold that the trial court abused its discretion in refusing to allow the proffered testimony about insurance.
Plaintiff-appellant alternatively argues that the trial court abused its discretion in denying his pretrial motion to prohibit the defendant from arguing that plaintiff’s attorneys orchestrated the lawsuit. The trial court was obviously concerned about the issue and preliminarily ruled that the defendant could argue any facts that might be proved along with the fair inferences that arose from those facts. However, defense counsel, during his opening statement, stated: “Dr. Dodson is one of those people you will'find that he is one of those doctors that nobody has ever seen in their life until after they’ve been in an automobile accident and have a lawyer see them.” Plaintiff objected, and the trial court sustained the objection with the admonition, “Let’s keep it straight.” There was no proof that Dr. Dodson was one of those people that nobody sees until they are involved in a car accident. In closing argument, defense counsel stated, “I still say he was sent there by the lawyer. . . .” No objection to the argument is abstracted. The trial court subsequently instructed the jurors that the argument of counsel was not evidence. In our decisional conference on this case, the defendant’s argument was discussed at length. There was concern about the unfairness of the argument, but it was decided that the trial court did not abuse its discretion in the rulings it was asked to make. There is nothing to show that the trial court should have anticipated, before trial, that defense counsel would argue that “he is one of those doctors that nobody has ever seen in their life until after they’ve been in an automobile accident and have a lawyer see them.” The pretrial motion was apparently the only time the issue was raised. The appellant has abstracted only one other objection, the one in which the trial court sustained his objection with the admonition, “Let’s keep it straight.” Thus, we cannot say that the trial court abused its discretion in any ruling it was asked to make.
Plaintiff’s second assignment is that the trial court erred in allowing the defendant to prove that plaintiff was receiving a pension and in allowing proof of the amount of that pension. The ruling was erroneous. In general, compensation that is not to be deducted from the recovery should not be disclosed to the jury, as there is no reason to do so, and prejudice will result. Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972). See also Annotation, Collateral source rule: receipt of public or private pension as affecting recovery against tortfeasor, 75 A.L.R.2d 885 (1961). There are exceptions to the general rule, see Annotation, Admissibility of Evidence that Injured Plaintiff Received Benefits from a Collateral Source, on Issue of Malingering or Motivation to Extend Period of Disability, 47 A.L.R.3d 234 (1973). As indicated, this court follows the general rule regarding a collateral source, which would extend to cover pensions. The next to last paragraph of the opinion in Transit Homes, Inc. v. Bellamy, 282 Ark. 453, 671 S.W.2d 153 (1984), might be read to conflict with our earlier cases although it involves credit on a subrogation claim. In order to prevent confusion, we overrule the paragraph to the extent it might be read to conflict with any earlier case.
Even though the ruling allowing evidence of the pension and the amount plaintiff received from it was in error, plaintiff cannot show that he was prejudiced by that ruling. We will not reverse in the absence of a showing of prejudice. McNair v. Ozark Gas Transmission System, 292 Ark. 235, 729 S.W.2d 165 (1987). In this case the jury returned a general verdict for the defendant. The jury may well have reached its verdict by determining that the plaintiff’s fault was equal or greater than that of the defendant. Thus, the jury may have never considered the issue of damages, and plaintiff cannot show prejudice. We will not reverse in the absence of a showing of prejudice. See Webb v. Thomas, 310 Ark. 553, 837 S.W.2d 875 (1992).
Affirmed. | [
-16,
-18,
-95,
13,
9,
66,
18,
10,
81,
-125,
117,
-13,
-81,
-57,
12,
45,
-18,
-71,
85,
43,
-11,
-77,
3,
-14,
-46,
51,
43,
71,
-120,
-53,
108,
-108,
77,
112,
10,
-59,
102,
74,
-19,
24,
78,
-106,
-101,
108,
25,
-110,
44,
112,
64,
23,
-75,
-97,
67,
46,
56,
67,
73,
44,
59,
-83,
-48,
113,
-44,
5,
127,
4,
-111,
84,
26,
-123,
88,
10,
-40,
49,
32,
-88,
114,
-74,
-126,
-12,
105,
-101,
12,
-90,
98,
3,
1,
-51,
-4,
-72,
39,
126,
13,
-90,
-120,
57,
75,
11,
-65,
-97,
126,
20,
20,
-38,
-4,
69,
93,
104,
7,
-114,
-80,
-79,
-59,
52,
-98,
11,
-17,
-107,
54,
112,
-49,
-30,
93,
-59,
123,
-109,
3,
-78
] |
Robert H. Dudley, Justice.
Appellant was first convicted of two counts of capital murder and two counts of attempted capital murder. He was sentenced to death by lethal injection on one of the counts of capital murder, life imprisonment on the other count of capital murder, and thirty years imprisonment on each of the counts of attempted murder. We reversed and remanded because of trial error. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). Upon retrial, he was found guilty of one count of capital murder and two counts of attempted capital murder. He was sentenced to life imprisonment without parole for the capital murder and to thirty years for each conviction of attempted capital murder, with the sentences to run consecutively. He again appeals. This time we affirm the judgment of convictions.
Appellant makes seven assignments of error. We decided six of the assignments in the first appeal, and those holdings have become the law of the case. We will not consider the same points again. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993).
In appellant’s seventh assignment he argues that the trial court erred in ruling that he was competent to stand trial. The test to determine if an accused is competent to stand trial is whether he is aware of the nature of the charges against him and is capable of cooperating effectively with his attorney in the preparation of his defense. Ark. Code Ann. § 5-2-302 (1987). We have said that in order to be competent to stand trial an accused must have the capacity to understand the nature and object of the proceedings brought against him, to consult with counsel, and to assist in the preparation of his defense. Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). Upon appellate review of a finding of an accused’s fitness to stand trial, the appellate court will affirm if there is substantial evidence to support the finding of the trial court. Id. There was substantial evidence to support the finding of the trial court.
O. Wendall Hall, a psychiatrist and the medical director of the forensic services unit of the state hospital, testified that he, two psychologists, and two social workers participated in a staffing, or a two-and-one-half hour examination, of appellant. Dr. Hall testified that they asked appellant numerous questions, and that appellant gave adequate responses about the crimes with which he was charged and about the nature of a criminal prosecution. Dr. Hall testified that appellant spoke in “fairly complete” sentences and that appellant seemed to have better hearing than he had two years earlier.
John Anderson, a doctor of psychology who is also employed by the state hospital and whose principal job is to evaluate individuals for trial competency, testified that appellant was asked a series of questions designed to assess whether he had a rational understanding of the charges against him and whether he could assist his attorney. Dr. Anderson testified that from appellant’s answers to these questions, and also from the records from appellant’s previous time spent at the state hospital, it was his opinion that appellant was able to understand the nature and object of the pending charges, to consult with his attorney, and to assist in the preparation of his defense.
Opposed to the foregoing, appellant offered the testimony of John Marino, a psychiatrist who previously had been employed by the state hospital. Dr. Marino testified that appellant was not competent to stand trial because of the irreparable neurological damage suffered when he shot himself in the head. Dr. Marino testified that appellant could not understand more than a few words at a time and would not be able to assist in his defense because he could not understand the meaning of the events that would take place in the courtroom.
Appellant devotes a considerable part of his argument to weighing the conflicting testimony of the expert witnesses, but in determining whether there is substantial evidence to support a finding of the trial court we do not reweigh the evidence. Rather, we determine whether there is substantial evidence to support the trial court’s finding. 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 a finding. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In a comparable case, Carrier v. State, 278 Ark. 542, 647 S.W.2d 449 (1983), we wrote:
The appellate court does not attempt to weigh the evidence or pass on the credibility of the medical reports where the opinions of the doctors conflict. Parker, supra. [Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980)]; Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981). This Court must affirm the trial court’s finding on the issue of sanity if there is substantial evidence to support it. Parker, supra. In appellant’s case the psychiatric report of the Arkansas State Hospital concluded that he was “fit and responsible.” We find this to be substantial evidence to support the trial court’s finding.
Id. at 543-44, 647 S.W.2d at 450.
The same is true in this case. The testimony of Drs. Hall and Anderson was substantial evidence to support the trial court’s finding. We will not reweigh their credibility against that of Dr. Marino. As we have often explained, the trier of fact observes the witnesses firsthand, sees their demeanor and responsiveness in answering questions, and'is in the best position to determine which was the more credible witness.
In compliance with Rule 4-3 (h) of the Rules of the Supreme Court and the Court of Appeals, an examination has been made of the record in this case, and there are no adverse rulings to appellant that constitute reversible error.
Affirmed. | [
112,
-22,
-39,
-97,
11,
64,
58,
10,
67,
-61,
101,
-13,
-83,
-57,
65,
105,
-79,
-87,
69,
121,
-68,
-73,
3,
97,
-78,
-6,
73,
-43,
-77,
109,
-4,
-43,
73,
112,
-54,
69,
-62,
72,
-25,
90,
-114,
-119,
-102,
101,
75,
0,
49,
119,
84,
7,
53,
30,
-93,
106,
30,
-53,
105,
40,
74,
-68,
64,
-79,
-106,
13,
-17,
20,
-95,
-122,
-97,
-123,
112,
46,
-36,
49,
0,
-4,
48,
-106,
-126,
84,
107,
-103,
12,
98,
-30,
-128,
25,
-51,
-23,
-71,
63,
62,
-115,
-89,
-104,
80,
75,
13,
-105,
-3,
126,
-76,
14,
-4,
-3,
-107,
89,
124,
35,
-97,
-80,
-79,
77,
40,
-34,
-8,
-29,
5,
16,
117,
-52,
-30,
84,
71,
123,
-69,
-85,
-42
] |
David Newbern, Justice.
The appellant, Leon Mask, was convicted of two counts of aggravated robbery and one count of kidnapping and sentenced to three forty-year prison terms to run consecutively. He argues the Trial Court erred by (1) failing to run his sentences concurrently, (2) allowing one of the robbery victims to sit at counsel’s table after testifying, (3) failing to hold a pretrial hearing on the issue of his competency to stand trial, (4) finding him competent to stand trial, (5) overruling his directed verdict motion. We must reverse on the second point. After a discussion of the evidence, we will first address point 5, Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), and then move on to other points which may arise upon retrial. We will not address the point complaining about error in imposing consecutive sentences because no objection was raised at the trial. Fellows v. State, 309 Ark. 545, 828 S.W.2d 847 (1992).
Altheia Henderson testified that a man she later identified as Mask entered Rainbow Food Mart # 5 in El Dorado at approximately six o’clock in the evening of January 20th, 1992, as she began her cashier shift. Mask paid for gasoline and left the store. Ms. Henderson testified he returned shortly thereafter and went to the bathroom located inside. He then got a cup of coffee and waited until the remaining customers had left. He approached the counter, pointed a gun at her, and asked for the money contained in the cash register and safe. He then forced Ms. Henderson at gunpoint to get into his car and drove to Rainbow Food Mart § 3, another convenience store in El Dorado.
On the way to the second store Mask became upset and again threatened Ms. Henderson with the gun when she did not promptly answer his question regarding how much money had been in the safe. When Mask left the car to enter the second store, Henderson fled to a nearby house and called the police. She identified Mask from photographs prepared by the police and identified him at trial as the robber.
Patricia Curry testified of working at Rainbow Food Mart # 3 when Mask entered the store, pointed the gun at her, and took the money from the cash register. Ms. Curry was able to provide police with the license number of the car Mask was driving. It was traced to Mask’s sister who said Mask had borrowed her car that evening.
At trial, Mask relied exclusively on the defense of not guilty by reason of insanity. He testified he did not remember any of the events occurring after six o’clock in the evening on the 20th. He did not remember committing any robberies and only turned himself in to the police to find out what had happened and why he was in trouble. He stated he heard strange sounds, saw visions of people talking to him, and had tried to commit suicide three times after the arrest. Mask’s father testified his son had not been himself since the arrest and needed psychological help.
In rebuttal, the State offered the testimony of Dr. John. Anderson, a licensed psychologist employed by the Arkansas Division of Mental Health. Dr. Anderson was the primary evaluator responsible for determining whether Mask was competent to stand trial and whether he was legally responsible for his actions at the time of the alleged offenses. At the conclusion of the examination, Dr. Anderson found Mask suffered from no mental disease or defect which might render him incompetent to stand trial or not responsible for his actions. Instead, Dr. Anderson diagnosed Mask as “malingering,” which meant he was feigning a mental illness for some secondary purpose. Dr. Anderson based this diagnosis in part on the fact that Mask was uncooperative with examiners by refusing to answer questions but would interact well with other patients during recreational activities. Dr. Anderson found Mask’s behavior inconsistent with a mental disease or defect and found no medical explanation for the behavior other than malingering.
1. Directed verdict
Mask asserts the Trial Court should have directed a verdict in his favor because the State failed to sustain its burden of proving he purposely committed the crimes and because he proved he was not guilty by reason of insanity by a preponderance of the evidence. Once the State meets its burden of proving the elements of the offense beyond a reasonable doubt, the burden shifts to the defendant to prove an affirmative defense by a preponderance of the evidence. See Walker v. State, 308 Ark. 498, 825 S.W.2d 822 (1992).
The question on appeal from a denial of a directed verdict is whether there is substantial evidence to support the verdict. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). The State presented substantial evidence that Mask employed physical force with the purpose of stealing the money in the cash registers and safe. Ark. Code Ann. § 5-12-103(a)(1) (1987). There was substantial evidence that Mask forced Henderson into his car at gunpoint with the purpose of facilitating the commission of another aggravated robbery. Ark. Code Ann. § 5-11-102(a) (1987). The testimony of the two victims provides substantial evidence of Mask’s intent to commit the crimes.
Mask’s main argument concerns his affirmative defense asserted at trial that he was not guilty by reason of mental disease or defect. He contends there is insufficient evidence to support the jury’s finding that he was sane or had the mental capacity necessary to perform the crime.
It is well settled that Mask had the burden of proving his affirmative defense by a preponderance of the evidence. Ark. Code Ann. § 5-2-312 (1987); Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979). Mask failed to offer any substantial evidence that he suffered from a mental disease or defect. Although he claimed he heard sounds, saw visions, and tried to commit suicide, the jury is not required to believe the testimony of the accused. Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). The State offered expert testimony, uncontradicted by other expert testimony, that Mask suffered from no mental disease or defect at the time of the offenses. There was substantial evidence to support the jury verdict.
2. Seating of victim
The Trial Court committed reversible error by allowing Ms. Henderson to sit at counsel’s table during the trial. After Ms. Henderson testified, the State requested she be allowed to sit at counsel’s table during the remainder of the trial. Defense counsel objected on the ground that the seating arrangement would prejudice Mask and inflame the jury. The Trial Court overruled the objection, determining Henderson had a right to be seated at the table under Ark. R. Evid. 616. Colloquy among counsel and the Trial Court was as follows:
MS. COMPTON: [Deputy Prosecutor] We call Judy Dumas and also ask the Court to allow the victim of the aggravated robbery to be seated at counsel table with us.
MR. BARKER: [Defense Counsel] Your Honor, may we approach?
THE COURT: Yes, sir.
COUNSEL AT THE BENCH OUT OF HEARING OF THE JURY:
MR. BARKER: Your Honor, I’m going to object to her sitting at the counsel table. This is a crime against the. State of Arkansas. I don’t think that it would serve any purpose other than to prejudice my client and inflame the jury’s passion. I think it’s completely unnecessary. Therefore, I would object.
THE COURT: The objection is overruled. Under Rule 616, the victim of a crime may sit at counsel table throughout the trial.
MR. BARKER: Yes, sir.
MS. COMPTON: Thank you, your Honor. I don’t have any problem with her sitting some place other than at the counsel table. She does want to be in the courtroom.
THE COURT: I don’t want her talking to other people. That’s why she should sit at the counsel table.
MS. COMPTON: I understand.
THE COURT: There’s too much conversation going on.
MS. COMPTON: I understand.
Mask contends allowing the victim to sit directly in front of the jury unduly emphasized her testimony and unfairly prejudiced him. He concedes there is no way to know for certain whether the seating arrangement had any improper effect on the verdict, but we observe that the jury recommended the maximum number of years on each charge short of life imprisonment.
As a general rule, a trial court may control the seating arrangement in the courtroom, and unless a party suffers some prejudice from the arrangement, seating is not a ground for reversal. Webster v. State, 284 Ark. 206, 680 S.W.2d 906 (1984). In this instance, however, Ark. R. Evid. 616, which we adopted in our opinion in Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986), is relevant. The Trial Court misinterpreted it. It says nothing about allowing a victim of a crime to sit at counsel’s table. The Rule states:
Rule 616. Right of victim to be present at hearing. — Notwithstanding any provision to the contrary, in any criminal prosecution, the victim of a crime, and in the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim’s parents, guardian, custodian or other person with custody of the alleged minor victim shall have the right to be present during any hearing, deposition, or trial of the offense.
Mask concedes that, pursuant to Rule 616, Henderson had a right to remain in the courtroom after she testified. The question is whether Mask was prejudiced by her sitting at counsel’s table as opposed to sitting in the spectator area of the courtroom.
In Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), we reversed a conviction when the Trial Court allowed three policemen who had testified against Moore to sit inside the railing in the courtroom, in a place normally reserved for parties, directly in front of the jury, during closing arguments. Despite the fact that the policemen were not in the courtroom during the testimony of any other witnesses, the State argued their presence was necessary to give the Court security from a rumored escape attempt. We held the case presented a manipulation of the seating arrangement in the name of security to emphasize the testimony of certain witnesses over others. The occurrence was tantamount to the Trial Court expressing an opinion on the credibility of witnesses. We see the same danger here. Moore was given the maximum sentence. Mask was given the maximum number of years for each of the three offenses, and the three 40-year sentences were stacked, resulting in a sentence to 120 years imprisonment.
Arkansas Rule of Evidence 615 deals with exclusion of witnesses from the courtroom upon motion or upon the initiative of a trial court. It makes an exception which precludes exclusion of “a party who is a natural person.” It also allows for an “officer or employee of a party that is not a natural person designated as its representative . . . or a person whose presence is shown by a party to be essential to the presentation of his cause.” It too says nothing about allowing a witness to sit at counsel’s table.
Ms. Henderson was not a party to this case. The prosecuting party was the State of Arkansas. Some states allow the victim of a crime to sit at counsel’s table by statute. See, e.g., Crove v. State, 485 So.2d 351 (Ala. Cr. App. 1984). We have no such law. In the Moore case we recognized that it was improper for a trial court, in the name of security, in effect to comment on the evidence. We see no significant difference between this case and that one.
3. Competency to stand trial
a. Right to a hearing
Mask argues the Trial Court erred by not holding a pretrial hearing on his competency to stand trial. Prior to trial, Mask notified the Court of his intention to raise the affirmative defense of mental disease or defect, and he was subsequently committed to the State Hospital for examination. On October 22,1992, the examiners provided the Court with their report stating Mask was aware of the nature of the charges filed against him and was capable of cooperating effectively with an attorney in the preparation of his defense.
Arkansas Code Ann. § 5-2-309(b) (1987) provides that if neither party contests the competency finding, the court may make the determination on the basis of the examiner’s report. If the finding is contested, the court shall hold a hearing on the competency issue. Ark. Code Ann. § 5-2-309(c) (1987). Here, there is no indication in the record that Mask contested the finding, and thus according to the language of the Statute, the Court was not required to hold a hearing on the issue.
b. Competency determination
Mask next states the Trial Court erred by finding him competent to stand trial. As stated previously, the report which was uncontradicted stated Mask was able to understand the proceedings against him and assist in his own defense. Ark. Code Ann. § 5-2-302 (1987). We find no evidence which would support a finding that Mask was incompetent to stand trial. A defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial, and the burden of proving incompetence is upon the defendant. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980); Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978).
Reversed and Remanded.
Glaze and Corbin, JJ., dissent.
Tom Glaze, Justice.
No cognizable legal reason exists which authorizes the majority court to reverse this case. The court’s decision not only improperly invades a trial judge’s responsibility and province to conduct a fair trial as the circumstances arise and warrant, it also presumes the jurors in this case were incapable of reaching a fair verdict on the overwhelming evidence of guilt presented them.
Mask concedes Altheia Henderson, the victim of Mask’s crimes, had a right to remain in the courtroom during the trial. His only objection is that Ms. Henderson was permitted to sit at the counsel table. After Mask’s counsel made her objection, the trial judge said, “I don’t want her [Henderson] talking to other people. That’s why she should sit at the counsel table.” The judge added, “There’s too much conversation going on.” Defense counsel offered no response to the trial judge’s remarks.
The judge is not merely the chairman of the trial, who must remain mute until a party calls upon him or her to make a ruling, the judge has some responsibility for the proper conduct of the trial and the achievement of justice. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). This court has also said that a trial court’s rulings on matters pertaining to the conduct of trial and the admission of evidence are within the judge’s discretion, and such rulings will not be set aside absent a manifest abuse of discretion. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982).
Here, the trial judge gave a sound reason why he seated Ms. Henderson at the counsel table, and defense counsel stood mute, giving no countermanding reason for seating Henderson elsewhere in the courtroom. In my view, it is nonsensical to say that the mere seating of the prosecuting witness in a courtroom can automatically be reversible error when the witness is placed at the counsel’s table. After all, if Henderson’s seating distance from the jurors was defense counsel’s concern, Ms. Henderson could have seated herself on the spectator’s front row near the jury box to make the jurors mindful of her presence. If defense counsel’s concern was the jurors’ perception of the victim’s alliance with the state in this trial, I pose the question, “Are jurors so ignorant of the criminal trial process that they do not know the state’s case rests largely on the victim’s account of how she was criminally violated?” The state’s case against Mask depended upon two victims’ accounts of Mask’s crime spree, and I suggest jurors are intelligent enough to know the prosecutor is relying on these victims’ testimonies and descriptions of what occurred in order to convict Mask of the charges filed against him.
In the present case, it is easier to speculate that Mask’s, not Henderson’s, presence at counsel’s table was what produced the sentences he received. Mask’s guilt was proved by overwhelming evidence and a recitation of the evidence is set out in the majority opinion. Mask committed two robberies at gun point and a kidnapping. Mask offered no proof he did not perform these crimes, and the jury had every reason based on the evidence to give Mask the sentences imposed, and it is rank conjecture to suggest Henderson’s mere presence at the counsel’s table caused such sentences. The state properly points out that Mask concedes in his brief that he could show no prejudice resulted by the victim’s presence at the prosecution’s table. Nonetheless, the majority court takes it upon itself to find prejudice by asserting the jury recommended “the maximum number of years imprisonment short of life.” Of course, the jury could have recommended life imprisonment but instead recommended forty years. Clearly, Mask did not receive the maximum punishments and the majority court’s sleight-of-hand and improper attempt to re-define “maximum sentence” in its effort to show prejudice and reversible error is patently wrong. To require reversal, Mask was required to demonstrate prejudice. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). Prejudice does not arise out of “thin air” as the majority has attempted to do in this case.
Also, I note that the majority opinion mentions that somehow Henderson’s presence was tantamount to the trial court’s expressing an opinion on her credibility as a witness, but there is nothing in the record that reflects the jurors were aware of the trial court’s ruling on this matter or of its concern as to how to conduct or control the trial.
In conclusion, it was Mask’s burden on appeal to show the trial judge manifestly abused his discretion when he ruled Henderson should sit at counsel’s table. The reason given by the trial judge reflected his attempt to assure nothing the victim might say or do during trial would keep Mask from getting a fair trial. Under these circumstances, the trial judge’s ruling was in Mask’s best interests; certainly Mask made no attempt to show otherwise. Even if you accept the majority’s assertion that error occurred here, such an error was harmless. When the evidence of guilt is overwhelming, an error of even constitutional proportions may be found to be harmless beyond a reasonable doubt. Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990); Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987). I should also note here that the majority cites Moore v. State, 299 Ark. S.W.2d 834 (1989), where this court reversed because law enforcement officers were allowed to sit inside the courtroom railing. That case was a 4-3 decision, but factually that case is so distinguishable it is in no way controlling. There, police officers had no right to be in the courtroom during trial; here the victim(s) had every right to be present throughout the entire trial under our Rule of Evidence 616.
The majority is wrong to reverse this case under the facts set out in the opinion. For the foregoing reasons, I would affirm.
Corbin, J., joins this dissent. | [
112,
-2,
-23,
63,
26,
96,
62,
-118,
67,
-126,
-11,
-109,
-83,
-53,
21,
107,
-35,
127,
116,
105,
-42,
-89,
39,
33,
-14,
-5,
-40,
-43,
-78,
75,
52,
-43,
76,
112,
-54,
89,
98,
90,
-27,
84,
-114,
-125,
-86,
98,
96,
2,
32,
110,
2,
-113,
113,
-100,
-29,
42,
18,
-49,
72,
44,
75,
61,
96,
57,
-66,
71,
-51,
20,
-93,
38,
-69,
7,
-6,
15,
-100,
49,
0,
40,
115,
-74,
-126,
100,
109,
27,
12,
98,
98,
4,
76,
78,
-20,
-95,
62,
119,
-97,
-89,
-100,
64,
75,
45,
-105,
-35,
126,
52,
14,
-20,
-12,
28,
89,
108,
7,
-33,
-76,
-109,
-51,
108,
-76,
-70,
-13,
33,
-79,
113,
-50,
-30,
85,
71,
122,
-101,
11,
-11
] |
Jack Holt, Jr., Chief Justice.
The appellant, Reginald S. McCullough, is an attorney in Little Rock. One of his clients, Jacqualine Dedman, filed a complaint with the Arkansas Supreme Court Committee on Professional Conduct (“Committee”), in which she asserted that Mr. McCullough had been employed by her family in January 1987 to handle the probate of her mother’s estate but had failed to follow up on any details of his work or to keep her reasonably informed as to the status of the case in probate. As of April 17, 1992, probate had not been concluded on the estate.
After reviewing Ms. Dedman’s complaint, Mr. James A. Neal, Executive Director of the Committee, sent by mail a letter to Mr. McCullough advising him of its existence and that, under the Arkansas Model Rules of Professional Conduct, he had twenty days to respond to her complaint. The letter and a copy of Ms. Dedman’s complaint were sent to Mr. McCullough by certified mail, dated April 20, 1992, restricted delivery, at his address as listed with the Clerk of the Arkansas Supreme Court. Although notice was sent to Mr. McCullough on two occasions, the complaint was never picked up, and on May 6,1992, the U.S. Postal Service returned the envelope to Mr. Neal’s office stamped “Unclaimed.”
As a result, Ms. Dedman’s complaint was submitted to the Committee for appropriate action. On August 6, 1992, the Committee caused its Director, Mr. Neal, to send Mr. McCullough another letter by certified mail, informing him that, pursuant to the procedures of the Arkansas Supreme Court regulating professional conduct of attorneys at law, his license to practice law was to be suspended for a period of three months. The letter notified Mr. McCullough that he had a right for a public hearing de novo before the Committee upon written request within twenty days. Delivery was by certified, restricted mail, at the same address as the previous letter on August 6,1992, and was picked up by Mr. McCullough fifteen days later on August 21, 1992. The letter specifically provided that:
It is the decision of the majority of the Committee that your conduct in this matter was a violation of Rules 2.3, 1.4(a) and 8.4(d) of the Model Rules of Professional Conduct as amended by the Arkansas Supreme Court. The Arkansas Supreme Court has adopted these Rules as the standard of conduct for Arkansas attorneys.
These Rules state, in part, that a lawyer shall act with due diligence and promptness in representing a client; shall keep a client reasonably informed about the status of a matter and shall not engage in conduct that is prejudicial to the administration of justice.
You are hereby suspended from the practice of law for this conduct for a period of three (3) months, and the Committee intends to advise the complainant of the specific disciplinary action taken when the matter is concluded.
The Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law provide you have the right to a public hearing de novo, before this Committee upon written request within 20 days. The press will be given advance notice of the hearing and identity of the attorney involved. In the absence of such a request, this suspension will be entered in the files of the Committee and may be considered in determining the action it might take in the event of any further complaints filed against you. Also, this suspension will be filed as a public record with the Clerk of the Arkansas Supreme Court.
Mr. McCullough does not dispute the fact that he received this second letter; his counsel acknowledges its receipt by Mr. McCullough, both in his brief and during the course of oral argument. Mr. McCullough failed to answer to this notification from the Committee or to take any action whatsoever.
On September 12, 1992, some thirty-four days after Mr. McCullough received notice of his suspension and right to a hearing upon written request within twenty days from notice, the Committee caused another letter to be sent to Mr. McCullough, again by certified mail, advising him of his suspension. Shortly thereafter, Mr. McCullough responded by filing a notice of appeal.
On appeal, Mr. McCullough raises six issues centered on the contention that the Committee never acquired jurisdiction over his person and, thus, that its actions are of no avail. He contends that the attempted service of process on him was insufficient and that the service of process requirements contained in Ark. R. Prof. Cond. § 5B(1) in our procedures regulating the conduct of attorneys are constitutionally deficient in failing to afford him due process. We do not reach the merits of a majority of these arguments because Mr. McCullough simply did not exhaust his administrative remedies furnished by our rules.
Mr. McCullough’s claim of lack of jurisdiction over his person cannot be sustained under the circumstances. Amendment 28 to the Arkansas Constitution provides that the Supreme Court shall make rules regulating the practice of law of the professional conduct of its attorneys at law. It necessarily follows that this Court derives its power through Amendment 28 to establish and maintain, through its Committee on Professional Conduct, jurisdiction over a lawyer’s person by virtue of the issuance of his license to practice law.
Turning to our rules, the Rules of the Court Regulating Professional Conduct of Attorneys at Law stipulate the procedures which are to be followed when the Committee adjudicates complaints against an attorney-at-law. Once a client’s complaint is processed as a formal complaint by the Office of Professional Conduct, the rules mandate that the attorney be sent a copy of the complaint:
At the direction of the Committee or upon a determination by the Executive Director that a complaint should be processed as a formal complaint, the Executive Director shall: (1) Furnish to the attorney complained against a copy of the formal complaint and advise the attorney that he may file a written response in affidavit form with any supporting evidence desired. The attorney’s mailing address on record with the Clerk shall constitute the address for service. Certified mailing of the formal complaint to said address shall be deemed service on the attorney.
Ark. R. Prof. Cond. § 5B(1).
The attorney has twenty days in which to file a written response to the client’s complaint. At the end of that time, the seven-member Committee on Professional Conduct votes by ballot on the action to be taken against the attorney. When, as here, the Committee votes to suspend the attorney, “the attorney shall be notified of the findings and vote of the Committee, and be advised that he has a right, upon written request within twenty (20) days, to a hearing before the Committee. . . .” Ark. R. Prof. Cond. § 5E(3). When a hearing is requested, the written ballots are destroyed, and the Committee will hear the complaint de novo. Ark. R. Prof. Cond. § 5F(1).
These rules provide for an appeal to this court after the de novo hearing has occurred:
A respondent attorney aggrieved by an action of the Committee taken subsequent to a hearing, may appeal to the Arkansas Supreme Court by filing a Notice of Appeal with the Executive Director within thirty days (30) after the filing of the Committee action with the Clerk. In appeals directly from the Committee, the action shall proceed as an action between the Executive Director and the respondent.
Ark. R. Prof. Cond. § 5H(1) (emphasis added).
Although Mr. McCullough did not receive the first letter informing him of the complaint filed against him by Ms. Dedman, he, by his own admission, did receive a copy of the second letter informing him of the Committee’s decision to suspend him and advising him that he had a right to a hearing de novo before the Committee. He failed to request this hearing even though he had an absolute right to do so.
While Mr. McCullough’s lack of receipt of the first letter from the Committee may tend to render constitutionally suspect the question of notice, as a practical matter the issue became moot once he received the second letter. Mr. McCullough asserts that the unclaimed original notice effectively tainted the subsequent notice of the nature of the complaint against him, the actions of the Committee, and his right to a hearing. Yet McCullough’s contention ignores the basic fact that he received actual notice and was apprised of his right to a hearing, which he ignored completely.
In Sexton v. Arkansas Supreme Ct. Comm. on Prof. Conduct, 299 Ark. 439, 446, 774 S.W.2d 114, 118 (1989), cert. denied, 110 S.Ct. 1782 (1990), we stated that the Committee on Professional Conduct is “in the nature of an administrative agency, which is not bound by the rules of the courts.” And, as in administrative law, we hold that an attorney must exhaust his administrative remedies before instituting litigation to challenge the action of our Committee, except where it would be futile to pursue the remedy provided by our rules or where there was no genuine opportunity to do so. See Arkansas Motor Vehicle Comm’n v. Cantrell Marine, 305 Ark. 449, 808 S.W.2d 765 (1991); Consumers Co-op Ass’n v. Hill, 233 Ark. 59, 342 S.W.2d 657 (1961).
Here, upon actual receipt of a notice of suspension of his license, Mr. McCullough was afforded a remedy under our rules — an absolute right to a de novo hearing before the Committee. He merely failed to exhaust his remedies by neglecting to exercise his right. For this reason, he has waived his right to appeal to this court.
Ark. R. Prof. Cond. § 5H(1) has no application due to this waiver.
Appeal dismissed. | [
60,
-19,
-124,
60,
40,
67,
50,
-102,
83,
-119,
97,
83,
-17,
-25,
-100,
111,
123,
-7,
-12,
107,
-60,
-74,
87,
96,
66,
-13,
-23,
-43,
59,
-3,
-20,
-1,
92,
40,
-54,
-59,
70,
74,
-63,
-40,
-122,
34,
11,
-4,
89,
-59,
48,
57,
94,
15,
85,
-34,
-29,
58,
29,
-50,
108,
108,
89,
-89,
64,
-79,
10,
29,
127,
18,
-111,
38,
-104,
7,
88,
46,
-104,
49,
-119,
-8,
115,
-74,
26,
68,
103,
-39,
12,
102,
98,
48,
-115,
-25,
-88,
-88,
70,
60,
-99,
-90,
-71,
105,
107,
79,
-106,
-107,
42,
16,
66,
-4,
-30,
-35,
23,
40,
9,
-50,
-44,
-79,
22,
116,
-100,
11,
-21,
-121,
20,
117,
-52,
-16,
93,
71,
49,
27,
-122,
-15
] |
David Newbern, Justice.
Derek Charles Coleman was convicted of first degree murder and sentenced to life imprisonment for shooting David Stewart to death at Big Daddy’s Lounge in Jericho. His two points of appeal are that the Trial Court erred in overruling his directed verdict motion at the conclusion of the State’s case and again after all the evidence had been presented. We affirm summarily on the first point as a defendant waives his directed verdict claim, made at the close of the State’s case, by presenting further evidence. Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992). We hold the second motion was properly overruled, and thus the conviction is affirmed.
On the night of November 29, 1991, David Stewart was at Big Daddy’s Lounge with friends. Derek Coleman was there. An argument arose concerning Stewart’s coat. A scuffle began, and as Stewart was being held by two men and beaten by a third, Coleman approached holding a twenty-five caliber automatic pistol. The gun discharged, striking Stewart in the chest.
Coleman was not at the scene when the police arrived, but the next day he surrendered voluntarily and directed the police to the hidden pistol.
The State Medical Examiner testified Stewart died from a gunshot wound to the chest. The State’s firearms expert testified the bullet that killed David Stewart was fired from the pistol retrieved by the police. Witnesses said they saw Coleman shoot Stewart.
Sufficiency of the evidence
A directed verdict motion is a challenge to the sufficiency of the evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). The standard of review when the motion has been overruled is whether there was substantial evidence to support the verdict. Friar v. State, supra; Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). Substantial evidence is “evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond a suspicion or conjecture.” Cigainero v. State, 310 Ark. 504, 506, 838 S.W.2d 361, 363 (1992). In determining whether substantial evidence exists, the Court reviews the evidence in a light most favorable to the appellee. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990).
Coleman argues the evidence was insufficient to demonstrate that he acted with the “purpose of causing the death of another person,” an element of first degree murder. Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991).
Ulyses Taylor, proprietor of Big Daddy’s, testified that, as he tried to break up the scuffle involving Stewart, Coleman reached over Taylor’s shoulder, pointed the gun at Stewart, and fired. The testimony of the medical examiner and the firearms examiner conclusively linked that shot to Stewart’s death.
Coleman testified without contradiction that he did not know Stewart or the others involved in the scuffle and was not involved in it. He said he found the pistol on the floor during the scuffle, picked it up, and it discharged as he was struck from behind.
It is the jury’s duty to resolve contradictions and conflicts in testimony. In doing so, the jury may accept testimony it believes to be true and disregard testimony it believes is false. Abdullah v. State, supra. The jury could reasonably conclude the shooting of David Stewart was not an accident.
On appeal we view only the evidence which is most favorable to the jury’s verdict and do not weigh it against other conflicting proof favorable to the accused. Ricketts v. State, supra; Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). The jury may infer intent “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, 513, 804 S.W.2d 346, 348 (1991)(citing Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987)). David Stewart was shot as he was being restrained during a fight. He was shot at close range with a twenty-five caliber automatic pistol. He was shot in the chest, near the heart. From the circumstances of this shooting, it was reasonable to conclude that Derek Coleman shot David Stewart with the purpose of killing him.
The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that there were no rulings adverse to the Appellant which constituted prejudicial error.
Affirmed. | [
48,
106,
-52,
28,
27,
96,
26,
124,
-31,
-78,
102,
115,
102,
-53,
29,
115,
102,
93,
85,
97,
-34,
-109,
54,
-53,
-46,
-74,
-87,
-105,
55,
-20,
103,
117,
76,
112,
-53,
-43,
-90,
74,
-121,
80,
-114,
1,
-70,
-15,
51,
74,
36,
46,
32,
31,
-75,
-108,
-93,
43,
30,
-57,
-55,
46,
91,
63,
88,
-71,
-119,
-107,
-113,
16,
-77,
-91,
-97,
6,
-40,
42,
92,
49,
0,
-24,
50,
-90,
-62,
-44,
99,
-115,
-116,
98,
99,
1,
16,
-19,
44,
89,
39,
78,
-126,
-89,
-102,
73,
75,
45,
-106,
-67,
100,
52,
14,
98,
-26,
124,
88,
108,
-105,
-34,
-112,
-77,
12,
124,
-102,
72,
-29,
-95,
20,
96,
-52,
-30,
92,
101,
89,
-37,
-100,
-78
] |
Per Curiam.
The petitioner Michael Dewayne Jackson was found guilty in 1992 of delivery of a controlled substance and sentenced as a habitual offender to twenty years imprisonment. No appeal was taken, and petitioner subsequently filed a timely motion for belated appeal in this court pursuant to Criminal Procedure Rule 36.9. He alleged that he had informed his retained attorney Gene Worsham of his desire to appeal but Worsham failed to perfect the appeal.
In an affidavit filed by Worsham in response to the motion Worsham averred that at no time during the thirty-day period for filing a notice of appeal set by Rule 4 (a) of the Rules of Appellate Procedure was he informed that petitioner desired an appeal. Because the contentions of petitioner and Mr. Worsham were in conflict, we remanded the matter to the trial court for an evidentiary hearing and Findings of Fact and Conclusions of Law on the question of whether petitioner informed Worsham of his desire to appeal within the time for filing a timely notice of appeal. The transcript of the evidentiary hearing and the court’s Findings of Fact and Conclusions of Law are now before us.
After the hearing at which petitioner, petitioner’s sister, and Worsham testified, the trial court found that petitioner had timely notified Worsham of his desire to appeal. This court recognizes that it is the trial court’s task to assess the credibility of witnesses and resolve conflicts of fact. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). The trial court’s finding that petitioner informed counsel of his desire to appeal in a timely manner is accepted, and the motion for belated appeal is granted. As Mr. Worsham has never been relieved as counsel, he remains responsible for proceeding with the appeal. He is directed to file within thirty days a petition for writ of certiorari in which he designates the entire record, or that portion of the record, necessary for the appeal. As petitioner contends that he is indigent and the state has not contested that claim, petitioner is granted permission to proceed in forma pauperis in the appeal. See Bealer v. State, 314 Ark. 352, 862 S.W.2d 259 (1993).
Motion granted. | [
-48,
-24,
-35,
28,
10,
97,
58,
62,
83,
-89,
103,
115,
-89,
-42,
-116,
121,
-13,
59,
113,
-7,
-36,
-73,
119,
65,
107,
-69,
57,
-42,
-77,
79,
-28,
-4,
12,
112,
-118,
-11,
70,
-56,
67,
26,
-50,
7,
-101,
-19,
17,
66,
32,
42,
26,
15,
49,
-98,
-29,
46,
26,
-50,
-55,
40,
91,
13,
72,
-111,
-79,
13,
-5,
52,
-93,
-123,
-103,
-122,
120,
126,
-100,
57,
3,
-19,
113,
-74,
-126,
-12,
107,
-87,
8,
98,
102,
33,
77,
-25,
-87,
-120,
63,
14,
29,
-90,
-40,
41,
73,
109,
-100,
-99,
42,
20,
37,
-4,
-18,
12,
85,
108,
-128,
-49,
-76,
-79,
13,
57,
-122,
91,
-29,
37,
16,
100,
-49,
-62,
-36,
87,
115,
27,
-52,
-73
] |
Per Curiam.
Appellant, Charles K. Barnes, by his attorney, has filed for a rule on the clerk.
His attorney, Bob Keeter, admits that the failure to file the record in time was due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
-80,
-22,
-35,
30,
10,
97,
50,
42,
90,
-31,
-95,
19,
-91,
-117,
28,
113,
-13,
111,
21,
123,
-114,
-77,
119,
-47,
-74,
-77,
-21,
-43,
55,
125,
-10,
-8,
76,
48,
-54,
-105,
70,
-54,
-123,
84,
-122,
28,
57,
-28,
-15,
8,
48,
41,
-104,
15,
49,
126,
-29,
42,
30,
71,
-87,
40,
108,
-108,
-62,
-7,
-101,
13,
111,
20,
-79,
-60,
-106,
-123,
-40,
107,
-120,
-80,
2,
-24,
50,
-92,
6,
116,
111,
57,
8,
78,
102,
49,
-35,
-17,
-96,
-72,
4,
42,
-99,
-90,
-109,
88,
73,
-83,
-106,
-65,
45,
52,
38,
126,
-28,
-35,
121,
36,
19,
-49,
-12,
-77,
-97,
-14,
-116,
10,
-21,
3,
16,
49,
-113,
-26,
-40,
71,
51,
-45,
-98,
-92
] |
Per Curiam.
Billy Joe Britton, by his attorney, has filed a motion for a rule on the clerk.
His attorney, John L. Kearney, admits by motion and brief that the record was tendered late due to a mistake on his part.
We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).
The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
54,
-24,
-3,
60,
-118,
32,
16,
-70,
83,
-31,
-29,
19,
-91,
-53,
24,
121,
-13,
107,
-43,
115,
-60,
-123,
119,
-63,
-90,
-13,
-31,
87,
-5,
-1,
-26,
-39,
72,
48,
-54,
-107,
70,
-126,
-123,
84,
-122,
-115,
58,
-27,
-7,
73,
48,
41,
-110,
15,
113,
94,
-93,
42,
30,
69,
-23,
104,
94,
-90,
66,
-15,
-101,
-115,
127,
20,
-125,
-122,
-98,
-122,
88,
46,
-116,
49,
2,
-8,
48,
-90,
-122,
84,
47,
105,
0,
70,
98,
49,
-35,
-17,
-96,
-88,
7,
62,
-115,
38,
-101,
72,
75,
33,
-106,
-67,
39,
52,
7,
124,
-28,
-35,
89,
44,
-112,
-49,
-44,
-77,
95,
48,
-116,
-86,
-22,
5,
0,
49,
-51,
-26,
92,
70,
19,
-45,
-98,
-76
] |
David Newbern, Justice.
This is an appeal from a ruling of the Crittenden Chancery Court concerning the ownership and distribution of shares of stock in Guaranty Loan and Real Estate Co. (Guaranty). Guaranty is a close corporation. Stock in the corporation is held by Sara Rich Larkey as trustee of the Rich Marital Trust (Trust).
Ms. Larkey sought a declaratory judgment, to determine whether her proposed distribution of the Trust corpus would constitute an abuse of her discretion as trustee. Duke B. Clement, Jr., appeals from the Chancellor’s ruling that Ms. Larkey’s proposed distribution will not constitute an abuse of discretion. We affirm the Chancellor’s decision.
Jack W. Rich, during his lifetime, gave stock in Guaranty to each of his two children, Sara Rich Larkey and Mary Jack Rich Wilson, and to their children, J.E. Norfleet, Jr. (Ms. Larkey’s son), and Duke Clement, Jr. (Ms. Wilson’s son), and in 1976 to Mary Jack Rich Wilson’s husband, Duke Clement, Sr., who has since died. The gift to Duke Clement, Sr., placed 150 more shares of stock on Ms. Wilson’s side of the family than on Ms. Larkey’s side. Ms. Wilson inherited those shares from Duke Clement, Sr.
Jack W. Rich died. By his will he established a marital trust in favor of his widow, Lois W. Rich. When this litigation arose Lois W. Rich was deceased. Ms. Larkey is the trustee of the Rich Marital Trust.
Shares of Guaranty are now held as follows:
SARA RICH LARKEY - 45,475 shares in her own right
MARY JACK RICH WILSON - 45,625 shares in her own right, 150 of which she inherited from her deceased husband, Duke Clement, Sr.
J.E. NORFLEET, JR., (Sara Rich Larkey’s son) - 1.427 shares from a trust established by Lois W. Rich plus 150 shares in his own right.
DUKE CLEMENT, JR., (Mary Jack Wilson’s son) - 1.427 shares from a trust established by Lois W. Rich plus 150 shares in his own right.
RICH MARITAL TRUST (Sara Rich Larkey, trustee) - 12,505 shares.
In his will, Jack W. Rich gave Lois W. Rich a power of appointment over the assets of the Trust. In the residuary clause of her will, Lois W. Rich indicated her intent that assets over which she had such a power be distributed to other trusts she had established for her grandsons, J.E. Norfleet, Jr., and Duke B. Clement, Jr., in an “amount equal to the maximum amount allowable under the per grandchild exemption of [Internal Revenue Code] Section 1433. . . .” The parties do not contest the proposition that Lois W. Rich thus exercised her power of appointment with respect to the assets of the Trust. In Clement v. Larkey, (No. 93-226), we concluded that the Trust was not a part of the residue of Lois W. Rich’s estate, and thus the Crittenden Probate Court properly left the matter of distribution of the Trust assets to the Chancellor.
Ms. Larkey proposed to distribute the Trust corpus to Duke B. Clement, Jr., and to J.E. Norfleet, Jr., as follows:
J.E. NORFLEET, JR. (Sara Rich Larkey’s son) - 6,327.5 shares.
DUKE B. CLEMENT, JR. (Mary Jack Wilson’s son) - 6,177.5 shares plus cash in place of the shares he would have received in an equal, in kind distribution.
Duke B. Clement, Jr., protested, arguing that an unequal distribution of shares would amount to an abuse of discretion on the part of Ms. Larkey and a violation of her duty of loyalty to the beneficiaries.
The Chancellor, on joint motions for summary judgment, held that the proposed distribution did not amount to an abuse of discretion.
1. Abuse of discretion
The authorization for disbursement by the trustee could hardly be broader. The Trust instrument created in the will of Jack W. Rich provides:
The trustee. . . and the successors. . . are expressly authorized and empowered, at any time and from time to time:
***
(11) [T] o make such division or distribution in kind or in money, or in part in kind or in part money, and the apportionment and division by my trustee, both as to valuations and as to specific properties shall be final and determinative.
***
Duke B. Clement, Jr., acknowledges the broad grant and that a distribution in kind and in cash is not directly prohibited. He points, however, to the language in the residuary clause of Lois W. Rich’s will which directs that an “amount equal to the maximum amount allowable under the per grandchild exemption . . .” shall be distributed to each of the Norfleet and Clement Trusts. From this he argues that an unequal in kind distribution is not authorized. He argues further that the trustee’s duty of loyalty and impartiality are violated in this instance because the trustee proposes to benefit her son and herself. Clement then points out that a court can interfere with the exercise of the trustee’s discretion to prevent an abuse of that discretion. Deal v. Huddleston, 288 Ark. 96, 702 S.W.2d 404 (1986); Restatement (Second) of Trusts § 187 (1959), and other cases are correctly cited for that proposition.
The fact of a coincidental benefit to a trustee is, however, not alone sufficient to establish an abuse of discretion on the part of the trustee; it is rather one factor to be considered in determining the question. Comment g of Restatement § 187 discusses the improper motivation of a trustee as follows:
The court will control the trustee in the exercise of a power where he acts from an improper even though not dishonest motive other than to further the purposes of the trust. Thus, if the trustee in exercising or failing to exercise a power does so because of spite or prejudice or to further some interest of his own or of a person other than the beneficiary, the court will interpose. Although ordinarily the court will not inquire into the motives of the trustee, yet if it is shown that his motives were improper or that he could not have acted from a proper motive, the court will interpose. In the determination of the question whether the trustee in the exercise of a power is acting from an improper motive the fact that the trustee has an interest conflicting with that of the beneficiary is to be considered.
It is permissible for one of several trustees or a sole trustee also to be one of several beneficiaries of a trust, even though conflicts of interest and coincidental benefits to that trustee-beneficiary inevitably result. Restatement (Second) of Trusts § 99 (1957). In Reeder v. Meredith, 78 Ark. 111, 93 S.W. 558 (1906), we recognized that a trustee, by virtue of his or her relationship to the beneficiaries of a trust, must assume the burden of proving the fairness of a transaction with the beneficiary of the trust which also benefits that trustee.
In determining whether Ms. Larkey has sustained her burden, we look to the evidence which was before the Chancellor when he granted Ms. Larkey’s motion for summary judgment.
Ms. Larkey presented an affidavit of Christopher Mercer, a financial analyst, which showed that an equal, in kind distribution of the stock would result in the creation of a majority control block of shares in the Clement side of the family. This 50.1 % controlling interest would result in that block of shares having a value of $173.00 per share while the value of the minority block thereby created would have a value of $69.00 per share. The conclusion of the analyst was that an equal, in kind distribution would result in Duke B. Clement, Jr., receiving stock substantially more valuable than that received by J.E. Norfleet, Jr.
Duke B. Clement, Jr., seeks to discredit Mr. Mercer’s valuation of the shares by pointing out that the Internal Revenue Service would not aggregate stock in this fashion to establish a value and that such an aggregation would not be proper in valuing the shares for the purpose of dissolution of the corporation, but neither of these valuation methods is relevant in this case. The corporation is an on-going concern, and there is no indication that the enterprise basis of valuation reflected in Mr. Mercer’s affidavit is improper under these circumstances.
As in Mt. Olive Water v. Fayetteville, 313 Ark. 606, 852 S.W.2d 309 (1993), the Court was presented with a clear evidentiary basis for its conclusion, and the question became whether, if true, all the appellant’s counter-assertions concerning that evidence were sufficient to raise an issue of material fact with respect to the basis of the expert’s opinion.
We agree with the Chancellor that Duke Clement, Jr.’s assertions did not raise an issue of fact. The trustee in this instance was confronted with a situation where an equal distribution of stock in kind could harm one beneficiary and benefit the other but a distribution as proposed could benefit both beneficiaries equally in terms of the value of the stock.
From the other point of view, it could be said that the real issue is control of the corporation, and by equalizing the number of shares held by each “side” of the family the group now headed by Mary Jack Rich Wilson and her son, Duke B. Clement, Jr., will be deprived of the lead it now has by virtue of its ownership of 150 more shares than the side of the family including Sara Rich Larkey, and her son, J.E. Norfleet, Jr.
Ms. Larkey’s proposal may or may not be best for the corporation’s future, and thus it may or may not be best for the Riches’ grandsons. But that is not the issue, and we decline to speculate on possible outcomes with respect to this distribution. The evidence before the Chancellor indicated that the family members have always cooperated in the past in the exercise of their voting privileges when it came to running the corporation. He was given no basis to believe that would change. The issue before us is whether his decision permits a violation of Ms. Larkey’s duty of loyalty and impartiality.
Assuming, as we must, that the cash substitute to be paid to Duke Clement, Jr., in addition to the stock he will receive, is to be in an amount fairly compensating him, we cannot say Ms. Larkey proposes to violate her duty. There was evidence before the Chancellor in the form of Mr. Mercer’s affidavit from which it could have been concluded that the creation of equality in family stock blocks was the only way to prevent one grandson of the Riches from receiving stock valued substantially less than that received by the other. The secondary, but potentially important, issue of control of the corporation is somewhat hard to pin down in that we cannot know how the family members will behave in the future.
In these circumstances, we agree with the Chancellor’s conclusion that the proposed distribution will not constitute an abuse of the trustee’s discretion, any benefit to the trustee being permissible as incidental to her performance of her duties as trustee.
Affirmed. | [
-80,
108,
-4,
108,
26,
96,
59,
-118,
66,
-22,
39,
-47,
-69,
-6,
80,
123,
-14,
-19,
69,
106,
-9,
-13,
23,
-32,
-40,
-13,
-69,
-115,
-79,
95,
-18,
-41,
13,
48,
-118,
85,
-58,
-55,
-57,
28,
14,
1,
42,
77,
88,
112,
48,
123,
20,
79,
97,
-97,
-77,
36,
25,
111,
72,
42,
91,
57,
-48,
-72,
-65,
-124,
95,
23,
17,
52,
-80,
99,
-54,
-86,
-54,
-75,
0,
-24,
51,
-90,
22,
116,
43,
-97,
13,
54,
115,
-111,
108,
-9,
-104,
-120,
-66,
70,
7,
-25,
-110,
72,
104,
66,
-75,
-68,
122,
20,
-97,
124,
-18,
12,
124,
108,
1,
-113,
-42,
-95,
9,
-4,
-102,
2,
-9,
9,
48,
113,
-52,
-88,
93,
71,
121,
-101,
-34,
-77
] |
Martin G. Gilbert, Special Chief Justice.
Appellants challenge the constitutionality of that portion of Initiated Act No. 1 of 1990 (the “Act”) which created the Arkansas Ethics Commission (the “Commission”) on the ground that by providing for the appointment of one of the commissioners by the Chief Justice of the Arkansas Supreme Court, the Act violates the separation of powers provision of the Constitution of Arkansas. Appellants also challenge the specific appointment made by the Chief Justice as not meeting the requirement of the Act that one of the commissioners be a “member of a minority political party.”
The Act, bearing the popular name “The Standards of Conduct and Disclosure Act for Candidates and Political Campaigns,” was approved by the voters of Arkansas at the general election on November 6, 1990. In general, the Act regulates political action committees, solicitations by and contributions to political candidates, the use of campaign funds and compensation of members of the General Assembly for making speeches and other appearances, and requires certain reports by candidates.
Section 6 of the Act, codified as Ark. Code Ann. § 7-6-217, provides, among other things, for the creation of the Commission, to be composed of five members, one each to be appointed by the Governor, the Attorney General, the Chief Justice of the Supreme Court, the Speaker of the House of Representatives and the President Pro Tern of the Senate. Commission members serve staggered five-year terms without compensation, but they are reimbursed for their actual and reasonable expenses.
The Act requires that “[i]n making appointments to the commission, the appointing officers shall insure that at least one member of a minority race, one woman, and one member of a minority political party, as defined in [Ark. Code Ann. §] 7-1-101(7), serves on the commission.” Ark. Code Ann. § 7-6-217(b).
In due course, the designated officials made their respective appointments to the Commission. Supreme Court Chief Justice Jack Holt, Jr., appointed Little Rock attorney Ronald A. May, identifying him as a member of a minority political party. It is not contended that any of the other appointees are members of a minority political party.
Appellants filed this action in the Circuit Court of Pulaski County, challenging the constitutionality of the method of appointing the members of the Commission and also challenging the appointment of Mr. May as a member of a minority political party. The Circuit Court granted summary judgment in favor of appellees, dismissing appellants’ complaint. This appeal followed.
Jurisdiction is properly in this Court under Rule l-2(a)(1) of the Rules of the Supreme Court and the Court of Appeals, because it involves the interpretation or construction of the Constitution of Arkansas.
Article 4 of the Constitution of Arkansas provides for three departments of government:
§ 1. Departments of government.
The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
Article 4 also provides for the separation of those departments:
§ 2. Separation of department.
No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
In Oates v. Rogers, 201 Ark. 335, 144 S.W.2d 457 (1940), this court dealt with the question whether an act designating the judges of the chancery, circuit and county courts to select the county tax collector violated the constitutionally mandated separation of powers. Speaking through Chief Justice Griffin Smith, we noted the two opposing philosophies regarding the federal separation of powers expressed by Mr. Justice Sutherland (speaking for the majority) and Mr. Justice Holmes (dissenting for himself and Mr. Justice Brandéis) in Springer v. Phillipine Islands, 277 U.S. 189 (1928). Mr. Justice Sutherland espoused the more strict view, namely, that the separation of the departments of government “is basic and vital — not merely a matter of governmental mechanism” and should be vigorously protected. Mr. Justice Holmes, representing the more liberal view, believed that the United States Constitution did not “establish and divide fields of black and white,” but “a penumbra shading gradually from one extreme to the other,” concluding that it was not necessary to carry out the separation of powers with “mathematical precision and divide the branches into watertight compartments.” We observed that it was impossible to harmonize the extreme views expressed by these eminent justices. Oates v. Rogers, 201 Ark. at 338-39, 144 S.W.2d at 457.
After reviewing various cases from Arkansas and other jurisdictions regarding the legislative designation of the power of appointment, we said:
The duties of collector are in no sense related to the administration of justice; and, while certain activities not essentially judicial may be imposed upon judges in those cases where by the constitution such duties do not inhere in another department of the government, in the instant case the delegated authority is of that class set aside to the executive department.
In most instances judges are — and in all cases they should be — free from political pressure and beyond the reach of partisan influence.
Common knowledge teaches, and experience informs us, that most people who apply for public office have the backing of influential friends, and are themselves prominently connected. Unfortunately we have not reached thatf ideal state where friend interested in friend will circumscribe his or her activity merely because the appointive power is judicial.
Judges should not be subject to these experiences. Our system, providing as it does for distinct separation of departments, did not in its inception contemplate a blend ing of authority; and overlapping must not be permitted now at the command of expediency or in response to the nod of convenience.
. . . [S]ince the nature of the act of appointment is essentially non-judicial, and therefore not to be exercised by circuit and chancery judges ... it must be held that the ... act fails. Oates v. Rogers, 201 Ark. at 345, 144 S.W.2d at 458.
While there is sparce judicial precedent on the subject, it appears to be generally concluded that in the absence of specific constitutional authority, the legislature may not authorize or require courts to appoint officers who have nothing to do with the administration of justice. 16 Am. Jur. 2d, Constitutional Law § 313; 16 C.J.S., Constitutional Law § 212.
Appellees concede that the judiciary may not be delegated the power to appoint unless the object of that power is related to the administration of justice. Appellees argue, however, that such a relationship exists here because the primary function of the Commission is “quasi-judicial” in nature.
The Act provides that the Commission shall have the authority to issue advisory opinions and guidelines, investigate alleged violations and render findings and disciplinary action thereon, subpoena persons and documents, administer oaths, conduct hearings and take sworn testimony, hire a staff and legal counsel and approve forms prepared by the Secretary of State pursuant to the Act. These are powers of the sort often possessed by boards, commissions and agencies, and we have held on many occasions that a body having such powers is not thereby judicial in nature or a part of the judicial department of government. See Ozarks Electric Cooperative Corporation v. Turner, 277 Ark. 209, 640 S.W.2d 438 (1982); Ward School Bus Manufacturing, Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977); and cases cited therein. While at times there may be difficulty in discerning whether particular boards, commissions or other agencies are a part of the legislative department or the executive department — or perhaps belong to some de facto fourth department of government — there can be no doubt that they are not a part of this, the judicial department. See Stafford, “Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power,” 7 UALR L.J. 279 at 280-81 (1984).
Appellees go to great length to establish that the powers exercised by the Commission are “quasi-judicial” in nature. But we have not been cited to and we are not aware of any case holding that a body which exercises quasi-judicial functions is thereby a part of the judicial department or related to the administration of justice. We have noted previously that an important factor in determining whether a particular body is acting in a judicial capacity or is part of the judicial department of government is the ability of that body to enforce its own orders. Ward School Bus Manufacturing, Inc. v. Fowler, 261 Ark. 100, 547 S.W.2d 394 (1977). Here, the Commission sought to be established by the Act would be authorized to investigate alleged violations and to “render findings and disciplinary action thereon.” Ark. Code Ann. § 7-6-217(h)(2). At first blush that might seem to be akin to some sort of judicial action — rendering findings, perhaps after a hearing at which witnesses are subpoenaed and sworn, and taking some sort of disciplinary action. But a closer reading of the Act reveals that the only action which the Commission can take upon finding a violation is to do one or more of the following: “(A) Issue a public letter of caution or warning; or (B) Report its finding, along with such information and documents as it deems appropriate, and make recommendations to the proper law enforcement authorities.” Ark. Code Ann. § 7-6-218(b)(4). Thus, it is apparent that the Commission has no power whatever to make any orders, much less to enforce them. The only “disciplinary action” it can take is to make public a letter declaring what it has found in the way of a violation. That is hardly action which is judicial in nature or related to the administration of justice.
Appellees also rely upon decisions in Louisiana and Kansas which upheld similar bodies whose members were appointed by both the legislative and executive branches (Board of Ethics for Elected Officials v. Green, 566 So.2d 623 (La. 1990); and Parcell v. Governmental Ethics Commission, 639 F.2d 628 (10th Cir. 1980), in which the Kansas Supreme Court answered a question certified to it by the Tenth Circuit). These courts reviewed the degree of control exercised by the appointers over the appointees and, finding little or none, concluded that neither branch had usurped the powers of the other branch. The fact that the bodies were a blending of powers of different branches was not objectionable.
First, we point out that these cases did not involve an appointment by a member of the judicial department and are distinguishable on that basis. It has been observed that while we may tolerate some blurring of lines between the legislative and executive departments, this court has been very protective of the barrier surrounding the judicial department. See Stafford, “Separation of Powers and Arkansas Administrative Agencies: Distinguishing Judicial Power and Legislative Power, “ 7 UALR L.J. 279 at 280-81 (1984).
These two cases from neighboring states are also distinguishable on the basis of differences in the specific constitutional provisions under consideration. The Louisiana Constitution contains a provision designating the Governor to make all appointments in the executive branch not otherwise “provided constitution or by law.” In Green the Louisiana Supreme Court held that this language authorized the legislature “by law” to provide for the appointment of executive branch persons by other than the Governor — specifically, by the legislature itself. There is no such appointment provision in the Arkansas Constitution. And, the Kansas Constitution contains no express separation of powers provision, as does the Arkansas Constitution (although a separation of powers doctrine has been adopted by Kansas case law).
Finally, Green and Parcell represent approval of a sort of “blending” of the powers of two departments of government. The Kansas court described that Ethics Commission as a “cooperative venture rather than the usurpation of power by the legislative branch from the executive branch,” and held that this “practical result of the blending of the powers . . . was not a violation of the separation of powers doctrine.” Parcell v. Governmental Ethics Commission, 639 F.2d at 633-34. In Oates v. Rogers we specifically rejected the notion of a “blending” of powers in favor of a more strict separation of powers when we said: “Our system, providing as it does for distinct separation of departments, did not in its inception contemplate a blending of authority; and overlapping must not be permitted now at the command of expediency or in response to the nod of convenience.” Oates v. Rogers, 201 Ark. at 346, 144 S.W.2d at 458.
In the case before us, the Commission, as structured by the Act, is not related to the administration of justice and is not part of the judicial department of government. We hold that by designating the Chief Justice of the Supreme Court to appoint one of the members of the Commission, that portion of the Act creating the Commission violates the separation of powers and is unconstitutional.
Given our decision on this issue, the second issue raised by appellants — the appointment of Mr. May — is moot. But, we would have upheld the appointment of Mr. May for the reason that there is no objective standard in the Act by which one can determine whether an appointee is a “member of a minority political party,” and we would give great deference to the discretion of the appointer and great weight to the circuit court as the fact-finder on that issue. While the evidence suggests that Mr. May may not have been considered a currently active, loyal Republican by some in the leadership of the Arkansas Republican Party, there is also evidence of at least some voting by Mr. May for Republican candidates and contributing by Mr. May of money to Republican candidates and causes in relatively recent times. And there is direct testimony by Mr. May himself that he currently considers himself to be a Republican and holds himself out publicly to be a Republican. Under these circumstances, we would have affirmed the judgment of the circuit court on that issue.
The judgment is reversed and remanded to the circuit court with directions to enter judgment not inconsistent herewith.
Special Justices Sherry P. Bartley, Cyril Hollingsworth, Scotty Shively and James R. Wallace join in the foregoing opinion.
Special Justice Don F. Hamilton and Larry C. Wallace dissent. | [
61,
-17,
-11,
120,
8,
2,
54,
-68,
83,
-117,
-27,
83,
-19,
70,
-108,
115,
-29,
-1,
92,
107,
-59,
-80,
87,
98,
34,
-77,
-71,
-121,
-78,
77,
-4,
-68,
72,
57,
-54,
-63,
-57,
106,
-113,
28,
34,
10,
75,
99,
88,
-64,
56,
-17,
18,
-97,
101,
110,
-29,
44,
16,
75,
109,
72,
89,
36,
65,
-101,
30,
-105,
93,
22,
51,
39,
-102,
7,
120,
62,
80,
48,
-56,
-24,
83,
-90,
2,
-28,
79,
57,
8,
114,
96,
0,
41,
-61,
36,
-92,
21,
-81,
29,
-89,
-106,
121,
75,
10,
-74,
-108,
99,
16,
2,
-2,
-31,
-59,
95,
44,
14,
-114,
-44,
-93,
22,
99,
29,
2,
-21,
-50,
20,
117,
-60,
-10,
95,
95,
50,
-37,
-50,
-124
] |
Steele Hays, Justice.
Appellant Randy James Jones was tried and convicted of the murder of David Cains. He was sentenced to life imprisonment without parole. On appeal he raises two points for reversal. We affirm the judgment of conviction.
The salient facts, given from the state’s perspective, are these: Expected to testify in a drug trial the following day, David Cains was murdered in the yard of his Pottsville home about 6:30 on the morning of September 4,1991. The weapon used was a rifle with telescopic sight. Cains’s eleven-year-old daughter, Chrissy, and fourteen-year-old son, Davey, witnessed the murder. Davey saw a man come from behind a tree with two guns. Chrissy heard shots, saw her father fall to the ground and watched as a man fired a third time at pointblank range. The man fled in Cains’s blue Ford van. Several neighbors observed the incident from some distance and assumed that David Cains was shooting a dog. The man was described as tall, slender, with dark hair and wearing a white tee shirt and blue jeans. About forty-five minutes later, appellant entered a liquor store at the Blackwell exit on Interstate 1-40 and bought a package of cigarettes. He was wearing blue jeans but no shirt.
Sheriffs deputies recovered three spent cartridges from a .270 rifle in the yard and, not far away, a stolen black pickup truck containing a gun case. Less than an hour after the murder police located the van abandoned near the liquor store at the Blackwell exit. In the adjacent woods were found a .270 rifle with scope and a .45 calibre pistol. Around three o’clock that afternoon, the appellant was apprehended in the woods. A lineup of six individuals was conducted and Chrissy and Davey Cains readily identified appellant as the man who shot their father. Fibers from the rifle were matched to the gun case in the stolen pickup truck. The owners of the pickup, rifle, and gun case identified those objects as belonging to them and as having been stolen in the vicinity of Conway prior to the crime.
I
Jones submits it was error for the trial court to deny his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).
The general rule with respect to the sufficiency of the evidence is that the evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). We will affirm the verdict of the trial court, if it is supported by substantial evidence, and circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989).
To be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). This becomes a question for the fact-finder to determine. Id. In determining whether there is substantial evidence, the court reviews the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). Guilt may be proved, even in the absence of eyewitness testimony, and evidence of guilt is no less substantial because it is circumstantial. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984).
The evidence connecting Randy Jones with the crime was both circumstantial and direct. Chrissy Cains identified appellant at the lineup and again in the courtroom. She said there was no doubt about his identity. Appellant points out that because she saw the perpetrator for less than thirty seconds and only from the side, her testimony is unreliable. But these are issues for the jury. Coley v. State, 304 Ark. 304, 801 S.W.2d 647 (1991).
Circumstantially, appellant’s presence at the liquor store soon after the crime and at the time of his arrest, the location of the rifle and pistol, the matching fibers of the rifle and gun case, the proximity of the gun case and black pickup to the Cains’s residence, even the fact that appellant appeared to be fleeing from arrest, are factors the jury could consider in determining appellant’s guilt. Ferguson v. State, 298 Ark. 600, 769 S.W.2d 418 (1989). Additionally, at the time of his arrest appellant had a distinctive one-half inch diagonal abrasion just above the bridge of his nose. A sheriffs investigator experienced in weaponry testified that the kick of a high-powered rifle, when equipped with a telescopic sight, tends to leave “an ignorant mark” consistent with the mark on appellant’s forehead.
The evidence recounted above pointed convincingly to the appellant as the perpetrator, in the light of which, we can conceive of no other reasonable hypothesis consistent with appellant’s innocence and we therefore affirm the ruling of the trial court as to the sufficiency of that evidence.
II
Second, appellant maintains the trial court erred in refusing to allow an expert witness to testify concerning factors affecting eyewitness perception. Appellant submits the only direct evidence linking appellant to the murder of David Cains was the lineup and courtroom identification by an eleven-year-old child, Chrissy Cains, and the lineup identification by Davey Cains, whose evident limitations led the trial court to exclude his testimony at trial. When Davey, who was described as slow, was called to the witness stand, the defense objected on grounds of competence. The trial judge reserved a ruling but after questioning Davey found his answers so unresponsive that he declined to permit Davey to testify. When the state later rested, the defense moved that earlier testimony that Davey had identified appellant at the lineup be stricken. The motion was denied.
Appellant proffered the testimony of Dr. Ira Bernstein, a professor of psychology and an authority on eyewitness perceptions and the effect of misconceptions. Dr. Bernstein has identified certain factors as influencing eyewitness perception, among them: expectation, confidence, judgment, attentional selection, stress, visibility, etc. The state objected and the trial court sustained the objection after determining that Dr. Bernstein’s proposed testimony was general rather than specific to the identification of Chrissy and Davey Cains.
This issue was addressed recently in Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). We noted that the trial court has wide discretion in evidentiary matters and we found no abuse of discretion in refusing such testimony on the ground that it was a matter of common knowledge and would not assist the trier of fact. We quoted with approval language from Criglow v. State, 183 Ark. 407, 365 S.W.2d 400 (1931):
The question whether these witnesses were mistaken in their identification, whether from fright or other cause, was one which the jury, and not an expert witness, should answer. This was a question upon which one man as well as another might form an opinion, and the function of passing upon the credibility and weight of testimony could not be taken from the jury. [Citations omitted.]
Appellant does not ask us to overrule Utley; rather, that we should recognize an important distinction between the two cases. In Utley, defense counsel was able to cross-examine the eyewitness on the reliability of the identification, whereas in the case at bar, the jury was told that Davey Cains had picked appellant out of a lineup yet the defense had no opportunity to cross-examine Davey Cains. Appellant cites A.R.E. 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
We first point out that appellant’s reference to Rule 702 is raised initially on appeal. Beyond that, the issue rests with the discretion of the trial court and for a number of reasons we cannot say that discretion was misused. The jury was told that Davey had picked appellant from one lineup, but was also told by a defense witness that at a later time Davey had picked someone other than the appellant. Moreover, the defense had permitted two witnesses for the state, Officer Aaron Duvall and Deborah Lay, to testify without objection that Chrissy and Davey had picked the appellant out of the lineup. In sum, we do not believe that expert testimony touching only generally on factors which influence eyewitness perception was so essential to the jury that its exclusion constitutes an abuse of discretion.
In oral argument appellant referred to Daubert v. Merrell Dow Pharmaceuticals, Inc., _U.S._, 113 S.Ct. 2786 (1993), decided after briefs were filed in this case. Daubert is a civil case in which the plaintiffs allege that birth defects were caused by Bendectin, a product of the defendant. The District Court dismissed the claims by summary judgment, finding that the plaintiffs’ expert testimony failed to meet the applicable “general acceptance” standard within the scientific community. The Court of Appeals affirmed on the strength of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). On appeal, the Supreme Court reversed, holding that Frye was superseded by Rule 702 of the Federal Rules of Civil Procedure.
We have no criticism of the Daubert case. Indeed, this court previously reached the same conclusion in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), rejecting the Frye standard for the relevancy approach implicit in A.R.E. 401. However, Daubert has little relevance to this case. Expert testimony in Daubert was critical to a determination of whether Bendectin was the cause of birth defects, and was excluded, not because it would not assist the jury, but upon the erroneous conclusion that it lacked general acceptance by the scientific community. That was not a factor here.
The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.
Finding no error, we affirm the judgment. | [
49,
-18,
-3,
28,
27,
96,
106,
120,
82,
-14,
-12,
-13,
45,
-49,
81,
105,
114,
95,
117,
105,
-47,
-73,
55,
67,
50,
51,
25,
-48,
-78,
73,
44,
-43,
12,
96,
-54,
85,
70,
72,
-27,
88,
-82,
9,
-69,
100,
66,
66,
52,
46,
100,
15,
53,
-100,
-93,
47,
18,
-61,
73,
44,
75,
-83,
80,
113,
-103,
-41,
-17,
18,
-125,
-96,
-70,
2,
88,
30,
-40,
49,
0,
-24,
115,
-122,
16,
-12,
109,
27,
12,
100,
99,
2,
-104,
77,
-7,
-119,
14,
94,
-115,
-89,
-104,
73,
67,
13,
-107,
-99,
106,
20,
12,
-28,
-31,
76,
93,
108,
5,
-50,
-74,
-127,
-23,
41,
-110,
57,
-29,
5,
112,
117,
-51,
-30,
85,
69,
113,
-37,
-117,
-47
] |
Robert L. Brown, Justice.
The appellant, Corelanius Phillips, appeals his capital murder conviction and sentence to life imprisonment without the possibility of parole. His argument on appeal concerns essentially one issue: whether he established his affirmative defense of insanity based on an intermittent explosive disorder so as to render the State’s evidence of capital murder insubstantial and so as to warrant a directed verdict of acquittal. We affirm the conviction and judgment.
During the morning of October 13,1991, the appellant went to the home of Christine Rainey in Warren where Angela Durden, his former girlfriend and the mother of his son, was living. When Angela Durden came to the door, the appellant pulled her outside and to the road and began beating and kicking her. Ms. Rainey and her son observed the assault and called the emergency telephone number, 911. By the time the Warren police officers arrived, Angela Durden was dying from multiple injuries to the head and abdomen. The appellant was arrested on the scene after attempting to escape. He was charged with capital murder, and the death penalty was waived at the beginning of the trial.
At trial, Warren Police Officer Lane Smith testified that he and Officer Tommy Reed were called to Butler Street the morning of the crime. They found Angela Durden lying in a pool of blood and severely beaten. Smith stated that the appellant ran from the scene when the two officers arrived. He added that Phillips was difficult to get into the car and that he told them to shoot him because he was going to kill himself. Officer Smith further testified that the appellant told them that he caught Angela Durden “messing around on him” and he took care of “the problem.” The officer then related that he went with Ms. Durden to the hospital and that she died there shortly after she arrived.
Officer Reed testified that the appellant was very uncooperative and seemed like he did not care. The appellant explained his actions to the police officer by saying that he had been wronged by Ms. Durden and “something just went off-” and “that he clicked.” The officer added that the appellant also stated that, “it’s going to be all right.. . . I’m going to plead temporary insanity.. . . I’ll get off.”
Mr. Leander McEntire testified that he lives near Ms. Rainey and that he observed the appellant’s attack on Ms. Durden. He stated that he saw the appellant drag her from the house and pull her towards the road. Mr. McEntire added that the victim broke free and the appellant caught her and dragged her back to the road. He testified that the appellant began to beat Ms. Durden. He knocked her down, and then stamped her face and stomach. The witness added that he heard the appellant tell the victim that he was going to kill her. He tried to stop the appellant but went back to his house because he thought the appellant had a gun.
Christine Rainey testified'that Ms. Durden and her daughter were friends. The victim was living with her on October 13, 1991. She said that at about 5:30 a.m. the appellant knocked on her door and asked to see the victim. When Ms. Durden finally went to the door, the appellant grabbed her and carried her out to the road. Ms. Rainey testified that the appellant started hitting Ms. Durden. She said that while he was assaulting her, the appellant reached into Ms. Durden’s bra and took out her money. She testified that the appellant knocked Ms. Durden down and then jumped on her and beat her in the face. She added that the appellant called the victim pejorative names while he beat her.
Monica Domineck testified that she was six months pregnant with the appellant’s child in October of 1991. She said that she saw Phillips at about 3:00 a.m. at the Warren Social Club and that the appellant walked her home at about 6:00 a.m. She testified that the appellant smelled like he had been drinking alcoholic beverages.
Dr. W.R. Oglesby, a psychiatrist with Delta Counseling Associates, a community mental health center, testified for the defense. He had evaluated Phillips’s mental competency pursuant to court order. Dr. Oglesby’s diagnosis was: (1) intermittent explosive disorder; and, (2) alcohol abuse. His report stated that in his opinion the appellant:
has no impairment of his capacity to appreciate the criminality of his conduct. However, because of a mental disorder (Intermittent Explosive Disorder) I believe there was some impairment of his ability to conform his conduct to the requirements of the law at the time of the alleged criminal conduct. The exact degree of impairment would be difficult to estimate from a clinical standpoint.
At trial, Dr. Oglesby testified that he could not say to what degree the disorder affected the appellant’s ability to control his behavior. Dr. Oglesby admitted that the appellant was not psychotic. He said that the disorder may have affected the appellant’s behavior as much as 100 % or as little as 25 %. Phillips told him that he had gone over to see Ms. Durden to talk about seeing their son. Ms. Durden began to argue with him and matters escalated. He then just blanked out and did not remember what happened. Dr. Oglesby testified that the appellant was not dangerous unless he was provoked.
There was also testimony at trial that Phillips’s blood alcohol content was. 11 per cent on the day of the crime and that he tested positive for marijuana usage within two to three weeks before his arrest. The Associate Medical Examiner, Dr. David DeJong, testified that cause of death was due to blunt trauma to the head and abdomen. The jury found the appellant guilty of capital murder and sentenced him to life imprisonment without possibility of parole.
I. AFFIRMATIVE DEFENSE OF INSANITY
The appellant’s first claim of error is that the verdict is against the weight of the evidence. This court, however, does not weigh the evidence on appeal. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). Our standard of review when sufficiency of the evidence is the issue is whether there was substantial evidence to support the verdict. Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Johnson v. State, 306 Ark. 399, 814 S.W.2d 908 (1991). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another without resorting to speculation or conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990). This court will affirm a judgment if there is any substantial evidence to support the verdict. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992); Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990).
The appellant raised the affirmative defense of insanity which is set out by statute:
(a) It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental illness or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.
Ark. Code Ann. § 5-2-312(a) (1987). The State bears the burden of proving a defendant guilty beyond a reasonable doubt. However, the defendant has the burden of establishing the affirmative defense of insanity by a preponderance of the evidence. Davasher v. State, supra; Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).
The following evidence supports the conclusion that the appellant could conform his conduct to the requirements of law and appreciate the criminality of his actions. First, Dr. Oglesby testified that the appellant was not suffering from a psychosis, and his diagnosis was that the appellant was suffering both from intermittent explosive disorder and alcohol abuse. Dr. Oglesby testified that although he was of the opinion that the appellant was suffering from some type of impairment at the time of the offense, he was not able to say to . what degree the appellant’s ability to conform his conduct was affected. Dr. Oglesby admitted that intermittent explosive disorder is not a widely accepted disorder and is thought by some to be a personality disorder.
Warren Police Officers Lane and Reed testified that when they arrived at the crime scene, the appellant fled and tried to hide in a vacant lot. Officer Reed also provided a motive for the murder — the appellant told him that he attacked the victim because he believed she was involved with another man. Further, the appellant told Officer Reed that “it’s going to be all right. . . . I’m going to plead temporary insanity. . . . I’ll get off.” All of this testimony is evidence of calculation and even premeditation on the part of Phillips and exhibits an awareness of the legal and moral consequences of his actions.
It is for the jury to decide whether a defendant has sustained the burden of proving insanity by a preponderance of the evidence. The jury is the sole judge of the credibility of witnesses, including experts, and has the duty to resolve conflicting testimony regarding mental competence. Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987). Here, evidence regarding insanity, both pro and con, including the ability of the appellant to conform his conduct, was submitted to the jury, and it was then instructed on the law. The jury rejected the insanity defense and entered a verdict of guilty. There was clearly substantial evidence to support this verdict.
II. DIRECTED VERDICT OF ACQUITTAL
The appellant’s second claim of error is akin to the first. He argues that the trial court erred in failing to direct a verdict of acquittal on grounds of temporary insanity. We disagree.
The law provides that a trial judge may enter a judgment of acquittal in the event the defendant clearly establishes that he was suffering from a mental disease or defect at the time of the offense which rendered him unable to conform to the requirements of the law or to appreciate the criminality of his conduct. Ark. Code Ann. § 5-2-313 (Supp. 1993). We have stated, when construing a predecessor statute to § 5-2-313, that “the statute permits the trial judge to acquit the defendant in cases of extreme mental disease or defect where the lack of responsibility on the part of the defendant is clear.” Franks v. State, 306 Ark. 75, 78, 811 S.W.2d 301, 303 (1991). Thedecision of whether to direct a verdict of acquittal is discretionary with the trial court under § 5-2-313. See also Davasher v. State, supra. Moreover, a directed verdict of acquittal is properly denied where there are questions of fact remaining concerning the defendant’s affirmative defense of insanity. Brown & Behis v. State, 259 Ark. 464, 534 S.W.2d 207 (1976).
The trial court did not abuse its discretion in refusing to direct a verdict of acquittal.
The record in this case has been reviewed in accordance with Ark. Sup. Ct. R. 4-3(h) for any additional prejudicial error, and none has been found.
Affirmed. | [
-80,
-22,
-47,
-3,
25,
97,
-70,
56,
82,
-77,
-31,
115,
45,
-37,
65,
123,
-21,
109,
69,
105,
85,
-73,
39,
-63,
-14,
51,
57,
-44,
-77,
-40,
-20,
-1,
77,
98,
74,
73,
102,
26,
-25,
88,
-124,
-111,
-55,
-32,
82,
83,
36,
58,
74,
15,
49,
-100,
-69,
42,
18,
-18,
72,
44,
91,
-81,
64,
57,
-119,
-121,
-1,
52,
-93,
-124,
-98,
39,
120,
54,
-35,
-67,
0,
-24,
51,
-122,
-128,
-12,
107,
-119,
12,
35,
99,
1,
88,
-51,
-72,
-55,
62,
126,
-107,
-89,
25,
88,
65,
45,
-74,
-97,
108,
20,
14,
-4,
-11,
94,
25,
108,
-113,
-50,
-108,
-111,
-51,
104,
82,
-40,
-21,
37,
96,
113,
-50,
-30,
76,
69,
120,
-5,
76,
-74
] |
McCulloch, C. J.
Nathan Jenkins, the grandfather of. appellant, Nathan T. Jenkins, was, at the time'of his death in the year 1868, the owner of a tract of land in Jefferson County, near the city of Pine Bluff, containing 445 acres, and he left his last will and testament whereby he.devised the east half of said property as follows:
“I will and devise the east half of my said plantation to my son James Hayes Jenkins and his wife Josephine, to hold, use and occupy and enjoy for and during the term of their natural lives, for the support and education of their children, and, after their death, ¡to be equally divided between tlieir children, share and share alike. ’ ’
The west half of said plantation was, by the terms of said will, devised to the testator’s son William H. Jenkins and his wife, Sarah Jenkins, “to hold, use and occupy and enjoy during the term of their natural lives, for the education of their children, and, after their death, to belong to their children, share and share alike.”
James Hayes Jenkins, the son of the testator, intermarried with Josephine Mitchell on December 12, 1866, and there was one .child, the issue of that marriage, a son, Hazel Brunson Jenkins, who was born March 19, 1872, and died August 26, 1913. James Hayes Jenkins had six children by a former marriage, five of whom were living at the time of the death of the testator, and one died a few years later, leaving four, including appellant, and two of them conveyed to appellant whatever interest they might have in the lands in controversy. Josephine Jenkins and her son, Hazel Brunson Jenkins, executed to appellee Packingtown Realty Company a deed conveying their interest in the property, and subsequently that grantee executed to appellee Bain Manufacturing Company a deed conveying fifteen acres of the land. James Hayes Jenkins died on January 3, 1878, and Josephine Jenkins died on June 18, 1922. This action was then instituted by appellant against appellees, Packingtown Realty Company and Bain Manufacturing Company, in the circuit court of Jefferson County, setting forth the above facts and praying for the recovery of an undivided three-fourths interest in said property, and for rents and profits by way of damages. The cause was transferred to the chancery court on the, answer and cross-complaint of each of the appellees praying that their title be confirmed. The chancery court, on hearing the cause, rendered a decree dismissing appellant’s complaint for want of equity, and he has prosecuted an appeal to this court.
It is the contention of the appellant that the words “their children,” as used in the will of Nathan Jenkins, included the children of James Hayes Jenkins by his first marriage, and did not include Hazel Brunson Jenkins, who was not born until after the death of the testator; that the effect of the language was to devise a remainder in fee to the said children of James Hayes Jenkins.
On the other hand, it is contended by appellees that the language of the will did not include the children of James Hayes Jenkins by the former marriage, but only included the issue of James Hayes Jenkins and his wife Josephine; that the remainder in fee became vested in Hazel Brunson Jenkins, and that it passed under the conveyance of the latter to appellees. The appeal calls for an examination of the questions thus raised.
There is a divisio’n in the authorities bearing on the interpretation of the language of this will. Counsel for appellant 'cite authorities which support their contention that the words “their children” include the children of a former marriage, but we are of the opinion that this view is contrary to better reason as well as to the weight of authority. Crapo v. Pierce, 187 Mass. 141; Crandall v. Ahearn, 200 Mass. 77; Hersam v. Aetna Life Ins. Co., 225 Mass. 425; Aetna Mutual Life Ins. Co. v. Clough, 68 N. H. 298; Evans v. Opperman, 76 Tex. 293; Brown v. Aetna Life Ins. Co. 174 N. C. 337. The plain meaning of the language is that it relates to the issue of the intermarriage between the two persons mentioned, and not to all of the children of either of the persons so named. As said by the Massachusetts court, in the first of the decisions of that court cited above, the phrase “their children” must be read collectively and not distributively, hence it must be construed to relate to the issue of that particular intermarriage. In other words, the language of the devise is' construed the same as if it had said that the property should be equally divided between children who were born of the marriage of James Hayes Jenkins and his wife Josephine. It is the contention of counsel for appellant that even this interpretation of the will does not help the cause of appellees, for the reason that their grantor, Hazel Brunson Jenkins, was not born until after the death of the testator, and that this rendered the devise of the remainder void, and that the title reverted to the heirs of the testator. "We do not agree with that conclusion, but, on the contrary, we think that the language used by the testator presents a case of a devise in remainder to a class of persons, whether in being at the time or not, and that the remainder vested immediately upon the coming into being of any one of. that class. In other words, we think that the case is one which falls within the rule announced by the Supreme Court of the United States in Doe v. Considine, 6 Wall. (U. S.) 458, as follows:
“A devises to-B for life, remainder tó his children, but, if he dies without leaving children, remainder over, both the remainders are contingent; but, if B afterwards marries and has a child, the remainder becomes vested in that child, subject to open and let in unborn children, and the remainders over are gone forever. The remainder becomes a vested remainder in fee in the child as soon as the child -is born, and does not wait for the parent’s death, and, if the child dies in the lifetime of the parent, the vested estate in remainder descends to his ■heirs.”
This rule finds support among all the text writers. 3 Thompson on Real Property, pp. 191, 209; Tiedeman, Real Property, § 302. Mr. Washburn states the rule as follows:
“Thus, upon the grant of an estate to A, with a remainder to his children, he having none at the time, the remainder will, of course, be a contingent one. But the moment he has a child born, the remainder becomes vested as fully as if it had originally been limited to a living child.” 2 Washburn, Real Property, § 1551.
It seems to be the contention of both parties in the case that an estate for life was devised under the will to James Hayes Jenkins and his wife Josephine. It is unimportant, we think, whether this is true or whether a trust was created. In either event the title vested in fee upon the coming into being of one of the members 'of the class mentioned.
Counsel for appellant, in their contention that the will did not include after-born children, rely upon the decision of this court in Wyman v. Johnson, 68 Ark. 369, but we do not think that the decision in that case is applicable. In that case members of the class mentioned in the will were in being at the time of the execution of that instrument, and, there being nothing to indicate an intention of the testator to include after-born children, it was held that they were not included in the devise. In the present case there was no person in being coming •within the class mentioned in the devise, and, in order to give any effect at all to the devise, it must be presumed that the testator intended to include after-horn children of James Hayes Jenkins and his wife Josephine. It is our duty, if it can reasonably be done from the language used, to give some effect to the devise, and to do so we must say that it was intended to include after-born children. Our conclusion therefore is that the title passed under the will to Hazel Brunson Jenkins, and from him to appellees under his deed to the latter.
There are other questions raised in the case, but it is unnecessary to discuss them, inasmuch as the conclusion hereinbefore announced completely settles the rights of the parties.
Decree affirmed. | [
-12,
70,
-40,
124,
-70,
-32,
10,
-102,
106,
-95,
-27,
83,
-39,
92,
24,
105,
-30,
77,
113,
109,
-92,
-93,
19,
-25,
-111,
-13,
-25,
-57,
49,
73,
-12,
-41,
76,
32,
26,
-35,
-62,
74,
-59,
20,
-50,
-123,
-103,
44,
81,
80,
52,
-21,
28,
75,
85,
-82,
-77,
42,
29,
-54,
108,
47,
89,
45,
-40,
48,
-102,
4,
-115,
23,
-111,
103,
-110,
-127,
104,
122,
-104,
53,
-120,
-88,
83,
38,
-122,
-12,
66,
-117,
8,
102,
-25,
10,
-51,
-1,
-120,
-104,
15,
-66,
-103,
-90,
-74,
109,
99,
74,
-66,
-108,
120,
80,
-97,
120,
-18,
5,
28,
120,
45,
-81,
-42,
-127,
5,
44,
-112,
7,
-5,
5,
96,
97,
-33,
-94,
117,
2,
49,
-101,
7,
-101
] |
Humphreys, J.
Appellee instituted this suit against appellant in the circuit court of Chicot County to recover damages for flooding his lands with surface water alleged to have been gathered together by means of ditches and thrown in a body upon his cultivated fields. The cause of appellee’s damage was alleged in the complaint m the following language:
“That the defendant, some time in the latter part of March, 1921, or about said date, constructed two large ditches, one on each side of its railway, beginning at mile-post on its roadbed number 418.5 and emptying them or ending them near its mile-post 420.20, into the ditch plaintiff had before constructed to drain his land, as aforesaid; that the ditches constructed by the defendant tapped surface water above, consisting of many square miles and of great quantity of water, and by means of these ditches so constructed a great quantity of water was cast in a body upon the lands of the plaintiff, as aforesaid, and that this was the effect of the defendant’s ditches so constructed, as aforesaid.”'
Appellant filed an answer denying the material allegations of the complaint, and, in addition, interposed three separate defenses; first, that in March, 1921, it simply cleaned out two old ditches which it had constructed on each side of its track in 1917 at the request of appellee; second, that the ditches as originally dug were a part of the original construction of its roadbed, and that' any damage resulting therefrom was barred by the three years’ statute of limitation; and third, that the overflow was caused by excessive rains in the year 1921 and by the failure of appellee to clean out the drainage ditches composing his own drainage system on his plantation.
The cause was submitted to the jury on the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment in favor of appellee for $1,120, from which is this appeal.
The record reflects that, in 1917, appellee purchased a plantation at Norcross, in Chicot County, and ditched same in accordance with specifications and survey of an engineer, for the purpose of draining it. Appellant’s railroad ran through appellee’s plantation. Trestle or bridge No. 8, in appellant’s track, was on appellee’s land. After buying tbe land, and when appellee constructed Ms drainage ditches, he requested appellant to dig a ditch on each side of its track, which it did. These two ditches ended at trestle No. 8, and the surface water carried by them emptied under the trestle into appellee’s ditch, through his land on -the east side of appellant’s track. Appellee constructed a ditch through his plantation on the west side of the track, which passed under trestle No. 8, into his own ditch, through Ms land, on the east side of appellant’s track, which ditch carried the surface water into Bayou Macon. The ditches constructed by appellant along its track extended about two and-one-half miles above appellee’s plantation, and the surface water which gathered in them above said plantation emptied through some five or six culverts, and flowed away before reaching trestle No. 8, on appellee’s plantation.
The testimony introduced by appellee tended to show that, in order to take care of the surface water on the Parnell plantation, two and. one-half miles above appellee’s plantation, appellant enlarged the ditches along its track, and, in doing so, closed the culverts between Parnell’s and appellee’s plantations, which had the effect of accumulating large quantities of surface water at trestle No. 8, and casting same in a body under the trestle and into appellee’s ditch, thereby flooding a large part of his plantation. Appellant objected to the testimony tending to show that it closed the culverts, because it introduced a cause for damage which was not pleaded in his complaint. The court overruled appellant’s objection to this testimony, and permitted it to be introduced.
The testimony introduced by appellant tended to show that appellee’s lands were flooded in 1921 bv excessive rains; that it did not enlarge the ditches in 1921 along its tracks, which were dug in 1917 at the request of appellee; that, in 1921, it simply cleaned the ditches which it had dug in 1917, and, in doing so, did not obstruct or close up the five or six culverts between appellee’s and Parnell’s plantations.
Appellant asked appellee, on cross-examination, whether he could not have .avoided or mitigated his damages to his crops in 1921 from overflow by cleaning out his own ditches, which question was excluded by the court, over appellant’s objection and exception.
Appellant contends for a reversal of the judgment because the court refused to permit it to ask appellee, on cross-examination,' whether he could have avoided or mitigated his damages by cleaning out his own ditches. We think not. This question called for an opinion of a non-expert as to how appellee’s lands could be drained and the overflow prevented, and was inadmissible. St. L. S. W. R. Co. v. Morris, 76 Ark. 549.
Appellant also contends for a reversal of the judgment because the court permitted appellee to prove that it closed the culverts above his plantation in enlarging the ditches along its track. The basis of the contention is that the admission of this evidence, over appellant’s objection, constituted a variance between the allegation of the cause of damage and the proof. We think if these culverts were closed or obstructed in enlarging the ditches along the track, it was an incident connected with the work, which necessarily increased the flow of the surface water in the ditches and tended to prove the allegation of the cause of damages alleged in the complaint.
Appellant also contends that the court erred in refusing to give its request No. 5, which is as follows:
“The court instructs you that the defendant has no control over any land except its right-of-way, and that it has no right to go onto any of the land mentioned in the plaintiff’s complaint, and that, if you believe that plaintiff suffered any damage as alleged in his complaint, and if you believe that this was due to the fact that plaintiff failed to use reasonable care in the main» tenance, repair, enlarging or widening of the ditches across his land, your verdict should be for the defendant. ’ ’
This instruction was erroneous and properly excluded, because there was no testimony in the record showing that appellee suffered damage by reason of his failure to maintain, repair, enlarge or widen the ditch across his own land. The instruction was also erroneous because the law did not impose any duty upon appellee to enlarge or widen the ditch on his own land in order to carry off surface waters accumulated and thrown in a body upon appellee’s land.
Appellant also contends for a reversal of the judgment because the court refused to give his request No. 4. This request, in effect, permitted appellee to collect surface waters in a ditch and cast same in a body upon the land of appellee. This is not the law, and the court was correct in refusing to give the instruction. Wine v. Northern Ry. Co., 49 L. R. A. 714.
Appellant contends for a reversal of the judgment because the court refused to give its request No. 11, and in modifying said request and giving it as modified. Appellant’s request No. 11, in its original form, is as follows:
“You are instructed that, if you believe that the ditch was dug by the owners of the Parnell land, and this ditch opened up on the railroad right-of-way and discharged large quantities of water into the ditches, the railroad is not responsible for any excess of water thrown into the right-of-way by the ditch across the Parnell land. ’ ’
In its modified form it is as follows:
“You are instructed that, if you believe that a ditch was dug by the owners of the Parnell land and this ditch opened into the railroad right-of-way and discharged large quantities of water into the ditches, the railroad is not responsible for any excess water thrown into its right-of-way by the ditch across the Parnell farm, unless defendant opened its ditches to accommodate such water, and by doing so accelerated the flow of such volumes as to flood the lands of the plaintiff.”
The testimony tended to show that the work done on the ditches was for the purpose of caring for the surface water on the Parnell plantation. It was proper therefore for the court to amend the instruction in such a way that it would conform to either phase of the proof. An upper proprietor is liable in damages to a lower proprietor if he gathers the surface water of a dominant estate and easts it in a body upon the servient estate. 27 R. C. L., p. 1151, § 79; St. L. I. M. & S. R. Co. v. Magness, 93 Ark. 53.
Lastly, appellant contends for a reversal of the judgment because the court refused to instruct the jury as follows:
“The court instructs you that, in no event, can you find any amount for any damage that may have been caused by the permanent structure which may have been made by the railroad company three years prior to the bringing of this suit. So the court tells you that, even if you find that the ditches caused damage to- plaintiff’s crop in 1921, yet, if you believe that these ditches were á part of the permanent roadbed and that they were originally dug more than three years prior to this suit, and that the work that defendant did on them in 1921 was merely a cleaning out or maintenance work, then the court tells you that this cause of action is barred, and your verdict will be for defendant.”
This instruction presented the defense and theory of appellant in apt words. The main issue in the case was whether appellant simply cleaned out the old ditches along its track in 1921, which appellee had requested it to dig in 1917, or whether it enlarged the ditches in 1921 for the purpose of gathering additional surface waters from the lands of upper proprietors, and, in doing so, obstructed culverts which had theretofore taken care of a part of the surface water, and cast same in a body upon appellee’s lands, thereby causing them to overflow.
Appellant’s theory of the case was correctly incorporated in its request No. 9, and the court erred in refusing to give the instruction.
On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial. | [
-16,
108,
-68,
-115,
-86,
44,
72,
-122,
73,
41,
-11,
83,
-1,
-125,
8,
101,
-25,
-87,
117,
59,
-59,
-77,
91,
-94,
18,
-45,
123,
87,
-76,
79,
-12,
-41,
72,
48,
-118,
17,
-61,
96,
-51,
-36,
-122,
0,
-117,
108,
89,
-54,
60,
107,
70,
79,
53,
-113,
-13,
46,
21,
-29,
105,
44,
-49,
41,
80,
112,
-118,
29,
25,
5,
48,
103,
-104,
3,
-22,
56,
-112,
53,
-128,
-72,
115,
-94,
-110,
84,
3,
-103,
8,
34,
102,
34,
-19,
-121,
-116,
-120,
14,
-2,
9,
-90,
34,
64,
91,
105,
-70,
-99,
120,
-48,
71,
122,
124,
-59,
93,
40,
39,
-117,
-108,
-25,
-115,
-124,
-100,
35,
-17,
11,
48,
116,
-49,
-94,
89,
79,
117,
-97,
-113,
-45
] |
Humphreys, J.
This is an appeal from a decree in favor of appellee against Eva A. Marley, special administratrix of the estate of F. N. Marley, deceased, for $35,160.90, and against Rufus Armistead, special administrator of the estate -of K. R. Armistead, for $23,954.41, rendered in a suit brought in the chancery court of Crittenden County by- -appellee against F. N. Marley, for an accounting of rents on her plantation in said county, known as the Perryland Plantation, for a term beginning January 1, 1920, and ending December 31, 1925, and for $52,145.20 in cash to her. -credit with K. R. Armistead & Company, and for an accounting with K. R. Armistead for the amount of $52,145.20 in cash to her credit with said company.
The defense interposed by F. N. Marley to the suit was that the plantation was operated under1 a sharecrop agreement for a five-year period at a loss instead of a profit, and that the funds to her'credit in her account with K. R. Armistead & Company were checked out under authority contained in a power of attorney, executed by her to him, in the operation and improvement of said plantation.
The defense interposed by' K. R. Armistead to the suit was that he paid out the funds to appellee’s credit with his company on checks drawn against it by F. N. Marley, under authority contained in the power of attorney given by her to F. N. Marley. The power of attorney referred to is as follows:
“power op attorney.
“I, Annie M. Hackler, widow, of Crittenden County, Arkansas, do hereby nominate and appoint F. N. Marley, of Memphis, Tennessee, as my true and lawful attorney in fact^with full power and authority to transact .'«"'all business for me, and in my name to execute and acknowledge deeds or other conveyances, and to sign all contracts, checks, drafts or other instruments, it being my purpose and intention by this instrument to give him a general power of attorney to transact all business of every kind for mevand I hereby ratify and confirm all his acts and deeds in the premises as fully as if I were present and doing the same in my own hand.
her
(Signed) “Annie M. X Hackler.
mark
“Witness: K. R. Armistead,
“Rufus Armistead.”
Acknowledged before notary public.
The agreement with reference to the operation of the plantation is as follows:
“agreement.
“This lease agreement this day made and entered into by and between Mrs. Annie M. Hackler and F. N. Marley, witnesseth:
“1. The undersigned, Annie M. Hackler, leases to the said'F. N. Marley her plantation at Bruin, Crittenden County, Arkansas, known as the Perryland Plantation, containing about 600 acres, for the term beginning January 1, 1920, and ending December 31, 1925. Also all the live stock and farming implements of all kinds on said plantation belonging to her and used in operating the same.
“2. The undersigned, F. N. Marley, on his part, agrees to manage and operate said plantation during the term of this agreement, devoting so much of his time thereto as may be necessary; and shall be responsible for the proper management and operation of same.
“3. The undersigned, Annie M. Hackler and F. N. Marley, are to share equally the profits derived from the operations of said plantation during the term of this lease.
“Executed in duplicate this September 24, 1919.
her
(Signed) “Annie M. X Hackler.
mark
“F. N. Marley.
“Witness: M. C. Ketchum, A. W. Ketchum.”
Appellants contend for a reversal of the decree upon the theory that the power of attorney conferred authority upon F. N. Marley to check on the account of Mrs. Annie M. Hackler with K. R. Armistead & 'Company and on deposit in the Bank of Commerce & Trust Company in Memphis for unlimited amounts to operate the plantation which she owned in Crittenden County, Arkansas, under and by virtue of the written agreement set out above, and that the money that Mrs. Annie M. Hackler had on deposit with Armistead & Company and with the trust company, as well as the proceeds derived from the sale of the crops of 1919 and for the five-year period under the agreement, was used for that purpose, except about $6,100. In other words, appellants interpret the agreement relative to the operation of the plantation to be a sharecropper’s or partnership agreement, by the terms of which Mrs. Hackler should furnish the land, the live stock, farming implements, and money with which ■to operate same, and Marley to direct the operation thereof, for which each was to receive one-half of the profits derived therefrom
The chancery court found that the power of attorney was executed to enable F. N. Marley to efficiently administer upon the estate of J. P. Hackler, deceased, with knowledge by K. B». Armistead and his son, Rufus Armistead, of its purpose; and that, when the purpose was accomplished, it had no further force and effect. To state it more directly, the chancery court found that the power of attorney did not confer upon F. N. Marley authority to check out the moneys of Mrs. Annie M. Hackler on deposit with K. R. Armistead & Company and in the trust company in the operation of the plantation, and that K. R. Armistead and Rufus Armistead knew that it was not executed for that purpose. The chancery court also construed the written agreement relative to the operation of the plantation as a rental contract, creating the relationship of landlord and tenant, by the terms of which Mr®. Annie M. Hackler was to furnish the plantation, the live stock and farming implements thereon, and to receive one-half the profits derived therefrom as rents.
The record is voluminous, and it would extend this opinion to unusual length should an attempt be made to set the testimony out in detail. For this reason only a general statement of the facts will be attempted.
J. P. Hackler was a planter, who owned and operated Perryland Plantation, consisting of 850 acres, in Crittenden County, Arkansas, at the time of his death, on June 5, 1919. He had resided upon the plantation forty years -with his wife, Annie M. Hackler. For twenty-five years prior tb' his death he had sold his cotton to and purchased his supplies from K. R. Armistead & Company, merchants and cotton factors in Memphis, and also carried his banking account with them. F. N. Marley was a son-in-law of K. R. Armistead, and the bookkeeper for his firm at and during the time Hackler did business with the firm. During the business transactions Mr. and Mrs. Hackler became well acquainted with the. families of Armistead and Marley, resulting in an association of mutual confidence, respect and esteem. The families visited each other and visited .other cities together. Hackler had prospered until he was able to carry over his cotton crop of 1917 and 1918, and, when sold, just prior to his death, he had a cash balance with Armistead & Company of $38,000. Hackler made a will by the terms of which his entire estate was devised to his wife, Annie M. Hackler, with direction that.she be appointed executrix without bond, and left the will with K. R. Armistead. Hackler then went into the hospital for the purpose of being operated upon. While waiting for the operation K. R. Armistead, his son, Rufus Armistead, and Marley visited him. The day before the operation he .asked all the parties to leave the room, except his wife and Marley. He then stated that he expected to recover from the operation, but requested Marley, in the event of his death, to assist his wife, which Marley agreed to do. He died from the operation on the next day. After his burial the will was opened by Marley and read to Mrs. Hackler, who could not read or write, at the residence of a Mr. Carlos, where Mrs. Hackler was stopping, in Memphis. The following day Mrs. Haclder and a friend went to the Peabody Hotel and had them telephone Marley that they wanted to see him. When he arrived, she stated that she wanted to pay off the debts, which amounted to little, and wind up the estate, but that she did not want to act as executrix. She requested Marley to attend to the details of winding up the estate, which he agreed to do. In order to attend to the details of the estate for the ' executrix, Marley suggested that, as she would be out on the plantation, it would facilitate matters for her to give him a power of attorney to act in her behalf. She inquired of him about an attorney, and Marley suggested M. C. Ketchum, K. R. Armistead’s attorney. The suggestion met with her approval, so Marley procured Ketchum to draw the power of attorney and take charge of ‘the legal features of probating the will and administering upon the estate. The following day Mrs. Marley took Mrs. ' Hackler to the office of K. R. Armistead, where she met Mr. Ketchum, who had drawn the power of attorney.
According to the testimony of Marley, when first examined, he and K. R. Armistead had talked over the necessity and purpose of a power of attorney to wind up the estate. Marley later testified that he was mistaken about discussing the matter of the preparation of a power of attorney with K. R. Armistead. K. R. Armistead also testified that the matter was not discussed between Marley and himself before the execution thereof. After the power of attorney was read, Mrs. Hackler signed it by mark, which signature was witnessed, at the suggestion of Marley, by K. R. Armistead and his son, Rufus. Mrs. Hackler employed Everett Marley, the son of P. N. Marley, at his suggestion, to assist her in gathering the crop of 1919, which was shipped to Armistead & Company. He continued in her employ until January, 1920. In the meantime F. N. Marley, under the power of attorney, performed all the acts necessary to a complete administration of the estate, and, after collecting the assets and paying the obligations, he informed Mrs. Hackler that everything had been done except selling the plantation. Just before the operation, J. P. Hackler had suggested, that the plantation be sold and a home purchaséd for or by his wife in Memphis. Mrs. Hackler preferred to reside upon the plantation instead of selling same, and, according to Marley, requested him to manage it for her. According to Mrs. Hackler, Marley proposed to rent the plantation from her. After talking the matter over several times they entered into the written agreement heretofore set out, on the 24th day of September, 1919, but Marley did not enter into the possession and control thereof until January 1, 1920. Before entering into the possession of the plantation, Marley transferred the account at K. R. Armistead & Company to Annie M. Hackler.. He also transferred the account of J. P. Hackler, of about $8,000, in the Commerce & Trust Company to Annie M. Hackler. He also collected about $4,000 life insurance and placed it in the Annie M. Hack- • ler account at K. R. Armistead & Company. When Marley took possession of the plantation, he employed his son to assist him. His son remained on the place until 1924. Marley took an inventory of the stock in the plantation store, and opened a set of books, which was kept by him and his son on the basis of a partnership during the entire term of the agreement. The business was run under the name of Perryland Plantation. The names of P. N. Marley and Annie M. Hackler appeared on the letterheads. Marley transferred all the money in both accounts, about $52,000 in all, to the Perryland Plantation, and, during the five-year period, expended all that was produced on the plantation and all the money in Mrs. Hackler’s accounts, except $6,100, in the operation thereof, according to his testimony. Mrs. Hackler knew nothing of the manner in which the 'books were kept, and did not participate in the management of the plantation. It was managed and controlled by Marley and his son without consultation with Mrs. Hackler. According to her testimony, she had no information that Marley had used her money' in the operation of the plantation or otherwise until the fall of 1924. He did not make her an annual statement. She testified that she asked him how they had come out, and he always told her that she had come out all right. She said that she had absolute confidence in Marley and Armistead, and trusted them implicitly. She testified that, in the fall of 1921, she observed that a great deal of money was being spent, and heard that Marley had mortgaged her plantation, and that she asked him if he had done so, and he told her no. When pressed with reference to her dissatisfaction on account of the extravagant expenditure of money in 1921, and whether she discovered at that time that Marley was checking out her money, she said “no”; that she had reference to the expenditure of money which she supposed bad been made in the operation of the plantation. She said further that she knew Marley had expended some of her money in the construction of some houses on the plantation, but had no idea he had used any of it in the operation of the plantation. She said she thought the money expended in the operation of the farm had been made on the farm and out of the plantation store.
Marley and Armistead both testified, that Mrs. Hackler ’s individual money was cheeked out and used in the operation of the plantation under the authority contained in the power of attorney. In the fall of 1924 Marley wanted to rent the plantation for cash rent, but Mrs. Hackler concluded to sell same, and asked him for a statement. The statement disclosed that all of her individual money had been checked out except about $6,000.
As we understand, no question is raised on appeal as to the amount of the judgments appellee is entitled to recover under the facts- and law. Appellant challenged the right of appellee- to recover any amount. Her right to recover depends upon the effect given the power of attorney and the interpretation placed upon the written agreement.
After a very careful reading' and consideration of the testimony, we are of opinion that the power of attorney was executed for the purpose only of enabling P. N. Marley to wind up the estate of J. P. Hackler, deceased. The language is broad, and confers general power upon Marley to transact all business of every kind for her, but, as between the parties to this suit, it only had reference to the business in hand at the time of its execution. The only business in hand at that time was the winding up of the estate of Hackler. The power of attorney was suggested by Marley, and he pointed out that it would facilitate -matters (referring to the administration of the estate) for Mrs. Hackler to give him a power of -attorney to act in her behalf. According to the first testimony of Marley, the necessity for and purpose of a power of -attorney was discussed between him- and K. E. Armistead. Mrs. Hackler testified that its purpose was discussed between them at the time it was executed. It was drawn by Armistead’s regularly employed -attorney, who was employed by Mr. Marley to look after the legal features of probating the will and administration of the estate. It was executed in the office of Armistead, and witnessed by Mm and bis son. We think, as between Annie M. Hackler, F. N. Marley and K. R. Armistead, it should be limited in its effect and operation to winding up the estate of J. P. Hackler, deceased.
The next, and only other, question involved upon the appeal is whether the written agreement is a rental contract or a contract of partnership. This should be determined by the language of the instrument, unless susceptible of more than one interpretation. The purpose of written contracts is to clearly define the intention of the parties. Agreements are reduced to writing in order to avoid any differences between the parties thereto. Of course, if the written instrument is ambiguous it then becomes necessary to resort to parol evidence or the conduct of the parties under it to determine their intention. In construing a written instrument it should be interpreted most strongly against the party who prepared it. The contract in question was prepared by Marley. Mrs. Hackler could neither read nor write. The agreement is characterized as a lease in the opening declaration thereof. In the first paragraph it is clearly and plainly stated that Annie M. Hackler leases to F. N. Marley her plantation (describing it) and all the live stock and farming implements thereon, for a term of five years.
There is nothing in the opening declaration or the first paragraph indicating that the agreement is one of partnership, or that it is a share-cropper contract. On the contrary, the language clearly states that it is a lease or a rental contract.
The second paragraph defines the duties of F. N. Marley, the second party in the contract. We find nothing in the duties assumed by him inconsistent with the duties of a tenant. He agrees therein to manage -and operate the plantation, devoting so much of Ms time thereto as may be necessary, and agrees to be responsible for the proper management and operation of same.
The third or last paragraph provides that Annie M. Hackler and F. N. Marley are to ¡share equally the profits derived during the operation of said plantation under the lease. We do not think any doubt can arise out of •this paragraph as to whether the contract is one of lease. The last paragraph should be construed with the other parts of the agreement so that harmony may prevail throughout, if possible. This effect may be easily accomplished, without doing any violence to the language used, by construing this clause to mean that Mrs. Hackler was to receive one-half of the profits for rent, and Marley the other half for his labor or management and the use of the money advanced in the operation thereof. This interpretation is reasonable in the light of the paragraphs specifically stating what Mrs. Hackler "should furnish. If it had been the intention for her to furnish the money for the operation of the plantation, it would have been very easy to have included in the specific statement all the thing’s she was to furnish. The second paragraph provides for Marley to operate the farm, which necessarily implied that he should provide the funds to do so. The contract provided for him to manage and operate same, not to manage or operate same. The management refers to his mental and physical labors, and operation to the expenses incident thereto. A division of profits growing out of a business does not necessarily imply a partnership arrangement. A division of profits is often made a basis of salary for business or rents for property. We are unable to discover any ambiguity in the agreement. The relationship of landlord and tenant was created by the terms thereof.
The decree is affirmed. | [
-80,
-20,
-4,
60,
56,
-12,
90,
56,
74,
67,
-28,
83,
-21,
-1,
64,
123,
-11,
13,
117,
105,
-57,
-77,
22,
-96,
98,
-13,
-39,
-43,
-79,
78,
-2,
87,
8,
48,
-54,
21,
102,
-64,
97,
28,
-106,
-95,
-117,
-28,
89,
2,
48,
107,
5,
15,
117,
46,
-13,
45,
61,
98,
104,
108,
-7,
45,
94,
-31,
-118,
28,
127,
23,
32,
-28,
-104,
-127,
88,
122,
-120,
49,
0,
-24,
51,
-74,
-122,
84,
6,
25,
9,
118,
98,
19,
-27,
-17,
-104,
-118,
6,
126,
-99,
-90,
-46,
89,
75,
72,
-76,
-99,
123,
16,
7,
-4,
-28,
-43,
89,
108,
-127,
-53,
-106,
-105,
-113,
-79,
-102,
11,
-21,
29,
112,
117,
-51,
-30,
89,
87,
61,
-101,
-97,
112
] |
Humphreys, J.
Appellees, heirs of Mary McHenry, deceased, instituted suit on July 19, 1922, in ejectment against appellants to recover an 80-acre tract of land in said county, alleging that they inherited it from their ancestor, Mary McHenry, who acquired title thereto by adverse possession.
Appellants filed ian answer denying the material allegations of the complaint, and alleging ownership 'in themselves by purchase through mesne conveyances from the State’s patentees, E. S. Crossett, who purchased one of the forties in 1899, and J. H. Hostetter, who purchased the other in 1904 from the .State as internal improvement land. The cause was submitted to the jury upon the pleadings, testimony 'and Instructions of the court, which resulted in a verdict and consequent judgment in favor of appellees for the land, from which is this appeal.
The first and main contention of appellants for a reversal of the judgment is that the undisputed evidence shows that appellees’ possession was permissive and not adverse. Mary McHenry obtained a donation deed from the State to the lands in controversy on June 4, 1885, reciting that said lands had forfeited to the State for the taxes for the year 1878. She, together with her husband and children, immediately moved upon and improved the land. They built three houses thereon, fenced and placed a part of it in cultivation. Mary McHenry paid the taxes thereon until 1898, when the collector refused to accept taxes because it was internal improvement land. Neither she nor appellees paid taxes on the land after that time. The place was originally known as the Mose McHenry place. After a time Mose McHenry died, and his widow, with their children, continued to reside upon the place. Mary McHenry died in 1908, but her children continued to live upon the property. Later, one or more of them died, and some of them married ’and moved away. One of them, Thomas J. McHenry, was living on the place when appellants moved thereon, and he continued to reside there until after the first suit for the property was instituted. The first suit for the property was brought in 1921, but was dismissed a short time before the instant suit was commenced.
The testimony on the part of appellees tended to show that, from the time their mother took possession of the land in 1885 until her death in 1908, she actually, openly, continually and notoriously occupied the land, claiming title thereto.
Appellants introduced testimony tending to show otherwise.
This issue of fact was submitted to the jury under proper instructions, and appellants are 'bound by the adverse finding of the jury.
It is true that, between the dates Crossett and Hostetter patented the land in 1899 and 1904 and the time this .suit was instituted, some of the grantees in the chain of appellant’s title cut the valuable timber off of the land and collected rent for a few years from two of the heirs, but the heirs explained that the timber was cut and the rents collected from them because they were afraid of the parties who cut and removed the timber and collected the rents. Appellants and their ancestors were ignorant negroes.
There is ample evidence in the record to support the finding of the jury that the possession of the lands by appellees and their ancestors was not permissive but, on the contrary, was adverse to the world.
The next and last contention of appellants for a reversal of the judgment is that appellees’ title by adverse possession must fail because the testimony did not reflect any definite description of that part of the land which they and their ancestors actually occupied, and that, in no event, could they claim that part of the land outside of the inclosure which they and their ancestor maintained upon the land. It is true that one claiming a prescriptive title to lands can only claim to the boundaries of his actual possession, but not so when he claims under an instrument in writing constituting color of title. In that event his possession extends to the boundaries designated in the instrument. Appellants argue that, because the donation deed was executed before the lands were obtained and while they were held by the State as internal improvement lands, the deed was void and was not such color of title as might be used by the grantees therein to mark the boundaries of their land. In support of this argument they cite the case of Brinneman v. Scholem, 95 Ark. 60. That case is not in point. The issue in that case was whether the two-year statute of limitations would be put in operation by a void donation deed executed before the title passed out of the State. We held that it would not, become the statute does not apply to a tax deed or donation deed based upon that kind of a sale. The two year statute of limitations has reference to the perfec tion. of void tax titles by adverse possession against the real owner of the land. The acquisition of title to lands under the seven-year statute of limitations has no relation to the perfection of void tax titles by adverse possion. The statute is put in operation by adverse possession only, either with or without color of title. The operation of the statute does not depend upon an instrument constituting color of title. The rule is that, if the adverse possession was entered under color of title, the grantee in the instrument constituting color of title will be deemed in constructive possession of the entire body of land described in the instrument if in the actual possession of any part thereof. The rule announced in Brinneman v. Scholem, supra, has no application whatever to the seven-year statute of limitations, and it is immaterial whether the color of title under which Mary McHenry took possession of the land in question was issued before or after the land was patented to E. S. Crossett and J. H. Hostetter. The instrument was color of title for the purpose of marking the boundaries of the lands claimed and occupied by her and her heirs. It follows that the court properly refused to instruct the jury that the donation deed acquired by Mary McHenry was not color of title, and that such adverse possession as she and her heirs held only extended to and Applied to the land which .she or they held under inclosure for the statutory period.
No error appearing, the judgment is affirmed. | [
-16,
108,
-4,
-68,
42,
-32,
106,
-98,
66,
-95,
-75,
83,
-85,
-14,
0,
53,
-29,
105,
65,
123,
-31,
-78,
18,
-126,
16,
-77,
-77,
-33,
-15,
77,
100,
-57,
76,
49,
74,
85,
-62,
-126,
-51,
18,
-114,
-115,
41,
72,
-39,
-32,
52,
-21,
48,
75,
117,
-114,
-77,
45,
117,
-29,
105,
46,
79,
57,
65,
-72,
-118,
-123,
-33,
14,
16,
87,
-102,
-63,
-54,
26,
-112,
49,
0,
-24,
51,
-74,
-106,
-12,
3,
-103,
8,
34,
102,
17,
-27,
-17,
-24,
-104,
46,
-6,
29,
-89,
-31,
72,
90,
106,
-73,
-99,
80,
64,
-49,
120,
-20,
-123,
93,
104,
37,
-49,
-106,
-79,
-113,
-72,
-120,
3,
-53,
31,
52,
112,
-49,
-54,
92,
71,
48,
-101,
-114,
-46
] |
Smith, J.
Appellee, a fraternal insurance society, brought this suit to enjoin the enforcement of a judgment recovered against it in the court of a justice of the peace in Conway County, upon the ground that the judgment was rendered without proper service being first had.
The complaint recited facts which, it is alleged, show that there had been no proper service of summons before the rendition of the judgment, but the complaint did not allege that there was a valid defense to the claim upon which the judgment was rendered. A demurrer to the complaint was overruled, and, as the judgment creditors stood on the demurrer and refused to plead further, the relief prayed was granted and the enforcement of the judgment was enjoined, and this appeal is from that decree.
The case of Rotan v. Springer, 52 Ark. 80, 12 S. W. 156, was one in which the enforcement of a judgment was sought to he enjoined upon the ground that it had been rendered without notice, and it was there said: “The plaintiff offered no suggestion of a defense to the claim upon which the judgment which he sought to enjoin was based. His complaint therefore stated no cause of action (State v. Hill, 50 Ark. 458, 8 S. W. 401), and the court did not err'in sustaining the demurrer.
The doctrine of that case has been followed many times since. Horn v. Hull, 169 Ark. 463, 275 S. W. 905; McDonald Land Co. v. Shapleigh Hdw. Co., 163 Ark. 524, 260 S. W. 445; Derringer v. Stevens, 145 Ark. 293, 225 S. W. 14; Renfroe v. Parmelee, 143 Ark. 547, 220 S. W. 816; Williams v. Alexander, 140 Ark. 442, 215 S. W. 721; Baxter County Bank v. Davis, 137 Ark. 459, 208 S. W. 797; Sovereign Camp W. O. W. v. Wilson, 136 Ark. 546, 207 S. W. 45; Osborne v. Lawrence, 123 Ark. 447, 185 S. W. 774; Robinson v. Ark. Loan & Trust Co., 74 Ark. 292, 85 S. W. 413.
The demurrer to the complaint should therefore have been sustained, and the decree of the court below will be reversed, and the cause remanded with directions to sustain the demurrer. | [
-74,
-20,
-96,
-4,
-118,
96,
56,
-86,
83,
112,
37,
83,
-19,
-58,
16,
39,
-28,
9,
117,
64,
-42,
-93,
31,
100,
-38,
-109,
-7,
69,
-75,
79,
-18,
-34,
72,
32,
74,
-35,
70,
-30,
-115,
-104,
-50,
1,
-119,
109,
-7,
64,
112,
-37,
20,
79,
21,
-89,
-29,
46,
16,
-53,
45,
44,
-7,
61,
-63,
-7,
-38,
5,
127,
5,
49,
36,
-102,
67,
72,
-102,
-112,
57,
19,
-8,
115,
38,
-126,
116,
105,
-103,
12,
118,
98,
-95,
17,
-21,
-88,
-100,
47,
62,
29,
-89,
-78,
57,
11,
13,
-74,
-103,
-3,
5,
-121,
-2,
-12,
13,
92,
40,
3,
-50,
-106,
-75,
-121,
116,
-100,
3,
-25,
-14,
36,
112,
-59,
-14,
93,
-57,
119,
25,
-122,
-8
] |
Humphreys, J.
This is an appeal from an order of the circuit court of Pulaski County, Second Division, affirming an order of the Bailroad Commission requiring appellants, to erect umbrella sheds along the tracks of each of the railroads at Hoxie, where they intersect, from the depot jointly used by them to the place where the trains stop to discharge and receive passengers. Certain passenger trains on each road stop before crossing- the track of the other, about 410 feet from the depot, for passengers to get on and off the train. The necessity for the Frisco trains to stop north of the Missouri Pacific tracks and for the Missouri Pacific trains to stop east of the Frisco tracks is to enable them to make one stop to use the water crane for taking water and to load and unload passengers at the same time. Otherwise certain of the trains would have to make two stops, one to take water and the other at the depot to receive and discharge passengers. The order of the circuit court appealed from is in part as follows:
“Certain citizens of the town of Hoxie filed a petition with the Arkansas Bailroad Commission to require the Missouri Pacific Bailroad Company and the St. Louis-San Francisco Bailway Company to construct sheds along the tracks of each of the railroads for the convenience of the traveling public in going’ to and from trains. Testimony was heard as to the necessity of such sheds. After a hearing, the Arkansas Bailroad Commission entered an order requiring each, of the said railroads to construct sheds aggregating- in length one thousand feet, the plans for the sheds, however, to be subsequently filed with the Bailroad Commission for its approval. The railroads have appealed from this decision.
“The order of the Bailroad Commission, being a separate branch of the State Government, will not be set aside or disturbed unless it appears unreasonable or arbitrary.
“The two railroads intersect at Hoxie, and passengers leave the trains of each railroad before the train-crosses the track of the other, or reaches the station. Consequently passengers going to and from the station to the trains are of necessity required to walk quite a distance. Under the circumstances of 'this peculiar case, in the opinion of this court, the order of the Arkansas Bailroad Commission does not appear unreasonable or arbitrary. It is. claimed that the construction of sheds, at Hoxie would require an unreasonable outlay by the railroads, considering the results to be obtained. The matter of expense is to be determined by the railroad companies on the approval of the Bailroad Commission. Considering the whole case, this court is of the opinion that the order of the Arkansas Bailroad Commission is not arbitrary or unreasonable, and will therefore be affirmed. ”
The order of the Bailroad Commission and the order of the circuit court affirming said order are assailed upon the grounds: first, that authority was not conferred upon the Bailroad Commission by statute to order railroads to construct umbrella sheds over their platforms, or, to put it differently, that the Bailroad Commission was without jurisdiction to order appellants to build sheds over their platforms from the depot to where they stopped certain of their trains to receive and discharge passengers ; second, that the order was. arbitrary and unreasonable, there being no necessity shown for the construction of the sheds; third, that the facilities already furnished are adequate; fourth, that the order of the Commission will deprive the railroads of their property without due process of law and in violation of § 1, article 14, of the Federal Constitution; fifth, that the order for the' construction of these sheds ■ is a burden on interstate commerce, and void. »
(1) Section 3 of act 124 of the Acts of the General Assembly of 1921 confers jurisdiction upon the Railroad Commission in all matters relating to the regulation and operation of common carriers and railroads; and one of the requirements in § 4 of the same act is that public service corporations shall provide and maintain adequate and suitable facilities for the operation of the business, and for the reasonable convenience and safety of the public. The sections referred to are broad enough to and do confer jurisdiction upon the Railroad Commission to require public carriers to provide such protection and convenience for its passengers.
(2) The contention that no reasonable necessity was shown by the testimony for the construction of the sheds is without merit. The distance between the depot and places where certain of the passenger trains stop to receive and discharge travelers, is one hundred and fifty yards or more, and too great a distance to expect passengers to go during* inclement weather. Their health and comfort are involved, and must necessarily be considered in arriving at the reasonableness or unreasonableness of the order. The testimony reflects that Hoxie is a junction of the two systems of railways, where many passengers change trains and where there are many incoming and outgoing passengers. Hoxie has about 1,500 inhabitants, and the large number of passengers debarking and embarking should have protection from rain and snow.
(3) It is true that the testimony reflects that a union depot has been built at this point, modern and adequate for the protection of passengers when once in it. The argument that adequate facilities have been furnished because such a depot has been constructed does not meet the situation at Hoxie. It would, if the trains all stopped beside or near the depot where the passengers could reach it without exposing themselves to inclement weather. The depot, however, can furnish no protection to passengers who are compelled to go a distance of one hundred and fifty yards- before they can board a train,- or go that distance after debarking to reach the depot. The protection required against the elements is protection afforded at the place of getting on and off trains. We think it the clear and reasonable duty of appellants to stop their trains at the depot, or else build umbrella sheds for the protection of the passengers, who are compelled to come and go one hundred and fifty yards in order to board the trains or reach the depot.
(4) We do not understand that the requirement that public carriers build depots of ample facilities for the protection of its passengers at the place where they are received and discharged in any way conflicts with the provision of the Constitution inhibiting the taking of property without due process of law. We think the peculiar situation at Hoxie makes it just as necessary to construct the umbrella sheds as it does to construct depots. It is one of the necessary facilities to protect the passengers. The requirement of the construction of necessary facilities in the operation of the business of a public carrier is in no sense taking its property without due process of law.
(5) The contention that the order to build the sheds will unnecessarily burden interstate commerce is without foundation in fact. The argument is made that the cost of building the sheds will amount to $16 per lineal foot, or a total of $15,000, without benefiting any one. The order does not fix the cost of the umbrella sheds to be built. That matter is left open. The expense is to be determined by appellants, on approval of the Railroad Commission. Certainly the Railroad Commission will not require that an unreasonable amount be expended in the construction of the sheds. We cannot agree that there is no necessity for the sheds. The record reflects the necessity for them in order to protect passeng;ers from the elements, because appellants stop certain of their passenger trains an unreasonable distance from the depot for the reception and discharge of passengers. The size of the town, together with the fact that Hoxie is the junction of the two systems, indicates that the traffic is sufficient to justify the construction of the sheds for the protection of the passengers against the elements.
No eryor appearing’, the judgment is affirmed. | [
118,
-30,
-76,
-100,
42,
73,
24,
-104,
83,
-93,
100,
83,
-19,
-117,
16,
115,
-25,
127,
113,
57,
-15,
-77,
71,
-78,
19,
-45,
55,
-57,
-65,
73,
36,
-42,
76,
113,
-54,
-99,
101,
72,
71,
28,
-114,
37,
-56,
-31,
81,
-56,
40,
99,
22,
15,
49,
-113,
-6,
44,
88,
-61,
8,
45,
-35,
-84,
-46,
114,
-102,
95,
20,
6,
33,
100,
-117,
1,
64,
123,
-112,
52,
52,
-68,
115,
-96,
-107,
116,
75,
-37,
8,
-86,
103,
65,
13,
-81,
-116,
-96,
22,
-6,
-83,
-90,
0,
25,
75,
37,
-78,
-107,
92,
-106,
14,
-2,
110,
-123,
88,
104,
-121,
-50,
-80,
-73,
-99,
33,
-124,
55,
-53,
37,
48,
116,
-114,
-30,
94,
-121,
17,
-101,
-114,
-34
] |
Wood, J.
On the 28th of April, 1923, Douglas Carter instituted this action against Obe S. Thompson and his wife, Eula Thompson, to which action the 'Security Mortgage Company and the Mclver Abstract Company were also made defendants. Carter alleged that on the 18th day of May, 1918, he was the owner of an undivided two-sevenths interest in 188 acres of land in Clark County, which he sold to Obe S. Thompson and Eula Thompson, his wife, on that date, for the consideration of $750, $50 of which was paid and $700 evidenced by a promissory note, payable December 1, 1918. Carter alleged that the note was secured by a vendor’s lien which was reserved in the deed to Thompson and wife; that, for reasons unknown to plaintiff, the defendants, Thompson and wife, withheld the deed from record. The plaintiff alleged that the mortgage company and the abstract company and others were claiming liens on the property, and he asked that they be required to answer and set up the nature and the extent of their claims and liens, if any, and he prayed that he have judgment against Thompson for $987.47, with interest, and that the same be declared an equitable lien upon the lands mentioned, superior to the rights of any of the defendants, and, unless the debt of Thompson was paid, that the lands be sold to satisfy the same.
The mortgage and abstract companies answered jointly, setting up their respective mortgages, and denied the allegations of the complaint. They set up that they were claiming an interest in the property under valid and subsisting mortgages executed to them by Thompson and wife; that the mortgage to the mortgage company was executed April 5, 1919, to secure a promissory note for the aggregate sum of $4,000, due April 1, 1919, which mortgage was duly recorded on April 19, 1919, that the mortgage to the abstract company was executed to secure notes in the aggregate sum of $1,117.78, due from April 1, 1920, to April 1, 1926; that the mortgage to the abstract company was subject to the mortgage to the mortgage company; that, by reason of the mortgages to them and the advances made by them to Thompson and wife, they were the purchasers and owners of the property, having acquired the same without notice, actual or constructive, of the interests of the plaintiff Carter. They set up that they had become owners in fee simple of the lands, and had held continuous, adverse and hostile possession for seven years, and pleaded the statute of limitations in bar of plaintiff’s claim.
The plaintiff testified substantially to the effect that he inherited a one-seventh interest in the lands in controversy from his mother, Melissa E.- Carter, who, at her death, left seven living children. Plaintiff bought the interest of one of his sisters, and therefore he owied a two-sevenths interest in the lands. He sold this two-sevenths interest on March 18, 1918, to Obe S. Thompson, who married witness’ sister, Eula Carter. The consideration was $750, $50 being paid in cash and the balance of $700 evidenced by a promissory note payable December f. 'The note contained the recital that “this note is based upon a land deed of even date. This note is given for a ’2/7 undivided interest in land containing 188 acres, all in sections 19 and 20, township 7, range 20.” The note was signed by Obe S. Thompson. The witness did not execute the deed on the day the note was executed, but the next week he sent Thompson a deed by mail. Witness executed to Thompson a warranty deed, which showed on its face that lien was retained for the balance due on the purchase money. Thompson had never paid the note. On cross-examination, a paper was handed to witness, and he was asked if that was a copy of the deed, and he .answered that it was, except that the deed witness signed did not have the words “for which a vendor’s lien is retained” scratched out. The paper, thus identified, was introduced, and it recited, in part, as follows: ‘ ‘ That D. Carter and wife, Allie M. Carter, for and in consideration of the sum of $50 to us in hand paid by Obe Thompson, the receipt of which is hereby acknowledged, and the further sum of $700, to be paid as follows, for which vendor’s lien is retained: seven hundred dollars, December 1, 1918, at 8 per cent, interest per annum from date, do hereby grant, bargain, sell and convey unto the said Obe Thompson and unto his heirs and assigns forever the following lands, lying in the county of Clark and State of Arkansas, to wit.” Then follow the habendum and warranty clauses, with the relinquishment of dower. There was a line drawn with red ink through the words “for which a vendor’s lien is retained.” The deed was dated March 18, 1918, and acknowledged on April 6, 1918. Witness testified'that the words through which the line was run were not stricken out when the deed was delivered to Thompson through the mail, and at the same time he also delivered to Thompson the deed that had been executed to witness by witness’ sister to her 1/7 interest.
It was shown by several witnesses, and it is undisputed, that the plaintiff was one of seven children of George W. and Melissa E. Carter. Thompson testified that he executed the note above mentioned to the plaintiff Carter for the 2/7 interest he .claimed in the lands. Carter executed a deed to witness for this interest. The deed was misplaced. Carter also delivered to witness a deed from his sister to him for her 1/7 interest. The 2/7 interest conveyed to witness by Carter is covered by a mortgage which the witness gave the mortgage company and the abstract company, and this is the same land mentioned in the note witness executed to Carter for the land. Witness had paid nothing on this note.
J. O. Ehyne testified that he was the attorney for the mortgage company and the abstract company, -and had in his hands a deed sent him by Obe S. Thompson in May or June, 1923. After looking over the deed and making a copy thereof, he mailed it back to Thompson. Witness had not had in his possession the deed from Lola Bridges to the plaintiff, dated March 15, 1913. The first time witness learned of the existence of the deed from Carter and wife to Thompson was when he read a copy of the complaint. The deed referred to was received by witness one day and mailed back to Thompson the next.
The testimony of the president of the mortgage and abstract companies was to the effect that he didn’t know of any outstanding claims of the plaintiff against this property at the time the loans were made to Thompson. If he had, he would not have closed same. He first learned of it on April 27, 1923. Thompson submitted an abstract of title to the companies in order to obtain the loan. The abstract was turned over to the title examiner of the companies. The examiner testified that the common source of title to the lands in controversy was in Melissa E. Carter, who died about the year 1893; that Obe S. Thompson claimed title under deeds executed by John H. Carter and wife, W. A. Garmaney and wife, George Wilson and wife, dated May 20, 1916, and which recited that the grantors were the only heirs at law of Melissa E. Carter, deceased, except Eula E. Thompson, wife of the grantee; that there was a second deed, dated May 29, 1916, from the same grantors to Obe S. Thompson, containing the same recital as to the grantors being the only heirs at law of Melissa E. Carter, deceased. The examiner of the abstract asked that an affidavit be produced, showing when Mrs. Carter died, the names and ages of her children. An affidavit was made by one John L. Bozeman, who stated that he was 67 years of age, and had known the 'Carter family for many years. He knew Melissa E. Carter in her lifetime. She died at the home of her husband, on June 24, 1893. Eula Carter Thompson, Emma Carter Garmaney, Georgia Carter Wilson, John H. Carter, and Will Carter were the only heirs at law of Melissa E. Carter, deceased. Upon the affidavit of Bozeman, after rechecking the title and basing his opinion on the abstract brought down to date, including the affidavit of Bozeman, the examiner approved the title. The abstract showed the mortgage from Thompson and wife to the mortgage company, and the companies thereupon advanced to Thompson the money secured by the mortgages.
On cross-examination the examiner of title stated that the abstract did not show any conveyances from Carter and Lola Bridges to Obe S. Thompson. The first witness heard of Carter’s claim was when Rhyne showed witness a copy of the complaint in this case. Witness did not see the deed from Douglas Carter to Obe Thompson, but saw a copy of what purported to be a copy of that deed in the hands of the companies’ lawyer. He did not recall reading any portion of it. Witness saw it about two or three weeks before testifying, when Rhyne came to witness ’ office to see him about testifying in the case.
Mclver, the president of the mortgage and abstract companies, being recalled, testified that he did not know that Thompson had sent the original deed to his attorney, Rhyne, after the suit was instituted. Witness never at any time or place saw a purported copy of the deed.
Thompson, being recalled by the companies, stated that he had a conversation with McIver, the president of the companies, in April, and told him that there was no vendor’s lien on the land in favor of Carter; that the note he gave said nothing’ about a lien, and that if there was a lien shown, it was a forgery. Witness and his wife executed the mortgages to the companies in 1919, and intended it to be a first and second lien on the property.
"Upon the pleadings and the testimony, the court found that the mortgages given by Thompson and wife to the mortgage and abstract companies, dated April 5, 1919, and upon the entire interest in the lands in controversy, were superior and paramount to the equitable vendor’s lien held against /an undivided 2/7 interest therein by the plaintiff by reason of the balance due him on the purchase money for said interest; that the rights of the plaintiff were superior in equity to all the rights and claims of all the defendants, except the mortgage and abstract companies, and that plaintiff was entitled to a judgment in the sum of $1,005.66, with interest, for the balance due him for an undivided 2/7 interest in the lands in controversy, subject to the rights of the mortgage and abstract companies; and ordered the lands sold to, satisfy the judgment of the plaintiff, and entered a decree in accordance with such findings. The plaintiff appeals from that part of the court’s decree subordinating his lien on his 2/7 interest in the lands in controversy to the liens of the mortgage and abstract companies.
1. The appellant testified unequivocally that the deed of himself and wife to Obe Thompson to the lands in controversy, dated March 18, 1918, at the time the same was delivered to Obe Thompson, had in it the words, “vendor’s lien is retained.” These words were not stricken out at that time, and, if they were stricken out thereafter, it was without any authority from the appellant.
Thompson testified that he did not have the deed that was delivered to him by the appellant; that the deed had been lost or misplaced. He could not find it; he could not say where he last saw it; he did not remember whether he sent it to the Mclver Abstract Company or to its attorney. The attorney for the abstract company testified that he had in his possession a deed from Carter and wife to Thompson, dated March 18, 1918, which conveyed the lands in controversy; that the deed was sent to Mm M May or June, 1923, by Thompson, after the institution of this action, and witness made a copy of it, but witness did not testify that the words, “vendor’s lien is retained,” were erased by having a red line run through them at the time he made a copy of the deed. He did not remember the exact description, nor whether it was signed by 'Carter and wife, or just by Douglas Carter. After looking it over he mailed it back to Thompson the same day or the next after receiving it. Thompson testified that he agreed to give the appellant a plain note, without any lien whatever against the land, and none was to be in the deed; that the note he gave said nothing about a lien, and that, if there was a lien shown in the note, it was a forgery.
The note was introduced, dated March 18, 1918, for $700, with the recital that the note was based upon a land deed of even date and given for two-sevenths of an undivided interest in land containing 188 acres, the land in controversy. Thompson testified that the note bore Ms signature.
It will thus be seen that the testimony of the appellant is consistent, while the testimony of Thompson as to the note is contradictory, and, as to the loss of the original deed executed by appellant to him, is unsatisfactory. The deed itself, if produced, would have been an absolute demonstration of the truth or falsity of appellant’s testimony to the effect that this deed contained the words “vendor’s lien is retained,” when the same was delivered by him to Thompson. "We are convinced that the testimony of the appellant concerning this is true, and that a decided preponderance of the evidence shows that, in the deed of the appellant to Thompson conveying the lands in controversy, there was an express reservation of a vendor’s lien. Such being the fact, the appellees were bound to take notice of appellant’s vendor’s lien, because it was in their chain of title. The appellees claimed title to the lands in controversy through Thompson, and Thompson’s title was derived through the appellant. If Thompson, at the time he executed the mortgages through which the appellees claimed, had no title, then appellees acquired none. Thompson, at the time he executed the mortgages to the appellees, April 5,1919, had acquired no title by adverse possession as against the appellant, for, within less than a year before that, he had recognized appellant’s title by accepting the deed with the vendor’s lien reserved for the balance of the purchase money evidenced by his note. The appellees were not innocent purchasers, because the law is well settled that a vendor’s lien “will be enforced against all persons having either actual or constructive notice of its reservation, and a subsequent purchaser or incumbrancer necessarily takes subject to a lien for the purchase money expressly reserved in the deed conveying the legal title to his grantor or remote grantor, as he is bound to take notice of the provisions and reservations in his immediate grantor’s chain of title; and it is immaterial that the deed reserving the lien is not recorded if the persons against whom the lien is sought to be enforced must claim through such deed.” 27 R. C. L. p. 608, § 361.
In Stephens v. Shannon, 43 Ark. 464-467, we said: “A vendor of land, who has parted with the legal title, has, nevertheless, in equity, a lien for the purchase money as against the vendee and his privies, including subsequent purchasers with notice. The deed of Shannon, which contains the reservation of the lien, was not placed on record. But Stephens was affected with notice of all recitals in the title deeds of his vendor, whether they were of record or not.” See also Stidham v. Matthews, 29 Ark. 650; Stroud v. Pace, 35 Ark. 103; Gaines v. Summers, 50 Ark. 322; Abbott v. Parker, 103 Ark. 429; Graysonia-Nashville Lbr. Co. v. Saline Development Co., 118 Ark. 199.
2. Notwithstanding this doctrine, learned counsel for the appellees contends that they are innocent purchasers because, in preceding conveyances to Thompson, certain grantors had stated that they were the sole heirs of the record owner of the land, and the examiner of the abstract of title, before he approved the title upon which the appellees relied, required an affidavit to be furnished showing who were the sole surviving heirs of the record owner. But the undisputed evidence shows that the appellant was an heir of the record owner of the title, and had acquired through inheritance a one-seventh interest and through purchase from his sister another one-seventh interest, and that he was the real owner of a two-sevenths interest of the lands in controversy, at the time he conveyed the same to Obe Thompson and reserved the vendor’s lien, and that he had such lien at the time Thompson executed the deed of trust to the appellees under which they claimed. Therefore the contention of counsel for appellees cannot be sustained, for the reason that the appellant, as the real owner of the land in controversy, could not be deprived thereof by recitals in deeds of other heirs and owners that they were the only heirs, backed up by an ex parte affidavit to that effect. The ex parte affidavit and the recitals in the deeds of other joint owners to the effect that they were the only owners were wholly incompetent to prove that the appellant was not an heir of Georg’e W. and Melissa E. Carter, the original owners of these lands, and that certain others, whose deeds Thompson held, were the only heirs. A vendor, as against those holding joint and equal rights, can convey only such rights as he in fact has, and his vendee takes 'Subject to the right and title of such other persons. Thompson, as the vendor or mortgagor, could convey to the appellees only such title as he had. The appellees, as mortgagees, had no greater rights than vendees. And the vendor, as against third persons having a joint and equal right, can convey only such right and title as he has, and the purchaser takes subject to such rights of other persons.
As is well said in 27 R. C. L., p. 668 § 431, “he who has no title can convey none, and a bad title is not made good by the ignorance of the purchaser of its defects, or his want of knowledge of the better title. ’’ The appellant, 'being the owner of the land in controversy, and having conveyed the same to Thompson, with a reservation of his vendor’s lien, cannot be deprived of the benefits of such lien through the failure of Thompson, by recitals in his mortgage or otherwise, to disclose appellant’s rights. If Thompson had forged deeds from the other heirs of Melissa E. Carter to himself, containing the recitals that they were the .only heirs, and had placed these deeds of record, this would not have affected the rights of appellant as a co-heir of Melissa E. Carter. It would be an anomalous and dangerous doctrine to hold that one who sold his land, expressly reserving a vendor ’s lien, could be deprived of his rights to such lien by any such fraudulent conduct on the part of his vendee or any third party. Titles and rights in lands cannot be vested and divested in any such manner. See 27 R. C. L. p. 674, § 438, 439, and cases cited in note.
It follows that the trial court erred in holding that the mortgages of the appellees were superior and paramount to the right of the appellant under his vendor’s lien. For this error the judgment is reversed, and the cause is remanded with directions to enter a decree declaring the appellant’s rights in the lands in controversy under his vendor’s lien superior to the rights of the appellees, and for such other and further proceedings as may be necessary according to law and not inconsistent with this opinion. | [
-16,
125,
-68,
13,
42,
-32,
42,
-102,
74,
-80,
-91,
83,
-3,
66,
4,
101,
-27,
125,
-12,
104,
37,
-77,
54,
34,
-45,
-77,
-37,
-35,
-79,
77,
-12,
-41,
13,
52,
-62,
31,
-58,
-96,
-27,
84,
78,
-127,
-117,
108,
-39,
80,
48,
-77,
84,
72,
97,
62,
-13,
33,
-75,
75,
109,
43,
-21,
32,
-48,
-8,
-69,
-116,
123,
19,
49,
102,
-116,
65,
-54,
-102,
-112,
-75,
0,
-31,
114,
54,
-106,
116,
68,
27,
40,
118,
102,
50,
109,
-19,
-60,
-104,
46,
-2,
-103,
36,
-13,
96,
35,
38,
-66,
29,
112,
80,
6,
118,
110,
-51,
29,
104,
23,
-85,
-42,
-109,
-73,
-8,
-103,
3,
-25,
3,
48,
113,
-53,
34,
92,
47,
58,
-71,
-50,
-15
] |
Meharry, J.
The appellant, John D. Hoskins, on May 14, 1941, filed in the probate court- a statement of account against the estate of W. S. Jacobs, deceased. He alleged that in the purchase of the property from the appellant, shown by a quitclaim deed, an agreement was made and entered into that the purchase price should be held in trust for the appellant, payable to him on demand. It was further set out in the statement filed that certain improvement taxes, attorney claims and other matters have been paid in the sum of $1,494, and that after properly crediting the purchase price with these credits, there was due a trust fund of $2,651 to appellant.
The administrator filed a motion to dismiss alleging that the claim has been disapproved by the administrator, and that the probate court was not the proper forum in which to file said claim, and that the probate court had no power to declare a trust as against thet estate of W. S. Jacobs.
When the case came on for trial, the court permitted the appellant to strike out of the claim the statement that the purchase price should be held in trust for appellant, and permitted appellant to file his demand as a claim against the estate.
It was alleged in appellant’s statement that the deed is predicated upon an oral agreement between appellant and W. S. Jacobs before the latter’s death to the effect that W. S. Jacobs would pay the improvement district taxes, advance all costs in a case then about to be prosecuted in the United States Circuit Court of Appeals by the appellant, and pay the balance of the purchase money to appellant when he returned from a Texas hospital which institution did not permit the patients to have any money in their possession. The claim was disallowed by the administrator, Leo P. McLaughlin, and the probate court, on October 31,1941, handed down the decision disallowing the claim, and holding that the testimony was insufficient to sustain the claim. W. S. Jacobs paid the improvement district taxes and advanced practically all the court costs involved in the case before the United States Circuit Court of Appeals before his death.
Prom the judgment of the court disallowing the claim, appellant prosecutes appeal to this court, and the ease is now here on appeal.
John D. Hoskins, the appellant, testified that he was the owner of certain lots in the city of Hot Springs; that he acquired the property by commissioner’s deed in chancery court; that he had tried to sell the lots several times, but never asked less than $4,500 for the property; that he was in very poor health at the time the property was conveyed to W. S. Jacobs; he was in the hospital from June 18, 1940, until the 30th day-of April, 1941, except for a few days; a reduction was realized on the street improvement district- lien; Mr. Averill drove the appellant and Mr. Jacobs out to look at the property; Mr. Jacobs looked at it from the car; appellant and Jacobs had been friends for years, and in 1925 appellant deeded all of his property to Jacobs; he placed great trust in Mr. Jacobs.
Dr. W. H. Connell testified that the appellant approached him concerning a sale of the property in question sometime in 1940. Mr. Eisele testified to the same effect.
Mr. E. C. Ellsworth testified that he had been engaged in the real estate business .in Hot -Springs for thirty years; and that the property was worth about $30 per foot, and that there was a 150-foot frontage.
Jay Rowland testified that he was an attorney in the United States Circuit Court of Appeals case; John Morris, Mr. Jacobs’ secretary, gave him a check for $35 and another one for $295 for costs incurred in the afore mentioned case; talked to Mr. Jacobs about this matter, once on the phone and once at the court house; Jacobs assured him that all costs would be paid.
Mr. Ray Smith testified that the improvement district lien taxes were satisfied.
Charles Averill, a Red Top taxi driver, testified that he drove Mr. Jacobs and Mr. Hoskins out to view the property in June, 1940; did not hear anything of the conversation, although there was no partition in the taxi.
Mr. Ed H. Coulter testified that he was an attorney of Little Rock; that he met with Mr. Jacobs and Mr. Hoskins at the latter’s request in Hot Springs at the Southern Grill on June 16, 1940; Mr. Hoskins sought to employ him in the case about to be prosecuted in the Hnited States Circuit Court of Appeals, 'but such employment was declined by witness until he could, be assured that the necessary finances were forthcoming; at this meeting Jacobs assured witness that the money for the appeal was available; that Mr. Hoskins had sold him some lots for $4,500, and that he would advance the court costs and some other expenses; that Jacobs did pay all costs and expenses with the exception of the last check, at which time Jacobs was ill; Jacobs stated in witness’ presence that the balance of the purchase money was to be paid to Mr. Hoskins when Hoskins returned from the Texas hospital; witness had never represented the appellant before, and declined this employment until the costs were assured; Mr. Jacobs told witness that Mr. Hoskins had made arrangements with him for the financing of the appeal; that Hoskins had deeded him his property; it was strictly a business proposition.
The deed from Hoskins to Jacobs was a quitclaim deed, and the consideration is named as $1 and “other good and valuable consideration. ’ ’
There is no evidence in the record showing that Jacobs or his estate was indebted to Hoskins in any sum. There is this stipulation on page 33 of the transcript: “It is stipulated by the counsel for the estate and counsel for the claimant that there is recorded in book 235, page 329 of the Records of Deeds and Mort gages of G-arland' county a deed from John D. Hoskins to W. S. Jacobs, dated June 13, 1940, for the property in controversy here, and it is introduced here in evidence without setting the deed out at length. ’ ’
The deed mentioned is a quitclaim deed and the consideration named is $1 and other good and valuable considerations. There is no intimation in the deed anywhere that Jacobs owed Hoskins anything. Undoubtedly, if the consideration had been $4,500 or any other specific sum, it would have been mentioned in the deed.
We think it clearly appears from the evidence that all that the clause “other good and valuable considerations” can mean, was the payments of the costs in the federal court, and this was done. Certainly there is nothing in the evidence indicating that the clause meant additional money.
In the case of Cal. Cons. Mining Co. v. Manley, 10 Idaho 786, 81 P. 50, the Supreme Court of Idaho said: ‘ ‘ The recital of the money consideration of $1 explains itself, but the further recital as to ‘other good and valuable consideration ’ means nothing, and would be given no weight in the absence of evidence explaining the nature and character of that consideration.”
It is not necessary, to constitute a sale, that the contract specifically state the price to be paid for the property. The price need not be definitely fixed if the agrees ment contains express or implied provisions by which it may be rendered certain. Memphis Furn. Mfg. Co. v. Wemyss Furn. Co., 2 F. 2d 428; Senter v. Senter, et al., 87 O. St. 377, 101 N. E. 272.
There is nothing in Mr. Coulter’s testimony or in that of any other witness that shows that the estate of W. S. Jacobs is indebted in any sum whatever to Hoskins.
When appellant first filed his claim, his contention was that Mr. Jacobs had promised to pay him in trust, but he changed that, struck out that part of his statement, and filed simply a claim against the Jacobs’ estate. It is said that the administrator recognized the indebtedness, and paid a claim. There is no evidence in the record showing that the administrator ever recognized any indebtedness except Jacobs’ promise to pay the costs in the federal court, and the claim that the administrator paid was presented to Jacobs before his death, hut he was unable to sign this check for costs in the federal court.
As to whether the estate of Jacobs was indebted to the appellant in any sum was purely a question of fact, and the finding of the court is not against the preponderance of the evidence. In fact, as we have already said, there is no evidence of any indebtedness by the Jacobs ’ estate to Hoskins, and the judgment is therefore affirmed. | [
-16,
108,
-104,
-68,
10,
96,
40,
-102,
114,
33,
119,
87,
-19,
-61,
17,
111,
-14,
45,
81,
120,
-9,
-93,
82,
-94,
-45,
-77,
-103,
-35,
-80,
-51,
-28,
-42,
76,
40,
-30,
-107,
98,
-62,
-57,
92,
-98,
-123,
-87,
-28,
-39,
64,
48,
105,
83,
79,
113,
-114,
-9,
42,
17,
123,
104,
44,
123,
-87,
-44,
-8,
-122,
4,
95,
23,
48,
71,
-112,
75,
74,
10,
-104,
81,
40,
-24,
115,
-74,
6,
116,
3,
-71,
8,
102,
102,
51,
-55,
-17,
-16,
-102,
14,
-34,
-99,
-90,
-45,
88,
2,
105,
-68,
-105,
121,
72,
-121,
-16,
-18,
84,
93,
40,
5,
-113,
-42,
-110,
-97,
-4,
-116,
3,
-25,
51,
48,
80,
-115,
-30,
93,
-125,
53,
-109,
-121,
-62
] |
Smith, J.
This litigation involves the construction of the last will and testament of Texanah Susan Gooch, who died August 9, 1935, at an advanced age. Two children were born to her first marriage, a son named Charles and a daughter named Mary. Upon the death of her first husband she married a second time, but no child was born of that union. She survived her second husband also.
Her son, Charles, died single and intestate November 3, 1940, and was survived by a son named Alfonso and a daughter named Edna. The mother of these children obtained a divorce from Charles, their father, and remarried before her husband knew a divorce had been granted.
The undisputed testimony is to the effect that Mrs. Gooch became estranged from these grandchildren, and that this estrangement continued for many years before her death, and it is indubitably shown, indeed, it is not disputed, that at the time of the execution of the will, and continuously thereafter until the time of her death, Mrs. Gooch was much embittered toward these grandchildren.
The will under review reads as follows: “I, Texanah Susan Gooch, of the city of Little Rock, Arkansas, do hereby make, publish and declare this my last will and testament in manner and form following:
“One: I direct that all my just debts and funeral expenses be paid as soon after my demise as can conveniently be done.
“Two: I give, devise and bequeath to my daughter, Mary Rufty Brantly, the following real estate: Street number 501 East Eighth and street number 809 Commerce.
‘ ‘ Three: I give, devise and bequeath to my daughter, Mary Rufty Brantly, all my personal property including moneys of which I may die seized and possessed.
‘ ‘ Four: I give, devise and bequeath to my daughter, Mary Rufty Brantly, house and lot numbered 811 Commerce street and house and lot numbered 415 East Eighth street to bo held in trust for the use and benefit of my son, Chas. II. Rufty, during his entire life and he shall be entitled to receive all the rents and revenues derived' from said property, he being entitled to have full and complete control and management of said property.
“Five: I give, devise and bequeath to my grandson, Alfonso Rufty, the sum of one dollar to be paid out of my estate after my decease.
“Six: I give, devise and bequeath to my granddaughter, Edna Rufty, the sum of one dollar to be paid out of my estate after my decease.
“Seventh: I hereby revoke all former wills and other testamentary disposition at any time heretofore made by me. In witness whereof I hereunto subscribe my name at 501 East Eighth street, Little Rock, Arkansas, this 1st day of May, 1931, in the presence of Minnie W. DePoyster, residing at 416 St. Louis avenue, Fort "Worth, Texas, and John H. Martin, residing at 501 East Eighth street, Little Rock, Arkansas, whom I have requested to become attesting witnesses hereto.
“Texanah Susan Gooch.”
After the will had been probated the daughter, Mary, brought this suit against the grandchildren to quiet her title to the real estate described in the will.
After hearing the undisputed testimony above summarized the court found that the said testatrix intended to, and did, devise to the plaintiff, Mary Rufty Brantly, in fee simple, the property described in said will as 811 Commerce street and 415 East Eighth street, Little Rock, Arkansas, subject to the life estate of her son, Charles Rufty. It was further decreed that the children of Charles had no right, title or interest whatever in said property, and from that decree is this appeal.
The only portion of the will in dispute is the fourth . paragraph thereof, and it is the insistence of appellants that the effect of this paragraph is to give their father, Charles, the absolute title upon the death of the testatrix to the lots described in this paragraph four.
This was certainly not the intention of the testatrix if we may consider and give any effect to the testimony showing the state of the testatrix’s feelings to her son and daughter and her grandchildren; but appellants insist that we may not consider this testimony in construing the will, and that we may only consider and construe the language appearing in the will.
Such testimony is incompetent to show the testatrix’s intention in the disposition of her property; but we think it is competent to show the state of her feelings toward the persons who claim to be the subjects of her bounty, and if there is ambiguity in the will, and there is uncertainty as to the meaning of the language employed, the court may place itself in the position of the. testatrix at the time of the execution of the will and consider all the facts and circumstances known to her when the will was made in determining the meaning of the language which she employed.
In the case of Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, we quoted from the opinion of Chief Justice Marshall in the case of Smith v. Bell, 31 U. S. 68, 8 L. Ed. 322, as follows: “In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him ancb to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words and ascertaining the meaning in which the testator used them. ... No rule is better settled than that the whole will is to be taken together, and is to be so construed as to give effect, if it be possible, to the whole. ’ ’
For the reversal of the decree here appealed from it is insisted that by the terms of .paragraph four there is no limitation over in favor of- appellee, and that she is, at most, the nominal trustee in a passive trust, and that under the English Statute of Uses, which came to us as a part of the common law, the trust is executed and the title conveyed to the trustee vests in the beneficiary of the trust.
The case of Randolph v. Read, 129 Ark. 485, 196 S. W. 133, sustains that contention. But even so, this rule does not vest in the beneficiary any other or greater interest than that conveyed to the trustee. On the contrary, when the Statute of Uses executes a passive trust, the beneficiary for life thereunder obtains a legal life estate and the beneficiaries of the remainder become legal remaindermen. Section 137,. Patton on Titles, p. 454; § 67, Scott on Trusts, vol. 1, p. 410; McAfee v. Green, 143 N. C. 411, 55 S. E. 828; Kirton v. Howard, 137 S. C. 11, 134 S. E. 859.
Appellants insist that under paragraph four the testatrix’s son, their father, took the title in fee simple upon the death of the testatrix, and in support of this contention they chiefly rely upon the following statement appearing in the opinion in the case of Union Trust Co. v. Madigan, 183 Ark. 158, 35 S. W. 2d 349: “In construing wills, the general rule is that a gift for life without a limitation over passes a fee in real estate and an absolute interest in personalty, even though words denoting a life estate was intended were used. However, a clear gift to one for life, without a limitation over, is held not enlarged to a fee by such omission, unless a declared purpose is shown to dispose of all the testator’s estate by will instead of creating an intestacy as to the remainder. Thompson on Construction of Wills, § 428, p. 551; Byrne v. Weller, 61 Ark. 366, 33 S. W. 421.”
This is, of course, a mere rule of construction, to he applied only in the circumstances stated, without the application of which the testator’s intention may not be determined. It is a rule to be applied only in the case of conflicting clauses, which may not otherwise be reconciled, as was the fact in the case from which we quote. The rule is one of narrow and limited application. If the rule is not limited to the circumstances stated, but is to be applied to all cases, it follows that any devise of a life estate, without a limitation over, operates to create a fee simple estate, and that holding would result in its application to situations which lack the conditions that call the rule into existence.
For reasons later to be enlarged upon, we think there was a clear devise to the son of a life estate only, and there was no limitation over, and there is no declared purpose to dispose of all the testatrix’s estate. For these reasons this very limited rule has no application here.
All the cases are to the effect that the primary purpose of construing a will is to arrive at the testatrix’s intention in making it, and the rule of construction applicable in all cases is that the will should be read in its entirety, from its four corners, as many cases express the thought.
When the will under consideration is thus read, what do we find? We know that the scrivener who prepared the will knew what language to employ to devise an estate in fee simple. Paragraph two of the will makes that fact certain. By it an estate in fee was devised to the daughter to the two lots there described. Now, if it was the testatrix’s intention to devise her other two lots to her son in fee, why was not the same simple and unambiguous language employed as was used in paragraph two to devise an estate in fee to the daughter? Why the circumlocution of creating a passive trust to devise a fee simple estate?
Paragraph four of the will is ambiguous. Appellants insist, first, that paragraph four devised to their ancestor an estate in fee simple. They further insist that if the fee title was not devised to their ancestor, it was not devised to anyone, and that a partial intestacy results, in that, the remainder existing after the termination of the life estate was not disposed of by the will, in which event appellants, as heirs of their father, are entitled to a one-half interest in this remainder.
We do not agree. It is not necessary to resort to the presumption against partial intestacy to find that the testatrix disposed of her whole estate, including her personal property. Leaving out of consideration for the present the testimony showing the state of the testatrix’s feelings towards her grandchildren, we know that, as a practical matter, the usual and ordinary means of disinheriting one, who would otherwise be an heir, is to bequeath to that person a dollar or some other nominal sum of money. That bequest was made to each of the grandchildren, and we think the conclusion is inescapable that the testatrix did not intend her grandchildren to have'any other or greater interest in her estate..
We think it certain also that the testatrix did not devise to her son the fee title to the property described in paragraph four, as it was her expressed intention that her son should have the use and benefit of this property during his entire life and be entitled to receive all the rents and revenues derived from said property, with the right to full and complete control and management of said property for his entire life. This is wholly inconsistent with the theory that she devised the fee to her son.
It will be observed that the opening clause of paragraph four is exactly the same as the opening clause of paragraph two, and it is certain and unquestioned that the purpose of this clause in paragraph two was to devise an estate in fee simple. Was not the same purpose intended by the use of the same language in paragraph four? Is this not more reasonable than to suppose that the same words were used in paragraph four as a mere introduction to the creation of a passive trust?
Paragraph four is susceptible of more than one construction. One is that the fee title was devised to the daughter, subject to a life estate in favor of the son. Another construction is that paragraph four devised only one estate, to-wit: An estate in fee in favor of the son, this being done by the unusual device of creating a passive trust. An estate in fee might be devised through the creation of a passive trust; but this method of accomplishing that result is so unusual as to be very highly improbable. Another construction is that a life estate was devised without disposition of the remainder. As to that construction it must be remembered that there is a strong presumption against partial intestacy, and the will is to be so interpreted as to avoid even partial intestacy, unless the language of the will compels a different construction. Barlow v. Cain, 146 Ark. 160, 225 S. W. 228.
What then does the language employed in paragraph four mean? To answer that question, and to determine the meaning of the language employed we think it proper and necessary to take account of the relation of' the testatrix to the persons who in the absence of a will would have inherited as heirs at law. This testimony is to the undisputed effect that for many years Mrs.. Grooch had resided with her daughter; that her son was improvident and to some extent dissipated; that the son was the father of two children, who would be the heirs of their father if he were given an estate in fee, a result the testatrix did not intend, as indicated by the bequest of one dollar to each of these grandchildren, and as is conclusively shown if we may consider the testimony showing the attitude of the testatrix to her grandchildren.
Must we close our ears to testimony which, if heard, removes all ambiguity and doubt as to the meaning of paragraph four ? In the recent case of Murphy v. Morris, 200 Ark. 932, 141 S. W. 2d 518, we quoted with approval the following statement from § 244 of the chapter on Wills, 28 R. C. L. 270: “ ‘While parol evidence is not admissible to show what a testator intended to write, it may be admitted in a proper case, where the effect of it is merely to explain or make certain what he has written. In ascertaining the testator’s intent the words of the will are to be read in the light of the circumstances under which it was written, and the court may put itself in the place of the testator for the purpose of determining the objects of the testator’s bounty or the subject of disposition. It is proper to take into consideration all the circumstances under which the will was executed, including the .condition, nature and extent of the testator’s property, and his relations to his family and to the beneficiaries named in the will. Even the motives which may reasonably be supposed to operate with him and influence him in the disposition of his property are entitled to consideration in ascertaining the meaning of the testator. So evidence is admissible as to the circumstances surrounding the subject-matter of the gift. Accordingly the courts in construing a will have taken into consideration such matters as the financial condition of the beneficiary, when it appears that this was known to the testator. The relative amount of advancements and the differences in value of portions of land devised to different children are also proper subjects for consideration. The rule is, however, inflexible that surrounding circumstances cannot be resorted to for the purpose of importing into the will any intention which is not there expressed, and when a will is not ambiguous in terms it is unnecessary to resort to testimony as to the surrounding circumstances in order to ascertain its meaning’.” The cases of Moore v. Avery, 146 Ark. 193, 225 S. W. 599; Piles v. Cline, 197 Ark. 857, 125 S. W. 2d 129; Ellsworth v. Ark. Nat’l Bank, 194 Ark. 1032, 109 S. W. 2d 1258, are to the same effect.
“In the case of Eagle v. Oldham, supra, it was said: “We must look to the will to determine the testator’s intention, but in getting this view we should place ourselves where he stood, and should consider the facts which were before him in deciding what he intended by the language which he employed. If the rule were otherwise, the making of wills would be so difficult that the very purpose of permitting this method of disposition of property would frequently be defeated.”
The conviction abides that by paragraph four the. testatrix intended to devise the fee title to the lots there described to her daughter, subject to a life estate in favor of her son.
This was the construction given the will by the court below, and the decree based upon that construction will be and is affirmed. | [
113,
109,
-52,
109,
-86,
-80,
40,
58,
-14,
-119,
117,
83,
-33,
64,
84,
109,
35,
45,
-47,
107,
-29,
-77,
31,
0,
114,
-45,
-71,
-42,
-78,
93,
-27,
86,
108,
32,
-62,
93,
67,
-118,
-25,
84,
30,
-48,
41,
97,
-33,
50,
50,
-77,
82,
5,
117,
14,
-9,
-86,
63,
106,
44,
110,
95,
-85,
80,
-72,
-97,
-122,
127,
23,
-128,
6,
-108,
-89,
-54,
12,
24,
53,
-128,
-32,
50,
54,
-106,
116,
13,
-54,
8,
114,
86,
8,
-19,
-25,
-104,
-116,
71,
-74,
-115,
-89,
-50,
105,
34,
121,
-67,
-44,
125,
-48,
43,
-14,
-26,
85,
92,
40,
-119,
-114,
-42,
-119,
1,
48,
-124,
3,
-29,
37,
34,
117,
-119,
-78,
109,
-57,
113,
-101,
-114,
-14
] |
Mehaffy, J.
The appellant filed a petition in the chancery court seeking to restrain appellees from turning loose certain stock upon the growing crops of the appellant, who was a tenant of appellee. He alleged that he resided on appellees’ lands as a tenant, and that, upon agreement with appellees, he was cultivating some ground surrounding* the house in which he lives, cultivating the same in tomatoes, cucumbers, peas 'and other truck, and that this was in a common inclosure owned and operated by appellees, and he alleged further that they were about to turn several head of cattle, horses, and other live stock into said inclosure, to his damage, and. that, unless restrained, he would suffer irreparable harm, and that there was no means of determining the extent of damage to which he would be subjected by the actions of the defendants, and that he had no adequate remedy at law.
The appellees filed answer, denying the material allegations in appellant’s complaint, and also filed a cross-complaint alleging that appellant was cultivating the small piece of land without their consent, and that he turned his' own stock into the same, and that appellant knew when he put said land in cultivation that it was a common pasture, knew that defendants would use the same, and that they offered him some fencing to fence the land if he wished to do so, but he did not do so. They state they never agreed to fence the land for appellant, and were under no obligations to do so. Appellees state, however, that, when appellant complained to them, that they did fence the spot of land, although they were under no obligations to do so. That he had damaged their orchard, fence and pasture in the sum of $200.
The testimony was conflicting, and the finding of the chancellor is supported by the evidence. It may also be stated that there is no allegation of insolvency and no showing of irreparable injury, and that appellant had a complete and adequate remedy at law.
The decree is therefore affirmed. | [
-15,
108,
-104,
-116,
10,
96,
40,
-70,
65,
-85,
103,
83,
-19,
-45,
20,
99,
-27,
89,
97,
-4,
87,
-78,
71,
64,
-9,
-5,
-45,
-35,
-71,
111,
-25,
-43,
77,
48,
-126,
85,
-26,
-96,
-55,
-36,
14,
7,
-117,
-19,
-39,
80,
48,
59,
92,
79,
49,
-97,
-13,
38,
17,
-57,
41,
44,
107,
125,
-47,
-8,
-66,
13,
95,
7,
-78,
38,
-66,
65,
-38,
106,
-112,
17,
1,
-24,
115,
-92,
-124,
84,
11,
-101,
8,
118,
98,
1,
109,
-17,
124,
-56,
46,
126,
13,
-90,
-48,
88,
3,
32,
-98,
-99,
116,
64,
-90,
126,
-4,
-115,
30,
108,
7,
-57,
-44,
-89,
-115,
-4,
-100,
-125,
-21,
-89,
49,
113,
-49,
-94,
88,
103,
88,
-37,
-114,
-41
] |
Mehaffy, J.
The appellee, in April, 1921, filed suit in the Union Chancery Court against John Bradley, and alleged that he, Charles Norsworthy, was the owner in fee of a block of land in section 33, township 17 south, range 15 west, and gave a particular description of said land. That he purchased the land from B. R. and C.,0. Bras-well on November 11, 1898, and paid for it $12.50, and the improvements on it had cost him. more than $1,000, and that he and his wife lived on the same, and he paid ' taxes for more than 20 yéars. consecutively.' That it was his homestead. That his wife, Mandy Norsworthy, died in May, 1918, and left surviving her one son, John Bradley, the defendant in this suit. That Bradley sought to obtain the legal title without having any legal or equitable ’rights to it. He alleged that, when he purchased the land, the1 deed was by mistake made to his wife, Mandy Norsworthy. fíe asked that the deed be canceled, title to said land vested- in him, and the title quieted against the said John Bradley.
Bradley filed a disclaimer, alleging that he had conveyed the land to J. ~W. Hicks. Hicks filed an intervention, ’ denying the allegations of the complaint, alleging that he was an innocent purchaser, and that the record title was in Mandy Norsworthy, the mother of John Bradley, from whom he purchased.
The decree was in favor of the defendant or inter'vener, and Norsworthy appealed to the Supreme Court. This court, in the case of Norsworthy v. Hicks, 170 Ark. 877, 281 S. W. 660, affirmed the decree of the chancery court, and held that the testimony was not sufficient to establish a mistake in the execution of the deed to- Mandy instead of Norsworthy; at least, that it was not clear and satisfactory, and, for that reason, affirmed the decree of the chancery court.
In the meantime, and before the decision of the case in this court, J. W. Hicks filed a suit in the Union Circuit Court on May 14, 1921, against Charles Norsworthy and H. O. Lawn, alleging that he was the owner and entitled to the possession of the above described land; that he purchased it from John Bradley, and attached a copy of the deed. He alleged that John Bradley was the son and only heir of Mandy Norsworthy, deceased; that she was, at the time of her death, the owner and in possession of said land; that she was. the wife of Charles Norsworthy, and that Charles Norsworthy and Mandy Norsworthy never had any issue born alive by'said marriage. Judgment was prayed for possession, and for costs, and for damages for the rental value of the land.
In September, 1924, this case was transferred to the chancery court of Union County, and in October, 1926, this case was dismissed without prejudice.
The decision in the Supreme Court of the case of Norsworthy v. Hicks was April 5, 1926, and it was in October after that that the case was dismissed without prejudice. The present suit was brought by Norsworthy November 4, 1926, alleging that he was the owner of an estate of curtesy in the lands described, and alleging that he and Mandy Norsworthy, his wife, had children born alive to them as the issue of said marriage; asked the court to make, an order restraining Hicks and the sheriff of Union County from interfering with or disturbing Norsworthy’s possession, and asked thajt the court declare that Norsworthy had an estate by curtesy in and to said land.
There was an answer filed, denying the material'allegations. Testimony was taken and a decree entered in favor of Charles Norsworthy, after there were amended complaints and amended answers filed.
The first contention of appellant is that the decree is not supported by the evidence, and states that the testimony as to their having children born was too absurd to appeal to intelligent minds or be worthy of any credence whatsoever.
There was very little testimony tending to show that any children were born alive, but Claricy Maryweathers testified that she knew Charles and Mandy Norsworthy; that three children were born to them — two little boys; that two were born dead; that the first one had no life in it at all, and the second had life in it, but did not live, and was not a developed child; that the third one was a girl, and that it lived about three-quarters of an hour. That Charles Norsworthy was a brakeman on the railroad, and was absent from home at the time each of said children was born.
Delia Morgan testified that she was at the home of Charles and Mandy Norsworthy just after two children were born. That one was a boy and the other a girl. That they were breathing, and she heard the little girl whine. That the little girl lived 15 or 20 minutes.
Charles Norsworthy testified that he and Mandy • Norsworthy were married in 1895, and lived together until she died; that he was a brakeman on the Iron Mountain Railroad, and was on the road pretty nearly all the time; that he stayed at Gurdon, which was the headquarters, and ran between Gurdon and El Dorado; that sometimes he would be turned around when he got to El Dorado and would not even get to go home; that Mandy lived in El Dorado; that he was never at home at any time when any children were born to him. and Mandy; that Mandy had been married before to one Ed Bradley, and had a boy named John.
John Bradley testified that he was the son of Mandy Norsworthy; lived with her until her death, and never knew of any children being born after her marriage to Charles Norsworthy.
Claricy Maryweathers was recalled, and testified that John Bradley was about three or four years old when Charles Norsworthy and Mandy Norsworthy were married ; that he was away from home with his aunt when one of Mandy Norsworthy’s children was horn.
While the testimony as to children being born to Charles Norsworthy and Mandy Norsworthy is not very strong, yet it is undisputed, and there is no effort made to impeach the witnesses testifying to the facts. And the rule is well settled that the findings of a chancery court will not be disturbed unless we can say that the findings are against the preponderance of the testimony.
This court said in a recent case: “The well settled rule here is that the findings of the chancery court will not be disturbed unless found to be against the preponderance of the testimony, and this applies to inferences as well as to direct proof.” Rainwater v. Merchants’ National Bank, 172 Ark. 284, 288 S. W. 388. See also Farrelly Lake Levee Dist. v. McGeorge, 172 Ark. 460, 289 S. W. 753; Alexander v. Stack, 172 Ark. 530, 289 S. W. 484; Pettigrew v. Pettigrew, 172 Ark. 647, 291 S. W. 90.
We cannot say that the finding of the chancellor was against the preponderance of the evidence.
It is next contended by the appellant that this suit is a collateral attack upon the decree rendered by the Union Chancery Court on November 6, 1924, and it is 'also contended that the decree of November 26 is. res judicata and a complete bar to appellee’s cause of action in this case. We do not agree with appellant that this is a collateral attack upon the decree rendered by the Union Chancery Court on November 6,1924. That decree was rendered in a case brought for the purpose of. canceling a deed which it was alleged was made to Mandy Norsworthy instead of Charles Norsworthy, through mistake. The only issue in the case was whether the deed made to Mandy Norsworthy when the land was purchased by Charles Norsworthy was made to her through mistake and should be canceled. The question of curtesy was not mentioned by either party. If the contention of appellant was. correct, he would have had no estate by curtesy. He could not be the 'owner of the fee and also have title or right of possession by curtesy. In other words, if the deed had been made to her by mistake and had been canceled, then Norsworthy would have been the owner of the land, and that would be entirely inconsistent with any .claim of a right by curtesy. It would not only have been inconsistent, but both parties regarded the suit as involving nothing but the question of the title to the land. The evidence shows that the appellant, on May 14, 1921, while the chancery case was pending, brought a suit in the Union Circuit Court, putting in issue the question involved in this suit — that is, the question of appellee’s right of curtesy. The question was whether Charles and Mandy'Norsworthy had children born alive. That suit was transferred to the chancery court on September 22, 1924, and remained there without anything being done until Ocotber, 1926.
The decree in the .chancery court, which appellant claims to be a bar to this suit, was decided by this court on April 5, 1926, and thereafter, in October following, appellant dismissed the suit without prejudice, the suit that involved the question of Norsworthy’s right'by curtesy. Of course a judgment of a court of general jurisdiction is presumed valid on collateral attack, but, as we have said, this is not a collateral attack on the judgment.
It is earnestly contended by appellant that it was Norsworthy’s duty to interpose in that suit every defense that he had to the intervention, both legal and equitable, and he calls attention to numerous authorities.
We have already stated that a claim of absolute title in himself was inconsistent with the claim that the absolute title was in his wife and that, because of that, he was entitled to curtesy in the property. He could not be the absolute owner, as he claimed in the original suit filed by him, and have any right by curtesy at all.
Appellant calls, attention to the case of Wilson v. Pannell, 157 Ark. 22, 247 S. W. 64, as authority in the contention that it was the duty of Norsworthy to interpose every defense that he had, both legal and equitable. The .-ourt, however, in that case said: “A comparison of the statement of facts made by the .court in the suit brought in equity by Wilson against Mrs. Pannell to quiet his title to the lot with the statement of facts in the present case will show that they are in all essential respects the same.”
In the'instant case the facts are not the same as the facts in the former case. In the first case, Norsworthy claimed to be the owner in fee, and claimed that the deed made to his. wife was through mistake, and the suit was for the purpose of canceling that deed. And the question of curtesy was in no way involved, was not raised by the pleadings, and, as we have already said, would have been inconsistent with the position that Norsworthytook that he was the owner in fee.
In the above case of Wilson v. Pannell, the court also said:
“Therefore, in a suit between the same parties for the same property, under a state of facts essentially the same, the court having held that the equitable title was in Mrs. Pannell, her plea of res judicata is fully established. ’ Under our Civil Code a defendant may set forth in his answer as many grounds of defense, whether legal or equitable, as he shall have. * * * Under this provision of the Code it is well settled that the defendant in an action at law must interpose all defenses, legtil and equitable.” Wilson v. Pannell, 157 Ark. 22, 247 S. W. 64.
That is true, and if the plea of res judicata was made against the person who was defendant in the former suit, he would have had to interpose all the defenses he had in the former suit. But certainly plaintiff was under no obligation to bring a suit alleging that he was entitled by curtesy because his wife owned the property, when his suit was based on the claim that he himself was the owner of the property.
Appellant also calls attention to the case of Baker v. Hudson, 117 Ark. 492, 176 S. W. 337. The court said in that case, quoting from the case in 96 Ark. (Fourche, etc., v. Walker) 540, 132 S. W. 451, which appellant also refers to:
“It is true that a judgment is conclusive, not only upon the question actually determined, but upon all matters which might have been decided in that suit, but this refers to all matters properly belonging to the subject of the controversy and within the scope of the issues. In other words, the defendant must set forth in his answer all grounds of defense that he may have, or he will be held to have waived such defenses as he failed to set out.”
Certainly it cannot be contended that the facts or issne as to curtesy properly belonged in a suit where the plaintiff was. claiming absolute title in himself. And the question involved in the instant suit was not within the scope of the issues in the former suit.
This court has said:
“These rulings are conclusive of this case, but the contention made by appellee, that appellant was precluded from claiming the homestead in this action on the ground that it was necessarily included within the issues made on the bill to set aside the conveyance for fraud, and therefore res judicata; and the contrary contention of appellant, that he was not precluded by that adjudication, but had a right to claim his homestead exemptions until ousted by writ of possession, together with the suggestion that there is a conflict in this particular between the case of Baker v. Hudson, 117 Ark. 492, 176 S. W. 337, and Bunch v. Keith, 64 Ark. 654, 44 S. W. 452, moves us to announce that we adhere to the doctrine in Bunch v. Keith, supra, as a rule of property. It does not follow that the case of Baker v. Hudson, supra, is. overruled. ’ In the latter case the widow and children, in whose names the cause was revived, had been ousted from possession of the property claimed as a homestead by legal proceedings, and, after remaining out of possession for several years, brought suit for the possession thereof. The case of Baker v. Hudson, supra, was decided right, but it should have been put on the ground that the homestead claimant had been ousted from the homestead by legal proceedings before instituting suit to recover same, and not upon the ground that the homestead right was neces sarily involved within the issue presented by the pleadings and evidence in the original suit. * * * A decree of foreclosure in a suit wherein the widow of the mortgagor was made a party -will not bar her from afterward claiming dower, unless her right of dower was actually put in issue. * * * If this, be true as to the dower right, we can see no good reason why the same rule should not apply to the homestead right.” Gray v. Bank of Hartford, 137 Ark. 232, 208 S. W. 302.
Appellant calls attention to a number of other cases on the question of res judicata, and the rule as announced by this court is that a defendant must interpose all the defenses, that he may have, but we know of no rule that requires the plaintiff, when he brings a suit claiming absolute title, to undertake to litigate at the same time his right by curtesy, which is inconsistent with the right he might have as absolute owner. It would not be a bar unless the right by curtesy was actually involved in the suit, and in this case it was not, and neither party seemed to believe that it was, because the appellant himself brought a suit while this original suit was pending, raising the question of right by curtesy.
The appellee filed a cross-appeal from the decree of the court requiring him to deposit a sum of money equal to all of the taxes and interest which had been paid by Dr. Hicks. This amount was $219.14. Appellee has prosecuted a cross-appeal, and contends that he should not be required to pay the full amount of assessments in improvement districts. He concedes that he must pay the ordinary taxes. The order for the deposit of the money for the ordinary taxes or redemption from tax sale is correct, but the court should not have required a deposit of the amount paid as assessments in improvement districts.. This court has decided the question, but the rule is well stated in R. C. L. as follows:
“Where public improvements are made by the municipality, the liability for the assessment therefor, as between life tenant and remainderman, is usually held to depend upon the character of the improvement, whether permanent or temporary, and, according to .the great weight of authority, a special municipal assessment for the cost of a permanent improvement must, with res.pect to property subject to a life estate, be ratably and equitably apportioned between the life tenant and the remainderman. There are, however, a few decisions which apparently hold that the entire cost of permanent improvements falls on the remainderman. One method adopted is to apportion the costs in the proportion which the value of the life estate bears to the value of the whole estate; and in some cases, the burden has been apportioned by requiring the tenant for life to contribute to the extent of interest during- his life, the remainderman to pay the principal. Where, however, the improvement is of a temporary character, requiring repeated renewals during a lifetime, the entire cost thereof falls on the life tenant. Permanent public improvements include the opening, widening or paving of streets, .the construction of a sewer or drainage ditch, and, in some jurisdictions, the paving of a sidewalk; but in other States such paving is regarded as an improvement of a temporary character. Obviously, the question whether the life tenant or the remainderman must ultimately bear the cost of a public improvement may be determined by the provisions of the instrument by which the life estate is created.” 17 E. O. L. 638.
We hold that thq assessments for permanent improvements must be ratably and equitably apportioned between the life tenant and the remainderman. But the evidence in this case is not sufficient to determine what part, if any, of the assessments should be paid by the remainderman. It appears that there were taxes paid for paving districts and sewer districts.
In addition to the rule as stated in E. O. L., this court has decided that the life tenant must pay all the ordinary taxes, and this court said:
“The only questions presented are whether or not the court was correct in rendering a decree in favor of appellees for the recovery of taxes paid and for a pro portionate part of the proceeds of the sale of timber and in perpetuating- the injunction against appellant concerning the cutting of timber. The proof shows that appellant failed to pay taxes on the land for certain years, as was his duty to do because he was the life tenant and in possession, enjoying- the rents and profits.” Ussery v. Sweet, 137 Ark. 140, 208 S. W. 600.
It has been many times held that improvement taxes or assessments for public improvements are not ordinary taxes, and that taxes of this kind must be paid ratably by the life tenant and remainderman, when the improvements are permanent. See 21 C. J. 957.
It appears that there was $130.87 improvement taxes for sewer district tax and paving- improvement district tax. In order to determine whether the remainderman should pay any portion of this amount, and, if so, what portion, it will be necessary to take the testimony and for the court to find whether the improvements are permanent, and, if so, what proportion of said taxes should be paid by each, the life tenant and the remainderman.
The case on direct appeal is affirmed, and the decree of the court as to the $130.87 improvement taxes is reversed, and remanded with directions to ascertain whether, under the rules above announced, the remainder-man should pay any portion of this, and, if so, what portion. It is so ordered.
Smith and McHaney, JJ., dissent. | [
-32,
111,
-68,
110,
-24,
40,
40,
-102,
105,
-93,
-27,
83,
-17,
-37,
1,
37,
96,
41,
64,
123,
-26,
-89,
127,
-95,
-110,
-13,
-103,
-35,
-96,
-51,
-74,
-9,
76,
52,
-54,
21,
-62,
-62,
-51,
92,
-98,
-123,
-85,
68,
89,
96,
52,
63,
22,
15,
81,
-97,
-41,
42,
53,
115,
105,
44,
-49,
57,
80,
-14,
-69,
15,
95,
2,
-112,
96,
-122,
-123,
-38,
58,
-112,
53,
4,
-120,
83,
-90,
-122,
116,
29,
-120,
8,
102,
103,
49,
-83,
-17,
-32,
25,
46,
120,
25,
38,
-16,
64,
67,
43,
-66,
-99,
122,
32,
70,
114,
99,
-36,
20,
120,
6,
-113,
-106,
-95,
13,
-8,
-100,
18,
-9,
47,
56,
116,
-115,
106,
93,
70,
56,
59,
-114,
-10
] |
Humphreys, J.
Appellant was indicted, tried and convicted in the circuit court of Howard County for the crime of grand larceny, and, as a punishment therefor, wias adjudged to serve a term of two years in the State Penitentiary, from which is this appeal.
Appellant has filed no brief, but, in the motion for ■a new trial filed by him in the circuit court, he challenged the sufficiency -of the evidence and law to sustain the judgment.
Appellant was indicted jointly with Alvin Cecil for stealing one inner tube of the value of $2, one rim of the value of $2.50, one casing of the value of $20, and one set of tools of the value of $10, from Doctor J. I. Philpot. The undisputed evidence showed that the property in question was stolen from Dr. J. I. Philpot on the night of the 27th day of May, 1927, and that it exceeded $10 in value.
' Alvin Cecil, appellant’s brother-in-law and alleged accomplice, voluntarily testified that appellant came to his house on the afternoon of May 27, 1927; that, early in the evening, they went in witness’ oar to Umpire, where appellant got. out; that witness went to Boone Morris ’ home, a mile and a quarter southwest of Umpire; that witness returned between eleven and twelve o’clock, overtaking appellant 200 yards from Umpire, in sight of Dr. Philpot’-s home; that appellant had a casing-, tube, rim and some tools, which he put in witness’ car; that he told witness that he had got them off Dr. Philpot’s car; that witness let appellant have his car to take them away.
Other witnesses testified to facts and circumstances in corroboration of the testimony of Alvin Cecil.
There is sufficient evidence in the record to sustain the verdict and judgment.
We have carefully examined the instructions given by the court" and have concluded that they fully presented the issues and correctly declared the law applicable to the facts in the case.
The motion filed by appellant for a new trial in the circuit court assigned other alleged errors, which will be determined in the order mentioned.
First. Appellant alleged ias error the severance of the joint charge against Alvin Cecil and himself. This was allowable under § 3141 of Crawford & Moses’ Digest, which is as follows:
“When two or more defendants are jointly indicted for any criminal offense, the attorney of the State may sever the trial of such joint defendants when he deems it proper.”
■Second. Appellant alleged as error the admission of the testimony of Dr. Philpot with reference to missing a kit of tools consisting of wrenches, screw-drivers, hammers, etc., because the indictment did not mention’ or describe any particular tools. The indictment was not too general to charge a crime, and proof of particular tools did not constitute a variance between the allegation and the evidence.
Third. Appellant alleged ias error the refusal of the court to allow him to prove by Claude Fair that Alvin Cecil, the State’s main witness, had attempted to get Fair to go with him and steal some automobile accessories the afternoon before Dr. Philpot’s property was stolen. Later on in the trial the court allowed Fair to testify to this fact, so it becomes unnecessary to pass upon the alleged error of the court in first excluding the testimony.
Fourth. Appellant alleged as error the use of Alvin Cecil as a witness for the State, on the ground that he was jointly indicted with appellant. It is permissible to use an accomplice as a witness against his co-defendant if he voluntarily testifies, as Alvin Cecil did in the instant case.
Fifth. Appellant alleged as error the statement made by the trial court at the time the competency of Alvin Cecil’s testimony was' questioned. The statement is as follows:
“Roy Ward was arrested first, and his name was put on the docket first. There are two distinct cases. The returns were first made on Roy Ward, and he was brought in. The case against the other man was not returned until this morning. You can try one when you get him before you get the other one, and that is what we are doing now.” No prejudice resulted to appellant on account of the statement, as the prosecuting attorney had a right to and did sever the cases.
Sixth. Appellant alleged as error the refusal of the court to allow him to prove by the witness, Alvin Cecil, the time and circumstances of his arrest, in explanation of the remark made by the trial court. It was immaterial when Alvin Cecil was arrested. He was not on trial. The cases had been severed.
Seventh. Appellant alleged as error the refusal of the court to show by Claude Fair that he refused to go with Alvin Cecil to steal some automobile accessories the evening before Dr. Philpot’s property was stolen. This was a collateral matter, and entirely irrelevant and incompetent.
No error appearing, the judgment is affirmed. | [
48,
108,
-8,
-97,
26,
-32,
8,
-104,
-61,
-95,
118,
115,
-91,
70,
0,
57,
-77,
123,
84,
115,
-44,
-77,
87,
67,
-110,
-77,
121,
-43,
-79,
77,
-25,
-43,
13,
32,
-58,
89,
70,
88,
-27,
24,
-50,
-95,
-71,
96,
-39,
112,
36,
57,
80,
11,
85,
-98,
-29,
42,
23,
95,
105,
44,
75,
47,
80,
-54,
-110,
-115,
-55,
23,
-96,
36,
-102,
5,
-6,
12,
-104,
49,
0,
-8,
115,
-74,
-126,
84,
71,
-103,
8,
98,
98,
0,
13,
39,
-88,
-120,
14,
-66,
-97,
-89,
24,
72,
73,
-115,
-98,
-99,
126,
-112,
5,
118,
-19,
-43,
89,
108,
3,
-113,
-112,
-109,
-83,
108,
-98,
18,
-5,
29,
52,
112,
-52,
-30,
93,
6,
121,
-69,
-113,
-45
] |
McHaney, J.
Appellant sued appellee in the justice court of Logan County for $87.65 on an order given by appellee to appellant for rugs and pillow tops. On judgment being rendered against it there, appellant appealed to the circuit court, where the case was tried de novo. Appellee admitted the execution of the order, but defended on the ground that appellant’s salesman practiced a fraud on it in the procurement of the order by agreeing with it that, if it would purchase the goods and execute the order, appellee would become the exclusive agent in Magnzine, Arkansas, for the sale of appellant’s goods; that said salesman told appellee, before executing the order, that he had not sold any other merchant in Magazine any of said goods, and that he would not do so; that, relying on these representations, it placed the order therefor; that such statements and representations were false and fraudulent, for the reason that said salesman had already sold, and did thereafter, on the same day, sell the same goods to two other merchants in the town of Magazine.
The order which appellee signed contained this clause at the 'bottom thereof: “Any special terms or agreements with the salesman will not be binding unless specified above.”
Witnesses for appellee were permitted to testify, over appellant’s objection, that appellant’s salesman made the representations heretofore stated, and that appellee would not have executed the order except for these representations and promises.
On the same date on which the order was given, A. M. Leftwich, for appellee, wrote appellant, canceling the order that day given, on the ground that he was not to sell any one else in town, and that he had found that two other sales had been made to other stores, and advis ing appellant not to ship the goods, as he would not receive them. Proof of other sales was also made.
The court, over objections and exceptions of appellant, submitted this issue to the jury, under instructions which are not complained of, except on the ground that the evidence admitted and the instructions given for appellee tended to vary the clause in the written contract heretofore quoted. Evidence was also admitted, over appellant’s objections, as to the quality of the rugs shipped being different from the samples submitted, but this question was withdrawn from the jury by specific instructions of the court not to consider same. The jury returned a verdict for appellee, hence this appeal.
1. The first assignment of error is that the court erred in submitting to the jury the defense that the order sued on was obtained by fraud. This assignment cannot be sustained. The defense relied on did not vary the terms of the written contract, but, on the contrary, if true, made voidable the whole contract. It related to the matter of inducement to enter into the written contract, and constitutes a good defense to the action. Keith v. Herschberg Optical Co., 48 Ark. 138, 2 S. W. 777; French & American Importing Co. v. Belleville Drug Co., 75 Ark. 95, 86 S. W. 836, where Judge Battle, speaking for the court, said:
“The representation was that plaintiff had not sold airy goods of the class contracted for by defendant to any one in the town of Belleville, before the contract sued on was made, when in fact it had already done so. This was one of the material inducements that led to the making of the contract, without which, as shown by the answer, the defendant would not have entered into it. Having been obtained by fraud, it is voidable.”
So, in actions where the defense is based upon fraud in the procurement of the contract, it is competent to show by parol evidence that the execution of the contract was procured by false and fraudulent representations, regardless of the fact that the contract is in writing. Brown v. Lemay, 101 Ark. 95, 141 S. W. 759.
There was therefore no error in the admission of the evidence, or the giving of the instructions in this case.
2. As already stated, the court took from the consideration of the jury the evidence admitted which tended to show that the goods shipped were not in-.accordance with the samples exhibited. Having taken this question away from the jury, by specific instruction, the court cured any error there might have been in its admission.
3. It is next urged that the court erred in permitting Julian Leftwich to testify to the substance of testimony given by Lee Jones before the justice of the peace in the original trial of this ease. Lee Jones had testified before the justice of the peace that he was in business in Magazine, and that he had purchased an order of goods from appellant’s salesman, who promised him the exclusive agency of such goods in Magazine. Jones, at the time of the trial in the circuit court, was shown to be out of the jurisdiction of the court, out of the State, and’ the court permitted Julian Leftwich to testify what Jones had testified to before the justice of the peace. Appellant was represented there by counsel, and cross-examined the witness. There was no error in permitting this testimony.
4. The final assignment of error relates to the testimony of one George Swearingen, with reference to conversations between Julian Leftwich and appellant’s salesman, but appellant has not abstracted the testimony of George Swearingen, so as to inform us of the ground of complaint against it.
We find no error, and the judgment is affirmed. | [
-110,
-20,
-8,
77,
26,
96,
40,
-70,
87,
-127,
52,
83,
-19,
-58,
4,
123,
-9,
125,
113,
104,
116,
-77,
3,
98,
-46,
-77,
-119,
-59,
-75,
75,
-92,
-2,
77,
32,
106,
69,
-62,
-62,
-19,
28,
-118,
33,
-71,
110,
121,
65,
52,
-77,
28,
79,
97,
-105,
-13,
40,
25,
-53,
105,
44,
107,
57,
80,
-15,
-69,
-113,
61,
5,
-109,
36,
-102,
19,
-56,
90,
-112,
48,
16,
-56,
115,
-74,
-58,
116,
13,
-39,
8,
102,
-30,
0,
1,
-27,
-72,
-36,
47,
95,
-99,
-90,
-110,
88,
10,
77,
-66,
-99,
116,
16,
-116,
-2,
-6,
-107,
29,
124,
11,
-114,
-108,
-95,
45,
112,
-100,
-110,
-17,
-126,
-79,
80,
-49,
-80,
92,
87,
50,
-101,
-114,
-48
] |
Hart, O. J.
The compensation of the county and probate clerk of Columbia County was fixed by the Legislature of 1915 by act 211, which amends former acts relating to the same subject. Acts of 1915, p. 829. Section 2 of this act reads as follows:
“That, out of the fees and emoluments collected by him, the clerk of the county and probate court of Columbia County shall be entitled to have and receive as his salary the sum of one thousand eight hundred dollars per annum,; provided said fees and emoluments amount to more than one thousand eight hundred dollars, he shall have and receive one-half of the fees and emoluments collected by him in excess of one thousand eight hundred dollars per annum.”
The settlements of the county clerk are provided for in § 10 of act 377 of the Acts of 1907, which is found in Acts of 1907, page 951, and which reads as follows :
‘ ‘ The clerk of the circuit court and ex-officio recorder, the county and probate clerk, the sheriff, the collector of taxes, the assessor of taxes, and the treasurer -of said county, shall charge and collect the ¡same fees and commissions as are now or may be hereafter allowed them by ■law, and they shall each, by the fifth day of each quarterly term of the county court for Columbia County, held in January, April, July, October, of each year, file a sworn report showing the amount of all fees and commissions collected by them, respectively, up to and including the last day of the preceding quarter, and make settle■ment with said court by paying all amounts collected by them during the preceding quarter in excess of the salary and fees herein allowed, into the county treasury, and file the treasurer’s receipt therefor as a voucher in said settlement, and, in such settlement, said officers aforesaid shall each be chargeable with and liable for all fees and commissions that it was the duty of said officers to collect, whether the same was collected or not. Provided, a final settlement shall be made by each above named officer on the first day of November, 1910, and every two years thereafter, and shall include a tabulated statement of the entire term and an itemized statement for the month of October preceding such last settlement.”
Section 12 of the original act provides that the officers are required to keep a record of all fees and commissions earned and received by them from any source whatever, and that this record shall show the source from which such fees and commissions are received.
Section 33 makes it a penalty for the officers to fail to comply with the provisions and requirements of the act.
It is first earnestly insisted by counsel for appellant that the fees and emoluments received by the clerk are not received by him as money of the county, but are the amounts allowed him for his compensation, and that lie does not. owe the county anything until his compensation is first received by him. We do not agree with counsel in this contention. The county clerk is a public officer, and the fees and emoluments of his office are public, funds. This will become apparent when all the sections of the statute in reference to his compensation and duties relating to the collection of fees are read and considered together. It will be noted that he is required to keep a record of all fees collected by him showing the origin and source of such collections. The evident design of the Legislature was to constitute all the money collected by the officers designated in the act public funds and to make such officers account for such funds. It will be observed that the officers are required to make quarterly settlements with the county court and to file a sworn report showing the collection of all fees and commissions collected by them, and requiring them to pay into the county treasury all amounts collected by them in excess of the salary and fees allowed. We think the better view is to hold that the fees and emoluments of the various officers are public funds, and that it was the duty of the county clerk to make the reports required by the statute, and that it was his duty to pay into the county treasury all of the fees, except the compensation allowed him under the statute.
Under the holding of the chancery court, the county clerk was required to pay into the county treasury a portion of the fees allowed him by the county for-making out the taxbooks and also that part allowed him by the State for making out the taxbooks. It is claimed that this course is in violation of art. 16, § 11, of the Constitution, which provides, in effect, that no moneys arising from a tax levied for one. purpose shall be used for another purpose. We do not think that this provision of the Constitution would be violated by requiring the county clerk to pay into the county treasury any portion of the fees allowed for making out the taxbooks. His act in paying the money into the county treasury would end his responsibility in the matter, and he would not be concerned about any diversion of the funds. As we have already seen, the funds were public funds, and, after receiving his compensation, he was required to pay the balance of the fees and emoluments of office collected by him as county clerk into the county treasury, and he would be liable to the county for a failure to comply with the provisions of the statute.
It is next insisted that the chancery court was not the proper forum in which to bring the suit. We think this, contention of counsel is settled against him by the decision in Sims v. Craig, 171 Ark. 492, 286 S. W. 867. Under the facts presented, the matters embraced in the present suit occurred after the expiration of two years and before the expiration of five years from the time of the various settlements made by the county clerk with the county court. In the case just cited, the court expressly said that, after two years had expired for the county court to correct the officer’s settlement, the chancery court could, within a period of five years from the date of the original settlement with the county court, surcharge and correct the accounts of the county, treasurer for errors caused by inadvertence, accident or mistake.
In this connection it may be stated that the first of the two present suits was filed by the Attorney General in July, 1927. Prior to this time the county court had undertaken to adjust the settlements of John Marable as county clerk, by reason of fraud and mistake alleged to have been practiced upon the county court in filing and securing confirmation of his quarterly reports. On the 28th day of December, 1925, the county court rendered judgment against Marable, readjusting his accounts and finding the amount due the county by him. Marable prosecuted an appeal to the circuit court from the judgment of the county court, and the appeal was pending at the time of the institution of the present suits by the Attorney General. It is earnestly insisted that the pendency of this appeal is a bar to the institution of the present suits in the chancery court. We do not think so. The proceeding in the chancery court to readjust the quarterly settlements of the county clerk was made more than two years after the quarterly settlements were made in the county court, and, under the. decision in the Sims case, just cited, the chancery court would have jurisdiction to correct the settlements, instead of the county court. The presumption is that the circuit court will decide the case according to law, and it necessarily follows that the judgment of the county court will be reversed, because it lacked jurisdiction in the premises. Of course, if the appellant should not prosecute his appeal, the judgment of the county court would remain upon its records; but, the judgment being void for lack of jurisdiction, because the record shows on its face that more than two years had elapsed before the county court undertook to readjust the accounts, it could not injuriously affect the county clerk. Taylor v. Bay St. Francis Drainage Dist., 171 Ark. 285, 284 S. W. 770.
It is next insisted tliat the court erred in basing its finding against appellants upon the report of the State Auditorial Department. The Legislature of 1917 created the State Auditorial Department and prescribed its powers and duties. Crawford & Moses’ Digest, chapter 14, § 661, provides that any county judge may call upon the State Auditorial Department for an audit of the books and accounts of the county officers. In such, event it is provided that it shall be the duty of the State Comptroller to appoint one or more experienced auditors for the purpose of making such audit.
Section 662 provides that the Comptroller or any auditor appointed by him shall have the power to make a thorough examination into the affairs of any county officer, when called upon by the county judge of such county to do so. The section also provides that they shall have access to any reports, books, accounts, papers and documents concerning the office undergoing such an audit. The auditing officers are also authorized to examine, under oath, any officei', agent, clerk or other person touching the matters inquired into and examined, and to compel the attendance of any person in the State to testify under oath before him in relation to the affairs of such office or officers.
Section 663 provides for bonds to be furnished by such auditors.
' Section 664 provides that the auditor making such audit shall make a full, detailed and certified report in triplicate and forward the same to the State Auditorial Department. A copy of the report is to be filed with the clerk of the county, and it shall be open to the inspection pf the public, and the section expressly provides that, when certified by the custodian thereof, said report shall be taken and accepted as evidence in any court or tribunal.
Thus it will be seen that the report in question is made by the provisions of.the statute evidence of the facts recited in it. Such report is therefore primia facie evidence of its contents, and the statute making' it evidence is not violative of any. provision of our Constitution. The Supreme Court of Massachusetts, in a well-considered opinion, held that a statute of that State making the report of an auditor prima facie evidence upon such matters as were embraced in the order to him is constitutional. Holmes v. Hunt, 122 Mass. 505, 22 Am. Rep. 381.
It is contended, however, that the chancery court erred in receiving the report as evidence under the facts disclosed by the record. It is pointed out that two auditors were engaged in making the audit, and one of them died before the audit was completed. Another auditor was appointed in his place, and continued the examination of the records of the county clerk, but did not go over the early work of the former auditor in detail. Hence it is contended that the case is ruled by Rouw v. Arts, 174 Ark. 79, 294 S. W. 993. We do not agree with counsel on this point. In the case relied upon the audit was made by private accountants, and the proof of the correctness of it should have been made by the persons making the audit. In the case at bar the audit was made pursuant to 'the provisions of the statute, and the auditors acted ip their official capacity in making it. They were required to give bond, and made the audit under the sanctity of their official oaths. Under these circumstances the statement of the accounts filed by them and certified according to law was a statement of all of them under their official oaths while in the performance of their official duties, and the copy filed in the office of the county clerk would be evidence, not only against him but his sureties. The chancery court could take the facts shown by the record, certified according to law, as the amount due by the clerk and his sureties, unless the accuracy of the items contained in the report was impeached by them. No serious offer was made by the county clerk to show that the items included in the report of the Auditorial Department were not correct. It is true that he testified that he made .out the amount due for taxbooks in accordance with the custom of his predecessors in office. Such testimony could not, in the nature of things, impeach the report of the Auditorial Department, which was based upon a detailed and accurate examination of the taxbooks themselves for the years in question. It is true that, under our statute, a part of the fees and emoluments allowed the county clerk in making out and extending the taxes on the taxbooks is paid by the State, but this did not relieve the county clerk from the responsibility of accounting for the part paid.him by the State in his quarterly reports. The amount was not paid him in his private or individual capacity by the State as for services rendered it. By the terms of the statute, all the fees and emoluments of the office were public funds, and the officers embraced in the act were only allowed to retain a part of these funds for their salary and compensation, and they were expressly required to account for all the fees and emoluments and commissions received by them in their quarterly reports, and, after deducting the amount of their compensation, to deposit the balance in the county treasury. This the county clerk failed to do in the present case, and because the report of the State Auditorial Department was not impeached by evidence introduced in behalf of the county clerk, the chancery court was warranted in adopting it as a basis for its finding of facts in the case.
No useful purpose could be served by setting out in detail the items embraced in the report of the Auditorial Department or in discussing the various items in detail. It is sufficient to say that it contains items omitted from the quarterly settlements of the county clerk sufficient to warrant the chancellor in finding the amounts due by the county clerk to the county as set out in the decree of the chancery court.
The result of our views is that the decree of the chancery, court was correct, and it will therefore be affirmed. | [
-14,
-4,
-44,
-51,
-94,
-96,
3,
-80,
94,
-95,
0,
95,
-5,
-62,
25,
101,
-29,
9,
85,
107,
102,
-73,
67,
2,
1,
-13,
-25,
-41,
61,
-19,
-12,
-41,
76,
-87,
-56,
-43,
-57,
96,
-59,
92,
94,
10,
-71,
-59,
-41,
96,
49,
108,
19,
-103,
117,
-50,
-25,
62,
21,
103,
47,
111,
-7,
-93,
17,
-29,
-110,
29,
123,
7,
-111,
-25,
80,
-119,
72,
42,
-88,
61,
-30,
-23,
50,
-90,
-58,
-44,
3,
-71,
-104,
106,
-90,
113,
-75,
111,
-80,
-118,
38,
-70,
-117,
39,
-111,
-7,
26,
14,
-90,
29,
84,
-48,
39,
116,
-92,
-59,
-33,
46,
87,
-113,
-42,
-126,
-115,
110,
-116,
3,
-33,
39,
112,
113,
-118,
-14,
94,
-50,
56,
-109,
-61,
41
] |
Hart, O. J.,
(after stating the facts). At the outset it may be said that it is a rule of universal application in equity that a trustee shall not deal with trust property to his own advantage against the consent of the cestui que trust. The rule is not confined to any particular class of trustees, but applies to all who come within its principles. The rule itself is 'bottomed upon the moral duty growing out of confidence and trust reposed by one and accepted by another in business relations. The principle is that no person should be allowed to purchase an interest in property, and hold it for his own use, where he has a duty to perform in relation to such property which is inconsistent with the character of the purchase for his own use. In the application of this well-settled principle, in Cook v. Martin, 75 Ark. 40, 87 S. W. 625, 1024, 5 Ann. Cas. 204, it was held that the general rule which refuses to permit a trustee to deal with the trust property in his own behalf will debar a receiver appointed to hold attached property and collect rents therefrom, from purchasing, as against the attaching creditors, a superior outstanding title to the property for the benefit of his wife.
Counsel for appellants rely upon the decision in that case for a reversal of the decree, but we do not think that the facts alleged and admitted in the pleadings in the case at bar call for an application of the principle. Appellants were the plaintiffs in the case of Haskell v. Patterson, referred to above, and asked that they be declared to have a specific and definite undivided interest in certain oil and gas leases which Haskell had taken in his own name. They do not claim to own the whole interest in the leases. After the suit was commenced, by agreement of the parties, a receiver was appointed to develo]) and operate the leases of the parties. T. H. Gray-son -was appointed as such receiver, and continued as such until the 7th day of February, 1925. The decree of ihe chancery court was rendered on the 4th day of May, 1923, and that decree specifically found the interests of appellants in said oil and gas leases, and entered a decree setting aside the conveyance of Haskell to a trustee for his wife in said leases, and quieted the title to the plaintiffs to their undivided interest in said leases, as alleged in their complaint. It will be remembered that the plaintiffs in that action are the appellants here.
On the next day after the rendition of the decree in the chancery court, Haskell sold his undivided interest in the leases to Grayson and Woodward. The decree of the chancery court was affirmed in this court. So that it will be seen that, at the time Haskell assigned and transferred his undivided interest in the leases, hehadavested interest therein, acquired by the decision' of said chancery court. No one would contend that Haskell would not have had the right’ to sell his interest to the plaintiffs in that action or to any third person. Haskell is not complaining that Grayson and his associates in the receivership were guilty of had faith in buying from him. So far as Haskell is concerned, the transaction is valid and binding. His undivided interest in the oil and gas leases belonged to him, and he could do what he pleased with it.
Appellants had an undivided interest in the same leases, but they could not control or direct the sale and transfer of his undivided interest. The salé by Haskell to appellees could in no wise affect the title of appellants to their undivided interest in the oil and gas leases, and we perceive no reason why the purchase by the receiver of the undivided interest of Haskell would be a breach of his duty as receiver, in so far as the interest of appellants is concerned. After he acquired an undivided interest in the leases, he would become jointly interested with appellants in them, and, so long ,as he continued to have charge of the property and operate it, he would owe appellants the duty of acting in good faith just as much as if he continued to operate the property as a receiver. Therefore we are of the- opinion that the chancellor rightly held that the purchase by the receiver of the undivided interest of Haskell, after the decree of the chancery court definitely fixing the rights of appellants and Haskell in the gas leases had been rendered, was not a violation of the fiduciary relationship of Grayson in respect to the property.
There is one aspect of the case which is’ not very clear from the pleadings. According to the allegations of appellees, they own an undivided nine-thirtieth interest in said oil and gas leases by purchase from Haskell. It .is also fairly inferable from their pleadings that appellants own the remaining undivided twenty-one thirtieth interest in said oil and gas leases. It is true that, in one place in their answer, appellants deny that appellees own an undivided nine-thirtieth interest in said oil and gas leases. The court rendered a decree upon the pleadings, and found that appellees had an undivided nine-thirtieth interest in the oil and gas leases and that the appellants had an undivided twenty-one thirtieth interest in said leases. In the first place, we are of the opinion that, when that part of the answer of the appellants which denies that appellees own an undivided interest in the oil and gas leases is considered with reference to the remainder of the pleadings, appellants seem to mean that their actual sale and transfer by Haskell to them of his interest in the leases was void because made when he was receiver. In any event, this finding on the part of the chancery court did not result in any prejudice to appellants. In the case of Haskell v. Patterson, referred to above, appellants alleged that they were entitled to an undivided twenty-one thirtieth interest in said oil and gas leases, and the chancery court made a finding in their favor, and it was decreed that they had title to such undivided interest. In the first case the decree vests in them an undivided twenty-one thirtieth interest in said oil and gas leases, and no possible prejudice. could result to them from a finding by the court that appellees own the remaining nine-thirtieth interest. The reason is that the pleadings plainly show that Haskell owned the undivided interest which appellants did not claim to have owned, and that he transferred all his interest to appellees. It follows that the decree of the chancellor was correct, and it will therefore be affirmed. | [
-77,
126,
-40,
45,
88,
96,
58,
-70,
81,
-70,
39,
-41,
105,
-6,
0,
47,
-13,
121,
-11,
122,
-43,
-14,
7,
0,
-44,
-13,
-39,
-35,
61,
95,
102,
-41,
76,
48,
-64,
-43,
102,
-55,
-63,
-44,
6,
37,
-118,
1,
-39,
64,
48,
107,
20,
75,
65,
27,
-77,
32,
25,
103,
108,
46,
43,
45,
-15,
-16,
-69,
7,
127,
7,
-127,
37,
-48,
7,
-56,
42,
-102,
93,
9,
-24,
123,
-74,
18,
116,
79,
11,
-119,
98,
114,
-94,
97,
-7,
-108,
-72,
47,
-125,
-115,
-121,
-48,
88,
41,
104,
-67,
-98,
72,
4,
101,
-12,
-30,
28,
94,
-32,
29,
-113,
-42,
-127,
13,
124,
-102,
3,
-2,
55,
48,
80,
-50,
-30,
92,
71,
126,
23,
-114,
-3
] |
Hart, C. J.
At the outset it may be stated that, under our Constitution, counties are civil divisions of the State for political and judicial purposes and are its auxiliaries and instrumentalities in the administration of its government. Cole v. White County, 32 Ark. 45, and Pulaski County v. Reeve, 42 Ark. 54.
Amendment No. 11 deals with the rights arid powers of counties with respect to their fiscal affairs. In construing this amendment to the Constitution, this court has uniformly held that the limitation placed upon the counties and the agents thereof is that the counties must live within their annual income derived from a maximum constitutional tax levy. In other words, the limit of the amount for which a county may contract for in any one fiscal year is the difference between the amount of its necessary governmental expenses or fixed charges in running its government and the total county revenue which can be derived from levying arid collecting county taxes in any one year. Therefore the court has said that it was the intention of the people, by organic law, to put the counties of the State, so far as the future is concerned, upon a cash basis. Polk County v. Mena Star Co., ante p. 76.
While we have said that it was the intention of the amendment to make the revenue of each year pay the indebtedness incurred during that year and that the revenue of a subsequent year should not be applied to pay the liability of a past fiscal year, we do recognize that counties still have the power to contract for the building of a courthouse and to spread out the payments over a series of years, under certain restrictions. We have held that the quorum court may make a levy from year to year up to the constitutional limit of taxes for county purposes and that the county court may set apart so much of this levy for the building of a new courthouse as may be spared after meeting other governmental expenses in running the county. Kirk v. High, 169 Ark. 162, 273 S. W. 389, 41 A. L. R. 782; and Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006.
We have held that, before the county judge is authorized to build a courthouse, he must do so out of funds already accumulated and on hand, or he must make a budget or estimate of the necessary governmental expenses of running the county, and ascertain if there will be a margin left which, when spread over a series of years, will meet the annual payments provided for in the contract for the construction of a courthouse. We have said that, where the county court, in good faith, finds, upon an investigation of the fiscal affairs of the county, that there will be a margin left, if it be spread over a series of years, sufficiéht to meet the annual payments for the construction of a courthouse, such contract for the construction of a courthouse will be a valid and enforceable contract, and the annual payments will be considered allocated or appropriated to the construction of the courthouse. This does not amount to an appropriatiou of the annual payment out of a specific fund, because all payments must be made out of the county general revenue fund, but they are set apart as appropriated for a specific purpose, although they are a part of the county general revenue fund. Under such circumstances, the annual payments for the courthouse are set apart out of the county general revenue and cannot be diverted from the purpose for which it is levied and collected to satisfy the demands of others than the parties contracted with. This is the effect of the opinion of this court in construing our Constitution, and the amendment makes no change in that respect.
In Boone County v. Keck, 31 Ark. 387, the court held that a county is not subject to the process of garnishment. A part of the reasoning of the court is applicable to the principle here discussed, and reads as follows:
“Public policy — indeed, public necessity — requires that the means of public corporations, which are created for public purposes, with powers to be exercised for the public good, which can contract alone for the public, and whose only means of payment of the debts contracted is drawn from the corporators by a special levy for that purpose, should not be diverted from the purposes for which it was collected to satisfy the demands of others than the parties contracted with.”
In keeping with that principle, the Legislature passed a statute providing that it shall be the duty of the clerk, after the adjournment of the court for the levy of taxes and the making of the appropriations, to open a book in which he shall exhibit each appropriation by the amount appropriated therefor. Crawford & Moses’ Digest, § 1986. The same act also provides that every order of allowance made by the county court shall set forth the appropriation out of which the^same is to be paid. Section 1989. It is also provided that the taxes levied for county purposes shall be extended upon the tax-books under the general head of county expenses, and warrants drawn by the clerk shall specify the fund or appropriation upon which the same are drawn, respectively, and shall be made payable to the person in whose favor the allowance is made. Section 1987. These sections are peculiarly appropriate and necessary since the adoption of Amendment No. 11, when considered in the light of the construction placed upon it by this court.
Hence it will be appropriate, if not necessary, to state on the face of the warrants that they were for the building of a courthouse, but it would add nothing to the warrants to write on them that they were to be paid before any other warrants are paid. As we have already seen, a contract for the erection of a courthouse, if valid and enforceable, consecrates or 'sets apart a certain amount of the general revenue for the erection of 'the courthouse, but this does not mean any particular part of the general revenue. All that is required is that the amount so segregated and set apart for the construction of a courthouse shall be used for that purpose, and, if the county officers should attempt to divert it, the holder of the warrants would have a right to stop them just as the holders of warrants issued to defray the lawful and indispensable expenses of the several courts of record of the county would have a right to prevent the county officers from using the funds appropriated for that purpose for other purposes until after their warrants were paid. What we have said is but a restatement of the principles of law decided by this court in the cases above cited and other eases cited in this opinion.
In the application of these well-settled principles of law, it is evident that the contract for the construction of the courthouse involved in this suit is not a valid and enforceable contract. It is plain from the decisions above referred to that it is incumbent upon the county court to ascertain from the budget of past years of the quorum court and from estimates of future conditions of the county if there will be annually a margin left to meet the annual payments for constructing a courthouse after the indispensable governmental expenses of running the county are deducted from the total amount of the county general revenue to be annually levied and collected. In this view of the matter, the- burden of proof was upon the defendants to show that this state of facts existed. Instead of doing so, the proof introduced by them shows to the contrary.
According to the testimony of the county judge, which is not contradicted, he was asked to make an estimate of the several amounts which would probably be received out of the general revenues of the county during the years 1927 to 1940, both inclusiye. His answer is as follows: “1925, $204,463.50, and 1926, $201,923.78. Receipts for 1927 will be approximately the same as for 1926. I have no way of knowing what the receipts for 1928 to 1940, both inclusive, will be, but I feel justified in making the statement that they should be substantially as much as for the year 1927, and may be much more.” He was then asked what had been the expenses of the county for each of the years 1925 and 1926 and what would be the probable expenses of the county for each of the years 1927 to 1941, both inclusive. His answer reads as follows: “Expenses for the year 1925 were $122,447.31, and for 1926 the expenses were $155,-855.19. Expenses for the year 1927 to 1940, both inclusive, including the annual payment of $45,000 on the courthouse, should easily be within the amount of the receipts for those years.”
The contract' shows that. Peterson was to receive $692,500 for the erection of the courthouse. The contract was executed on the 25th day of May, 1927. Under its provisions warrants were to be issued for the total amount of the contract price. Of these $95,000 were payable on demand. Forty-five thousand dollars of the warrants were payable annually on August 1 during the years 1928 to 1940, both inclusive. The remaining $12,500 in warrants was payable on August 1, 1941. Thus it will be seen that $95,000 of these warrants were payable during the year 1927. The total revenue for that year was estimated to be $201,923.78. Expenses of the county government were estimated to be $155,855.19. After deducting the estimated county government expenses for 1927 from the total revenue for that year, there would only be left $46,168.59. This is a materially less sum than $95,000. Hence it inevitably follows that the contract for the construction of the courthouse is not a valid and enforceable contract when tested by the principles of law above stated.
We are not advised as to the urgent necessity of constructing a courthouse in Union County, but we are fully persuaded that it is better that Union County should undergo temporary inconvenience than that a plain provision of the Constitution should be overridden or disregarded.
It necessarily follows that the chancery court erred in dismissing the complaints for want of equity, and the decrees must be reversed; and the cause will be remanded with directions for further proceedings in accordance with the principles of equity and in conformity with this opinion. It is so ordered. | [
-12,
-18,
-44,
124,
10,
64,
27,
8,
90,
-87,
101,
87,
-19,
-54,
20,
119,
-93,
111,
117,
120,
69,
-74,
23,
11,
52,
-5,
-101,
-41,
-65,
-49,
-74,
-44,
12,
112,
-40,
-43,
70,
98,
-57,
-36,
14,
-120,
-86,
77,
-32,
0,
52,
10,
34,
11,
101,
-81,
-29,
40,
29,
-61,
73,
46,
89,
33,
17,
-101,
-98,
-99,
127,
5,
17,
102,
28,
-61,
72,
30,
-104,
57,
8,
-4,
115,
-90,
-126,
-44,
79,
-119,
-87,
34,
102,
26,
109,
-33,
-104,
41,
12,
-45,
-67,
-90,
-106,
25,
107,
-117,
-74,
-99,
124,
-108,
79,
126,
-26,
-123,
-33,
108,
-113,
-114,
-42,
-93,
-49,
100,
-118,
67,
-17,
1,
112,
113,
-50,
-26,
82,
-57,
49,
-101,
-114,
-52
] |
Humphreys, J.
Appellee was sued by appellant in the circuit court of Jefferson County, upon an order signed by appellee on February 27, 19'25, and accepted by appellant on the 12th day of March, 1925, at its New York office. The order was procured by a traveling agent of appellant, and is as follows, omitting signatures:
“Date February 27, 1925. Columbia Weighing-Machine Co., Inc., 9 West Sixty-first St., New York, U. S. A. Price $150. Freight paid. Payable $15 monthly. You may ship us one Columbia Mirror Weighing Machine, freight paid. It is sold to us with the understanding that we may return it to you at any time within sixty days from date of arrival of the machine, instead of paying the purchase price. Return shipment to be made to above address, by freight only; freight charges collect. Should we not ship it back to you within thirty days from date of' its arriyal, w7e will pay you the purchase price thereof, namely, one hundred and fifty dollars, as follows: fifteen dollars per month, until paid; first payment to be made within sixty days from date of arrival of the machine. Should we be two monthly payments in arrears at any time, the entire unpaid balance of the purchase price shall then become due, together with attorney’s foes amounting to twenty per cent, of the sum in default, if collections are made by law. It is understood that you are to supply us -with any mechanical parts required for the machine for a period of five years, without charge. Whenever w7e may w'ant a part, v7e are to inform you by registered mail. Six per cent, may be deducted if the entire purchase price is paid within sixty days from date of arrival. No verbal agreement will be recognized. All orders are subject to acceptance of the company.”
The complaint, omitting formal portions, alleged that appellant w7as a New Jersey corporation, and that appellant land appellee entered into the contract herein-before set out; that- its obligations in said contract had been carried out; that the weighing machine had been shipped to and delivered to and accepted by the appellee; that defendant had neglected, failed and refused to ship it back to the plaintiff in accordance with the agreement; that the payments had not been made in accordance with the agreement; that same were past due and unpaid; the prayer was for the recovery of judgment for $180 and interest.
Appellee filed an answer, denying all the allegations of the complaint, except that appellee was incorporated under the laws of Arkansas. For further defense appellee alleged: That the agent ¡of the appellant called upon appellee,' and at the time agreed with appellee that, if he would sign the contract as alleged in appellant’s complaint, he would keep the same, and would have the machine shipped, and that he would call again within thirty days, and, if the machine was satisfactory, he would send the contract to the plaintiff; and it was understood and agreed that there was to be no contract until the- expiration of thirty days, when this agent of appellant was to return, and, in the meantime, he would hold the contract until he should return, and, in the event the machine was not satisfactory, . same was to be reshipped; that the machine was not satisfactory, as it is so constructed with faulty mechanism that .it is not reasonably fit for the purpose for which it ivas manufactured, as the scale has no value -whatever, and the same is now held- subject to the order of plaintiff..
■ The cause was submitted upon the pleadings, the testimony -adduced by the respective parties -and instructions of the court, which resulted in a verdict -for appellee and consequent dismissal of appellant’s complaint, from -.which is this appeal.. - - - .....
- • Appellant ■ requested an instructed verdict,- at the conclusion of the testimony, upon the theory that the written contract was- one ‘ ‘ of sale or return, ’ ’ which was a- condition subsequent and which could not be added to, varied, contradicted or controlled by parol- or extrinsic evidence- of a condition precedent, which was 'alleged as an- additional defense, and which' was supported by the testimony introduced by appellee; - The. court refused the request, and sent the case to the jury upon the issue of whether it was agreed, when the contract was signed, that it should be held until the return of the salesman to Pine Bluff, at which time, if the machine proved to be satisfactory, appellee would keep it and the contract would be sent to his company, and, on the other hand, that, when he returned to Pine Bluff, if the machine was not satisfactory, the contract was to be returned to the appellee.
Appellant contends for a reversal of the judgment upon the ground that the trial court erred in rejecting its theory. We think, under the rule announced in the case of American Sales Book Company v. Whitaker, 100 Ark. 360, 140 S. W. 132, 37 L. R. A. (N. S.) 91, that-the court sent the case to the jury upon the correct theory, and did not err in discarding appellant’s theory of the case. This court, said in the case cited:
“Parol ■ testimony is admissible to show that a written instrument was not signed or delivered as a concluded contract, but was only signed and delivered to be held pending the happening* of a contingency or the performance of some condition, and that subsequently such contingency did not happen or that such condition was not performed, and therefore that the written instrument did not actually become effective as a complete contract.”
No error appearing, the judgment, is affirmed. | [
-80,
112,
-40,
-35,
26,
32,
56,
-102,
83,
-91,
53,
83,
-23,
-57,
85,
105,
-13,
121,
-12,
122,
69,
-93,
99,
74,
-46,
-45,
-13,
-43,
-75,
111,
-28,
-42,
76,
33,
-118,
-99,
-58,
-62,
-59,
-100,
-38,
32,
29,
-20,
-35,
66,
48,
-24,
18,
67,
81,
-114,
-29,
44,
29,
75,
41,
46,
105,
97,
-40,
-39,
-77,
13,
61,
22,
-112,
55,
-112,
101,
-54,
30,
-120,
53,
2,
-24,
113,
-90,
-122,
116,
1,
-71,
0,
98,
38,
18,
5,
-17,
-4,
-72,
39,
-38,
-97,
-89,
-109,
88,
26,
44,
-74,
-99,
112,
82,
5,
118,
-2,
21,
31,
108,
3,
-57,
-42,
-109,
-113,
118,
-100,
-121,
-17,
-125,
16,
81,
-50,
-94,
92,
103,
58,
27,
-98,
-102
] |
Holt, J.
Appellee, Hex Castleberry, brought suit in the Fulton chancery court against J. A. Hall and Josie Hall, his wife, making two Jonesboro banks garnishees.
He alleged in his complaint that on April 14, 1936, he obtained a judgment against the Halls in a foreclosure suit No. 1098 in the amount of $1,251.65, copy of the alleged judgment was made a part of the complaint.
He further alleged sale of the land under the foreclosure decree; that the proceeds from the sale amounting to $900 was duly credited on the judgment, and that a deficit, or balance, of $602.70 was left due and unpaid-on said judgment.
Appropriate allegations for writs of garnishment were made, writs issued and served and the Citizens Bank of Jonesboro answered that it had $825.48 to the credit of J. A. Hall.
April 8, 1941, the Halls appeared specially and filed motion questioning the court’s jurisdiction and alleged lack of service on them. Upon a hearing the court overruled this motion, whereupon, appéllants answered preserving their right to object to the court’s, jurisdiction, lack of service on them, and saving their exceptions to the action of the court in overruling their motion, filed answer denying every material allegation of the complaint and also denied that there was any valid deficiency judgment existing against them in favor of appellee Castleberry.
Upon a trial the court found the issues in favor of appellee and this appeal followed.
The record discloses that in 1933 the Halls purchased land from Rex Castleberry for a consideration of $1,050. In payment they executed notes in favor of Castleberry secured by a mortgage on the land. Shortly after the-execution of these notes, they were sold and assigned to Gr'. T. Cunningham by Castleberry. Upon the failure of the Halls to pay the notes, Cunningham filed foreclosure suit on March 10,1936, making the Halls and Rex Castleberry, the original mortgagee, defendants. This suit was numbered 1098. On the same day suit was filed Castleberry and the Halls entered their appearance.
The record further reflects that the court below entered a mmc pro time order in case No. 1098 as follows: “The above decree in case No. 1098 should have been recorded on April 14, 1936, and is now entered of record nunc pro time.” And after the recording of the decree under this mmc pro time order, there appears this notation on that decree: “Pd. on Judgment by sale of land April 14,1936, $900 this 2/1/41 — Rex Castleberry. Attest: Lester Collins, Clerk.”
The decree entered under the ■mmc pro time order recites that Rex Castleberry as plaintiff was given a judgment against the Halls for $1,251.65, foreclosure ordered, and a commissioner appointed to carry out the decree, and this mmc pro tunc order appears to have been made January 27, 1938.
On April 8, 1941, after the present suit had been filed another nunc pro tunc order was made in foreclosure suit No. 1098 in which it is recited: “. . . that this suit was originally filed by and in the name of Gr. T. Cunningham as plaintiff but that before said cause proceeded to judgment and decree on the date of April 13, 1936, this defendant had been substituted as party plaintiff and the same should have been entered in his name as such plaintiff but that said order of the court then made was not entei'ed of record but should now be entered as of that date.
“It is, therefore, by the court considered, ordered and adjudged and decreed that Rex Castleberry, one of the original defendants herein, be and he is hereby substh luted as the plaintiff in place of the original plaintiff, G. T. Cunningham, and that this judgment, decree and order be now entered as of the date of April 13,1936, the date same was originally made but not then placed of record herein. ’ ’
It is conceded that in the instant case docketed as ease No. 1327, and wherein Eex Castleberry, appellee, appears as plaintiff and J. A. Hall and Josie Hall, appellants, appear as defendants, that no service of summons either personal or constructive, has been had upon either of appellants and that appellants are nonresidents of the state of Arkansas.
There can be no question but that if a valid judgment were obtained against the Halls by Eex Castleberry in the original foreclosure suit No. 1098, the land sold and proper credit given on the decree for the sale price, then the money of the Halls held by the garnishee bank would be subject to be applied on any deficiency judgment that might be due Castleberry from the Halls without personal or constructive service on the Halls. If, however, there were no such valid judgment obtained against the Halls in suit No. 1098, then the garnishment obtained against the Halls must fail for lack of service on the Halls in the instant case.
The purpose of a nunc pro tunc order, and the rule governing its entry is stated in Citizens Bank v. Commercial National Bank, 118 Ark. 497, 177 S. W. 21, as follows: “The purpose of a nunc pro tunc order is to make the record reflect the transaction that actually occurred and as often announced by this court, ‘ The authority of the court to amend its record by a mmc pro tunc order is to make it speak the truth, but not to make it speak what it did not speak but ought to have spoken. ’ Lourance v. Lankford, 106 Ark. 470, 153 S. W. 592, Ann. Cas. 1915A, 520.”
In January, 1938, in the instant case, the court below reinstated by mmc pro tunc order a foreclosure decree rendered April 14, 1936, but which had been omitted from the record; and on April 8, 1941, subsequent to the filing of the instant suit, the lower court by the other nunc pro tunc order, supra, substituted Rex Castleberry, appellee here, as plaintiff for G. T. Cunningham, the original plaintiff in case No. 1098.
Appellants first complain because they were given no notice of the nunc pro tunc orders, supra. In the instant case, the record on the tmnc pro tunc orders is silent as to notice. Since, however, the attack on these orders by appellants is collateral, the orders may not be attacked by showing that notice was not given. This court so held in Miller Land & Lumber Company v. Gurley, 137 Ark. 146, 208 S. W. 426, where it is said: “Appellant answers . . . that the nunc pro tunc order entered by the court, was void on account of notice to appellant not being given, and it was shown by oral testimony at the hearing below that notice was not in fact given to appellant. The record of the order is silent as to notice. This is purely a collateral attack on the validity of the nwnc pro hone order of May 7, 1917, and it has been decided by this court that the judgment of a court correcting a former entry cannot be attacked collaterally by showing that notice was not given. King v. Clay, 34 Ark. 291. Even on appeal, where the record is silent, the presumption is indulged that notice was given. ’ ’
We have many times held that courts possess continuing power over their records not limited by lapse of time. The chancellor, who tried the instant case, was chancellor of the district comprising Fulton county at the time the foreclosure suit No. 1098 was instituted and tried, and has continued as chancellor to the present time. In the absence of evidence to the contrary, the presumption is that the mmc pro tunc orders, supra, were entered and based upon satisfactory evidence, or personal recollections of the chancellor as to the court proceedings, in case No. 1098, siupra.
In Bobo, Adm’r, v. State, use, etc., 40 Ark. 224, this court said: “'Courts have a continuing power over their records not affected by the lapse of time. Should the record in any case be lost or destroyed, the court whose record it was possesses the undoubted power, at any time afterwards, to make a new record. In doing this it must seek information by the aid of such evidence as may be within its reach tending to show the nature and existence of that which it is asked to re-establish. There is no reason why the same rule should not apply, when, instead of being lost, the record was never made up, or was so made up as to express a different judgment than the one pronounced by the court. Hence the general rule that a record may be amended, not only by the judge’s notes, but also by other satisfactory evidence. . . .
“. . . we think it clear, upon authorities, that the court may make such amendments upon any legal evidence, and they are the proper judges as to the amount and kind of evidence requisite in each case to satisfy them what was the real order of the court, or the actual proceedings before it, etc. When there is nothing more to rely on than the memory, the court will act, if at all, with great caution.”
Having reached the conclusion that the nunc pro tunc orders in question were within the powers of the trial court to make, and that there is an outstanding valid judgment against appellants in favor of appellee on which a balance of $602.70 remains due and unpaid, the decree is affirmed. | [
48,
76,
-72,
-2,
-118,
-32,
10,
-102,
-62,
-127,
-77,
87,
-7,
102,
8,
105,
-30,
105,
-48,
120,
71,
-73,
7,
98,
-46,
-13,
-55,
85,
-92,
79,
-28,
-42,
12,
36,
-62,
31,
-26,
-30,
-25,
60,
78,
-127,
-69,
100,
-3,
3,
52,
-67,
4,
13,
113,
-121,
-13,
44,
53,
74,
73,
41,
99,
25,
80,
-8,
26,
12,
93,
23,
-112,
103,
-120,
-61,
104,
-114,
-112,
53,
-127,
-8,
118,
-90,
-122,
116,
10,
-99,
8,
38,
98,
-127,
-123,
-21,
-32,
-116,
38,
-34,
-99,
-89,
-30,
120,
18,
41,
-74,
-99,
124,
80,
-41,
-4,
-26,
-107,
28,
40,
7,
-18,
-42,
-111,
-106,
-75,
-100,
11,
-9,
-122,
32,
113,
-51,
-94,
93,
71,
115,
-101,
-114,
-67
] |
MoHaney, J.
Appellant ’© intestate, Heairl Smith, received a personal injury on June 9, 1921, at a public crossing on appellee’s railroad at or near Hoxie, Arkansas, from which he suffered conscious p-ain and suffering for a period of twelve hours, and thereafter died. His mother, the appellant, was thereafter appointed administratrix, and on June-5, 1924, nearly three years after the death of said intestate, suit ivas brought in the Lawrence Circuit Court for the Eastern District, to recover damages for the estate against appellee, for the alleged wrongful injury, causing conscious pain and suffering, and the alleged wrongful death of said intestate, •for the benefit of the next of kin. This cause was, on the petition of appellee, removed to the Federal court at Jonesboro, where, on May 4,1925, a nonsuit was taken, and the present action was instituted in the Jackson Circuit Court on April 29, 1926. The above facts were alleged in tlie complaint. In apt time appellee demurred to the complaint, on the grounds, first, that the complaint did not state a cause of action; and, second, that the complaint showed on its face that the deceased was killed by a train of appellee on the 9th day of June, 1921, and that the first complaint in this cause was filed on June 5, 1924, and the action was therefore barred by the statute of limitations. The court sustained the demurrer, and, upon appellant’s declining to plead further, judgment was rendered for appellee, and appellant has duly prosecuted an appeal to this court.
The only question presented for our consideration is the statute of limitations controlling in such case. At common law, no cause of action for personal injury survived the death of the injured person, and therefore appellant’s right to maintain this action depends upon the statutes of this State, the injury and death having occurred in this State. In the case of Ernest v. St. Louis, Memphis & S. E. Ry. Co., 87 Ark. 65, 112 S. W. 141, this court said: “At common law a right of action existed for the injury of a person, which did not result in death, but no right of action existed for the death of a human being.” Again, in the same case, the court said: “The general rule is that, where a cause of action does not exist at common law, but is created by the 'statutes of a State, it only exists in the manner and form and for the length of time prescribed by the statutes of the State which created it.” The court cited a number of caises sustaining this proposition of law. Again the court said, in the same case: “Therefore we conclude that it js now well settled that, where a statutory right of action is given which did not exist at common law, and the*statute giving the right also fixes the time within which the light maybe enforced, the time so fixed becomes a limitation or condition upon the right of action, and will control, no matter in what forum the action is brought.” Anthony v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 219, 157 S. W. 394.
The next question to be determined is what statute of limitations is applicable. Appellant contends that the three-year statute is applicable, and, having brought her first action within three years, on which a nonsuit was taken after removal to the Federal court, and having reinstated the same within one year after nonsuit, she is within the period of limitations, and contends that the action is governed" by §§ 1070 and 6950, C. & M. Digest. The first of these sections is as follows:
“For wrongs done to the person or property of another, an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, in the same manner and with like effect in all respects as actions founded on con.tracts. ’ ’ And § 6950 is the ¡statute fixing three years of limitations on “all actions founded upon any contract or liability, express or implied, not in writing.” Section 1070 is applicable to this case for the benefit of the estate for conscious pain and suffering, and the three-year statute applies. St. L. I. M. & S. Ry. Co. v. Robertson, 103 Ark. 361, 146 S. W. 482.
The section of the Digest providing for a cause of action for wrongful act, neglect or default of another, causing death, for the benefit of the widow and next of kin, is § 1074, and the section immediately following, § 1075, provides how the action shall be brought and the period of limitations governing. It reads as follows:
“Every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and, if there be no personal representatives, then the same may be brought by the heirs at. law of such deceased person; and the amount recovered in every such action shall be for the'exclusive benefit of the wfidow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and, in every such action, the jury may give such damages as 'they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person. Provided, every such action shall be commenced within two years after the death of such person.”
The above section is commonly known and referred to as “Lord Campbell’s Act.” And this court, in the case of Anthony v. St. Louis, I. M. & S. Ry. Co., supra, held that the period of limitations fixed in the proviso “that every such action shall be commenced within two years after the death of isuch person,” precludes every person, including minors, from maintaining a cause of action thereunder after the two-year statutory bar has elapsed. In that case the court said: “It follows, that the bringing of the suit within two years from the death of the person whose death has been caused by the wrongful act is made an essential element of the right to sue. ’ ’ It will therefore be seen that tha very sections of the statute giving rise to the cause of action for the benefit of the next of kin on account of death provide a limitation of two years in which the suit may be brought, and is controlling here. It necessarily follows that this part of the cause of action was barred by the two-year statute, and appellant, not having brought her original suit for this damage within that time, is barred- now from maintaining same, provided this question can be raised by demurrer, as was done in this case. This court has frequently held, and we now hold again, that, where the complaint shows on its face that it is barred by the statute of limitations, and no ground of avoidance is shown, the question may be raised by demurrer. Rogers v. Ogburn, 116 Ark. 233, 172 S. W. 867; Ernest v. St. Louis, N. & S. E. Ry. Co., 87 Ark. 65, 112 S. W. 141; Flanagan v. Ray, 149 Ark. 411, 232 S. W. 600; Anthony v. St. Louis, I. M. & S. Ry. Co., 108 Ark. 219, 157 S. W. 394; St. Louis, I. M. & S. Ry. Co. v. Sweet, 63 Ark. 563, 40 S. W. 463.
No ground of avoidance is shown in the complaint. The court erred in sustaining the demurrer to that part of the complaint claiming damages for the benefit of the estate for conscious pain and isiuffering, and correct ly sustained it as to all other damages.
Reversed, and remanded. | [
-48,
77,
-104,
-66,
27,
-32,
42,
18,
83,
-30,
-28,
-45,
-19,
67,
69,
111,
115,
57,
81,
59,
112,
-73,
87,
34,
-46,
-77,
105,
85,
-94,
77,
102,
-41,
76,
96,
74,
-43,
-25,
-54,
-51,
-38,
-50,
40,
-117,
-20,
89,
-112,
48,
127,
84,
7,
17,
-113,
-6,
-86,
25,
99,
73,
47,
91,
-95,
-48,
32,
-114,
5,
-2,
6,
-95,
6,
-98,
-127,
72,
26,
-104,
17,
0,
-4,
112,
-74,
-122,
20,
103,
-119,
8,
98,
98,
-96,
13,
-9,
-96,
26,
47,
50,
29,
-122,
-122,
89,
27,
-113,
-66,
-103,
95,
80,
71,
124,
-28,
79,
92,
40,
-121,
-118,
-108,
-107,
-17,
-96,
-98,
3,
-21,
15,
36,
113,
-52,
-118,
89,
71,
59,
27,
-105,
-46
] |
Mehafpy, J.
On October 22, 1941, Dr. L. T. Evans was driving on East Ninth Street, Little Book, Arkansas, and L. A. Galloway was driving a Home lee Company truck, when the two collided. Galloway, driver of the ice truck, brought suit in the Pulaski circuit court against Dr. L. T. Evans for injury and damages, which he alleged he received in the collision above mentioned, for the sum of $1,700. Two hundred dollars was alleged to be the damage to the truck and $1,500 for personal injury.
Thereafter Dr. L. T. Evans, a citizen of Independence county, brought suit in the Independence circuit court against the Home Ice Company for $5,250. The Home Ice Company, without entering its appearance for any other purpose, moved the court to dismiss the plaintiff’s complaint for want of jurisdiction. It was alleged in said motion: ‘ ‘ This suit arises out of an accident involving plaintiff’s automobile which occurred.on or about October 22, 1941, at the intersection of Ninth and Cumberland Streets in the city of Little Bock, Pulaski county, Arkansas. The automobile of the plaintiff was being driven by the plaintiff, and a truck, which was also involved in the accident, was driven by a man by the name of L. A. Galloway, who is a resident of Pulaski county, Arkansas.”
The circuit court of Independence county overruled the motion to dismiss, to which ruling and judgment of the court the Home Ice Company excepted and asked that its exceptions be noted of record, which was done.
Thereafter the petitioner, Home Ice Company, a corporation, filed its petition in this court for a writ of prohibition against the Independence circuit court, Honorable S. M. Bone, Judge.
The suit brought by Galloway against Evans in the Pulaski circuit court is simply a suit between Galloway and Evans. The Home Ice Company was not a party and was not even mentioned in the suit. Galloway claims that he owns the truck and sues, not only for personal injury, but damage to the truck. The suit by Evans in Independence county is a suit against the Home Ice Company, alleging, that its truck was involved in the accident and that Galloway was its employe.
The petitioner, in his brief and argument, first calls attention to 39 C. J. 1313, § 1514, which is a statement of the law involving the question of the liability between the master and servant. It is stated that a servant is liable to his master for damages which the master has been compelled to pay to third persons because of the negligence or other wrongful act of the servant. No such question arises in this case, and no authorities mentioned or discussed by the petitioner, except the case of Kornegay v. Auten, Judge, and Melton, Admr., v. Auten, Judge, 203 Ark. 687, 158 S. W. 2d 473.
After a very careful study of the questions involved in this case and the questions in the Kornegay case, wo are of opinion that the Kornegay case is controlling in this case. Every question raised here was raised and decided in that case. It was, however, contended in that case by Kornegay, in his petition for prohibition that act 314 of the Acts of the General Assembly of 1939 gives him the right to determine the venue in the case because he attached some affidavits to his motion showing that he was not to blame for the collision. In other words, being an innocent injured person as a result of the collision, he had the superior right over Joe Melton, Administrator, and Albert Glover, Executor, to bring the suit in the county where he lived or where the collision occurred. The court then copies § 1 of the act, which is as follows:
“All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which- caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.”
After copying tlie above section of the act the court said: “We find nothing in the act showing that the intention of the legislature was to give either one of two or more persons any priority over the other or others as to where the suit shall be brought. In the instant case, prior to the institution of the suit by John W. Kornegay v. Joe P. Melton, administrator, and Albert Glover, executor, the administrator brought suit in Lonoke county against John W. Kornegay alleging that Sam Booker Glover was killed through the negligence of John W. Kornegay. He had just as much right, under the act, to bring the suit in the county where the collision occurred and where the deceased at the time resided as did John W. Kornegay to bring the action in his home county. Having equal rights to bring the suit in their respective home counties or in the county where the collision occurred, Joe P. Melton, administrator, brought the suit against John W. Kornegay in Lonoke county before John W. Kornegay brought suit against them in Monroe county. Of course, the county in which the first suit was brought acquired jurisdiction over the subject matter of the suit and the parties thereto.”
The same questions were involved in that case as are in this case, and they were there decided adversely to the contention of the petitioner. Of course, the court in the Galloway case had jurisdiction of the parties and the subject matter of that particular suit. The parties, however, as we have already said, were Galloway and Evans and the Ice Compan}7 w7as not even mentioned.
If the theory of the petitioner were correct, then every time there was an accident and injury caused by the negligence of a servant of one of the parties, that servant could immediately bring suit against the injured party in the county where the master or corporation resided, and absolutely prevent the other party from suing, where the act expressly says he may sue. In other words, the master could, if he desired, have his servant bring suit in the county where the master was located and prevent the injured party from suing in his own county, but compel him to bring suit in the county of the master’s residence. The legislature certainly did not intend that the law should be annulled in this way. We think the intention of the legislature was that suit might be brought either in the county where the injury occurred or where the injured party resided at the time of the accident.
Since we have concluded that this case is ruled by the Kornegay case, supra, there is no reason why a suit by one party should compel the defendant in that suit to bring his suit against another party in the same jurisdiction;, in other words, permit the master always to determine where the suit might be brought. However, we think that as this case is controlled by the Kornegay case, the writ should be denied. It is so ordered.
Smiti-i, McIIaney, and Holt, JJ., dissent. | [
114,
-24,
-40,
46,
24,
-32,
26,
75,
89,
-85,
-31,
-45,
-29,
-51,
13,
97,
-29,
95,
85,
59,
-25,
-89,
83,
-93,
-48,
-77,
123,
-49,
-79,
-53,
116,
-12,
15,
32,
-54,
21,
-27,
89,
-59,
-36,
78,
4,
59,
96,
89,
19,
48,
-72,
84,
15,
97,
-113,
-44,
42,
50,
67,
-19,
46,
-39,
-86,
-47,
112,
-120,
7,
93,
18,
17,
118,
-104,
5,
-8,
14,
-108,
49,
32,
-20,
114,
38,
-125,
116,
1,
-119,
24,
54,
98,
2,
25,
-17,
-84,
40,
6,
-2,
31,
-122,
-116,
57,
27,
74,
-66,
29,
122,
16,
15,
122,
-7,
71,
31,
40,
36,
-86,
-112,
-95,
-83,
-96,
28,
7,
-21,
79,
34,
17,
-115,
-22,
116,
4,
58,
27,
-61,
-42
] |
Humphreys, J.
This is the second appeal in this case. On the first appeal the judgment in favor of L. W. Hall, the appellant herein, was reversed, and the cause was remanded for a new trial on account of an erroneous instruction .given by the court. For a statement of the issues and most of the facts in the case, reference is made to the written opinion of this court on the first appeal, which is reported in 170 Ark., page 201, under the style of Bowen-Oglesby Milling Company v. Hall. On a new trial of the cause a judgment was rendered against appellant herein for $807.04.
Appellant contends for a reversal of the judgment upon three alleged grounds: (1) The court erred in permitting witness Holder to testify in detail as to the condition of the Bank of Hatfield subsequent to the 9th day of October, 1923. (2) The court erred in permitting witness Magruder to testify concerning the custom and rule among the banks as to collecting checks and remitting therefor. (3) The court erred in giving to the jury the court’s instruction No. 1, as follows:
“The jury may consider all the evidence in the case in arriving at the conclusion as to whether or not the bank was able to pay the check when it received the same for payment.”
(1). There were only two issues of fact in the case, one being whether the goods were shipped on October 1, 1923, on a written order of August 7, 1923, or on a separate and distinct verbal order made on October 1, 1923; and if, on a separate and distinct verbal order, whether the bank at Hatfield had sufficient funds to remit for the collection on, the day it accepted Hall’s check and delivered him the draft with bill of lading attached. Of course, if the goods were shipped under the written order, it was immaterial, as between appellant and appellee, whether the Bank of Hatfield had sufficient funds to pay appellant’s check on the day it accepted it, because the written order contained a clause making appellant responsible for final payment. Although the cashier of the Bank of Hatfield testified, on direct examination, that the bank had funds sufficient to remit for the check it accepted from Hall in payment of the goods, yet, on cross-examination touching the condition of the affairs of the bank, he made statements indicating otherwise.
We think appellee had a right to assail the statement of the cashier by requiring him to disclose its insolvency at the time it accepted the check and its failure in a few days thereafter. The testimony objected to was competent and relevant as responsive to the issue whether the bank had available funds to remit for the check in payment for the car of goods.
(2). 'Magruder’s testimony with reference to the custom of banks in collecting and remitting on checks was competent. He testified that it was the custom to remit for 'checks collected by a bank on the day they collected them. The neglect of a bank in failing circumstances to conform to custom in handling a.check would be a circumstance tending to show that its failure to remit was due to a lack of funds.
(3). Appellant admits that the issues and respective theories of himself and appellee were correctly submitted to the jury under the instructions requested by each of them, and which were given by the court, but insists that instruction No. 1, given by the court on its own motion, set out above, was erroneous and prejudicial to its rights. The specific objections made to the instruction are that it is argumentative, and calls attention to a particular part of the evidence. It is not argumentative, but simply advises the jury that it might consider all of the evidence in the case in determining the issue as to whether the bank had available funds to pay the check it received in payment of the draft, or whether it could have remitted for the draft the day it delivered same to appellant in exchange for his check drawn on said bank. The court did not call attention to any particular evidence bearing upon this issue, or express lany opinion thereon. He simply referred to one of the pivotal issues in the case, and said that they should consider all of the evidence relating thereto in reaching a conclusion upon it. It perhaps would have been better to tell the jury that, in determining each issue in the case, it should take into consideration all the evidence introduced relative to each. Objection was not made that the instruction unduly emphasized one issue to the exclusion of the other. No doubt the court would have broadened the instruction to include all the issues had the appellant made such request. We are unable to see where appellant was prejudiced in the least by the instruction.
No error appearing, the judgment is affirmed. | [
-78,
124,
-68,
-99,
122,
-32,
42,
-102,
64,
-95,
39,
83,
-5,
83,
20,
123,
-9,
109,
85,
106,
-26,
-77,
23,
96,
-46,
-13,
19,
-43,
-75,
78,
-12,
-9,
12,
32,
74,
-111,
102,
-64,
-59,
20,
-82,
4,
40,
-49,
-39,
64,
48,
-68,
116,
75,
97,
-106,
-29,
32,
30,
67,
105,
45,
107,
41,
112,
-8,
-110,
5,
29,
23,
49,
39,
-100,
101,
120,
30,
-104,
49,
1,
-23,
114,
-90,
-106,
-44,
99,
-103,
40,
-26,
98,
-125,
37,
-17,
-116,
-120,
62,
-2,
-67,
-25,
-110,
104,
107,
41,
-74,
-99,
-12,
16,
7,
120,
-22,
-107,
29,
108,
1,
-54,
-74,
-109,
-97,
124,
-98,
-101,
-21,
-53,
52,
113,
-52,
-30,
92,
-57,
113,
-69,
-114,
-103
] |
Smith, J.
Appellees, who are citizens and taxpayers of Woodruff County, sued out a writ of certiorari from the circuit court of Woodruff County-to quash the order and judgment of the county court of that county granting to Alvin Bell a franchise to build a toll bridge over White River near Augusta, in Woodruff County.
It appears, from the record in this case thus reviewed, that on January 4, 1926, Alvin Bell filed in the Woodruff County Court a petition praying the court to grant him a franchise to build a toll bridge over the White River near Augusta, in that county, and the prayer of the petition was granted on that date, and that on the same date Bell formally accepted the franchise granted.
Upon the final hearing before the circuit court it was held that the order and judgment of the county court granting the franchise was void, and the judgment of the county court was quashed, and Bell has appealed.
At the hearing in the court below, testimony was offered to the effect that the county court had, at its January term, 1925, granted a franchise to R. L. Gaster substantially identical with the one granted a year later to Bell. The location of the bridge was the same in' each instance, and each franchise provided that it should “be exclusive for a distance of ten miles on each side of said bridge, measured along the channel of said river,” and that the county court should not “hereafter, during the life of this franchise, grant to any person, partnership, company, corporation, or association, any right, privilege, franchise or license to construct, maintain or operate another bridge or ferry across White River within said limits.”
In the judgment granting a franchise to Bell it was provided that the franchise should be void and of no effect “if R. L. Gaster, who has a franchise for the construction of this toll bridge under an order of this court granted on the 27th day of January, 1925, complies in full with the ninth paragraph of said franchise, which is as follows: ‘Ninth. The said R. L. Gaster, his successors or assigns, shall begin on actual work of construction within fifteen calendar months from the date of the acceptance of this, franchise, and the said bridge shall be completed within three years from the beginning of actual work of construction, but the time of the completion of said construction shall be extended on showing to the court by the said R. L. Gaster, his successors or assigns, of reasonable cause for extension of time’.”
It was also made to appear from the oral testimony heard by the court below that Bell was a son-in-law of the county judge.
It is first insisted that the franchise granted Bell is void because it appears, from the face of the record, that no notice thereof was given. This contention may be answered by stating that § 10255, C. & M. Digest, under which the court acted, does not require, as a condition precedent to the exercise of this jurisdiction, that notice must be given.
It is further insisted by petitioners that the franchise granted Bell is void for the reason that it conflicts with the previous franchise granted Gaster, which had not then expired, as the fifteen months had not elapsed within which Gaster might begin the actual work of construction allowed for that purpose by the franchise granted him. The case of Ratcliffe v. Pulaski Turnpike Co., 69 Ark. 264, 63 S. W. 70, appears to support this contention.
It' is also insisted that the franchise granted Bell was void for the reason that the court was Avithout jurisdiction to make the order, on account of the relation by affinity existing between the judge of the court and the petitioner, and the case of Izard County v. Bank of Melbourne, 123 Ark. 458, 185 S. W. 794, is cited in support of that contention, it having been there held that a county judge is disqualified to allow any claim presented against the county in which he is interested, except his own salary.
It is further insisted that the franchise is void as being unreasonable and unilateral, and, further, that the State Highway Commission has the authority from the Federal Government to erect a bridge at the site in question, which permit would exclude another from doing so, and also that the bridge in question is a part of the State Highway system, over which the county court has no jurisdiction. The cases of Fulton Ferry & Bridge Co. v. Blackwood, 173 Ark. 645, 293 S. W. 2, and Conner v. Blackwood, ante, p. 139, are cited in support of the last stated contentions.
It is insisted by appellant that petitioners should have appealed from the order of the county court, and. that, as they had a remedy by appeal, they cannot now proceed by certiorari to revieAV the order of the county court.
It has already been stated that no notice of the court proceeding was given or required, and, while a property owner who was ¡advised of 'the proceeding might have become a party and have appealed within the time allowed by law for that purpose, the existence of this remedy does not preclude the right to review the order of the county court on certiorari. But, in a proceeding by certiorari, the validity of the order and judgment of the county court must be tested and determined by an inspection of the record in that case, and such order ¡and judgment will not be held void on a certiorari proceeding unless the invalidity thereof appears.from the face of the proceedings. Cazort v. Road Imp. Dist. No. 3, 175 Ark. 570, 299 S. W. 1014, and cases there cited.
The invalidity of the- judgment of the county court here under review does not appear from the face of the record under inspection, and it will be necessary therefore for petitioners to institute a proper proceeding to cancel the franchise in question, as that relief cannot be granted here.
The writ of certiorari issued by the circuit court must therefore be quashed, and it is so ordered. | [
84,
106,
-12,
-4,
-116,
-64,
80,
26,
91,
-93,
-27,
83,
-19,
88,
28,
115,
-25,
125,
85,
123,
-58,
-77,
23,
50,
-47,
-77,
-5,
-44,
-69,
73,
-28,
-43,
10,
48,
74,
29,
102,
-118,
-51,
-100,
-50,
-128,
-117,
-20,
-35,
-63,
54,
-17,
114,
-49,
117,
-115,
-45,
44,
24,
-61,
108,
44,
89,
43,
16,
-7,
-6,
-108,
-49,
23,
49,
36,
-102,
-127,
72,
30,
-112,
53,
-110,
-8,
115,
-74,
-126,
-11,
3,
-7,
12,
116,
102,
35,
-83,
-59,
-92,
89,
22,
-42,
-111,
-90,
-122,
56,
67,
109,
-66,
31,
114,
22,
-58,
126,
-66,
-60,
25,
108,
-127,
-114,
-109,
33,
-123,
-84,
-126,
19,
-17,
3,
52,
112,
-49,
-34,
92,
69,
49,
27,
-105,
-72
] |
Humphreys, J.
Appellant brought suit against appellee in the circuit court of Woodruff County, Northern District, to recover possession of certain sawmill machinery, equipment, wagons, horses and mules, particularly describing the property and alleging ownership thereof by purchase and delivery from appellee under a 'bill of sale executed to him on the 25th day of June, 1924. Appellant executed bond and took possession of the property.
Appellee filed an answer, admitting the execution of the bill of sale, but alleging that it was. intended as a mortgage to secure the indebtedness of $500 which he owed appellant, and which had been paid prior to the institution of this suit.
The cause was submitted to a jury upon the pleadings, testimony, and the instructions of the court, which resulted in a verdict and consequent judgment for the value of the property in favor of appellee, from which is this appeal!
The bill of sale, absolute upon its face, was introduced in evidence. The real issue involved was whether the property was delivered to appellant under the bill of sale or whether the instrument, was intended as a mortgage to secure an indebtedness of $500, which, of course, would not require a delivery of the property, to be valid or effective.
The testimony introduced by appellant tended to show that the bill of sale was executed to evidence an absolute sale and purchase of the' property"; whereas the testimony introduced by appellee tended to show that it was intended as a mortgage to secure an indebtedness of $500. Appellant’s testimony tended to show that, after the execution of the bill of sale, appellant rented the property to. appellee. Appellee’s testimony tended to show otherwise. If appellee rented the property from appellant at the time or after executing the bill of sale, it was proof conclusive of a delivery and complete sale. Appellant asked an instruction presenting this theory of his case, which was refused by the court, over his objection and exception. The instruction is as follows:
“If you find that, after the bill of sale was executed, the plaintiff and defendant entered into an agreement for the use of the property under which the defendant was to pay for the use of the sawmill outfit, then you are instructed that there was. a delivery of the property after the bill of sale was executed, and you will find for the plaintiff.”
This theory of appellant’s case was not covered by any other instruction given by the court, and the court erred in not giving the requested instruction.
On account of the error indicated the judgment is reversed, and the cause is remanded for a new trial. | [
80,
125,
-104,
-115,
26,
-32,
106,
-102,
-64,
97,
39,
83,
-3,
-62,
1,
101,
-26,
109,
117,
104,
68,
-77,
2,
83,
-46,
-77,
81,
-41,
-67,
74,
-27,
87,
13,
37,
66,
17,
-30,
-62,
-27,
28,
-114,
-128,
-83,
108,
-39,
104,
48,
-21,
124,
73,
117,
-90,
-5,
46,
29,
75,
73,
40,
107,
43,
-16,
-8,
-86,
-83,
95,
2,
49,
102,
-104,
65,
-24,
76,
-112,
49,
1,
-24,
115,
-76,
-122,
116,
5,
-101,
8,
102,
38,
2,
77,
-17,
120,
-72,
46,
94,
-99,
-90,
16,
88,
10,
105,
-66,
-99,
124,
80,
7,
118,
-20,
-35,
29,
108,
7,
-17,
-106,
-109,
-115,
36,
-98,
11,
-17,
-109,
48,
80,
-49,
-94,
92,
71,
80,
-101,
-114,
-37
] |
McHaney, J.
Appellant, Stubbs, is the trustee in a chattel mortgage executed by one J. A. Coleman to the Triple XXX Company, a Texas corporation, to secure an indebtedness due it by Coleman of approximately $18,000. The appellee, A. L. Wright, brought this suit against one W. C. Dunn, said Coleman, and the Arkansas Triple XXX Company, an Arkansas corporation, on a promissory note for $800 executed by the Arkansas Triple XXX Company and indorsed by Dunn and Cole man to M. B. Morgan, which he had acquired in due course, alleging the insolvency of the Arkansas Triple XXX Company, and praying the appointment of a receiver therefor, and W. E. Greene, clerk of the court, was appointed receiver for said company. He was directed to and did take charge of the business of the Arkansas Triple XXX Company. He also took charge of the property belonging to said Coleman, which had been mortgaged by him to appellant corporation, and which was being used in the business of the Arkansas Triple XXX Company. The Texas Company was organized as a corporation on January 3, 1927. Prior to that timé it was a partnership, doing business at Galveston, Texas, under the trade name of Southern Beverage Company. It was licensed to do business in Arkansas on July 21,1927. It is the owner of a formula and trade-mark for the manufacture, sale and distribution of root beer, which it has advertised extensively under the trade name of Triple XXX, and it is the owner of various articles of equipment suitable for use in dispensing its brand of root beer. It grants, by contract with sundry people throughout the country, the right or license to make and sell this brand of root beer, and also leases its equipment to be used in dispensing its product, retaining title to the equipment and permitting the use thereof by others, subject to the terms of the license agreement. In March, 1926, prior to its incorporation, Southern Beverage Company, the partnership, leased three lots at the southeast corner of Fourteenth and Main Streets, Little Rock, Arkansas, and erected thereon a small brick building, which is known as a “thirst station,” and equipped same for the sale of Triple XXX root beer. It thereafter on July 26, 1926, leased said property to said Dunn, who contracted to buy the improvements at Fourteenth and Main streets, and entered into a lease agreement for the use of the equipment. Dunn paid a portion of the purchase price in cash, and executed his notes and the deed of trust on the improvements on the leased property at Fourteenth and Main, and a chattel mortgage on the personal property, to secure Ms indebtedness to the Southern Beverage Company. Dunn failed to pay the purchase price in accordance with the terms of the agreement, and in May, 1927, he conveyed all of said property to the appellant, Triple XXX Company, in full settlement of his indebtedness to it, and on May 5, 1927, the same property was resold to said Co'leman for $19,360, of which $1,000 was paid in cash, and for the balance Coleman executed Ms notes, and on June 6,1927, he executed to appellant, Charles J. Stubbs, as trustee for the Triple XXX Company, a deed of trust covering all of the property he had theretofore purchased from the Triple XXX Company. At the time the receiver was appointed and the property involved in this action was taken over by him, Coleman was delinquent in the payment of his notes to appellant. It further appears that, although Coleman and Dunn had organized the Arkansas Triple XXX Company, the title to this property had never been conveyed to it.
On July 26,1927, appellants intervened in this action for the appointment of a receiver, set up its claim to the property held by Greene as receiver, and asked for the delivery of the property to it, and for damages for the wrongful detention of the property.
The appellees answered the intervention, denying its rights, for the reason that it was a foreign corporation, not having complied with the laws of this State, and that it was engaged in business in this State contrary to the laws of this State applying to foreign corporations.
On July 30, 1927, the court entered an order, finding that appellants were entitled to possession of the property involved in the action, directing the immediate delivery thereof by the receiver, but reqMred appellants to execute a bond in the sum of $2,000 conditioned to pay any sums which might finally be adjudged as liens against the property prior to appellant’s claims. Appellants filed the bond conditioned as aforesaid, and took possession of the property. The court also directed the receiver to pay all expenses of operation of the business incurred by Mm, and to file his final report. On August 6 the receiver made an oral report to the court, stating that he had issued checks in connection with the receivership in excess of the funds in Ms hands, and asked the instructions of the court as to the method of procedure to raise the necessary funds to pay the outstanding checks. The amount thereof, nor to whom payable, nor for what purpose, is stated in the record. The court entered a decree declaring the undetermined amount of the unpaid checks of the receiver a lien against the property which he had ordered returned to appellants -on the execution of the bond, prior and paramount to the title of appellants and all other parties to the action, and directed the receiver to take charge thereof and operate the property until a sufficient amount of money was obtained to pay the unpaid checks, unless a sufficient sum of money was paid to the receiver, on or before August 15, to cover the amount of such checks. The receiver was also ordered to prepare and file a written statement, showing the exact amount of each cheek outstanding which remained unpaid, the dates thereof, the name of the payee, and the purpose for which same was issued. From this latter order or decree this appeal is prosecuted.
We think this order was erroneous. In the first place, it is not shown that the Arkansas Triple XXX Company had any interest in the property which the receiver was ordered and directed to surrender to appellants. The receiver was appointed for the Arkansas Triple XXX Company, and for no one else. If the property was not the property of the Arkansas Triple XXX Company, but was the property of J. A. Coleman and appellants, or either or both of them, certainly the receiver of the Arkansas Triple XXX Company had no right or authority to take possession or control of any property that did not belong to it. The receiver was not appointed'to take charge of the property of Coleman. If in fact Coleman had conveyed his equity in the property to the Arkansas Triple XXX Company, then the receiver was justified in taking charge thereof, and in operating it as the property of the Arkansas Triple XXX Company, subject to the rights of appellants therein. And the equity therein of the Arkansas Triple XXX Company, if any, could havé been sold by order of the court to satisfy the claims of creditors of the Arkansas Triple XXX Company. • In the second place, in the order of July 30, the court directed the immediate delivery by the receiver of the property to appellants, and .required them to give a bond in the sum of $2,000 to pay all sums which might be adjudged to be liens against the property prior to the lien of appellants. In the order of August 6 it adjudged an undetermined amount of outstanding checks to be liens superior to the claims of appellants, but did not attempt to enforce them by a proceeding against the bond. Instead, the court ordered the receiver to retalie the property and operate it to pay these sums.. The court could not render a. judgment for an undetermined amount and declare it to be a lien against the property, as the judgment would have to be for a definite and certain sum, and, if a lien at all, the bond should have been subjected to the payment thereof, instead of the repossession of the property.
We do not think there is any merit in the contention that appellant, Triple XXX Company, being a foreign corporation, was doing business in this State in violation of the laws of this State relating to‘foreign corporations. All of the transactions heretofore set out with Dunn were had before the incorporation of appellant, at a time when it was a partnership, doing business as the Southern Beverage Company. The transactions between Coleman and it were had and done in the State of Texas, and were interstate in 'character. It complied with the laws of this State on July 21, 1927, and there- . after filed its intervention. L. D. Powell Co. v. Rountree, 157 Ark. 121, 247 S. W. 389, 30 A. L. R. 414; Linograph Co. v. Logan, 175 Ark. 194, 299 S. W. 609.
For the error indicated the judgment will be reversed, and the- cause remanded with directions to ascertain the amount of the outstanding checks issued by the receiver in payment of the expenses of the receivership, the nature and purpose thereof, and to determine whether such amounts are superior to the lien of appellants, and, if so, to enforce 'collection thereof out of the bond so given by appellants to obtain possession of the property; but, if not, then to collect same out of the bond of petitioner, Wright, given to obtain the appointment of a receiver, in the event there be no assets in the hands of the receiver belonging- to the Arkansas Triple XXX Company. It is so ordered. | [
-16,
111,
-23,
76,
10,
96,
42,
-66,
86,
-128,
117,
83,
-7,
-25,
5,
119,
-61,
109,
85,
120,
-11,
-74,
35,
98,
-62,
-69,
-39,
85,
-15,
79,
-12,
-42,
-52,
44,
-54,
85,
-62,
-54,
-49,
28,
74,
9,
59,
96,
121,
-127,
52,
-69,
1,
79,
65,
-123,
-77,
41,
17,
-50,
76,
44,
-3,
29,
-48,
-72,
25,
5,
127,
7,
33,
38,
-104,
5,
-22,
30,
-108,
117,
13,
-24,
122,
22,
-122,
-12,
11,
-115,
8,
38,
99,
42,
21,
-17,
-36,
-72,
39,
-81,
-99,
-90,
-32,
120,
2,
9,
-66,
28,
-2,
15,
-121,
-34,
-18,
-123,
28,
124,
-123,
-114,
-106,
-121,
-123,
120,
28,
-109,
-17,
-89,
32,
117,
-51,
-96,
93,
102,
62,
-101,
-113,
-16
] |
Mehaeey, J.
On September 10, 1925, H. A. Matthews, trustee; entered into a contract with S. M. Led-better and J. D. Faulkner to purchase an oil and gas lease on 80 acres of land in Union County, Arkansas, belonging to said Ledbetter and Faulkner, and under this contract the agreed purchase price, $2,400, together with the lease from the sellers, was placed in escrow pending the examination of the sellers’ title by the attorney for the appellee.
In this transaction J. S. Alphin, appellant, acted as the agent for the sellers.
When the title to the land covered by the lease was examined by the attorney for the appellee, it was found that the sellers could not give a marketable title to an oil and gas lease covering it, because of the fact that oil and gas leases covering portions of the land were outstanding in T. J. Woodley, T. B. Hincy and W. EL Workman, and the attorney for the appellee required that releases from those persons to the sellers be obtained before their title of the lease could be approved as marketable. These leases had not been obtained on September 24,1925, two weeks after the contract of sale was entered into, and Faulkner was pressing Alphin to close the transaction, and stated that unless the transaction was closed without delay, he would call the sale off. At that time it was suggested to appellee that he turn the money which was in escrow over to J. S. Alphin, and that appellee accept the lease which had been deposited in escrow, and at the same time represented to appellee that the. necessary leases to make his title marketable would be forthcoming without delay; and the money was thereupon turned over to J. S. Alphin and the lease delivered to the'appellee, together with a letter which reads as follows :
“El Dorado, Ark., Sept. 24, 1925.
“Mr. Howard A. Matthews, Trustee,
El Dorado, Arkansas.
“Dear 'sir: In re oil and gas lease, north half of southeast quarter section 25, township 17 south, range 15 west, Union County, Ark. S. M. Ledbetter and J. D: Faulkner fee.
“This is to advise you that the sum of $2,400, as evidenced by two cashiers’ checks, which have this date been placed in my hands, will be by me held until such time as the releases of oil and gas leases, which have been prepared for execution by T. J. Woodley and wife, T. E. Hincy, trustee, and wife, and W. H. Workman, trustee, have been properly executed and delivered for recordation. It being our understanding that these are the remaining requirements as made by your attorney with reference to the clearing of title to the oil and gas leasehold rights on the above described land.
“It is understood that you are today filing for record the oil and gas lease, as executed by S. M. Ledbetter and J. D. Faulkner on August 29, 1925, but same is not being finally accepted by you until releases mentioned above have been obtained and filed for record.
“In the event these releases mentioned above are not received within the next few days, or a reasonable length of time, you may, at your election, accept the above described oil and gas lease by waiving your requirements as to the releases, and I will thereupon be relieved from my obligation to hold these checks any longer.
“Tours very truly,
“ (Signed) J. S. Alphin
“J. S. Alphin, Agt.”
“Witnesses: W. IT. Price, E. L. Pye.”
Upon receiving this money at the time the letter was written, Alphin placed it in his general account at the First National Bank of El Dorado and used it for his own purposes, although the letter stated that the $2,400 which had that date been placed in his hands would be held by him until such time as the releases of oil and gas leases had been properly executed and delivered for recordation.
The appellant argues two questions. The first contention is that the releases were obtained in a reasonable time, and, second, that, if the releases were not obtained within a reasonable time, the appellee waived the delay.
The appellee testified in substance that he entered into contract as above set out through the "agent, J. S. Alphin; that the lease and money were placed in escrow with the First National Bank pending an approval of title; that on September 24 Mr.' H. Alphin, son of J. S. Alphin, told him that Faulkner wanted to know whether or not they had made a sale, and that, if be wanted to take the lease, they would obtain quitclaims or releases from these gentlemen, who were out of town; that he told Alphin to give him a letter that these quitclaims would be obtained within a few days and he would accept the lease and place it on record; that Alphin gave him to understand the releases would be forthcoming within a few days; that he turned the money over to Alphin, and Alphin gave him the letter set forth in the complaint, and he placed the lease on record; that on that date he gave Alphin "Workman’s address in Fort Wayne, Indiana, and informed him that Workman was in New Mexico; that, possibly within the next week, he asked Alphin if he had got the releases, and that Alphin informed him no, but that they would be here in a few days; that he spoke to Alphin a number of times, in fact, every time he tow him; that between September 24,1925, and November 21, 1925, he spoke to Alphin fully fifteen times about the releases; that on each occasion Alphin would tell him that he had not received all of the releases, but that he would have them in a day or two; that when he entered into the contract he thought he would have a merchantable title within a week or ten days, and, when it had gone on for six weeks, he saw Mr. Alphin on the street, and told him that he would give him another week; that Mr. Lake said that they had all of the releases except the one from Hincy, and that they had a man down there and would have it tomorrow. Appellee told him this would be all right. When the release came it did not cover the land owned by Hincy; it misdescribed the land, and then appellee told Alphin it had gone long enough, and, since they had had an agreement and he had turned the money over to Alphin, he wanted Alphin to give him back the money, and he would give him the lease back; that he tendered a release of the lease; that the customary time allowed the seller in which to cure the title was from 10 to 15 days in the Union and Ouachita counties oil fields. At the time he purchased the lease it was worth $2,400. There was a little showing of oil in the Stocks well on the Ezell property; that there were six or seven other wells being drilled in that vicinity; that the value of the lease was to be determined on the outcome of the Ohio well. That the Ohio well was abandoned on October .7, 1925; that the value of oil and gas leases fluctuates greatly from time to time, depending on the development of the field where they are located.
On cross-examination appellee testified that he purchased it as trustee, and one-third was to be for himself, one-third for Dr. Falvey, and one-third for R. L. Long; that Mr. Romine later acquired part of Dr. Falvey’s interest, and he thought the Root Refinery acquired part of it; that on the date that the letter was written, September 24,1925, he knew that Workman lived in Indiana, and that the release would have to be sent by mail and forwarded to New Mexico; that when he would speak to Alphin about the progress that was being made in obtaining the releases from time to time, Mr. Alphin would tell him the releases would be here in a day or two, and he would tell Mr. Alphin that that was all right; that they got the release from Hincy one day after the week which he had given them, but that he g’ave them an extra day, and that the release containing the incorrect description arrived within the time which he gave them; that he tendered the release to Alphin at the time, and that they had told them a number of times they could get a correct lease, and are telling them that yet. He does not know whether Oir not they delivered the correct lease to Mr. Marlin, his attorney. That the lease was worth as much on Monday as it was on Saturday; that a few days’ or weeks ’ delay at that time did not affect the rights of the parties more than it had before; that it was customary to give the seller 10 or 15 days to cure the title, but it was not customary to place the lease on record before the title was approved.
J. S. Alphin, testifying for the defendants, said in substance that the only connection he had with the transaction was that Faulkner and Ledbetter made him trustee, and afterwards Lake was made trustee in part; that he had nothing to do with the releases; that Lake was doing all that; that Matthews asked him a number of times if he had got the releases, ¡and that he told him all had been got except the one from Hincy, but had never got it. On Friday Matthews asked him if they had come, and he told him he did not know, he had not seen Lake, and that .Matthews said if he did not get them completed by tomorrow he would call it off; that the leases came on Saturday, but these were incorrect. The property was misdescribed, and Matthews said the lease was, all wrong, and he wanted his money back, and he told Matthews he could get it corrected by Monday. Matthews said that was not the question, he wanted his money back, and he told him he was not going to give it back.
On cross-examination he said that the cashier’s checks were delivered to him on the 24th, the date of the letter, and that he used the money, and that he gave money to Lake and Faulkner two or three weeks, after Matthews demanded the money back; that witness did not have anything to do with the lease on record; that he was a mere tool.
P. Gr. Lake testified in substance that, during the time he was obtaining the releases, Matthews mentioned it to him once or twice, and more particularly on a certain Friday he mentioned he wanted the releases. He could not tell what Matthews said. He sent the releases down by VanH'ook to Hincy. When Matthews told him he would only give him until the following day to get the releases, the release had been made out and sent down, but the property was 'misdescribed. He testified'as to the activity in the vicinity, and that deep sand found east of El Dorado had caused a great demand for this property. People were buying leases as fast as they could get them.
On cross-examination he said that he did not remimber the date that he got the releases from Workman, but he did not think it was within two weeks after Alphin signed the lease; that the money was turned over to Alphin and the lease placed of record because Faulkner said he had two or three chances to sell, and unless the money was turned over to him he would call it off.
J. H. Alphin testified about the lease and about the description being wrong in the deed.
In rebuttal, J. 0. Falvey testified that he put up $800 of the $2,400; that the money was turned over to Alphin, and he talked to Lake several times about it, and Matthews came to him and said he was tired of monkeying with it. Matthews asked him to go see Lake and see if they were not going to do anything about it. Matthews asked witness to go and demand the money, which he did.
At the close of the testimony the court entered a decree in favor of appellee, from which is this appeal.
It is first contended by the appellant that he was entitled to a reasonable time in which to obtain the releases and deliver them to appellee, and that he did not have a reasonable time. The letter given at the time the leases were delivered and the money turned over provides that, in the event these releases mentioned above are not received within the next few days or a reasonable length of time, etc. We think that that alone would mean that the reasonable time should be within the next few days. And Matthews testifies, and this is not disputed, that Alphin gave him to understand the releases would be forthcoming within a few days. Matthews also testified, and it is undisputed, that when he entered into the con tract he thought he would have a merchantable title within a week or ten days, and when it had gone on for six weeks, he saw Alphin on the street and told him he would give him another week. He finally told him that it had gone on long enough.
Matthews testified, and this is also undisputed, that he is familiar with the usual agreements in the purchase and sale of leases in Union and Ouachita counties oil fields, and that the customary time allowed the seller in which to cure the title was from 10 to 15 days.
As we have said, this proof is not disputed. The proof also shows that the values and prices in the oil fields fluctuate, and they of course depend largely on whether wells are producing or not, and a piece of property might be thought very valuable at one time and within a few days, thought to be worthless. We therefore conclude from the testimony in this case that the appellant did not obtain the releases within a reasonable time. A reasonable time is such a period as would suffice for the performance, if the person whose duty it was to perform, used in the performance such diligence, care and prudence as a person of ordinary diligence, care and prudence, under the like circumstances, would use in the performance of a like duty. A reasonable time would be such a time as a person using due diligence would require to perform the act, taking into consideration all the facts and circumstances.
It has been said:
“But, apart from these considerations, one general rule may be said to cover the performance of the contract, viz., that it must be performed in a reasonable manner and with reasonable diligence on each side. Where the manner or place of doing an act or the time at which or within which it is to be done is left undefined, it is to be determined by reference to what is reasonable, having regard to the circumstances of the particular case. * * * And the courts have laid down the rule that reasonable time for the performance of acts under a contract is such a period of time as suffices for their performance if the one whose duty it is to perform uses, such diligence in the performance as a person of ordinary diligence and prudence would use under like circumstances.” Dietrich v. U. S. Shipping Board Emergency Fleet Corp., 9 Federal, 2d Series, 733.
The above case cites many authorities in'support of the rule announced.
The next contention of appellant is that appellee waived time. It appears from the evidence that, after an unreasonable length of time, the appellee told appellant that he would give him another week. Therefore, if there was any waiver at all, it was, according to the undisputed proof, on condition that the releases be furnished "within one week. There is no dispute about these facts. They were not furnished within the time fixed. 'Appellee not only said he had seen the appellant as many as fifteen times, but that he finally told him that he had waited long enough on it and he wanted his money, and then gave appellant one week more.
According to the proof, the time was unreasonable, and it was extended for one week only, and, when the releases were not obtained and delivered in that time, appellee was under no duty to accept them, and was entitled to recover his money deposited with appellant.
The decree of the chancellor is affirmed. | [
114,
109,
112,
45,
122,
96,
26,
-103,
-37,
-77,
100,
83,
-19,
94,
5,
61,
-25,
121,
-27,
72,
-10,
-77,
99,
86,
19,
-77,
-39,
-49,
56,
-51,
38,
-43,
76,
40,
-54,
21,
-62,
-62,
-51,
92,
62,
97,
-101,
100,
-35,
80,
52,
43,
0,
75,
65,
-122,
-30,
45,
113,
79,
109,
46,
-17,
41,
88,
120,
59,
-113,
127,
6,
16,
68,
-112,
17,
-54,
94,
-110,
112,
9,
-24,
83,
-90,
-58,
116,
13,
9,
8,
32,
34,
35,
101,
-17,
-32,
-72,
39,
-102,
-115,
-89,
-62,
88,
35,
104,
-65,
28,
91,
-111,
84,
118,
-32,
-107,
92,
41,
52,
-117,
-106,
-31,
13,
-87,
-100,
27,
-5,
71,
36,
80,
-51,
-94,
113,
7,
118,
27,
-113,
-15
] |
Hart, C. J.,
(after stating the facts). According to the evidence adduced 'by the plaintiff, oil was allowed to escape from the refineries of the defendant and to flow into a running stream on 40 acres of land used by the plaintiff for watering the cattle on his dairy farm. The evidence for the plaintiff also shows that formerly the oil from the defendant’s refineries had flowed in another direction, and that it might easily be diverted from flowing- into the stream used by the plaintiff for watering- his dairy cattle. Under these circumstances the jury was warranted in finding that the defendant was liable for the pollution of the water in the running stream. Standard Oil Co. of Louisiana v. Goodwin, 174 Ark. 603, 299 S. W. 2.
It is nest insisted that the evidence showed that .the pollution of the stream was a permanent injury to the property rather than a continuing nuisance, and that the court erred in instructing the jury that the measure of damages would be the depreciation in the rental value caused by the pollution of the stream by the defendant allowing the oil from its refineries to flow into it. We do not think the court erred in instructing the jury on the measure of damages. According to the evidence for the plaintiff, the defendant had previously allowed the oil from its refineries to flow in another direction, and could easily have changed the flow of the oil from its refineries so as not to allow it to escape and flow into the running stream on the 40 acres of land used by the plaintiff in watering- his dairy cattle. The plaintiff did not own the land, but had a lease on it during the will of the owner. He used the stream in watering his dairy cattle, and it was suitable for that purpose before it was polluted by the defendant allowing- the oil from its refineries to flow into it. Under these circumstances there was only a temporary nuisance to the land, and the measure of damages in such cases is the diminished rental or usable value of the land. St. Louis S. W. Ry. Co. v. Mackey, 96 Ark. 297, 129 S. W. 78, and Standard Oil Company of Louisiana v. Goodwin, supra.
It is. next insisted that there is no legal evidence to establish the rental value of the land. According to the testimony of the plaintiff, he had between 50 and 75 head of cattle in his dairy. The running stream was amply sufficient to' water these cattle before it was polluted by the defendant. The plaintiff had no other place to water them. The land belonged to the husband of his aunt, and he was given permission to use it as long as he wished to. He testified that the rental value of the land for the purpose of watering the cattle alone was $35 per month. The defendant polluted the stream by allowing the oil from its refineries to flow into it on • April 1, 1925, and continued to do so until the time of the trial in May, 1927. In stating the rental value of the land on which the running stream was located, the plaintiff was not speculating upon the value existing under conditions which he had never observed, but was basing his opinion upon a state of facts known to him. Hence it cannot be said that the evidence is not legally sufficient to support the verdict, or that there is no competent testimony of the usable value of the land for the purpose of watering the cattle.
The judgment therefore will be affirmed. | [
-16,
-2,
-40,
-83,
56,
104,
106,
-40,
69,
-85,
-25,
83,
-19,
-46,
4,
97,
-26,
125,
-11,
75,
-42,
-93,
3,
18,
-41,
-73,
57,
-63,
60,
76,
-26,
69,
12,
48,
-62,
-43,
98,
32,
-59,
-36,
-122,
-60,
-71,
109,
105,
2,
52,
75,
68,
75,
113,
-113,
-29,
47,
29,
-57,
9,
44,
-53,
61,
65,
113,
42,
15,
47,
16,
49,
70,
-108,
99,
-54,
10,
-104,
-79,
8,
-24,
114,
-90,
-122,
116,
43,
-117,
8,
-94,
99,
3,
12,
47,
-20,
-104,
47,
-33,
-113,
-90,
-112,
72,
75,
34,
-97,
-99,
124,
70,
7,
120,
-24,
-107,
95,
-4,
23,
-57,
-106,
-95,
13,
33,
-98,
17,
-53,
-93,
22,
97,
-49,
-86,
92,
69,
116,
-33,
6,
-1
] |
Humphreys, J.
Two separate suits were brought in the circuit court of the Osceola district of Mississippi county by appellees against appellants to recover damages growing out of a collision between two automobiles between 1 and 2 o ’clock a. m., February 5, 1941, on U. S. highway No. 61 in said district and county, on account of the immediate death of Nelson Catalina and Vernon Dean Price, occupants of one of the automobiles, through the alleged negligence of Cal Gossett who was driving the other automobile.
It was alleged in both complaints that at the time Cal Gossett negligently ran into the automobile occupied by Catalina and Price, Gossett was operating an automobile owned by the Phillips Motor Company and was engaged in business for said Phillips Motor Company. It was also alleged that Loyce Donaldson, intervener as a plaintiff, owned the automobile occupied by Catalina and Price.
In the Catalina suit damages were prayed for the benefit of the estate of Nelson Catalina, and for the benefit of his parents, as his next of kin.
In the Price suit damages were prayed for the benefit of the estate of Vernon Dean Price and for the benefit of his mother, as his next of kin. In that case Loyce Donaldson, the owner of the automobile, prayed for judgment for the damage done to his automobile in the collision.
Answers .were filed by appellants in each case denying each and every material allegation therein and alleg ing that the collision occurred solely as a result of the negligence of Vernon Dean Price and Nelson Catalina.
The causes were consolidated for the purposes of trial, and at the conclusion of the evidence appellants requested that verdicts be directed in their favor in each case, which motions were overruled over appellants’ objections and exceptions.
The causes were then submitted to a jury upon the pleadings, the testimony and correct instructions relative to the law of negligence and contributory negligence and to the law governing liability of a master for a negligent act of a servant when the servant is engaged in the business of his master.
The jury returned a verdict in the Catalina case for $2,000 for the benefit of the next of kin as compensation for the loss of contributions and for the benefit of his estate in the sum of $500 to cover funeral expenses.
The jury returned a verdict in the Price case in the sum of $4,800 for the benefit of the next of kin and $200 for the benefit of the estate to cover funeral expenses. The jury also rendered a verdict in favor of Loyce Donaldson, in the Price case, for $150 as compensation for damages to his automobile.
Separate judgments were rendered by the court on each verdict from which an appeal has been prosecuted to this, court by appellants.
Appellants contend for a reversal of the judgments upon two grounds, one being that there is no substantial evidence in the record tending to show that Cal Gossett, who was also killed in the collision, was guilty of any negligence, and the second being that, at the time of the collision, Cal Gossett was not engaged upon any business for appellant, Phillips Motor Company, and that, even if he were negligent, there is no substantial evidence in the record showing that Cal Gossett was, at the time, engaged in the performance of any business for Phillips Motor Company.
There were no eye-witnesses to the collision. All three parties involved were so near dead when discovered that they were speechless and almost breathless. All three died on the scene or while being taken to the hospital. The Gossett automobile was afire, and it would have burned up in a very short time if the first witness on the scene had not extinguished the flame. The collision occurred at about 1:30 a. m. on February 5, 1941, on a gradual curve in U. S. highway No. 61 in the Osceola district of Mississippi county. Prior to the collision the Gossett automobile was being driven by Cal Gossett in a northerly direction, and the automobile owned by Loyce Donaldson, occupied by Catalina and Price, was proceeding in a southerly direction. After the collision within the curve the automobiles were about 150 feet apart and each was headed in the direction from which it was known to have been coming. After the collision each had turned around. The left front fender and headlight of the Gossett automobile was completely demolished and the witnesses said that it was injured all along the left side. The front left wheel of the Donaldson car was knocked off and the body or axle was let down and made a cut in the pavement of considerable length and width and pointed in the direction of the automobile as it skidded and turned over and finally landed on the west shoulder of the highway. The Donaldson car was damaged all over, or, as some witnesses said, “completely demolished.” A few feet north of the cuts in the pavement on the west side of the middle line a lot of glass and dirt was found. A small amount of scattered glass was found on the east side of the middle line of the pavement. A map was prepared and introduced in evidence showing the curve in the highway, the relative positions in which the witnesses found the two automobiles after the collision, the location of the dirt, glass and cut places in the pavement, etc., which map is inserted in this opinion in aid of the statement of facts. (See end of opinion for copy of the map.)
The evidence showed that during the evening before the collision young Catalina and Price were out driving with some lady friends and refreshed themselves with soft drinks. There is evidence to the effect that during the evening Cal Gossett was playing pool and occasionally taking a can of beer.
The undisputed evidence is to the effect that the Phillips Motor Company had sold the automobile to Cal Gossett, and that the contract had been assigned to a finance company, but that he was using the car as an employee for the Phillips Motor Company just as he had been doing before he bought it. At the time of the collision the car had the Phillips Motor Company dealer’s license on it, but it seems that all employees of the Phillips Motor Company operated under this character of license whether the car or cars were owned by the Phillips Motor Company or by the employees.
The place of business of the Phillips Motor Company was in Blytheville. On the day before Cal Gossett was killed, Mr. Phillips, the head of the Phillips Motor Company, gave all of the employees a banquet early in the evening. Cal Gossett and the other employees were there. After the banquet they all went back to the Phillips Motor Company’s place of business and from there each went his own way. The regular hours for employees to work were between 7:30 a. m. and 6:00 p. m., but if one had a prospect he might contact him at any time and at any place. After the banquet, Cal Gossett informed several of his friends that he was going to Luxora to assist his brother-in-law in checking up the pool business preliminary to taking over the financial management of the pool hall. His brother-in-law had been drafted and wanted him, Gossett, to become acquainted with the business so that he could check up on it for him during the time his brother-in-law was in the army. Gossett then drove over to his brother-in-law’s pool hall for that purpose, and during the evening he played some thirteen or fourteen games of pool before his brother-in-law came in. After his brother-in-law came in and they were getting ready to close the pool hall, he and his brother-in-law went to the cash register and checked up the day’s business and his. brother-in-law gave Gossett some instructions concerning how to check up the business and look after it during his absence in the army. After they closed the pool hall, Gossett, his brother-in-law and some others drove out to what was called “The Spot,” some distance from Luxora, to purchase some cigarettes. After purchasing the cigarettes, they drove back to Luxora, and Cal Gossett got in his car and went north on highway No. 61 toward-his home, and it was while on his trip home that the collision occurred, some time near 1:30 a. m. as heretofore stated.
Billy Long testified that his father, Lee Long, wanted to see Mr. Gossett about buying a truck, and that he informed Gossett on the day before he was killed at Blythe-ville that his father wanted to see him, and that Gossett had told him he would see him later that night; that he would be at Luxora and would talk to him.
Lee Long testified that he had sent his old truck to Blytheville by his son for Gossett to look over, and that at the time his son informed him that Cal Gossett would be in Luxora that night; that on that night around 10:00 o’clock he went to the pool hall and saw Gossett, and they walked out on the street and had a talk concerning the exchange of trucks; that they talked a few minutes and Gossett told him what he would do and also told him he would see him the next day; that no deal was made that night and the matter was dropped there.
We think it is questionable that this evidence on the part of the Longs was sufficient to show that Cal Gossett had gone to Luxora for the purpose of attending to any business for the Phillips Motor Company. His primary purpose in going to Luxora from Blytheville was to attend to his own private business in connection with taking over the financial management of the pool hall which belonged to a Mr. Eberdt, his brother-in-law, and that the conversation with Lee Long was an incident. Even according to Lee Long no deal was consummated and the whole matter was passed until the next day. Certainly, after he had this conversation, with Lee Long, he was not engaged in his master’s business while he was playing pool in the pool hall nor while he and his friends drove out to “The Spot” to get cigarettes, which was some distance from Luxora, and it is not contended that he was engaged in any business for his master, the Phillips Motor Company, after he had the conversation with Lee Long.
The court, therefore, erred in submitting the issue to the jury of whether Cal Gossett was transacting business for the Phillips Motor Company at or immediately before the collision between his car and the car belonging to Loyce Donaldson. The court should have peremptorily instructed a verdict in favor of the Phillips Motor Company at its request.
¥e take a different view of the evidence tending to show negligence on the part of Cal Gossett. We think all the evidence tends to show that Cal Gossett was driving northward on the highway, turned his car onto the left side thereof and ran into the Donaldson car and demolished it. We think from all physical facts the jury might have reasonably inferred that the collision was a' result of Cal Gossett’s negligence. It is true there are no eye-witnesses to tell the tale, but this is not required. Negligence may be established by circumstantial evidence. This court said in the case of Arkmo Lumber Company v. Luckett, 201 Ark. 140, 143 S. W. 2d 1107, that: “Negligence that is the proximate cause may be shown by circumstantial evidence as well as direct proof. . . . It will be sufficient if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred.”
It was also said in the same case: “The settled rule, which has been many times approved by this court, is that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions. ’ ’
We think the jury were warranted in finding that the indentations on the west side of the highway, the large amount of dirt and glass found on the west side thereof and the condition and location of the two automobiles after the wreck showed that the wreck occurred on that side of the highway and was caused by Cal Gos- sett in wrongfully driving his automobile onto the west side thereof and colliding with the Donaldson car.
Appellants argue that some intervening car might have wound in and out and struck both cars, but there is no evidence whatever to warrant such a conclusion. The witnesses who appeared immediately after the collision testified that they did not meet any car coming into or going out of the curve. It was suggested that perhaps Cal Gossett drove onto the west side of the highway, across the middle line, to avoid striking some pedestrian, but to say that would be indulging entirely in speculation and, if he had done this, there would have been an eye-witness to the collision.
We think under all the circumstances there is substantial evidence in the testimony to sustain the verdict against Mrs. Cal Gossett as administratrix of the estate of Cal Gossett, deceased.
The judgment is, therefore, reversed and dismissed as to the Phillips Motor Company and affirmed against Mrs. Cal Gossett as administratrix of the estate of Cal Gossett, deceased. | [
-16,
101,
-88,
-84,
59,
32,
10,
58,
-5,
65,
116,
-45,
-17,
-57,
17,
37,
-1,
109,
-43,
107,
-73,
-93,
23,
-93,
-102,
-109,
-7,
68,
-80,
-53,
124,
-13,
76,
40,
-62,
65,
66,
10,
-59,
22,
86,
-78,
-69,
-27,
89,
82,
52,
56,
16,
13,
101,
-114,
-57,
43,
30,
75,
108,
42,
-39,
43,
-63,
112,
-114,
5,
93,
18,
-71,
100,
-102,
-125,
-40,
24,
-104,
-79,
48,
-4,
114,
-74,
-62,
-44,
97,
-103,
8,
-92,
102,
36,
5,
71,
-24,
-104,
14,
-66,
7,
-92,
14,
73,
9,
9,
-66,
31,
122,
80,
13,
114,
-36,
93,
13,
40,
99,
-53,
22,
-127,
-19,
4,
-100,
11,
-53,
23,
54,
113,
-53,
-22,
93,
4,
61,
-101,
71,
-106
] |
Griffin Smith, C. J.
June 21,1941, Leonard L. Kerr delivered to “the ice compartment” of Arkansas Power & Light Company twelve cases of eggs. The appeal is from a .judgment of $108 based upon allegations that the eggs, when stored, were of high quality, and in good condition; that the company’s agreement was to keep them at proper temperature for a charge of ten cents per case per month; that such eggs were not kept at correct temperature “for the reason that when reclaimed they were spoiled.”
The answer pleaded a written contract, by the express terms of which the company was relieved of liability.
A demurrer to the answer, which was sustained, alleged invalidity of the contract on the ground that it contravened public policy. The defendant refused to plead further.
Appellant says in its brief; “Appellee thinks the contract form is a general exemption from liability not only for unknown causes, hut from negligence itself. This we admit. ’ ’
The “contract” is a printed sheet, 4x6% inches, evidently issued in duplicate. Conditions are printed conspicuously, hut in small type easily read. The answer states that plaintiff stored with the defendant a case of eggs, receipt of which was evidenced “by an instrument marked ‘Exhibit A’.” The receipt or contract so filed shows storage of twelve cases, instead of a case. The answer does not deny that ten cents per crate per month was to be paid, although nothing to this effect is to be found in the contract. The demurrer to the answer admits all well-pleaded defenses; and, since the contract or receipt was an exhibit to the answer, it is also admitted. It would be otherwise, however, if the receipt were a mere exhibit, rather than the contract on which the action is founded. But there must have been an oral contract regarding the price to be charged, or a writing not exhibited.
In an action at law exhibits are not parts of pleadings unless the right claimed is founded on the written instrument so exhibited. Euper v. State, 85 Ark. 223, 107 S. W. 179. In equity written instruments filed as exhibits to a complaint, and thereby made a part of the record, will control averments. Cazort & McGehee Co. v. Dunbar, 91 Ark. 400, 121 S. W. 270. An exhibit to a complaint at law may be referred to in order to complete and explain allegations of the complaint. Lindseg v. Bloodworth, 97 Ark. 541, 134 S. W. 959.
The demurrer admits expressed conditions under which the eggs were received, but alleges it was void, and the court so found. The answer alleges, and the demurrer admits, that Exhibit “A” constituted the contract between the parties. The contract undertakes to relieve appellant in three instances: (1) No liability attached if the eggs were not in good condition when stored. (2) Responsibility is disclaimed for condition of the eggs while in storage, and (3) when they were removed.
First. — Condition No. 1 is enforcible. The parties had a right to agree that if impaired foods should be stored, liability for condition when redelivered should not attach to appellant. Chemical analyses would have been required to determine whether deterioration would be progressive, or whether it would be halted, by reason of the semi-refrigeration afforded. Neither the contract nor the pleadings indicates that appellant’s facilities were other than ordinary cold storage where moderately low temperatures were induced by ice, as distinguished from mechanical refrigeration.
Second.- — Condition No. 2 is not enforcible if by it appellant sought to relieve itself from consequences of its negligence. A consciousness that failure to exercise due care will require compensation for injury to person or property is productive of caution and forethought by those in whose control rest the agencies that may cause damage; hence, public policy is involved when one emr ploying another seeks protection through the-instrumentality of contract, although within appropriate limitations not here an issue, conduct and the consequences of physical activities may be circumscribed.
That it was appellant’s purpose to contract against negligence is clear from its answer and brief.
Third.- — Whether appellant would -be liable for condition of commodities at the time of removal depends upon the care -exercised during the storage period. It might also depend upon condition at the time of acceptance — a matter that may, as heretofore stated, be covered by contract.
The judgment is reversed, and the cause is remanded with directions that appellee be permitted to have trial if he elects to allege negligence.
The contract, so-called, was: “Arkansas Power & Light Company. Receipt for Storage. . . . The goods for storage as listed hereunder . . . are accepted with the express understanding that the company is not responsible for their condition while in storage or at their removal; nor for loss or damage by fire, water, storm, or other causes reasonably beyond its control. . . . Conditions accepted by L. L. Kerr.”
It is further argued: “Prom a practical standpoint this court is fully aware that whenever any person suffers a damage to his property, he is always able to find some supposed ground of negli gence on the part of another party. If every time eggs are removed from the ice chambers of the appellant in bad condition, we must stand a lawsuit, with expert testimony necessary on the ground of negligence and natural deterioration and our contract is no defense, then the return does not justify the expense.”
Other conditions of the contract are not involved in this appeal.
American Jurisprudence, v. 12, “Contracts,” pages 688-84, § 193. | [
-14,
-20,
108,
-20,
10,
96,
58,
-102,
82,
-94,
103,
83,
-19,
86,
20,
99,
-29,
105,
84,
106,
-43,
-77,
50,
66,
-42,
-77,
-47,
-41,
53,
79,
-27,
-12,
76,
36,
-62,
-115,
-29,
-54,
-55,
-36,
76,
33,
-71,
-23,
-3,
4,
-4,
48,
-106,
79,
65,
-42,
-9,
44,
-102,
67,
105,
46,
-17,
41,
-31,
-15,
-80,
13,
125,
20,
-110,
102,
-110,
69,
-56,
12,
-104,
57,
56,
-24,
112,
-74,
-58,
116,
47,
-119,
0,
58,
-26,
10,
29,
-63,
-104,
-68,
39,
-97,
13,
-89,
-111,
88,
3,
71,
-66,
-99,
58,
80,
39,
122,
-28,
85,
31,
96,
3,
-85,
-44,
-125,
-113,
-20,
-38,
23,
-17,
-94,
48,
113,
-49,
-90,
92,
69,
122,
-109,
-50,
-46
] |
Holt, J.
August 19, 1942, Dr. B. H. White, president of Desha County Medical Society, filed a petition in the Desha chancery court seeking- to enjoin Dr. M. B. Lynch from practicing- medicine within the state of Arkansas. On the same day, Dr. Lynch filed answer denying- petitioner’s right for the injunctive relief prayed. On this same date a hearing was had on the petition and answer, and the trial court issued a ternporary restraining order against Dr. Lynch in accordance with the prayer of Dr. White’s petition. On the day following this order, August 20, 1942, Dr. Lynch filed in this court petition for writ of prohibition against Honorable E. Gr. Hammock, chancellor of the Desha chancery court. He alleges in this petition that “the petitioner, Dr. M. B. Lynch, was made party defendant in an action in the Desha chancery court in which Dr. B. H. White, president of the Desha County Medical Society, sought to restrain the petitioner from practicing medicine and on August 19, 1942, a restraining order was en tered against this petitioner. The respondent is judge of the court in which said restraining order was issued and is attempting to assert jurisdiction over this defendant in this cause without legal ground.
“The petitioner is a graduate of the University of Tennessee, which is a Grade ‘A’ Medical School, and has served his interneship in a recognized hospital, Baptist Memorial Hospital of Memphis, Tennessee. He is a duly licensed physician and surgeon in the state of Tennessee and is authorized to practice his profession under the laws of that state.
‘ ‘ The petitioner is engaged exclusively in doing medical first aid work near Rohwer, Desha county, Arkansas, upon employees of Linebarger Senne Construction Company, the contractor for the construction of Rohwer Relocation Colony in Desha county, Arkansas, and upon the employees of the subcontractors and collateral contractors engaged in construction of this project. Linebarger Senne Construction Company, its collateral, its subcontractors and collateral contractors are engaged in the construction of a camp or colony for Japanese evacuees; the work of the contractors and the medical first aid work of your petitioner is being performed exclusively upon lands of the United States of America, over which the state of Arkansas, and its subordinate agencies have no control whatever. In doing his medical first aid work upon the said reservation the petitioner is violating no law of the state of Arkansas and no court of the state of Arkansas possesses jurisdiction to restrain or impede him from carrying on his work exclusively upon said jurisdiction. The construction of the improvements upon the site of the colony is being conducted under the authority of the War Department of the United States of America and is a part of the national war effort. The contract of Linebarger Senne Construction Company is with the United States of America, through the War Department, which said contract requires that a practicing physician and surgeon be present on the reservation for the purpose of rendering medical first aid to said employees and the petitioner is present upon the said reservation solely and exclusively for the purpose of fulfilling this part of the contract. The petitioner is not practicing medicine and surgery in Desha county, Arkansas, generally, nor in any other of the seventy-four counties of the state of 'Arkansas. The petitioner does not hold himself out as a practicing physician and surgeon except upon said Government Reservation under the circumstances above set out.
“At the present time there are approximately two thousand employees upon the said Government Reservation engaged in construction, and this large number necessitates-the constant attendance of a physician and surgeon for the performance of medical and surgical first aid on injured employees. There are no hospital facilities upon the reservation and all serious cases, after examination by the petitioner, are immediately referred to physicians who are practicing generally in the state of Arkansas and hospitals which are receiving patients generally. The nature of the medical and surgical work of the petitioner is exclusively in fulfillment of the contract of the contractors with United States of America.
“The answer of the defendant to the action filed by Dr. R. H. White as president of the Desha County Medical Society set up substantially all of the facts alleged in this motion, which facts were by the plaintiff admitted to be true. A copy of the said answer is attached hereto, marked Exhibit ‘1’ and is made a part of this petition.
“The petitioner alleges that the Desha chancery court of which respondent, Hon. E. G. Hammock, is chancellor, is without jurisdiction to proceed against the petitioner and unless a temporary writ of prohibition is issued by this court the defendant will be compelled to refrain from the practice of medicine and surgery upon said Government Reservation to his great personal detriment and to the detriment of injured employees upon the project and to the hindrance of the war effort.
“Wherefore, the petitioner prays for a temporary writ of prohibition directed to the Desha chancery court, Hon. E. G. Hammock, Chancellor, prohibiting the said court from proceeding further in the said suit of the Desha County Medical Society, by Dr. R. H. White, pres ident, and upon a hearing, the petitioner prays that such writ of prohibition be made permanent.”
Demurrer was interposed to Dr. Lynch’s petition for writ of prohibition, by the respondent, and by agreement the matter was heard in vacation before one of the judges of this court, on the petition and demurrer on August 20, 1942, which resulted in a temporary writ of prohibition against respondent, effective until September 28, 1942, when this court reconvened in regular session. On the latter date the cause was submitted on briefs and argued orally before this court. The temporary writ was continued in effect until October 5, 1942. October 5, 1942, this court entered a per curiam order making the temporary writ of prohibition permanent.
The cause is before us at this time on respondent’s motion for a rehearing. The entire record before us consists of the petition for injunction, the answer thereto, the restraining order of the lower court, the petition for a writ of prohibition by Dr. Lynch against the chancellor of the Desha chancery court, respondent’s demurrer to the petition for writ of prohibition, and the order granting temporary writ of prohibition, by one of the members of this court, on August 20, 1942.
Respondent, by demurring to petitioner’s petition for a writ of prohibition, admits the truth of every allegation contained in the petition, which is well pleaded. See Gall v. Union Nat’l Bank of Little Rock, Trustee, 203 Ark. 1000, 159 S. W. 2d 757.
On the record here, the sole question presented is whether a licensed physician of another state, not licensed in Arkansas, who confines his practice to workmen engaged in constructing federal buildings upon property owned by the United States is subject to the laws of Arkansas relating to the practice of medicine and surgery (§§ 10739-10744, Pope’s Digest). Respondent contends that Dr. Lynch would be subject to the Arkansas laws, and petitioner argues that he would not be.
The petition alleges, and by his demurrer respondent concedes, that the land on which Dr. M. B. Lynch confined his practice, called the “Japanese Relocation Colony, ’ ’ is owned by tbe United States, title having been acquired by purchase. The state of Arkansas has yielded jurisdiction over the area in question by § 5644, Pope’s Digest, which provides: “The state of Arkansas hereby consents to the purchase to be made or heretofore made by the United States, of any site or ground for the erection of any armory, arsenal, fort, fortification, navy yard, customhouse, lighthouse, lock, dam, fish hatcheries, or other public buildings of any kind whatever, and the jurisdiction of this state, within and over all grounds thus purchased by the United States, within the limits of this state, is hereby ceded to the United States. Provided, that this grant of jurisdiction shall not prevent execution of any process of this state, civil or criminal, upon any person who may be on said premises.' Act April 29, 1903, p. 364, § 1. ”
Article 1, § 8, c. 17 of the Constitution of the United States provides that congress shall have power “to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; . . . ”
We think there can be no doubt that the buildings constructed by the government on its property to be used for the relocation of the Japanese come within the term “other public buildings of any kind whatever” as used in § 5644, supra, and under the above provision of the United States constitution as “other needful buildings,” in this time of war stress. The Supreme Court of the United States in Surplus Trading Company v. Cook, 281 U. S. 647, 50 S. Ct. 455, 74 L. Ed. 1091, held that certain blankets located within Camp Pike on land owned by the United States and lying within Pulaski county, Arkansas, (now known as Camp Robinson) were not subject to taxation by this state for the reason that Arkansas had surrendered and ceded its jurisdiction over tlie area to the United States, and the court said: “It long has been settled that where lands for such a purpose are purchased'by the United States with the consent of the state legislature the jurisdiction theretofore residing in the state passes, in virtue of the constitutional provision, to the United States, thereby making the jurisdiction of the latter the sole jurisdiction. ’ ’
The War Department of the United States by proclamation No. WD 1, issued August 13, 1942, has designated the property in question here as a military ar.ea. Section 1 of that order provides: “1. Pursuant to the determination of military necessity hereinbefore set out, all the territory within the established boundaries of . . . Jerome Eelocation Project, approximately one mile northeast of Jerome, Arkansas; and Eohwer Eelocation Project, adjacent to and west of Eohwer, Arkansas, are hereby established as military areas, and are designated as war relocation project areas.”
We think the issue here has been decided against respondent’s contention by this court in the very recent case of Young v. G. L. Tarlton, Contractor, Inc., ante, p. 283, 162 S. W. 2d 477. In that case it was charged that appellees, two Delaware corporations engaged at the time in constructing military buildings for the United States at Camp Eobinson, were violating the laws of this state because they had failed to qualify in Arkansas as foreign corporations. This court, however, rejected that contention, saying, “the laws of this state relative to the domestication of foreign corporations have no application for the reason that appellees were engaged in construction work for the United States at a military post under the jurisdiction of the United States.”
In the instant case, it is conceded that Dr. Lynch is confining his practice to the area owned by the United States, administering to the employees of the construction company, which is carrying out a contract which it has with United States under the terms of which it is required to keep available a physician to look after the health of these employees while engaged in the construe tion work tinder the contract. We think it clear, under the above authorities, that the laws, supra, affecting the practice of medicine and surgery in Arkansas do not control and cannot apply to the rights of Dr. Lynch to practice on property, the jurisdiction over which has been surrendered to the United States, and the title to which property has been acquired by the United States by purchase.
Respondent’s motion for a rehearing is denied. | [
52,
-20,
-12,
28,
42,
-63,
8,
2,
82,
-119,
-25,
115,
-19,
-8,
5,
53,
-85,
125,
84,
121,
-25,
-74,
65,
104,
114,
-45,
-37,
-59,
-79,
-49,
-12,
-99,
73,
40,
74,
-48,
-122,
74,
-17,
-36,
-114,
5,
43,
-12,
81,
-112,
48,
47,
84,
11,
113,
31,
-95,
-88,
22,
-53,
45,
100,
-55,
44,
25,
-79,
-100,
22,
-1,
4,
-127,
34,
-104,
3,
-8,
126,
-104,
49,
-107,
-8,
83,
-78,
-118,
116,
67,
-7,
44,
102,
98,
99,
-27,
-27,
-88,
-84,
30,
-65,
-99,
-90,
-94,
105,
96,
-120,
-97,
-99,
121,
16,
-122,
120,
46,
68,
80,
104,
14,
-54,
-74,
-79,
-41,
-76,
-108,
35,
-21,
111,
40,
85,
69,
-106,
116,
71,
123,
-101,
10,
-80
] |
Mehaffy, J.
Plaintiff, a resident of Vían Burén County, Arkansas, 38 years of age, brought suit in the Pulaski Circuit Court against Fones Brothers Hardware Company, a corporation organized and doing business under the laws of the St'ate of Arkansas, and engaged in the business of selling hardware and other commodities in'the city of Little Bock. Among other things it sells fuse, which is used in lighting and exploding dynamite and powder.
The plaintiff, on the 3d day of August, 1926, was in the employ of the Highway Department of Arkansas, and his principal duty was to use dynamite in clearing highways of obstructions. He was, on the date mentionéd, at work on road number 65, in Van Burén County, Arkansas, blowing stumps and rocks from the right-of-way. He cut a piece of fuse eighteen or twenty inches, in length, to which he attached a cap, and to which was also attached dynamite, and this was placed where the obstruction was necessary to be. .removed. He was using Clover Leaf Brand of fuse, which was manufactured by the EnsignBickford Company of Simsbury, Connecticut, and had been using the same brand of fuse for quite a while, and it had a burning speed of one foot to each minute after it was lighted. At the time mentioned in plaintiff’s complaint he cut the fuse eighteen or twenty inches in length, attached the cap and dynamite in the -usual manner, using care, prudence and caution, lighted the fuse, expecting that it would require a minute and a half before the explosion, and this would have given him time to walk to la place of safety. But, when he lighted the fuse, it exploded instantly, causing him to lose the sight of one of his eyes and impair the sight of the other so that he is practically blind, and he suffered other injuries on the head, face and body.
The fuse he was using was furnished to him by the State Highway Department, 'and he alleged that the Highway Department had purchased it from Fones Brothers Hardware Company. It is alleged that Fones Brothers Hardware Company knew the fuse was to be used in blowing stumps and obstructions from highways and that a slow-burning fuse was necessary; that, in selling the same to the Highway Department, the seller impliedly warranted that the fuse was a slow-burning fuse and fit and suitable for the purposes for which it was purchased and to be used, and, by reason of its fail- . ure to furnish this character of fuse, it is .liable to plaintiff for the injury which occurred, resulting in his damag’es.
The defendant answered, denying the material allegations in the complaint.
After hearing the evidence, the court below directed a verdict for the defendant. Plaintiff filed a motion for a new trial, which was overruled, and exceptions saved, and the plaintiff duly prosecuted his appeal to this court.
The evidence on the part of the plaintiff tends to show that he was working for the Highway Department, and was using explosives, and had attached to the dynamite a fuse about eighteen or twenty inches in length. He put the dynamite, fuse and cap in the hole in the usual way, and stuck a match to the end of the fuse, and it exploded immediately, within a couple of seconds, injuring his eyes, destroying one of them, and almost destroying the other. He was also injured about the neck, and his flesh was burned. He had been at work for the Highway Department about ten or twelve months; had been handling powder on county roads for about eighteen years. At the time of the accident he was using Clover Leaf Brand of fuse, and had not used any other brand of fuse during his employment with the Highway Department. He had tested this brand of fuse, and found that it ranged from 45 to 60 seconds to the foot. That is, it would take from 45 to 60 seconds for a. foot of said fuse to burn after being lighted. If this fuse had burned in the usual way he could have been in a place of safety before the explosion. He put in numerous shots, and this is. the only accident he ever had. The explosion was instantaneous when he lighted the fuse. Before this accident his health was good. He had used Hercules and Dupont powder. The dynamite that he used at the time of the accident did not seem to explode quite as quickly as. the Hercules or Dupont. The Highway Department furnished the dynamite and the fuse. Plaintiff had made tests as to the burning speed of fuse several times before the accident, and it ranged from 45 to 60 seconds to burn a' foot. He got the fuse from the Highway Department, but does not know where the Highway Department got it. He was using the same kind of dynamite that he had been using during his employment with the Highway Department, and he prepared his shot according to the instructions that accompanied the dynamite box and fuse, and fixed it just like he had been preparing his other shots.
Other witnesses testified to seeing the accident, and to the effect that the explosion occurred immediately after the fuse was lighted. And they testified to sub stantially the same facts with reference to the accident as was testified to by the plaintiff.
Testimony also showed that the method of ordering material of this kind was that the foreman or man working a section made requisitions on the Little Bock office for materials, and the purchasing department would either ship the material or authorize him to purchase it locally. The shipments of dynamite and fuse were largely from Little Bock, from the State warehouse. The fuse used at the time of the accident was bought from Fones Brothers Hardware Company. They began to use the fuse from Fones Brothers Hardware Company about the first of September, 1925, and had bought fuse from no other jobber since that time. They had always bought the Clover Leaf 'Brand. When they ordered from Fones Brothers Company they expected them to send them the Clover Leaf Brand.
A witness identified the bill of lading, and testified that on April 12, 1926, the Hercules Powder Company delivered about 30,000 feet of Clover Leaf fuse, and witness signed for it on that date. The shipment was delivered on account of Fones Brothers Hardware Company. He receipted for it in the warehouse of the Highway Department. When the requisition was received from Van Burén County, the Highway Department sent the Clover Leaf Brand. This fuse had been placed in the warehouse April 5 by the Hercules Powder Company, for the account of Fones Brothers Hardware Company. There was no other fuse in the warehouse except the Clover Leaf Brand. A slip or billing on the package .showed that the package was shipped through the Fones Brothers Hardware Company of Little Bock.
The appellant insists on a reversal of the judgment, contending that there was an implied warranty by Fones Brothers Hardware Company that the fuse that it sold to the State Highway Department, and which caused the injury complained of, was suitable for the purposes for which it was ordered.
The first case to which appellant calls attention is the case of Neel v. West-Winfree Tobacco Company, 142 Ark. 505, 219 S. W. 326, and quotes from the syllabus as follows:
“In a sale of manufactured goods, where there is no opportunity for inspection by the purchaser, there is an implied warranty that the articles are merchantable and reasonably fit for the purpose for which they are intended. ’ ’
We think the above statement of the law is correct, especially where the manufacturer of goods makes a sale to a person who has no opportunity to inspect, or where a dealer has the goods in his possession with the opportunity to inspect and the buyer has no opportunity to' inspect same, and purchases relying on the seller’s judgment or information and the fact that the seller had the opportunity to know about the quality of the goods. But the above statement is not the rule where the purchaser demands a specified article and it is shipped direct from the manufacturer to the purchaser. In the instant case the Highway Department specified the article it wanted; it purchased the Clover Leaf Brand of fuse. This was a brand that the Highway Department had been using for quite a while, and this particular brand was bought through Fones Brothers Hardware Company. It was not manufactured by appellee, and the particular fuse about which complaint is made was never in the possession of the ¡appellee, hut it was delivered direct to the purchaser, the Highway Department, ¡by the Hercules Powder Company. The purchaser would doubtless have refused to accept any other brand. It knew as much about the quality of the goods as the appellee knew. In the particular instance neither had ¡any opportunity to inspect.
“Where a known, described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, described and defined thing be actually sup plied, there is no warranty that it shall answer the particular purpose intended by the buyer.” "Williston on Sales, second edition, 229.
There would be no reason for the seller to be bound • by an implied warranty when the buyer described particularly the hind of article it wanted to purchase and the manufacturer sent that particular article. It might not be suitable for the use intended by the purchaser, but the seller' would certainly have a right to assume that, when the purchaser described the article, called for a particular hind, that was the hind desired. The purchaser had been using this hind of fuse, hnew as much about it as the appellee knew, it was never in 'the possession of .the appellee, it had no opportunity to examine it, and could not have known ¡any more about it than the . appellant, and there was therefore no reason for an implied warranty.
Appellant next calls attention to Main v. Dearing, 73 Ark. 470, 84 S. W. 640. In that case the court stated:
‘‘Ordinarily the law implies no warranty of quality, leaving that a matter of contract between parties, but there is an exception to this rule as thoroughly recognized as the rule itself. When a manufacturer offers his goods for-sale, where the opportunity of inspection is not present before the purchase, the vendee necessarily relies on his knowledge of his own manufacture. In such cases the law implies a warranty that the article shall be merchantable and reasonably fit for the purpose for which it was intended.”
It will' be noticed that the court said, in the last ease, that the purchaser had no opportunity to inspect, and that he necessarily relied on the knowledge of the manufacturer as to his own goods. The manufacturer, of course, would know, would have an opportunity to inspect and ascertain whether the goods were suitable, but we have no such case here; Fones Brothers Company never had an opportunity to see or inspect the goods complained about at any time. The goods were never in its possession, and the vendee conld not have relied on the knowledge of Fones Brothers Hardware Company.It could not do that, because Fones Brothers Company never had the goods in its possession. One of the reasons why a dealer is held on an implied warranty is that the purchaser has no opportunity of inspection, and he is therefore entitled to rely and will naturally be presumed to have relied on the seller’s skill and judgment. But, as to the particular g*oods sold in this case, the purchaser could not have relied on any implied warranty, because he bought the goods by description, called for a particular brand which the Fones Brothers Hardware Company did not have in stock, and did not see or inspect, and hence could not have known anything about the character of the goods, certainly could not have known any more than the purchaser. It would be unreasonable to say that the Fones Brothers Hardware Company, who had no opportunity to see the goods, had any superior skill or knowledge, and of course the purchaser did not rely and would not have been justified in relying on any implied warranty of Fones Brothers, under the circumstances in this case.
“Even though inspection would not reveal the defect in the goods, it is possible for the buyer to select them, relying upon his own judgment, and, if he does this, the seller, at least in the absence of guilty knowledge, will not be liable on an implied warranty.” Williston on Sales, 2' edition, § 235.
“The rule excluding implication of warranties in sales of known, described and definite articles, is simply an application of the general principle stated in both statutes, that reliance on the -seller’s skill and judgment is a prerequisite to the imposition of an obligation upon him.” Williston on Sales, 2 edition, § 236A.
Appellant next calls attention to the case of Hercules Powder Company v. Rich (C. C. A.), 3 F. (2d.), 12, and quotes from that opinion. In that opinion it is stated that the plaintiff, testifying to his conversation with Bailey, said: ‘ £I .asked the kind of fuse that I would get. He said he would give me safety fuse. I told him that I couldn’t use anything except slow-burning safety fuse with a minute per foot. He says, ‘That is what I will ship.’ * * * So he sold me 500 caps, blasting caps, 500 electric globe caps that is to be used with a powder with which we connect the wire, regular ‘ B ’ caps; that is, the blasting caps supposed to be used by fuse of various kinds and touching off by fire. I told Mr. Bailey that I couldn’t use anything except the slow-burning fuse of a burning speed of a minute per foot. He says ‘That is what you will get.’ ”
There is no such evidence in the case at bar. ■
J. D. MeGlathery testified in substance as follows: That the fuse that appellant, Crow, was using at the time of the accident came from the State Highway Department, shipped through Fones Brothers Hardware Company of Little Bock, Arkansas, and was consigned toL. B. MoGrlathery, at.Shirley, Arkansas. When the shipment of fuse arrived at Shirley the witness carried it out to road No. 65 and placed it in the shop building for use. This shipment of fuse was delivered at Shirley, Arkansas, on the 26th day of May, 1926.
Yanderberg testified that when McG-lathery, county superintendent, made the requisitions on him for fuse, he sent him Clover Leaf Brand. That the fuse he sent McGrlathery was placed in the warehouse on April 12 by the Hercules Powder Company for the account of Fones Brothers Hardware Company. He did not have any other fuse in the warehouse but the Clover Leaf Brand, and from the time he became connected with the Highway Department he had no other brand of fuse except the Clover Leaf Brand. Yanderberg was the storekeeper for the Highway Department, and he shows that this fuse was delivered by the Hercules Powder Company, that it was the Clover Leaf Brand, and that, while it was delivered for the account of the Fones Brothers Hardware Company, it was delivered by the Hercules Powder Company direct to the warehouse of the Highway Department.
The court said in the Hercules Powder Company case, above referred to:
“If the jury believed the testimony of plaintiff, they were warranted in finding that the party selling the fuse —one Bailey — was fully cognizant of the purpose for which it was intended; that plaintiff told him he could not use anything except a fuse of a burning speed of a minute per foot, and that Bailey assured him that was what would be shipped; that such statement Was not one merely of an opinion, but was a distinct affirmation of a fact and intended to influence the sale, and that plaintiff relied on such affirmation in making the purchase. Hence that the words, if used, constituted a warranty.”
We have no such testimony in this case. Fones Brothers made no promise at all, and, as a matter of fact, knew less labout what was wanted than the purchaser. Fones Brothers Hardware Company was not the seller in the sense that they had the goods in store and made a sale direct, but the order was given, sent to the Hercules Powder Company for a particular brand of fuse, land that brand was delivered by the powder company to the purchaser direct.
In the Hercules Powder Company case referred to, the fuses complained of were sent to the branch office at Little Bock for the purpose of sale. Bailey was the agent in charge of the branch office,, and engaged in selling the goods of the defendant, that is, the Hercules Powder Company. The fuses in question in the Hercules Powder Company case were sent to the agency in Arkansas for the purpose of being sold in the business of the agency. The goods in the instant case were not sent to Fones Brothers Hardware Company to be sold. Bailey was the agent of the Hercules Powder Company, and the court held that he had authority to make warranties. In view of his handling fuses of different burning periods, it was said that nothing could be more natural, less out of the ordinary, than to have the authority as such general sales agent to make warranties of a reasonable period for the fuses to burn. He could not otherwise-have made the sales.
It was also said in the Hercules Powder Company ease, quoting from Benjamin on Sales :
“But where a chattel is to be made or supplied to the order of the purchaser, there is an implied warranty that it is reasonably fit for the purpose for which it is ordinarily used, or that it is fit for the special purpose intended by the buyer, if that purpose be communicated to the vendor when the order is given. * * ■ * "When one contracts to supply an article in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the vendor, there is an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied; and the better doctrine is that this rule applies to dealers as well as to manufacturers, and not to manufacturers alone, as the plaintiff in error contends.”
But, as we have already said, there was nothing done at any time, so far as this record shows, by the Fones Brothers Hardware Company that would justify the buyer in believing that Fones Brothers Hardware Company knew anything about the goods or that would justify the buyer in relying on the superior judgment and skill of the Fones Brothers Hardware Company. If a manufacturer or dealer sells an article of this character, and knows the use for which it is intended, the-weight of authority is that there isi an implied warranty that the goods are suitable for such use, and also that the dealer as well as. the manufacturer may be 'bound by an implied warranty. However, we know of no case where a -shipment was made direct from the factory, and buyer described the goods that he wanted, that another would be held liable on an implied warranty simply because the goods were shipped through it.
Appellee discusses the question of whether there could be any liability in this case because the sale was not made to the injured party, and that the dealer is not liable to any persons other than the persons to whom the sales are made. But it is unnecessary to decide that question in this case, because we hold that, under the circumstances and evidence in this case, the Pones Brothers Hardware Company could not'be liable in any event, even to the buyer himself.
’The judgment of the circuit court is correct, and is therefore affirmed. | [
48,
105,
-8,
-116,
56,
-32,
90,
-70,
-45,
-127,
-91,
-42,
-19,
4,
5,
39,
-25,
121,
-44,
122,
-12,
-109,
23,
107,
-126,
-69,
89,
-58,
-79,
-53,
-10,
-44,
92,
52,
10,
85,
-61,
96,
-115,
-44,
-58,
0,
-87,
-32,
89,
90,
-100,
-70,
54,
7,
69,
-106,
-38,
42,
21,
-51,
77,
34,
-23,
-68,
89,
113,
-6,
85,
93,
20,
-127,
22,
-101,
13,
-38,
14,
-104,
49,
52,
-24,
83,
-96,
-63,
116,
33,
-87,
-124,
98,
98,
26,
-103,
-25,
-20,
-56,
23,
35,
-103,
-89,
-88,
105,
3,
13,
-98,
-44,
59,
16,
-106,
122,
123,
85,
81,
40,
-121,
-121,
-80,
-125,
13,
124,
-108,
-109,
-21,
-113,
52,
83,
-50,
-30,
117,
12,
26,
31,
-114,
-9
] |
George Rose Smith, Justice.
Ross was charged by information with the crime of false pretenses, in that he borrowed $2,000 from an Arkadelphia bank for the purpose of buying 29 head of cattle, upon which the bank was to have a lien, but he failed to use the money as he had promised to do. He defended the charge upon the ground that the offense in question must be based upon a misrepresentation of an existing or past fact rather than upon* a promise to be performed in the future. The trial court, rejecting that defense, instructed the jury that the misrepresentation can relate to future conduct if it is accompanied by a present intention not to perform the promise. This appeal is from a verdict and judgment finding Ross guilty and sentencing him to imprisonment for one year.
The court lapsed into error, perhaps being misled by the rule that now prevails in civil cases. Victor Broadcasting Co. v. Mahur in, 236 Ark. 196, 365 S. W. 2d 265 (1963). On the criminal side, however, we still follow the English role that was adopted in Arkansas more than a century ago: “This, as the authorities show, was clearly not a false pretence within the statute, because, to be such, it must have been of some existing fact and not a pretence that he would do an act which he did not mean to do.” McKenzie v. State, 11 Ark. 594 (1851). The California court’s departure from the great weight of authority on the point is of interest, but we do not find its reasoning persuasive. See People v. Ashley, 42 Cal. 2d 246, 267 P. 2d 271 (1954).
The judgment is reversed, and, since the case has been fully developed, the charge is dismissed. | [
34,
106,
-56,
-66,
10,
-32,
-86,
-72,
75,
32,
-9,
18,
-19,
70,
4,
59,
-9,
109,
117,
121,
-44,
-109,
7,
99,
-14,
-69,
-37,
-11,
-75,
-49,
-74,
93,
13,
48,
-62,
-35,
102,
74,
-63,
-104,
-114,
7,
41,
-57,
-15,
68,
112,
107,
16,
15,
97,
-98,
-5,
46,
24,
99,
9,
40,
43,
57,
-64,
-15,
-106,
101,
109,
20,
-95,
37,
-127,
7,
122,
46,
-100,
49,
1,
-8,
122,
-106,
-126,
116,
79,
41,
12,
98,
98,
-96,
117,
105,
-72,
-52,
31,
-41,
-113,
-89,
-108,
64,
11,
63,
-74,
-34,
118,
20,
-121,
124,
116,
21,
61,
108,
3,
-49,
-12,
-110,
-115,
44,
-98,
91,
-41,
55,
33,
101,
-51,
-94,
93,
87,
112,
-101,
-113,
-3
] |
Griffin Smith, C. J.
Nine claims allowed by Workmen’s Compensation Commission were appealed to Sebastian circuit court for the Greenwood district, or to Logan circuit court for the Northern district. All were affirmed. This court was then appealed to. By agreement the causes were consolidated.
Correct determination of the amount due each claimant is the issue.
Section 12 of Act 319, approved March. 15, 1939, referred to the people and approved November 5, 1940, is shown in the margin, the section appearing as a single paragraph.
As stated by appellants, tbe principal controversy involves methods employed by the commission and approved by the circuit courts in determining* “average weekly wages. ’ ’
Frank Hall, Ralph Walker, Joseph R. Hill, Dewey Dacus, and Ira Elmo Bailey were killed. Yess Gosnell, George William Koch, John Sherman Hicks, and Coy Highfield, were injured. All were members of United Mine Workers. Their union had contracts with the various coal companies which provided for a maximum five-day week. In most instances contracts called for a fixed daily wage, but in some instances pay was on a tonnage or yardage basis.
What is the meaning* of average iveehly wages¶
By what process of reasoning, or by what construction, must we gather from § 12 the legislative intent!
A correct assize is of great importance to all of the litigants.
Subsection (h) of § 2, Act 319, defines wages as the rate at which service is recompensed under the contract in force at the time the accident occurs, including the reasonable cash value of board, rent, housing, lodging, or similar advantage received from the employer; also gratuities received in the course of employment from others than the employer, if bestowed with the employer’s knowledge.
Calling attention to introductory words used in § 12— “except as otherwise specifically provided, the basis for compensation under this Act shall be the average weekly wages earned by the employee at the time of the injury ’ ’ —the commission’s opinion- is that where an injured employe worked under a definite contract of hire at a definite daily rate for a definite number of hours a day and a definite number of days a week, ‘ ‘ there is nothing left to determine.” The commission then continued: “All is known that needs to be known to establish the average weekly wage being earned by the injured employee at the time of the injury. ’ ’
And again: “Where there is no such definite contract of hire or no definite rate or definite number of hours a day or definite number of days a week, then resort must be had to the formulas set out under § 12 to determine the average weekly wage. This would also be true when the injured employee was a piece-worker, working by the ton, yard, cord, article, etc., or where there was a variance in daily wages or similar uncertainties requiring determination”.
Appellants call attention to certain known facts which necessarily attach to the character of work involved. The. industry in Arkansas “. . . is of a peculiar nature. These mines produce coal mainly for domestic consumption in various localities throughout the northern and midwestern states. It naturally follows that extent of the demand . . . governs almost entirely. . . . There is demand for the product only in the colder months. This naturally means that in the spring and summer months there is little or no demand for the product of these mines, and as a result they do not produce for the market during these periods”.
Production ordinarily begins about August 1 and continues until March of the following year. Each mine operates an average of 118' days annually. Union contracts with the operators provide that, because of seasonal slack, a joint board of miners and owners may extend, from five to six, the days composing a week in order, as appellants say, “. . . that the industry may be able to work at capacity during the season of heavy orders without being penalized through the payment of overtime. ’ ’
Another custom peculiar to the industry is the frequency with which workers change from one mine to another, “year in and year out.”
Replying to the commission’s holding that certain fixed standards must be recognized, appellants argue there was no definite contract of hire, and no definite daily rate for fixed hours. It is conceded the contracts called for a maximum of daily hours, a maximum number of days a week, ‘£ and even a maximum number of hours a week, and provide that all time worked in excess of such maximum shall be compensated as .overtime”.
Certain exceptions appear in Act 319, notably in §§ 13 and 23. That there are exceptions, say appellants, is justification for their contention that the phrase, “ except as otherwise specifically provided”, found in § 12, has reference to departures from § 12; hence, it is stressed, in supplying the exceptions, it was not intended that subsection (h) of § 2 should form the basis of compensation. But, say appellants, even if subsection (h) had been intended as a method of .determination, it is not applicable to the instant cases because there is no definite contract of hire, etc.
Beginning with the’second word in the first line of the printed Act at page 791, the direction is: “. . . but if the injured employee lost more than seven days during [the fifty-two weeks immediately preceding injury], although not in the same week, then the earnings for the remainder of such fifty-two weeks shall be divided by the number of weeks remaining after the time so lost has been deducted.”
It is appellees’ belief that this class embraces all injured employes who worked within the period of fifty-two weeks preceding injury, but who lost more than seven days. Argument is that it is immaterial whether work was, or was not, continuous; nor was it important that the injured person worked in consecutive weeks. The total number of days actually devoted to the mas- tor’s service is ascertained in weeks, “. . . and the .total earnings for the entire period are to be divided by the number of weeks actually worked.” From this, it is submitted, the average weekly wage constituting the . basis for compensation is ascertained.
The next class falls within the Act’s provision that “When the employment prior to the injury extended over a period of less than fifty-two weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed.”
As to this group, it is appellees’ thought that total earnings during the period of employment is divided by the time applied, computed in weeks; and this, it is claimed, . . gives the average weekly wages, which is the basis for compensation.”
We agree with the commission, the circuit courts, and appellees, that under the contracts between operators and United Mine Workers, definite bases of pay were provided; and if work were discontinued because there was no demand for coal during'several months in each year, this fact is not to be embraced as authority for applying the largest possible divisor and thus reducing the average wage to a figure far below wages actually received by the miners when they worked.
The Act expressly provides that, as to certain classes, the divisor shall be-the number of weeks remaining after time “so lost” has been deducted. The difficulty, therefore, lies in determining what is meant by lost time, or time ‘ ‘ so lost. ’ ’
If we accept appellants’ reasoning, a worker does not lose time when the mine he is serving, and all other mines in the district, cease operating because of seasonal non-demand for coal.
While § 12, as written, may not be the rubric its authors would desire, the underlying purpose seems to have been to determine basic pay — the amount a worker earned. In case of doubt, recourse is had to the average an employe has earned during a fixed period. But where, as in the cases here, uniformity prevails, and the worker’s capacity to earn is equal to what he did earn when employment was available, it is harsh to apply a strict rule of exclusion, the effect of which is to diminish a known basic rate of pay.
It is argued by appellants that when the number of days an employe has worked (assuming his services were intermittent) are divided by five to correspond with a work week, and the number of weeks has been ascertained, the result is not an “average” because the amount such employe receives per day translated into weeks is the determining unit. It is not always possible to deduce • from a writing the clear purpose an author, or a group of composers, had in mind. Whatever the legislative objective may have been, one expression appearing in § 12 rings clear: — “provided, however, that results just and fair to both parties will thereby be obtained.” If this sentence be construed as investing the commission with “roving authority,” answer is that it applies only to those cases where reasonable men would agree that the method of computing wages defeated the law’s obvious purpose.
In Case No. 6783, Hill, as mechanic, received a monthly wage of $150. Inez Hill (wife) was allowed 35 per cent, of the decedent’s salary on her own account and ten per cent, for each of two dependent minor children. The result was $19.03 per week, based on 55 per cent, of $34.61 per week.
Ralph Walker, in Case No. 6806, was employed as a coal-breaker at $5.29 per day. His average weekly wage was found to be $26.45. Payments of $6.61 to the decedent’s father and an equal amount to his stepmother were directed.
Yess G-osnell, in Case No. 6807, was a machine-runner who received $5.51 per day. The weekly wage was found to be $27.55. The order was that he receive weekly 65 per cent, of such sums, amounting to $17.90. '
In Case No. 6808, Joseph R. Hill, a “brasher,” received compensation of $5.29 per day. His average weekly wage was $26.45. The award was 35 per cent, to Ms wife and ten per cent, to each of two dependent minor cMldren, amounting to $15.15. [Fifty-five per cent, of $26.45 is $14,547. It will be presumed that this slight error of 60 cents will be corrected].
In Case No. 6809, Dewey Dacus, as an ordinary miner, was paid $5.29 per day. The average weekly wage was found to ibe $26.45. Compensation of $17.19 per week was allowed — 35 per cent, to the widow and ten per cent, to each of three children.
John Sherman Hicks (Case No. 6811) received a daily wage of $5.29 as an ordinary miner. His weekly wage was ascertained to be $26.45, of which 65 per cent., or $17.19, was payable.
Ira Elzo Bailey (Case No. 6813) worked part of the time on a tonnage basis, and sometimes on a yardage basis. The commission found that during the period of his employment by New Shockley Coal Company, he earned $756.31 in 78 days, the average daily wage being $9.69.
In Case No. 6810 — Koch v. K & S Coal Company— the injured employe had worked 137 days at 80 cents per ton. A new contract was made, calling for 91 cents per ton. Koch had worked seventeen days under the more favorable terms, earning $52.36, or $15.40 per week. It is contended the award of $10.01 — 65 per cent, of $15.40— bears no relationship to the average required by § 12 to be determined.
In Case No. 6812 — New Shockley Coal Co. v. Highfield — claimant had worked for $5.29 per day. This contract was superseded by an agreement that daily pay would be $6.29. Highfield had worked five weeks under the new arrangement. The commission determined that his average weekly wage was $31.45, disregarding earnings under the old contract.
Appellants, in presenting their cases, have conveniently abstracted compensation statutes in other states. Exclusive of the term, “except as otherwise specifically provided”, the Tennessee statute is comparable to our own. In White v. Pinkerton, 155 Tenn. 229, 291 S. W. 448, White, a Vanderbilt University student worked six days during the Christmas season. During other periods he worked Saturday afternoon and at night. The lowest weekly wage paid by White’s employer was $15, the award being on that basis. In modifying final judgment, the court held it was the law’s object to compensate a disabled employe to the extent of fifty per cent, of the amount received for a given number of weeks. It was then said: “Where the court can see that the application of this rule would be unfair, and evidence has been introduced that would justify us in applying some other rule, we would not hesitate to do so. The court must ascertain the average weekly wages of the petitioner by past earnings, and not what he may earn in the future. ’ ’
We do not regard this case as controlling. White was employed incidentally. He was an “odd time” worker, helping himself through college, and necessarily an average had to be ascertained as a basis of compensation. See Bragg’s. Quarry v. Smith, 161 Tenn. 682, 33 S. W. 2d 87, 34 S. W. 2d 714. In that case the petitioner had no record of earnings. He was employed loading rock at so much per car. Duty kept him out of doors. During rainy, or very cold weather, he did not work. Although Bragg had been employed by the respondent for several years, testimony was that he worked when it suited him. He had no regular hours for beginning or quitting. In the opinion the expression appears, “If the-work is discontinuous, that is an element that cannot be overlooked.” The decree was modified by reducing the average weekly wage from $22.50 to $12.50. Carter v. Victor Chemical Works, 171 Tenn. 147, 101 S. W. 2d 462, and Wilmoth v. Phoenix Utility Co., 168 Tenn. 95, 75 S. W. 2d 48, were cited. The Tennessee court said:
“The distinction, given determinative recognition in the Wilmoth case, was that [difference which exists] between loss of time occasioned by chance or accident, such as temporary disability of the employee; and, for example, a temporary breakdown in machinery, or temporary and occasioned interruption or suspension of operations because of bad weather, inadequate shipping facilities, or limitation on the demand for the products. Workers regularly employed in manufacturing, mining, or outdoor construction, habitually lose time occasionally in the due course of their employment because of such incidental happening’s as suggested. These are conditions of such employment, to be expected to arise, and the average earnings of the workers are commonly and naturally affected thereby. His average earnings are necessarily subject thereto.”
An Indiana statute very similar to ours has been construed in its application to miners. Holton v. Jackson Hill Coal & Coke Company, 101 Ind. App. 231, 198 N. E. 805. Holton had been employed by the company since 1926. He was injured July 7, 1933. The mine was idle from April 1 to September 16, 1932. In the opinion it is said:
“Appellant had no other employment or occupation. The fact that the mine was idle, whatever the cause, did not change the nature or character of appellant’s employment as a miner, and that was his employment for 52 weeks immediately prior to his injury.”
As a matter of fact, Holton had been employed only 61 days immediately preceding his injury, or 10.166 weeks. The court held that his average weekly wages was the quotient obtained by dividing $398.74 by $10,166. The coal company’s contention was that the amount should be divided by fifty-two. See Miller v. Binkley Mining Company, 99 Ind. App. 257, 190 N. E. 886.
Under a statute similar to Act 319, the Supreme Court of Alabama held that while Odom worked only 166 days, the applicable divisor was the number of weeks represented by 166 days, and not fifty-two, as the coal company contended. Odom v. Galloway Coal Co., 223 Ala. 118, 134 So. 855.
The Compensation Act affords a remedy substituted for a common law right in certain instances, as to which the constitution of 1874 prohibited the legislature from limiting the amount of recovery. Art. 5, § 32.
By Amendment No. 26 the general assembly was given power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of emplojms, irrespective of defenses formerly available to the defendant. Act 319 is remedial and must be construed liberally to effectuate its purpose.
We do not think the commission’s construction, as affirmed by Sebastian and Logan circuit courts, is contrary to the statute in its application to the industry affected, in the light of facts showing how the mines were operated. While subdivision (h) of § 2 is merely a definition and does not enlarge the claimant’s rights, and § 12 is the so-called yardstick by which compensation is to be measured, we cannot agree that periods of non-operation are not to be counted as lost time, thereby reducing the divisor to the number of weeks remaining, as contrasted with fifty-two.
The most perplexing problem is that presented by claims of injured employes whose rate of pay per day, per week, per ton, or per yard, has been changed, and the increased basis was in force at the time the liability accrued, as in the Koch and Highfield cases.
It is wholly practicable to ascertain the average wages these men received. If the new contract had reduced compensation, Koch and Highfield would have been entitled to include the amount received under the more favorable agreement in arriving at an average. It follows that as to these cases the method of ascertaining average wages was erroneous, and the judgments should be modified as indicated.
We do not think that the commission improperly determined that the father and stepmother were dependents of Ralph Walker; nor were burial allowances incorrectly computed or awarded in any of the cases.
Causes Nos. 6793, 6806, 6807, 6808, 6809, 6811, and 6813, are affirmed.
Causes Nos. 6810 and 6812 must'be modified. They are therefore remanded to Logan circuit court where proper judgments will be entered if the commission files with the circuit court its finding based upon the law as herein declared, and such finding is approved by counsel for appellants and appellees. Otherwise, at the expiration of fifteen days from this date, the mandate will be that the judgments be reversed.
No. 8783. — This is an appeal by Mack Coal Company from a judgment of Logan circuit court affirming the commission’s award of $19.03 per week in favor of Inez Hill, wife of Frank Hill, the latter having been killed December 5, 1940. There was an additional allowance of $175 covering burial expenses.
No. 6806. — Ralph Walker, while employed by Mack Coal Company, was killed January 3, 1941. He lived with his father, Tom Walker, and with his stepmother, Mrs. Ethel Walker, who claimed they were dependents. The commission’s order was that payments of $6.61 per week be made to each of the claimed dependents during continuance of such status, not to exceed 450 weeks.
No. 6807. — Because of injuries to his back, received December 18, 1940, while working for Boyd Excelsior Operating Company, Vess Gosnell was awarded weekly compensation of $17.90, this being 65 per cent, of a determined average weekly wage of $27.55.
No. 6808. — Joseph R. Hill was killed December 15, 1940, while employed by Peerless Coal Company. The commission’s award was $15.15, this being 55 per cent, of a determined average weekly wage of $26.45. There was an additional award of $200 in favor of the decedent’s estate, covering burial expenses. [But see error referred to in body of opinion].
No. 6809. — Dewey Dacus was killed January 3, 1941, while employed by Mack Coal Company. The commission awarded $17.19 per week to Jewel Mabel Dacus and the decedent’s three children. The further sum of $250 was allowed for funeral expenses.
No. 6810. — In this case the commission awarded $10.01 per week in favor of George William Koch against K. & S. Coal Company. Claimant’s right leg was fractured June 9, 1941. The amount allowed represented 65 per cent, of an average weekly wage of $15.40, payments to be made during continuance of disability, subject to limitations fixed in the Act.
No. 6811. — The commission awarded $17.90 per week in favor of John Sherman Hicks and against Carbon Coal Co. Payments were ordered to be made for fifteen weeks and three days for temporary total disability, and twenty weeks for permanent partial disability. Hicks’ left hand was injured.
_No. 6812. — Coy Highfield’s right leg was fractured and his knee bruised August 11, 1941, while he was employed by New Shockley Coal Company. The commission determined that his average weekly wage was $31.45 and allowed $20 per week during disability, subject to restrictions of the Act. There was the further order that all medical and hospital bills in connection with the injury be paid.
No. 6813. — Ira Elzo Bailey was fatally injured March 13, 1941, while employed by Great Western Coal Company. An award of $20 per week was made, together with $250 for burial expenses. It was determined that Bailey’s average weekly wage was $48.45. Of this sum 35 per cent, was for benefit of the widow, and 10 per cent, on account of each of two minor dependents. Maximum payable under the Act is $20 per week.
Section 12. Determination of Wages: Except as otherwise specifically provided, the basis for compensation under this Act shall be the_ average weekly wages earned by the employee at the time of the injury, such wages to be determined from the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by fifty-two; but if the injured employee lost more than seven days during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. When the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, however, that results just and fair to both parties will thereby be obtained. Where by reason of the shortness of time during which the employee has been in the employment of his employer it is impracticable to compute the average weekly wages by the above method of computation, regard shall be had to the average weekly amount which, during the first fifty-two weeks prior to the injury or death, was being earned by a person in the same grade, employed at the same or similar work in the community. Wherever allowances of any character are made to an employee in lieu of wages or specified as part of the wage contract, they shall be deemed a part of his earnings.
It is presumed the statement as to overtime is to be read in connection with the contractual provision heretofore mentioned by appellants: that work in excess of five days without overtime shall be determined by a joint board composed of operators and operatives.
See Gunnells et al. v. Gunnells, 203 Ark. 632, 158 S. W. 2d 54.
Mississippi, alone of all the states, has no workmen’s compensation law. | [
86,
122,
-68,
-19,
24,
96,
10,
-102,
9,
-55,
-89,
119,
-3,
-41,
17,
37,
-93,
41,
-47,
106,
-44,
-93,
19,
75,
-70,
-105,
115,
-59,
-67,
111,
-12,
-35,
79,
48,
10,
-43,
-25,
-30,
-63,
52,
-52,
-116,
-86,
-23,
89,
64,
56,
110,
114,
91,
49,
-114,
-5,
36,
16,
115,
45,
46,
126,
42,
-64,
-15,
-126,
13,
125,
17,
-95,
6,
-98,
7,
-40,
28,
-104,
53,
65,
-56,
80,
-66,
-58,
21,
97,
-101,
12,
106,
102,
32,
-43,
-23,
120,
-68,
62,
-90,
-115,
-92,
-77,
89,
10,
11,
-106,
-103,
122,
84,
6,
60,
-5,
85,
93,
108,
-57,
-113,
-90,
-13,
-113,
108,
-98,
-118,
-53,
-121,
49,
117,
-56,
-86,
93,
71,
122,
-101,
7,
-120
] |
Humphreys, J.
Appellee brought suit in the chancery court of Cross County against appellants to foreclose a deed of trust describing 1006 acres of land on St. Francis River, in said -county, which was executed to Louis Breitling, trustee for the Union Central Life Insurance Company, one of the appellees, to secure an indebtedness of $20,000 for borrowed money, evidenced by notes dated April 3, 1922. Appellant filed an answer denying appellees’ right to recover on the contract, because the appellee corporation had failed to file its charter, or articles of incorporation or association, in the office of the Secretary of State, as required and provided by § 1826 of Crawford & Moses’ Digest, and invoking the penalty imposed by the last paragraph of § 1832 of Crawford & Moses’ Digest, which is as follows:
“Any foreign corporation which shall fail or refuse to file its articles of incorporation or certificates as aforesaid cannot make any contract in this State which can be enforced by it, either in law or in equity, and the complying with the provisions of this act after the date of any such contract, or after any suit is instituted thereon, shall in no way validate such contract.”
The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree in favor of appellees for the amount alleged to be due, and of foreclosure of the mortgage lien, and an order of sale of the lands to satisfy same, from which is this appeal.
The only question necessary to be determined on the appeal is whether appellee- corporation had a right to make the contract and enforce same in Arkansas.
Appellee corporation did not qualify under § 1826 of Crawford & Moses’ Digest to do a loan business in the State before entering into the contract in question, but it had complied with the statutes of the State covering foreign life insurance companies in order to do business in the State, which requirements will be found in §§ 6059‘ to 6065, inclusive, of Crawford & Moses ’ Digest.
Appellee corporation introduced Eobert Eoudebush, its financial agent, who testified that it was authorized to do business- in the State of Arkansas for the entire year of 1922 and at all times since. .He attached the last certificate of compliance, in form and substance like the others, to his testimony as Exhibit A, which is as follows:
“State of Arkansas
Department of Insurance and Revenues Little Rock.
Certificate of Compliance.
“I, W. E. Floyd, Commissioner of Insurance and Revenues, do hereby certify that the Union Central Life Insurance Company of Cincinnati, Ohio, is duly authorized under the laws of this State, with a paid-up capital of $2,500,000, and the records of our office show that the company was authorized to transact business in Arkansas for the year 1922,....................................($........................) and is authorized for the year ending March, 1927, to transact the business of life insurance, insurance as specified in, its charter on file in this department, and provided for by the insurance laws.
“In testimony whereof I have hereto subscribed my name and affixed my official seal at the city of Little Rock, this 7th day of June, 1926.
“W. E. Floyd,
(Seal) ‘ ‘ Commissioner of Insurance and Revenue
“By Claud Duty,
“Deputy Commissioner of Insurance and Revenue.”
It will be observed that this certificate authorizes appellee corporation to do life insurance business in Arkansas in accordance with the provisions of its charter on file in said department. Under the rule that courts will take judicial notice of documents of this nature, we have examined the charter and by-laws filed by appellee corporation in the Insurance Department, and we find that article 6 of its by-laws authorizes its executive committee, under the direction of its board of directors, to invest the funds of the corporation, make all loans, and do such other business as the board may direct.
The decree is therefore affirmed.
Smith, J., concurs in judgment. | [
52,
109,
-8,
44,
-86,
-32,
56,
26,
90,
-96,
37,
83,
-5,
-50,
69,
77,
-27,
-67,
101,
120,
-43,
-78,
55,
104,
-46,
-77,
121,
-59,
-80,
91,
-12,
-42,
72,
57,
-54,
-43,
-58,
-62,
-51,
28,
78,
8,
11,
108,
-39,
64,
48,
-21,
112,
79,
69,
-97,
-13,
-95,
29,
74,
77,
46,
107,
45,
88,
56,
-102,
-51,
127,
7,
17,
101,
-104,
33,
-54,
-104,
-104,
113,
9,
-24,
115,
38,
-122,
84,
75,
25,
8,
38,
103,
10,
-128,
-49,
-100,
-104,
46,
-18,
29,
-122,
-94,
120,
74,
9,
-66,
-99,
92,
20,
5,
-10,
-18,
-124,
-98,
108,
7,
-49,
-42,
-93,
-97,
-8,
-108,
3,
-17,
11,
-80,
117,
-50,
-32,
93,
71,
50,
-101,
14,
-15
] |
Carleton Harris, Chief Justice.
Charles Edward Townsend, appellant herein, was convicted in the Municipal Court of the city of Helena on four misdemeanor charges growing out of a disturbance on the main street of that city. These convictions were appealed to the Circuit Court of Phillips County, and the combined charges were tried on May 23, 1967, before a Phillips County jury. Townsend was found guilty of public drunkenness, disturbing the peace, resisting arrest, and assaulting an officer. On the first two counts, he was fined $25.00; on the third count he was fined $50.00 and given thirty days in the Helena jail, and on the final count was fined $75.00, and given six months in jail. From the judgment entered on this verdict, appellant brings this appeal. For reyersal, three points, all relating to the defense of insanity, are raised, the contention being that Townsend was insane at the time of the commission of the offenses.
It is first asserted that the court erred in denying appellant’s motion for an order directing the Superintendent of the Arkansas State Hospital to deliver to appellant’s attorney and doctors all records on file with the hospital which pertained to appellant. The background of facts preceding this motion is as follows:
On January 6; 1966, eight or nine days after Townsend’s Municipal Court convictions, appellant’s mother, Beulah Ollway, called the constable of Claybum Township, P. A. Mays, and, according to the constable, reported that her son was acting “peculiar,” and was threatening bodily harm to himself; the mother desired that he be taken to the State Hospital. Mays, though obtaining no order of commitment, took appellant tb the hospital where he was admitted. After Townsend stayed thirty days, the constable returned him to his home. This evidently occurred during the early part of February, 1966, but the matter of insanity was not mentioned until the filing of this motion, over a year later. The motion reads as follows:
" That the defendant herein is charged with the misdemeanor. That the defendant voluntarily went to the State Hospital for mental observation and he was returned as sane; that the defendant has entered a plea of insanity and it will be necessary to have access to the files of the State Hospital in order to properly prepare himself with the proof of insanity.”
The order directing the superintendent to deliver the records was then prayed for.
It was not error for the court to refuse to grant this motion. Townsend had not been committed to the hospital, but had gone on his own accord. There is no reason to believe that he could not have obtained .the records himself, and certainly, without a showing that this could not be done, there was no reason for the court to order records of a private examination, i. e., not made under court order, to be turned over to appellant’s attorney and doctors.
It is next asserted that the “court erred in not committing the Appellant to Arkansas State Hospital when he pleaded not guilty by reason of Insanity as required by Arkansas Stat. 43-1301 [Repl. 1964].” This statute provides that whenever a prosecution of any crime has been instituted in the Circuit Court by indictment or information, and the defense of insanity is raised, “the judge shall postpone all other proceedings in the cause and shall forthwith commit the defendant to the Arkansas State Hospital for nervous diseases, where the defendant shall remain under observation for such time as the court shall direct, not exceeding one month.”
However, in 1949, Act 256 was passed, such act comprising Ark. Stat. Ann. § 43-1304 through 1309 (Repl. 1964). Section 43-1304 provides the procedure to he followed when a defendant is informed against or indicted on á felony charge (rather than crime); the statute likewise largely places the question of whether a defendant should be committed within the discretion of the trial judge, rather than making the committal requirement mandatory.
The court did not commit error. In the first place, the defendant was not charged with a felony. "We are aware of no case, and none lias been pointed out to us, in which even § 43-1301 has been construed to cover misdemeanors. But if that was the intent of the people, it certainly was changed by Act 256 of. 1949, for Section 7 of said act repeals all laws and parts of laws in conflict, and Act 256 definitely relates only to felonies.
In the next place, no motion or request for an order of examination was filed in the Circuit Court; nor was the court asked to appoint two doctors to examine appellant as a matter of determining if there were reasonable grounds to believe him insane. Summarizing, we hold that the statutory requirements, relative to committing an accused to the State Hospital fior observation, apply only where a defendant has been charged with a felony, and furthermore, that the court is given discretion in issuing such an order, as set forth in § 43-1304.
Finally, it is urged that the court erred in instructing the jury that there was not sufficient evidence “to sustain a verdict of insanity.”
There was no error in this instruction. What was the proof offered by appellant on the question of insanity? Creole Hall, a sister of Townsend, testified that she and her brother had formerly lived in Milwaukee, Wisconsin, and that appellant was admitted to the Milwaukee Health Center in 1960, staying there almost a year; he was then released to her custody, but was readmitted in 1962. Thereafter, he was again released, and returned to Ms home in Phillips County. The following statement was offered in evidence:
CHRIS J. BUSOAGDIA, M.D.
MEDICAL DIRECTOR ex 2-573
TO WHOM IT MAY CONCERN: June 7, 1962
RE: Charles Townsend
Hosp. No. 08-46-76
Mr. Charles Townsend was discharged from this hospital on June 7, 1962 and received a ten day supply of medication. Upon discharge he was ion Thorazine mg 100 q.i.d.
Very truly yours,
Bernice C. Fabian
(Miss) Bernice C. Fabian
Psychiatric Social Worker
BCF: AW
Dictated by
Michael Yatso, M.D.
Staff Physician
This was the only documentary evidence offered and there was apparently no effort by appellant to obtain any records from this hospital, or to take the deposition of any of the people mentioned in the statement. It would seem that this could have been done without great difficulty or expense.
Certainly there is nothing in the statement, nor in the testimony of the Sister that establishes that this man was insane at the time of the commission of the offenses of which he wás convicted; to the contrary, it would appear that, if he had mental difficulties at the time of entering the Milwaukee hospital, his condition in June of 1962 was such that he was eligible for release.
It has been , earlier pointed out that the transcript does not reflect that any effort was made by appellant to obtain his records from the Arkansas.State Hospital; nor is it shown that he endeavored to take the deposition of any doctor theréin; furthermore, the motion (earlier mentioned) filed on behalf of appellant sets out that he was “returned ás sane,” and there is nothing in the record to denote that the doctors found him otherwise when he voluntarily presented himself for admission. In fact he was only kept at the hospital for thirty days, which, in itself, somewhat indicates that no evidence of mental illness was found. The only other testimony that, in any way, touches upon the question of mental incompetence was that of appellant’s mother. She stated that, “Here of late he would have trouble with his head. His head was giving him lots of trouble and I had tried different tablets for his pain and they' didn’t help him and he was talking about killing himself, that was why I had him put there [State Hospital] . ’ ’ She said that she had taken her son to a doctor (about three months before the Circuit Court trial), and the doctor had given Townsend “nerve tablets, rest tablets.” The testimony was insufficient to raise the issue of insanity.
Finding no reversible error, the judgment is affirmed.
There was no contention that he was insane at the time of trial.
In March, 1966, appellant had filed a petition for removal to the United Spates District Court, alleging violation of his constitutional rights, but in the latter part of April of that year, the federal court ordered the cases remanded back to the Phillips County Circuit Court. An appeal was attempted to the United States Court of Appeals for The Eighth Circuit, but was subsequently dismissed. The proceedings in the federal courts probably account for the delay in bringing the cases to trial in the Circuit Court.
Though this motion states “that the defendant has entered a plea of insanity,” it appears from the record that this was the first mention of such a plea.
This section is part of Initiated Act No. 3, adopted by the people in 1936.
Technically speaking, it is doubtful that the prosecution was “instituted” in the Circuit Court, since these were appeals from the Municipal Court; however, we treat the cases as though commenced in the Circuit Court.
“Section 43-1304: Whenever a defendant has been held for trial by a magistrate, informed against or indicted on a felony charge and the defense of insanity is to be made an issue in his behalf, such defendant, or some person for him, shall file in the office of the clerk of the Circuit Court, a motion or request for an order of examination and the clerk shall immediately give notice in writing of the filing thereof to the Prosecuting Attorney or his deputy; and such motion or request shall be immediately presented to the Circuit Judge, who is hereby authorized to act upon the request during vacation of such court or during any session in another county. If the court has reason to believe that the defendant should be examined and observed by reason of the suggestion of' the Prosecuting Attorney or other court official or those interested in the defendant, he may enter such order on his own motion; however, if the defendant be held for trial, informed against or indicted at a time more than thirty [30] days prior to the opening of .the first term of court, after his having been legally charged, or prior to any adjourned day of said court at which an adjournment was made prior to such defendant’s having been held for trial, informed against or indicted, and the issue be not raised more than thirty [30] days prior to said convening, the court shall exercise his discretion in the granting of an order for observation and examination of the defendant in the Arkansas Hospital for Nervous Diseases and shall not be required to enter an order committing, the defendant for such observation and examination unless and until the defendant shall have been examined by two [2] reputable doctors of medicine appointed by the court and the court informed by them that there are reasonable grounds to believe the defendant insane. In such cases the examining fee for such doctors shall be Ten Dollars [$10.00] each, to be paid by the defendant, unless he shall be a pauper and shall have made and filed a pauper’s oath, or unless said physicians shall report that there are reasonable grounds for believing the defendant insane, in which- cases said fee shall be taxed as costs.”
Section 43-1301 was part of an initiated act, but the General Assembly in enacting Act 256 in 1949, passed the measure by a 2/3 vote. The vote in the Senate was 25 to 1, with 9 not voting, and the House vote was 67 to 10, with 23 not voting. This was sufficient to repeal any conflict. See Amendment No. 7 to the Arkansas Constitution.
An interesting article appears in 11 Ark. L. R. 124-125, by Dr. Robert A. Leflar, Distinguished Professor of Law, and a former member of this court. Relative to this feature of the case, Dr. Leflar states:
“The only major change in this procedure, since 1936, was made by the 1949 legislature. There had come to be abuse of the compulsory feature of the examination requirement by sane defendants who, desiring postponement of their trials, would at the last minute plead insanity thus compelling the court, instead of going forward with trial, to send the defendant to the State Hospital for a useless examination. The 1949 enactment minimized this dilatory device by requiring that the defendant raise the issue by motion or request at least thirty days before the beginning of the next term of court, otherwise permitting the court in its discretion to commit the defendant for examination only if there be reasonable grounds for believing that the defendant might be insane, the court being allowed to appoint two reputable physicians to advise it in the matter. Since 1949 there appears to have been little abuse of the procedure.” , | [
48,
-22,
-40,
30,
27,
97,
42,
28,
83,
-13,
-12,
115,
-85,
-43,
69,
113,
99,
127,
116,
121,
-19,
-89,
55,
99,
-78,
-13,
57,
-59,
-77,
77,
-20,
-12,
77,
96,
-54,
49,
-126,
72,
-29,
-44,
-114,
-111,
-119,
64,
81,
-112,
45,
56,
16,
15,
49,
30,
-62,
46,
20,
-33,
73,
44,
-55,
60,
80,
27,
-100,
23,
-17,
54,
-96,
6,
-101,
-123,
80,
60,
-39,
49,
4,
-8,
51,
-94,
-126,
116,
77,
-103,
12,
100,
98,
1,
29,
-57,
-32,
-23,
31,
-10,
-99,
-89,
-104,
65,
65,
77,
-97,
-35,
118,
20,
11,
-4,
-3,
37,
116,
40,
-63,
-50,
-106,
-95,
-49,
60,
-106,
-14,
-21,
37,
96,
113,
-50,
-30,
92,
87,
115,
-101,
-90,
-108
] |
Griffin Smith, C. J.
J. L. Taylor, restaurateur of England, was killed by appellant in circumstances which resulted in a jury finding that the accused was guilty of murder in the first degree. Judgment was that he be electrocuted.
Two errors are argued: (1) The act was justified as a measure of self-defense because appellant was being assaulted by Taylor and his grown son, Robert, each of whom was wielding a wine bottle. (2) If a crime was committed, it was not first degree murder, and the court should have instructed to that effect.
The restaurant, or cafe, operated by Taylor was partitioned in such a way that whites and Negroes could be served and segregation maintained. Taylor had a wife and six children. They utilized the back of the building as living quarters.
Sanford, sixteen years of age, and Robert, twenty, assisted their father in serving customers with food and’ drink. Sanford testified that appellant entered the cafe -after nine o’clock at night and ordered coffee and a sandwich. He paid for the sandwich, but did not pay for the coffee. Another Negro loaned appellant half a dollar and witness put forty-five cents on the counter near appellant’s plate. Appellant kept insisting he wanted forty-five cents; whereupon Sanford pointed to the money and said, ‘ ‘ shut up and be quiet. ’ ’
Appellant began cursing, punctuating his profanity with the statement that “No white man is going to tell me what to do.” Appellant then tried to cash a check to procure money with which to pay for his coffee. Sanford took the check to Robert, who said there wasn’t money to spare. After fifteen minutes appellant left, still cursing. A short time later he returned, accompanied by another Negro. Again appellant sat down and began cursing. Sanford’s father then went to appellant and told him that if he didn’t quit swearing he would have to leave. Appellant left, but returned in fifteen minutes with another Negro, who had nothing to do with the disorder.
Appellant ordered a bowl of stew and began eating. He remained quiet for some time, then resumed his boisterousness. Sanford says his father told appellant he didn’t want any more cursing because there were customers present. Additional testimony is quoted in the footnote.
Robert Taylor’s testimony was that Ms father had a pint bottle of wine in his hands (presumably in response to appellant’s request to be served), but told Luckyado to get out if he couldn’t behave. Appellant then used an extremely offensive expression. The witness also testified: “Daddy started to hit Luckyado with the bottle, and he started shooting. ... I couldn’t tell what he was going to do with his right hand until he pulled it up and pulled the gun. My father missed the Negro when he struck at him with the wine bottle. He shot three times before I got to him. ’ ’
On cross-examination Robert admitted he testified at the preliminary hearing that appellant was sitting on a stool, and: — “I started toward him when he made a remark and hit at him and missed. My father came out with a beer bottle and he shot and broke it and killed my father.”
Is the evidence sufficient to sustain the verdict of first degree murder?
Appellant seems to have been seeking trouble. His conduct in returning to the cafe twice after having demeaned himself in an offensive manner indicates a wilfullness of purpose. He did not testify; hence we are dependent upon other witnesses for essential facts. Testimony of Sanford and Robert Taylor is susceptible of the inference that appellant, while sitting before the counter, held a drawn pistol in his lap, concealed in such manner that the Taylors could not know that Luckyado was waiting reaction to his own provocative conduct for an excuse to carry into effect the murderous design he entertained.
The verdict finding that appellant acted wilfully, feloniously, with malice aforethought, and with premeditation and deliberation, can be sustained only on the theory that Luckyado’s purpose was to create the situation he took advantage of. We are unable to say there was not sufficient evidence to sustain this construction of appellant’s acts, and the .judgment must therefore be affirmed. It is so ordered.
“He didn’t say anything, but laughed at Daddy, and his eyes ‘blurred’ around. ... I saw Robert take a bottle of wine in his hand, and Daddy took a bottle of wine off the counter and held it in his hand. The Negro asked him if he had any other kind [of wine] and Daddy told him that was what he had. Robert told him if he wanted anything he would- sell it to him, but if he didn’t want anything, and couldn’t behave, he would have to leave. Luckyado then said to Robert, ‘No ... is going to tell me what to do.’ He was talking right across the counter from Robert. He had one hand in his lap and the other on the table. His hand down in his lap was hidden behind the counter. Robert drew back with the bottle of wine and struck down, and Luckyado jumped back and the wine bottle went on the floor. My father went around the counter. Robert jumped over it. Luckyado shot three times. One shot hit Daddy in the leg and he kept on going backwards. Robert tried to get in between my father and the Negro, but didn’t until Daddy dropped his head and staggered toward the back door and fell. My father did not get his hands on Luckyado. Robert got hold of the gun after three shots had been fired. He jerked the weapon out of Luckyado’s hands, and the Negro ran.” | [
-16,
-22,
-56,
-34,
24,
32,
8,
-68,
-47,
-62,
-25,
115,
-23,
-43,
4,
105,
-11,
77,
85,
41,
-108,
-109,
7,
-94,
-14,
-13,
-45,
-47,
-111,
108,
-10,
-3,
12,
112,
-54,
89,
-25,
74,
-31,
-10,
-116,
-128,
105,
-31,
-13,
18,
48,
58,
70,
7,
53,
12,
-89,
46,
24,
-51,
-55,
44,
73,
-85,
80,
-16,
-54,
7,
-99,
80,
-78,
39,
-66,
7,
-38,
28,
26,
53,
32,
104,
115,
-108,
2,
92,
125,
-115,
12,
98,
114,
50,
19,
-110,
-31,
-103,
-81,
110,
-115,
-89,
-99,
105,
3,
76,
-68,
-97,
126,
-108,
14,
-48,
-9,
93,
25,
32,
1,
-49,
-76,
-125,
-19,
-88,
-42,
90,
-29,
2,
0,
97,
-52,
-86,
86,
101,
124,
-37,
-114,
-107
] |
Kirby, J.
The driver of an automobile or motor vehicle is bound to the exercise of ordinary care in the operation thereof for the safe transportation of his guests and other passengers and to avoid personal injury to them, and this duty extends to all such passengers, whether guests by sufferance, invited or self-invited. Black v. Goldwebber, 172 Ark. 862, 291 S. W. 76, 2 R. C. L. 1183; Huddy, Automobiles, 117, § 18; Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855, 859.
There are two acts of negligence alleged in the complaint; the driving of the car at an excessive and dangerous rate of speed, and the handling of it in its operation in a careless, negligent and dangerous manner, and it is complained that some of the instructions given for the appellee disregard altogether.one of the charges of negligence.
Instruction No. 11 allowed the jury to find for the defendant if they believed from the evidence that the plaintiff’s injury was caused by the condition of the road at the place of the wreck, and not from the high rate of speed it was being driven, if a person of ordinary experience and sagacity could not have foreseen that the accident might occur.
Under instruction No. 14 they were told, if they found an automobile was approaching the one in which plaintiff was riding from an opposite direction, and that it was necessary for defendant to drive to the side of the road in meeting said automobile, and that loose gravel on the side of the road where the defendant necessarily drove caused the car to skid, without the fault of the defendant, and that the wreck of the automobile was caused thereby, they should find for the defendant.
These instructions disregarded the alleged negligence in operating the car at an excessive and dangerous r;ate of speed as combined and concurring with the operation of the car upon the bad road, and were .'both erroneous. If the injury was caused by the alleged negligence of operating the car at a high and dangerous rate of speed on the bad road, or- in turning out on the loose gravel to avoid the oncoming car, the defendant would still have been liable for the injury.
It is well settled that negligence, in order to render a person liable, need not be the sole cause of the injury, and that one is liable if his negligence concurred with an inanimate cause producing it. The negligent act or omission must be the cause which produced the injury, but it need not be the sole cause, nor the last or nearest one. The law will regard the proximate as the efficient 'and responsible cause. Of course, no injury could have resulted from the bad condition of the road or the loose gravel unless the car was being operated thereon, and its operation at the place and in the manner might have been negligent because of such bad condition, even though it had been driven at a much lower rate of speed than alleged; in other words, ordinary care in the operation of the car required the driver to take into consideration the existing bad condition of the iroad over which he was driving.
Appellee stated that the road was new, had just been completed, and there was no watchman on it since the bridge had burned out, and there was a curve where ihe accident happened, something like a mile from the creek, and he was almost around the curve, “and I saw the lights of a car coming, and I got out of this little place where the tracks had been running, and when I did I got over the side, and my hind wheels skidded, and that gravel had not been packed, they just throwed it up there on the bed of the road; they did not subgrade, and all I could account for is that the hind wheel's got out of the ruts and skidded in that loose gravel, and my car turned right square to the left, and I like to have gone over in the ditch to the left, and then I turned to the right, and that is when the car turned over.”
The court also erred in giving defendant’s requested instruction No. 8, telling the jury that, if they believed from the evidence-that plaintiff got into the defendant’s automobile knowing he was in such an intoxicated condition' as to make him unduly reckless in the driving of the automobile, he assumed the risk of riding in the automobile under such conditions, and cannot recover for any injury caused thereby. -This instruction was abstract, defendant’s, intoxicated condition not having- been pleaded, nor any risk assumed by plaintiff on account of it, and the evidence offered to show such condition was objected to, and the instruction disregards altogether appellant’s contention that, he only consented to ride around the block to the restaurant, in accepting the invitation and getting into the car.
The instructions relative to the settlement and release were also erroneous. No. 4 -unduly stresses the question, and told the jury they were called upon, first, to determine whether there had been a settlement of the claim for damages, and that they need not consider either the negligence of the defendant or the extent of the plaintiff’s injuries until they had decided the question. Instruction No. '2 told the jury that, if the defendant went to the residence of the plaintiff, and plaintiff offered to accept from the defendant the sum of $400, or any other sum, in full settlement “of any claims that he might have against the defendant for damages,” and that, pursuant to said agreement, the defendant paid said sum to the plaintiff, he was bound by the settlement, and could’ not recover, notwithstanding that they, the jury, might believe the settlement was improvident and unwise.
The plaintiff testified that the defendant wanted to pay certain hospital bills and expenses, which he was entitled to, specifying them, as part of his-damages if he recovered, amounting to $400, and that he permitted him to do so. That nothing was said about a settlement of his entire claim for damages, and that he had no intention of doing so, and did not make any settlement of it.
Said instruction No. 2 was misleading, and the jury could have understood from it that," if he settled any claim or any part of the damages,'he could not recover in the suit, and especially was this true since the court had laid so much stress on. the question of settlement, having 'told the jury to first determine whether a settlement had been made, and not to regard either the negligence of the defendant or the extent of the plaintiff’s injuries until they had decided the. question of settlement. Of course, if pláintiff had made, without-fraud or imposition, a full settlement of his claim for damages for $400, and accepted -the payment thereof-, he would have been bound thereby, and could not have recovered anything further, as the court told the jury, in instruction No. 3 given at appellee’s request.
For the errors designated the judgment is reversed, and the cause remanded for a new trial. | [
-14,
104,
-104,
-81,
24,
96,
56,
88,
-47,
-107,
-89,
19,
-17,
-63,
21,
39,
-9,
127,
-47,
43,
-11,
-93,
23,
-126,
-14,
19,
115,
7,
-121,
-54,
118,
-4,
77,
48,
-54,
-107,
-121,
73,
69,
-34,
-122,
14,
26,
-7,
-103,
35,
-16,
126,
-108,
77,
99,
-97,
-61,
46,
43,
71,
45,
110,
73,
-91,
-45,
96,
-35,
15,
122,
18,
-77,
36,
-67,
39,
124,
12,
-104,
51,
8,
-8,
48,
-94,
-110,
-42,
109,
-101,
-104,
98,
102,
33,
1,
105,
-72,
-104,
46,
-30,
47,
-90,
-66,
57,
9,
11,
-105,
29,
91,
48,
14,
122,
-6,
85,
93,
96,
3,
-117,
-112,
-95,
-19,
112,
-2,
-111,
-21,
13,
48,
113,
-116,
-42,
86,
5,
82,
-101,
-41,
-122
] |
Smith, J.
On January 1, 1917, the Ozark Mutual Life Association, hereinafter referred to as the Association, issued two certificates of insurance to Mrs. Mary E. Beavers, in which her son, Van Beavers, was named as beneficiary, and at the same time issued certificates of insurance upon the lives of Van Beavers himself and his wife.
On November 9, 1926, a merger agreement was entered into between the Association and the American Insurance Union, hereinafter referred to as the Union, by the terms of which the Association transferred all its assets to the Union, which company assumed the liabilities of the Association, and agreed to, and did, reinsure all members of the Association who were then in good standing.
After this date the premiums on the certificates issued to Beavers -and his wife and mother were sent, by direction of the Union, to Fred Van "Wagner, at Mena, Arkansas, which had been the home office of the Association, and Van Wagner, after receipting for such payments, remitted them to the home office of the Union, which is in Columbus, Ohio.
The rules of the Association required that payments should be remitted by the 20th of the month in which tlie premium was payable, but Beavers testified that he rarely remitted earlier than that date, but oftener later, and that some of his remittances had been as late as the 10th of the following month, and that none of these payments had been refused and the certificates had never been declared lapsed.
It was the custom of Beavers to include in a single remittance the premiums on his own policy and that of his wife, and on both of the certificates of his mother, but he failed to make the remittance to cover the premiums for July, 1926, until the 2d day of August. Upon the receipt of the remittance to cover the July assessments, he was notified that it would be necessary to sign and return reinstatement blanks, which were inclosed for that purpose, before the premiums would be received.
Mrs. Beavers was unaible to write, and her son attended to all her correspondence, and had charge of her insurance and the payment of her premiums, and on the 7th day of August the reinstatement blanks were filled in and returned. Those relating to the certificates of Mrs. Beavers were signed by her by mark, and the signature was not witnessed by the person who had. signed her name.
In the meantime, notices had been mailed from the Mena office calling for the August premiums. Mrs. Beavers sent sufficient money to pay. the July premiums and the reinstatement fees, and later paid the August premiums. This remittance was made on August 7,1926, and pinned, to the reinstatement applications was a note to the effect that,’ unless all the certificates were reinstated, none should be, and it was requested that the money for this purpose be returned if all the certificates were not reinstated. It is not questioned that Beavers and his wife were reinstated, and they thereafter continued to pay their premiums for a period of several months. The money to pay the August premiums on all the certificates was duly received, and these premiums were marked “paid” by the Union on August 14,1926.
Mrs. Mary E. Beavers died August 14, 1926, and proof of her death was duly made and received by the. Union on August 30, 1926, whereupon Mr. Beavers was advised that his mother had not been reinstated, and on this gTOund liability on her certificates was denied. Thereupon this suit was brought, and a verdict in favor of the Union was directed by the court, and from the judgment accordingly is this appeal.
It was shown at the trial that all the premiums for both July and August had been marked “Paid” on August 14, 1926, and that the money covering these premiums, as well as the reinstatement dues on Mrs. Beavers’ certificates, were retained by the Union until October 12, 1926, at which time they were returned. This suit was begun about that time.
The constitution and by-laws of the Union provide that a member may be reinstated on application, without a medical examination, upon signing an application for reinstatement and the payment of a reinstatement fee, after the approval of the application by the medical examiner of the Union. If a member became delinquent and remained so for as much as six months, a medical reexamination was required before reinstatement.
The application for reinstatement contains the recital that: “For the purpose of securing reinstatement I hereby covenant and warrant that I am now in good health, of sound mind, and free from physical deformities; that I am not now nor have I ever been addicted to excessive drinking of alcoholic beverages, nor the use of narcotic drugs. ’ ’ The application required the applicant to answer -specifically certain questions concerning his or- her health, and concludes with the following' recitals :
“It is understood and agreed between the undersigned and his beneficiary or beneficiaries and the American Insurance Union that this application for reinstatement and the statements, covenants and warranties contained herein shall be a part of my contract of membership and insurance with said society, and that, if this application for reinstatement and the statements, covenants and warranties herein made be false or nntrne in any particular, then the policy reinstated in consequence of this application for reinstatement shall be null and void, and said society shall not be liable to me or my beneficiary or beneficiaries therein, except for the return of the premiums paid thereafter. It is further agreed and understood that the accepting and receipting for my premium or chapter dues or reinstatement fee by the chapter, or cashier, or any chapter officer or national officer, or representative, or any person whomsoever, shall not have the effect of reinstating mje, or rendering my policy valid, until the application for reinstatement has been forwarded to the national office and approved. ’ ’
This application was signed as to each of the certificates held by Mrs. Beavers, and both were signed by her, by her mark.
The truth or falsity of the statements made in the name of Mrs. Beavers iconcerning" the then condition of her health is not discussed in either of the briefs.
The medical director, whose duty it was to pass upon and reinstate delinquent applicants, testified that he was temporarily absent from his office when these applications were received, and that they were never passed upon or approved by him, and that he would not have approved the application of Mrs. Beavers without making some investigation of the signature of the applicant, which was not attested by the person who had signed Mrs. Beavers’ name. He also testified that, as the answers to the questions contained in the application showed that Mrs. Beavers had consulted a physician because of an attack of chills, he would have asked for further proof as to her health before ordering the reinstatement, and that such investigations ordinarily required about ten days or two weeks, and that the application was first submitted to him upon his return to his office on August 21, 1926.
Appellant insists that the judgment of the court below should be reversed for several reasons.
(1) . That it was not shown that an authorized assessment .had been made, and it is therefore insisted, upon the authority of the case of Mutual Aid Union v. Perdue, 162 Ark. 551, 258 S. W. 375, that there was no delinquency.
It appears that the Association had the same provision in its constitution and by-laws for levying assessments as the Mutual Aid Union had in the Perdue case, supra, whereunder assessments were not levied unless the death of a member made that action necessary, but it is shown here that the Association had been absorbed, and it was not made to appear that, since the consolidation, the right to make assessments was dependent upon the death of a member, or that the directors of the Association, whose duty it was, under the constitution of the Association, to levy the assessments, had been continued in existence as functioning officers. On the contrary, as we understand the record, it was the duty of the certificate holders,, after the consolidation, to make monthly payments not later than the 20th of each month. If we are mistaken in this, the fact may be more fully developed on the remand of the cause, which is ordered for another reason.
(2) . It is next insisted that the facts and circumstances summarized above support the inference that Mrs. Beavers had, in fact, been reinstated; but we do not agree with counsel in this contention.
'(3). It is also insisted that the Union is estopped by its conduct from asserting a forfeiture,' or, at least, that the jury might have so found, and in this contention we think counsel for appellant are correct.
It was shown that Mr. Beavers had charge of the four certificates and paid .the premiums on all of them, and that, when he remitted the amount necessary to reinstate all of them, he directed that none of them should be reinstated unless all were reinstated. This letter was addressed to the home office, and in due course would have had the attention of the medical director, whose duty it Avas to pass upon applications for reinstatement. Mr. BeaA’ers, for himself and as the agent of his Avife and mother, had the right to stipulate that no one of the certificates. should he reinstated unless all of them were, and, unless the officers of the,Union having the matter in charge were willing to folloAV this direction, they had no right to appropriate airy part of this conditional tender. It is an undisputed fact that Beavers and his wife were reinstated, and if the jury should find (as Ave must assume would have been done, in view of the fact that a judgment in favor of the Union Avas pronounced upon a verdict directed in its favor by the court), that this condition Avas imposed in the remittance letter, the acceptance of any part of the tender Avas an acceptance of the condition under which the tender Avas made. In this connection, it may be recalled that the Union did not return the money tendered to reinstate the certificates of Mus. BeaA'ers until in October, after her death in August.
It is also insisted for the reversal of the judgment that the Union is estopped, through its conduct in receiving belated premiums, from asserting a forfeiture resulting from a payment not longer delayed than the payment of other premiums had been delayed, which had been accepted uithout question. We are of the opinion that the- testimony raises this question. According to Mr. BeaA'ers, none of his payments had been made before the 20th of the month, and some had been made even later than the one here in question.
In the case of Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132, 219 S. W. 759, 14 A. L. R. 903, it was said:
“The laAV applicable to such.a state of facts is accurately stated in case-note (in 11 Ann. Cas. 533) to Trotter v. Grand Lodge, 132 Iowa 513, 109 N. W. 1099: ‘Where a mutual benefit association has, in repeated instances, received from a member the payment of overdue assess-' ments so as to establish a custom or course of dealing between the parties and led the member to believe that a strict observance of a requirement as to the time of pay ment is not required, it is held that the certificate of insurance is not forfeited by failure to pay an assessment at the time when the by-laws of the society or a stipulation in the certificate requires it to be^paid, and that a provision for forfeiture for nonpayment at such time is waived within the customary period of extension of the iime of payment.’ Numerous cases are cited to support the text ('Citing cases).”
In the opinion on rehearing in the Newsom case, supra, it was pointed out that, while a subordinate collecting officer of a fraternal benefit society might- not waive the provisions of the constitution and by-laws, the society might be estopped through the action of such officer from asserting a forfeiture, and the doctrine of that case is applicable here. The jury might have found that, while Van Wagner could not waive the provision requiring that payments be made on or before the 20th of each month, the insurer might, by knowingly accepting payments made after that date to its agent, estop itself from asserting that the payments had not been made as required, when they were in fact made as early as other premiums, which, though not made in time, had been accepted.
We conclude therefore, for the reasons stated, that the court was in error in directing a verdict against appellant, and the judgment will therefore be reversed, and the cause remanded for a now trial, and it is so ordered.
Kirby, J., dissents. | [
50,
109,
-112,
-51,
8,
52,
42,
-70,
86,
-128,
-91,
115,
-37,
101,
17,
109,
-64,
61,
-15,
104,
-74,
-77,
17,
10,
-46,
-109,
-7,
-57,
-80,
125,
124,
-43,
72,
40,
-118,
-103,
2,
-32,
-59,
-99,
-98,
8,
-88,
-23,
-39,
-64,
49,
-89,
-128,
-55,
117,
-106,
-21,
63,
-99,
71,
109,
46,
-1,
-87,
65,
-79,
-85,
68,
-1,
22,
1,
70,
-104,
35,
64,
14,
-104,
-15,
112,
-8,
86,
54,
-42,
101,
37,
-99,
4,
98,
102,
-95,
-76,
-19,
-124,
12,
54,
-109,
-99,
-121,
-106,
89,
19,
13,
-73,
28,
95,
16,
38,
-40,
-68,
-107,
29,
40,
21,
-82,
-10,
-77,
-35,
-20,
28,
3,
-1,
-113,
34,
112,
-55,
-30,
93,
69,
122,
-109,
22,
-80
] |
Smith, J.
On November 18, 1919, M. L. Allen conveyed a tract of land to W. M. Dean, reserving an undivided one-half interest in the mineral rights. Dean became indebted to H. L. Curry, and, to secure this indebtedness, executed, on April 13, 1921, a deed of trust conveying his entire interest in the land, including the mineral rights. The deed of trust was duly recorded.
On February 6, 1926, Dean conveyed to J. M. Smith, trustee, an undivided one-quarter interest in the mineral rights, and received as the consideration therefor the sum of four hundred seventy ($470) dollars. Dean deposited this money in a bank, and advised Curry of that fact, and told him at the time that $300 of the purchase money would be applied to the payment of the indebtedness secured by the deed of trust, which was then past due. Curry said ‘ ‘ That is all right, ’ ’ and received the $300 and credited that payment on Dean’s indebtedness secured by the deed of trust. On May 21,1923, Smith, as trustee, conveyed to W. A. Graves the undivided one-fourth interest in the mineral rights which had been conveyed to him by Dean. The balance secured by the deed of trust from Dean to Curry was not paid, and, on April 5,1926, Curry brought suit to foreclose that instrument. Graves and Smith became parties to that suit, and filed an answer, in which they alleged that Curry was estopped from asserting the lien which he sought to foreclose by reason of the acceptance of the $300 from Dean, and the court sustained that plea and rendered, a decree accordingly, and this appeal questions only that finding.
It is not contended that Curry was aware of the proposed purchase of the interest in the mineral rights by Smith, trustee, from Dean, or that he did anything which induced that conveyance. On the contrary the court found the fact to be that “H. L. Curry had no knowledge of the sale of said mineral rights to the said J. B. Smith until after the sale had been made land completed, but knew of same at the time said payment of $300 from the proceeds thereof was made to him by said Dean. ’ ’
It is contended that Curry should not have accepted the $300, which he knew Dean had derived from the sale of this interest, without first advising Smith that he did not intend thereby to release the security of his deed of trust, and it is further insisted that, if Curry had so advised Smith, the latter might have protected himself by demanding a return of the money then in the bank, the conveyance to him having been by warranty deed, and that Smith would not later have conveyed this interest to W. A. Graves by warranty deed, which he did do for the sum of $940.
We do not concur in the view that appellant Curry is estopped from asserting the validity of his deed of trust. Smith had constructive knowledge, at least, of that instrument, and of course took title subject to it, and did this without being induced so to do by Curry. He had the right to buy this interest with or without obtaining Curry’s consent, and Dean had the right to sell, subject to the deed of trust, 'Without obtaining Curry’s consent. It does not appear, lat least the court did not find, that Curry did anything which might have influenced Smith’s conduct, except to fail to notify him that he had accepted the $300, but did not intend that action to be construed as a waiver of the security of his deed of trust. But Curry was under no such duty. He made no representations of any kind, and merely accepted the payment, which Dean had the right to make, from whatever source it might have been derived, and the full amount of that payment was credited on the indebtedness which the deed of trust secured.
The case of Imboden v. Talley, 150 Ark. 567, 234 S. W. 991, is in point. Talley owned a tract of land which he contracted to convey to McCray, who bought building material from Imboden to be used in erecting a house on the land. The testimony was conflicting as to whether Talley told Imboden that McCray was the absolute owner of the land, and the finding to the contrary was held not to be against the preponderance of the testimony. The testimony showed that Talley had hauled the building material, which he knew McCray had purchased from Imboden to be used in the building, and it was contended that the latter’s title should be subordinated to Imboden’s mortgage debt incurred in the purchase of the building material, on the alleged ground that Talley, by reason of standing by and permitting Imboden to furnish the material, was estopped from asserting his title. "We held to the contrary.
In the case of Davis v. Neal, 100 Ark. 399, 140 S. W. 278, L. R. A. 1916A 999, a syllabus reads as follows:
“Mere silence will not estop a party to claim land unless, in some way, the party relying on the estoppel is put to disadvantage by the action of the party said to be estopped.”
We think there was nothing in Curry’s conduct which estopped him from asserting and enforcing his deed of trust, and the decree of the court below will be reversed, and the case remanded with directions to overrule the plea of estoppel. | [
-10,
120,
-100,
13,
26,
96,
10,
-102,
104,
-87,
-27,
83,
-1,
66,
0,
61,
-32,
61,
68,
107,
-12,
-77,
23,
37,
82,
-13,
91,
-51,
-80,
95,
54,
-41,
76,
60,
74,
29,
-26,
-54,
-33,
-40,
14,
-95,
-88,
68,
-37,
0,
48,
111,
20,
75,
65,
30,
115,
40,
25,
89,
73,
46,
-21,
57,
-48,
-8,
-70,
68,
95,
21,
0,
7,
-12,
-123,
-56,
-22,
-104,
53,
-120,
-24,
115,
-74,
18,
116,
15,
25,
44,
34,
98,
-96,
65,
-3,
-96,
-36,
46,
-77,
-99,
-90,
-41,
72,
2,
-32,
-66,
-103,
126,
4,
-121,
118,
-26,
5,
88,
45,
1,
-53,
-14,
-125,
9,
124,
-102,
3,
-5,
-105,
52,
112,
-51,
-94,
92,
99,
115,
-109,
15,
-7
] |
Smith, J.
Appellant brought five suits in the Garland Circuit Court against appellee Freeman, as the clerk of the county court of that county, to compel him to issue tax deeds for lands sold to appellant for the nonpayment of the general taxes for the year 1922. Gwners of the respective tracts of land thus sold -were made parties to the several suits. Appellant alleg-ed his purchase of the various tracts of land at the tax sale; that he had received certificates evidencing such purchase; that the time for redemption had expired, and that redemptions had not been perfected; that he had presented his certificates of purchase to the clerk and demanded deeds in exchange therefor, with a tender of the fees allowed the clerk by law, and that this demand had been refused, wherefore mandamus was prayed requiring the clerk to execute deeds.
An answer was filed by the clerk, alleging that each of the tracts had been-redeemed by the respective owners. The court found the fact so to be, and dismissed the suits, iand this appeal is from that order and .judgment.
There appears to be no substantial controversy about the facts, which may be briefly stated as follows: Appellant liad for many years been engaged in buying lands at tax sales, and in these operations was represented by Jack Hudgins, an experienced land man, who was -thoroughly familiar with all the public records, and especially so with the tax records. Appellant furnished the money with which delinquent lands were purchased, and Hudgins attended to all the details of the' same, including the bidding in of the lands, the collection of redemption money when redemptions were effected, and the procuring of deeds where no redemptions were made, and as compensation for his services he was given a one-third interest in all lands for which tax deeds were obtained.
■Section 10100, C. &M. Digest, provides the “mode of redemption” of lands sold for general taxes. Its provisions are that: “Any owner * * * desiring to redeem any land * * '* sold for taxes * * * may, within the time limited by law for such redemption, deposit with the county treasurer, upon the certificate of the clerk of the county court describing such land, * * * an amount of money equal to the taxes for which such land * * * was sold, together with penalty and cost and the taxes subsequently paid thereon by such person, * * * with interest at the rate of ten per centum per annum on the whole amount so paid, and the county treasurer shall, upon the payment of said sum, within ten days thereafter notify the purchaser that said sum is in the treasury and subject to his order.”
Section 10101 prescribes the “duty of county treasurer.” Its provisions are that: “Upon the presentation of such certificate of the clerk of the county court to the county treasurer, and upon the payment of the money to the treasurer as aforesaid, he shall give the person making such payment duplicate receipts therefor, describing the land * * * as the same is described in or upon the certificate of the clerk of the county court aforesaid, one of which receipts shall be registered by the treasurer and immediately filed with the clerk of the county court by the person receiving the same, and thereupon the clerk of the county court shall forthwith cancel the sale and transfer such land, * * * and such receipt when so filed shall operate as an extinguishment of all rights, either in law or equity, conferred in any way or manner by such sale. ’ ’
Section 10102 prescribes the “duty- of the county clerk.” Its provisions are that: “In all cases where such deposits shall be made within two years from the time of sale of such lands for delinquent taxes, the clerk of the county court shall, at the request of the person presenting the receipt of the county treasurer for such deposit, note such fact on the back of said certificate, and .sign his name thereto. When any tract * * * is thus redeemed, or any deposit with the county treasurer is thus made, it shall be the duty of the clerk of the county court to note such redemption or deposit, the date thereof, and by whom made, on his record of tax sales, and sign his name officially thereto. ’ ’
Appellant insists there has been no substantial compliance with these provisions of the statute, but the testimony establishes the following- facts: The respective landowners applied to appellee, as county clerk, to redeem their forfeited lands. The clerk made out the proper certificates of redemption and advised the -owners the amounts necessary to effect-a redemption, including the fee .of the clerk, and this sum was paid to the clerk by the owner, and the clerk signed the receipt acknowledging the payment of the money in the name of the county treasurer, and the clerk, thereupon made the notations upon the. records required by the .albove-quoted sections of the statute.
The clerk testified that he signed the name of the treasurer with the knowledge and consent and by the express authority of that official, and that he held the money thus paid to and for the use o-f the treasurer until it was actually delivered to that official. The county clerk further testified that his office and that of the county treasurer were in adjoining rooms, with -a connecting door, -and that each was in the other’s office very frequently. At the time of the attempted redemptions the treasurer was an invalid, and was receiving treatment in connection with the baths at Hot Springs every other day, and these treatments consumed a large part of the afternoon on the days when they were administered, and during such times the treasurer was absent from his office.
All of the redemptions were effected in the manner above stated, well within the time allowed by law, except in the case of one owner, who applied to redeem his land the day before the expiration of the two-year period allowed by law for redemption. Hudgins was present on this occasion,' and, when the owner had received his redemption certificate, signed by the clerk as such, and by the clerk in the name of the treasurer, Hudgins protested that a proper redemption had not been effected, for the reason that a check, and not money, had been paid, but the clerk testified that he received the check as cash, and that he would then have paid Hudgins the amount due appellant -on the redemption of the land in cash had.Hudgins been willing to receive it, but Hudgins admitted' that he did not ask for the money, and did not want it; that what he did want was a deed to that and the other land.
It was not shown that the tax purchaser was not properly advised of the various redemptions; indeed, the clear implication from all the testimony is to the contrary in each case, it being the admitted purpose of the purchaser to demand deeds upon the theory that the law had not been complied with in effecting the redemptions.
It was shown that the custom in regard to redemp- ■ tions stated above had prevailed in that county for many years, and Hudgins had been engaged in buying lands at tax sales for more than twenty years, was familiar with this custom, and had frequently been paid redemption money by the clerk for the treasurer.
Of course, this testimony could not change the law, but it -does show that appellant and his agent were advised of the maimer in which the redemptions in question were effected, and that appellant could have had the return of the. money due him at any time after the attempted redemptions, but Hudgins candidly admitted that he wanted the land, and not the money.
There was a literal compliance with the statutes quoted, except the receipt of the money 'by the clerk for the treasurer, instead of the payment to and the execution of the receipt for the money by the treasurer himself. ¡But we think, under the facts stated, that there was such a .substantial compliance with the statute as to make the redemptions effective, and that the court below was correct in so holding. • The money reached the hands of the officer entitled to its custody, and the tax purchaser could have had his money had he been content to take it. None of his rights were prejudiced by the irregular manner in which the money reached the treasurer’s hands.
The check above referred to was paid in due course, but it was accepted by the clerk at his peril, and it is unnecessary to decide whether he could • have canceled the redemption had the check been dishonored, as it was piaid.
The judgment of the court below is correct, and it is therefore affirmed. | [
-16,
-2,
-76,
28,
26,
-64,
42,
-98,
73,
-96,
-90,
19,
-19,
2,
0,
41,
-95,
125,
117,
104,
-58,
-77,
87,
-93,
-13,
-77,
-39,
93,
-76,
77,
-28,
-43,
12,
48,
66,
21,
102,
34,
-89,
-40,
78,
-128,
-87,
108,
-35,
64,
52,
43,
32,
73,
117,
-50,
-13,
44,
53,
67,
73,
46,
107,
-69,
81,
-71,
-69,
-107,
127,
7,
-95,
7,
-102,
-127,
-56,
-86,
-104,
49,
-128,
-24,
119,
-74,
-122,
-12,
13,
-69,
44,
38,
102,
2,
-43,
-3,
24,
-39,
47,
-74,
29,
-89,
-46,
88,
83,
96,
-66,
-99,
123,
80,
-113,
124,
-20,
-107,
85,
104,
15,
-18,
-42,
-121,
-17,
126,
-118,
19,
-1,
0,
48,
113,
-49,
-26,
92,
103,
48,
-101,
15,
-7
] |
Paul Ward, Justice.
This is an appeal from a judgment (based on a jury verdict) awarding Jess Famum (appellee) a fee simple title in 120 acres of land. To better understand how the litigation arose and the issues raised, we set out below the background facts which are not in dispute.
Facts, (a) Jacob Stottler was the owner of the land in 1900. He died intestate in 1919, survived by his wife (now deceased) and by two sons and one daughter, viz: Edward, George, and Elizabeth.
(b) Elizabeth, in 1920, conveyed her one-third interest in the land to George. She married a Mr. Head and they had one son, named Ores Head, who is the appellant here.
(c) Edward died, intestate, in 1944, leaving no children.
(d) George, with his wife Florence, lived together on the land until he died, intestate, in 1953, leaving no offspring. At his death Florence (later married to Baucom) continued to live on the land for an undisclosed period of time, but conceded to be less than seven years. However, she continued to pay the taxes until 1963 when she deeded the land to Howard P. Yates, Jr. for $1,000. In the same year Yates deeded the land to appellee for $4,000.
Litigation. In 1966 appellee filed a complaint against Ores Head and wife, alleging: (a) Appellee is the owner in fee simple of the said 120 acres of land, based on the deed from Yates who had received the deed from Florence; (b) In 1965 Ores and his wife unlawfully entered upon the land and wrongfully cut and removed therefrom large amounts of timber valued at $2,-000. The prayer was for (1) possession of the land, and all other proper relief, (2) and judgment for the timber removed. [Item (2) is not an issue here.]
In answer to the above complaint Ores entered a general denial, and further stated that he “owns and occupies the land in question by right of heirship and that he has a title superior to the title, if any, of the Plaintiff, to said lands”. He also reserved the right to make further answer.
The trial court, over appellants’ objections, allowed appellee to introduce testimony to show Florence obtained title to the land by adverse possession, and that she had a fee simple title when she deeded the land to Yates in 1963. Appellants’ objection was based on the ground that appellee did not plead title based on that ground, but, under our view hereafter expressed, we deem it unnecessary to decide that issue. Thus the matter was tried, and then presented to the jury on the following instruction:
“Do you find by a preponderance of the evidence that Florence Stottler Baucom held the lands in question by adverse possession for seven years or more from death of George Stottler in 1953 to sale of property in 1963?”
The jury’s answer to the above interrogatory was “Yes”. Then the court entered judgment in accord with the verdict, hence this appeal.
Seeking a reversal of the judgment, appellants rely on seven separate points. The first six points pertain to the instructions given by the trial court, to the right of appellee to introduce testimony as to adverse possession on the part of Florence, and to the court’s refusal to direct a verdict in favor of appellants. We deem it unnecessary to discuss these points because v^e have concluded the case must be reversed on the seventh point, which challenges the sufficiency of the evidence to support the jury verdict.
The undisputed facts set out previously reveal that: Ores was the owner of an interest in the land. He in herited a l/6th interest from Edward and he was the sole heir of George. The extent of this last interest depends on the extent of the interest which George held as an ancestral estate. See Ark. Stat. Ann. § 61-206 which gives Florence (his widow) one-half of the portion held by her husband as a new acquisition. From this it follows that while Florence remained on the land after the death of her husband she had a legal right to do so, as his widow, and she was also occupying the land as a co-tenant with Ores.
In view of the above situation it is our conclusion that the record reveals no substantial evidence to support the jury verdict. The pertinent parts of appellee’s testimony is set out below.
Florence testified:
“Q. Did you claim to own it?
A. I did. I was his only heir.
Q. Now, you say after Mr. Stottler died, you claimed to own the property?
A. Well, I thought I did.
You thought you owned it? <©
I sure did. >
Q. How long did you think you owned it?
A.. Well, after he passed away I was left as his heir. I was his widow and I’d he his heir and his mother told me and him both time and time again that for taking care of her, she wanted me to have her part.
Q. Well, you continued to think you owned it, as I understand it.
A. I did.
Q. Well, Mrs. Drain (Florence), yon did say yon claimed the property?
A. Yes, everybody told me it was mine.
Q. How long did yon claim it?
A. After he died? Well, I claimed it as long as I paid taxes on it. I was told it was mine if I paid the taxes and I paid the taxes for abont ten years before anybody come np and said they wanted it.
Q. Mrs. Drain, at the time yon sold it to Howard and Billie Lon Yates, did yon claim to own it?
A. I certainly did. I paid the taxes.”
# # #
“Q. Yon took it? Yes, ma’am, yon took it and yon thonght yon had a right to sell it?
A. I certainly did.”
Orville Yates, who was familiar with the land and knew George Stottler, testified:
“Q. Mr. Yates, following the death of George Stottler, do yon know who claimed to own that land?
A. Well, his widow.
Q. Florence Baucom?
A. Yes.
Q. Did yon ever know of anyone else making any claim to it at any time from the time of the death of George Stottler np until the time she sold it?
A. No, sir, I didn’t.”
The above testimony, falls far short of meeting the requirements set out in many decisions of this Court, some of which are noted below.
In Watson v. Hardin, 97 Ark. 33 (p. 36), 132 S. W. 1002, this Court quoted with approval the following statement:
‘“It is well settled by the authorities that this possession must be actual, open, continuous, hostile, exclusive and be accompanied by an intent to hold adversely and in derogation of and not in conformity with the right of the true owner. . . It must be hostile in order to show that it is not held in subordination and subserviency to the title of the owner.”’ -
There, the Court also said:
‘ ‘ The widow is entitled to the possession of the land as her homestead during her life; she holds the life estate and the heir the reversion; the possession of the widow is therefore not adverse to the heir.”
In Brinkley v. Taylor, 111 (p. 309) Ark. 305, 163 S. W. 521, we find this statement:
‘‘It is settled that if a widow conveys her dower interest before it is assigned to her, the heir may recover the land from her vendee, and the statute of limitations is set in motion against the heir when her vendee enters into the possession.”
In Mills v. Pennington, 213 Ark. 43 (p. 47), 209 S. W. 2d 281, we said:
‘ ‘ The law is well settled that a life tenant is entitled to possession of premises to which the estate pertains, and it is the tenant’s duty to pay taxes.”
The Court also held that the heirs had a right to assume the widow’s possession was under her marital right of unassigned dower until notice of her adverse holding was notorious. To the same effect, it was stated in Tennison v. Carroll, 219 Ark. 658 (p. 663), 243 S. W. 2d 944, that:
“Even if a widow disavows her homestead and claims as a tenant in common, her possession and occupancy is presumed to be permissive and not hostile to her co-tenants unless the fact of hostility affirmatively appears.”
The judgment is reversed, and the case is remanded for any further requested proceedings consistent with this opinion. | [
80,
108,
-35,
12,
56,
-32,
-118,
-102,
105,
-29,
-91,
83,
-17,
-46,
21,
63,
-29,
25,
113,
107,
86,
-77,
71,
-64,
-45,
-77,
89,
-51,
-79,
76,
-27,
87,
72,
32,
66,
85,
-62,
-94,
101,
88,
-50,
-62,
-118,
125,
-39,
-64,
56,
61,
82,
79,
49,
-98,
-78,
44,
61,
99,
72,
46,
-5,
60,
80,
-8,
-81,
28,
95,
22,
17,
52,
-72,
-126,
72,
8,
-112,
17,
0,
-22,
115,
-74,
-122,
116,
10,
-119,
-120,
102,
102,
48,
13,
-25,
-8,
88,
14,
122,
29,
-89,
-110,
24,
67,
37,
-66,
-107,
125,
-108,
70,
126,
-20,
5,
28,
104,
87,
-113,
-106,
-127,
-115,
-68,
-104,
3,
-1,
-121,
50,
113,
-49,
-86,
92,
6,
48,
59,
14,
-6
] |
Smith, J.
Appellant Woods brought suit against appellee Griffin to recover a certificate for five shares of the capital stock of the Arkansas National Bank located in Heber Springs. He alleged that by fraud he had been induced to assign this stock to Griffin. Kessinger intervened and alleged that subsequent to the assignment of this stock to Griffin by Woods he had purchased the stock from Griffin and was an innocent holder thereof for value.
The chancellor dismissed the complaint as being without equity, and from that decree is this appeal.
The chancellor prepared a written opinion, in which he reviewed the testimony and gave his reasons for the conclusion which, he reached. He recited in this opinion that the testimony was in irreconcilable conflict; and so it is. The decision of the question raised on this appeal— one of fact’ — depends entirely on the testimony which is believed.
According to the testimony of Woods, and that of his wife, he was swindled out of the stock. The testimony may be briefly summarized as follows. Woods had been reared in Heber Springs, but enlisted, while living there, as a soldier in the first World War. After the war he removed to the state of Oregon, where he married and has since resided for seventeen years, without returning to Heber Springs.
Woods ’ mother was found dead in her home in Heber Springs on March 31, 1941, and Griffin was the county coroner, and the inquest which he held indicated that Mrs. Woods’ death resulted from natural causes.
Everyone knew Mrs. Woods had a son, but no one knew where he was. The sheriff of the county and Griffin began a search through Mrs. Woods’ desk to find the son’s address. Two safety boxes were found, one of which was locked, the other not. The sheriff was asked if the locked box was opened under Griffin’s direction, and he answered, “I don’t know whether it was or whether it was at my suggestion.” The sheriff testified that “Mr. Griffin carried the two boxes, but I brought the deeds and other stuff to my safe.” The question was raised whether the sheriff, or Griffin as coroner, should take possession of the boxes and papers, and it was agreed without controversy that Griffin should have possession.
Woods’ address was finally learned, and Griffin advised Woods by telephone that Mrs. Woods was dead. Griffin took charge of the body and had an undertaker prepare it for burial, but he did not buy a casket.
Woods and his wife arrived in Heber Springs April 4th about 4 p. m. They went to a hotel, where they “freshened up,” after which they went to Mrs. Woods’ home, which they found locked. Woods met a Mr. Dial, whom he had previously known, and he and his wife went with Dial to Dial’s home. While there, Woods received a telephone call from Griffin asking him to come to Griffin’s place of business, a drugstore. He went there, accompanied by Dial, and when he . and Dial arrived Griffin told Dial he wanted to talk with Woods about personal matters, and Dial left. This statement was not corroborated.
Woods testified that Griffin told him that they had been “war buddies,” but that he had never met Griffin before. Griffin proceeded to tell Woods what he had done, and Woods thanked him for his interest and attention and proposed to pay Griffin for his trouble. Griffin said he made no charge, but that the deceased had some stock of doubtful value, which might some day be worth fifteen or twenty dollars, which Woods might assign him if he wanted to pay anything. Woods knew nothing about the stock except what Griffin told him, and, without investigation or inquiry, Woods signed an assignment of the stock to Griffin. This was done by filling out the blank space on the certificate prepared for that purpose. No consideration was paid. Woods admitted that he can read and write. So, it would appear, according to Woods’ testimony, that, within a very short time after meeting Griffin he assigned to him the stock certificate without knowing what it was or, as explained by him, “I just knew it was stock. ’ ’
Griffin told Woods that an administrator would be heeded, and volunteered his services as such. On the "following day they went to the office of an attorney, who advised that an administrator should be appointed, and Woods testified that “I signed the papers for Griffin to be appointed,” and Griffin was appointed.
The testimony establishes very clearly that Woods was dominated by his wife. According to the testimony by both Woods and his wife, she attended to all the business of her husband, yet Woods appears to have had at least one other business transaction without his wife’s consent, this being the sale of some timber for $36 which Mrs. Woods testified was worth $250.
Mrs. Woods did not like the idea of having an administration, and she employed an attorney to have the appointment canceled. A session of the probate court was held on the morning of the 10th, being presided over by the chancellor, who rendered the decree from which is this appeal. Woods and Griffin appeared before the chancellor sitting in probate, and the chancellor, in his opinion, states that “I do know that the administration was set aside without objection on Mr. Griffin’s part.” Just here arise the questions of fact which are pivotal.
Woods testified that he and the attorney he had employed went to Griffin for the papers belonging to the deceased, and that inquiry was made about the bank stock, and Griffin said that he had not seen any. There is no corroboration of this testimony except that of Woods’ wife. On the contrary, the testimony of Woods as to the conversation which he had with Griffin immediately following Griffin’s discharge as administrator appears very equivocal and is to the following effect: “Q. Yon was there on the 10th? A. Yes, sir. Q. And I believe he mentioned to yon about the stock on that day? A. Yes, sir. Q. And yon didn’t answer him back? A. I didn’t when he called me out. Q. Why didn’t yon answer him? A. When my wife came out there he was asking what I was going- to do about it. Q. You didn’t let her hear anything about it? A. No, sir, but I wouldn’t have cared. Q. Why didn’t you answer him then? A. I come back because the business transaction was there in the office. Q. If you had transferred it on the 4th day of April, 1941, why was it necessary to mention the stock at that time? A. I don’t know why he called me out. 'Q. Didn’t yon go back the second time to W. B! Griffin’s store? A. Not that I remember of, no, sir. Q. How did it happen to be signed the 10th and dated the 10th if it was done the 4th? A. That certificate was signed when I went there the first time. Q. If it was on the 4th, why was it dated on the 10th? A. I don’t know.”
Now, Woods testified that within a few minutes after meeting Griffin he assigned to Griffin, without money consideration, stock of a value unknown to him. The par value of the stock was $100 per share; its book value was greater. The cashier of the bank testified that its book value was $815, but that the stock was worth more than that. Griffin testified that he did not know its value, but that he knew it was worth what Woods asked and what he paid.
Now, Griffin categorically denies the testimony of Woods as to the assignment of the stock on the 4th. He denied telling Woods they had been buddies during the war. He stated that he first met Woods in 1920, after the war. He admitted calling Woods at Dial’s home, but he stated that he did this at the request of the undertaker*, who wished to consult Woods about the selection of a casket. Griffin testified that the stock was purchased and assigned on the 10th. He further testified that Woods proposed to sell the stock, but stated that he did not want his wife to know anything about it; that he had a “plaster” on his car at home, about which his wife knew nothing, and he wanted to discharge the mortgage without letting her know he had given it.
Now, if Woods’ version of the transaction is to be accepted as true, he assigned the stock on the 4th, but he did not tell his wife that he had done so, although according to her own testimony, she was following the matter with close interest and attention.
It is an undisputed fact that the assignment is dated, not April 4th, but April 10th, and no satisfactory explanation is made why the assignment should have been dated the 4th if it did not occur until the 10th.
There is a witness in the case to whose testimony the chancellor, as indicated by his opinion, gave much weight; and so do we. This "witness was a young man named 'Charles Shook, who, on April 10th, wTas employed by Griffin in his drugstore, but who, at the time of the trial, was otherwise employed. The testimony of this witness appears to be candid and disinterested. He testified that he saw Woods sign the assignment, and that he was called to witness Woods’ signature. The certificate was lying open, and not folded, on the desk, and that Woods could have read it had he wished. Woods testified that the certificate was folded when he signed it. Witness Shook did not know what negotiations had preceded. He saw Griffin pay Woods money, in bills, but did not know in what amount.
Now, Woods and his wife were interested witnesses; and so was Griffin; but Shook does not appear to have been. His testimony is either true or false. If true, that of Woods that he assigned the stock on April 4th, without a cash consideration, is false. The chancellor believed Shook, and we are unable to say that he should not have done so, nor that this finding is contrary to the preponderance of the evidence.
The stock, if sold, was sold for less than half its par value, and for less than one-fourth of its book value. But Griffin testified that he did not know its value, but he knew it was worth what he paid.
The chancellor found that no relation of trust and confidence existed between Woods and Griffin. The administrator was discharged on the morning of the 10th, and, according to Griffin and Shook, the stock was purchased that afternoon, and the date of the assignment is corroborative of this testimony. Griffin testified that in offering only $200 for the stock he took into account the services he had rendered and the commissions as administrator which he relinquished, and that he considered he was paying $350 for the stock, although only $200 of it was in cash.
We have the impression and are of the opinion that Woods was not treated fairly; but we are unable to find that he was defrauded. Like the chancellor, we think there was no relation of trust and confidence, and we do not find that false or fraudulent representations were made to Woods which induced him to sacrifice his stock for much less than its value.
We think the testimony supports the finding that Woods was trying to sell this stock without his wife knowing that he had done so, to “hold out” from her the proceeds of the sale to pay the mortgage on his oar, as he explained to Griffin, or for some other purpose.
• We find 'but little, if any, testimony to support the contention that the intervener, Kessinger, a former sheriff of the county, was not an innocent purchaser. But this question need not be considered if the finding of the chancellor that Griffin practiced no fraud is affirmed, and as we are unable to say that the finding of the chancellor is contrary to the preponderance of the evidence the decree will be affirmed.
The sale of the stock at the price received for it was not only improvident, but was foolish; but it may not be avoided on that account. At § 7 of the chapter on Fraud and Deceit, subtitle “Unconscionable Advantage,” 12 R. C. L., p. 237, it is said: “'So the character and subject of the bargain, as being such as no sane person would make, and no honest man would accept, may also furnish strong evidence of fraud. . . . But not all foolish transactions are fraudulent, and it is neither the duty nor within the power of the courts to relieve a person from a contract merely because it is in its terms unwise or even foolish.”
A headnote to the case of Mason v. Graves, 167 Ark. 678, 265 S. W. 667, reads as follows: “A sane person is bound by a contract fairly entered into, however improvident it may be. ’ ’
With reluctance and regret, the decree must be affirmed, and it is so ordered.
Humphreys and McHaney, JJ., dissent. | [
112,
-20,
-84,
-36,
57,
-32,
42,
58,
122,
-29,
-91,
-45,
-83,
66,
1,
127,
-13,
61,
117,
105,
-26,
-77,
23,
99,
-46,
-69,
-71,
-35,
48,
75,
-92,
-43,
77,
52,
-54,
21,
70,
-118,
-59,
92,
14,
-128,
-71,
112,
121,
80,
52,
-89,
-12,
75,
113,
-98,
-6,
42,
16,
71,
73,
44,
107,
-88,
80,
-7,
-102,
5,
95,
20,
49,
6,
-68,
41,
88,
46,
-48,
49,
0,
-23,
114,
-74,
22,
116,
47,
-115,
8,
98,
98,
1,
5,
-29,
-80,
-119,
-82,
-82,
-99,
-89,
-46,
72,
107,
41,
-74,
-99,
123,
16,
6,
-8,
-26,
92,
93,
96,
7,
-50,
-42,
-79,
21,
-88,
-104,
19,
-13,
-85,
48,
113,
-49,
-94,
92,
69,
120,
-101,
-118,
-47
] |
Hart, C. J.,
(after stating the facts). On the question of the divorce we do not deem it necessary to make an extended statement of the evidence or to discuss it in detail. Each party sought a divorce from the other on the statutory ground of indignities to the person. The parties to the action were married in September, 1918, and lived together as husband and wife until the first of April, 1926. The record shows, that they got along very well together until about two years before their separation. The testimony of the plaintiff and of the defendant shows that they were continually quarreling’ with each other for the past year or two of their married life. Their testimony, however, is in irreconcilable conflict as to who was to blame for their quarrels.
According to the testimony of the wife, her husband was continually quarreling with her, and on one occasion threatened to strike her, and on another occasion told her that he had been advised that he could obtain alimony from her, and was continually guilty of such abusive language and ill' treatment that she could not occupy his bed, and that she moved upstairs and stayed with her daughter in the homestead, the title to which was in her name. The responsibility for their quarrels was placed upon the husband by the testimony of a daughter of the wife by a former marriage. She is also corroborated to some extent .by her son-in-law.
On the other hand, the husband, in his testimony, places the entire responsibility for their quarrels in the nagging disposition of bis wife. He testifies that she got. tired of him because he was in ill health, and was continually nagging and quarreling at him.
The testimony is not very satisfactory on the question of divorce, but, after considering the whole of the testimony carefully and the situation and condition of the parties, we are of the opinion that the preponderance of the evidence entitles the wife to a divorce. It is perfectly apparent from the testimony of both of them that they were continually quarreling with each other and that there aauis no likelihood of their becoming reconciled to each other. Each of the parties had children by a former marriage, and there aauis no hope of them ever living together again. Hence ave are of the opinion that a preponderance of the evidence aaIH sustain a decree granting the plaintiff, Alice Collins, a divorce from the defendant, F. D. Collins, on the statutory ground of indignities rendering her condition in life intolerable. Scales v. Scales, 167 Ark. 298, 268 S. W. 9.
On the question of a resulting trust in favor of the husband, Ave also find that a preponderance of the evidence sustains the contention of the AAÚfe that the title to the homestead Avas taken in her name, because she made the first payment on it, and that the payment of $1,539 was paid by the husband as an adAmncement or gift to her. Where the title to property is taken in the name of the wife, even Avliere the husband has purchased and paid for the same, there is a presumption in laAV that his money thus used was intended as a gift to his wife, and the law does not imply a promise on her part to return the money or to divide the property purchased, or to hold the same in trust for him. Ilis conduct Avill be referable to Ms duty and affection rather than to a desire on Ms part to have his wife hold the property as a trustee for him. This presumption, however, may be rebutted by any evidence, including antecedent and contemporaneous declarations or circumstances, which tend to prove the intention of the person who furnished the money to purchase the estate, that the grantee should hold as a trustee. Wood v. Wood, 100 Ark. 370, 140 S. W. 275; Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867; Mann v. Mann, 164 Ark. 43, 260 S. W. 731; and Dillard, v. Battle, 166 Ark. 241, 266 S. W. 80.
On this branch of the case we again find the testimony in irreconcilable conflict. The husband testified that, when the homestead was purchased, the3r bought it jointly for their home and it was their intention to live there as husband and wife with both sets of children. By agreement'the deed was made in the name of the wife, and he sold his homestead in Van Burén for the purpose of finishing paying for the homestead in Fort Smith. After the wife made the first payment of $1,000, the husband, according to his testimony, began making-monthly payments on the place until of the principal and interest there was only left unpaid a balance of $1,539. He sold Ms homestead in Van Burén and gave his wife a check for $1,539 for the purpose of. paying out their home in Fort Smith. This was clone with the understanding that he was to have a .joint interest in the property.
On the other hand, according- to the testimony of the ■wife, the original price of the homestead in Fort Smith was $2,750. She paid $1,000 on it, with the understanding that the title should be taken in her name. This was done because her husband had some insurance for the benefit of his children by a former marriage and it was his intention that her own children should inherit from her the homestead which was purchased in Fort Smith. Her son and daughter were working at the time, and lived with her, .paying board. She took $30, which her son paid for board, and paid it monthly toward reducing .tire principal and interest of the balance due on the purchase money. She admitted that her husband gave her money monthly during this period of time,' but states that she used it for their living expenses, and that her husband so understood it. She admitted that he gave her $1,539 on the first day of April, 1920, with which to finish paying the purchase price of the place. She stated, however, that this was a gift, and that she refused to accept it until it was expressly understood that it -was a gift, and that her husband was to have no interest in the place. Her testimony in this respect is corroborated by that of her daughter.
It is also a circumstance in her favor that the husband did not at that time ask that the title be.changed so as to give him a j-oint interest in the place, and that no claim was made by him for a joint interest until after their separation and the bringing of this suit.
Under these circumstances we are of the opinion that the husband failed to establish a case for a resulting trust in his favor for a joint interest in the place.
The result of our views is lhat the decree will be reversed, and the cause will be remanded with directions to the chancery court to grant a divorce to the plaintiff, Alice Collins, and to dismiss the complaint of F. D. Collins for a divorce for want of equity, and to dismiss also his complaint for a resulting trust in the homestead for want of equity. It is so ordered. | [
-79,
120,
-83,
111,
8,
-92,
-86,
-24,
120,
-119,
113,
-9,
-5,
-37,
16,
109,
50,
41,
80,
107,
84,
-73,
22,
65,
-10,
-45,
-8,
-43,
-75,
-19,
-11,
85,
68,
42,
-94,
-11,
98,
-54,
-59,
84,
-122,
-108,
-85,
-20,
-46,
-46,
52,
111,
-46,
15,
17,
-50,
-13,
46,
29,
95,
104,
110,
74,
120,
-48,
32,
-114,
13,
77,
2,
-77,
38,
-108,
37,
-56,
14,
-119,
49,
33,
-32,
51,
-74,
-126,
117,
77,
-119,
8,
96,
98,
1,
77,
-19,
-76,
-120,
110,
114,
-99,
38,
48,
64,
9,
105,
-66,
-103,
124,
80,
43,
122,
105,
93,
60,
100,
9,
-117,
-106,
-79,
31,
122,
-98,
41,
-21,
-95,
49,
113,
-49,
-94,
92,
69,
122,
-69,
-113,
-82
] |
Humphreys, J.
On September 6,1926, appellees filed a petition under and by virtue of § 5249 of Crawford & Mooses’ Digest (act No. 422 of the Acts of 1911) in the county court of Lawrence County, Arkansas, to lay out and establish a public road beginning at the northeast corner of the southeast quartet of the southeast quarter of section 7, township 16 north, range 1 west; thence south on the east line of said southeast quarter, southeast quarter to the southeast corner thereof; thence southwesterly to the west bank of said draw or branch; thence along said bank to the intersection of the Powhatan-Clover Bend Highway. On October 4, 1926, the county court established a highway along the line designated in the petition, and ordered the road opened, from which an appeal was duly prosecuted to the circuit court by appellants herein.
Appellants filed an answer in the circuit court, pleading as a defense that an order was entered in the county court establishing a public road on identically the same line designated in the petition of appellees herein, and that, pursuant to the order, overseers were appointed and the road laid out,' and that as laid out it has since been a public highway; that on February 2, 1925, the county court of Lawrence County made another order, on petition of appellees herein, in which it was recited that said road had been ordered to be laid out in 1899, and ordered the road overseer of Road District No. 5, in which said road was located, to open up said road; that appellants herein appealed from that order to the circuit court, and, on the trial of the cause, the circuit court found that the road had been laid out in substantial conformity to the order of the county court entered of rec ord on October 8, 1899; that no appeal was taken from said order; that two such roads are unnecessary; that all matters and things now in issue were in issue in the cause above mentioned, and were adjudicated and decided in the circuit court for the Western District of Lawrence County, Arkansas, at its August term, 1925, and that said order is res judicata as to all matters and things attempted to be adjudicated in the present action; said order is especially pleaded as being res judicata. Appellants further prayed that the order of the county court of October 4,1926, be quashed; that the petition of appellees herein be disallowed; and that, in case the order was sustained, appellants herein be allowed damages in the sum of $650, and for all other proper relief.
The cause was heard upon the petition of appellees herein and the answer of appellees herein and the testimony introduced by the respective parties by the court sitting as a jury, which resulted in the following finding and judgment:
‘ ‘ Gentlemen: The court does not undertake to establish a line between these quarter sections, and I do not understand that that is before the court, or that it is necessary for the court to establish that line. I find from the testimony in the case that there is a public necessity for a public road through there between these two quarter sections, between Mrs. Gibson and Mr. Stead-man ; and that an order of the county court of this county was made in 1899 establishing a public road through there, but it seems that the road was never regularly established and has not been maintained as a . regular county road; that it has just been drifting along under present conditions. And it shall be the order of this, court that the road be established on the section line, in accordance with the order of the county court made on October 4,1926, and that that be the only road through there. That the order of 1899 be vacated and set aside, and that any roads now leading through there be changed to follow the section line in compliance with the order of the county court herein appealed from; and that the proper authorities :be directed to open the road and place it on the line in accordance with the order of the county court; and that, in the event of a fence having to be moved which belongs to Mrs. Gibson, the county pay the expense of moving the fence. And the court further finds that the amount of damages allowed in the order of 1899 was to cover damages for the public road that should go through there, and no further damages will be allowed other than the expense of moving the fence.”
From these findings and .judgment an appeal has been duly prosecuted to this court.
The testimony introduced by appellees tended to show that, although a road had been laid out and ordered opened along the line designated in appellees’ petition, it never had been actually opened; that, although appellants herein had received an allowance of damages in the sum of $40 for the land supposed to be taken under the county court’s order of 1899, they had never moved back their fence, and that the road remained and was used just as it had been prior to the order of 1899 opening the road on the section line; that several surveys had been made to ascertain where the section line was, but that said line was never definitely located and the road opened on said section line in accordance with the order.
All orders of the county and circuit courts pertaining to laying off the road were introduced in evidence by appellants herein, as well as evidence tending to show that the road had been actually laid off and opened in accordance with the order of 1899. Appellants also introduced testimony tending to show that, if the road as actually used is not on the section line, and if, when moved, it should take a strip off of appellants’ forty, the land thus taken would be worth, at the time of the trial of the cause, $650.
If, according to the contention of appellants, the road is actually on the section line, in accordance with the order of 1899, for taking- it appellants received damag-es in the sum of $40, they would not be damaged in the least by re-establishing the road on the lands already occupied by it. The order opening it would be a matter of form, and could not result in any damage whatever to them.
If, on the other hand, appellants received compensation for a road on the section line, which the undisputed evidence showed they did, they would have no right to retain this money and refuse to allow the road to be actually opened on the line designated, unless the matter at issue had once been litigated between the same parties and adjudged to have been opened on the line designated in the order of 1899. Appellants insist that this is exactly what was done, and that all matters now at issue in this proceeding are res judicata under the judgment of the circuit court of 1899, on an appeal from the county court’s order that the road be opened by the road overseer of that district. The order and judgment of 1899 relied upon by appellants does not say that the road was laid off exactly on the line designated in the order of the county court of 1899. The court only found ' and decreed that the road was laid off in substantial conformity thereto. Appellees had a right to have the road laid off exactly on the line,’ and this, we understand, is what they attempted to do in their petition filed in 1926, upon which the judgment and the order of the circuit court is based, from which they are now appealing.
There is ample evidence in the record to sustain the finding and judgment of the circuit court from which this appeal is prosecuted.
The judgment is therefore affirmed. | [
116,
108,
-4,
108,
-22,
64,
16,
-100,
80,
-87,
116,
83,
-81,
-50,
4,
113,
-29,
-67,
85,
121,
-27,
-78,
91,
72,
18,
-13,
127,
71,
-16,
73,
-18,
-74,
78,
57,
74,
25,
-60,
64,
-49,
28,
-18,
-120,
91,
76,
81,
-32,
56,
39,
18,
15,
117,
47,
-29,
40,
48,
67,
-19,
108,
73,
46,
89,
-14,
-104,
-41,
30,
7,
1,
-58,
-102,
1,
104,
57,
-104,
53,
12,
56,
119,
-90,
-110,
100,
77,
-103,
8,
-28,
102,
11,
36,
-17,
-72,
-120,
6,
-6,
9,
-90,
-94,
25,
-21,
1,
-98,
29,
92,
84,
7,
126,
-83,
101,
95,
104,
9,
-53,
-78,
-73,
-59,
60,
-124,
19,
-21,
13,
48,
118,
-49,
-30,
91,
-57,
23,
-101,
-121,
-80
] |
J. Fred Jones, Justice.
Eugene and Noble Jarvis were separately found guilty in the Municipal Court of Newport in Jackson County, Arkansas, on two separate charges of selling or giving intoxicants to minors. They each were fined $150.00 and costs in the Municipal Court and appealed to the Jackson County Circuit Court where the cases were consolidated by agreement. When the case came on for trial in the circuit court, the defendants filed a motion to dismiss because “there is no such crime ‘as selling to minors.’ ” The trial court granted the motion and dismissed the charges. The state has appealed and relies on a single point for reversal:
“Arkansas statute 48-903 did not repeal Arkansas statute 41-1117.”
Arkansas Statutes Annotated § 41-1117 (Repl. 1964) is digested under chapter 11 having to do with criminal offenses pertaining to children. This section was enacted on March 8, 1879, amended in 1889, and having survived the 18th amendment to the Federal Constitution, it remains as follows:
“Any person who shall sell or give away, either for himself or another, or be interested in the sale or giving away of any ardent, vinous, malt or fermented liquors, or any compound or preparation thereof called tonics, bitters or medicate^ whiskey, to any minor, without the written consent or order of the parent or guardian, shall be deemed guilty of a misdemeanor, and on conviction "thereof shall be fined in any sum not less than fifty [$50.00] nor more than one hundred dollars [$100].”
In 1935 the Arkansas legislature enacted “The Arkansas Alcoholic Control Act” (Act 108 of 1935). Article VI of this act insofar as it relates to the question here presented, is as follows:
“Section 1. It shall be unlawful to sell intoxicating alcoholic liquors at the places, on the day, during the hours, to the persons or under the circumstances set out below, and the penalties herein prescribed shall be in addition to any other penalty prescribed by law on account of sale of intoxicating liqnor:
“ (a) .Any person who shall sell, give away, or dispose of intoxicating liqnor to a minor or habitual drunkard or an intoxicated person shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ($250.00) Dollars, and for the second and subsequent offenses, he shall be guilty of a misdemean- or and punishable by a fine of not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars or by imprisonment in the county jail for not less than six (6) months nor more than (1) year, or both so fined and imprisoned in the discretion of the jury.”
By Act 356 of the Acts of 1941, Act 108 of 1935 was amended as follows:
“Section 1. That Section 1 of Article 6 of Act 108 of the Acts of the General Assembly of the State of Arkansas for 1935 shall be amended to read as follows:
“It shall be unlawful to sell intoxicating alcoholic liquors at the places, on the day, during the hours, to the persons, or under the circumstances set out below, and the penalties herein prescribed shall be in addition to any other penalties prescribed by law on account of the sale of intoxicating liquors:
“(a) Any person who sell, give away, or dispose of intoxicating liquor to a minor, or habitual drunkard or an intoxicated person shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than $500.00 nor more than $1,000,00 or confinement for not more than one year in the Arkansas State Penitentiary, or both. ’ ’
Act 218 of the Acts of Arkansas for 1943 was entitled “An Act to Amend Act 356 of the Laws of 1941,” and provides as follows:
“ Section 1. That Section 1 of Act 356 of the laws of 1941 is hereby expressly repealed and there is . substituted in lieu thereof the following:
“It shall be unlawful to sell intoxicating alcoholic liquors at the places, on the day, during the hours, .to the persons or under the circumstances set out below, and the penalties herein prescribed shall be in addition to any other penalty prescribed by law on account of sale of intoxicating liquor:
“ (a) Any person who shall sell, give away, or dispose of intoxicating liquor to a minor or habitual drunkard or an intoxicated person shall be guilty of a misdemeanor and for the first offense be punishable by a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ,($250.00) Dollars, and for the second and subsequent offenses, he shall be guilty of a misdemean- or and punishable by a fine of not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars, or by imprisonment in the county jail for not less than six (6) months nor more than one (1) year, or both so fined and imprisoned in the discretion of the court or jury.”
At the same session of the legislature in 1943, Act 257 was also enacted by the General Assembly, and except for the enacting and emergency clauses, this entire act is as follows:
“AN ACT to Make the Sale of Intoxicating Liquor to a Minor or on Sunday Misdemeanors, and Fixing the Punishment Therefor.
“Section 1. The sale, giving away or other disposition of intoxicating liqnor to a minor is declared to he a misdemeanor, and any person who shall sell, give away, or otherwise dispose of intoxicating liq-nor to a minor shall he punished hy a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ($250.00) Dollars for the first offense; and for the second and subsequent offenses he shall he punished hy a fine or [sic] not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars or hy imprisonment in the county jail for not more than one year, or both such fine and imprisonment in the discretion of the jury or court.
“Section 2. The sale of intoxicating liquor on Sunday is declared to he a misdemeanor, and any person who shall sell intoxicating liquor on Sunday shall be punished by a fine of not less than One Hundred ($100.00) Dollars nor more than Two Hundred and Fifty ($250.00) Dollars for the first offense; and for the second and subsequent offenses he shall be punished hy a fine of not less than Two Hundred and Fifty ($250.00) Dollars nor more than Five Hundred ($500.00) Dollars or by imprisonment in the county jail for not more than one year, or both such fine and imprisonment in the discretion of the jury or court.
“Section 3. This Act shall not be construed to repeal any law with respect to the sale of intoxicating liquors except to minors and on Sundays; and all laws and parts of laws in conflict herewith are repealed.
“Section 4. The Legislature finds as a matter of fact that there are a great many violations of the law with respect to the sale of intoxicating liquor to minors and on Sundays, which, on account of present provisions of the law making such acts felonies, cannot in many cases be enforced; that the practice of selling intoxicating liqnor to minors and on Sundays should be stopped and can best be prevented by making such acts misdemeanors.” (Emphasis supplied).
Act 218 of 1943 is digested as Ark. Stat. Ann. § 48-901 (a) (Repl. 1964), and the only difference in amend-atory Act 218 of 1943 and Act 257 of 1943, insofar as the sale of - intoxicating liquor is concerned, is that Act 218 (Ark. Stat. Ann. § 48-901 [a]) carries an optional minimum jail sentence of six months, whereas Act 257 merely limits the jail sentence to not more than one year, and Act 257 provides “this act shall not be construed to repeal any law with respect to the sale of intoxicating liquors except to minors and on Sundays; and all laws and parts of laws in conflict herewith, are repealed.” (Emphasis added).
It would appear, therefore, that Act 257 of the Acts of 1943 is the last word from the legislature on the sale of intoxicating liquor to minors where knowledge of minority is not an element, and we are of the opinion, that the legislative intent in enacting this legislation is clearly apparent from sections 3 and 4, supra.
We therefore hold, that Act 257 did repeal so much of Ark. Stat. Ann. § 41-1117 as is in conflict with Act 257 pertaining to the sale of intoxicating liquors to minors. The written consent or order of the parent or guardian as provided in § 41-1117 is no longer available as a defense under Act 257, and the penalty provision under $ 41-1117 has been increased as set out in Act 257, supra.
Apparently Act 257 of 1943, did not fully accomplish the purpose of its enactment, as expressed in § 4 of the act, so in 1961 the General Assembly saw fit to strengthen the laws against selling intoxicants to minors by the enactment of entirely new and separate legislation.
Act No. 180 of 1961 (Ark. Stat. Ann. § 48-903 [Repl. 1964]) with the exception of the enacting clause, is as follows:
“AN ACT to Make It Unlawful for Any Person to Knowingly Sell, Give or Otherwise Furnish Any Alcoholic Beverage to Any. Person Under the Age of Twenty-One Years; to Prescribe Penalties for the First and Subsequent Convictions for Violations of This Act; and for Other Purposes.
“SECTION 1. It shall he unlawful for any person knowingly to sell, give, procure, or otherwise furnish any alcoholic beverage to any person under twenty-one (21) years of age.
“SECTION 2. Any person violating this Act shall upon a first conviction therefor be deemed guilty of a misdemeanor and shall be fined One Hundred Dollars ($100.00); upon a second conviction within three (3) years, such person shall be deemed guilty of a felony and shall be imprisoned in the State penitentiary not less than one (1) year nor more than five (5) years and shall be fined Five Hundred Dollars ($500.00); upon a third or subsequent conviction within five (5) years, such person shall be deemed guilty of a felony and shall be imprisoned in the State Penitentiary not less than twenty-one (21) years nor more than fifty (50) years.” (Emphasis supplied).
By Act 120 of the Acts of Arkansas for 1967, the General Assembly re-enacted the provisions of Act 180 of 1961 with the addition of an optional ten day jail sentence as additional penalty on first offense. This act became law without the signature of the Governor on June 30, 1967, and at the same session of the General Assembly, Act 277 of the Acts of 1967, was enacted which, with the exception of the enacting clause, is as follows:
"“■AN ACT to Make It Unlawful for Any Person to Knowingly Sell, Give or Otherwise Furnish Any Alcoholic Beverage to Any Person Under the Age of Twenty-One Years; to Prescribe Penalties for the First and Subsequent Convictions for Violations of This Act; and for Other Purposes.
“SECTION 1. It shall be unlawful for any person knowingly to sell, give, procure, or otherwise furnish any alcoholic beverage to any person under twenty-one (21) years of age. Provided, however, that this Act shall not apply to the serving of such to one’s family or to the use of wine in any religious ceremony or rite in any established church or religion.
“SECTION 2. Any person violating this Act shall upon a first conviction wherefor be deemed guilty of a misdemeanor and shall be fined not more than Five Hundred Dollars ($500.00) or by imprisonment for not more than ten (10) days, or by both such fine and imprisonment; upon a second conviction within three (3) years, such person shall be deemed guilty of a felony and may be imprisoned in the State Penitentiary not less than one (1) year nor more than five (5) years and shall be fined not more than Five Hundred Dollars ($500.00) or both.
“SECTION 3. All laws and parts of laws in conflict with this Act are hereby repealed.”
This Act was approved by the Governor on March 10, 1967.
It is clear to us that the General Assembly intended to enact, and did enact, two separate and nonconflicting statutes pertaining to the sale of intoxicants to minors. By Act 257 of 1943 the sale, giving away or other disposition of intoxicating liquor to a minor is made a misdemeanor with punishment for violation fixed at a fine of not less than $100.00 nor more than $250.00 for the first offense, and not less than $250.00 nor more than $500.00 or imprisonment in the county jail fox not more than one year or both snch fine and imprisonment as provided in the act. This act repeals all laws in conflict with it and the consent of a parent or guardian is no defense to the enforcement of its provisions.
By Act 180 of 1961 (Ark. Stat. Ann. § 48-903 [Repl. 1964]) to knowingly sell, give, procure, or otherwise furnish any alcoholic beverage to any person under 21 years of age is made a misdemeanor for the first offense and a felony upon a second and subsequent conviction, with penalties as amended by Act 277 of the Acts of 1967.
We conclude, therefore, that the legislative intent is clearly spelled out in the acts, supra, and is supported by public policy. We conclude that to unknowingly sell, give away, or dispose of intoxicating liquor to minors is a misdemeanor with attending penalty for violation as provided in Ark. Stat. Ann. § 48-901 (except that the jail sentence may be imposed for any time up to one year), and to knowingly do so is a misdemeanor for the first offense and a felony for subsequent offenses with penalties as provided in Ark. Stat. Ann. § 48-903, as amended by Act 277 of 1967, supra.
Error declared.
Byrd, J., dissents. | [
-16,
-22,
-36,
60,
42,
-16,
107,
-80,
3,
-13,
-91,
-13,
-21,
84,
17,
49,
-93,
-17,
84,
41,
-60,
-121,
23,
65,
-54,
-37,
89,
-57,
-76,
77,
-19,
-12,
79,
52,
-50,
-11,
102,
-52,
-23,
-38,
-126,
9,
59,
104,
115,
-97,
52,
42,
22,
10,
97,
30,
-66,
47,
94,
-55,
105,
108,
73,
-71,
89,
-72,
-104,
-99,
-117,
18,
-95,
48,
-103,
-123,
-32,
108,
-100,
49,
9,
-24,
115,
-122,
-122,
84,
15,
-103,
-116,
96,
-26,
-96,
21,
-25,
-96,
-116,
-66,
-81,
-71,
-121,
-56,
121,
75,
-116,
-65,
-44,
58,
16,
10,
-6,
107,
-34,
81,
108,
-128,
-53,
52,
-95,
45,
56,
68,
19,
-53,
103,
48,
117,
-41,
118,
126,
85,
82,
-101,
-122,
-43
] |
Mehaffy, J.
On April 25, 1934, the appellee, Bon McCourtney, sued appellant, L. H. Kahre, in the circuit court of Craighead county for $350 for professional services as a lawyer.
On March 22, 1935, the appellee filed allegations in garnishment against appellant L. H. Kahre and H. F. Schroeder, a groceryman. On March 25, 1935, L. H. Kahre filed schedule setting out his exemption, claiming in such schedule that the amount of money due from Schroeder was not subject to payment of his debts because it belonged to his wife, Mrs. Elizabeth Kahre. On April 1, 1935, L. H. Kahre executed a deed conveying lot 3, block 0 in Nesbitt’s First Addition to Jonesboro, Arkansas, to his wife, Elizabeth Kahre, stating in the deed that the consideration for same was because the separate money of the wife had been used to purchase the property, and that Elizabeth Kahre was the equitable owner and entitled under the law to have the legal title to the lands in her name.
On September 3,1935, appellant, Elizabeth M. Kahre, filed intervention in the circuit court setting up her claim to the above described real estate. On the same date Schroeder answered the garnishment denying that he was indebted to L. H. Kahre. Appellee answered the intervention and the cause was transferred to chancery court, but on September 29, 1935, the cause was transferred back to the circuit court and judgment for $150 was rendered against L. H. Kahre in favor of appellee.
On January 24, 1941, appellee brought the present suit in chancery court against appellants and against the Home Owners’ Loan Corporation in which he allfeged the filing of the original suit in the circuit court in April, 1935, alleged the filing of allegations and interrogatories in garnishment against Kahre and Schroeder and alleged the execution and delivery of the deed from L. H. Kahre to Elizabeth. Kahre on April 4,1935. L. H. Kahre and his wife had executed a mortgage to the Home Owners’ Loan Corporation to secure a loan of $1,786 prior to the execution and delivery of the deed by L. H. Kahre to his wife on the same land. Appellee alleged that the deed from Kahre to his wife was fraudulently given for the purpose of delaying and hindering the collection of the debt due appellee, and alleged that the property was urban property located on a corner lot 125 by 170 feet. There was a residence, a store building and a five-room bungalow on the property. He alleged that the residence was worth $2,500, that the rest of the property was worth $1,800 and prayed that the deed from L. H. Kahre to his wife be set aside, and that a lien be declared upon the property to satisfy appellee’s judgment for $161.25.
Elizabeth M. Kahre filed separate answer alleging that she was the owner of the real estate; admitted that the lands were mortgaged to the Home Owners’ Loan Corporation; alleged that the land described was purchased with her own separate money, no part of which belonged to her husband, and that the deed from her husband to herself was made for the purpose of making the record and the legal title to the property reflect the true ownership of appellant, which had existed for long years prior thereto and was made to do equity.
The chancellor entered a decree holding, in effect: (1) that on March 1, 1934, the Kahres executed a mortgage conveying the real estate involved to the Home Owners’ Loan Corporation to secure a loan of $1,786.70; (2) that on April 25, 1934, appellee, McCourtney, sued appellant, L. H. Kahre, for legal services which resulted in a judgment for $150 on February 17, 1935; (3) that on April 4, 1935, L. H. Kahre executed and delivered a deed purporting to convey the real estate involved to his wife, Elizabeth M. Kahre; (4) that the unpaid balance due the Home Owners’ Loan Corporation on April 1, 1935, was $1,783.33'; (5) that the unpaid balance due the Home Owners ’ Loan Corporation on April 1, 1941, is $1,200.62; (6) that the mortgage to the Home Owners’ Loan Corporation constitutes a first lien on the lands involved; (7) that Elizabeth M. Kahre was the equitable owner of the lands involved as to all persons on April 4, 1935, excepting creditors of L. H. Kahre existing at that time, of which the plaintiff, McCourtney, was one; (8) that the deed executed by L. H. Kahre to Elizabeth M. Kahre was executed for the purpose of defrauding the appellee, in the collection of his debt, and should be set aside and held for naught so far as the appellee was concerned, but should remain in full force and effect as between the grantor, L. H. Kahre, and the grantee, Elizabeth M. Kahre, as to all other persons excepting the creditors of L. H. Kahre existing at the time of the execution of said deed; and (9) ordering and decreeing that the deed from L. H. Kahre on April 4, 1935, be canceled and set aside in so far as it affected the rights of appellee, but should remain in full force and effect as between L. H. Kahre, grantor, and Elizabeth M. Kahre, grantee; that in so far as the rights of appellee were concerned, the title to the lands was declared to be in the- appellant, L. H. Kahre, subject to the prior lien of the Home Owners’ Loan Corporation.
Appellants excepted to the findings and decree of the court and exceptions being noted and overruled, the appellants prayed an appeal to the Supreme Court which was granted. The case is here on appeal.
The evidence shows that the deed tó this property had been in the husband’s name for a long while; that he managed it as his own, and that he mortgaged it to the Home Owners’ Loan Corporation, his wife joining in the mortgage; that before he made the deed to his wife, he had contracted this debt to the appellee. The deed to the property involved was made by Hr. Jackson on July 18, 1919, and the husband, L. H. Kahre, was the grantee.
Appellants cite and rely on 27 C. J. 433, 434. It will be observed, however, that the authority cited provides that the deed to the property cannot, in the absence of the elements of estoppel, be reached subject to the payment of his debts, and for that reason a conveyance by him to the equitable owner is not fraudlent as against his creditors.
Appellants also, in connection with the above cited authority, cite Fairhurst v. Lewis, 23 Ark. 435. In that case the son furnished the money with a distinct understanding that the deed should be made in his name, but by mistake it was made to his father. When the son came to Little Rock and was shown the deed, he at once expressed surprise and dissatisfaction at its being made to his father. This deed was made to the father on May 15, 1855, and the son procured a deed from his father and one from the original grantee, both of which were put on record. There was no delay on the part of the son, and no elements of estoppel, nor any evidence at all indicating that the father owned the land, except that the deed was in. his name, and as soon as the son learned of this, he immediately took steps to correct it.
The facts in this case are very different from the facts in the above case. In the instant case the husband not only had title to the land, but he mortgaged it as his property. In this case the husband was insolvent after deeding the property to his wife.
This court quoted with approval the following from Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913: “It is thoroughly settled in equity jurisprudence that conveyances made to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care, and when they are voluntary they are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck they are presumed conclusively to be fraudulent as to existing creditors.” Gavin v. Scott, 172 Ark. 234, 288 S. W. 391. Other cases cited are McConnell v. Hopkins, 86 Ark. 225, 110 S. W. 1039; Brady v. Irby, 101 Ark. 573, 142 S. W. 1124, Ann. Cas. 1913E, 1054; Papan v. Nahay, 106 Ark. 230, 152 S. W. 107; Simon v. Reynolds-Davis Gro. Co., 108 Ark. 164, 156 S. W. 1015; Burke v. New England National Bank, 132 Ark. 268, 200 S. W. 1018; Farmers’ State Bank v. Foshee, 170 Ark. 445, 280 S. W. 380.
Voluntary conveyances, however, are frequently presumed to be fraudulent, at least in the case of existing creditors and purchasers for value, regardless of the actual intent with which they are made. The cases are not harmonious as to the strength of this presumption. Some liold that when the conveyance is shown to he voluntary, the presumption of fraud is conclusive as to existing creditors, regardless of the actual intent of the parties or the financial condition of the grantor. In short, the mere existence of debts renders the voluntary conveyance fraudulent per se as to those creditors, and subsequent bona ficle purchasers. The claims of creditors rest on legal obligations, higher than the demands of affection or generosity, and a man must be just before he is generous.
There is no dispute about the appellee being an existing creditor at the time the transfer was made by Kahre to his wife.
“If the plaintiffs’ debt was in existence when the transfer was made, there could not be any doubt of their right to impeach it. For every voluntary alienation of his property by an embarrassed debtor is presumptively fraudulent against existing creditors. Indebtedness raises a presumption of fraud, which becomes conclusive upon insolvency.” Driggs & Co.s’ Bank v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am. St. Rep. 78; Goodrich v. Bagnell Timber Co., 105 Ark. 90, 150 S. W. 406.
While there is some conflict in authority, this court is thoroughly committed to the doctrine that voluntary conveyances when made to members of the household and near relatives of an embarrassed debtor are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.
Appellants contend that the transfer was not fraudulent because it was a homestead. The chancellor found that lot 3 in block 0 above referred to contains over one-quarter of an acre in area and has a value in excess of $2,500 and is urban property.
The finding of the chancellor on all questions of fact is supported by a preponderance of the evidence.
The decree is affirmed. | [
-16,
-19,
-72,
110,
-56,
-32,
58,
-126,
-5,
33,
53,
-45,
-23,
70,
12,
109,
-30,
25,
-32,
120,
-61,
-78,
7,
1,
-46,
-69,
-55,
85,
-80,
-33,
-28,
-42,
77,
48,
-53,
85,
-58,
-62,
-115,
92,
14,
-124,
11,
108,
89,
64,
48,
-21,
118,
9,
117,
-82,
-2,
47,
53,
88,
110,
46,
79,
63,
64,
-16,
-102,
5,
123,
7,
49,
102,
-104,
1,
106,
10,
-104,
49,
-123,
-8,
118,
38,
-122,
116,
3,
-101,
8,
52,
98,
34,
-115,
-17,
-24,
-120,
42,
124,
-103,
-90,
-94,
88,
27,
40,
-66,
-99,
120,
64,
87,
-12,
-19,
-43,
95,
40,
2,
-113,
-108,
-111,
29,
-12,
-97,
11,
-25,
71,
-75,
113,
-49,
98,
125,
67,
115,
-101,
-126,
-47
] |
McHaney, J.
Appellant Walls is the administrator in succession of the T. J. Phillips estate, and the other appellant is Alpha Phillips, the widow of T. J. Phillips. Appellees are his collateral heirs and the widows of two deceased brothers and the wife of appellee J. D. Phillips.
In Phillips v. Phillips, 203 Ark. 481, 158 S. W. 2d 20, appellant, Alpha Phillips, hereinafter referred to as appellant, “sought to have her dower rights in certain lands, belonging to her deceased husband, awarded to her and also for an accounting for her share of the rents and income derived from said lands subsequent to her husband’s death.” A decree denying her the relief sought was affirmed in said case.
T. J. Phillips died intestate January 12, 1938, without issue. Two days later his brother, A. B. Phillips, was appointed, qualified and served as administrator of his estate until his death on November 14, 1939. Two other brothers, Theo Phillips and J. D. Phillips, signed the administrator’s bond. Theo Phillips died November 30, 1936. Appellant Walls was appointed administrator in succession March 1, 1940, and, on April 4, 1940, he and appellant brought this action against the estate of A! B. Phillips, first administrator, his bondsmen or their heirs, alleging mismanagement of said estate and failure to account to appellant for the statutory allowances and dower due her. The prayer was for an accounting and for judgment for such amount as may be found to be due her. The answer was a general denial and pleas of the statute of limitations, of estoppel, laches, and res adjudícala. Trial resulted in a decree for appellees, with the exception that the court found, from reports of the administrator, A. B. Phillips, that he had received $236.99 more than he had accounted for, which amount was adjudged against appellees, with interest from April 19, 1937, at six per cent., and each side was taxed with one-half the costs. The complaint as to all other matters was dismissed for want of equity. The court found: “That as to all other assets and funds received and disbursed by the Administrator, as shown by said reports, the plaintiffs are not entitled to demand judgment — because of their long delay and laches in asserting said claims and demands, and that plaintiff Alpha Phillips is estopped from claiming dower for the reason that'she participated, acquiesced in and had knowledge of the acts and conduct of the Administrator in the disposition of the personal estate.”
In effect, this is a suit brought by appellants in the chancery court to falsify and surcharge the accounts of A. D. Phillips, first administrator of the estate of T. J. Phillips, deceased, and for judgment against his estate and against his bondsmen or their estates. A. D. Phillips and Theo Phillips are now 'both dead. For more than twelve years appellant permitted the estate of her husband to be administered by operation, management, sale, payment of expenses of administration, payment of debts for last illness and burial expenses, mortgaging of property to satisfy a judgment had against her husband in his lifetime, and the mortgage, foreclosed to satisfy same, without ever demanding or receiving any part thereof as dower.- Her right to dower in the real estate of her husband was decided against her in Phillips v. Phillips, supra.x`
The record here shows the personal estate of her husband at the time of his death to have amounted to $283.98 cash in banks and one saw mill rig that sold, under a proper petition and order of the probate court, for $55.50, and the household furniture in the home in which they lived, and of which appellant has, at all times, been in possession and now is. The value of the furniture and house furnishings is not shown, but whatever it is, she has received the benefit of it. Therefore, the total personal estate amounted to $339.48, and the record shows that he was heavily indebted, to the extent of insolvency. At the time of his death, T. J. Phillips owed a judgment debt to the Union Bank & Trust Co. of $2,498.77, dated October 10, 1937, but which had been reduced, when the claim was probated, on March 23, 1928, to $2,147. He owed a probated claim to Gridenhagen of $419.54, which has not been paid. He also owed the following: to Peoples Bank, Searcy, $1,800, secured by mortgage, which was foreclosed; to Bank of Searcy, $1,000’, secured by mortgage on the homestead, which was foreclosed; to the Commonwealth Building & Loan Association, Little Rock, $1,000, secured by a mortgage which was foreclosed. In addition, there were claims for his last illness, doctor, hospital, funeral and other bills totaling $706.70, all of which were paid by the administrator, reported to the court in his first settlement and approved by it and all of which was done with the knowledge of appellant and with her approval, or at least without objection from her.
One of the contentions made on this appeal is that appellant was entitled to $300 under § 80 and $150 additional under § 86 of Pope’s Digest. These sections have reference to the personal estate only. Section 87 provides that: “The widow shall apply for such property before it is distributed or sold, and not after.” We think appellant was clearly entitled to the allowance under § 80 if she had made timely application therefor, but not under § 86 as such additional allowance is conditioned by the provision therein, “when the estate is not insolvent,” and it rather plainly appears that the estate was insolvent. Appellant never at any time applied for an allowance under § 80, until she filed this suit, more than 12 years after the administrator was appointed and nearly five months after his death, long after all the personal estate in cash had been used to pay debts and claims and after the saw rig had been sold and used for like purposes. In the very recent case of Barnes v. Cooper, Adm’r, ante, p. 118, 161 S. W. 2d 8, we held the allowances provided by these sections were personal to the widow, and said “The right thereto is permissive, and, by § 87, ‘The widow shall apply for such property before it is distributed or sold, and not after,’ and this section apnlies to the allowance under § 86, as well as to that under § 80.” The court, therefore, properly denied her claim for such allowances.
Appellant also contends that she was entitled to dower out of the proceeds of the mortgage loan secured from the People’s Bank in the sum- of $2,500, dated February 28,1929. Conceding without deciding that she was so entitled at the time, it does not follow that she is now so entitled. This loan was secured for the specific purpose of paying off the judgment of the Union Bank & Trust Co., above mentioned, the details of which are set out in the former opinion in the case of Phillips v. Phillips. She made no claim to any part of this fund. She knew the purpose for which it was borrowed — to pay said judgment, which could not have been paid had she secured one-half of it by way of dower. In fact she signed a deed of trust on practically all the real estate to secure such a loan for the same purpose, but which was never consummated because some of the collateral heirs refused to sign. At that time the administrator, his bondsmen and appellant thought they, could work out this indebtedness by refinancing it, and Theo Phillips assured her she would be able to save her home, which was also under mortgage, made by her husband and herself, and perhaps they would have done so, but for the great economic depression which followed shortly thereafter, resulting in the insolvency and liquidation of some of the banks at Searcy. So confident were these brothers of deceased, that they could accomplish this end, that they, A. P., J. D. and Theo Phillips, obligated themselves to pay same, and appellant executed the mortgage by acknowledging the same. We agree with the trial court that appellant is now precluded from asserting any interest in the $2,500 loan both by laches and estoppel.
The complaint charged fraud and collusion on the part of the administrator and his brothers on his bond to dissipate and waste the assets of the estate. We think the allegations in this regard are too indefinite, too general in their nature, to constitute a sufficient averment of fraud, as fraud cannot be charged in general terms, without stating the facts and circumstances constituting it. As said in Mock v. Pleasants, 34 Ark. 63, found on p. 71, “Fraud is a term the law applies to certain facts, as a conclusion from them, and it is not in itself a fact. ’ ’ In Fogg v. Arnold, 163 Ark. 461, 260 S. W. 729, the late Judge Hart said: “It is unnecessary to cite authorities upon the rule, so often announced by this court, that a court of equity will not interfere with proceedings in probate courts for the settlement of an estate, except upon allegations of fraud or mistake. It is equally well settled that fraud or mistake cannot be charged without stating the facts and circumstances constituting it. It ■cannot be pleaded as a conclusion of law. ’ ’ The complaint' alleged that the administrator “wrongfully and fraudulently” took credit in his first-and second accounts for certain items therein set out without stating in what respect they were wrongful or fraudulent. Another allegation is that A. B., Theo and J. D. Phillips “wrongfully disposed of assets of said estate and wrongfully disbursed the proceeds derived therefrom, without authority from the probate court and in disregard for the rights ’ ’ of the widow and creditors, but it does not allege what assets were wrongfully disposed of or what proceeds were wrongfully disbursed, or wherein either -was wrong. But, assuming the allegations of fraud to be sufficient, the proof wholly fails to sustain them. The first account current was filed and approved in 1934. It is said no vouchers were filed as required by § 182 of Pope’s Digest evidencing the items paid out, nor were there any claims against the estate properly presented to the administrator as required by § 100 et seq. of Pope’s Digest. These failures to comply with the statute literally if there were such failures, are not sufficient to show fraud in allowing and paying the claims. Nearly all the items challenged were for debts incurred during the last illness and death of decedent and for expenses of administration in the repair, upkeep, insurance and taxes on houses and farms, and when questioned about these items, she could not say that any one of them was fraudulent, or that the administrator or his bondsmen profited by them. The most she could say was that she didn’t know. No fees of administration were charged and one of the brothers paid off a note of the decedent, made in his lifetime, with his own personal funds.
By the decree of the court, appellant- was awarded judgment against appellees in the sum of $236.99, with interest at six per cent, from April 19, 1937. In all other, respects the complaint was dismissed for want of equity. We agree that this action of the court is correct, and the decree is accordingly affirmed. | [
-48,
12,
-35,
125,
56,
0,
8,
-120,
115,
18,
119,
83,
-19,
87,
68,
111,
121,
105,
65,
110,
-92,
-77,
14,
-30,
-58,
-5,
-71,
85,
33,
72,
-3,
-41,
72,
112,
74,
81,
-58,
34,
109,
88,
12,
-127,
-118,
-23,
-39,
-112,
52,
117,
89,
76,
113,
-97,
-5,
40,
49,
-18,
72,
47,
-19,
-65,
-120,
-88,
-81,
-124,
125,
23,
-127,
37,
-102,
-115,
72,
10,
-104,
54,
-128,
-32,
115,
-106,
-42,
114,
75,
29,
40,
34,
-30,
16,
-39,
-17,
-80,
58,
62,
-10,
-99,
-90,
66,
-40,
67,
77,
-84,
28,
125,
84,
2,
-4,
-12,
-99,
76,
40,
-51,
-114,
-42,
-79,
28,
-16,
-107,
10,
-29,
-125,
114,
113,
-54,
-94,
93,
7,
63,
-73,
-114,
-48
] |
Humphreys, J.
Appellees are father and son. The father brought suit on March 19, 1941, against appellant in the municipal court at Camden, Arkansas, for damages to his automobile, injuries to himself and amount expended for physicians’ services to his son in the total sum of $175 and, as next friend of his son, $100 on account of injuries to him growing out of a collision between his and appellant’s automobiles through the alleged negligence of appellant in driving his (appellant’s) car into the intersection of two streets in the town of Bearden, Arkansas. Appellant filed an answer denying each material allegation of the complaint and pleading contributory negligence on the part of appellee, John Mosley, as the sole and only proximate cause of the injuries complained of.
The trial resulted in a verdict and judgment in favor of John Mosley against appellant for $75 and a verdict and judgment in favor of John Mosley, Jr., by his next friend, John Mosley, in the sum of $100, from which verdicts and judgments an appeal has been duly prosecuted to this court.
Appellant’s first contention for a reversal of the verdicts and judgments is that there is no substantial evidence to support them.
Appellee, John Mosley, testified that he was going-north on the Holly Springs road and entered the intersection of that road with a cross-road in Bearden and was on his own side of the road in the intersection when appellant. entered the intersection from the east and struck the front side of his automobile, or front fender, and knocked his car into the northeast corner of the intersection, and broke out the windshield, tore up his radiator and smashed the headlights to his damage in the sum of $75; that he received bruises and cuts over Ms body for which he claims no damages, and that his son received'severe cuts and bruises to his head and that on that account he was compelled to pay $25 to the physicians who dressed his wounds for which he claims damages in that amount; and that he claims damages as the next friend of Ms son on account of the personal injuries to Ms son in the sum of $100; that at the time of the collision appellee, John Mosley, was in the exercise of ordinary care for his own safety and the safety of his son.
Appellee testified that he entered the intersection before appellant did and did not apprehend that appellant would enter the intersection until he was out of Ms way, but that appellant came into the intersection and negligently and unnecessarily ran into his car before he could get out of the way; that when he realized appellant was approaching him, he turned to the right to avoid the collision, but his car was struck before he could do so; that he expended for repairs on his car the sum of $47.75 and $25 to the physicians for services they rendered to his son; that Ms son’s injuries were very painful and that it was about a month before he recovered; that the gash or cut received by his son on his head was several inches long and that his son has a scar on his head as a result of the injury; that his son is entitled to $100 damages on account thereof.
Appellee was corroborated as to his version of the collision by Red Crawford whose testimony is, in substance, that he was standing on the porch of a warehouse about fifty yards from the intersection; that John Mosley was going toward Holly Springs and entered the intersection first; that appellant and appellee, John Mosley, came together about the center of the intersection; that John Mosley was traveling on his right side; that they wound up in the northeast corner of the intersection; that John Mosley’s ear had entered the intersection when he first saw Mm, and that appellant was fixing to enter the intersection when he first saw Ms car; that John Mosley was clear up in the intersection when he saw his ear, and that after he was up in there he noticed appellant’s car at the outside of the intersection; that John Mosley got to about tbe center when appellant was coming into the intersection, and that John Mosley turned over to the right and tried to avoid the collision; that they struck past the center line, but that he could not give the exact number of feet.
Appellant and his sister, who was riding with him on the front seat, both testified that they entered the intersection before John Mosley did, and that John Mosley then came into the intersection and ran into appellant’s car. Appellant further testified that he did not stop because he felt that he had the right-of-way, having entered the intersection first.
The evidence as to which entered the intersection first and which had the right-of-way was in sharp conflict, and the jury under correct instructions concluded that appellant was to blame for the collision and resulting injuries to appellees.
We cannot agree with appellant that the undisputed evidence shows that appellee, John Mosley, vras to blame for the collision. To say the least of it as to which one was to blame under the conflicting testimony was a jury question. The jury has found that appellant was to blame, and there is substantial evidence in the record to-sustain the verdicts of the jury.
Appellant contends that the verdict in favor of John Mosley for $75 is contrary to the undisputed evidence for the reason that the cost of repairs was $47.75, and that the amount paid the physicians was $25, and the total amount is $72.75 instead of $75 for which the jury returned the verdict in favor of appellee, John Mosley. It is true the undisputed evidence shows that the two items amount to $72.75, and that the two items became the basis for the jury verdict. It is apparent that the jury made a mistake in adding the two amounts. The difference is so little that we think the mistake may be corrected without injury to appellant by reducing the verdict of $75 to $72.75, so the verdict and judgment in favor of John Mosley is modified to that extent and, as modified, is affirmed.
Appellant also contends that the court instructed that the measure of damages would be the difference between the market value of the automobile before and the market value after the collision. It is argued by appellant that there is no evidence in the record as to the market value of the automobile before and after the collision, but we think the jury was warranted in finding the cost of the repairs represented the difference between the market value of the car before and after the collision.
Appellant also contends for a reversal of the verdict and judgment in favor of John Mosley, Jr., because the court instructed the jury that, “if John Mosley, Jr., while in the exercise of reasonable care on his own part, received injuries, and the proximate cause of those injuries was negligence upon the part of the defendant (appellant), as alleged in the complaint, then John Mosley, Jr., would be entitled to recover, regardless of the fact that you may or may not find that the plaintiff, John Mosley, Sr., (appellee) was negligent. ’’
Irrespective of whether the instruction was erroneous it was harmless for the reason both in finding for John Mosley, Jr., and John Mosley, Sr., the jury found that John Mosley, Sr., was not guilty of negligence.
The judgment is, therefore, affirmed in favor of John Mosley, Jr., by his next friend, and the judgment in favor of John Mosley is reduced to $72.75, and as modified is affirmed. | [
-80,
104,
-16,
60,
74,
32,
42,
10,
124,
-125,
117,
-13,
-17,
-49,
65,
117,
-22,
47,
-43,
59,
-27,
-77,
87,
42,
-110,
-77,
121,
-43,
-76,
-53,
-28,
-12,
77,
56,
-62,
-111,
-62,
-62,
-51,
20,
-58,
0,
43,
-28,
25,
18,
52,
56,
84,
7,
49,
-113,
-62,
42,
54,
-37,
109,
44,
89,
-88,
-40,
48,
-54,
5,
95,
2,
-80,
-28,
-102,
-127,
88,
24,
-104,
48,
40,
-72,
114,
-90,
-126,
116,
65,
-103,
8,
102,
102,
2,
65,
-25,
-72,
-120,
14,
-82,
31,
-92,
-86,
97,
73,
9,
-66,
-97,
122,
84,
14,
-6,
-3,
93,
93,
40,
35,
-53,
-106,
-79,
-51,
-88,
-36,
3,
-21,
31,
52,
117,
-33,
-14,
93,
69,
55,
-101,
-98,
-110
] |
Carleton Harris, Chief Justice.
This litigation relates to a suit brought by Rufus Hodges, appellant, seeking specific performance of a contract, wherein Edd Hodges had allegedly agreed to leave appellant certain property by will. Edd Hodges died on April 21, 1964, a resident of St. Francis County, leaving a widow, but no descendants. The widow was appointed executrix, but evidently declined to serve, and the First National Bank of Eastern Arkansas was appointed administrator with the will annexed. In January, 1965, Rufus Hodges instituted a suit in the St. Francis Chancery Court, in which he alleged, inter alia, that, upon retiring from naval service, he had returned to Forrest City at the behest of Edd Hodges (according to appellant, a distant relative). Hodges, it was alleged, in consideration of appellant’s working on his farm, had agreed to make a will, leaving to appellant farms known as the Noah Hodges place, the Powell place, and the George Pngli place, together with one-third of Edd’s stock in the Yocona gin. Edd Hodges did devise to Rufus the Maggie Powell place, consisting of 160 acres, but the other properties, together with all stock in the Yocona gin, were left to the widow, Betty Jo Hodges. Mrs. Hodges answered, denying the allegations, and subsequently the bank intervened as to the personal property. On trial, the court held that Rufus Hodges had not established the existence of the alleged contract by evidence that was clear, satisfactory, and convincing, and the complaint was dismissed. From the decree so entered, appellant brings this appeal. It is asserted that the court erred in ruling that evidence of the contract between the two Hodgeses fell short of the standard of proof required.
Appellant testified that, in 1953, while he was serving with the Navy, he had some conversations with Edd, who suggested that when it was time for Rufus to get out of the Navy, he should contact Edd; in compliance with this request, Rufus called thirty days before his discharge date, and told Edd that he had an opportunity for a Civil Service job, but the latter told him to come on back to St. Francis County: “We can work out something.” Upon discharge, on February 1, 1957, appellant returned to Forrest City with his wife and children, arriving on February 4. The witness said that E'dd wanted him to take over some of his farming operations, but told him that the house he was to live in was then being occupied by a man named Kelly, and that as soon as he could get Kelly out of the house, the Rufus Hodges family could move in.
There was no agreement as to whether appellant would be an employee, a renter, a partner, or what par ticular status Rufus would occupy, but Edd said that tbey would get it “worked out. ’’ According to tbe witness, the owner stated that it would be about six months before the house would be ready for Rufus, and appellant’s duties were due to start when he moved into the house. Thereafter, Rufus went to work for the Forrest City Machine Works, where he was employed for six months, and he then was employed by Tale and Towne for fourteen months. Rufus finally moved to the Hodges farm on October 4, 1958.
Appellant testified that there had never been any definite arrangements between the parties until August, 1958, when Edd stated that he would start Rufus at a salary of $250.00 per month, furnish a truck and expenses, and fix up the house in a manner that would be satisfactory to Rufus. Appellant said that he paid $1,-100.00 of the house repair expense, moved in on the October date, and was told that he would go on the payroll around March 1. In the meantime, appellant resumed his employment at Yale and Towne until that time. At the end of his first month’s employment with Edd, Rufus was given a check for $150.00, instead of $250.00, and he talked to Edd about it. The latter, said appellant, advised that if Rufus wanted to work, he (Edd) would “make it up,” and then stated he would leave to Rufus the Noah Hodges place, which contained about 1,000 acres. Rufus was to mainly work with the cattle.
According to appellant, this arrangement lasted for about two years, and he then entered into a lease agreement. This agreement reflects that Rufus had leased 532 acres of farm land from Edd for a period of three years, commencing January 1, 1959; however, instead of three years, the lease recites that it shall last until 1966, the figure, “66,” having obviously been altered from some other date. The instrument reveals that Edd was to receive one-fourth of the crop as rent; further, there appears in handwriting, in the body of the lease, these words:
“Rufus Hodges has two Ford Tractors, one 900, one 800, and one J. D. 60 with planter, disc, breaking plow, and two trailers. When his half interest in 60 head of cattle sold, Half will go for tractors. Will take care of them in full. E. H.”
Rufus had testified that he “bought into the herd” of cattle, paying $1,000.00 for his interest in same. He stated that he was not given a receipt; that Edd said, “You don’t need to have a receipt. You got my word. Don’t I always stand behind my word?” He also testified that he owned some of the farm machinery; further, that he never received any settlement whatever on the 1959 crop, which was a good one; when asking for a settlement from Edd, he would always be put off. Likewise, he stated that he never received any settlement for the 1960 crop, but was told by Edd that that money would apply on Rufus’ purchase of equipment. Appellant contended that he had already paid for the equipment. Edd then stated, “You’re going to get that place down there. You got where you worry too much about stuff lately. Let me worry.” The “place,” according to appellant, was the Noah Hodges place, containing 732 acres of land, which also included two other farms, known as the Emmett Powell place and Fisher place: “He told me, ‘You stay on until the end of this thing and you’re going to get this place right here.’ 1 said, ‘Can I depend on that?’ He said, ‘You got my word.’ ”
Rufus stated that he did not receive any settlement for the 1961 and 1962 crops, which also were being farmed on the share basis, but Edd would always refer to the fact that he was leaving the place to Rufus. The witness stated that in 1963 he was told by Edd that, if appellant would work at the gin, Edd would give him one-third of the gin stock. The testimony was very lengthy, and other matters will be subsequently mentioned ; however, the above testimony is sufficient to explain the basis of the contention by appellant that there was a contract between him and Edd to the effect that the latter would leave the several farms and one-third of the stock to him.
Appellant then offered several witnesses on his behalf. Witness Barney Carlton and C. D. Simmons added nothing to the proof, the former testifying that Rufus was injured while working at Yale and Towne, and the latter stating that he had never heard Edd Hodges say anything about what he intended to do with the Noah Hodges place. Ralph Dye testified that Edd told him that Rufus was a hard worker, and that he was going to see that Rufus was taken care of; that Rufus would not lose anything by repairs being made on the house, stating to Mrs. Rufus Hodges, “When I’m gone you can do what you want with it. ’ ’ He said he did not recall ever hearing Edd say that he intended to leave the Noah Hodges place to Rufus. Richard Hodges, a brother of appellant, stated that Edd told him in 1957, “Maybe some day Rufus will own this place,” and several times said, “Well, we’ll clear this land. Maybe Rufus "will still wind up with it. ’ ’ Henry Birmingham testified that Edd told him that he had willed Rufus the George Pugh place and the Noah-Hodges place. Rob Simmons, a former employee of Edd Hodges, testified that about two years before Edd died, he told the witness that he would leave the place to Rufus.
Mrs. Marie Swan, secretary to present counsel for appellant, testified that, in the office, there was a retired file, called “Hodges will.” She stated that in this file there was a draft of a will which had been prepared by Mr. Norton, and memoranda relating to changes to be made in this will. These memoranda were dated January 17, 1959, January 24, 1959, February 12, 1959, and March 7, 1959. The memoranda were then offered in evidence, same reflecting that Rufus Hodges was to be left the Noah Hodges place (except the northeast quarter of the northwest quarter of Section 30), the Emmett Powell place, the Fisher place, and one-third of Edd’s stock in the Yocona gin. There was then introduced a copy of a will dated March 7, 1959, under the terms of which Rufus Hodges was devised the properties mentioned in the memoranda, and also one-third of the gin stock. The copy indicates that the will was witnessed by three persons, and a note reflects that the original had been taken by Edd Hodges. This testimony was objected to by defendants, and the court, though expressing doubt whether the evidence was admissible in view of the attorney-client relationship, admitted same.
Appellee argues that the testimony of Rufus Hodges was not admissible, since it violates the “dead man’s statute,” (‘Section 2 of Schedule, Arkansas Constitution) ; however, we agree with appellant that the First National Bank of Eastern Arkansas, administrator, was not a necessary party, and we, accordingly, hold the testimony of Rufus to be admissible. Likewise, as mentioned, the testimony of Mrs. Marie Swan was objected to, but there is no need in discussing whether this evidence was admissible, for when we consider the testimony of appellant, the evidence offered by his witnesses, including Mrs. Swan, and the exhibits offered into evidence, i. all of his evidence, we still are unable to find that Rufus Hodges established the oral agreement (s), upon which he relies, by clear, cogent and decisive evidence. In Taylor v. Milam, 219 Ark. 592, 243 S. W. 2d 644, a suit filed to enforce specific performance of an oral contract to devise land, it being alleged that Milam had made such an agreement in consideration of appellant’s taking care of him, this court said :
“The rule has been many times announced by this court that, in order to establish title to and ownership of land on an oral contract, the burden is on the person seeking to establish the contract to show execution thereof by a higher degree of proof than a mere preponderance of the testimony. To establish such a contract the evidence of its execution must be clear, cogent and decisive. It must be so strong as to be substantially beyond a reasonable doubt. Tucker v. Peacock, 216 Ark. 598, 227 S. W. 2d 929.”
Numerous other Arkansas cases are to the same effect. Without any hesitancy whatsoever, we very quickly hold that appellant’s proof in the instant litigation does not comply with that standard.
It is really difficult to understand exactly what appellant asserts as the precise contract. As to the real estate, there are several versions of what Edd purportedly promised to convey. The complaint alleges that he promised to convey the Noah Hodges place, consisting of 407.18 acres, the Maggie Powell place containing 160 acres, and the George Pugh place, containing 169.7 acres. However, on trial, Rufus testified that the Noah Hodges place contained 732 acres, and consisted of the Noah Hodges place proper, the Emmett Powell place (167.79 acres), and the Fisher place (86 acres). He stated that the George Pugh place was the 160 acres north of the Noah Hodges place. At another time, appellant testified that Edd Hodges, while standing at the corner where John Devasier lives, promised to leave him “everything north and west from this corner.” The location of the corner was later established by other testimony, and according to appellee’s evidence, would include the following lands: Noah Hodges place (less 40 acres), Fisher place, Emmett Powell place, George Pugh place, and Maggie Powell place. Appellant, in his reply brief, admits that it is not entirely clear from the evidence as to what tracts of land constituted the “Noah Hodges place,” and it is also admitted that the copy of will offered in evidence did not entirely corroborate appellant’s testimony. However, it is insisted that the evidence as to the agreement to devise the Noah Hodges place proper, is entirely clear and convincing. Here again, we do not agree.
Rufus testified that *he returned to Forrest City at the urging of Edd for the purpose of entering into a working agreement; yet, it seems strange that Rufus, upon returning to that city (a number of his and his wife’s relatives living in the vicinity) purchased a farm (which was later traded for equity in a house), and worked for other concerns for over a year and a half before moving to the Hodges farm. He testified that his compensation was cut from $250.00 to $150.00 the very first month, and subsequently stated that he never received any part of his share of the crop money for 1959, 1960, 1961 and 1962. It is not reasonable for one to fore-go payriient for several years’ work purely on the basis of a promise from someone, who had (according to appellant) already violated earlier agreements. The same is true with reference to the farm machinery. Rufus testified that he had paid for it, but that Edd contended that he had not. This, in itself, would normally have occasioned litigation. Appellant, in large measure, depends upon the handwritten provision in the lease to establish his interest in the farm machinery and cattle. One gains the impression from the evidence, that the principal reason for entering into the lease was to enable Rufus to acquire benefits paid by the government under the GI farm training program. To qualify for this program, the veteran had to either rent, or uwn, a farm, and he also had to make arrangements to obtain equipment. The program lasted for three years, during which time the veteran would attend school two hours per week, and Rufus was eligible for benefits commencing at $130.00 per month, the amount being successively smaller each month until the final payment of $44.29 was paid for the last month (total of thirty-six months).
Evidence was offered by the decedent’s bookkeeper, Banks Wilkinson, that he could find no entries showing Rufus Hodges as a tenant; that Rufus never had a rent account; that the cattle sale by Edd Hodges in 1958 did not involve Rufus, and the bookkeeper stated that he had never seen a settlement sheet for appellant. Wilkin son also stated that the handwriting did not appear to he that of Edd Hodges; he testified that he did not recall Edd’s ever using the initials, “E. H.”
Rufus Hodges stated that he borrowed $1,000.00 from his brother-in-law, who lived in the state of Washington, for the purpose of purchasing the interest in the cattle owned by Edd Hodges. The loan was corroborated, but not the purpose of it. None of the witnesses offered by appellant testified relative to any claim of ownership by Rufus of the cattle, tractors, farm equipment, or gin stock.
Not a single witness corroborates the alleged fact that Edd had said that he was leaving, or would leave, any property to Rufus, because of an agreement entered into between them. Henry Birmingham testified that Edd had told him that he had left to Rufus the George Pugh place and Noah Hodges place, and Rob Simmons testified that Edd had told him that he would leave the Noah Hodges place to Rufus. The testimony of the other witnesses offered by appellant does not even come close to going as far as these two. Of course, there is quite a distinction between property that is devised as a gift —and property devised by reason of contract. Actually, Edd did devise to appellant a 160-acre farm (Maggie Powell place), which, according to appellant’s own testimony, was rather valuable property. When asked what he would “take for it,” Rufus replied, “$100-thousand. That is what it would take to get it.”
As pointed out in Taylor v. Milam, supra, the burden on the person seeking to establish title to land on an oral contract is one that requires a higher degree of proof than a mere preponderance of the evidence.
We are unable to find that appellant has established any oral contract for the devise of any farm by evidence that is clear, cogent, and decisive, i. e., evidence so strong as to establish his contention substantially beyond a reasonable doubt.
Affirmed.
Actually,the bank filed its final settlement, and was discharged as administrator on May 18, 1967. | [
48,
108,
-128,
77,
-102,
-96,
18,
-70,
-46,
-29,
101,
83,
-19,
118,
20,
105,
-31,
77,
84,
105,
71,
-13,
6,
100,
115,
-77,
-23,
-43,
-76,
-51,
-12,
-42,
76,
32,
-126,
17,
-30,
-30,
-123,
24,
-106,
64,
-119,
96,
-39,
-110,
48,
43,
-108,
15,
69,
-98,
-13,
43,
93,
-53,
109,
44,
93,
40,
80,
113,
26,
4,
127,
21,
50,
102,
-102,
-125,
88,
110,
-104,
49,
0,
-7,
83,
-90,
-42,
116,
9,
-99,
8,
102,
102,
104,
-51,
-27,
-96,
-120,
7,
62,
-115,
-90,
-26,
113,
75,
69,
-74,
-100,
120,
20,
-122,
-12,
117,
-99,
28,
-92,
15,
-114,
-42,
-95,
30,
-68,
-106,
2,
-29,
67,
52,
85,
-49,
-26,
125,
71,
115,
-101,
-122,
-107
] |
J. Fred Jones, Justice.
This appeal from the Sebastian County Circuit Court involves an unemployment compensation case in which the employer is insisting the claims of a number of employees on the grounds that the employees are ineligible for benefits because their unemployment was brought about by a labor dispute within the meaning of Ark. Stat. Ann. § 81-1105 (f) (Repl. 1960), which is as follows:
“If so found by the Commissioner, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment if he lost his employment or has left his employment by reason of a labor dispute other than a lockout at the factory, establishment, or other premises at which he was employed (regardless of whether or not such labor dispute causes any reduction or cessation of operations at such factory establishment or other premises of the employer), as long as such labor dispute continues, and thereafter for such reasonable period of time (if any) as may be necessary for such factory, establishment, or other premises to resume normal operation. Provided, however, that this subsection shay not apply if it is shown that he is not participating in or directly interested in the labor dispute; and he does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute there were members employed at the factory, establishment or other premises at which the labor dispute occurs, any of whom are participating in or directly interested in the labor dispute. Provided, that if in any case, separate branches of work which are commonly conducted as separate businesses in separate premises, are conducted in separate depart ments of the same premises, each such department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment or other premises. ’ ’
The facts are not seriously in dispute and may be briefly stated as follows: Appellant manufactures glass at its plant in Fort Smith and appellees are members of Local No. 4, United Glass and Ceramic Workers Union and regularly employed at appellant’s plant. A separate class of employees at the plant were members of Local No. 7, Window Glass Cutters League of America. The collective bargaining agreement between appellant and Local No. 7 expired in June of 1966, and thereafter Local No. 7 periodically picketed appellant’s plant. When the dispute arose with Local No. 7, about 285 of the ap-pellee members of Local No. 4 were placed on aTay-off status and started drawing unemployment compensation benefits without question. Twenty-five members of Local No. 4 were not placed on a lay-off status and these employees crossed the picket line established by Local No. 7 and continued to work until October 10, 1966.
The collective bargaining agreement between appellant and Local No. 4 was to have expired on August 1, 1966, but was verbally extended from time to time. On October 10, 1966, the president of Local No. 4 advised appellant that Local No. 4 employees did not have a contract and were not going to continue to work. The 25 employees who had continued to work until October 10 failed to return to work on that date and the other 285 employee members of Local No. 4 remained on a lay-off status. A number of Local No. 4 employees (ap-pellees) were requested to return to work at various times between October 10 and November 16, 1966, and refused to do so. On November 16, 1966, a new contract was signed by appellant and Local No. 4 and the ap-pellees returned to work as requested after that date. The claims involve a period of time from October 10, 1966, until the claimant employees were requested to return to Avork after October 10, 1966.
The decision of the Board of Re\dew, which was affirmed by the trial court, is as follows:
“The determination denying benefits to the claimants Avho left their Avork on October 10 due to the labor dispute was correct and is affirmed. The determination denying the other claimants benefits from the date they Avere directed to report to Avork and failed to do so was correct and is affirmed as they became a part of the dispute or participated in the dispute by their refusal to report to work as directed. The determination of the Agency denying the claimants benefits subsequent to November 19, the end of the week the dispute was settled, is reversed because the lack of production was nqt caused by this labor dispute. ’ ’
On appeal to this court the appellant employer designates one point relied on for reversal, as follows:
“The circuit court erred in affirming the findings of the Arkansas Employment 'Security Division wherein the Employment Security Division allowed unemployment compensation benefits to certain of the appellees during the period of October 10, 1966, to November 16, 1966.”
The appellees had no interest in the labor dispute in which members of Local No. 7 were involved. In fact they crossed the picket line established by Local No. 7 and were unaffected by the dispute Avith Local No. 7 except that a slowdoAvn in production was probably caused by the dispute with Local No. 7 and resulted in the layoff of appellees prior to October 10, 1966. So, the fact situation presented on this appeal is one in which all regular employees, with the exception of 25, were laid off for lack of work and were entitled to, and were receiving, unemployment compensation benefits. While these employees were still on lay-off status for lack of work and were still drawing benefits, the collective bargaining contract of their union expired and the employer was advised that none of appellee members of Local No. 4 (including the 25 who had not ceased work) would continue to work without a contract. The 25 who had worked all along failed to report for work as usual following the notice to the employer, and the remaining employees who were on lay-off status and drawing unemployment benefits, were not notified that work was available nor were they requested to return to work until sometime after notice had been given to the employer that they would not return without a contract.
The question then, boils down to whether the employees who were laid off for lack of work and who were drawing unemployment benefits, were still entitled to draw unemployment benefits until they were notified to return to work and refused to do so. In other words, does notice to the employer by the union president that employees do not intend to work without a contract, suspend the right to continued compensation payments to those employees who are on a lay-off status and already out of work when the notice is given and a labor dispute arises, or is it necessary that such employees be notified to return to work and refuse to do so before their unemployment benefits are suspended?
We are of the opinion that such employees should be notified to return to work and refuse to do so before the payment of their unemployment compensation benefits should be suspended.
As we understand the record, the appellant contends that there is only one labor dispute involved in this case; that the only labor dispute involved is between appellant and appellees and arose on October 10, 1966, when the president of Local No. 4 advised the ap pellant that appellees would not continue to work without a contract and would no longer cross the picket line established by Local No. 7, and that because of this dispute the appellees who were on lay-off status when the dispute arose, forfeited their rights to unemployment compensation benefits when it was shown that the 25 employees who had worked on October 9, 1966, participated in the dispute by failure to report for work on October 10, and since appellees belonged to the same grade or class of workers as the 25 who immediately before the commencement of the labor dispute were employed in appellant’s plant and participated in the dispute by failure to report for work available to them.
Subsection (f), supra, provides that “no individual . . . may be paid benefits ... if he lost his employment or has left his employment by reason of a labor dispute. ... ” It further provides that “this subsection [f] shall not apply if it is shown that he [the employee] is not participating in or directly interested in the labor dispute ; and he does not belong to a grade or class of workers of which, immediately before the commencement of the labor dispute there were members employed at the factory ... at which the labor dispute occurs, any of whom are participating in or directly interested in the labor dispute.”
Now, assuming that subsection (f), supra, does apply to the appellees who were not working immediately before the commencement of the labor dispute, because it was not shown that they did not belong to the same grade or class as the 25 workers who were working immediately before the commencement of the dispute and Avho did participate in the dispute, still the question remains; did these employees lose or leave their employment “by reason of a labor disputed” To us the record seems clear that they did not. "We conclude that the ap-pellees did not lose or leave their employment by reason of the labor dispute which arose on October 10, 1966; but that they remained on a lay-off status and did not par ticipate in the labor dispute until they were notified to return to work and they failed to do so. For it was then, and only then, that they lost or left their employment by reason of the labor dispute.
Our decision in the case of Fort Smith Chair Co. v. Laney, Commissioner, 238 Ark. 636, 383 S. W. 2d 666, relied on by both the appellant and the appellees, does not quite reach the situation presented in the case at bar. In the Chair Co. case a labor dispute arose on May 21, 1961, while Ballard, Wilson and Rhodes were on layoff because of lack of business. They lost or left their employment by reason of a labor dispute, however, when they were notified to return to work on June 13 and they refused to cross a picket line and return to work. In the Chair Co. case the employees’ rights to benefits between May 31, 1961, when the dispute arose, and June 13, when they were notified to return to work and refused to do so, were not in issue. This corresponding period is the only'one that is in issue in the case at bar.
In the Chair Co. case, the claim was for benefits covering a period after the employees were notified to return to work and they refused. In the case at bar, the claims are for the period of time after the labor dispute arose, but before and until appellees were notified to return to work and they refused to do so. In the Chair Co. case, after the employees were notified to return to work they refused to do so because of the labor dispute, thereby participating in and becoming a part of that-dispute. In the case at bar, until such time as appellees were notified to return to work, they had no opportunity or obligation to return or refuse, so it can hardly be said that they were participating in the dispute until they were afforded an opportunity to do so.
In 28 A.L.R. 307 § 9, is found the following:
“While it seems clear that if a strike occurs during a layoff imposed by the employer for its own rea sons, the statutory disqualification for benefits where work is stopped because of a labor or industrial dispute will come into operation during the period following the strike, the eases also indicate that disqualification will not occur unless the employer notifies the striking employees that work is available for them.
“If unemployment is originally caused by a lack of work, and a labor dispute develops during the continuance of the unavailability of work, such labor dispute does not disqualify the employee until work becomes available and he refuses the work beeause of the labor dispute. Muncie Foundry Div. of Borg-Warner Corp. v. Review Board (1944) Ind. App. 475, 51 NE 2d 891.
“In Employees of Lion Coal Corp. v. Industrial Commission. (1941) 100 Utah 207, 111 P 2d 797, where a coal operator voluntarily caused work to cease sometime prior to the calling of a general strike, it was held that there must be some evidence given and something shown by such operator to indicate when it desired work to begin again, from which it might be found that the stoppage of work was no longer due to the opei’ator’s act but was due to a strike within the meaning of the statute.”
The Employment Security Act was intended to withhold benefits from those who bring about their own unemployment by bringing about or participating in a labor dispute. Knox Consol. Coal Corp. v. Review Board, (1942 Ind. App.), 43 NE 2d 1019 reversed on another point in 221 Ind. 16, 46 NE 2d 477.
We conclude that the appellees in the case at bar did not bring about their own unemployment by bringing about, or participating in, a labor dispute until they were notified to return to Avork following their layoff and they joined in the labor dispute by failing to return to Avork.
The judgment of the trial court is affirmed. | [
-112,
-22,
-12,
12,
-118,
-64,
18,
-66,
83,
-125,
39,
83,
-27,
-12,
89,
121,
-29,
93,
113,
105,
-13,
-74,
17,
98,
66,
-13,
-5,
-59,
-71,
75,
-12,
124,
76,
48,
74,
-44,
70,
80,
-51,
28,
-34,
1,
-85,
-20,
121,
-128,
56,
110,
112,
79,
49,
-108,
-5,
62,
24,
-49,
76,
44,
93,
42,
112,
-16,
-122,
13,
117,
16,
-101,
-59,
-100,
39,
-48,
94,
-104,
48,
32,
-24,
82,
54,
-62,
116,
43,
-103,
8,
98,
98,
18,
-99,
-17,
-20,
-72,
14,
-12,
-99,
-92,
-80,
57,
11,
10,
-106,
-100,
122,
20,
-60,
126,
114,
5,
21,
108,
-126,
-50,
-78,
-77,
15,
36,
-106,
-85,
-29,
-125,
-80,
115,
-49,
-94,
125,
5,
51,
91,
-121,
-104
] |
McHaney, J.
Appellants are the collateral heirs of Josiah H. 'Scogin, who died intestate and without issue, in Warren, Arkansas, and appellee is the widow of James H. Scogin, a brother of Josiah Scogin.
On March 1, 19.09, Josiah H. Scogin purchased the land in controversy from C. S. Thompson, and took the title thereto in the name of his brother, James H. Scogin. It is contended iby appellants that Josiah borrowed $200 from his brother, James, and had the deed made to him as security therefor. The consideration recited in the deed is $200. It is the contention of appellee that she furnished the money with which to buy the land and build the house, in the sum of $1,100, and that the title was taken in the name of her husband because of this fact; that, having furnished all the money that went into the property, her husband held the naked legal title thereto in trust for her. On August 10, 1917, appellee and her husband, James H. Scogin, executed and delivered to Josiah H. Scogin their warranty deed, conveying said land to him, which recited a consideration of $200 cash in hand paid by J osiah H. Scogin. J osiah and his sister, Mrs. Mary Martin, lived together in Warren, and occupied the house and premises in controversy up to the death of Josiah, which occurred in 1923.
Appellants contend that this latter deed is corroborative of their contention that Josi'ah had borrowed $200 from his brother, James, had paid it back, and that the deed of August 10, 1917, was executed because such indebtedness had been paid. On the other hand, appellee contends that this deed was wholly without consideration, and executed by her and her husb'and at the earnest solicitation of Mrs. Mary Martin, who feared that appellee and her husband might predecease herself and brother Josiah, and that the collateral heirs might take the property away from them and deprive them of a home. She further contends that she did not understand the effect of this latter deed, and that she joined with her husband in executing it, hot knowing that it would deprive her of her beneficial interest therein; that it was executed by reason of a mutual mistake of the parties as to the significance and effect thereof; that none of them intended that appellee, who had furnished the money, should 'be deprived of the fee in the land.
The case was submitted to the chancellor on conflicting evidence. We do not think it would serve any useful purpose to set out this testimony. The chancellor found that the appellee had furnished all the money for the purchase and improvement of the property, and that the title was taken in her husband and held in trust by him for her; that the second deed was made at the insistence of Josiah and Mrs. Martin, not with any desire to defeat appellee’s superior rights in the premises, but sprang from a fear that they might outlive her; that Josiah Scogin, by virtue of the latter deed, took no better or greater title than that of James H. Scogin, who held it in trust for his wife; and that appellee did not waive her equity by joining with her husband in said deed. A decree was entered enforcing a resulting trust against said property, and declaring appellee to be the owner in fee of the lands in question, for which she was given a writ of possession.
Other matters were' discussed and adjudicated in the decree, but from the disposition we make of this case we do not find it necessary to discuss them.
Assuming, but not deciding, that the evidence is sufficient to establish a resulting trust in appellee’s favor in and to the land in controversy, by reason of having-furnished the money to pay therefor, title to which was taken in her husband’s name, still we are of the opinion that the appellee cannot be held to have acquired title to this property by a resulting trust, because of the deed she signed, acknowledged and delivered under date of August 10, 1917. This deed was executed and acknowledged by James H. Scogin in Wiarren, Arkansas, and by him sent to his wife in Memphis, Tennessee, where she signed and acknowledged it, separate and apart from her husband. She then returned it to her husband in Warren, Arkansas, where it was delivered to Josiah Scogin. It recited a consideration of $'200, and was a deed absolute on its face. Under this state of facts, a deed absolute on its face cannot, by parol testimony, be shown to have been given in trust for the benefit of the grantor, in the absence of fraud, accident or mistake, or :a fiduciary relation existing between the parties.
Section 1497, C. & M. Digest, provides: ‘ ‘ The term or word ‘heirs,’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; but all deeds shall be construed to convey a complete estate of inheritance in fee simple, unless expressly limited by appropriate words in such deeds.” Here the deed is absolute on its face, and there are no words of limitation, appropriate or otherwise, contained therein. Appellee says she executed this second deed by joining with her husband therein; that she did so in order to satisfy the fears of Mrs. Martin, and through the mistaken belief that the property would still be hers, notwithstanding -such deed, and that she was induced to this belief by representations of her husband. It is not alleged nor proved that she was induced to execute same through fraud or accident, but merely by mistake of law. Assuming that this is such a mistake as is contemplated by the law, still it would not be sufficient to destroy her deed, unless the testimony in support thereof is clear, unequivocal, satisfactory and convincing.
In Mason v. Harkins, 82 Ark. 569, 102 S. W. 228, it was said: “But, even if the testimony of the appellee was equal in weight to that of appellant upon this proposition, she would fail, because a written instrument -will not be overturned by parol testimony, unless the evidence be clear, unequivocal and decisive.” Citing McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Goerke v. Rodgers, 75 Ark. 72, 86 S. W. 837.
In Tillar v. Henry, 75 Ark. 446, 88 S. W. 573, it was said:
“Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to- establish such trusts to be clear and satisfactory. Sometimes it is expressed that the ‘evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact,’ and sometimes it is expressed as requiring the evidence to be ‘full, clear and convincing,’ and sometimes expressed as requiring it to be ‘clearly established.’ ” Citing cases.
The above has been the rule of this court in an unbroken line of cases, from Crittenden v. Woodruff, 11 Ark. 82, down to the present time. Without reviewing the evidence, but after a careful examination thereof, we hold that appellee has not met the requirements of this rule, and that the chancellor erred in holding that she had. It necessarily follows from the foregoing that the case must be reversed, and the cause remanded with directions to dismiss the complaint for want of equity. | [
-48,
109,
-4,
-51,
10,
96,
10,
-102,
115,
-127,
-92,
91,
-17,
-58,
21,
105,
-32,
121,
81,
107,
-11,
-78,
7,
112,
-110,
-77,
-7,
71,
-80,
77,
-11,
-42,
76,
32,
74,
-35,
66,
-86,
-115,
-40,
-114,
-127,
-117,
101,
89,
66,
48,
-13,
80,
79,
101,
-106,
-29,
42,
53,
-18,
104,
46,
-53,
45,
80,
56,
-97,
5,
95,
23,
-111,
37,
-102,
-127,
72,
24,
-112,
53,
8,
-24,
115,
-90,
-42,
116,
69,
-103,
40,
102,
102,
0,
-19,
-1,
-16,
-104,
47,
-10,
-99,
-90,
-94,
121,
3,
105,
-65,
-107,
-19,
80,
-121,
-12,
-20,
29,
92,
120,
43,
-113,
-42,
-95,
45,
56,
-100,
2,
-29,
7,
34,
113,
-49,
-94,
93,
102,
58,
27,
-122,
-48
] |
Hart, C. J.,
(after stating the facts). It is insisted by counsel for the plaintiffs that the court erred in refusing to allow the items of $80 for inside painting and $12 for screening the porch. These two items amounted to $92, and should have been allowed by the chancery court. The proof shows that it was not .a part of the contract for the erection of the house that the plaintiffs should do the inside painting or should screen the porch. By agreement between the parties these two items were to be charged as extras. The proof shows that the inside painting together with the materials furnished were reasonably worth $80, and that the materials and labor for screening the porch were worth $12. It is true there was no itemized account of these items, but this court has held that it is not necessary that a claimant file an itemized account in order to make his lien effectual. The rule is the same where the lien is sought to be enforced by one with a contract direct with the owner and by a subcontractor. Terry v. Klein, 133 Ark. 366, 201 S. W. 801.
In that case it is also held that, where labor and material are placed in the construction of a house as a completed job, the contractor is entitled to a lien, not as for labor, but as for the price of material furnished in the place to be used. To the same effect see Shaw v. Rackensack Apartment Corporation, 174 Ark. 492, 295 S. W. 966.
In the case at bar the plaintiffs were entitled to a lien in the sum of $80 for the price of the paint for the inside of the house and for $12 for the price of the screen placed on the porch, these items totaling $92.
The result of our views is that the decree must be reversed, and the cause wifi be remanded with directions to the chancery court to allow the plaintiffs the sum of $92, and a lien for this amount.
The decree will be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion, rand for further proceedings according to the principles of equity. It is so ordered. | [
-15,
122,
-36,
-3,
10,
32,
42,
-104,
121,
-95,
53,
95,
-17,
-62,
20,
111,
-75,
121,
113,
107,
85,
-93,
7,
34,
-10,
-77,
-77,
-43,
-71,
79,
-60,
-34,
76,
32,
-62,
-107,
102,
-126,
-59,
80,
14,
-123,
8,
101,
-15,
64,
112,
-21,
76,
11,
49,
-107,
-13,
36,
25,
-53,
108,
44,
121,
57,
-48,
-72,
-122,
5,
127,
5,
-79,
116,
-100,
-57,
-40,
24,
-116,
49,
0,
-32,
115,
-74,
-122,
116,
67,
-103,
9,
-30,
99,
0,
81,
-19,
-8,
-100,
46,
-34,
-97,
-89,
-109,
88,
11,
47,
-74,
-97,
109,
0,
38,
126,
-9,
21,
95,
108,
11,
-114,
-44,
-77,
-113,
118,
-100,
-61,
-49,
3,
49,
97,
-49,
-78,
94,
-46,
19,
-69,
-114,
-99
] |
Smith, J.
The heirs of George Washington, Jr., brought suit to cancel a trustee’s deed which had been executed under a power of sale contained in a deed of trust executed by their ancestor to W. H. Gray, as trustee for Thompson & Gregory, and for an accounting of the rents ¡and profits of the lands, and for the value of certain timber cut by Thompson from the lands. The deed of the trustee was to Thompson. Before the final submission of the cause Thompson, the grantee in- the trustee’s deed, died, and the cause was revived in the name of his executor. Upon the final submission of the cause the relief prayed was granted, the trustee’s deed was canceled, and la judgment was rendered against Thompson’s estate for the amount of the rents in excess of the debt secured by the deed of trust and for the value of the timber cut by Thompson.
An appeal was duly prosecuted from this decree, and it was held by this court, on the submission of that appeal, that, as the action was one to recover lands, the cause should have been revived in the name of Thompson’s heirs, and not against his executor, and-the decree of the court below was reversed and the cause dismissed. Thompson v. Lee, 174 Ark. 868, 296 S. W. 706. Thereafter, on August 2, 1927, the heirs of Washington brought a new suit, in which the heirs of Thompson were made parties, and the complaint recited the facts above stated, and which are -set out in detail in the former opinion.
A demurrer to this complaint was sustained, upon the ground that the original cause of action had not been brought within the time allowed by law after the death of Thompson, which, as the former opinion recited, occurred on May 12, 1924. The complaint in the present case alleges that Thompson died March 28, 19'22.
The opinion on the former appeal is decisive of the present case. It was there said: “The heirs were nec essary parties to the suit, after his death, it being ¡an action affecting the title to and for the recovery of real property, and the revivor should have been miade against and in the name of his heirs. Section 1063, C. & M. Digest; Ex parte Gilbert, 93 Ark. 307, 124 S. W. 762; and Dupree v. Smith, 150 Ark. 80, 233 S. W. 812. The court proceeded to a hearing of the cause without revivor against the heirs or devisees of M. D. Thompson or treating them as proper or necessary parties, and the cause could not have been revived against them without their consent, after the expiration of one year from the time the order of revival might have first been made. Section 1065, C. & M. Digest.
The sections of the statute there referred to read as follows:
° “Section 1063. Upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees, or both, and an order therefor may. be forthwith made in the manner directed in the preceding sections.”
‘ ‘ Section 1065. An order to revive an action against the representatives or successors of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.”
In addition to the cases cited in the former opinion, see also Anglin v. Cravens, 76 Ark. 122, 88 S. W. 833.
As it appears from the face of the complaint, to which a demurrer was sustained, that Thompson died in 1922, and that this suit was improperly revived against his executor, and not against his heirs, and that the heirs were not made parties until 1927, the cause of action was barred by the statutes quoted, and the demurrer was therefore properly sustained.
The decree of the court below will therefore be affirmed. | [
-12,
108,
-36,
14,
24,
-32,
-120,
-70,
-61,
-23,
-95,
83,
-51,
3,
65,
15,
-31,
-103,
81,
-5,
-57,
-13,
23,
-90,
82,
-109,
-37,
-49,
52,
77,
-9,
-41,
76,
60,
66,
-99,
102,
-62,
-51,
-40,
-114,
0,
9,
109,
-103,
80,
48,
-57,
22,
11,
113,
58,
-13,
42,
61,
99,
72,
47,
-21,
-84,
-7,
-71,
-86,
4,
123,
22,
49,
101,
-100,
11,
72,
-86,
-104,
49,
-116,
-24,
82,
-78,
6,
84,
13,
9,
40,
114,
102,
48,
117,
119,
-112,
-104,
14,
-2,
29,
-121,
-62,
121,
1,
104,
30,
-35,
125,
16,
39,
118,
-26,
68,
29,
40,
7,
-53,
-42,
-75,
-101,
-72,
-116,
3,
-14,
11,
50,
113,
-51,
-22,
92,
99,
113,
27,
-122,
-6
] |
G-reenhaw, J.
This is an appeal by tbe Commissioner of Revenues from a judgment of tbe Pulaski Circuit Court, Second Division, rendered on April 9, 1942, directing said Commissioner to issue a liquor permit to appellee, permitting bim to sell liquor at 106 West Mark-barn Street in tbe city of Little Rock.
In Ms petition for mandamus appellee alleged that on December 11, 1941, he filed the proper petition for a permit to sell liquor at that address, which is in a concentrated trade area and within a territory in which there is no law or regulation in effect prohibiting the issuance of the liquor license upon his application. He further alleged that he was qualified in every respect to engage in the liquor business and had tendered the proper sum of money for a permit; that his application was denied on January 30, 1942, and “that the action of the Commissioner in refusing the application is arbitrary, discriminatory, without legal authority and in clear abuse of his discretion.”
Appellant filed a response, stating his reasons for denying the permit, and alleged that § 1 (a), art. Ill of Act 108 of the Acts of 1935, now § 14106 of Pope’s Digest, authorized him to exercise his discretion in determining whether public convenience and advantage will be promoted by issuing or refusing to issue permits for the sale of liquor, and that he was further given discretion in determining the number of permits to be granted, the location thereof and the person or persons to whom such permits should be issued.
Section 14106 of Pope’s Digest, herein referred to, reads as follows:
“It is hereby declared to be the public policy of the State that the number of permits in this State to dispense vinous, (except wines) spiritous or malt liquor shall be restricted, and the Commissioner of Revenues is hereby empowered to determine whether public convenience and advantage will be promoted by issuing such permits, by increasing or decreasing the number thereof; and in order to further carry out the policy hereinbefore declared the number of permits so issued shall be restricted. The Commissioner of Revenues is further given the discretion to determine the number of permits to be granted in each county of this State or within the corporate limits of any municipality of this State to determine the location thereof, and the person or persons to whom they shall be issued.
“The Commissioner of Revenues, in exercising this discretionary power shall give due regard to the ordinances and regulations of the municipalities of this state. ’ ’
Appellant further alleged that under Subsection (c), •§ 3 of art. Ill of Act 108 of 1935, now § 14104 of Pope’s Digest, he was authorized to adopt rules and regulations not inconsistent with the provisions of said act. Section 14104 of Pope’s Digest, among other things, provides as follows:
"The Commissioner of Revenues shall have the following powers, functions and duties: ...
‘ ‘ Subsection (c). To adopt rules and regulations foi the supervision and control of the manufacture and sale of vinous, (except wines) spiritous or malt liquors throughout the state not inconsistent with law. ’ ’
He further alleged on December 8,1941, he, as Commissioner of Revenues, promulgated Supplemental Regulation No. 23, superseding any and all other regulations theretofore promulgated pertaining to the issuance of permits and licenses to retail liquor dealers, §§ 2 and 4 of which read as follows:
“2. No new permit shall be issued for the sale of liquor at any premises located within one hundred yards of other premises where' the sale of liquor is permitted, except where the Commissioner of Revenes determines that by reason of the concentration of trade within a particular area no unlawful practices are likely to result by reason of the competition within a lesser area.
“4. No new permits shall be issued for the sale of liquor at any premises where the premises for which the permit is requested is located within an area or vicinity wherein the Commissioner of Revenues has determined that the number of premises within such area or vicinity at which the sale of liquor is permitted is sufficient to meet the demand and convenience of the public, and where it is determined by the Commissioner of Revenues that the issuance of a permit for the sale of liquor at additional premises would make the sale of liquor within such area or vicinity unprofitable to all the dealers within such area and would thereby tend to encourage unlawful sales of liquor within such area or vicinity.”
The response further stated that the application of the petitioner for a permit to engage in the retail sale of liquor at 106 West Markham Street was denied for the reason that the premises at which request was made for permission to sell liquor were located within 100 yards of other premises where the sale of liquor was permitted, and under the provisions of § 2 of Supplemental Regulation No. 23 the permit could not be issued under such circumstances except- where the 'Commissioner of Revenues determined that the public convenience and advantage would be promoted by reason of the issuance of such permit within such area because of concentration of liquor trade therein and the lack of sufficient liquor stores to supply the demand therein; that he had determined that no such facts existed within such area so as to permit him to make an exception from the rule prohibiting the issuance of permits for the sale of liquor from any premises located within 100 yards of other premises where the sale of liquor was permitted; that the premises at which retail sales of liquor were to be made by the petitioner if his application had been granted, in addition to being located within 100 yards of two other liquor stores, are within an area and vicinity wherein are located nine other liquor stores within a distance of a block or a block and a half of the premises where the petitioner intended to sell liquor under the permit he was seeking, and that the application was denied for such reason, which was in accordance with the provisions of § 4 of Supplemental Regulation No. 23.
It was further alleged that appellee sought to control the discretion granted to the Commissioner of Revenues by Act 108 of the Acts of 1935, and that such discretion was not subject to control by the courts.
The circuit court sustained the petition for a writ of mandamus and ordered a permit issued to petitioner herein, from which judgment the Commissioner of Revenues has appealed.
The evidence did not show and it was not contended that appellee was not a fit aiid proper person to obtain a liquor permit. Only three witnesses testified, and their testimony is not lengthy. The evidence showed that there were nine liquor stores operating within a block and a half of the premises where appellee sought to establish a liquor store, and this is a concentrated trade area. There were two liquor stores operating on West Markham Street between Main and Louisiana streets, in which area appellee sought a permit to establish a liquor store. These stores are on opposite sides of the street and considerably less than 100. yards from the proposed location of appellee. There are two liquor stores on Main Street between Markham and Second, one being on the west and the other being on the east side thereof, less than 100 yards from the proposed location of appellee. Five other liquor stores are operating within a block and a half of the proposed location of appellee.
There was no evidence showing or tending to sho;w that the nine liquor stores located within the area and within a block and a half of the proposed location of appellee were insufficient to meet the demand and convenience of the public, or that any customers or prospective customers were inconvenienced by having to wait in line in order to purchase liquor. The supervisor of the Beverage Division of the Department of Revenues among other things testified: “We thought there were sufficient stores in that area to take care of the needs. yy
Appellee contends, however, that the action of appellant in granting a liquor permit to Mrs. Victor Smith on December 13,1941, on her application which was filed the same day to operate a liquor store in the same general area was evidence that the Commissioner’s action in refusing his application for a permit filed two days prior thereto was arbitrary, discretionary and an abuse of discretion.
We are unable to agree with this contention. The Beverage Supervisor testified that Mrs. Smith’s husband had filed a number of applications for a liquor permit prior to the time of appellee’s application, and he thought, but was not sure, that she had previously filed an application for a liquor permit. Moreover, her application for a permit was to sell liquor at 114 East Markham Street. At that time there was only one liquor store in operation in the first block east of Main Street on East Markham, and it was on the south side of the street, whereas the location under the Smith permit was on the north side of East Markham Street and east of the bus station.
After the Smith permit had been issued there were six liquor stores within less than a block of the intersection of Main and Markham streets; two on Main, two on East Markham and two on West Markham. The proposed location of appellee was less than a half block from the intersection of Main and Markham streets.
Act 108 of 1935, designated as “The Arkansas Alcoholic Control Act,” vested in the Commissioner of Revenues discretion in the issuance and denial of permits to sell liquor and authorized him to adopt rules and regulations for the supervision and control of the sale of liquor not inconsistent with law. It is not contended that Supplemental Regulation No. 23 is either contrary to law or unreasonable and arbitrary. In the case of Democrat Prtg. & Litho. Co. v. Parker, Auditor, 192 Ark. 989, 96 S. W. 2d 16, this court said:
“'The law is well settled here as well as elsewhere that the discretion or discretionary powers of an executive officer of the state will not be controlled by mandamus. Street Imp. Dist. No. 74 v. Refunding Board of Arkansas, 192 Ark. 892, 95 S. W. 2d 639; Refunding Board of Arkansas v. National Refining Co., 191 Ark. 1080, 89 S. W. 2d 917. But the rule is equally as well settled, and we have always held, that mandamus is the appropriate remedy to compel an executive State official to perform a ministerial act. Moore, Auditor, v. Alexander, 85 Ark. 171, 107 S. W. 395; Jobe, Auditor, v. Caldwell, 93 Ark. 503, 125 S. W. 423; Jobe v. Caldwell, 99 Ark. 20, 136 S. W. 966; Jobe, Auditor, v. Urquhart, 102 Ark. 470, 143 S. W. 121, Ann. Cas. 1914A 351; Cotham v. Coff man, Auditor, 111 Ark. 108, 163 S. W. 1183; Hodges, Secretary of State, v. Lawyer’s Co-operative Co., 111 Ark. 571, 164 S. W. 294; Ellison v. Oliver, Auditor, 147 Ark. 252, 227 S. W. 586; Hopper, Secretary of State, v. Fagan, 151 Ark. 428, 236 S. W. 820. . . .
“ Discretion, as used in respect to executive State officials, means not only discretion on questions of fact, .but on mixed questions of law and fact. Whether such official decides the question right or wrong is immaterial. Having the power to decide at all carries with it the duty to decide as he perceives the law and the facts to be, and the courts have no power to review his determination on mandamus. We have heretofore, in effect, so decided. See Pitcock v. State, 91 Ark. 527, 121 S. W. 742. The conclusion reached in the Pitcoclc case, supra, finds support in Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 23 S. Ct. 698, 47 L. Ed. 1074. See, also, Branaman v. Harris, 189 Fed. 461.”
See, also, Street Improvement District No. 74, Browning et al., Comm’rs. v. Refunding Board of Arkansas, 192 Ark. 892, 95 S. W. 2d. 639; Refunding Board of Arkansas v. National Refining Co., 191 Ark. 1080, 89 S. W. 2d. 917.
The action of the Commissioner of Revenues in refusing to grant a permit to appellee for the retail sale of liquor was a discretionary act under power specifically vested in him by law. We are unable to say that the action of the Commissioner in declining to grant the permit, under the evidence in this case, was arbitrary, discriminatory, without legal authority or an abuse of discretion as urged by appellee. Hence the court erred in sustaining the petition for a writ of mandamus and ordering the issuance of a permit to appellee.
The judgment is, therefore, reversed, and as the cause appears to have been fully developed it is dismissed. | [
117,
-17,
-4,
-36,
26,
-64,
24,
-74,
67,
-93,
-9,
115,
-19,
90,
17,
43,
-85,
125,
84,
121,
-59,
-78,
23,
96,
122,
-13,
-39,
-57,
-76,
109,
-44,
52,
77,
41,
74,
-43,
-58,
-62,
-51,
-104,
6,
40,
27,
-51,
121,
-63,
52,
-21,
50,
11,
117,
-113,
-77,
44,
24,
-53,
-19,
108,
73,
44,
88,
-72,
-104,
29,
93,
4,
33,
86,
-104,
-123,
96,
120,
-104,
49,
1,
-24,
115,
-74,
-122,
52,
15,
-103,
-120,
52,
99,
2,
1,
-17,
-88,
-24,
30,
-38,
-99,
-92,
-80,
25,
66,
97,
-97,
-99,
124,
20,
7,
-4,
111,
21,
-45,
44,
-113,
-114,
-92,
-75,
-125,
44,
-126,
3,
-29,
71,
48,
117,
-49,
-9,
-2,
69,
54,
27,
-122,
-127
] |
McHaney, J.
On June 27, 1927, the county judge of Arkansas County issued a citation to appellant,- John L. Hagler, county treasurer, directing him to appear on the first day of the next term of the county court, which was July 4, and show cause why an order should not be made by the court requiring him, as treasurer, to transfer the surplus funds in the bond account to the county general account. The county treasurer appeared on that day, in obedience to the citation, and filed a response, stating that, under Amendment No. 11, and by order of the county court, Arkansas County had issued bonds, under date of May 1, 1925, to cover indebtedness existing prior to October 7, 1924, in the sum of $85,000; that a premium of $250 was paid by the .'bond purchasers for' the issue, plus accrued interest from May 1, 1925, the date of the bonds, to June 15, 1925, the date of receipt of the funds, in the sum of $531.25, making a total .amount received on the sale of the bonds in the sum of $85,781.25; that, out of said funds, county warrants dated prior to October 7, 1924, were taken up and canceled in the total sum of $63,-925.36, which left a balance on hand from the original bond issue of $21,855.89, on which he had received interest from the depository banks from June 15, 1925, to June 1, 1927, in the sum of $1,918.71, making a total on hand at the time of his response of $23,774.60 to the credit of the surplus bond account.
He further alleged that the county collector had received in payment of county taxes, during the first and second quarters of 1925, county warrants which had been issued prior to October 7, 1924, in the sum of $20,255.98, which had been turned in iby the collector to the treasurer on settlement presented to the county court on the regular quarterly settlements, and canceled by the order of the county court, and the treasurer credited with the payment of same. He further alleged that, had the county court held up the cancellation of the said warrants in the sum of $20,255.98, which had been received by the collector in payment of county taxes as aforesaid, the said warrants could and would have been paid out of the bond account, and not out of the county general funds, as was done by reason of the cancellation of same before the treasurer had received the bond money from the sale of bonds, as aforesaid, and that, as a .result thereof, there was to the credit of the bond account a surplus of $23,774.60, with accrued interest to June 1, 1927. He further alleged that act 30 of the Acts of 1927, approved February 23, 1927, is unconstitutional and void, and that therefore the county court had no authority to order him, as treasurer, to transfer said surplus funds from the bond account to the county general account. Whereupon the county court made and entered an order, which will be hereafter found embodied in the order of the circuit court, requiring appellant to transfer the surplus in the bond account to the county general account. An appeal was duly prosecuted to the circuit court, and, on a hearing, that court rendered the following judgment:
“On this the 6th day of July, 1927, a judicial day of .the regular July term of said court, this cause coming on to be heard, and the appellant, John L. Hagler, as county treasurer of Arkansas County, Arkansas, appears in person, and the appellee, Arkansas County, by its county judge, J. E. Parker, and J. M. Brice, employed as special counsel by the county judge, and Guy E. Williams, prosecuting attorney, appear, and both sides announce ready for trial, and, by agreement of both sides, this cause is submitted to the court without the intervention of a jury, upon the pleadings filed in the county court and the order of the county court, from which appellant has prosecuted this appeal, and other testimony, and the court finds that the county court made an order requiring the appellant, as county treasurer, to transfer the surplus proceeds arising from the sale of county bonds from the bond account to the county general account, which order of the county court, omitting the caption, reads as follows:
‘ ‘ ‘ The matter of .making an order transferring certain surplus funds now in the bond account to the county general account coming on to be heard, and it appearing that the county treasurer, John L. Hagler, has been given written notice of .this matter, and has entered his appear-' anee herein, and filed a verified response, it is submitted, upon said notice and the response of said treasurer, and other evidence adduced at this hearing, and the court finds: That a bond issue was made under date of May 1, 1925, for Arkansas County, Arkansas, in the sum of $85,000, and that on June 15, 1925, the treasurer of said county and State received the proceeds from sale of said bonds in the sum of $85,000, plus premium of $250, and accrued interest up to June 15,1925, of $531.21, totaling the sum of $85,781.25, and further finds that the purpose of this bond issue and sale was to pay off the indebtedness of the county as evidenced by county warrants issued, prior to October 7, 1924, and claims allowed by the court prior to the 7th day of October, 1924. The court also finds that county warrants which were dated before October 7, 1924, were paid from the bond account and canceled at various cancellations in the total sum of $63,-925.36, and that on June 1, 1925, there remained in the treasury to the credit of the bond account the sum of $21,855.89, plus accrued interest of $1,918.71, totaling the said sum to the bond account in the sum of $23,774.60, and that there were no other outstanding county warrants against this bond account. The court further finds that the county treasurer had received from the collector, W. C. Woodson, during the first and second quarters of 1925, in settlements, county warrants which were issued prior to October 7, 1924, in the total sum of $20,774.98, and that the county treasurer turned these warrants in on quarterly settlements, before receiving the money from sale of bonds, and the warrants were by the county judge or county court canceled and the treasurer given credit therefor, and that these warrants during the first and second quarters paid out of the general fund or account; and that there are now no- outstanding county warrants issued prior to October 7, 1924, against the bond account, all having been canceled, or barred on June 4, 1926, under call of county court dated March 2, 1926. The court finds that, under act No. 30 of the General Assembly of 1927, approved February 23, 1927, this sum of $23,774.60, including interest to June 1, 1927, together with-interest which has accrued since June 1, 1927, and under the law should be transferred from the bond account to the county general account, and the county reimbursed. The court finds that the findings of facts herein are in accord with the response of the- county treasurer of Arkansas County, but that the county treasurer, John L. Hagler, denies that the -court has the authority, under said act No. 30 of the Acts of the General Assembly of 1927, or under any law, to order him to transfer said funds from the bond account to the general funds of the county. Wherefore it is considered, ordered and adjudged by the court that the $23,774.60, with daily balance interest from June 1, 1927, should be transferred from the bond account to the county general account or fund, and that the county treasurer, John L. Hagler, is hereby directed and commanded to transfer said $23,774.60, with daily balance interest from June 1, 1927, to the county general account fund. ’
‘ ‘ There was no oral testimony adduced on either side on the trial of the ca-se in this court, but that the court finds, from the pleadings and the verified response of John L. Hagler, filed in the county court, that the findings of the facts of the county court are correct, and adopts the findings of the county court as set out in the -foregoing order of the county court as correct and as the findings of this -court, and finds that, under act No. 30 of the General Assembly of Arkansas of 1927, approved February 23, 19'27, the sum of $23,774.60, including interest to June 1, 1927, together with interest which has accrued since June 1, 1927, under the law should be transferred from the bond account to the county general account, and the county reimbursed.
“Wherefore it is considered, ordered and adjudged by the court that the $23,774.60, with interest from June 3, 1927, should be transferred from the bond account to the county general account or fund, and that the county treasurer, John L. Hagler, is hereby directed and commanded to transfer said sum of $23,774.60, with interest from June 1, 1927, to the county general fund or account.
“It is further considered, ordered and adjudged that the clerk of this court shall certify down to the county court and the oler.k of the county court the order and judgment of this court herein, and the county court is directed and commanded to adopt the order and judgment of this court as its own.”
The county treasurer has brought the case to this court for final consideration.
Authority for the action of both the county and circuit courts in making, their respective orders is found in act No. 30, Acts 1927, page 86, the title and first section thereof being as follows:
“An act to provide for the relief of all counties in this State which have issued and sold bonds under the provisions of Amendment No. 11, and have erroneously paid some of the indebtedness for which said bonds were sold out of the general revenues for said counties and now have a surplus in said bond account, and for other purposes.
“Section 1. That in all counties in this State which have funded their indebtedness by means of issuing bonds under the provisions of Amendment No. 11, and, after paying said indebtedness, a surplus remains in said bond account, the county court of each county is hereby authorized, upon a finding- that any part of the indebtedness existing December 7, 1924, had been erroneously paid out of the general revenues of said county when same should have been paid out of the funds derived from the sale of said bonds, to make an order allowing said amount so erroneously paid as a charge against the bond account, and credit the county general fund of said county with said amount so erroneously paid and charged by order of said court to said bond account. That, in each county where funding bonds have been issued by the county court under Amendment 11, the county treasurer shall promptly remit to the banks designated in the court order authorizing the issuance and sale of such bonds on dates due, the interest and principal from funds collected for this purpose.”
The second and third sections of this act are the repealing and emergency clauses, a part of th& latter stating the real emergency, being: “because of the fact that, in all those counties having said surplus caused by the erroneous payment of the outstanding indebtedness out of the general revenue funds of the county for that year, said county will be deprived of sufficient moneys to take care of their current expenses, and be deprived of the use of said moneys in said bond account. This act, account of said emergency, to take effect and be in force from and immediately after its passage.”
This holding of the county and circuit courts would appear to be in conflict with the decision of this court in Airheart v. Winfree, 170 Ark. 1126, 282 S. W. 963, where this court said:
“The principal argument of counsel for appellant is .that, since the declared purpose of Amendment No. 11, as-construed in Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, was to enable the counties of the State to ‘ get out of debt, ’ as long- as the county continues to be in debt after the adoption of the amendment the authority to issue bonds continues, and that it extends to the maximum amount of the outstanding indebtedness at the time of the adoption of the amendment, and includes warrants issued -subsequent thereto, even though the amount of the old indebtedness has been reduced by payments out of the general revenue funds of the county. In other words, it is contended that, since the amount of the old indebtedness was borrowed and the old indebtedness has been reduced since the adoption of the amendment from an aggregate of $38,337.48 down to $10,857.49, the remainder of the funds should be used in retiring warrants issued subsequent to the adoption of the amendment. We cannot agree with counsel in this argument, for we think it disregards the plain language of the Constitution, as amended, which limits the issuance of bonds to the procurement of funds ‘to pay indebtedness outstanding at the time of the adoption of this amendment,’ and declares that it shall be a felony for any officer to ‘use any part of the proceeds of said bonds for any other purpose’ than the payment of such indebtedness. It is not the amount of the indebtedness at the time of the adoption of the amendment which necessarily determines the amount of the bond issue, for that is determined solely by the amount of the old indebtedness.in existence at the time the money is borrowed and the bonds are issued. As long as the old indebtedness exists, the Constitution authorizes the borrowing of money to pay off that indebtedness, or so much of it as is in existence at the time the bonds are issued. If the old indebtedness has been reduced by payments out of funds of the county, then the authority to issue bonds is limited to the amount of the old indebtedness which remains unpaid. Counsel seek, in the argument, to treat the warrants subsequently issued as in the nature of a renewal of the old indebtedness, for the reason that the latter has been reduced by the payment of funds out of the general revenues, but we are of the opinion that warrants subsequently issued are in no sense a renewal of the old indebtedness. The payment operated as a complete retirement of the old indebtedness to that extent, even though paid out of the general revenues of the county. It must be conceded that the county court had the authority, at the time of the issuance of the bonds, to determine the amount of the old indebtedness, and if, in the meantime, there had been a reissue of warrants, which evidenced the old indebtedness, it was within the province of the county court to include the reissued warrants as a part of the old indebtedness. In other words, the county court has authority to look to the form to ascertain the substance in regard to the amount of the old indebtedness. But it is not shown that the indebtedness represented by appellant’s warrant was a part of the indebtedness of the county at the time of the adoption of the amendment, therefore it is not, either in form or substance, such a claim against the county as can be paid out of funds arising from the sale of bonds.
“Counsel for appellant suggest in the argument that perplexities may arise with regard to the disposition of the surplus fund borrowed by the county, if we hold that it cannot be used in the payment of warrants subsequently issued, but that question is not presented in the present case. The holders of the bonds are not parties to the suit, and we are not called on to determine whether or not they can be required to accept a refund of the unexpended balance in the treasury in payment of the bonds prior to maturity. All that we can decide now is that, under the plain language of the Constitution, the funds cannot be used for any purpose other than the discharge of indebtedness outstanding at the time of the adoption of the amendment.”
At the time the above decision was rendered, the Legislature had not spoken on this matter, as heretofore set out in act 30 of 1927, and a majority of this court have reached the conclusion, after very mature deliberation, that, in the light of said act 30, it is better to indulge the presumption of law that the act is constitutional and overrule, if necessary, the decision in Airheart v. Win-free, than to hold the act unconstitutional land void. Bush v. Martineau, 174 Ark. 214, 295 S. W. 9, and cases cited.
The decision in that case was not the unanimous opinion of the court, Mr. Justice Smith writing a vigorous dissent and setting out arguments against it which we now believe to be unanswerable. In addition to what was there stated, it may be further said that the county judge of Arkansas County, and undoubtedly of other counties, thought Amendment No. 11 meant exactly what it said, and that was that he was authorized to issue bonds “to pay indebtedness outstanding at the time of the adoption of this amendment,” and not indebtedness outstanding at the time the bonds were issued and paid for. It was not finally determined that the amendment had been adopted until the decision of this court in Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865, February 16, 1925, and it was' not definitely and certainly ascertained on what date the amendment became effective, whether October 7 or December 7,1924, until the decision of this court in Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22, November 23, 1925, where it was held that Amendment No. 11 went into effect on December 7, 1924, and that bonds might be issued for “indebtedness outstanding” on December 7, 1924. So the several county courts were not advised, prior to February 16, 1925, that they had any authority to issue bonds, and did not know, prior to November 23,1925, as to the exact amount of indebtedness for which bonds anight be issued. Arkansas County took the safe course, and issued bonds to cover debts outstanding to October 7,' 1924. Then the enabling act, act No. 210 of 1925, p. 608, requires an order of the county court declaring the total amount of its debts, and publication of such order for one insertion, after which any property owner has thirty days to bring a suit to review the correctness of such order, and thirty days moré in which to appeal to this court after an adverse decision. Necessarily, it was contemplated that a considerable period of time might elapse before the county judges knew exactly what they could do. In the meantime outstanding warrants were presented to the collector in payment of taxes. He had no right to refuse them. County warrants must be accepted in payment of couiity" taxes, and the collector .of Arkansas County accepted in payment of taxes $20,255.98 of such warrants prior to the receipt of the bond money on June 15, 1925. Suppose, for example, this sum of money had been the total outstanding indebtedness of Arkansas County. Under this construction in the Airhart case, it could not issue any bonds, and would be in no better financial condition than it was before. The Legislature, by act 30 of 1927, has found that this payment of the warrants outstanding on December 7, 1924, from the county general fund, was erroneously paid from such fund instead of the bond fund, and correctly so. It was not only a mistake of law, but of fact. Having erred, we think they should be permitted to correct it by crediting the county general fund with the surplus. In the view of the majority, Airheart v. Winfree should be overruled and the act sustained.
By the decision of this court in Matheny v. Independence County, supra, it was held that Amendment No. 11 became effective on December 7,1924, instead of October 7, as the county judge of Arkansas County, and perhaps of other counties, erroneously thought. To correct this error, the Legislature of 1927 passed act 165, Acts of 1927, p. 591, the first section of which reads as follows:
' “The county treasurers of those counties that have heretofore issued and sold bonds, and which still have on hand the proceeds or a portion of the proceeds from the sale of such bonds, are hereby authorized and empowered to use such funds in paying warrants and other legal evidence of indebtedness issued for or on account of indebtedness made or existing to the 7th day of December, 1924, irrespective of the fact that the proceeding’s or orders providing for the issuance of such bonds may or do provide that the proceeds from such bonds, or the issuance or sale thereof, are to be used or employed in payment of indebtedness made or existing to October 7, 1924, or any other date, or to such date or any other date only.”
By virtue of authority of this act, 'it is the opinion of this court that Arkansas County may lawfully pay, from its surplus bond account, any indebtedness existing prior to December 7, 1924, or might yet have a supplemental bond issue to take up the indebtedness existing on December 7, 1924, if the funds in the surplus bond account are insufficient to cover said indebtedness. The plain mandate of the Constitution as amended was to authorize the counties to get out of debt and to stay out of debt. And it is apparent that the only way that many of them can do this is to take up all indebtedness existing at the time Amendment No. 11 became effective, by a bond issue, to be retired by the levying of a tax not to exceed three mills for this purpose, in addition to the general county levy for county purposes.
The judgment of the circuit court is accordingly affirmed. | [
112,
-20,
-71,
92,
-22,
64,
42,
-104,
82,
-95,
-16,
83,
-23,
98,
5,
123,
-32,
123,
84,
112,
-28,
-74,
55,
96,
-6,
-77,
-55,
-43,
51,
77,
-92,
-44,
13,
60,
-22,
-107,
70,
-94,
-25,
92,
14,
-128,
-69,
112,
73,
64,
52,
-89,
55,
11,
113,
-121,
-22,
41,
53,
123,
109,
44,
-37,
27,
64,
-29,
-101,
-123,
95,
23,
-127,
102,
-102,
65,
96,
46,
-104,
51,
5,
-7,
114,
-90,
-122,
116,
13,
-67,
44,
118,
38,
1,
53,
-17,
-80,
-88,
38,
-65,
-115,
-90,
-112,
121,
10,
9,
-98,
-99,
94,
-104,
-122,
-2,
-83,
37,
85,
108,
11,
-50,
-44,
-95,
44,
117,
-116,
19,
-41,
99,
52,
112,
-115,
-30,
92,
-26,
56,
-69,
-58,
-15
] |
McHaney, J.
On October 16, 1941, judgment was rendered by default against appellant and in favor of appellees for $303.65, in the municipal court of the city of New York, borough of Brooklyn, fifth district. Thereafter, this suit was brought by appellees against appellant, in the Independence circuit court, based on said judgment, an authenticated copy of the record thereof being attached thereto. Appellant defended the action on the ground that he had not been served with summons and copy of the complaint. Trial resulted in á judgment against him for $321.75 with interest at six per cent, from December 1, 1941, and costs.
It is contended on this appeal that the evidence “is conclusive that the process server who attempted to serve appellant in La Guardia Airport failed to deliver to him a copy of the summons and complaint; failed to orally advise him of the nature of the action there; and did not even touch him with the papers she attempted to serve upon him. ”
We cannot agree with appellant that this is true. He so testified and was corroborated by his wife and two friends with him. But he admits that, when the process server attempted to serve him, she asked him if he were John W. Edwards, he denied his identity, and ran away to keep from being served. He denied knowing that she was a process server. On the other hand, the return on the summons shows personal service on him, which is prima facie evidence of service, and the judgment itself recites the fact. Also the process server, Mary Kuhner, testified very positively that “service was effected by delivering to and leaving with John W. Edwards — a true copy of the summons and complaint in this action, while the defendant was at the La Guardia Airport, borough of Queens, and at the time of service, Emma Stewart, one of the plaintiffs in this action, pointed out the defendant, John W. Edwards, to me. I left the summons and complaint with Mr. Edwards, telling him that it was a true summons for him.” She further testified that at the time she delivered them to him he ran off, dropping same to the ground.
The question of service or no service was one of fact, submitted to the trial court, sitting as a jury, and, like the verdict of a jury, his finding, if supported by substantial evidence, is conclusive on appeal. We think the evidence to support the finding of service is quite substantial, if not preponderant, and the judgment must be and is affirmed. | [
-80,
124,
-24,
76,
42,
97,
42,
-104,
64,
-125,
-73,
83,
-19,
-29,
12,
107,
-15,
59,
81,
115,
-49,
-94,
6,
98,
-13,
-13,
-31,
85,
-79,
-51,
-20,
-44,
108,
-78,
-53,
-43,
70,
66,
-49,
88,
-114,
41,
-71,
105,
-7,
16,
32,
121,
-43,
15,
113,
-98,
-29,
44,
-111,
-50,
-24,
44,
115,
121,
-61,
-79,
-109,
-115,
127,
22,
-110,
38,
-97,
5,
-40,
42,
-112,
53,
33,
-7,
48,
-91,
-126,
-12,
35,
-71,
17,
34,
98,
-127,
13,
-27,
-8,
-84,
38,
126,
-97,
-89,
-41,
72,
73,
101,
-108,
-107,
121,
80,
47,
-12,
-3,
85,
30,
100,
75,
-113,
-44,
-93,
79,
84,
-68,
-114,
-17,
35,
21,
80,
-52,
-96,
92,
102,
121,
-101,
-122,
-106
] |
McHaney, J.
Appellant is the owner of a two-story business building in the city of Fayetteville, Arkansas, and, in August, 1937, she leased same for a period of five years to appellee, Bob White, who owns and operates therein his Pastry Shop, consisting of a confectionery, restaurant and bakery. A written lease agreement was executed by them. White took possession under said lease, made extensive repairs, and installed his machinery and equipment for the purposes of his business, including a gas heated bakery oven. On October 20, 1939, this oven exploded causing damage to the building, including the breaking of the windows therein. White repaired the damage to the building and equipment, other than the windows, but contended that he was not responsible under the lease for the cost of replacing the windows. In order that the repairs might be made at once, he and appellant stipulated that he should replace the broken windows and the question of liability for this cost would be later, determined. Appellee, Kelley Brothers Lumber Company, furnished the material and installed the windows for which it rendered a bill to White for $295.93, exclusive of interest, and neither appellant nor White questions its correctness. White did not pay the bill so Kelley Brothers brought suit against him for this amount. He filed an answer and a cross-complaint against appellant, alleging that, under said lease, appellant should pay said bill. Appellant answered denying her liability and filed a cross-complaint against White for $10.93 which she alleged was the necessary amount to replace the broken windows in the upstairs portion of the leased premises, caused by said explosion, and which have not been replaced. White denied his responsibility therefor.
Trial before the court sitting as a jury resulted in a judgment in favor of Kelley Brothers against appellant for the amount of its bill with interest, and a dismissal of its complaint against White and that neither White nor appellant recover anything on their respective cross-complaints against the other. The case is here on appeal.
The lease - agreement provides that lessee, White, “will not suffer any strip, damage or waste and that he will at his own expense make all repairs, including piping and plumbing' caused by his negligence or the negligence of his employees or by freezing and not caused by the ordinary wear and usage . . . and will keep the premises in such repair as the same are in at the commencement of said term . . . reasonable use and wearing thereof and damage by accidental fire or other inevitable accidents only excepted. . . .” Another clause reads as follows: “Lessee further agrees not to allow any gasoline or any other inflammatory material to be left or stored in said building. And that in case any glass in doors or windows of said building are broken or any damage that may result in the loading or •unloading of any material or merchandise caused by the backing in of trucks or any other conveyance to said building, shall be replaced and repaired by said lessee at his own expense and within a reasonable time after such accident may occur.” Another clause is: “It is also provided that in case the premises or any part thereof shall during said term be destroyed or damaged by fire or other unavoidable casualty so that the same shall thereby be rendered unfit for use and habitation, then and in such case the rent hereinbefore reserved, or a just and proportionate part thereof according to the nature and extent of the injury sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the lessor, or these presents shall thereby be determined and ended at the election of the said lessee or his legal representatives. ’ ’
In the clause second above quoted lessee, White, agreed: “And that in case any glass in doors or windows of said building are broken . . . shall be replaced ... by said lessee at his own expense and within a reasonable time after such accident may occur.” We think the trial court failed to give this provision in the lease any force or effect. It is true that the lease does not bind the lessee to pay damage caused by “accidental fire or other inevitable accidents,” but the damage done to the glass in the windows was not caused by fire or an inevitable accident. We think the lessee would be liable under the lease for damage to the glass in windows and doors in any and all circumstances and no matter how caused, except fire or inevitable accident. Webster defines “inevitable accident” a.s “an accident not foreseeable or to be prevented by due care or diligence; nearly equivalent to (though broader) an act of Grod.” The explosion was not an inevitable accident. It could have been foreseen with due care and caution. It was testified to and not disputed that the pilot light used to light the six burners in the oven consisted of a length of half-inch pipe with a series of holes along the top, through which, ignited gas passed to light the burners; that many of these holes were stopped up which might prevent the burners from being ignited; and that escaping unlighted gas from a burner would cause an explosion. White and his employee said they did not know what caused the explosion. It appears to us that, in some manner, gas escaped into the oven, became ignited and exploded. Nothing else could have caused it. The oven was an instrumentality wholly under White’s control, one appellant had nothing to do with, and we think he should bear the loss caused by its improper operation, regardless of his agreement to replace broken glass above set out, and this applies to whatever damage was sustained to the windows in the upstairs part of the building as well as to the damage downstairs.
The judgment will be reversed, and cause remanded for a new trial.
Mr. Justice Greeni-iaw, being disqualified, did not participate in the consideration or determination of this case. | [
-48,
104,
-40,
76,
24,
96,
58,
-98,
115,
-127,
53,
87,
-19,
-51,
13,
65,
-13,
121,
81,
121,
5,
-77,
2,
98,
-46,
-5,
-63,
69,
-79,
-49,
-12,
-10,
-52,
32,
-54,
-43,
-126,
-54,
-51,
92,
-118,
5,
59,
96,
-35,
16,
52,
122,
116,
13,
113,
29,
-13,
44,
-111,
-49,
77,
44,
-19,
45,
113,
-79,
0,
13,
127,
23,
-95,
37,
-98,
5,
-40,
28,
-104,
49,
17,
-88,
114,
-90,
-58,
116,
7,
-119,
8,
34,
98,
32,
-119,
-29,
-20,
-84,
46,
-10,
-99,
-91,
-63,
88,
3,
11,
-67,
28,
123,
16,
5,
124,
-12,
21,
89,
108,
-125,
-54,
-44,
-79,
15,
100,
-108,
31,
-17,
7,
-78,
113,
-52,
-90,
93,
70,
59,
-101,
-97,
-44
] |
GrRiFFiN Smith, C. J.
The decree appealed from granted J. C. McCall a divorce on the allegation that he and Bama McCall had lived apart for three consecutive years without cohabitation.
The wife sued January 31, 1938, alleging that Mildred Hays had succeeded to her husband’s affections, and that they were living together. The prayer was for separate maintenance. Ten days later the court ordered monthly payments of $30 pendente lite.
February 21 the husband answered and cross complained. He asked for an absolute divorce, with equitable division of certain property listed and evaluated.
June 28, 1939, the temporary order directing payment of $30 was modified by reducing payments to 415 April 22, 1941, McCall filed an amendment to his cross complaint in which it was stated that monthly payments of $15 ordered February 9, 1938, were directed .to be discontinued October 3,1940, but through error the order had not been placed of record. June 3, 1941, the wife filed an answer to her amendment to the defendant’s cross complaint, alleging that $560 was delinquent; also, that in 1932 the husband procured a $2,000 policy of insurance. The insured failed to pay premiums, in consequence of which Mrs. McCall asked reimbursement of $136.68 for amounts she had paid.
August 31, 1939, an order was issued directing the sheriff “. . . to arrest McCall and place him in the Pulaski county jail for safekeeping until the further order of this court; provided, however, he may make bond in the sum of $90 guaranteeing payment of maintenance of $45. . . .”
The decree of June 5, 1941, recites that at a hearing had June 28, 1939, McCall was denied a divorce on his cross complaint and the cause was continued.
"Without detailing transactions sustained by a preponderance of the evidence showing the husband’s misconduct and disregard of the marital relation, it is sufficient to say that under the construction given subdivision seven of Act 20 of 1939, the court did not err in granting McCall a divorce on his allegation that separation had been continuous for three years. Jones v. Jones, 199 Ark. 1000, 137 S. W. 2d 238.
But it is insisted there' is no bill of exceptions because oral testimony when transcribed was not approved until there had been an intervening term of court, and when the appeal was granted time was not asked. Agreement of the parties was that when the stenographer’s work should be completed it would be submitted to the court, “and when so approved by the chancellor, filed as depositions and as a part of the record in this case.”
Elvin v. Morrow, ante, p. 456, 162 S. W. 892, is relied upon to exclude all testimony. In that case'it was said that one of the methods of bringing oral matter up for review was to have the testimony taken down in writing in open court “and by leave filed with the papers in the case.” In the instant case the agreement was that when approved the transcription of evidence should be treated as depositions. It is true this transaction — approval of the chancellor — occurred at a term subsequent to that at which the decree was rendered; but the agreement was unrestricted and should be liberally construed in the interest of justice.
The judgment is reversed, with directions that alimony of $30 per month be paid from this date. It is further ordered that on remand the amount delinquent be determined under the several court findings. When so ascertained appellee shall pay arrearages at the rate of $10 per month.
Act 20, approved January 27, 1939, subdivision 7.
The plaintiff’s allegation was that McCall was a railway brakeman who earned approximately $200 per month.
In response to court order, Missouri Pacific Railroad Company filed a statement showing McCall’s average “earned and paid wages” to be $2,258.03, or $187.50 per month. The lowest monthly earning was $10.66 for March; the highest $232.38 for June. During January, February, and March, 1941, earnings were $437.40, a monthly average of $145.80. Total for fifteen months was $2,695.43, or an average of $179.69, plus. | [
48,
96,
-75,
109,
-118,
-31,
-118,
-102,
114,
-119,
-73,
82,
-7,
86,
0,
121,
96,
95,
81,
97,
-27,
-77,
22,
96,
114,
-13,
-103,
-49,
-75,
-49,
-27,
-42,
88,
44,
-122,
-39,
102,
18,
-121,
92,
-50,
-127,
-87,
101,
-39,
74,
52,
47,
2,
13,
81,
-97,
-13,
47,
17,
-29,
72,
44,
-37,
-72,
-48,
98,
-126,
76,
111,
44,
81,
-121,
-62,
-123,
64,
62,
-104,
21,
0,
-24,
51,
-90,
-105,
116,
110,
-85,
8,
116,
98,
2,
-123,
-19,
-112,
-104,
22,
54,
-97,
-122,
-70,
81,
8,
101,
-66,
-99,
109,
92,
-113,
-68,
125,
-115,
116,
104,
39,
-49,
-108,
-109,
12,
56,
-100,
31,
-29,
-29,
36,
113,
-49,
-94,
76,
70,
115,
-101,
-57,
-104
] |
George Rose Smith, Justice.
The Arkansas Gross Receipts Tax, usually called the sales tax, is basically a 3 percent excise tax levied upon gross proceeds derived from sales of tangible personal property. The statute, however, also imposes the tax upon a number of transactions that might not otherwise be thought to fall within the scope of what was originally a retail sales tax. Here we are called upon to interpret that section of the act which levies the tax upon “ [pjrinting of all kinds, types and characters, including the service of overprinting, and photography of all kinds.” Ark. Stat. Ann. § 84-1903 (d) (Repl. 1960). Our task is that of construing the phrase, “photography of all kinds.”
Dungan-Allen, Inc., is a corporation engaged in commercial photography. During the sixteen-month pe riod now in question the company’s gross receipts were $65,079.79. The company filed no gross receipts tax return and paid no gross receipts tax. The Commissioner of Revenues assessed the tax upon $44,170.08 of the company’s gross receipts, conceding that the rest of its revenue was exempt, as it involved out-of-state transactions, sales to national banks, and other nontaxable activity. Dungan-Allen followed the statutory procedure of paying the assessment under protest and bringing suit to recover the money. This appeal is from a decree directing a refund of the entire amount paid.
Dungan-Allen contends primarily that about 85 percent of its revenue is recompense for services not falling within the statutory phrase, “photography of all kinds.” Secondarily it insists that the assessment in its entirety is so discriminatory as to be unconstitutional. The chancellor sustained both contentions.
The first contention is the more important of the two. Upon that issue the facts are hardly in dispute. Rodney Dungan and Willie Allen, who conduct their business in corporate form, are skilled commercial photographers. Much of their work is done for advertising agencies, magazines, television, and large advertisers such as banks and insurance companies. Their business is decidedly different from that of a neighborhood photographer who devotes most of his time to making pictures of family groups, wedding receptions, high school graduating classes, and similar subjects.
Dungan and Allen, in the course of their business, frequently have long consultations with their patrons about matters such as advertising layouts, promotional planning, material for magazine publication, and other activities going beyond the mere taking and developing of pictures. An excerpt from Dungan’s testimony:
“We take pictures — the least of what we do. We spend a lot of time planning, deciding which way it would be better to do what, get props together, picking the right locations. There’s a thousand other things before the actual picture taking. Actually, that’s a minor point. Anybody can make a picture, and it’s the arranging and the doing what is necessary to make a photograph that has ... a meaning, that does what you want it to do.”
In billing customers Dungan-Allen stresses its services rather than its photographic prints. A $25 hourly charge is made for services, but the prints are furnished for $2 each — a sum too small to include any profit. Thus for a day’s work an advertising agency might be charged $200 for photographic services and $10 for five different pictures. In this litigation the taxpayer insists that the incidence of the gross receipts tax should be similarly divided between nontaxable revenue from professional services and taxable revenue from the taking of pictures.
"We do not so interpret the statute. Hardly any tangible article or commodity is priced solely on the basis of its constituent materials. Invested capital, education or technical training, professional skill, labor, and overhead expenses, or some combination of them, can be expected to contribute to the value and selling price of the finished product. A familiar example is the conversion of a pound of steel into watch springs worth a thousand times as much as the original metal.
A similar question was before us in Ferguson v. Cook, 215 Ark. 373, 220 S. W. 2d 808 (1949). There a monument dealer sought to deduct from the taxable selling price of his tombstones the labor cost necessary to make and install them. In holding that the entire selling price was subject to the tax we relied upon the language, which is still in the statute, forbidding any deduction from the selling price “on account of the cost of the property sold, labor service performed, interest paid, losses or any expenses whatsoever.” Ark. Stat. Ann. § 84-1902 (d). There we said: “This language appears to mean, and we so construe it, that where one sells an article in the preparation of which for sale he has expended labor, which adds to its value and was necessary to make it salable, he must pay the sales tax on the price received, without deduction for the value of the labor performed.”
So in the case at bar. Regardless of how Dungan-Allen bills its customers, what its patrons are buying and paying for are photographs. No doubt the photographers’ experience and skill are essential to their work, but it is plain enough that the company’s customers would not ordinarily pay for the exercise of that skill if it did not enhance the value of the end product. Counsel for the Commissioner conceded in oral argument that the tax should not apply in instances in which Dungan-Allen were paid for services only, such as consultations, without any photographs being involved. That concession is well taken, but the principle cannot be extended to the point of separating the sale of the photograph from the exercise of that skill “which adds to its value and was necessary to make it salable.” Ferguson v. Co oh, supra.
Secondly, the taxpayer asserts unconstitutional discrimination in the legislative or administrative failure to tax physicians for the making of x-rays or architects for the making of blue prints, which, it is said, also fall within the purview of “photography of all kinds.” We find no merit in that contention. Classification is permissible if the differences are reasonably related to the purpose of the law. Jacks v. State, 219 Ark. 392, 242 S. W. 2d 704 (1951). Dungan-Allen is paid to produce and sell photographs suiting the particular needs and demands of its customers. By contrast, a physician is engaged to diagnose and treat illnesses, not to produce and sell x-rays. An architect is employed to design and supervise the construction of buildings, not to produce and sell blue prints. The situations are so fundamentally different that no prohibited discrimination can be said to exist in the language of the statute or in its administration.
Reversed. | [
50,
-22,
-40,
124,
-72,
-62,
114,
-70,
90,
65,
-89,
19,
-19,
10,
21,
115,
-15,
77,
80,
104,
-44,
-89,
37,
34,
-110,
-77,
-55,
-41,
53,
-53,
-84,
92,
78,
48,
-22,
-43,
71,
-38,
-51,
92,
54,
0,
8,
77,
125,
68,
20,
41,
50,
11,
-15,
-113,
-5,
44,
30,
-61,
77,
44,
121,
-86,
65,
-69,
-86,
-99,
127,
23,
17,
52,
-101,
3,
-40,
14,
-104,
57,
65,
-24,
115,
-90,
86,
100,
11,
-71,
-120,
96,
98,
0,
5,
-59,
-68,
8,
-90,
-37,
-99,
-25,
18,
57,
3,
47,
-74,
-107,
124,
16,
-122,
122,
-14,
-43,
-105,
108,
-113,
-114,
-106,
-93,
-89,
33,
92,
27,
-17,
-30,
16,
113,
-49,
-122,
93,
87,
80,
11,
-114,
-44
] |
Holt, J.
January 25, 1939, the State of Arkansas, proceeding under the authority of Act 119 of 1935, filed suit in the Grant chancery court to confirm its title to certain lands in Grant county. -September 16, 1939, a decree, confirming the state’s title to certain lands described in the complaint, was entered, and among these various tracts described in the complaint was the land involved here, “the west half of the northeast quarter of section 14, township three south, range 12 west, in Grant county, Arkansas.”
March 21, 1939, appellee, J. L. Sanders, obtained a deed from the State of Arkansas to the land involved.
September 4,1940, within the year following this confirmation decree, appellant, R. F. Farrell, intervened in the state’s confirmation suit. He alleged ownership of the land in question, and that the purported tax sale to the state and the attempted conveyance by the state to appellee, Sanders, are void and of no effect on twenty-five different grounds. He further alleged that “your petitioner had no knowledge of the pendency of the suit of the State of Arkansas v. Delinquent Lands in Grant county, Arkansas, and has a meritorious defense to said suit; that he tenders into court and offers to pay to the said J. L. Sanders the sum of $29.79, paid by him to the state of Arkansas for said deed, together with penalty, interest and cost as required by law. Wherefore, intervener prays that the tax sale in Grant county, Arkansas, for the year 1935 as to the following described lands, to-wit: west half of the northeast quarter, section fourteen, township 3 south, range twelve west, Grant Co. be declared void and of no effect; that this cause be dismissed as to said lands for want of equity and that all of the right, title, interest and equity of the said J. L. Sanders and of the state of Arkansas, in and to said lands, or any part thereof, be divested out of them and vested in intervener, free and clear of all and any claims in or to said lands that have been, or might be, made by them, and for all other proper relief.”
October 28, 1940, appellee filed motion to dismiss appellant’s intervention on the ground that “intervener has not tendered to defendant taxes paid or pay for improvements as provided for by law, and did not file the affidavit showing this before filing suit.”
December 20 following, the court, in the absence of appellant, sustained this motion. However, on April 22, 1941, the trial court, upon appellant’s motion, set aside its order of dismissal, and reinstated appellant’s intervention. April 28, 1941, appellee answered with a general denial and by way of cross-complaint asked for numerous items of improvements totaling $280.34, which includes the sum of $81, paid the state for deed to the land in question.
May 14, 1941, appellant answered appellee’s cross-complaint with a general denial and alleged that appellee was indebted to him for the use of the land and for certain timber sold from the property by appellee, and asked that a balance be struck between them.
May 16, 1941, appellee filed an amendment to his answer and cross-complaint, alleging additional improvements, and again questioned the action of the court in reinstating appellant’s intervention, and in addition, pleaded the statute of limitation. On this same day, May 16, 1941, upon a hearing of the cause, appellee renewed his motion to dismiss appellant’s intervention for failure to tender taxes and improvements and for failure to .file affidavit of tender. The court thereupon took this motion under advisement and thereafter, on December 19, 1941, entered the following decree: ‘ ‘ On this day is presented to the court the motion of the defendant, J. L. Sanders, to dismiss the intervention of R. F. Farrell, because of the failure to tender taxes and improvements and for failure to file affidavit of tender. And the court being well and sufficiently advised in the premises, finds that the state of Arkansas filed suit on the 25th day of January, 1939, in the Grant county chancery court to confirm title in certain lands in Grant county that had forfeited for nonpayment of taxes and sold to the state of Arkansas, and that on the 16th day of September, 1939, a decree was rendered quieting and confirming title in and to certain lands in Grant county in the state of Arkansas, and among said lands was the west half of the northeast quarter of section 14, township 3 south, range 12 west, the property involved in this action; that on the 4th day of .September, 1940, and within a year after the entering of the confirmation decree confirming title to said lands in the state, the intervener herein, R. F. Farrell, filed his intervention in said suit setting up the invalidity of said tax sale upon which the confirmation decree was based and asked that he be allowed to redeem the land in controversy; J. L. Sanders, the purchaser of said land from the state of Arkansas,'was made a party defendant in said intervention, and filed a motion to dismiss said intervention because of the failure of the intervener to make a tender of taxes and improvements and for failure to file affidavit of tender; the court further finds that said motion of the defendant, J. L. Sanders, was sustained and said intervention dismissed by the court on the 20th day of December, 1940, but upon petition of the intervener, on April 22, 1941, said order of dismissal was set aside by the judgment in vacation and said intervention reinstated, and in the same term of court in which said dismissal order was entered; that said motion to dismiss for failure to tender taxes and improvements and failure to make affidavit of tender was renewed by the defendant, J. L. Sanders, on the 16th day of May, 1941, in open court, whereupon the court took said motion to dismiss under advisement and after due consideration of same finds that it is meritorious and should be sustained. It is, therefore, considered, ordered and decreed, that the motion of the defendant, J. L. Sanders, to dismiss the intervention of the intervener, R. F. Farrell, for failure to tender taxes and improvements, and for failure to make affidavit of tender, be, and the same is hereby sustained and the intervention herein is dismissed.” From this decree is this appeal.
Appellee in his brief states the issue to be decided as follows: “This brings us down to the only question presented in this case. Does the failure to file an affidavit as required by § 4663 of Pope’s Digest mean what it says? If so, then the court was right in granting said motion and dismissing said cause of action.”
There is some controversy concerning the bill of exceptions and the time of the filing of a supplement thereto, which question we regard as unimportant for the reason that the alleged error in the decree of the court is apparent upon the face of the record and no bill of exceptions is required to present it.
Clearly, the motion to which appellant'refers was his motion filed October 28, 1940, and is based upon the requirements of § 4663 of Pope’s Digest which provides for the tender for improvements, taxes and an affidavit of tender. Section 4663 has no application here. The intervention which appellant filed is not a possessory action such as is contemplated under § 4663, supra, but is an action to invalidate a tax sale and cancel the deed from the state of Arkansas to appellant. Appellant’s intervention is brought under the provisions of § 6 of Act 119 of the Acts of 1935, (§ 8719; Pope’s Digest), under the terms of which he was required to “tender to the clerk of the court the amount of taxes, penalty and costs for which the land was forfeited to the state, plus the amount which would have accrued as taxes thereon had the land remained on the tax books at the valuation at which it was assessed immediately prior to the forfeiture; provided, that there shall be credited on the amount due, any taxes that may have been paid on the land after it was forfeited to the state.”
Appellant alleges in his intervention that the required tender was made. He was not required to file an affidavit of tender. In the recent case of Reynolds v. Plants, 196 Ark. 116, 116 S. W. 2d 350, this court, quoting from Lea v. Lewis, 189 Ark. 307, 72 S. W. 2d 525, said: “Since this is not a suit for recovery of land nor the possession thereof, the affidavit provided for in § 3708, Crawford & Moses’ Digest (§ 4663, Pope’s Digest) was not required, and the court erred in sustaining the demurrer and dismissing the complaint.” In the case last cited, the court further said: “Of course, the original owner is required to tender and pay the taxes, but he is not required to file an affidavit of tender. ” By reference to § 4663, Pope’s Digest, it will be seen that the section was intended to apply only in cases for the recovery of lands or for the possession thereof.
We think, therefore, on the record here, the trial court erred in dismissing appellant’s intervention. However, appellee, the purchaser at the alleged void tax sale, would be entitled to recover for the valúe of improvements when appellant attempts to take possession of the land should the invalidity of the tax sale be first established. As was said in the Plants case, supra, “however, this does not mean that a purchaser at tax sale or one whose title depends upon a void tax deed is not entitled to recover for taxes and the value of improv'ements, the tender of which is required in actions for the recovery of land or the possession thereof by the above section. For, in every instance, regardless of whether the tax sale is void and regardless of the purchaser’s lack of belief in his title, he is entitled to recover such taxes and value of improvements as a condition upon which a writ of possession will issue.”
Appellant, in his intervention, attacks the validity of the tax sale on twenty-five different grounds, some of which, if true, are sufficient to void the sale. Appellee, in addition to his motion to dismiss the intervention, filed an answer in which he denied generally the allegations set up in appellant’s intervention, and alleged that he paid the state for the 80 acres involved here a total of $81 for his deed. In these circumstances, appellant' was not required to tender to appellee the purchase price of the land. In the recent case of Luebke v. Holtzendorff, 203 Ark. 141, 162 S. W. 2d 899, this court said: “It was the sale for the 1933 taxes which the State sought to confirm under Act 119, s%ipra, and in the intervention appellee tendered the taxes for which the land sold and those which would have accrued thereon had the land remained on the tax books at the valuation at which it was assessed immediately prior to the forfeiture as required by § 6 of Act 119. * * * This is not a possessory action. Appellee is seeking to effect the redemption authorized by § 6 of Act 119, and to effect that purpose has made the tender which that Act required. * * * We dispose of the present litigation when we hold, as we do, that Stock’s vendees have the right, under § 6 of Act 119, to defeat the confirmation of the 1933 tax sale by showing the invalidity of that sale and by making the tender which that Act requires, and which has been done. * * * The $120 paid the state by appellant for its deed had no relation to the taxes due thereon, and did not profess to have. It was an arbitrary price fixed by law for the sale of land which had forfeited to the state. The state sold only this title, and its vendee bought with knowledge of the fact that his deed might be attacked, as many of such, deeds have been, and that he would not acquire the title under its deed if it were shown, before the title had ripened through possession or otherwise, that the sale upon which the State’s title was based was invalid. Being apprised of this fact, the General Assembly has made provision for this contingency. See Act. 226 of 1941, p. 552. . . . The Act 337 referred to in Act 226, just quoted, is an Act in which § 1 thereof provides that ‘ The Commissioner of State Lands is hereby authorized and empowered to make refunds of amounts received by the state for tax forfeited lands where title to such lands has failed’.”
The decree is reversed and the cause remanded with directions for further proceedings consistent with this opinion. | [
-11,
-17,
-12,
60,
106,
-48,
58,
-118,
-62,
-79,
38,
83,
109,
2,
1,
49,
35,
-83,
117,
120,
-57,
-74,
87,
98,
82,
-77,
-39,
-49,
60,
77,
-26,
-42,
76,
56,
-54,
-107,
-58,
96,
-27,
24,
78,
73,
11,
92,
89,
64,
60,
47,
82,
11,
53,
-82,
-6,
-84,
117,
67,
109,
44,
75,
-86,
73,
-80,
-102,
69,
-7,
7,
33,
-59,
-104,
1,
72,
106,
-112,
113,
-124,
-8,
119,
54,
-62,
116,
5,
-103,
8,
32,
102,
99,
-76,
-17,
32,
-120,
6,
63,
13,
-90,
-62,
88,
98,
9,
-74,
-100,
122,
-112,
78,
-14,
-31,
-51,
93,
108,
6,
-54,
-108,
-93,
6,
-88,
-103,
11,
-45,
45,
-80,
116,
-49,
-25,
93,
71,
16,
-101,
-122,
-11
] |
Humphreys, J.
This is an appeal from a decree dismissing appellant’s motion to set aside a decree rendered on the 31st day of December, 1940, by the chancery court of Boone county. The decree sought to be set aside was one canceling all the proceedings in a foreclosure suit between appellant and appellees during the September term, 1940, of the chancery court. The cancellation of the foreclosure proceedings included everything had and done therein at said September, 1940, term of court and amongst other things the cancellation of the deed of the commissioner of the said court conveying the lands described in the mortgage to appellant who was the purchaser of the lands at the mortgage sale, which sale and deed were confirmed by the court. These proceedings were canceled on March 1, 1941, which was the last day of the September, 1940, term, without notice to appellant and appellees were permitted to redeem the lands by paying into court the debt, interest and costs.
Appellant was notified of the action of the court by registered letter whereupon it filed a motion to set aside the court’s decree canceling the foreclosure proceedings on the ground the court was without authority to set aside the foreclosure proceedings without notice or a hearing..
Later the appellant filed a motion to set aside the decree canceling the foreclosure proceedings because after acquiring its foreclosure deed it entered into a binding written contract to sell the lands to an innocent third party.
Answers were filed to both motions and the first motion was tried by the court resulting in a decree to the effect that it had control of the foreclosure proceedings during the term of the court at which all orders were made therein and had power and authority to cancel the proceedings and permit appellees to redeem the lands. From this holding and decree an appeal was prosecuted 'to this court and was tried and an opinion rendered therein by this court on January 19,1942, under the style of The Security Bank of Branson, Missouri, v. Speer, 203 Ark. 562, 157 S. W. 2d 775.
During the pendency of this appeal appellees filed a motion in this court to abate the appeal until the motion and answer thereto tendering the issue as to whether appellant had entered into a written contract of the sale of the lands to an innocent third party was tried in the chancery court. In order to prevent a continuance or abatement of the trial of the case on appeal appellant represented to the court that it had taken a nonsuit on its motion tendering the issue that it had sold the lands to an innocent third party after acquiring and recording its foreclosure deed.
- This court overruled the motion to abate the appeal on the ground that appellant had taken a nonsuit of the issue tendered in its motion as to the sale of the lands to an innocent third party.
In due course this court rendered an opinion affirming the action of the chancellor in annulling and canceling all the foreclosure proceedings and permitting appellees to redeem said lands. The opinion appears in the 203 Ark. 562, 157 S. W. 2d 775.
After this opinion was handed down appellant filed the motion involved on this appeal to set aside the order and decree rendered by the chancery court on December 31, 1940, which, in substance, is the same motion that appellant took a nonsuit upon in the chancery court during the pendency of the appeal above referred to in 203 Ark. 562, 157 S. W. 2d 775. The trial court sustained a demurrer to the motion on the ground that it was res adjudicata of an issue between appellant and appellees to cancel and annul the order or decree of the court setting aside the foreclosure proceedings and permitting appellees to redeem the lands. We think the court properly sustained the demurrer to the motion because it was in tenor and effect the same motion involving the same issue which appellant dismissed or took a nonsuit upon to prevent the continuance of the appeal until the issue was determined by the chancery court. Each of the two motions tendered the issue of whether appellant had sold the lands after acquiring its foreclosure deed to an innocent third party. The motion involved on this appeal presents no new issue between appellant and appellees, but involved the same issue contained in its original motion upon which it took a nonsuit during the pendency of the former appeal of the case to this court.
No error appearing', the decree is affirmed. | [
-16,
-20,
-12,
12,
-54,
-96,
10,
-70,
82,
-87,
54,
-45,
-23,
-62,
80,
117,
-30,
9,
117,
121,
-59,
-74,
23,
26,
114,
-13,
81,
-43,
-75,
-51,
118,
-105,
76,
112,
90,
21,
-58,
-32,
-49,
84,
30,
0,
-101,
77,
-39,
-56,
48,
-93,
114,
11,
21,
-81,
-29,
47,
29,
-53,
73,
44,
-53,
45,
-47,
120,
-101,
5,
123,
5,
17,
101,
-104,
69,
104,
-6,
-104,
49,
1,
-24,
119,
-90,
-122,
116,
66,
27,
40,
98,
98,
3,
84,
-17,
-100,
-120,
46,
102,
29,
-90,
-126,
24,
2,
33,
-74,
-99,
92,
16,
15,
-2,
110,
-123,
93,
108,
15,
-50,
-44,
-109,
-102,
124,
-112,
11,
-5,
-59,
48,
48,
-49,
-32,
90,
-57,
27,
-101,
-50,
-47
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.