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Green haw, J.
This suit was brought to compel appellee district to levy and collect betterment assessments for the purpose of paying bonds which the district had issued.
Appellant candidly admits that this relief cannot be awarded unless the opinion in the case of Texarkana-Forest Park Paving, Water, Sewer & Gas District No. 1 v. State, use Miller County, 189 Ark. 617, 74 S. W. 2d 784, is overruled. The parties refer to this case as the Texarkana case, and we will designate it by the same name.
That was a case in which the district and its receiver were attempting to secure state aid under the provisions of act 63 of the Acts of 1931. The relief prayed was denied upon the ground that the district had been organized under and by authority of act 183 of the Acts of 1927, which act was amendatory of act 126 of the Acts of 1923, as amended by act 645 of the Acts of 1923, which said act 183 was invalid for the reasons stated in the opinion above cited.
Act 63 of the Acts of 1931, under which state aid was sought, provided for a levy of six cents per gallon gasoline tax, one-sixth of which was to constitute a “county'road fund,” and provided that the State Treasurer, prior to disbursing* such funds to the respective counties, should deduct the amount required to pay 75 per cent, of the maturing bonds issued by certain road improvement districts which had been organized under valid legislation.
The county judge of Miller county, in that capacity and as a citizen and taxpayer of that county, brought suit to restrain the State Treasurer from making any deductions from Miller county’s allotments under act 63 of the Acts of 1931 for the appellant district, for the reason that the district had been organized under invalid legislation.
This contention was sustained, it being -held that the district had no legal existence and was not, therefore, entitled to participate in benefits intended only for districts validly organized. An elaborate opinion was written by the Chief Justice, from which three members of the court dissented, and it is not thought that any useful' purpose would.now be subserved by repeating here the arguments leading to the conclusion stated. The question was further considered in an additional opinion, in which a motion for rehearing was denied. The present appeal partakes of the nature of an additional and belated motion for a rehearing; but it does not appear that any questions are now presented which were not there considered,' save only the contention now made that the former opinion has, in effect, been overruled by the later opinion in the case of Hollis & Co. v. McCarroll, Commissioner, 200 Ark. 523, 140 S. W. 2d 420.
The argument in this respect is to the following effect. In the Texarkana case it was held that act 183 of the Acts of 1927 offends § 23 of article 5 of the Constitution, which provides that “No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. ’ ’
The insistence is that the legislation upheld in the Hollis case, supra, (the extension of the state’s right to collect the sales tax), was enacted in the same manner as was act 183, but was upheld notwithstanding the provisions of the section of the Constitution just quoted.
It is pointed out in the briefs of opposing counsel that the Texarkana case was cited in the briefs in the Hollis case to sustain the contention that the act extending the time for the collection of the sales tax — act 364 of the Acts of 1939 — was invalid as offending against § 23 of article 5 of the Constitution. It was not thought so, and the Texarkana case was not referred to in the Hollis case, and we would not overrule the Texarkana case without indicating the intention to do so. But if we should now admit that we were in error in holding, in the Texarkana case, that §.23 of article 5 of the Constitution had been violated, that case (the Texarkana case) would still be controlling here, because it was there also held that the act under which appellant district was organized was invalid as being in contravention • of Amendment No. 14 to the Constitution, which inhibits the enactment of local legislation.
A demurrer to appellant’s complaint was sustained, and inasmuch as it is conceded that this decree must be affirmed unless the Texarkana case is overruled, we affirm that decision, being unwilling to overrule the Texarkana case. | [
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Humphreys, J.
Ón February 19, 1940, this court on appeal of the case of Jones v. Jones, 199 Ark. 1000, 139 S. W. 2d 238, awarded a divorce to John R. Jones, Jr., against his wife, Jewell Jones, under the provisions of paragraph 7 of § 4381 of Pope’s Digest (three-year separation statute) and rendered a continuing decree of $150 per month against him in favor of his wife.
Subsequently John R. Jones filed a petition or a motion in said cause in the chancery court of Pulaski county to reduce the monthly allowance of $150 alimony and the trial court reduced the monthly allowance to $100 per month, from which decree Jewell Jones duly prosecuted an appeal to this court .and, upon a trial de novo, this court reversed the decree reducing the amount to $100 and rendered a continuing decree for $150 per month alimony. This opinion was handed down by this court on December 16, 1940, under the style of Jones v. Jones, 201 Ark. 546, 145 S. W. 2d 748. Upon remand a decree was rendered in accordance with the mandate of this court.
On May 25, 1941, John R. Jones applied to the chancery court of Pulaski county in said cause for permission to pay the $150 per month alimony to Jewell Jones into the registry of the chancery court of Pulaski county and an order was made granting John R. Jones the relief prayed for.
Thereafter, John R. Jones removed to Florida and continued to pay a certain part of the alimony from time to time into the registry of the chancery court of Pulaski county, but fell behind in his payments until he owed a balanqe thereon of date June 11, 1942, of .$1,175, whereupon this motion or petition was filed by appellant in said cause for $1,175 less $275 for which she had obtained a decree on August 21, 1941. In other words, she prayed that a decree be entered in her favor for the sum of $900. The chancery court heard the motion and' made the finding that John R. Jones was in arrearage in alimony payments in the sum of $1,175 and found that all of the arrearage had accumulated while John R. Jones was a resident of the state of Florida and that no additional personal service had been had upon him in this cause in the accumulation of such arrearage and for that reason refused to give a decree to appellant for the arrearage, from which decree Jewell Jones has appealed to this court.
John R. Jones instituted this suit for divorce and Jewell Jones, his wife, filed a cross-complaint for permanent alimony. John, R. Jones, in the course of the litigation, finally obtained a divorce under the provisions of paragraph 7 of § 4381 of Pope’s Digest on the ground that he and his wife had lived separate and apart for a period of three years and under the same statute Jewell Jones was awarded permanent alimony in the sum of $150 per month which was a continuing general decree against him unless there should be some subsequent modification of the order for alimony on account of a change in the condition of the parties. So far as the alimony was concerned the decree for same was not a final determination of the rights of the parties and has always been open to review should there be a change in the circumstances of the parties under the rule in the case of Holmes v. Holmes, 186 Ark. 251, 53 S. W. 2d 226, nor is a decree for future payments of permanent alimony a final decree upon which an execution might be issued or which might become a lien upon real estate. In order to collect on such a continuing general decree, it would be necessary to ascertain from time to time the amount of arrearages due in the payment of alimony and render a decree for the specific amount due. For these pur-' poses the parties to the suit continue to be parties and, being parties already, it would not be necessary to get personal service upon them to carry out and enforce a continuing decree when an attempt is made to reduce the decree to a definite and certain amount, dependent upon whether there should be delinquencies in the payment of the monthly alimony allowed.
We think, therefore, the trial court was clearly in error in refusing to render a decree certain for the arrearage in payment of alimony on the ground that no additional personal service had been obtained against John R. Jones.
On account of the error indicated the decree refusing to enter a decree in favor of appellant for arrearages against appellee is reversed and a decree is ordered entered here for arrearage in the sum of $900 which is the accumulated arrearage subsequent to August 21,1941, and to June 11, 1942. | [
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Smiti-i, J.
J. D. Harris, Herman Higgins, and Gerald Higgins, two of them yonng men, the other a hoy, were charged, in an information filed by the prosecuting attorney, with stealing nine hogs, the property of one Rush Clark,' in Clark county, Arkansas. At the trial from which is this appeal, the court dismissed the prosecution against the boy, on account of his youth. The other two defendants were convicted, and given a sentence of one year each in the penitentiary, from which judgment is this appeal.
It is admitted that the defendants took possession of the hogs, and confined all of them, except one, in a pen. There is some question whether the hogs were taken in Clark or in Pike county, but the verdict of the jury is conclusive of that question, as the jury was told to acquit the defendants unless it were found that the taking occurred in Clark county, an instruction more favorable than defendants were entitled to have given.
The hogs ran at large in an area on both sides of the river which, in that locality, formed the boundary between Pike and Clark counties. The owner of the hogs lived in Clark county, the defendants in Pike county.
Pike county has a stock law which authorizes any one to take up hogs running at large in that county, and to detain them until the charge fixed by law has been paid for their detention. The defendants were arrested when the hogs were found in their possession, and each of them signed a statement, all of which statements were offered in evidence. The taking up of the hogs was admitted in all these statements, but it was recited that the parties intended to notify Clark that they had his hogs, but that they were arrested beforp they had given this notice.
The defendants offered testimony, which the court refused to admit, to the effect that there was a general impression that Clark county had a stock law similar to that of Pike county, which authorized any one to take up and confine hogs running at large in Clark county. But there does not appear to have been any such law in force in Clark county.
This testimony was properly excluded, for the reason, if for no other, that the defendants did not testify that they were laboring under any such misapprehension. Their written statements having been admitted in evidence as in the nature of confessions, it was, of course, proper for the jury to consider the statements in their entirety, that is, not only their admissions as to what they had done, but also their explanation as to why they had done it. None of them claimed in these statements that they were under any misapprehension as to Clark county having a stock law similar to that in force in Pike county, which permitted any one to take up and confine hogs running at large. Defendants did not testify at the trial, and the only explanation offered by them as to their own intentions was that contained in their signed statements. Defendant Harris said, in his statement, that he wrote Clark a letter the day after he took these hogs up; but Clark was not asked anything about this letter.
Upon the question of the intention of the defendants in taking up the hogs the court gave, at their request, an instruction reading as follows: “8.' You are instructed that even though you find from the- evidence that all or part of the hogs alleged to have been stolen were taken possession of by the defendants in Clark county and where there is no law against hogs running at large, still if you find that they had no intention to steal said hogs at the time they took them into their possession, but intended to put them up and make the owner pay for taking up said hogs-, then the defendants would not be guilty and you should acquit them.”
Three other instructions of similar purport were given at the request of the defendants, and they were not entitled to have the law more favorably declared. Inasmuch as the defendants, who lived in Pike county, had gone into Clark, the adjoining county, and had there assembled the hogs, and had driven them from Clark county into Pike county, we are unable to say that the jury was not warranted in finding that this was done for the purpose of stealing the hogs.
The intent to steal is the essence of the crime of larceny; but the existence of this intent was submitted to and has been concluded by the verdict of the jury.
Judgments affirmed. | [
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■Smith, J.
This is an appeal from the judgment of the Clark circuit court affirming an award of compensation to appellee to compensate an injury sustained by Mm wMle employed in a quicksilver mine operated by appellant. The injury was occasioned by a fall of sixty feet of a bucket in wbicb appellee was being lowered into the mine. His leg was crushed, and an operation was required, the amputation being at a point about six or eight inches below the knee joint.
On September 18, 1941, the following award was made:
“Award
“Respondent will provide claimant with necessary medical attention to affect the healing of his injury and during such period of healing will pay claimant compensation at the rate of $13.36 per week. Claimant is ordered to co-operate in every respect with the respondent and its physicians in an effort to effect a healing of this injury.
“A fee in the amount of $50 is approved for claimant’s attorney.
“Respondent will pay the costs. It is so ordered.”
This award was made upon the following “Conclusions of Law” made by the Commission:
“Conclusions of Law
“In view of the medical evidence, we are of the opinion that the healing period has not ended and for that reason we do not consider it proper to enter a finding as to the permanent partial disability to the remaining portion of the right leg until the stump has healed. Indeed, it may be necessary to amputate additional portions of the leg, causing the case to fall within a different specific injury classification. This Commission will not enter an award for a specific injury until the healing period has terminated.
“We conclude that it is to the parties’ best interests in this matter to order additional treatment so as to effect the earliest possible termination of the healing period and to hold in abeyance, pending the termination of the healing period, any opinion as to a specific injury.
‘ ‘ There is no evidence before this Commission to support claimant’s contention that he sustained a permanent injury to his back and nervous system. We conclude, therefore, that any injury he might have suffered to his back and nervous system was of a temporary nature and is no longer present.
“The testimony is to the effect that claimant was working under a contract of hire for 35 cents per hour, 40 hours per week, and 52 1-2 cents per hour, 12 1-2 hours per week at the time of the injury.. Accordingly, we conclude that claimant’s weekly wage for the purpose of determining compensation is $20.56.”
It is first insisted that an appeal was not perfected from this award within the time and in the manner provided and required by law, and that the right of appeal was not restored subsequently by the award made by the Commission on December 16, 1941.
This insistence is sufficiently answered by saying that the first award was temporary and provisional, and was not final nor intended to be so. The award which was final was made in December, 1941, and the appeal to the circuit court was prosecuted within the time and in the manner provided for and required by law, and the right of appeal from the final award was not lost by the failure to appeal from the temporary and provisional award.
The final award of the Commission from which is this appeal required respondent, the employer, to pay appellee, the injured servant, compensation at the rate of $13.36 per week for 157 1-2 weeks, beginning December 16, 1941. This award was made upon the following “Findings of Fact” and “Conclusions of Law”:
“Findings of Fact
“1.
‘ ‘ That the parties to this cause are employee and employer, respectively, within the meaning of the Arkansas Workmen’s Compensation Law.
“2.
‘ ‘ That claimant sustained an accidental injury arising out of and in the course of employment on February 2,1941, which resulted in permanent loss of use of 90 per centum of his right leg.
“Upon the above findings of fact, the Commission bases the following
“Conclusions of Law
“The medical evidence is to the effect that claimant’s right leg was amputated at a point about 6 or 8 inches below the knee joint; that the stump has healed; that there is the usual amount of atrophy of the muscles below the knee joint and in the thigh of the leg; that the patella is severed and the upper and lower segments thereof are separated by 3 or 4 inches; that the condition of the patella interferes with the use of the artificial limb furnished claimant by the employer; and, that claimant’s loss of use of the leg is from 85 to 90 per centum. Section 13 (c) (21) of the Workmen’s Compensation Act provides that compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member, and inasmuch as the claimant lias suffered a disabling injury to the knee as well as the loss of the lower leg, which was amputated between the knee and the ankle, we are of the opinion this provision of the Act is applicable for the purpose of evaluating the claim. On the basis of the medical evidence before the Commission as to the condition of the remaining portion of claimant’s leg and our personal observation of claimant, we think that he has suffered a loss of 90 per centum of the use of the right leg, and so hold.
“Section 13 (c) (2) fixes the value of the loss of a leg at 175 weeks’ compensation, 90 per centum of which is 157 1-2 weeks’ compensation.”
Reversal of the judgment of the Circuit Court affirming the award by the Commission is asked upon the following grounds:
‘1 First: That there was no evidence to sustain the Commission in holding that according to the proof the appellee was entitled to $13.36 per week.
“Second: That there was no evidence or law to sustain the Commission in holding that the appellee was entitled to pay 157 1-2 weeks after the healing period.
“Third: That the appellee is in error in its contention that there was a final award made on the 18th day of September, 1941.”
What has just been said disposes of appellant’s third contention, which we decide in its favor. The decision of the other propositions involves questions of fact.
This, case, like the recent case of Mach Coal Co. v. Hill, ante, p. 407, 162 S. W. 2d 906, arose out of an injury to an employee who was employed in a mine, the injury in each case being sustained in the course of that employment. The case construed our Workmen’s Compensation Law (Act 319 of the Acts of 1939, p. 777,) as related to miners engaged in that employment; and we find it unnecessary to review the law of that subject as there stated.
Appellee was injured February 2, 1941, and had at that time been employed by appellant company for a period of six months. His normal pay was 35 cents per hour for a 40-hour week, and under his contract he was paid time-and-a-half for any labor in excess of those hours. As appears to be quite common in this service, the employment was somewhat intermittent; but this Mach case, supra, announced the rule to be followed notwithstanding that fact, and we are unable to say that the rule there announced was not applied by the Commission and by the Circuit Court on appeal in the instant case. In, any event, there is substantial testimony to support the award and the judgment of the Circuit Court.
We have less uncertainty as to the second assignment of error. As appears from the conclusions of law announced by the Commission upon which the first award was made, recited above, the Commission was in doubt whether “it may be necessary to amputate additional portions of the leg, causing the case to fall within a different specific injury classification.” The amputation was below the knee, but appellee requests a second amputation above the knee, this for the reason that his “knee cap has been busted up,” and he can bear no weight on the knee cap, which was split in two.
The medical examiner for the Commission reported: “Present Condition — The knee joint is not straight, the artificial leg sticks backward, cannot stand weight on leg, end of stump not healed, cannot walk without crutches. Fracture of patella makes it very painful when he tries to walk on the artificial leg. He complains of backache and that he is in a very nervous condition since this accident.”
The Commission made no award and allowed no compensation for appellee’s nervous condition.
An X-ray expert made the following report: “The distal end of the femur and the upper ends of the bones of the leg are included. There has been an amputation of the leg in the upper third of the leg. There also has been a fracture across the middle of the patella and the fragments are separated for one and three-fourths inches. There is, of course, nonunion of this injury. There is considerable demineralization of the bones of the knee and leg as a result of the injury and of the disuse. ’ ’
This report, as we understand it, means, in the vernacular, that appellee has practically lost the use of this leg, and the surgeon who performed the operation and a doctor who has attended appellee since the amputation placed the loss at from 85 to 90 per cent of the use of the leg. The Commission fixed the loss at 90 per cent and computed the compensation on that basis. This computation of '90 per cent of the 175 weeks for which the statute provides compensation is 157 1-2 weeks, and compensation was ordered paid for that time. We are unable to say that this finding is unsupported by substantial testimony, and upon a consideration of the whole case, it appears that the judgment should he affirmed, and it is so ordered. | [
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Griffin Smith, C. J.
The appeal is from a decree directing W. B. Sanders to comply with his written contract of April 21, 1942, to purchase ninety-one feet of land fronting west on Pulaski street in Little Rock. Sanders says he is anxious to consummate the transaction, but that Mrs. L. S. Omohundro, who agreed to supply an abstract showing a marketable title, has defaulted in that Gladys Shader, who inherited the property from her father, and in whom title is conceded to haye been good, was insane in 1939 when Mrs. Omohundro purchased from a so-called guardian.
Invalidity of the sale to Mrs. Omohnndro is based upon tbe following grounds: (a) Action of Pulaski probate court in appointing a guardian was void, and (b) tbe proceedings may be collaterally attacked, (c) Tbe guardian’s attempt to sell was ineffectual because a commissioner appointed by tbe court, as distinguished from the guardian, made the sale, and (d) the lots were exchanged for other property; also, (e) the court’s' direction to sell and its order of confirmation were within the same term, (f) Confirmation was not complete. (g) An order, nunc pro tunc, whereby it was sought to cure a defective commitment of 1914, was void.
In January, 1914, David E. Clark, who termed himself “attending physician” at St. Joseph’s Eetreat, Dearborn, Mich., addressed a letter “To whom it may concern, ’ ’ certifying that Gladys Shader was mentally ill. It was the writer’s opinion the patient was incapable of caring for her person or property. Appointment of a guardian, he said, was “necessary and essential.”
February tenth of the year in which the Clark letter was written, Mrs. Eleanor F. Shader (Gladys’ mother) petitioned Pulaski probate court for appointment as guardian, in consequence of which such designation was made in an order dated four days subsequent to the petition. Bond was executed.
May 10, 1935, complying with prayers of a petition for “clarification of the record” and an order, nunc pro tunc, the probate court entered its judgment finding that Gladys was then confined in St. Joseph’s Eetreat; that the institution was an asylum for the insane within the meaning of Act 77 of 1905, and that the patient’s mental status was such that appointment of a guardian was imperative. Gladys was found to be a resident of Pulaski county.
Essential difference between the judgment of 1914 and that of 1933 was that the prior judgment did not show on its facj/what is conceded to be a fact — that Gladys was a citizen of Pulaski county in 1914 and in 1935; also, the order of 1914 did not disclose the nature of the Dearborn institution.
Argument is that there was want of due process when in 1914 a judgment appointing a guardian was rendered without requiring that Gladys be brought into court. The same vice, it is said, appears in the order of 1935. Attention is directed to § 7546 of Pope’s Digest, where it is provided that if anyone shall give information in writing to the probate court that a person in the county is of unsound mind, and shall pray that an inquiry be had- the court, if satisfied there is good cause for the exercise of its jurisdiction, shall cause the person so charged to be brought before it, “and inquire into the facts by a jury, if the facts be doubtful.”
Section 7553 of the Digest directs that if it be found by the jury that the person “so brought before, the court” is of unsound mind, or incapable of managing his own affairs, a guardian shall be appointed.
Appellee, however, relies upon § 7554 of the Digest, which is § 1 of Act 77 of 1905, p. 198. The provision is that in respect of a person of unsound mind who is confined in an asylum for the insane within the state, “or in any institution or asylum for the insane outside of the state,” the probate court of the county of which such -insane person is a citizen shall have power to appoint a guardian “. . . without requiring the presence of such person before the court.”
Appellant’s contention is that § 7554 is constitutional only in those cases where commitment has been by appropriate proceedings after due notice, and after the subject whose rights are being dealt with has been brought before the court.
In construing § 7546 of Pope’s Digest (§ 5829 of Crawford & Moses’ Digest), it has often been held that presence of the person alleged to be insane is a prerequisite to the jurisdiction, and an order appointing a guardian must affirmatively show such fact. Monks v. Duffle, 163 Ark. 118, 259 S. W. 735.
Appellant cites Hyde v. McNeely, 193 Ark. 1139, 104 S. W. 2d 1068, where it was adjudged that the probate court of Desha county did not have jurisdiction to inquire into the sanity of a person who was not before the court. The decision, however, was in a case where the person alleged to be insane had not been committed to an institution, and § 5829 of Crawford & Moses’ Digest was applicable, as in the Monlcs-Duffle case.
In Payne v. Arkebauer, 190 Ark. 614, 80 S. W. 2d 76, the holding was that an order adjudicating a person- to be insane, such person not being before the court, was not void on its face for want of due process, even though made without notice. The reason was that the adjudication could be appealed from.
■Chief Justice McCulloch, speaking for the court in Sharum v. Meriwether, 156 Ark. 331, 246 S. W. 501, said that refusal of the probate court to inquire into the facts of insanity by a jury, if the facts be doubtful, and a finding without such inquiry, did not render the judgment void, although it was an abuse of discretion appearing on the face of the record, and such an abuse as would have invalidated the proceeding on appeal. “Jurisdiction,” says the opinion, “is acquired by the filing of information with the court and the compulsory attendance of the accused before the court, and the proceedings which follow constitute the exercise of the jurisdiction thus acquired. The ordering of a jury is done in the exercise of that jurisdiction, and it does not defeat the jurisdiction of the court because there is an erroneous exercise of it in the proceeding. The error must, as before stated, be corrected by appeal. ’ ’
The second headnote to Payne v. Arkebauer as shown by the Arkansas Reports, assumes the decision held that a person charged with insanity must be present when a guardian is appointed, “but need not be present in a proceeding for commitment to State Hospital for Nervous Diseases.” In the opinion attention is called to § 5829' of 'Crawford & Moses’ Digest, taken from the Revised Statutes, and to Act 19, approved Feb. 17, 1883, the latter providing for admission of insane, persons to asylum. It was then said that each statute is complete in itself, “. . . and the Acts are for wholly different purposes.” But in another paragraph there is this language: “As we have already stated, there are two separate statutes dealing with insane persons. One is the statute to which attention has been called in the Revised Statutes. In the proceedings under this statute it is necessary to have the party present in court, but this is á proceeding for the appointment of a guardian.”
There is no reference to § 5837 of Crawford & Moses’ Digest, (now Pope’s § 7554) and since the question of appointing a guardian was not involved in the Payne-Arkebauer case, the comment could only relate to rights contended for or limitations invoked under § 5829 of Crawford & Moses’ Digest.”
In determining whether the judgment naming Mrs. Shader guardian was void, Scott v. Stephenson, 168 Ark. 763, 271 S. W. 714, is very much in point. After a decree had been rendered by the Drew chancery court finding that the appellant had failed to deliver to Guy Stephenson property valued at more than $14,000, the losing-party moved to vacate because, as it was urged, the probate court was without jurisdiction to appoint Stephenson guardian. While the motion was pending the probate court made an adjudication to the affect that Ruth Harris was a person of unsound mind, and that she was then confined in a sanitorium in Ohio. Stephenson was reappointed guardian.
The appellant relied on Monks v. Duffle, supra, the holding there being, as we have heretofore shown, that the probate court is without jurisdiction to pass upon the sanity of an accused unless the party whose rights are involved is before tbe court. While declining to pass upon the validity of Stephenson’s appointment as guardian and the finding of insanity (this because the decree was upheld upon other grounds), there was this statement:
“Of course, the right to enforce the decree in the name of the guardian is affected by the question of the validity of his appointment, but the question of the enforcement of the decree is not involved in this appeal, and, besides that, it has become entirely moot, for the reason that, since the question was raised by a motion to vacate the decree below, there has been a valid adjudication of the insanity of Ruth Harris and another appointment as guardian. ’ ’ After quoting § 5837 of 'Crawford & Moses’ Digest, (Pope’s § 7554), the opinion continues:
“When the last order was made reappointing the guardian for Ruth Harris, she was, according to the undisputed proof, in an asylum or sanatorium for the care and treatment of insane persons outside of the state, and the presentation of a petition to the court conferred jurisdiction to hear and determine the question of insanity. ’ ’
While the opinion mentions that Ruth Harris was not confined in the insane asylum of this state, the statute expressly provides for proceedings where confinement is in the state asylum, . . .“or in any institution or asylum for the insane outside of the state.” The reasonable construction to be placed upon Scott v. Stephenson is that when a petition is filed, the probate court acquires jurisdiction to appoint a guardian. Insanity is presumed from the fact of confinement in an asylum. The proceeding is not according to the common law. Due process is not lacking.
The order “now for then” found that Gladys Shader, on May 10,1935, was a citizen of Pulaski county confined in a Michigan asylum for the insane. There was also appointment of a guardian. Whether the judgment was valid as a finding, nunc pro tunc, (and we think it was) is not controlling. The same guardian was appointed, and the former appointment was confirmed. If in fact the matters recited in the order were determined by the court in 1914, but through clerical misprision omitted from the recorded judgment, the prior adjudication was valid. There is nothing to dispute the finding except absence from the record of an affirmative recital. Action was similar to that pursued in the Scott-Steplienson case after motion to vacate the chancery decree had been made, but before it was passed upon. . . .
That a commissioner appointed by the court made the sale is immaterial. The order of confirmation shows that Mrs. Omohundro was purchaser “. . . for $5,000 par bonds of Lafayette Hotel Company and $400 in cash.” Immediate payment was made. Proceeds were delivered to the guardian, who was directed to execute a deed, and this was done. The guardian does not complain that she was not permitted to make the sale. In truth, the arrangement seems to have been one of convenience, for the benefit of Mrs. .Shader as guardian, who no doubt was not experienced in conducting public sales.
The transaction was not an exchange of property. Whether securities of the hotel company were of sufficient value to justify their acceptance was for the court to determine. The guardian did not complain; hence, a presumption arises that the sale Avas satisfactory. A statement in the order of confirmation that the bonds and $400 in cash “given in exchange were worth as much as the land” did not convert the sale into an exchange except to the extent that money and bonds having a determined value were exchanged for the title. In short, it was a form of payment approved by the court, accepted by the guardian, and presumptively the equivalent of money. Robertson v. Cooper, 154 Ark. 5, 241 S. W. 50, has no application.
While confirmation did not follow the statute in the strictest sense, this is a collateral attack, and mere irregularities or errors in procedure cannot be reached.
The decree is affirmed.
A recital is: “And it being further shown that [the finding presently made] was the judgment of the court made February 10, 1914, but by clerical misprision or oversight not so entered, it is entered now for then and with the same force and effect as if it had been entered in this form at the time.”
See Act 108, approved February 17,1937.
The cause reached the Supreme Court'on appeal from a judgment of the Lawrence circuit court where there was refusal to issue a writ of certiorari to bring up for review a judgment of the probate court declaring the appellant to be a person of unsound mind and appointing a guardian of his person and for his estate.
There was this additional statement: “If there was any fraud practiced upon the court or upon the insane person by causing her to be removed from the state, so that the court could acquire jurisdiction, that could be shown in a direct attack to set aside the judgment of the probate court or by an appeal in apt time from the order.” | [
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Lyle Brown, Justice.
Mrs. Grace Goza brought this action in ejectment to obtain possession of a small strip of boundary land and against the contiguous landowners, P. 0. Loftin and wife. The Loftins defended on a claim of title by adverse possession. The Loftins appeal from the finding of the chancellor that adverse possession was not established.
Appellee Goza is the record owner of the involved forty acres, less some two acres in the southwest corner which is owned by appellants, the Loftins. The dispute as to the location of the common boundaries seems to stem from an erroneous call in the Loftins’ deed. Because of that error P. O. Loftin ordered a survey which -utilized a description from a “county map.” ("We presume that map to be an ownership map prepared by some surveyor and utilized for reference by courthouse officials, abstractors, and attorneys.) The north boundary line, as determined by that survey, was not satisfactory to Loftin, so he moved that line farther north. There he established a new fence on what he alleges to have been an old fence line existing since 1948.
Mrs. Goza subsequently employed the county surveyor to fix the Loftin line, using the description in the Loftin deed. Surveyor Methvin described the erroneous call on the north boundary line as an error that is commonly found in old deeds. However, he testified those mistakes are corrected by harmonizing the entire metes and bounds description. The Methvin survey reduced the Loftin acreage on the east and north sides as fixed by the “county map” description.
As a result of the confusion in record title, Loftin built a new fence on the east and north sides. On the east he followed the county map line which he claimed corresponded to an old fence line, a continuation of the same 1948 fence which he said existed on the north side. Mrs. Goza claimed the new fence encroached on her record title and denied the existence of an old fence on the two boundaries.
The confusion created by the Loftin description is helpful only to an understanding of the background of the litigation. The trial court accepted the Methvin survey as the true boundary line. The Loftins claim by adverse possession the lands lying north and east of the Methvin survey and up to the new fence. The single issue on appeal is whether the Loftins sustained their claim of adverse possession.
It would serve no useful purpose to detail the testimony of the twelve witnesses, who were* equally divided between the parties. The testimony for the Loftins was directed toward their assertion that at the time of their purchase they were shown a boundary fence on the north and east sides; that the fence has been in existence since 1948;' and that they had always treated the old fence as the line. The same number of witnesses testified for Mrs. Goza. Their testimony tended to support the positive testimony of Mr. Goza. He was born and reared on these lands. His mother deeded him the tract north and east of the Loftins in 1951 and he deeded it to his wife in 1961. Goza no longer lives on the property; he does live nearby and is on the land frequently. It was his testimony that the old fence to which Loftin and his witnesses testified was never in existence.
For reversal, appellants here urge that “the evidence is crystal clear” that the old fence existed continuously since 1948. Numerically, the greater number of witnesses gave positive testimony of the existence of an old fence. But the greater weight of the evidence is not determined by the number of witnesses testifying to a controverted fact. That is merely an element to be considered. Just as important is the credibility of the witnesses. In that respect the chancellor is in much better position to evaluate credibility than the appellate court. It is apparent tliat the litigants had a “falling out” over this dispute. In that situation the vantage point of the chancellor is all the more important. See Siebert v. Benson, 243 Ark. 843, 422 S. W. 2d 683 (1968). Evidently the trial court was unusually conscious of credibility because in his findings he commented on the demeanor and credibility of the witnesses.
Appellants stress the fact that the majority of their witnesses gave positive testimony as to the existence of the old fence. They compare that evidence with the negative testimony of a majority of appellee’s witnesses, “negative” in the sense that the latter witnesses could not remember having seen an old fence on the east line. Those witnesses showed years of familiarity with the property, including the existence of “patch” and “cross” fences. One answer to appellants’ argument that we should accept the positive over the negative is that ofttimes positive testimony is over-positive, so much, so that its credibility is affected. The recollection of dates and unimportant experiences in years past is a common example. The opportunity to evaluate positive testimony is mainly at the trial level. There the trial judge sizes up the witness, utilizing the numerous factors that are available only to one who hears and observes that witness.
Some of the testimony of appellants’ positive witnesses was not so favorable to their claim of adverse possession. For example, P. 0. Loftin gave testimony inconsistent with the required intent to claim beyond the true boundary. When the controversy arose over the building of the new fence, Loftin testified he told Goza he (Loftin) wanted no part of the Goza property — only those lands which he had bought. In that conversation, which was prior to any survey, Loftin said he offered to abide by the conclusions of any surveyor of Goza’s choice. He concluded that line of testimony with this statement: ‘ ‘ Since Mr. Goza has sued me and caused me to come to court, I will claim everything under fence.” The recited testimony could well have raised in the mind of the trial court a serious question as to just when Loftin formed an intent to claim beyond his true record boundary.
It is axiomatic that one claiming title by adverse possession as against a record title has the burden of establishing it by a greater weight of the evidence. In view of that burden, we are unable to say the chancellor’s findings were against the greater weight of the evidence.
Affirmed.
Byrd, J., dissents. | [
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John A. Fogleman, Justice.
This appeal is from a decree of the Independence Chancery Court holding appellant in contempt of court and modifying an original custody award. For reversal, appellant contends that the trial court was without jurisdiction to hear the citation for contempt; that the notice of the contempt hearing was improper and invalid; and that the custody change is invalid due to lack of prior notice.
As to the facts necessary to decide this case, the record reflects that the parties were divorced in 1959. The divorce decree awarded custody of the children to their paternal grandparents. In 1966, appellant petitioned the court for temporary custody of the children and the court granted the relief, allowing appellant custody for a two-week period. Appellant immediately fled the country and proceeded to Puerto Eico. The former husband, who is an appellee in the custody proceeding, went to Puerto Eico with his father (who had been awarded custody of the children in the 1959 decree) to regain custody, and, having been enjoined from taking the children ont of Puerto Eico, he returned to this country and instituted criminal proceedings against appellant. Upon her return to the United States to answer the charges, appellant was arrested for contempt. Habeas corpus proceedings were commenced in this court, and a continuance was granted to have the records brought up. During the continuance, appellees filed a petition for citation for contempt in the trial court, and had the clerk mail notice of a hearing thereon to appellant. Upon failure of appellant to appear, the trial court held her in contempt for violation of the court’s temporary order and modified the 1959 decree so as to award the former husband custody of the children.
Appellant’s first contention is that the trial court lacked jurisdiction to hear the citation for contempt. She cites the proceeding in Puerto Eico and the habeas corpus hearing in this court, both of which were pending at the time of the trial court’s action, as grounds for her contention.
The nature of the proceeding in the Puerto Eican courts is not clear from the record, but assuming ar-guendo that at the time of the trial court’s disposition of this case there was pending a custody proceeding, such fact could have no effect on the jurisdiction of the trial court to punish, as for contempt, one who knowingly violated its order. This court has previously held that the mere pendency of a suit in another state did not preclude a suit in this state for the same cause. Moore & Company v. Emerick, 38 Ark. 203. With concern to the effect on the forum court of sister state judgments, Dr. Eobert A. Leñar, in his work on the Conflict of Laws, § 70, p. 132, states: “The mere pend-ency of an action in one state has no effect upon the right to bring an action in another. Whichever suit is first carried to judgment then bars the other, but it is only the rendition of judgment which has that effect.” As the case at bar involves only a pending suit in a foreign, rather than a sister state, court, it is obvious that the court below was in no way deprived of its jurisdiction to hold one in contempt for failure to comply with its valid custody order. See Lyerla v. Lyerla, 195 Kan. 259, 403 P. 2d 989. There is no contention that the Independence Chancery Court lacked jurisdiction to enter the 1966 temporary custody order, which required that appellant return the children to the grandparents at the end of two weeks. By her failure to return the children, appellant subjected herself to punishment for contempt. Meeks v. State, 80 Ark. 579, 98 S. W. 378; State v. Dowdy, 86 Ark. 140, 109 S. W. 1175.
The pendency of the habeas corpus proceeding in this court likewise could have no effect on the jurisdiction of the trial court to hear the citation for contempt. It is true that once an appeal is taken to, and docketed in, this court, the trial court is deprived of jurisdiction to further act in the matter. Andrews v. Lauener, 229 Ark. 894, 318 S. W. 2d 805. This is not to say, however, that the institution of a separate and distinct contempt hearing is precluded by the mere pendency of habeas corpus proceedings in this court. Proceedings in this court which are original in form, though appellate in nature, do not have the effect of stopping proceedings in the lower court, in the absence of action by this court so requiring. Henry v. Steele, 28 Ark. 455.
Appellant next avers that she was not given valid notice of the contempt hearing. We feel there is merit in this contention, and the portion of the decree holding appellant in contempt must be quashed for this reason. In Ex Parte Coulter, 160 Ark. 550, 255 S. W. 15, we held that it was the province of the court, and not that of an attorney, to cite one to appear and answer a charge of contempt. In the case at bar, the appellant received a “Notice of Citation,” but it was issued by the clerk of the trial court at the behest of appellees’ attorney, and, from all that appears of record, without ever having been brought to the attention of the trial court whose exclusive duty it was to determine whether a prima facie showing of contempt had been made.
With regard to the modification of the 1959 custody award, appellant contends that she was not adequately notified that the custody issue would be heard by the court. With this we also agree. Appellees’ attorney filed his “Petition for Citation” on May 2, 1967, and by mail requested the Chancery Court Clerk to forward a copy of the notice of citation, together with a copy of the petition, to appellant and her attorneys. Although this was done, it cannot be said that appellant was sufficiently apprised of the nature of the hearing, as neither the petition nor the notice mentions the custody issue. While the Independence Chancery Court retained jurisdiction of the custody issue (Myers v. Myers, 207 Ark. 169, 179 S. W. 2d 865), before it could lawfully take any further action thereon, it was necessary that the interested parties be properly notified. The mode of notice, not being specified by statute, must be “reasonably calculated” to afford the opposite party an opportunity to be heard. Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954. “Once a defendant is effectively brought into court, however, by whatever method, he is subject to all the processes of the court which may legitimately be applied in that case. This includes * * * new orders or modifications in alimony and custody awards * * * provided only that the new step in the proceeding be brought within the limits allowed by law for it * * * Further, he is entitled to reasonable notice of the reopened proceedings. This does not require new service, but only some formal notice having a reasonable tendency to give actual notification.” Leñar, The Law of Conflicts of Laws, § 32, pp. 52-53. Even if the notice was actually received by appellant, it was not reasonably calculated to make ap pellant aware of the custody issue. For this reason, the custody modification will be reversed.
The decree is reversed.
Ward, J., not participating.
It is not clear from, the record whether appellee commenced the criminal proceedings 'before or after his having been enjoined from removing the children from Puerto Rico, but, for purposes of this decision, this fact is immaterial.
Counsel for both parties apparently concede that some type of proceeding was pending in the Puerto Rican courts. | [
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Lyle Brown, Justice.
This appeal concerns custody rights to the parties’ four children. Appellant Marjorie Ann Stone was unsuccessful in her petition to have the custody reinvested in her and she appeals.
Marjorie obtained a divorce and custody of the children in 1963. Apparently because of the tender ages of the children, Dana Stone, father and appellee here, made no contest. One year later Marjorie remarried, on which occasion she delivered the children to Dana. The father petitioned the court for official custody and, with Marjorie in agreement, that petition was granted early in 1964. In 1965 Marjorie petitioned for custody, alleging changed conditions. From the denial of that petition there was no appeal. In 1966 Marjorie filed another petition for custody. At the hearing in June 1966 she offered proof to support five contentions:
(1) She had regained her health; (2) she had a nice three-bedroom home; (3) the income of her second husband had increased to $800 a month; (4) Dana mistreated the children physically; and ,(;5) Dana’s personal relations with a baby sitter were immoral.
An extended hearing was conducted. The chancellor decreed that custody remain with the father. From that order there was no appeal.
Comes yet another petition by the mother for change in custody. Her proof at this 1967 hearing cpv-ered precisely the five points we have enumerated with respect to the June 1966 hearing. Testimony on one additional matter was interjected and that pertained to her detention of the children beyond the permissible visitation period in 1966. She contended that her holding the children over was because of an agreement with the father. Based on the history of the bitterly contested proceedings, the court found that no such agreement existed. Again the court found no change in conditions. That ruling is the basis of this appeal.
The order of June 1966, wherein the mother’s request for custody was denied, was a final, appealable order. Marjorie elected not to appeal so the facts there litigated were put to rest. Before she could prevail on her 1967 petition it was incumbent on her to produce evidence of changed conditions brought about subsequent to the 1966 decree. Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47 (1921); Wilkins v. Davis, 244 Ark. 304, 424 S. W. 2d 530 (1968). To the recited general rule- there are some exceptions but it is not argued that any such exception is here applicable.
Initially the trial court sustained an objection to testimony relating to incidents occurring prior to the 1966 hearing. However, at appellant’s request, she was permitted to proffer such testimony for the record. Averring to Swindle v. Swindle 242 Ark. 790, 415 S. W. 2d 564 (1967), appellant asserted that “child custody was a fluid thing” and that any matters, irrespective of time element,^which concerned the welfare of a child would be here considered if reproduced for us in question and answer form. What we did hold in Swindle was to the effect that if testimony appropriate for our consideration is proffered, it should be by examination of the proffered witness, rather than by a summary statement of what the testimony of the witness would be if present and testifying. Since appellant’s proffered testimony at the 1967 hearing was actually in support of contentions litigated in the 1966 hearing, we do not consider the evidence.. Our holding on this point was also approved in Swindle.
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Smith, J.
Appellee Johnston brought this suit to recover on two accident insurance policies issued to him by appellant insurance company. Each policy insured him against loss resulting from bodily injury effected directly and independently of any other cause through external, violent and accidéntal means, subject to the provisions and limitations in the policies. One of these provisions was that the policies did not cover accident, injury, disability, or death caused, directly or indirectly, wholly or partly, by bodily or mental infirmity or any other kind of disease. On February 11, 1941, about 7 :30 p. m., appellee was seriously injured when he fell out of a j;axicab in Memphis. It is admitted that his left hip was broken by the fall, and that he has since been totally and continuously disabled.
About two weeks before his injury appellee began to suffer’pain in his left hip while bearing weight thereon, and upon advice of his physician he commenced to use crutches. His right leg was not affected. Appellee’s physician advised him to go to the Campbell Clinic in Memphis for examination and treatment, and on February 10th he acted upon this advice. He left Fort Smith, accompanied by his wife, in his car about 2:30. p. m. Mrs. Johnston drove from Fort Smith to Paris, when appellee took the wheel and drove the remaining distance, about 260 miles, to Memphis, where they arrived about 10:30 p. m. On the next day, after spending the night at a hotel, appellee drove out to the clinic, where he was examined and X-rayed, and about noon was advised that he had Paget’s disease, which the doctors testifying- in the case defined as a chronic degenerative condition of the bones, in which there is an overgrowth of part of the bones and degenerative changes in other parts of the bones, the exact cause of which is not known. The medical testimony was to the further effect that the disease varies with the individual cases, but that persons afflicted with it ordinarily live their usual expectancy, and that the disease does not ordinarily cause the afflicted person to fall.
After this first examination appellee was told to return to the clinic the following day for further examination and treatment. The afternoon was spent in shopping, and appellee was fitted for a suit of clothes, and that night he and his wife started to a show. They went to the theater in a taxicab, and it was upon leaving the cab that appellee sustained his injury, which he testified occurred in the following manner: He and his wife were on the back seat of the cab, he being on the right side. The cab stopped about 1% or 2 feet from the curb; the driver opened the rear door, and appellee got up from his seat and put his crutches on the pavement to alight, and he then tripped or stumbled in some manner, falling head first out of the cab, down on the pavement between the curb and the oab. He was in the act of getting out of the cab when the accident occurred; the driver opened the door and he fell out of the cab on the pavement, falling forward out of the cab through the open door. He thought that when the cab stopped he probably put his weight on the right foot and a little on his left and stood up inside the cab, putting the crutches down on the pavement between the cab and the curb, and he then pitched or fell forward from the cab, striking his head in falling against an advertising sign on the edge of the curb. He thought he probably hooked his heel on the edge of the cab and tripped or stumbled, causing him to fall head first out of the cab.
With the assistance of his wife, appellee walked into the lobby of the theater, where he fainted. After regaining consciousness he was taken to the clinic, where his left hip was again X-rayed and found to have been broken. The X-ray pictures demonstrate that appellee’s injury resulted from the fall; the pictures taken before the fall did not show a fracture; those taken after the fall did disclose a fracture.
In' contradiction of this version of the manner in which appellee was injured, given by him at'the trial from which is this appeal, there was offered in evidence a statement signed by appellee, and also the complaint filed in his behalf against the taxicab company. This statement contradicts materially the testimony given by appellee at the trial; but the complaint does not. The complaint was predicated upon the proposition that the chauffeur driving the cab failed to give appellee the assistance in alighting from the cab which he should have done, and that the chauffeur was negligent in the manner in which he had parked the cab. These conflicts, such as they are, presented a question for the jury. Evidently, the jury attached but little weight to the statement, in view of its inaccuracy and the circumstances under which it was obtained.
An operation was performed during the morning of the 13th, at which time a Smith-Peterson nail was introduced across tlie fracture of the neck of the femur to hold it in position. Both of appellee’s legs were placed in casts, extending from the middle of his body down to and over his feet, and weights were placed on his feet to maintain proper position. Opiates were constantly used to make the pain endurable, and for ten days appellee slept the major part of the time. He remained in the hospital until April 14th. There developed an extreme case of nausea, caused by the use of the opiates and the shock from the injury.
Appellant’s claim agent, who prepared the statement, called upon appellee on February 20th, which was just a week after the operation, and he remained there about an hour and a half, during which time he wrote the answers given by appellee to the questions asked, and from the notes thus made the statement was prepared which appellee signed the following day. Appellee’s wife was in the hospital room intermittently during this interview, and she told the claim agent her husband was in no condition to make a statement, and that appellee would fall asleep between questions asked him, when he would be aroused by another question.
We conclude, therefore, that the jury had the right to accept as true appellee’s version of the manner in which he sustained the injury, disregarding the statement which he had signed.
In this connection, it may be said that the testimony does not show that appellee had become disabled. He had no trouble with his right leg, and used crutches to avoid the pain caused by placing weight on his left leg. During the two weeks he used crutches before going to Memphis he continued to perform his usual and customary duties, going back and forth to his office and getting in and out of his car two or three times every day without assistance, and he drove his ear to and from the clinic on the day of his injury.
There was a verdict and judgment for the benefits provided for in the policies, with statutory penalties and attorney’s fees, from which is this appeal.
It is provided in each of the policies that “This insurance shall not cover accidents, injury, disability, death or other loss caused directly or indirectly, wholly or partly, by bodily or mental infirmity. . . .or by any other kind of disease.” And it is earnestly insisted that under this exemption from liability a verdict should have been directed in favor of the appellant insurance company, for the reason that appellee’s disease was a contributing-, if not the sole, cause of his injury.
Two physicians testifying- in appellant’s behalf expressed opinions supporting that contention; but their opinion is not conclusive of this issue, which was, at last, a question of fact to be determined by the jury. The basis of their opinion appears to have been that appellee had a diseased leg, and used crutches, which made him less agile. The surgeon at the clinic who performed the operation testified that it would not be anticipated that appellee would fall in getting out of the cab merely because he had Paget’s disease and was using- crutches, and that even though appellee did not have normal agility there was no reason why he would fall under ordinary circumstances, and that while a person using crutches moves slower he moves with greater care, and it was not to be expected that appellee would fall in getting out of the cab.
The court gave of its own motion all the instructions given in the case, and refused to give any other, to which action exceptions were duly saved. These instructions read as follows:
“1. If you find from a preponderance of the evidence that the plaintiff in alighting from the taxicab suffered a hip injury therefrom, then the question for you to determine is whether the injury was approximately caused through external violent and accidental means directly and independently of other causes, or that said injury was caused by the physical condition of the plaintiff at the time.
“2. . If you find from a preponderance of the evidence that he sustained a broken hip while attempting to alight from the taxicab, and you further find that said injury was the proximate cause of his disability, then you are instructed to find for the plaintiff, unless you find that he was afflicted with Paget’s disease, and that said disease wholly or in part directly or indirectly contributed or concurred in causing him to fall.
“3. The faót' that plaintiff had Paget’s disease might have been a necessary 'element' in' producing the fall, yet such disease alone does not deprive' the plaintiff of the right to recover if you further find' from a preponderance of the evidence that the proximate cause of the fall was an accident.
“4. If you find from the evidence in this case that the plaintiff’s physical condition at the time he was riding in the taxicab contributed or concurred either directly or indirectly, wholly or in part' to his fall, then in such event the plaintiff is not entitled to recover and you must find for the defendant. In other words, if the fall sustained by the plaintiff was not the direct and proximate cause of the injury, but that the same resulted in whole or in part from his physical infirmities, to-wit, Paget’s disease, then you are instructed that the plaintiff would not be entitled to recover.
“A. Proximate cause as is used in these instructions means the immediate, efficient cause without which the result could not and would not have happened.”
After giving these instructions the court gave orally the usual instructions on burden of proof-, etc., to which no objection was made.
In our opinion, these instructions declared the law as favorably to appellant’s defense as it had the right to ask.
Many oases from other jurisdictions, and all of our Own cases, on the subject, are cited in the briefs of opposing counsel. We find it unnecessary to go beyond our own eases, and we cite only one other'cáse, that of Clay County Cotton Co. v. Home Life Ins. Co. of New York, 113 Fed. 2d 856, for the reason that it cites our cases ■ bearing directly on the issue under consideration. These are: Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A., N. S., 493; Maloney V. Maryland Casualty Co., 113 Ark. 174, 167 S. W. 845; Pacific Mutual Life Ins. Co. v. Smith, 166 Ark. 403, 266 S. W. 279; Missouri State Life Ins. Co. v. Barron, 186 Ark. 46, 52 S. W. 2d 733; National Life & Accident Ins. Co. v. Shibley, 192 Ark. 53, 90 S. W. 2d 766; Prudential Ins. Co. v. Croley, 199 Ark. 630, 135 S. W. 2d 322.
Counsel for appellant cite cases which conflict with these, but we adhere to the rule which our own cases have declared. These all follow and approve the case of Fidelity & Casually Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A., N. S., 493. This Meyer case has been cited and approved by so many cases in our and other jurisdictions that counsel for appellee say it is now in accord with the weight of authority.
In the Clay county case, supra, the facts were that the insured was afflicted with a number of diseases, all of a serious nature, and the opinion quotes from one of the briefs the statement that the insured was a “frail physical shell, slowly dying upon his feet. ’ ’ The insured mounted and rode a horse, whose eavortings accentuated and precipitated the heart trouble from which the insured suffered, resulting in his death.. The opinion states that “The question presented is whether death resulted solely from bodily injury caused by external means of an accidental or violent nature.” The district court had directed a verdict in favor of the insurance company, which was reversed on appeal, it being said that “Under the liberal rule of the Arkansas decisions, the case should have been submitted to the jury. ’ ’
Our latest case on the subject is that of Prudential Insurance Co. v. Croley, 199 Ark. 630, 135 S. W. 2d 322, which reaffirms the holding in the Meyer case, supra, and repeats the quotation there appearing from the case of Freeman v. Mercantile Mutual Accident Ass’n, 156 Mass. 351, 30 N. E. 1013, 17 L. R. A. 753, reading as follows: “The law will not go further back in the line of causation than to find the active, efficient, procuring cause of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions.”
In the Croley case, .just cited, the policy sued on contained this clause: “Accidental death benefit shall be payable upon receipt of due proof that tbe death of the insured occurred ... as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which . . . there is a visible contusion or wound on the exterior of the body. Provided, however, that no accidental benefit shall be payable if the death of the insured resulted . . . directly or indirectly from bodily or mental infirmity or disease in any form.”
The insured in that case was injured as a result of an automobile accident on a cold rainy day. He was taken to the hospital, where, in violation of instructions, he exposed himself to the elements a second time, and as a result of this imprudence contracted pneumonia, from which he died. The testimony of the attending physician was that the exposure, which included getting wet on the day of the injury, had some bearing on the later development of pneumonia, as did also a pre-existing asthmatic bronchitis from which the insured was a sufferer. Yet, notwithstanding this undisputed testimony, we held that the trial judge, sitting as a jury, was warranted in finding* that the cause of death was the injury received in the automobile accident.
So, here, we think the testimony warranted the giving of the instructions herein set out and the finding of the jury, based thereon, that appellee’s fall from the cab was an accident for the consequences of which the insurer was liable; and this is true although the jury might have found that appellee’s hip would not have been fractured if he had not been afflicted with Paget’s disease. However, the testimony of the surgeon who attended appellee is to the effect that a fall such as appellee sustained might have broken the hip even though appellee had not been afflicted with Paget’s disease.
It is argued that the policies sued on do not insure against accidents, but only against bodily injuries caused through accidental means. This contention is decided adversely to appellant’s contention in the case of Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. 2d 364. The opinion in that case recites the contention there made, “that there is a technical difference'between the term ‘accident’ and the term ‘accidental means,’ as used in the policy sued on and in the constitution and by-laws of the association.” The question arose over an instruction which told the jury that the terms “accident” and “accidental means” were synonymous, each meaning-happening by chance; unexpectedly taking- place; not according- to the usual course of thing’s, or not as expected. In approving this instruction it was there said: “It would be unreasonable for the court to give a construction to the contract which it is manifest was not contemplated by the parties when the policy was issued and which would defeat the evident object of the contract of insurance. If the association had wished that the terms ‘accident’ and ‘accidental means’ should have had different meanings, the contract of insurance should have given the insured warning of that fact. The court correctly instructed the jury in accordance with the principles of law above announced. If the association used the terms ‘accident’ and ‘accidental means’ as synonymous, it cannot now complain that the court gave them the same construction.”
We conclude that the testimony, under the instructions set out above, sustains the finding that appellee’s injury was the result of an accident within the meaning of the policies, and the judgment will, therefore, be affirmed. | [
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Smith, J.
On October 17, 1941, the Boone County Board of Education, upon its own initiative and against the will of the directors and patrons of Walnut Grove School District No. 6, dissolved that district and annexed its territory to Harrison School District No. 1, and ordered the county treasurer to transfer its funds to Harrison School District No. 1, all pursuant to the provisions of § 1 of act 144 of the Acts of 1927.
This order of the Board of Education reflects the finding, which is not questioned, that “all conditions expressed in said act (144) had previously been carried out in detail. . . . and that the average daily attendance was below 15 during the last five-year period, during last year and during three months taught this year. ’ ’
It is not questioned that the order of the Board of Education is valid, provided act 144 of the Acts of 1927 is now the law, and the sole question raised on this appeal is whether act 144 was repealed by subsequent legislation.
To reverse the order and judgment of the circuit court upholding the order of the County Board of Education it is insisted that act 144 was repealed by act 169 of the Acts of 1931, but, if not, that act 279 of the Acts of 1941 had that effect.
The chief insistence for the reversal of the judgment here appealed from is that act 169' of the Acts of 1931 repealed act 144 of the Acts of 1927.
Act 144 is entitled, “An act to establish a minimum length of school term, and for other purposes.”
This act was considered and construed in the case of Stobaugh v. County Board of Education, 182 Ark. 675, 32 S. W. 2d 306, and headnotes to that case reflect that it was construed as follows:
“1. Schools and School Districts — Dissolution.— Under Acts 1927, No. 144, § 1, school districts may be dissolved without petition where their term has been less than 120 days in any school year, or where their average daily attendance does not exceed fifteen pupils; provided if the limit of school tax shall have been levied and the proceeds therefrom together with the available school funds are not sufficient to maintain such a length of school term and the children affected are so isolated that they will be deprived of school advantages by such dissolution, the county board can abolish only by a petition of a majority of the qualified voters.
“2. Schools and School Districts — Dissolution.— The county board may, without a petition, dissolve a school district which has not been having.school for one hundred and twenty days in any school year and where the children affected had convenient access to school after consolidation of the districts.”
This opinion was delivered prior to the passage of act 169 of the Acts of 1931, and as has been said the insistence is that act 169 repealed act 144, and that, therefore, the Stobaugh case is without effect and the act which it construed conferred no authority on the county board of education.
It is conceded that act 169 did not expressly repeal act 144, but the insistence is that act 169 was a codification of the school laws, which invalidated all school laws not included in it. It is also urged that 34 and 44 of act 169 so directly conflict with act 144 that the repeal of the latter by implication necessarily follows. Counsel quotes from the case of Standley v. County Board of Ed ucation, 170 Ark. 1, 277 S. W. 559, as follows: “In the case of Mays v. Phillips County, 168 Ark. 829, 274 S. W. 5, 279 S. W. 366, we said: ‘When there are two acts on the same subject, the rule is to give effect to both if possible. But, if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and, even where two acts are not in express terms repugnant, yet if the latter covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a. substitute for the first, it will operate as a repeal of that act. ’ ”
The case from which we have just quoted cites a number of our own cases to the same effect; and we do not intend to impair this rule, which has been reaffirmed in later eases.
. Sections 34 and 44 of act 169 of 1931 read as follows:
“Section 34. The county board of education shall have power to form school districts, change boundary lines thereof, transfer children from one district to another, dissolve school districts where the best interests of the school children justify it, and annex the territory of such dissolved district to another district or districts, and transfer funds from one school district to another, all in the manner and under the conditions provided in this act, and shall appoint all school directors in all school districts where the authority to do so has heretofore been conferred on any county judge of any county.
“Section 44. The several county boards of education shall have full power and exclusive right within their respective counties to form new school districts, dissolve existing school districts, add territory to or take territory from one or more districts and add it to other districts, or form it into a new district, consolidate school districts into another and new district, change the boundary lines of school districts, and do any and all matters and things pertaining to the creation, formation, consolidation, dissolution, and changing boundary lines of the school districts of their counties on the consent of a majority of the electors in each school district affected as shown by petitions or elections as herein provided. No existing district shall be included in a new district under the provisions of this section unless a majority of the qualified electors of the district to be included, sign the petition, or, in case of an election, a majority of the voters in the election in the district, on the question shall favor it; provided, that said boards may, in their discre- ■ tion, take a portion of one district and add it to another upon the petition of a majority of the qualified electors residing in such district from which the same is taken, leaving the remainder of such district intact as a school district; provided that territory not contiguous may be included in any district and a district or districts not adjoining may be added to or consolidated with another district or districts.”
The insistence is that these two sections so completely cover the field that no circumstance is left in which act 144 may be operative.
The State Board of Education has not and does not so construe the legislation; the position of that department is that there has been and yet remains a field for the-operation of act 144. The records of this department show that for the school year 1940-1941, 100 school districts enumerated less than 15 pupils; that 576 districts had an average daily attendance of 15 or less pupils; that 35 districts had an average daily attendance of from one to five; that 191 districts had an average daily attendance of from six to nine; and that 350 districts had an average daily attendance of from 11 to 15.
The position of the State Department of Education has been, and is, that act 169 applies to all districts at all times; whereas act 144 applies only to districts falling within its special provisions and which cannot or will not, through its electors, annex to another district for the benefit of its school children.
This administrative interpretation of the legislation is not, of course, conclusive; but it is not to be disregarded. At § 219 of Crawford’s Interpretation of Laws it is said that “As a general rule executive and administrative officers will be called upon to interpret certain stat utes long before the courts may have an occasion to construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or' administrative official will not be binding1 upon the court. Yet where a certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative officers, who are charged with executing the statute, and especially if such construction has been observed and acted upon for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the courts, except for the most satisfactory, cogent or impelling reasons. In other words, the administrative construction generally should be clearly wrong before it is overturned. Such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight. It is highly persuasive.” Among the numerous cases cited in support of this statement of the law is our own case of Moore v. Tillman, 170 Ark. 895, 282 S. W. 9.
It is a very close question whether act 169 repeals act 144; but we must keep in mind the strong presumption of law that repeals by implication are not favored. This presumption is reenforced by the following facts: section 196 of act 169 specifically repeals a large number of sections of Crawford & Moses’ Digest, the digest then current. It repeals eight sections of Kirby’s Digest, and then repeals nineteen acts passed at various sessions, seven of which were passed at the 1927 session of the General Assembly. Among the Acts of 1927 thus repealed is act 143, which fronts the page on which act 144 appears. Act 144 could hardly have been overlooked if the General Assembly had intended to repeal it also.
It was said in the ease of Pace v. State, use Saline County, 189 Ark. 1104, 76 S. W. 2d 294, that “Where a statute expressly repeals specific acts there is a presumption that it was not intended to repeal others not specified. In such cases there is an implied approval of the statutes not specified as well as of an intention to leave them undisturbed.” We conclude, therefore, that act 169 did not repeal act 144.
Was aot 144 repealed by act 279 of the acts of 1941? This latter act, exclusive of its emergency clause, reads as follows: “Section 1. Hereafter no school district shall be consolidated with any other district or merged into a new district without consent of its electors, such consent to be ascertained in a manner now provided by law. This act shall apply whether or not the territory concerned in such consolidation or merger lies wholly within one county or whether it is in different counties; Provided, this act shall not affect any suit with reference to consolidation, merger or formation of new school districts, where an appeal is now pending in any of the courts of this state.”
This aot 279 very clearly forbids the consolidation of any district with any other district or its merger into a new district without the consent of its electors, which consent shall be ascertained in a manner now provided by law, and act 169, supra, provides how this may be done, a procedure not necessary here to recite.
But the primary and express purpose of act 144 is to dissolve any school district whose length of school term shall not be 120 days in any school year, or whose average daily attendance does not exceed 15 pupils. Act 279 does not profess to deprive the county board of education of this power. The board still has that power, and where, in the exercise of this power, a district has been dissolved, it ceases to exist. It is no longer a district. Act 279 applies to school districts that are m esse — to districts that are functioning. Such districts may not be consolidated or merged into a new district without the consent of its electors. Act 279 has no application to the territory of a district which has been dissolved and has ceased to exist. As- to such territory the provisions of act 144 remain applicable, and under the provisions of that act the county board of education may “attach the territory so dissolved to adjacent school district or districts,” with a proviso not applicable here.
It is true the action of the county board of education here questioned is reflected in a single order; but we perceive no reason why there should have been separate orders, one dissolving* the district and another attaching the territory of the dissolved district to another district. This was the action of the county board of education, although its action is reflected in a single order. Appellant district was first dissolved; thereafter its territory was attached to another district. Act 144 authorized this action, and act 279 does not inhibit that action, for the reason that its provisions apply only to districts whose identity and existence have not 'been destroyed by dissolution.
It follows, therefore, that the action of the circuit court, in. upholding the orders of the county board of education, must be affirmed, and it is so ordered. | [
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Humphreys, J.
On May 22,1941, the appellees, four in number, filed separate applications with the Arkansas Corporation Commission on the ground of public necessity and convenience for authority under act 367 of the Acts of the G-eneral Assembly of 1941 and in compliance with the provisions thereof to transport certain specified commodities over the principal highways of the state of Arkansas.
Notice of the applications was given to all transportation lines operating over the routes designated in the applications, and appellants, being among the number, appeared and protested against granting licenses or permits to appellees on account of public necessity and convenience.
The four applications were consolidated for the purpose of trial. After hearing the testimony, the commission granted the applications of the appellees and issued permits or licenses of convenience and necessity over highway routes in this state for which certificates or permits had long before been issued by said commission to appellants to transport over the routes the following commodities: “Cotton, cotton linters, cotton seed, other farm products both in raw and manufactured form, including, feed, meal, hulls, potatoes, (flour excluded) fertilizer, livestock, dairy products, light machinery and pipes, dressed and rough lumber, building materials, excluding brick and tile, electrical construction materials and poles, fuel oil for Pine Bluff and Little Rock shippers.”
An appeal was taken from the order of the commission granting petitioners permits or licenses on account of necessity and convenience to transport freight over the principal highway routes of Arkansas, specifically designated, to the circuit court of Pulaski county, third division, and, on a hearing of the consolidated petitions by said court on the same record made before the commission, the court sustained the order of the. commission granting licenses to the petitioners, from which is this appeal to this court for trial ele novo.
There can be no doubt that it is the duty of this court to try this class of cases de novo on the record made before the commission and on appeal before the circuit court. This court has so ruled in the case of Missouri Pacific Railroad Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644. This court reaffirmed and approved the ruling in the Williams case, supra, in the case of Potashnick Truck System, Inc., v. Missouri & Arkansas Trans. Co., 203 Ark. 506, 157 S. W. 2d 512. In the last case cited this court-said: “We said in the case of Missouri Pacific Railroad Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644, that the statute under which this proceeding was had required this court, upon the appeal to it, to hear the matter de novo, and to render such judgment upon the appeal as appeared to be warranted and required by the testimony. And so we do, but we cannot ignore the fact appearing in the record before us that a protracted hearing was had, both before the commission and in the circuit court on appeal, and, while the burden was upon petitioner to make the affirmative showing that the public convenience and necessity required the issuance of the permit, that finding has been made, and should now be affirmed unless it appears to be contrary to a preponderance of the testimony. We hear chancery appeals de novo, but, when we have done so, we affirm the findings of the chancellor on questions of fact unless his findings appear to be contrary to a preponderance of the evidence. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160.’’
We have carefully read the testimony in this case with the view of determining whether the order of the commission granting permits to appellees to haul commodities designated in their applications over the highways of this state also designated was contrary to a clear preponderance of the evidence.
The testimony introduced before the commission was broad in scope and took a very wide range. Twenty-two business men of Pine Bluff, Warren, Sheridan and Little Bock testified as to the character of business in which they were engaged and the extent of their shipments of freight over the highway routes designated by petitioners in their applications for licenses, and that they had been employing petitioners at intervals to haul commodities of various kinds in trucks over the highway routes involved from five to ten years. All of them testified, in substance, that in their respective businesses it was necessary and convenient to be able to call upon petitioners at irregular intervals to haul their commodities. They stated, however, that they had never been refused service by appellants when they called upon them, and the services of appellants rendered them were satisfactory when they used them.
Three witnesses testified on behalf of appellants. They testified, in substance, that they had gone to great expense to equip themselves to haul all commodities designated in petitioners’ applications over the designated highway routes, and that if they were called upon in the future to transport in their trucks any goods or commodities requiring additional equipment, they would provide such equipment and furnish every necessary facility to accommodate shippers on and along all designated routes.
The undisputed evidence in the record reflects that appellants have never refused to haul commodities or freight which petitioners propose to handle over the routes applied for.
A great preponderance of the testimony is that appellants have sufficient trucks and equipment to accommodate any and all freight traffic over the routes designated which petitioners propose to handle.
It follows that'the permits issued to appellees to haul designated commodities over designated highways specified in their respective applications were contrary to a clear preponderance of the evidence. As stated above, the undisputed evidence was to the effect that none of the witnesses appearing on behalf of appellees ever applied to appellants to haul commodities of any kind over the highways designated in appellees’ petitions without being accommodated and that the service rendered, when requested, was satisfactory. A clear preponderance of the evidence was to the effect that appellants owned ample equipment with which to haul all commodities over the highways designated in appellees’ petition if and when called upon to do so.
In passing it may not be amiss to state that appellants proffered in the course of the trial to procure any additional equipment not presently owned by them which public necessity and convenience might require.
In construing regulatory statutes governing the Corporation Commission of Arkansas prior to Act 367 of the Acts of the General Assembly of 1941, this court adopted in the case of Missouri Pacific Rd. Co. v. Williams, supra, a rule as follows: ‘1 The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required. ’ ’
In applying this general rule to the facts in the instant case we have concluded that according to a great preponderance of the evidence, appellants were furnishing over the'routes applied for by appellees adequate service, and that it was not necessary for the benefit of the general public to issue permits to appellees for additional service. We have also concluded that appellants were not given an opportunity to furnish additional service if any should be required for the benefit or convenience of the general public.
In other words, the evidence did not warrant the commission in issuing certificates to appellees to haul freight and commodities over the highway routes designated in appellees’ petition. The issuance of such certificates was contrary to much of the undisputed evidence and contrary to the great preponderance of the evidence.
Appellees contend, however, that appellants had no right under Act 367 of the Acts of the General Assembly of 1941 to appeal from the findings and judgment of the Corporation Commission and to the circuit court. After setting out the general duties and powers of the commission in six subdivisions of § 6 thereof it is provided in subdivision (e) of § 7 of said act that: “Any final order made under this Act shall be subject to the same right of appeal by any party to the proceeding as is now provided by § 2019 and 2020 of Pope’s Digest of the Statutes of Arkansas in respect to appeals from the orders of the Commission . . .”
We think under subdivision (e) of § 7 of Act 367 of the Acts of the General Assembly of 1941 the absolute right of appeal was granted to the parties to this suit, and that the reference to §§ 2019 and 2020 of Pope’s Digest related to the proceedings or manner of perfecting- the appeal. It was not an attempt on the part of the Legislature to' amend or extend said sections of Pope’s Digest and does not come within the constitutional inhibition of § 23 of art. V of the Constitution of the State of Arkansas for the year 1874, which is as follows: “No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.”
Certainly the Legislature did not intend by granting an appeal to the interested parties to deny them the right of an appeal. The purpose and intent was after granting interested parties, or the parties to a suit, the right to appeal reference was made to certain sections of the statute for the manner and method of perfecting an appeal.
This court in a number of cases has recognized the right of interested parties to take an appeal from the final orders of the Corporation Commission to the circuit court and from the circuit court to the Supreme Court. The latest case in which the right of appeal by the parties to the suit, or interested parties, was recognized in the case of Potashnick Truck System, Inc., v. Missouri & Arkansas Trans. Co., supra.
The judgment of the circuit court approving the orders of the Arkansas Corporation Commission is reversed, and the orders of the Commission are set aside, and the cause is remanded with directions to enter orders denying the applications of appellees. | [
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Humphreys, J.
This is an appeal from that part of the decree of the chancery court of Pope county holding that appellant, Federal Deposit Insurance Corpora tion, was subrogated under the law to the extent only of tbe amount paid by it to each insured depositor of the Merchants & Farmers Bank, Atkins, Arkansas, insolvent, then in the course of liquidation, and was not entitled to recover interest on the amount it paid the depositors.
The facts are undisputed and are summarized in statements made by learned counsel for appellant and appellee in their respective statements of the case. We glean from their respective statements of the case that the Merchants & Farmers Bank, Atkins, Arkansas, was, on and prior to the 23rd day of March, 1939, ‘ ‘ state nonmember” bank, an insured bank, within the meaning of § 264 (c), Title 12, U.S.C.A., and its depositors were insured by the appellant to the extent provided by law; that at the close of business on March 23, 1939, the Bank Commissioner of the State of Arkansas, pursuant to the provisions of act 113 of the Acts of the G-eneral Assembly of the State of Arkansas of 1913 and acts amendatory thereto, took charge of the property and assets of said bank; that at the time the bank was closed there were no outstanding liabilities against it other than liabilities to the depositors and to the stockholders; that "the total deposits aggregated $188,561.96; that after all offsets and inventory adjustments were made there remained $169,120.32 of insured deposits and $19,441.60 of uninsured deposits; that appellant paid $169,120.32 to the insured depositors and received an assignment and sub-' rogation agreement from each depositor transferring, setting over and assigning to the appellant all claims against said bank and its stockholders, arising out of such insured deposits; that the appellant filed claims with W. H. Bost, special bank commissioner in charge of the liquidation of said bank, in the total sum of $169,-120.32 with such interest thereon as is allowed by law; that the principal amount advanced by appellant, to-wit: $169,120.32, was allowed and paid to appellant by the special deputy bank commissioner out of the assets of the bank; that the unsecured depositors and all expenses incident to the liquidation of the bank were paid in full leaving sufficient assets with which to pay appellant interest on the amounts it had advanced to pay the insured depositors unless said excess should be used to pay the preferred and capital stock owners before paying the interest to appellant on the amounts it had advanced.
On or about the 25th day of January, 1941, appellant made demand upon the receiver, or liquidating agent, for the payment of $3,685.67 which it claimed as interest upon the amounts paid out by it, calculated at six per cent, per annum from the date of the closing of said Merchants & Farmers Bank, on the 23rd day of March, 1939, until it received its full repayment; that áppellant, when it took the assignment from each depositor to all claims against the bank and stockholders arising out of the insured deposits, paid no interest to the depositors.
Based upon the facts detailed above, in addition to denying appellant the interest claimed, the court declared the law to be, in the decree rendered by him, that depositors in a bank which suspends payment to its depositors, and is taken over for liquidation by the Bank Commissioner of the State of Arkansas, are entitled to interest on such deposits from the date of such suspension to the date or dates upon which sums equal to the principal amount of such deposits have been paid, if there are assets available to pay such interest after payment of all other claims against such bank, including the principal amount of such deposits, and that under such circumstances such depositors would be entitled to interest at the legal rate of six per cent, per annum. This finding and declaration of law is supported by the great weight of authority.
The depositors being entitled to interest on their claims from the date a bank closes until they are paid out of the assets of the bank, if there are available assets to do so, to the exclusion of preferred or capital stock owners, the only question which could arise is whether the assignment of the respective claims was sufficiently definite and broad enough to assign their intorest rights to appellant. We think it was.
The language of the assignment is as follows: “For the purpose of subrogating the Federal Deposit Insur anee Corporation to all of claimant’s rights against said closed insured hank arising out of the insured deposit in the amount shown above, to the extent of the amount paid the receipt thereof is hereby acknowledged, claimant hereby assigns, - transfers and sets over unto said corporation all claims against said closed insured bank and its stockholders arising out of said insured deposit, together with all evidences of such indebtedness held by claimant. ’ ’
We think, however, that irrespective of the assignment under the provisions of § 12B of .the Federal Be-serve Act as amended (U.S.C.A., Title 12, § 264) appellant was subrogated to the rights of the depositors upon payment to them of their respective claims. This court has not had occasion to construe the provisions of § 12B of the Federal Beserve Act as amended, but the purpose and intent of the act as applied to the facts similar to the facts in the instant case was construed by the Supreme Court of Iowa in Bates v. Farmers Savings Bank of Ankeny, 3 N. W. 2d 517. Practically every material question assigned by appellee in the instant case as^to wliy appellant should not be paid interest on the amount it paid to the insured depositors was assigned in the Iowa case referred to above with the result that the Iowa Supreme Court, after discussing the assignments at great length, said: “By reason of our pronouncements and holdings heretofore made it is our conclusion that: (1) All depositors, and the FDIC as assignee of depositors’ claims, are entitled to interest at five per cent, on such claims from the date of the bank’s insolvency as evidenced by the date of the closing of the bank; (2) the payment of interest to depositor claimants, including the FDIC, shall have priority in payment before any distribution is made to the preferred stockholders.”
As stated above the facts in the Iowa case were identical with the facts in the instant case. The Iowa case referred to is a very recent case, the opinion having been rendered on May 5, 1942.
There is another recent case decided by the United States Circuit Court of Appeals, Eighth Circuit, on July 30, 1942, involving practically the same questions involved in the instant case with the following result: “The judgment of the district court will accordingly be reversed, and the cause will be remanded with directions to enter a declaratory judgment that the Federal Deposit Insurance Corporation Act, 49 Stat. 684, 12 U.S.C.A., § 264, does not prohibit the corporation from receiving interest upon its claim against the Citizens State Bank of Niangua, in liquidation, and that the corporation is entitled to have paid to it by the Commissioner of Finance, as part of its subrogation rights, such interest as is properly incident to the payment of claims of depositors in a bank liquidation, under Missouri law, where there is a surplus available for this purpose. yy
. The case referred to above has not been published, but the copy of the opinion before us shows it is a consolidated case and .is styled as follows: “United States Circuit Court of Appeals, Eighth Circuit, May term, A. D., 1942. No. 12,229, Federal Deposit Insurance Corporation v. The Citizens State Bank of Niangua, 130 F. 2d 102.
We think the two decisions cited above clearly construe the purpose and intent of § 12B of the Federal Reserve Act as amended and we adopt the construction placed upon said act by the Iowa Supreme Court and the United States Circuit Court of Appeals, Eighth Circuit, as being applicable to the facts in the instant case.
For the reasons set forth in those opinions, the decree of the chancery court is reversed, and this cause is remanded with directions to allow appellant its claim for interest in the sum of $3,685.67 on the amount of the insured deposits it paid at the rate of six per cent, per annum from the date of the suspension of the bank. | [
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Holt, J.
Appropriate proceedings were instituted in the Union chancery court by appellees, J. B. Reames and H. O. Reames, styled “Operating Plaintiffs,” and a large number of other parties styled “Public Plaintiffs,” to restrain appellants and other defendants from enclosing the shore, or dock site, and from interfering with the rights of appellees in the use and occupancy as a camp site, of a strip of land approximately 200 feet wide, along the west shore of Grand Mere Lake in Union county, Arkansas.
The principal issue presented on the trial below, and here on appeal, relates to riparian rights on Grand Mere Lake and more particularly to the right to maintain and operate a commercial boat dock oil the water and shore of this lake. Upon a trial the court found and decreed in effect, that the “Operating Plaintiffs” (appellees here) were without right to use the shore.of the property controlled by appellants under, a lease, but decreed that appellees had the right to maintain and operate their equipment on the water of the lake and refused to order its removal from its position in front of the shore line of appellant’s property. This appeal followed. Appellees have cross-appealed.
The record reflects that appellees, since 1938, have operated a commercial fishing camp on Grand Mere Lake, which is conceded to be a navigable body of water and part of the Ouachita river. This camp was located on and in front of a strip of land approximately 200 feet wide on the shore of the lake. The Crossett Lumber Company owns practically all of the land bordering on this lake, including the strip of land in question here. Appellants have the use and control of this property to high-water mark under a lease from the Crossett Lumber Company.
In the operation of their commercial fishing camp, appellees maintained a minnow dock, or raft, on the surface of the lake directly in front of appellants’ property and forty-eight feet from the water’s edge. This minnow dock is 21 x 24 feet. Fifty-one feet from the water’s edge and within a few feet of the minnow dock, appellees have a houseboat 40 x 60 feet, which they use as a home. Both the raft and the houseboat are anchored to posts in the bed of the lake. In addition, appellees owned a large number of small boats which they rented to fishing parties. • They also had constructed plank walkways from the houseboat and minnow dock to the shore and maintained a refreshment booth on the shore about forty-seven feet from the water’s edge. Appellees kept their small boats, which they rented to the public, beached at the water’s edge in front of their houseboat and minnow dock, and on the 200-foot strip of land in question. Appellants erected a fence along the shore line in an attempt to prevent its use by appellees in the manner above stated.
The trial court in its decree held that Grand Mere Lake is a navigable body of water; that appellants, as lessees of the Crossett Lumber Company, control the land bordering on the lake to the high-water mark and that there was so little variation between the high and the low-water mark that they are practically the same, it appearing that the water level of the lake is largely controlled by a lock or dam. The decree also directed appellants to remove their fence, and directed appellees to remove their refreshment booth from the shore, to remove all rental boats from the shore and to remove the platform, or boardwalks, leading from the minnow dock and the houseboat to the shore. By the decree, however, appellees were permitted to retain their houseboat and minnow dock in their present position.
We quote from the decree as follows: “The plaintiffs and cross-defendants, J. B. Reames and Ii. Ü. Reames, have the right to maintain a commercial fishing dock upon the surface of the lake, but they and their agents, servants and employees should be enjoined and restrained from using, directly or indirectly, any part of the leased premises in the conduct of their business and from inviting the public to make use of the same;
“J. B. Reames and H. O. Reames, their agents and employees, are perpetually enjoined from occupying or using the leased premises, or any part thereof, and from conducting any business thereon pertaining to the operation of the boat dock aforesaid; . ' . . from using the leased premises in the operation of their said business, and from directly or indirectly inviting the public or members thereof to go upon the leased premises; from going upon the leased premises in passing to or from their boats or other equipment upon the water; from parking any vehicle or inviting the public or members thereof to park automobiles or other vehicles upon the leased premises, and from going upon the leased x>remises for any purpose whatsoever; from . . . receiving or discharging passengers or customers from or on the shore of the leased premises. . . .”
Appellants were also awarded a small judgment against appellees for damages covering the use of the shore to date of decree.
The contention of the parties is stated by appellants in this language: “We have heretofore stated the contention of the appellees, J. B. Reames and H. O. Reames, to be that by reason of the fact that this lake is navigable water, they, as members of the public, have the right to maintain and operate the commercial boat dock and, in so doing, to the exclusive use of the water occupied by them and immediately fronting and paralleling the shore, and to use the shore in the conduct of their business.
“The appellants contend that the right to maintain and operate the dock is a right belonging or pertaining to the bank and incident to the ownership of the soil above high-water mark, and is therefore a riparian right of Crossett Lumber Company granted by said company to appellant, J. R. Withers, and by him sub-let to appellant, H. L. Anderson, and that the Reameses are squatters without any right or authority to use the water or shore for a commercial boat dock and that they should be enjoined from so using the same and directed to'remove their equipment from the water fronting the leased premises.”
The parties here concede that Grand Mere Lake is a navigable body of water. There is no dispute that appellants, as riparian owners or lessees, would have the use and control of their land to the high-water mark. The test in determining high-water mark is announced by this court in the case of State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S. W. 1014. There it is said: “In St. L., I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L. R. A. 559, 22 Am. St. Rep. 195, we defined .‘high-water mark’ and prescribed the test for ascertaining it as‘follows (quoting syllabus) : ‘The high-.water mark of a navigable stream,'the line delimiting its bed from the .bank, is to be found by ascertaining where the presence and action of water are so usual and long continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the hanks in respect to vegetation and the nature of the soil’.”
'On the record before us, which includes a carefully drawn plat and photographs of the shore fronting appellants ’ property, we think the preponderance of the testimony shows that there is a marked difference between the high and the low-water mark of this lake and that there is a defined shore or beach of sand and gravel clear of all vegetation for a distance of approximately fifty feet slightly rising from the water’s edge back to where all vegetation ends, constituting the high-water mark above defined. To this extent appellees’ contention on cross-appeal must be sustained. However, in the view that we take on the whole case, this does not require a reversal.
On appellees’ contention that appellants had no valid lease and, therefore, no control over the property in question to the high-water mark, it suffices to say that we think the record clearly reflects that they do hold a valid lease from the Crossett Lumber Company. The lumber company is not a party to this litigation.
Under the court’s decree the appellees, as we have indicated, were required to move all of their equipment from any proximity to the shore. Under the decree they are forbidden in the prosecution of their business to use any boat to'pick up the public on appellants’ shore or unload them there at any time, and they may not use the shore in front of appellants’ property reaching from high to low water in carrying on their commercial fishing and boating enterprise. Appellees’ minnow dock and houseboat floating upon the navigable waters of the lake do not touch or come in contact with the shore and were permitted to remain under the court’s decree.
The position of appellants here is clearly expressed by them in their brief in these words: “The right to maintain and operate the dock is a right belonging or pertaining to the bank and incident to the ownership of the soil above high-water mark, and is therefore a riparian right . . .” We cannot agree that the riparian rights of appellants go as far as appellants insist.
In State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S. W. 1014, this court said: "It is held in the well-considered cases of Railway v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L. R. A. 559, 22 Am. St. Rep. 195, and Barboro v. Boyle, 119 Ark. 383, 178 S. W. 378, that the title to the bed of navigable waters in our state, that is, the title to the bed of such waters to high-water mark, is in the state. The character of such title is well expressed in the case of Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436, 74 Am. St. Rep. 859, 50 L. R. A. 836, as follows: 'Upon the admission of the state into the Union the title to such lands, by operation of law, vested in it in trust to preserve to the people of the state forever the common rights of fishing and navigation and such other rights as are incident to public waters at common law, which trusteeship is inviolate, the state being powerless to change the situation by in a.ny way abdicating its trust. ’ . . .
"Of course, appellees, being still the owners of the lands bordering on the lake to high-water mark, would have certain riparian rights which other members of the public would not have, . . . They would have the same common right of hunting and fishing in such waters as other members of the public would have.” Id., p. 323.
In Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378, this court said: "The land rises gradually, and it is difficult to tell where the high-water mark is on that side of the lake. As we have already seen, the title to the bed of the lake to high-water mark is in the state for the use of the public, and the public have a right to hunt and fish therein.”
The only right that appellants, as riparian owners, would have over the general public and appellees is the right to the uninterrupted and free ingress and egress to their property along its water’s edge between high and low-water mark.
The rights and privileges of riparian ownership Is defined in 45 C. J. 491, § 143, as follows: "The rights of riparian owners upon navigable streams include the rights possessed by riparian 'owners upon other watercourses;-and as to navigable waters generally, they in- elude (1) the right of access to the water; (2) the right to build a pier out to the line of navigability; (3) the right to accretions; and (4) the right to a reasonable use of the water as it flows past the land, and have been often so enumerated.”
Appellants’ rights will not permit them to interfere with the rights of the public generally in the. use of the shore or beach in front of their property from high-water mark to the water’s edge for the purposes of bathing, hunting, fishing and the landing of boats, so long as such use does not unreasonably interfere with appellants’ right of ingress and egress. Nor do these rights permit appellants to prohibit appellees, or the public generally, from the use of the navigable waters in front of their property for the above purposes so long as such use does not unreasonably interfere with appellants’ rights of ingress and egress.
The riparian rights of appellants do not permit them to force appellees to remove their houseboat and minnow dock from that part of the lake fronting appellants’ property.
We think the chancellor was correct in holding that the houseboat and minnow dock of appellees in no way interfered with the free egress and ingre'ss of appellants to their property or to any of their rights as riparian owners.
In Kuramoto v. Hamada, 30 Haw. 841, that court held: “The right of navigation in tidal waters includes the right of anchorage,. and the same may be exercised for business purposes or for pleasure.”
In 45'C. J. 501, § 152, the text-writer says: “The owner of the uplands cannot so exercise his right of passage or access to the channels as to destroy or unreasonably interfere with the right of the state to put its own land to such use as it may think proper, or in 'such a way as to prevent other persons to whom the sovereign has granted the bed of the river, or some portion of it, from using their own property in a reasonable way. The right of access and of navigation does not include any right arising from the use of the land under water or the bed of the river below high-water mark. The right of access of the riparian owner cannot be enlarged at will or according to his own convenience or necessity, bnt he has no ground for complaint so long as the natural condition of things is left practically unchanged and opportunity is afforded at all times for reasonable methods of access.
In the case of Hedges v. West Shore Railroad Co., 55 Am. St. Rep. 660, 150 N. Y. 150, 44 N. E. 691, the court said: ‘ ‘ The right of access and navigation which the law secures to the riparian owner as one of the incidents of his title to the uplands does not include any right arising* from the use of the land under water or the bed of a tidal river, below high-water mark.”
In the case of Tiffany v. Town of Oyster Bay, 234 N. Y. 15, 136 N. E. 224, 24 A. L. R. 1267, in discussing the riparian owner’s rights, the court said: “The rights of the riparian owner, the owner of the upland fronting on navigable tidewaters, over the foreshore, are rights of reasonable, safe and convenient access to the water, for navigation, fishing, and such other uses as commonly belongs to riparian ownership. Brookhaven v. Smith, supra. Each right — the right of the public, of the owner of the foreshore, and of the riparian owner — must be exercised in a reasonable way. Hedges v. West Shore R. Co., 150 N. Y. 150, 55 Am. St. Rep. 660, 44 N. E. 691.”
And in the case of Stewart v. Turney, 197 N. Y. S. 81, 203 App. Div. 486, the court said: “The owner of the upland may utilize the foreshore of an inland navigable lake, for hunting; but such use is not absolute and exclusive, and the public at large has the same rights. Wild duck hunters standing and walking along* the water’s edge, and crouching* behind temporary hides, and also drawing their boats partly out of the water and onto the beach, cannot be enjoined on the broad ground that the plaintiffs, to whom the owners of the upland have granted the right of hunting and trapping, have an exclusive right to the foreshore.”
And in 26 C. J. 602, the author says: “Pishing implies a reasonable use of the waters and shore line of navigable streams, and as a general rule all of tlie members of tlie public liave a common and general right of fishing in public waters, such as the sea and other navigable or tidal waters, and no private person can claim an exclusive right to fish in any portion of such waters, except in so far as he has acquired such right by grant or prescription. . . . An owner of land abutting on one of such lakes or ponds has no greater rights than others to fish in front of his land, except to the extent that he is given greater rights by statute, or acquires them by grant or prescription.”
On the whole case, the decree is affirmed both on direct and cross-appeal.
Griffin Smith, C. J., dissents in part and concurs in part. McIIaney, J., dissents. | [
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Lyle Brown, Justice.
This is a condemnation case brought by the Housing Authority of Osceola, Arkansas, to acquire seven town lots to be used in a low-rent housing project. The appellee-owner, Nella D. Gillespie, was awarded $35,000 as just compensation. The basis for appeal by the Authority is set out in three points which will be enumerated and discussed in sequence.
Point I. The landowner and her witness used “cost of replacement” and “capitalisation” as the measure of damages. Appellant challenges the use of those ap proaches to prove property values. Appellant relies on City of Little Bock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30 (1958). There it was held that replacement costs are not determinative of damages, “but we do conclude that it is admissible as an element or circumstance to be considered along with all other circumstances in arriving at a proper award.”
Most of appellant’s argument under Point I is aimed at Mrs. Gillespie’s testimony. She showed a detailed acquaintance with the property, having for many years personally handled the rentals, repairs, taxes, insurance, and all the other duties incumbent on a landlady. The meaning of “fair market value” was explained to her and she said she understood it. She went into detail as to replacement costs and net rentals. She had recently bought property just across the street and testified, without objection, that she took that purchase into consideration. Under those circumstances her opinion of fair market value was admissible.
Witness D. S. Laney had known the property for at least twenty years. He buys, sells, and develops real estate in Osceola. His approach to the fair market value did not follow the customary detailed procedure of an expert appraiser in preparation for trial. However, he did base his opinion on his knowledge of the property, his awareness of some comparable sales, and his personal knowledge of values gained from his extensive dealings with Osceola properties.
Witness L. C. B. Young, being in Florida, testified by deposition. He did not have his appraisal file with him and testified from personal recollection. He had viewed the property with Mr. Laney before going to Florida. He frankly stated that he relied mostly on Mr. Laney’s judgment because he is “something of an expert on residential property in that area of Osceola.” He did not recall the exact figure, but did recollect that the two men agreed that the minimum value would he at least $30,000. Mr. Young is a licensed attorney hut has devoted the past several years to. hanking. He is presently the chief executive officer of Planters Bank in Osceola and has been evaluating real estate in Osceola for sixteen years. He testified that he did in fact consider Mrs. Gillespie’s capitalization data; however, comparable sales were discussed, the properties were inspected, and effort was made “to consider all factors.”
Witness E. M. Terry also qualified as an expert. He considered the assessment records, checked comparable sales, talked to several people, and used Mrs. Gillespie’s capitalization figures after deducting 15 per cent for vacancy.
Point II. The verdict was a result of prejudice against the Housing Authority and 'sympathy for the landowner-appellee. In support of the contention appellant first cites extensive testimony of Mrs. Gillespie concerning her many worthy civic activities and her sentimental attachment to the property. There was never any objection to that testimony, nor was the court requested to restrict it.
Our attention is next called to a number of questions propounded by Mrs. Gillespie’s counsel. The purpose of those questions, says appellant was to show that the housing costs were coming from unlimited federal funds rather than the town of Osceola. Mr. Fendler asked a series of not more than three questions concerning the source of funds. On each occasion objection was made and properly sustained. A conference on the subject followed and that action apparently caused a cessation in the objectionable line of questioning.
III. The verdict is excessive. On this point appellant emphasizes the extensive period of study of the property made by its qualified appraisers. Those' three witnesses estimated the landowner’s just compensation to be $12,500, $19,900, and $19,900 respectively. T'he jury verdict was $35,000. Returning- to the landowner’s appraisal for comparison, they were: Dave Laney, between $35,000 and $40,000; L. C. B. Young, minimum of $30,-000; E. M. Terry, $26,000; and Mrs. Gillespie, $50,000. One of the purposes in here summarizing the testimony of the landowner’s witnesses was to reveal substantial evidence to support the jury verdict. The disparity between the appraisals is very common in eminent domain cases and is unfortunate. Yet the only rule we can follow is the substantial evidence rule.
We conclude that the three points are without merit.
Affirmed. | [
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J. Fred Jones, Justice.
This is another appeal by Carl Widmer from an adverse decision of the Sebastian County Circuit Court wherein Widmer sought judgment for more than $6,000.00 against Fort Smith Vehicle and Machinery Corporation without the necessity of offer ing proof of the allegations in his complaint, and without the necessity of a trial of the issues on their merits.
On June 12, 1962, Widmer purchased a used Case grain combine from the appellee, Fort Smith Vehicle and Machinery Corporation, under a conditional sales contract for a total cash purchase price of $1,050.00' of which amount $250.00 was paid in cash. The contract provided for the balance to be paid in semi-annual installments of $269.25 on December 15, 1962, $218.45 on June 15, 1963, $227.70 on December 15, 1963, and $236.90 on June 15, 1964. The purchase agreement was drawn up on a printed form designated “Purchase Order,” and the form was designed for use in the sale of John Deere equipment. Under the terms of the contract title was retained by the seller until the combine was fully paid for. A section designated “Warranty and Agreement” appears in bold type in the face of the form and this section of the contract provides as follows:
“Seller warrants each new John Deere machine to be free from defects in materials or workmanship. The obligation of Seller under this warranty is limited to replacing parts which prove defective with normal and proper use within a period of 6 months from date of delivery to Purchaser. In no event shall Seller be liable for incidental or consequential damages or injuries including loss of crops or inconvenience or loss in performing contracts.
“The above warranty is in lieu of all other warranties, statutory or otherwise, expressed or implied, all other representations to Purchaser, and all other obligations or liabilities with respect to such machines including implied warranties of merchantability and fitness. No warranty or representation whatsoever, expressed or implied, has been made by the manufacturer or wholesale distributor of John Deere machines and relied on by Purchaser, and Seller has no authority to make any such warranty or representation on behalf of such manufacturer or wholesale distributor.
“Seller maltes no warranty (including the implied warranty of merchantability and fitness) or representation, expressed o-r implied, and disclaims all obligations and liabilities whatsoever, as to: (a) batteries and rubber tires; (b) any second hand goods; (c) tractor engines not manufactured by John Deere, except that this warranty includes Detroit Diesel 2 cylinder engines on light industrial and light agricultural tractors; and (d) any other goods not specifically named in the first paragraph of this warranty (whether or not sold on or with John Deere machines). As to any such goods Purchaser agrees to look solely to the written warranty, if any, undertaken by the manufacturer thereof. However, in the ease of certain such goods Seller may elect to give a written warranty in the form of a certificate or other written statement specifically designated ‘Warranty’ in which case the provisions of such Warranty shall govern.
“No assistance given to Purchaser by Seller or anyone. acting with him in the repair or operation of the goods shall constitute a waiver on the part of Seller of the conditions of this Warranty and Agreement.” (Emphasis supplied.)
According to the complaint the combine was repossessed by the appellee in the latter part of December 1963, and according to the answer the combine was repossessed because Widmer had paid nothing on the purchase price except the down payment and had defaulted in the payment of all of the first three semi-annual installments at the time the combine was repossessed by the appellee.
On March 2, 1967, Widmer filed suit against the appellee alleging the purchase of the combine under an express verbal agreement by Bill Woody, salesman and agent of the appellee, that the combine “as is” 'would harvest all of Widmer’s grain without difficulty, and that the machine was so warranted; that the actual sale price of the combine was $950.00, but that Widmer agreed to give the appellee an additional hundred dollars to replace and repair any worn or damaged parts and to generally check and completely service the machine, etc.; that the combine was not delivered when agreed and that all the agreed work had not been done on the combine when it was finally delivered; that numerous breakdowns occurred after its delivery, and that one such breakdown lasted for more than a week before the machine was put back into service by the ap-pellee’s employees.
Widmer alleged that because the combine failed to perform as warranted, he was late in harvesting his grain crop, and because of this delay he was late in getting his bean crop planted, and because of the delay in planting the fall soy bean crop, a large part of that crop did not mature and that as a result of loss in grain and the sov bean crop, he was damaged in the amount of $6,500.00.
Under a second count in the complaint, Widmer alleged ownership of the combine and damage to the extent of its value, as well as punitive damages in unlawful trespass committed by appellee in repossessing the combine. On March 10, the appellee filed a “Motion to Elect” praying an order requiring the plaintiff, Widmer, to pursue his cause of action in either contract or tort. On March 14, Widmer filed “Request for Admission of Facts” requesting the appellee to admit as true eighteen paragraphs of statement including the alleged delay in harvest due to breakdowns and repairs, the consequential delay in planting 150 acres of soy beans resulting in failure of the soy bean crop to mature, and that the net fair market value of the soy bean crop that did not mature would have been $3,600.00.
On March 17, defendant filed a motion to quash the request for admissions, and on March 17, Widmer filed his response to defendant’s motion to elect, concluding the response as follows:
“[A] 11 rights and defenses as to both parties to the action and as to both Counts arise out of and come into being as a result of a purchase order dated June 12, 1962; the purchase order in question being the contract in this action; thus, it is apparent that plaintiff’s action is based on contract, and defendant’s motion for plaintiff to elect is superfluous.”
On April 12, the trial court granted defendant’s motion to quash the request for admissions; granted defendant’s motion to elect and set the case for trial on May 2, 1967. Under date of April 20, 1967, Widmer filed a motion to vacate the order granting defendant’s motion to quash request for admission of facts. He subsequently complied with the order to elect and elected to proceed under the first count of his complaint, and on April 21 he filed motion for summary judgment on the theory that since the defendant had not responded to the request for admission of facts which the court had quashed, the facts set out in the request would be taken as true and would entitle Widmer to a judgment on his complaint as a matter of law.
Appellee filed a demurrer to the complaint combined with its answer and also filed a motion for a summary judgment. On May 29, the cause was heard by the court sitting as a jury and the motions for summary judgment were denied. Widmer stood on his demand for a summary judgment and refused to go forward with evidence in support of his complaint. The complaint was dismissed by the trial court, and on his appeal to this court Widmer designates two points he relies on as follows:
“That the trial court erred in not deeming all requested admissions contained in request for admission of facts dated March 14, 1967, as being deemed admitted.
“That the trial court erred in not granting appellant’s motion for summary judgment.”
In support of the points appellant relies on, he argues in his brief, as follows:
“The plain, cold, and obvious facts are that appel-lee just has not complied with the plain and simple provisions of sub-part (,2) of subsection (a) of Statute 28-358 concerning written objections and the explicit requirement for ‘Notice of Heai'ing.’ ”
We consider the plain, cold and obvious facts to be, that appellant purchased a used Case combine and almost five years after he purchased it and some three years after it ivas repossessed for nonpayment, he filed suit on breach of warranties in his contract of purchase and alleged prospective damages measured in acres of grain he did not harvest and soy beans he did not produce.
The record reveals that appellant previously filed this identical law suit in the Sebastian County Circuit Court and followed exactly the same procedure in filing the identical requests for admissions of identical facts and when appellee complied with the requests in that case, appellant refused to go forward with his proof in the trial of the law suit but took a voluntary nonsuit. Appellant refiled the present suit and again filed identical requests for identical admissions, all of which he had a perfect right to do, but under the risk of becoming vexatious to the point of necessary intervention of the trial judge in protecting the rights of other parties to the laiv suit and the orderly conduct of the business of the court. We are of the opinion that the trial court did not abuse its discretion in quashing the appellant’s request for admissions and in requiring tbe appellant to proceed with his burden of proof in the orderly trial of this law suit on its merits.
Appellant lias apparently overlooked two recent decisions of this court in which the argument he now advances in support of the points he relies on was rejected. In the ease of Widmer v. Wood, 243 Ark. 457, 420 S. W. 2d 828, and again in Carl Widmer v. R. G. Wood, 243 Ark. 32, 421 S. W. 2d 872, we held that where objections to a request for admissions fail to include a notice for hearing thereon, such omission does not constitute a defect so fatal as to result in the defendant’s admission of the truth of the requests. We so hold again in the case at bar.
It should not be necessary to point out that the discovery statutes were intended to assist in clarifying the issues in a law suit and help eliminate the elements of surprise and resulting delay in reaching a fair and impartial result at the trial of a law suit on its merits.
The purpose of discovery procedure is to simplify the issues at the actual trial and is not intended to take the place of the actual trial, nor is it intended to relieve the plaintiff of the burden of proving the allegations of his complaint in a civil case. The request for admissions within our discovery procedure is intended to eliminate the effort, expense and time involved in proving such facts as are admitted and is not intended as some new or modern legal method of winning law suits without trial. The object of the civil court trial still remains to attain justice between the parties as nearly as possible, and the rules of civil procedure, including discovery, are intended to aid in that object.
We know of no unique procedure under our code of practice Avhereby a plaintiff may completely abandon his burden of proof and safely rely on requests for admissions to which his adversary may finally grow weary and fail to respond and thereby automatically- entitle the plaintiff to a judgment on any kind of complaint ivithout any kind of proof or any kind of trial. The business of the circuit court of this state is serious business and although a party litigant has a right to represent himself and to devote his full time to the job if he desires to do so, he does not have the unlimited right to convert the rules of civil procedure into a game of legal wits and unduly burden his adversary with expense of counsel in responding to unnecessary and frivolous' pleadings simply because they are permitted by statute. The trial court has a duty and inherent power to quash such pleadings and its actions in doing so will not be disturbed on appeal unless that discretion is abused.
Appellant seems to recognize, and we agree, that his entire law suit is predicated on a breach of warranty by appellee in the contractual sale of the combine. At page 35 of appellant’s brief he states:
“It must be kept in mind that the 12 SP Case Combine that is the subject of this action was sold with a Avarranty and guarantee on the part of appellee.”
Appellee, in its verified answer to the complaint, specifically denied that any Avarranties of any kind were ever made in connection with the purchase of the combine as alleged by the appellant. Even if appellee had admitted all the other facts requested by appellant, there Avould have been no substantial evidence upon which the court could have rendered judgment for the appellant for breach of warranty.
Appellant cites Hambrick v. Peoples Mercantile & Implement Co., 228 Ark. 1021, 311 S. W. 2d 785, in support of the Avarranties he alleged. The Hambrick case is very much in point Avith the case at bar but sustains appellee’s contention that there were no warranties, rather than appellant’s contention that there were war ranties. The Ilambrick case involved the sale of a used cotton picker. The contract contained express warranties on new machines and merely stated that the warranties on the new machines did not apply to used machines. Thus, since the express warranty in the Ilambrick contract did not apply to used machines, the used cotton picker was left subject only to such warranties as the law implies as to fitness for the purpose it was sold. The last paragraph of the Ilambrick decision clearly distinguishes it from the case at bar. In referring to the seller who prepared the Ilambrick contract, in the last paragraph of that decision we said:
“It [the seller] failed to insert a declaration that there should be no warranty of second-hand goods and instead contented itself with the statement that such goods should not carry the warranty applicable to new machines. We therefore conclude that the implied warranty which the appellants sought to prove was not excluded by the agreement.”
The exact wording of the contract in the Ilambrick case is as follows: “This warranty does not apply to used or secondhand goods,” (emphasis supplied) whereas in the case,,at bar the language of the contract states affirmatively: “Seller makes no warranty ^.including the implied warranty of merchantability and fitness) or representation, expressed or implied, and disclaims all obligations and liabilities whatsoever, as to: .. . any second band goods.” (Emphasis supplied). The other warranty provisions of the contract in the case at bar, quoted supra, are so clear and unambiguous nothing would be accomplished by restating them here.
The appellant alleged warranties and their breach by the appellee. The appellee, by verified answer, denied the existence of warranties and affirmatively disclaimed all obligations and liabilities whatsoever as to this second-hand Case combine. The burden was on the appellant to prove the existence of the warranties he alleged, as well as their breach by the appellee, and this the appellant failed to do. As a matter of fact in order for appellant to have proved warranties in this case, it wonld have been necessary for him to have disproved the written terms of the contract he relied on. Appellant not only failed to prove the warranties and their breach by the appellee, as alleged in his complaint, he refused to even attempt to do so.
The judgment of the trial court is affirmed. | [
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J. Fred Jones, Justice.
This is an appeal from a Criminal Procedure Rule 1 hearing denying appellant release from the Arkansas penitentiary.
The appellant, Jimmy Blake, is sixteen years of age, has less than a fifth grade education, and is one of ten children whose father does common labor at a min and whose mother works in a laundry.
Appellant’s first brush with the law came in 1965, when he was sent to the Boy’s Industrial School from Woodruff County Juvenile Court. The instant appeal involves three cases in the White County Circuit Court.
In July 1966, in case number 2132, appellant was charged with burglary, petit larceny, and car theft. At the Rule 1 hearing, appellant testified that he could not read or write, but that he made a statement to the officers when he was arrested on these charges, and that he signed a statement, that about three weeks later an attorney was appointed to represent him, and that he entered a plea of guilty because he felt that he would not “get as much time” on a plea of guilty. Appellant was sentenced to the penitentiary for two years on the burglary charge and five years on the grand larceny charge (car theft). These sentences were suspended and appellant was sent to the Boy’s Industrial School where he remained for four months, after which he ran away. He was captured the following day and returned to the Industrial School and about three weeks later he escaped again.
During this absence from the Industrial School in January 1967, he was arrested and charged in case number 2142 with five counts each of burglary and petit larceny and two counts of grand larceny. Appellant made an oral statement to the arresting officers admitting his guilt to these charges and by appointed counsel, he entered a plea of guilty at his trial. He was sentenced to ten years on each of the five counts of burglary, sentences to run concurrently. The sentences were again suspended and appellant was again returned to the Boy’s Industrial School, from which he escaped again after about three weeks.
"While absent from the Industrial School this time, appellant was arrested in March 1967, and charged in case number 2151 with burglary, grand larceny, and petit larceny. Once again he made an oral statement to the arresting officers and pleaded guilty by appointed counsel. He received a sentence of two years on each of two counts of burglary and one year on grand larceny, sentences to run consecutive to each other and consecutive to the sentences in cases number 2132 and 2142. This sentence in case number 2151 was suspended, but the suspension of sentence in eases number 2132 and 2142 was revoked and appellant was sent to the penitentiary. Thus, at present, appellant is serving 17 years as sentenced in 2132 and 2142, and has five years suspension remaining in case number 2151.
In July 1967, appellant testified at his Bule 1 hearing where he was represented by appointed counsel. From the petition, the testimony of appellant, the testimony of the sheriff of "White County, and the testimony of the counsel appointed for appellant in his prior trials, together with all matters appearing of record, including the docket sheets and files in the circuit clerk’s office, and after argument of counsel, the trial court denied relief, from which this appeal is brought. For reversal, appellant relies upon five points:
“1. Appellant was not advised of his right to counsel and his right to remain silent during his interrogations. He could not have made an intelligent waiver of these rights.
2. Appellant did not have the services of an attorney prior to his conviction in Case No. 2132.
3. Appellant did not have assistance of counsel at the critical stages of the proceedings against him in Cases No. 2142 and No. 2151. He did not have the effective benefit of counsel after counsel was appointed in Case No. 2142 and Case No. 2151.
4. Appellant was promised shorter sentences in Case No. 2142 and Case No. 2151 in return for a guilty plea. Appellant did not know the full consequences of his guilty plea in Case No. 2151.
5. Appellant’s sentence to the Arkansas State Penitentiary constitutes cruel and. unusual punishment within the meaning and spirit of the Eighth Amendment to the United States Constitution.”
As to the first point argued by appellant, we find no merit. Though appellant denies being advised of his rights, the trial court found, and the sheriff of White County who arrested appellant testified, that appellant was advised of his rights on . each occasion and that appellant was not interrogated, but always talked freely and was cooperative. The sheriff also testified that appellant usually had the stolen items with him, indicating that there was no need for a confession. The cases of Meeks v. State 239 Ark. 1066, 396 S. W. 2d 306; Swagger v. State, 227 Ark. 45, 296 S. W. 2d 204, and Johnson v. Zerbst, 304 U. S. 458, 59 S. Ct. 1019, 82 L. Ed. 1461, relied upon by appellant on the issue of intelligent waiver, are not applicable here. These cases were reversed when the defendant went to trial and pleaded guilty without the aid of counsel and without an intelligent waiver of counsel. The appellant in the case at bar was represented by counsel prior to his guilty plea. Appellant’s reliance on Miranaa v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, and Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, is to no avail here, as appellant pleaded guilty in all three cases, and thus, the confessions were never used against him. In Roach v. Bennett, Warden, 148 N. W. 2d 488 (Iowa 1967), where the defendant made admissions and gave statements as to his guilt during the first two days of his detention without being advised of his right to counsel, but had counsel at the time of his plea of guilty in open court, the Supreme Court of Iowa, in habeas corpus proceedings, held:
“Since statements allegedly given were not introduced or considered in a trial, the rights announced in Escobedo and Miranda could not have been violated. ’ ’
Appellant s second point is also without merit. We agree that the docket entry does not reflect that appellant had counsel in case number 2132 and that it is not shown in the record who that counsel was, but the appellant himself testified on direct and on cross-examination that counsel was appointed for him in that case about three weeks after his arrest, and that the counsel was present in the court room when he entered a plea of guilty. The trial court found as a fact that appellant had counsel in all three eases and this is supported by the evidence.
Appellant’s third point is also to no avail. As to the issue of whether he had counsel at the critical stages, we reiterate our holding, supra, that Escobedo and Miranda ,do not apply where the confession is not considered or introduced against the defendant in á trial. On the issue of whether appellant had effective benefit of counsel after counsel was appointed, the record shows that attorneys were appointed for appellant on the same date as his plea of guilty was made and sentence pronounced. We agree that under the facts and circumstances of a particular case, this might amount to a failure of effective benefit of counsel, but we do not agree that this is the situation here. The attorneys in the prior cases testified that they discussed the respective cases with the appellant, his parents, the prosecutor, and the. court in chambers; that they felt that they did what was best for appellant; that they fully explained the charges to the appellant and his parents, and that appellant and his family were satisfied that a guilty plea was best. Under these facts and circumstances, we cannot see where advice to plead guilty would not be effective benefit of counsel, even if the attorney felt that the appellant’s confession would be inadmissible.
We find no merit in the fourth point relied upon by appellant. While appellant testified that the sheriff and appellant’s attorneys promised him.a certain sentence if he would plead guilty, the record indicates that the. attorneys and prosecutor only stated that, in their opinion and with their recommendations to the court, appellant would get a shorter sentence or be sent to the Boy’s Industrial School on a plea of guilty. The sheriff, in his testimony, flatly denied that he advised appellant to plead guilty or that appellant would receive a certain sentence for a plea of guilty. The trial court found against appellant on this issue and this finding of fact is supported by the evidence.
Appellant also contends that he did not know the full consequences of his guilty plea in case number 2151. His attorney in that case testified that appellant and his parents clearly understood the consequences of appellant’s guilty plea and he (the attorney) took notes concerning this. The trial court found that appellant knew the full consequences of his plea and this is supported by sufficient evidence.
We cannot agree with the appellant as to his fifth assignment of error. There is no contention by appellant that any of the sentences he received are more than the maximum called for by our criminal code. He merely argues that the cumulative effect of the sentences constitutes cruel and unusual punishment in his case, considering his age, education, etc. We feel that the trial court could and did consider the number of times appellant has been sent to the Boy’s Industrial School, the great number of criminal offenses he has committed, how many sentences have been suspended, and how many opportunities appellant has had to stay out of the penitentiary. The fact that the punishment authorized is severe does not make it cruel or unusual. Johnson v. State, 214 Ark. 902, 218 S. W. 2d 687. It is within the power of the legislature to classify crimes and determine punishment for violation of such classifications. After such punishment is set, and until it is declared unconstitutional, no sentence under it can be regarded as cruel or unusual. Hadley v. State, 196 Ark. 307, 117 S. W. 2d 352. We do not find the sentence in the present case to result from passion or prejudice, exceed the statutory limits, or to be cruel and unusual. Furthermore, we have on many occasions held that the suspension of a sentence rests in the sound discretion of the trial court and that the sufficiency of the evidence for revocation of such suspension also lies within the sound discretion of the trial court. See Smith v. State, 241 Ark. 958, 411 S. W. 2d 510, and Kinard v. City of Conway, 241 Ark. 255, 407 S. W. 2d 382. No abuse of that discretion has been shown in the case at bar.
We agree with the trial court that appellant’s petition is without merit.
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Carleton Harris, Chief Justice.
This is one of the most unusual murder cases to come before this court. J. H. Maroney, a resident of Bradley County, Arkansas, and familiarly known in the neighborhood as “Junior” Maroney, was slain, at home in his bed, between the hours of 1:00 A.M. and 3:00 A.M. on March 30, 1967. His death was caused by a fatal bullet wound in the left side of his head, the bullet having been fired from a small caliber weapon, apparently a .22 rifle. The rifle belonged to Maroney. After an investigation of over a month, appellant, James Bay Ederington, at that time 16 years/ of age, was arrested, and charged with the murder. The case proceeded to trial on July 19, 1967, and concluded on July 22, at which time the jury found Eder-ington guilty of the crime of murder in the second degree, and fixed his sentence at 35 years imprisonment in the State Penitentiary. On August 1, the motion for new trial was denied, and, from the judgment entered in accordance with the jury verdict, appellant brings this appeal. Several points are raised for reversal, the first being that the evidence was insufficient to justify the conviction.
The evidence reflects that Maroney, with his wife and children, lived a few miles south of Banks, Arkansas, there being a number of other families living in the general area, which was known as the Lanark community. The nearest neighbors were Mr. and Mrs. Sam Or-mand, who lived about 400 yards from the Maroney home. About 3:00 A.M. on the morning of March 30, Glenda Maroney, 15-year-old daughter of Junior Ma-roney, rode her bicycle to the Ormand home and notified Ormand that her father had been shot. She requested that a doctor be called. Ormand hurriedly dressed, got in his truck, and drove to the Maroney house. Or-mand went into the home, but did not go into the back bedroom where the body of Maroney had been found. He was not armed: “Well, there wasn’t any light in there, and I just didn’t have the nerve to go on in there.” Ormand then left the house and drove to the home of Ed Green, who dressed and accompanied Or-mand back to the Maroney residence. They ascertained that Maroney was dead. There was no sign of disturbance in the room, and the men did not see anyone around the house. The back door was open, and the back screen was not hooked. O. B. Williams and Therman Williams, brothers, who live about 2% miles from the Maroney home, received notice of the shooting by telephone, and went to the house, where they found other neighbors, Mr. and Mrs. Callaway, Ormand and his wife, and Ed Greem After staying approximately an hour, they went to the home of Maxine Ederington, a widow with six children, who lived about a mile and a half to two miles from the Maroney house. Mrs. Ederington, who had been notified by Peggy Williams (wife of Therman Williams) via telephone about 3:15, of the shooting of Ma-roney, was awake, and the two men drank some coffee at her home. Mrs. Ederington left to go to the Maroney home, and, as she left, according to O. B. Williams, called out to her son, “Jimmy, get up and lock the door,” and he answered from the bedroom, “Well-urn.” The witness testified that he recognized the voice as that of Jimmy, appellant herein. Therman Williams was the first person to locate a .22 rifle (evidently the murder weapon), which was found lying on the ground about three or four feet from the side of Maroney’s truck, the vehicle being parked facing of the front of the house. The rifle was a .22 automatic made by Sears-Roebuck.
Sheriff John Cruce of Bradley County received notice of the shooting about 3:15 A.M., and, with his deputy, Harold Spraggins, proceeded to the Maroney home, arriving there about 3:40 A.M. A number of neighbors from the vicinity were present. During his investigation of the premises, the sheriff saw a box of .22 shells on the outer edge of the dash of the truck, which was taken and subsequently examined for finger prints. The rifle, which was covered with dew, was examined for finger prints, hut none were obtained because of the oily surface of the weapon. Blood was on the bed where Maroney was found, and there was a small hole back of his left ear, caused by the entry of the bullet. No other wounds were found. After the body was removed, the sheriff observed a .22 hull on the bed, which had apparently been under Maroney, and he took this as evidence. On the 31st, Deputy Spraggins went to the home of the Ederingtons, but appellant was in school; his mother took him to the sheriff’s office later, and Spraggins took his finger prints. The cartridge box and finger prints were sent to the F.B.I. laboratories in Washington.
Glenda Maroney, daughter of the deceased, and in the tenth grade at school," testified that she knew appellant well, and rode the same school bus with him each day to school. The families had visited back and forth many times. She testified that Jimmy came by her house on the 29th of March (when school was out for Easier holidays) to show her a fish he had caught in the Ma-roney pond, and he subsequently came back around noon, being brought to the Maroney home in an automobile by another boy, Barney Ross. Glenda was making icing to go on a cake, and asked Jimmy to stir it while she went to the store. Her little sister and brother were there at the time, and when she returned from the store, Jimmy had left, Ross having returned and picked him up. During this time, Junior Maroney was over in the field putting out soda. Glenda stated that she retired for bed on the night of the 29th around 10:00 o’clock, sleeping in the front bedroom with her little sister, Cathy. Her young brother slept in the middle bedroom, and her father slept in the back bedroom. This was where Junior Maroney customarily slept, together with his wife. Glenda said that she was awakened around 1:00 A.M. by the honking of a horn, and she called her father, and told him that someone was out front, obtained his house shoes for him, and he went outside. She heard the callers discussing the fact that they wanted gasoline, and she then went on back to sleep. The witness continued :
“I woke up around 3:00 o’clock and I saw this figure standing at the foot of my bed and I called my daddy. I called him about twice and he just didn’t answer and I got scared. He walked on back through the house and I got up and turned the light on and I saw these glasses laying on the dresser in my room and I knew that no one in our house wore glasses. I knew someone was in there and I went in and turned the light on in my little brother’s room. I stood there beside the door and there was blood all over my daddy’s pillow and I called his name and I heard this rattling noise in the kitchen and I called and he didn’t answer me and so I ran out on the front porch and * * *
“I hollered for Mrs. Ormand two or three times and then I ran out and hopped on my bicycle and ran up there. I was screaming all the way up there and I told them that something had happened to daddy and I told them that I thought he had been shot and I told them to get his gun, get his gun, and I told him to be sure and get those glasses. I hadn’t thought about picking the glasses up until I got up there to Mr. Sam’s.”
When asked if she could identify the person standing at the foot of her bed, she replied that it was “«James Ray Ederington.” This identification was first given to the sheriff on the night following the day of her father’s funeral, which was held on March 31:
“I told him it was Jimmy. I told him about Jimmy’s actions and Jimmy’s motions. That was what made me think it was Jimmy — what made me know it was Jimmy.
“His manner and I saw those glasses and I knew they were his glasses when I turned the light on. When I saw him, doing like that (Witness motions with her head) I knew it was him. Nobody I know does that.
“And the way he walked. He drags his feet when he walks.”
She added:
“I saw him. I just saw him and know.”
When interrogated as to why she did not immediately tell who was in the room, she replied that she was afraid to do so, and she said that the sheriff told her that it would be better if she “didn’t go around” telling that she knew who it was, and he had said that her life was in danger. Admittedly, she had told some persons that she did not know who it was. From the testimony:
“Q. What did you tell the people in the community there? A. I told people I didn’t know who it was, except people who needed to know. Q. What did you tell them? A. I told them that it was Jimmy. Q. What did you tell the people in the community there about who you thought it was? A. I told them that when I realized it wasn’t my daddy, he done like this (Witness indicates a motion of the head), and I’ve seen him do that a thousand times. Q. Is that what you told the people in the community? A. Yes, sir, the ones I thought should know. Q. The ones you thought shouldn’t know, what did you tell them? A. I didn’t tell them anything. I told them that I didn’t know who it was, it could have been a Negro or white person. I told them I didn’t know anything. Q. Do yon know who yon told that to? A. Just about everybody, except Mr. Qrmand, my mother, Margaret Williams, the law officials.”
After Ederington was arrested, he was placed in a cell with a prisoner named Herbert Chambers. Another prisoner, Albert Walker, was also with them a part of the time. Chambers testified that he was told by the sheriff that Ederington might say something about the crime with which he was charged, and the sheriff directed Chambers to give him (the sheriff) any information that might be acquired. The witness stated that Ed-erington first said that he did not kill Maroney, later said that he did kill him, and then subsequently, again denied committing the crime.
John F. Walters of Washington, D. C., a finger print examiner with the Federal Bureau of Investigation, with nearly 20 years’ experience, testified that there was one latent print of value on the .22 cartridge box which had been found in the truck (a thumb print), and he said that this print, and the thumb print which had been taken when Ederington was fingerprinted, were made by the same individual.
Harold Spraggins (the deputy sheriff) testified that the rifle was loaded with 12 cartridges when he took it back to the sheriff’s office; that it would hold a total of 16 cartridges. He explained tests that had been made, and stated that the hull of the cartridge, which had been found on Maroney’s bed was fired from the rifle found by the side of the truck. The witness also said that he found nothing disturbed in the death room; that Maroney’s wallet was in his pants pocket, the pants lying on the table beside the bed; he found $97.00 in the wallet; he was unable to detect any sign' that anyone had tried to break into the house.
G. 0. Runnels, a doctor employed by the State Hospital, testified that Ederington had been examined by the staff, and that appellant had been found to be “without psychosis.”
Appellant testified that he was a good friend of Junior Maroney, and that he had gone fishing, hunting, and on other outings with the deceased. He said that Maroney treated him kindly, had never fussed at him, and he had never had any trouble at all with Maroney. The witness said that he fished at Maroney’s pond on March 29, went to the house and helped Glenda with icing the cake, and he stated that he went to bed at his home about 10:00 P.M. Appellant was awakened by the telephone ringing, at which time his mother was advised that Maroney had been shot; he was in the house when Williams arrived, and answered her when his mother left to go to the Maroney’s and told him to lock the doors. He denied ever stating to Chambers that he had killed Maroney.
Captain L. E. Gwyn, a veteran of 20 years’ service with the Arkansas State Police, testified that he conducted two polygraph examinations of Ederington, who had agreed to take the test. When asked if he knew anything concerning the death of Maroney, or if he was at the house when Maroney was shot, appellant answered, “No.” Mrs. Ederington was also examined, and was asked if she knew who has shot Maroney; she answered: “No.” Gwyn testified that the chart revealed that the answer from Mrs. Ederington was very clearly the truth, but he was unable to interpret the chart made on Ederington himself, because he (Gwyn) “was never able to get him [appellant] in the proper frame of mind.” The officer said Ederington did not refuse to answer any of the questions, nor did he hesitate in giving answers, but the tests were inconclusive. He could not say that appellant was telling the truth, nor could he say that appellant was not telling the truth.
Both Mrs. Ederington and her eldest daughter, Linda, testified that Glenda had told them that she had no idea of the identification of the person that she saw in the room, and appellant’s sister said that Glenda remarked, “Linda, I don’t know if it was black or white.” Cathy Ederington, a younger sister, testified that her brother was at home when she went to bed about 9:30, and that he got up from bed when the telephone call came in the early hours of the morning.
Summarizing the evidence from the standpoint of the state, Ederington was identified by Glenda Maroney as the intruder in the Maroney home on the night of the murder, and very close to the time that the killing took place. She also testified that Ederington’s glasses were lying on the dresser. The .22 caliber rifle was identified as the murder weapon, and the box of shells contained appellant’s right thumb print. Herbert Chambers testified that Ederington said that he had killed Maroney, though before making the statement, and after making it, he also denied any implication in the murder. This evidence, if believed by the jury, was sufficient to sustain the conviction. It is true that no motive was shown, but we have held several times that it is not necessary for the state to prove a motive in order to properly obtain a conviction for homicide. Prewitt v. State, 150 Ark. 279, and cases cited therein.
This question of motive brings us to another asserted error. During the Prosecuting Attorney’s cross-examination of appellant, Ederington was asked:
“Jimmy, at the time you got out of the car late in the evening on March 29, did you or did you not make a remark to Barney that you would like to have sexual relations with Glenda?”
Appellant replied, “No, sir.”
After the defense had closed its case, the state placed Barney Boss on the stand, and asked that he recall the events of March 29, late in the evening, when he and Ederington had returned from Monticello. The record then discloses the following:
“MR. WYNNE:
Q. At the time you dropped Jimmy off at around 6:0O or 6:30, near the Maroney home, did Jimmy make any comment to you that referred to his desire to have sexual relations with Glenda?
A. Yes, sir.
MR. GIBSON: I object.
COURT: Ask what he might have said.
MR. WYNNE:
Q. What did Jimmy say to you?
A. Well — (Witness hesitates)
(Discussion at the Bench, off the record)
THEREUPON,
MR. GIBSON: Show my objections and exceptions.
MR. WYNNE:
Q. Did the Defendant state to you words to the effect that he’d like to have sexual intercourse with Glenda?
A. Yes, sir.
MR. GIBSON: Note my objections and exceptions.”
Appellant argues that this was prejudicial and reversible error, but we do not agree. The record does not reflect that this alleged error was brought forth in the motion for new trial, but even so, we would find no merit in the contention. Let it be remembered that this alleged statement was made late in the afternoon, approximately eight hours before the death of Maroney, and we think the evidence goes to the question of why appellant was allegedly in the Maroney home, and in Glenda’s bedroom. For that reason, we think it was admissible. In Sullivan v. State, 171 Ark. 768, 286 S. W. 939, quoting 13 R. C. L., 910, § 214, this court said:
“* * * ‘Where the purpose of evidence is to disclose a motive for the killing, the courts are very liberal in permitting its introduction, and anything and everything that might have influenced the prisoner to commit the act may, as a rule, be shown.’ Many cases are cited in the note to sustain the text.
“See also 30 C. J. 179, § 406, and Stokes v. State, 71 Ark. 113, and at p. 117, 71 S. W. 248, where we quoted from Mr. Wills on Circumstantial Evidence as follows: ‘It is indispensable, in the investigation of imputed guilt, to look at all the surrounding circumstances which connect the actor with other persons and things, and may have operated as motives and influenced his actions.’ ”
Likewise, during the cross-examination of appellant, the Prosecuting Attorney asked:
“Q. Jimmy, have you ever made the statement that you were going to bash Sam Ormand’s brains in when you got out of jail?
ME. GIBSON: I object. It’s not related to the crime which is charged against the Defendant and is not material and is prejudicial.
(Thereupon, at the Bench, in undertones, for the record, the following proceedings were had:)
ME. WYNNE: Sam Ormand was the first person to go to the house and discovered the body. This Defendant has been heard to make the statement that he was going to bash this man’s brains in if he got out of jail. It is certainly material. Sam Ormand is a material witness.
He denied it and that’s his privilege.
ME. GIBSON: That’s something that happened after the man was arrested and certainly could not add to the jury’s competent evidence. It does not relate to the crime and is prejudicial.
COUET: Objection overruled.
ME. GIBSON: Note our exceptions.”
Appellant answered the question, “No.” After the defense had rested, the state placed Deputy Spraggins back on the witness stand, and asked the following question, “Now, Mr. Spraggins, in your dealings with this Defendant, have you heard him make the remark that he’d like to bash in the brains of Sam Ormand?” The witness answered that he had heard appellant make the remark two or more, possibly three times. The question was objected to before it was answered, and exceptions were noted to the court’s action in overruling the objection. The state contends that this evidence was admissible as a matter of showing appellant’s knowledge, intent, or design. From the brief:
“* * * When the appellant denied making the statement then the State had the right to call a witness in rebuttal to impeach him with prior statements. It was purely testimony concerning acts of a similar nature at about the same time tending to show intent, motive and design which is clearly admissible.”
We do not agree that this testimony was competent. This was entirely a collateral matter, having absolutely nothing to do with the crime with which Ederington was charged. The alleged statement was made some time subsequent to the murder, and apparently while appellant was in jail. It was not an act of a similar nature— it did not happen at about the same time as the killing —and we are unable to see how a statement referring to Ormand throws any light upon the intent or motive for the murder of Maroney. In fact, the only thing the evidence could possibly show was that Ederington was a vicious and violent person — which might have been what the state was endeavoring to show — but it is clearly inadmissible. This testimony would not even have been proper as a matter of impeaching appellant’s credibility, although the question asked appellant on cross-examination was permissible, as a matter of testing-credibility. However, when Ederington answered, “No,” that should have concluded that particular matter. Wright v. State, 243 Ark. 221, 419 S. W. 2d 320.
The court limited neither the question asked, nor the rebuttal testimony of Spraggins, to the matter of credibility. However, we emphasize that this rebuttal evidence offered by Spraggins was inadmissible on all grounds. In Tullis v. State, 162 Ark. 116, 257 S. W. 380, we said:
“* * * The court properly permitted the question to be asked solely for the purpose of testing the credibility of Jewell Tullis. Jewell Tullis answered that she had not made the statements attributed to her, and this should have ended the matter. The court erred in allowing the State to contradict Jewell Tullis by the testimony of Beatrice Norwood, as stated above. A party cannot examine a witness as to collateral matters and then impeach him by proof of contradictory statements.”
In McAlister v. State, 99 Ark. 604, 139 S. W. 684, this court said:
. “ ‘Great latitude is allowed in the cross-examination of a witness touching his residence, occupation and habits, so as to reflect light upon his credibility, and specific acts of immorality may be thus elicited which could not be proved by other impeaching witnesses. ’ But, while it was proper to permit the witness to be asked as to specific acts involving moral turpitude affecting his credibility as a witness, it was error to permit the State to call Dr. Wall for the purpose of contradiction. ‘Where a witness is cross-examined as to a particular act of misconduct relevant to his character for truth but disconnected with the cause on trial, the cross examining party is bound by the answer.’ 7 Encyclopedia of Evidence, page 180, and cases cited.
“ ‘In order to avoid an interminable multiplicity of issues, it is a settled rule of practice that when a witness is cross examined on a matter collateral to the issues he cannot, as to his answer, be subsequently contradicted by the party putting the question. The test of whether a fact inquired of on cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as part of his case, tending to establish his plea.’ ”
The answer, in the present case, to this last question in the citation, is an obvious “No.” Numerous other cases hold in the same manner.
While, in Tullís and McAlister, the questions (which brought on the rebuttal testimony) were asked of a witness (rather than a defendant), the same rules of evidence applicable to impeachment of a witness apply where a defendant takes the witness stand in his own behalf. Castle v. State, 229 Ark. 478, 316 S. W. 2d 701.
We also agree with appellant that the court erred in permitting Margaret Williams, described by Glenda Maroney as her best friend, to testify in rebuttal that Glenda had told the witness early on the morning of her father’s death that she recognized Jimmy Edering-ton as the intruder in her room. The state offered this evidence supposedly as a matter of rebutting the testimony of Captain Gwyn, who had given Glenda a polygraph examination, and had testified that her answer to the question of whether she recognized the intruder had been “No.”
Evidence of Miss Williams was inadmissible. In the first place, it was not even proper rebuttal of the testimony of Captain Gwyn. A rebuttal of the testimony of the officer would have been to the effect that Glenda did not answer, “No,” to his question. However, it was undisputed that this answer was given. At any rate, the evidence was inadmissible, even as an extra-judicial identification. In the case of Burks v. State, 78 Ark. 271, 93 S. W. 983, Burks was convicted of the crime of assault with intent to kill. The prosecuting witness, W. W. Reiblin, the party upon whom the assault was alleged to have been made, testified that Burks was one of his assailants. He was asked by defendant’s counsel if he had not on other occasions stated that he did not recognize the persons who assaulted him. Reiblin denied that this had been done. Witnesses were introduced who testified that Reiblin had made such statements. The court then permitted the state, over the objection of Burks, to offer evidence that Reiblin stated to a witness, a few hours after the assault, that he recognized Burks as one of the assaulting parties. Justice McCulloch, writing for the court, said:
“The question is therefore presented whether or not, where a witness has denied having made a statement contradictory of those made upon the witness stand, and proof is introduced tending to establish such contradictory statements, former statements of the witness consistent with those made by him upon the stand are admissible in support of his testimony.”
This court held that the trial court erred in permitting the state to offer this testimony, and reversed the judgment, stating:
“After all, the effect of proof of previous consistent statements could only be to corroborate the statement of the witness under oath by his own words uttered on another occasion. It would add nothing to his statement upon the witness stand, either as to his testimony on the main issue, or as to his denial of the contradiction. We are of the opinion that the admission of the testimony by the court was improper and prejudicial, and should not have been allowed.”
We are of the view that the error in both instances, L e., the testimony of Spraggins relative to statements of the defendant about Ormand, and the admission of the testimony of Margaret Williams, constituted reversible error. This would he particularly true with reference to the Spraggins testimony, which had no connection whatsoever with the offense charged. In Shaddox v. State, 243 Ark. 55, 418 S. W. 2d 780, quoting from an earlier case, we said:
“In the case under consideration, as in most situations of this nature, we cannot say with certainty that the jurors were prejudiced by the reference to the ‘rap sheet,’ but we are less sure that they were not. Definitely the manner in which the reference was made was improper, and it left open to the jury a broad field of speculation as to appellant’s character and possibly his criminal record.”
The rule was stated in Crosby v. State, 154 Ark. 20, 241 S. W. 380, as follows:
“Where the effect of an erroneous instruction or ruling of the trial court might result in prejudice, the rule is that the judgment must be reversed on account of such ruling, unless it affirmatively appears that there was no prejudice. No such showing is reflected by this record. ’ ’
Two other matters are urged as points for reversal, one relating to the fact that one of the members of the jury was married to the sister of the sheriff’s wife, and the other relating to evidence which the defense contends was suppressed. This last refers to the fact that blood was also found upon the bed in the middle bedroom. Inasmuch as the first error is not likely to occur again, and appellant is now thoroughly acquainted with all of the evidence obtained by the sheriff, there is no need to discuss whether these points have merit.
Because of the two errors committed, and herein pointed out, the judgment is reversed, and the cause is remanded to the Bradley County Circuit Court.
Mrs. Maroney was not at home, but was in Little Rock studying for the Poverty Program. Two smaller children, a 4-year-old girl and an 8-year-old boy were in bed in separate rooms.
Mrs. Ederington did not accompany the Williams brothers, but drove on ahead of them.
No one was ever able to testify whether the rifle had been placed on the ground by the truck, or had been dropped.
Subsequent investigation revealed that a minister, Melvin Early, who had been attending a revival meeting at Hamburg, accompanied by Ovelett Gannaway, stopped to buy the gasoline. Early testified that in pulling up to the Maroney house, he parked his car close to Maroney's truck, and noticed the .22 rifle, heretofore mentioned, in the truck. Ovelett Gannaway, who had known Ma-roney all of his life, and had suggested stopping at Maroney’s place for gasoline, testified that it was three minutes until 1:00 o’clock when they stopped at his house.
There is no testimony that anyone heard a shot fired.
Ederington, when later placed on the witness stand, testified that he had been fishing the day before the murder in the Ma-roney’s fish pond, and had asked to borrow a particular bait from Maroney; that he was told that the bait was probably in the truck, and in looking for the bait, he picked up the cartridge box.
During cross-examination of this witness, he stated that there is a trail that leads from his house to the Maroney house through the woods, but he did not know if it was any shorter than the regular route. “I go that way a good bit.”
Coroner Frazier testified that, in his opinion, Maroney died about 2:30 A.M.
Although several persons looked for the glasses, they were never found. It is not clear whether it was thought that the intruder had returned and taken the glasses when Glenda ran from the house. Ederington was not interrogated along this line, i. e., he was not asked if he still had the same glasses he was wearing on March 29th, etc.
In Billings v. State, 52 Ark. 303, 12 S. W. 574, this court discussed the question rather fully, as follows:
“The general rule is well established, in civil as well as in criminal cases, that evidence shall be confined to the issue. It seems that the necessity for the enforcement of the rule is stronger in criminal cases. The facts laid before the jury should consist ex clusively of the transaction that forms the subject of the indictment, and matters relating thereto. To enlarge the scope of the investigation beyond this would subject the defendant to the dangers of surprise against which no foresight might prepare and no innocence defend. Under this rule it is generally improper to introduce evidence of other offenses; but if facts bear upon the offense charged, they may be proven, although they disclose some other offense. The test of admissibility is the connection of the facts offered, with the subject charged. Such connection exists in a variety of cases, and in them it is often proper to prove one offense in a trial for another. The Supreme Court of Alabama has indicated several classes of cases in which this may be done, as follows: First, when necessary to prove the scienter of guilty knowledge, which is an element of the offense charged; second, when the offense charged and the offense proved are so connected that they form part of one transaction; third, when the act proved and the offense charged are similar, and the one tends to fix the intent in the other; fourth, when it is necessary to prove a motive for the offense charged, and there is an apparent relation or connection between it and the other acts proved; and again when it tends to prove the identity of the offender or of an instrument used.”
In her testimony, Glenda stated that she had made a mistake, and that the answer was inadvertently given because she was nervous and upset in taking the test. | [
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George Rose Smith, Justice.
In October, 1965, Johnston sold to Parker a vending-machine business that Johnston had been operating in Cleburne county. The purchaser made a down payment of $20,000 and executed a monthly-installment note and a security agreement for the unpaid balance of $22,000. Within about six months Parker refused to make any further payments on the debt. Johnston brought this foreclosure suit to enforce the contract. By counterclaim Parker asked for rescission and consequential damages. This appeal is from a decree granting relief to Johnston and rejecting Parker’s counterclaim.
We can materially compress our discussion of the issues by explaining at the outset the posture of the case as it reaches us. At the trial Johnston rested after having made a prima facie case by introducing the note and security agreement and proving the amount due. Parker then introduced a great deal of testimony to establish his right to a rescission, for fraud. At that point counsel for the plaintiff asked that the counterclaim be dismissed, “because they have not established, by any clear, convincing proof, any misrepresentation of a material fact, any right to rely. . .” The chancellor, over the defendant’s objections, sustained the motion to dismiss the counterclaim, which ended the trial.
As the case now stands our discussion of the issues must be prefaced by two observations. First, fraud such as that asserted by Parker need not be established by clear and convincing evidence; a preponderance of the proof suffices. That point was fully discussed and settled beyond any possibility of doubt in Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256 (1963). ¡Secondly, under our decision in Carrick v. Gorman, 232 Ark. 729, 340 S. W. 2d 377 (1960), the plaintiff, at the stage of the case that was reached below, is not entitled to test the counterclaimant’s proof by a demurrer to evidence. Such an attempt, when sustained by the chancellor, waives the plaintiff’s right to adduce additional proof and brings the case to us for final trial de novo on the record made below. Hence in the case at bar Parker’s proof, except for its own inherent weaknesses or contradictions, is substantially undisputed.
In September of 1965- Parker, a resident of California, came to Arkansas to visit a wartime friend and look for a ranch near Heber Springs, where excellent hunting and fishing are to be had. The real estate agents that Parker consulted did not have a suitable ranch for sale, but they interested Parker in Johnston’s vending-machine business, which Johnston had listed with them a few days earlier.
Negotiations were conducted from time to time over a period of more than a month. The vending-machine business consisted essentially of 33 juke boxes, 22- pinball machines, and 38 cigarette machines. Most of the machines were on location in cafes and other places; the rest were in a warehouse. Johnston represented the. value of the machines to be equal to the $42,000 purchase price. According to the record, the machines were actually worth not more than ' $18,000 (less than the down payment) and perhaps as little as $5,000. Some of the machines were demonstrably worthless, such as 10-year-old juke boxes that would play only 78-rpm records, which are no longer made.
The prospective income from the business was of paramount concern to Parker. The 36 monthly principal payments were to be $668.68 each. Parker explained to Johnston that he knew nothing about the business and that he was relying on Johnston for correct information. According to the undisputed testimony of four witnesses — Parker and three of the real estate agents— Johnston assured Parker that the business would produce a net income of $1,200 to $1,600 during the summer months and ¡of not less than $1,000 a month during the rest of the year, so that the $22,000 debt would be paid off within about fifteen months.
Upon the proof before us no conclusion is possible except that the representations were false, were material, and were relied upon by Parker. During the six months that elapsed before Parker made the second of the ¡only two full-scale principal payments that he made, he was able to make a profit, above his expenses and depreciation, in only one month. The record indicates that the depreciation upon 93 secondhand machines, for which. Parker was to pay $42,000, must have been not far from the monthly allowance of $700 claimed by Parker as proper depreciation. "We have no hesitancy in saying that Parker clearly established his right to rescission under the principles announced in several recent cases. Clay v. Brand, supra; Miller v. Porter, 218 Ark. 841, 238 S. W. 2d 940 (1951); Kotz v. Rush, 218 Ark. 692, 238 S. W. 2d 634 (1951).
We have studied the appellee’s arguments for af-firmance, but they are not convincing. The contention that a purchaser is not entitled to rely upon the seller’s assurances about the past profits of a business, especially when the matter is peculiarly within the seller’s knowledge, was rejected in the Kotz case, supra. Here, just as in that case, Parker asked to see the seller’s records during the negotiations, but Johnston evaded the inquiry by saying that no records were available. We are not impressed by Johnston’s suggestion that Parker should have obtained Johnston’s past income tax returns by discovery procedure and introduced them, in evidence. As we have seen, Parker made a strong case for relief upon his counterclaim. If the missing tax returns would have supported Johnston’s assertions about past profits it was his duty to go forward with the evidence by producing them.
Finally, Parker did not waive his right to rescission by- making all or part of two principal payments, one on March 30 and the other on May 2, 1966. His continual complaints to Johnston were met by assurances that the business would pick up, if given time, Johnston had repeatedly said that the summer months — the resort season in the county — would be especially profitable. We realize, of course, that in many instances a buyer who deliberately continues to make installment payments with full knowledge of the seller’s misrepresentations may thereby waive his right to rescission. But here the issue is one of fact. Parker’s position is fully as strong as that of the purchasers in the Clay case, supra, who made three monthly payments before “they became convinced the water supply and sewage facilities were inadequate.” The Uniform Commercial Code recognizes the buyer’s right to revoke his acceptance of the goods under circumstances such as those present here. Ark. Stat. Ann. § 85-2-608 (Add. 1961). We cannot say that Parker slept on his rights.
The decree is reversed and the cause remanded for the entry of a decree rescinding the contract and restoring the parties to their original positions. We find no proof of consequential damages, which are denied. | [
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George Rose Smith, Justice.
This is a suit brought by the appellee, the duly elected recorder of the city of Manila, for a declaratory decree determining the validity of a 1967 ordinance by which the city attempted to reduce her salary during her term of office. The controlling issue is whether Act 124 of 1961 (a) merely amended, a section of an 1875 statute on the subject, as Mrs. Downing contends, or (b) repealed it altogether, as the city contends. This appeal is from a declaratory decree upholding Mrs. Downing’s contention that the 1875 statute, as far as cities of the second class are concerned, is still in force.
Manila is a city of the second class. The parties agree that before the passage of Act 124 of 1961 the governing statute, applicable to cities of the first and second classes and to towns, was a portion (the 6th to 8th sentences) of § 86 of Act 1 of 1875, adopted on March 9, 1875, which read as follows:
“The emoluments of no officer whose election or appointment is required in this act, shall be increased or diminished during the term for which he shall have been elected or appointed. Nor shall any change of compensation affect any officer whose office shall be created by authority of this act, during his existing term, unless the office be abolished. No person, who shall have resigned or vacated any of fice, shall be eligible to the same during the period of time for which he was elected or appointed to serve, where, during the same time the emoluments have been increased.” Ark. 'Stat. Ann. § 19-907 (Repl. 1956).
The question for our decision is the extent to which the foregoing statute was amended or repealed by Act 124 of 1961, which we quote in full:
“AN ACT to Amend Act March 9, 1875, No. 1, Section 86 (6th to 8th Sentences), Page 1 [Ark. Stats. (1947) Sections 19-907]; to Permit Increase of Salaries of Municipal Officials During Their Terms.
“Be It Enacted by the General Assembly of the State of Arkansas:
“SECTION 1. Act March 9, 1875, No. 1, Section 86 (6th to 8th sentences), Page 1 [Ark. Stats. (1947) Sections 19-907] is amended to read as follows :
“ ‘The salaries of officials of first class cities may be increased but not decreased during the term for which such officials have been elected or appointed.’ ”
“APPROVED: February 22, 1961.” Ark. Stat. Ann. § 19-907 (Supp. 1967).
The city of Manila, citing Brockman v. Board of Directors of Jefferson County Bridge Dist., 188 Ark. 396, 66 S. W. 2d 619 (1933), insists that whenever a section of an existing statute is “amended to read as follows,” there is necessarily a repeal of any language in the earlier section that does not appear in the re-enactment.
That statement is usually true, but not always. Chief Justice McCulloch, in an opinion of great lucidity and persuasiveness, made the point in State ex rel. Atty. Gen. v. Trulock, 109 Ark. 556, 160 S. W. 516 (1913), that even an amending-to-read-as-follows statute will .not be construed to repeal omitted language in the earlier act if it clearly appears .that no such repeal was intended by the legislature. The solution to this problem of interpretation always depends upon the answer to. "that central question to which all other principles of statutory construction are secondary: What was the intention of the legislature?
Here, as in the Trulock case, it is too plain for argument that the legislature did not mean to repeal the earlier section in its entirety. The 1875 enactment applied to all cities and towns and provided comprehensively that the emoluments of specified officers should not be increased or diminished and, in effect, that that statutory prohibition could not be evaded by the officer’s resignation and reinstatement. By contrast, Act 124 of 1961 applies only to cities of the first class and simply declares, both in its title and in its text, that the salaries of officials in those cities may be increased but not decreased during their terms of office.
We find it impossible to believe that the members of the General Assembly, in approving Act 124, chose the single sentence in the body of that act as a roundabout way of saying not only that cities of the first class might increase but not diminish the compensation of their officers during their terms of office, but also that cities of the second class and incorporated towns should no longer be subject to the salutary prohibition against increasing or decreasing the salaries of their officers during their terms. We conclude, in harmony with the Trulock decision and the later cases that have followed it, that the 1961 act impliedly repealed the 1875 legislation only to the extent that the two are in conflict.
The appellants also argue that Act 124 is contrary to Article 5, § 23, of the Constitution, which provides that no law shall be revived or amended or the provisions thereof extended by reference to its title only. We find no violation of that provision, which, was intended to prohibit legislation drafted “in snch form that the legislator conld not determine what its provisions were from an inspection of it.” Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384 (1886). As we are interpreting-Act 124, it contained no hidden meaning not apparent on the face of the act.
This same objection was made to the statute that we upheld in the Trulock case, supra. Judge McCulloch fully answered the objection by pointing out that “under the construction we place upon [the later statute], no part of the old section is revived or extended, hut the part which is the subject of this controversy is, as we have already explained, left unamended. It is untouched by tbe amendatory statute, which is, as we have already said, only partial in its operation.” That language exactly fits the case at bar.
Affirmed.
HaRris, C. J., and Fog-lemaN, J., dissent. | [
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Lyle Brown, Justice.
Appellant Albert Harris received a death sentence in April 1963. That sentence was here affirmed in Trotter and Harris v. State, 237 Ark. 820, 377 S. W. 2d 14 (1964). Certiorari was denied by the United States Supreme Court. Shortly thereafter, Jackson v. Denno, 378 U. S. 368 (1964) held that Jackson’s case should be remanded because the same jury passed on both his guilt and the voluntariness of his confession. On the strength of that pronouncement in Denno-, Harris filed a petition in the United States District Court, alleging error because the record in his trial showed that the voluntariness of his alleged confessions, together with the question of guilt or innocence, were submitted to the same jury. Pursuant to the directive of the Federal Court, the State trial court conducted a hearing to determine the voluntariness of Harris’ oral admissions. Harris brings this appeal from an adverse ruling.
It is not necessary to reconstruct the entire case. The facts are detailed in our Trotter and Harris deci sion. We are here concerned with two rather brief instances in which Harris is alleged to have made admissions pointing to his guilt. The first episode occurred at his home just before daylight and about four hours after the rape. As a result of there being questioned by officers, Harris was placed under arrest for investigation and taken to the city jail in Monticello. About two hours later he was there questioned by Jerry Wilson, the escort of the rape victim, who went to the jail for the purpose of identifying the prisoner. For clarity the testimony concerning those two episodes will be discussed in sequence.
1. The Incident at the Harris Home. After apprehending Trotter, the officers received information that Harris and Trotter had been together that night. Two men were alleged to have committed the crime in concert. Sheriff Towler, State Patrolman Griffin, and City Officer Newton proceeded to Harris’ home in Monticello. They had no search warrant. Harris and his wife were in bed and the lights were out. After several knocks on the door the wife responded and the officers entered. There is considerable variance between Harris’ and the State’s version of the conversations and transactions.
Harris was his only witness at the Denno hearing. The essential parts of his testimony were as follows:
“That morning when they come to my house and knocked on the door, my wife opened the. door and they just came on in. Ain’t nobody asked them in. I was laying on the bed .... Lieutenant Griffin . . . said ‘nigger, get up out of that bed.’ I just got up and he had his hand in his coat pocket and I seen a pistol. The Sheriff told him that there ain’t going to be no rough stuff .... The Sheriff, he said he knew my wife, he said he’s been knowing her so many years and wanted to talk to us private. . .. We went back in the kitchen and closed the door. He said ‘Albert, you are in a bad fix.’ I said, ‘Mr. Jack, what do you mean by a bad fix?’ He said that Trotter said that me and him attacked Joyce Binns. ... He told me, ‘Trotter is a bad boy, he’s getting’ into trouble all the time.’ He said, ‘I can help you, but I can’t help him.’ ... I said, ‘I want to see an attorney.’ He said, ‘Well, you give me time and you’ll see one.’ He never advised me of no kind of rights at all. He told me, he said, ‘If you want any help, you got to cooperate with me.’ I said, ‘I don’t see why I have to cooperate with you when I haven’t done anything. I’ve been in bed with my wife.’ . . . He told my wife, ‘I’m going to take him down to the city hall and I’ll bring him right back.’ He said he was carrying me down for investigation. ... I haven’t seen no watch, no more than my wife’s watch. . . I didn’t have no watch in my wallet in the first place. ... I never admitted nothing to no one. ’ ’
On cross-examination Harris testified he was not struck; no one cursed him; the Sheriff did not speak disrespectfully; and the discussion was in normal tones.
The 'State offered as witnesses the three officers who went to the Harris home. The Sheriff’s version was that the wife, who answered the door, was advised that they wanted to talk to her husband and that she invited them in the house; the Sheriff had known Harris’ wife a number of years; Harris propped himself in bed and the Sheriff inquired where he had been during the night and with whom he came home; Harris replied that he had been to Dermott and had ridden back to Montieello with one Sonny Hall; the 'Sheriff asked to see the clothing he had worn during the night; Harris pointed to a pair of trousers on a hanger in the corner; inspection disclosed that they had not been recently worn; Harris was admonished to produce the right clothing; he got out of bed and started to the kitchen and the Sheriff and Harris’ wife followed; Harris picked up a pair of trousers from a table and handed them to the Sheriff; blood was observed on the fly of the pants; when the Sheriff took the pants he felt a billfold in the pocket with a “bulge” in it. The bulge proved to be a lady’s wristwatch. Harris’ wife stated that it was not her watch; at that point the Sheriff told Harris the presence of the watch required “some explaining”; the Sheriff told Harris “he didn’t have to tell me anything and that if he did it probably would be held against him in court”; Harris said he wás willing to tell him and explained that he received it from Orion 'Trotter; he admitted he was with Trotter at the time of the crime; that the two of them put Joyce Binns in Trotter’s car and drove away; he said he drove the car bnt denied having raped the girl; the Sheriff then opened the door and called in the other two officers; in their presence he again advised Harris of his rights and asked Harris if he would repeat his statement.
Officers Newton and Griffin corroborated the testimony of Sheriff Towler. Officer Newton’s testimony varied with that of Towler and Griffin with respect to Sheriff Towler having a private conference with Harris. Newton’s best recollection was to the effect that all present heard the first conversation; however, he conceded that the lapse of time (four years) conld have well affected his recollection of details. The only difference of note is that Sheriff Towler made no reference to suggesting to Harris that he could talk to a lawyer; on the other hand, the other two officers testified they heard the Sheriff so advised Harris.
2. The Incident at the City JaAl. After being questioned at his home, Harris was taken to the Monticello city jail at approximately six o’clock of the same morning. There Officer Newton was placed in charge of the prisoner. Harris testified the cell was comfortable and he was not abused.
Jerry Wilson, a college senior and escort of Miss Binns, was treated for injuries received in resisting her assailants and was discharged. He learned of Harris’ arrest in approximately two hours after Harris was jailed. Apparently on his own initiative he went to the jail to see if he could identify the accused. Jerry testified that he was admitted “reluctantly” by Officer Newton.
“. . . I looked through the door at the defendant Harris. I asked him had he ever seen me before. He said, ‘Yes, I saw you last night.’
“Q. That was your conversation?
“A. Yes, it was. I asked him again if they planned what had happened and he said, ‘No, we didn’t.’ ”
The only other statement Jerry recalled was by Officer Newton. As the two men were about to leave the jail, Newton advised Harris to stand away from the window “for his own safety.” Officer Newton corroborated all of Jerry Wilson’s testimony. The only variance in their versions of the incident was that Newton said he gave the admonition about Harris standing in front of the window before Harris’ conversation with J erry.
Harris gave a different version of the incidents at the jail. Summarizing, he said when he was brought to jail, Newton told him to “stay away from the window if you don’t want your head blowed off, because people are mad around here”; shortly, Jerry Wilson came to the jail “and was raising sand”; Newton took Jerry by the arm and opened the door to where Harris and Jerry could see each other. Harris continued:
“. . . The white boy asked did I know him and I said, ‘No, this is the first time I ever seen you.’ He said, ‘You don’t know me from last night?’ I said, ‘How can I know you. I was at home.’ . . . Officer Newton told me, lie said, ‘Be sure and stay away from that window, because people around here is mad.’”
It was conceded that no “warnings” were given Harris as a preface to the two questions propounded by Jerry Wilson. Officer Newton was in uniform and armed.
When the voluntary nature of a confession is disputed on federal constitutional grounds, the weight ordinarily given to a factual determination by the trial judge cannot be applied. It becomes the duty of the appellate court “to examine the entire record and make an independent determination of the ultimate issue of voluntariness.” Davis v. North Carolina, 384 U. S. 737 (1966). That does not mean that the findings of the trial judge must be shunned. They are entitled to considerable weight in resolving evidentiary conflicts and to respectful consideration on the crucial issue of voluntariness. However, that respect cannot be permitted to frustrate the independent responsibility of the appellate court to determine the voluntariness of a confession. See Haynes v. Washington, 373 U. S. 503, 515 (1963). Because of the recited requirements we have searched the entire record and narrated the essential testimony.
The prerequisites for the admission in evidence of any statements made by a defendant when he is in custody of officers are found in Boyd and Byrd v. State, 230 Ark. 991, 328 S. W. 2d 122 (1959). There is a presumption that it is involuntary; and the burden is on the State to show the statement to have been voluntary, that is, freely and understandably made without hope of reward or fear of punishment. In making those determinations the court looks “to the whole situation and surroundings of the accused.” Although Miranda v. Arizona, 384 U. S. 436 (1966), was subsequent to the defendant Harris’ trial, the nonretroactivity of Miranda “does not affect the dity of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo . . Davis v. North Carolina, supra.
The record in this case has been examined in light of all the cited precedents and we are convinced that the trial court was correct in holding Harris’ statements to have been voluntary. Further, we have examined the cases, state and federal, cited by appellant. Those cases were reversed because confessions were tainted with such incidents as prolonged questioning, inspiring fear, questioning mentally retarded persons, and holding out hope of clemency. Appellant relies heavily on Payne v. State, 231 Ark. 727, 332 S. W. 2d 233 (1960); and Payne v. Arkansas, 356 U. S. 560 (1958). In Payne v. Arkansas the court emphasized the totality of treatment of a mentally dull 19-year-old youth. He was arrested without a warrant, did not have a hearing before a magistrate, was not advised of any rights, held incommunicado for three days, denied food for long periods, and was told that a mob was approaching.
A comparison of Harris’ overall situation with that of Payne is appropriate. But first we must resolve the conflict in evidence. For three reasons we think the State’s evidence is more credible: (1) To say that Harris, under his own testimony, ever became excited, would be without foundation; (2) he was contradicted in most of his accusations of mistreatment by from two to three witnesses; and (3) the trial judge is “closest to the trial scene and thus afforded the best opportunity to evaluate contradictory testimony.” Haynes v. Washington, supra.
Harris ’ age and education are not shown in the record. It does show him to have been a married man. The manner in which he conducted himself under examination leaves no doubt as to his mental alertness. Harris’ arrest and the search of his apartment are dis cussed in Trotter and Harris v. Stephens, 241 F. Supp. 33 (1965). Harris attacked the legality of his arrest and the search. Judge Young rejected both points, and we think correctly so. ¡With reference to being advised before making any statement, three witnesses testified Harris was informed that he did not have to make any statement and that if he did, that statement could be used against him in court; and that after being so advised, Harris stated he was willing to explain his participation. Further, two witnesses testified that he was asked if he wanted to first talk to a lawyer. Unlike Payne, Harris made his statements in the course of brief questioning. There is no credible evidence of threatened mob violencebJEEarris was advised at the jail to stand away from the window for his own safety. That precaution could just as well have been motivated by the enormity of the crimes which .had been committed, namely, the armed robbery of two persons and the criminal assault of one of them. If Harris heard or saw a crowd he did not so testify. Officer Griffin was asked by Harris’ counsel whether people were milling around outside. He answered, “Just some people out there. I don’t think there were too maily at that time.”
Appellant contends that his statements at the city jail were induced by threats of mob violence, and further that he was not advised of his right to remain silent. When Jerry Wilson, a private citizen as opposed to an officer, went to the jail to see Harris, it was for the purpose of identification. 'We have not been cited to any rule of law which would require that Harris be informed that Jerry was about to ask him a question. If Jerry had an intent at the time he entered the jail to ask a question, we are convinced that Officer Newton was not aware of it. In fact, Jerry requested “to see the little Negro.” Notwithstanding Harris testified Jerry came in “raising sand,” no fear was aroused in Harris. He testified that he told Officer Newton to “let him on in the cell.”
Other than questioning the voluntariness of Harris ’ admissions, only one other point is raised. Sheriff Tow-ler’s death intervened between the jury trial in 1963 and the Denno hearing in 1967. The trial judge permitted the introduction of Sheriff Towler’s testimony which was given at the trial. Harris was adequately represented at the 1963 trial and his counsel had the opportunity to cross-examine the Sheriff. Harris’ present counsel contends that his inability to cross-examine Sheriff Towler at the hearing deprives his client of due process. We are cited no authority. All the statutory requirements for the admission of testimony from a prior trial were present. The original transcript was introduced, the death of the witness was established, the defendant and his counsel were present at the 1963 trial, and they had the opportunity to cross-examine the witness. Ark. Stat. Ann. § 28-713 (Repl. 1962).
Affirmed.
Byrd, J., disqualified and not participating. | [
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Lyle Brown, Justice.
Arkansas Best Freight System, Inc., and Daniel L. Thompson, driver for ABF, appeal from a judgment awarded E. B. Hillis for injuries and damages resulting from a collision between trucks driven by Thompson and Hillis. Appellants’ principal attack is on the sufficiency of the evidence. The amount of the verdict, the denial of their motion for a directed verdict, and the propriety of one instruction are also questioned.
Thompson was pulling a forty-foot trailer containing 42,000 pounds of explosives. It was January 21, 1967, at approximately 7:15 a.m. He was headed east on U. S. Highway 64 putside Morrilton. Visibility was good. He was on a straigNf kti^feNuNhighway about one and a half miles in length. He faced a very slight upgrade. Proceeding in the same direction and a considerable distance ahead of Thompson was appellee Hillis, a carpenter. His destination was a job site about midway of the straight stretch. It was necessary for him to make a left turn and enter a private driveway to reach his destination. At a time when Hillis was either set to make his turn, or actually making a turning movement, his 1956 truck was struck from the rear. The point of impact was in Thompson’s passing lane and some two feet across the center line. Hillis ’ truck was headed fairly straight down the highway, as shown by the fact that the pickup was sideswiped fairly evenly from left rear to left front. Hillis ’ truck was knocked to his right, cleared the highway, and came to rest in a ditch several feet away. The ABF truck proceeded down the highway in Thompson’s passing lane, then back to his driving lane, and came to rest upright on his right shoulder of the highway. That point was 651 feet beyond the point of impact.
The facts just recited are undisputed. Other evidence offered by Hillis is in dispute. Hillis was the only eyewitness who testified in his behalf. He stated that he stopped his truck some twenty-one feet before reaching a point opposite the driveway; that he could see through his rear-view mirror a large truck approaching him a considerable distance away; that he stopped his truck to permit the passage of three vehicles approaching from the opposite direction; he was not certain of the length of time during which he gave a manual left turn signal by putting his left arm through the vent window; he was positive that the arm remained in that position during the time the three vehicles were passing; that during the passage of the vehicles he might have been slightly over the center line; that very shortly after the last vehicle passed, and before he had time to release his brake and get both hands on the steering wheel, he was struck by the ABF truck.
State Trooper Duvall arrived at the scene shortly af ter the accident and before either vehicle was moved. He testified, among other things, that there were no skid marks from the debris down to the ABF trailer; that the front bumper of ABF’s truck was bent backward and against the right front tire, not enough to lock the wheel but sufficient to cut the tire. The right front fender and the saddle tanks of that truck were damaged.
Under the law, when applied to the evidence pr6-duced by Hillis, it would have been error for the court to grant an instructed verdict at the close of Hillis’ evidence. Being the lead vehicle, he had the superior right to the use of the highway for the purpose of leaving it to enter an intersecting road or passageway. Madison Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S. W. 2d 729 (.1931). Hillis asserted that he approached the intended turn by edging over the center line, coming to a complete stop, and extending his arm for the left turn signal, at a time when the ABF truck was a considerable distance behind him. That evidence, along with the assertion, substantiated by physical evidence, that Hillis did not make a sudden left turn, made a question for the jury.
Daniel Thompson, ABF’s driver, was appellants’ only eyewitness. He asserted that he pulled into the passing lane approximately 100 yards behind Hillis. At that time, so he contends, Hillis was moving slowly down the highway. It was Thompson’s version that Hillis began a left turn at a point when the ABF truck was within ten feet of the Hillis truck. He denies having seen any other vehicles on the road, nor did he see any hand signal given by Hillis. On cross-examination it was developed that an early fog had cleared and there was good vision. In fact Thompson testified he could, see for a mile and a half down the road. At a point when Thompson was some 400 yards behind Hillis, Thompson could perceive that he was rapidly gaining speed on Hillis and at a time when Thompson was driving at approximately 48 miles per hour. Thompson estimated Hillis’ speed at twenty miles per hour. As a result of Hillis ’ slow speed, Thompson began a passing movement 100' yards behind Hillis.
If Thompson’s version of distance and speed is correct, his position would have been somewhat similar to the trailing car in the Madison Smith Cadillac case. There the trailing vehicle observed as far back as 100 yards that the forward car was making some fifteen miles per hour. Under those circumstances this court commented that the trailing vehicle could have taken precautions until it ascertained for what purpose the lead car was slowing down. Also the jury here could have given weight to the fact that Thompson, rather than reduce his speed and stop if necessary, deliberately elected to maintain his speed. If he so acted, then he assumed the hazard of turning to the left and passing the Hillis car.
We hold that the trial court properly denied appellants’ motion for a directed verdict at the conclusion of all the evidence.
In light of Hillis’ testimony, together with some of the testimony of Thompson which favored Hillis, we are unable to say the jury verdict is not sustained by substantial evidence.
Appellants rely on Midwest Bus Lines v. Williams, 243 Ark. 854, 422 S. W. 2d 869 (1968). There we held that there was but one conclusion to be reached and we reversed and dismissed as to two defendants. In Midwest Bus Lines there were physical facts which mathematically did not authorize the finding of negligence as to Tyler and Midwest. Such evidence is not here available. Con-cededly, Hillis’ version of the occurrence is not flawless. On the other hand, the version given by Thompson is stoutly disputed. We have only the testimony of two eyewitnesses and because of substantial conflict in their testimony the problem fairly reduces itself to a ques tion of credibility. That is solely the prerogative of the jurv. See Southern Kansas Stage Lines v. Ruff, 193 Ark. 684, 101 S. W. 2d 968 (1937).
The verdict is not excessive. It cannot be disputed that appellee received a terrific blow to his truck, an impact sufficient to force the heavy ABF truck bumper back into the right front tire. The course taken by Hillis ’ truck undoubtedly resulted in an experience that could have taken his life. That is because the truck went into a hole of such depth as to conceal a larger part of his truck. The right side of the truck was heavily damaged as a result of the impact with the ditch bank.
Dr. Logue found small chips of bone around the left hip, which was partially dislocated, and the capsule was apparently torn away at the time of the dislocation. He testified that Hillis had a restriction of motion in the left leg and because of his age of 67 years it would probably be permanent. That restriction of motion will, in the doctor’s opinion, restrict the use of the leg by an estimated ten per cent. He further testified that an injury of this type is generally accepted to be painful. Appel-lee testified that the hip is still giving pain and he is forced to sit on the right side.
Hillis testified that he received cuts all about the forehead, which required forty stitches, several abrasions on the left hand and elbow, and a loss of teeth. He was hospitalized seven days and his medical totalled $628.64. At the time of the accident Hillis was earning $70' per week as an experienced carpenter. That was his usual weekly wage when he worked. He was regularly employed at the time of the accident, although he did not earn a sufficient amount in 1965 and 1966 to pay an income tax. The record is not clear, but it could have been due to loss of time from a back injury. Hillis testified he had not been physically able to perform any labor since the accident. The damage to his truck was fixed at $300. Considering the recited factors, Hillis’ vocation, and today’s purchasing power of money, we are nnable to say that the judgment for $20,000 should be disturbed.
Appellants contend the court’s instruction on damages was in error in that it permitted the jury to consider scars, disfigurement, and visible results of the injury. They contend that the evidence did not justify the submission of those elements. We have referred to the testimony of Hillis concerning the taking of forty stitches about the forehead. The number of scars still apparent at the time of trial is not in the record. However, it is reflected that there were scars about the forehead and they were exhibited to the jury. For those reasons we think the objection is without merit.
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Lyle Brown, Justice.
This appeal comes from a judgment for $2,500 awarded the landlord on the basis of a crop rent note executed by the tenant. Appellee, Madeline F. Campbell, was- the landlord, and appellant, Snow Wilson III, was the tenant. Wilson challenges the judgment on the ground that he purchased the leased lands at a foreclosure sale and before the annual rent note became due on November 15, 1965.
When Madeline Campbell bought the lands in 1963 by quitclaim deed, there was an outstanding mortgage in favor of Merchants Hotel Supply, Inc., for approximately $40,000. Madeline Campbell leased the lands to Wilson for the year 1965 on a cash rent basis. Wilson executed a note due November 15, 1965, went into possession, and made a crop. That crop was destroyed by hail, and Wilson collected $9,800 crop insurance in August. In February, 1965, Merchants filed a foreclosure suit. The principal defendants were Madeline Campbell’s grantors, Ben and Eleanor Flannigan. Ap pellant and appellee were made parties, but did not answer. In Maly 1965 judgment was taken against tbe Flan-nigans and a lien was imposed on tbe lands. No receiver was- requested, and crops were not mentioned. It was decreed that all right, title, and interest of appellant and appellee were barred. Tenant Snow Wilson was tbe successful bidder at tbe commissioner’s sale, which was confirmed on October 8, 1965. Thereafter he held title beyond the due date of the crop note.
The principal question to be resolved is whether Snow Wilson is obligated to Madeline Campbell for the 1965 crop rent or any portion thereof. That problem poses the question as to when the rent accrued. In Rogoski, Admr. v. McLaughlin, 228 Ark. 1157, 312 S. W. 2d 912 (1958), we adhered to the common law rule that rent does not accrue from day to day, as does interest: “it is considered to accrue in its entirety on the day the payment is due.” The common law rule is explained in Tiffany, Landlord and Tenant, § 176:
“Rent is not, at common law, regarded as accruing from day to day, as interest does, but it is only upon the day fixed for payment that any part of it becomes due. The result of this principle is that, ordinarily, the person who is on that day the owner of the reversion is entitled to the entire installment of rent due on that day, though he may have been the owner of the reversion or rent but a part of the time which has elapsed since the last rent day. Conversely, one who has been the owner of the reversion or rent during a part of that period can claim no portion of the installment unless he is such owner at the time at which the installment is payable by the terms of the lease. The general rule in this regard is ordinarily expressed by saying that rent cannot be apportioned as to time.”
The effect of the foreclosure on the lease was to extinguish it. The lease was subject to the mortgage. Lessor and lessee were made parties to the foreclosure and the foreclosure decree barred appellant and appellee from any interest in the land. It may well be said that the lease therefore disappeared. Grlenn on Mortgages, § 181.1, states it thnsly: “The mortgagor has no claim under it [lease], and the only claim that remains is on the tenant’s behalf, for breach of his landlord’s covenant of quiet enjoyment. This breach took place when foreclosure came as a result of the landlord’s default upon the underlying mortgage; but apart from that, the lease is dead for all operative purposes.” To the same effect see McAdams on Landlord and Tenant, 5th Ed., § 76.
What we have said applies to the facts in the case at bar. We have a defaulting landlord who holds, an annual rent note due near the end of the year; before the accrual date there is a foreclosure in which a receiver is not requested and no claim is made by the mortgagee as against the crops. The tenant purchases at the foreclosure sale, as is his right under such holdings as Rag v. Stroud, 204 Ark. 583, 163 S. W. 2d 173 (1942). (In that case we held that the tenant’s purchase could be set up as a defense in a subsequent suit by the landlord for rents.)
As between grantor and grantee in a private sale of land, where the property is rented at the time of conveyance, rents which are not due until after the conveyance go to the grantee unless reserved in the deed. Latham v. First National Bank, 92 Ark. 315, 122 S. W. 992 (1909). In the case at bar the commissioner’s deed is not in the record; however,- it is clear from an examination of the foreclosure decree that the commissioner made no reservation of rents in his deed. We think the two situations are analogous.
To sustain the award of the chancellor, appellee first contends that the entire amount of the judgment should be affirmed on the theory that the due date of the note was accelerated by the destruction of the crop in August. It is her contention that the loss was due to an unforeseen development which enabled her tenant to collect the insurance proceeds from the destroyed crop. She theorizes that the landlord should have a lien on the insurance proceeds. We cannot agree with that contention. No authorities were cited to support it, and no attempt was made to show that the tenant became unjustly enriched as a result of the collection of crop insurance. We are unable to find a case in our own jurisdiction which would approve or disapprove her theory; however,, the case of Roesch v. Johnson, 69 Ark. 30, 62 S. W. 416 (1900), would indicate that appellee’s contention is not tenable.
Alternatively, appellee insists that the rent should be apportioned. She relies principally on Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S. W. 634 (1926); Purvis v. Elder, 175 Ark. 780, 1 S. W. 2d 36 (1927); and Free v. Harris, 183 Ark. 233, 35 S. W. 2d 603 (1931).
Deming and Purvis are cases in which, pursuant to foreclosure, a receiver was appointed under the provisions of Ark. Stat. Ann. §. 36-113 (Repl. 1962). The provision for appointment of a receiver was a part of our Civil Code. Our decisions are replete with cases prior to Deming and Purvis in which apportionment of rents was upheld in situations where the trial, court appointed a receiver.
Section 36-113 is the tool used by trial courts to appoint a receiver in foreclosure and thus divert rents and profits of mortgaged premises from the person lawfully in possession. It gives the plaintiff in a foreclosure an equitable lien on the accrued and unpaid rents. As was stated in Bank of Weiner v. Jonesboro Trust Co., 168 Ark. 859, 271 S. W. 952 (1925): “The rents and profits on the lands, after their sequestration by the institution of this suit and the appointment of a receiver, stand in the same category as the land itself.”
This brings us to a comment on the holding in Free v. Farris, supra. A secondary issue in that case was the disposition of rents. There was a foreclosure: without the appointment of a receiver and this. court approved an apportionment of the crop rents, 7/12ths of the annual rent being awarded to the mortgagor and. 5/12ths to the purchaser at the foreclosure sale. In approving that proration this court relied on the Dernmg and Pur-vis decisions. We have examined the briefs in Free v. Harris and' find that Mrs. Harris argued for apportionment, citing extensively from Demiug and Purvis. Mr. Free’s argument against apportionment consisted of •one paragraph containing a single sentence at the end of the brief. Preceding that short response were eight pages of argument meeting the points raised in the trial court. We surmise that Free’s brief treatment of the subject led this court into error in relying on Deming and Purvis, those being cases in which receivers were appointed pursuant to Ark. Stat. Ann. § 36-113.
The holding of our court in Rogoski, supra, at least by inference, substantially nullified the holding in Free v. Harris. This is because the two holdings cannot be reconciled. We do not believe the common law rule governing accrual of rents should be abandoned, which would be the effort of following Free v. Harris.
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Conley Byrd, Justice.
This is a companion case to House v. Scott, 244 Ark. 1075, infra. The amounts and the parties are not wholly identical hut the issues are identical except for the point raised on cross appeal by Choctaw Plumbing Company, Inc., that the court erred in not awarding it judgment against Modern American Mortgage Corporation and A. F. House, Trustee, for the amount of its lien.
"We find Choctaw’s contention to be without merit because it had a contract only with Stillman. Its sole remedy under the mechanics’ lien statute is for a lien upon the fixtures and the premises to the extent therein allowed.
There is no evidence here that Modern American and A. F. House, Trustee, were in any way connected with Stiliman’s business other than in their capacity as mortgagees.
Therefore, so much of the trial court’s judgment as required A. F. House, Trustee, to pay into the registry of the court the unexpended funds and that portion which gave the mortgagee priority as to the $1,700 paid to Modern American for the release of the Olsen mortgage is hereby reversed.
Reversed and remanded.
FoglemaN, J., dissents. | [
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J. Fred Jones, Justice.
This is a workmen’s compensation case presenting an unusual question under the provision of Ark. Stat. Ann. § 81-1311 (Repl. 1960) which provides in part as follows:
“The employer shall promptly provide fór an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may he necessary during the period of six [6] months after the injury, <or for such time in excess thereof as the Commission, in its discretion, may require.”
The precise question presented in this case is whether or not the employer (or compensation insurance carrier) 'can be required to provide nursing service by the injured employee’s mother and father. The question is not whether nursing service should be provided. The question is where and by .whom the service should he rendered.
On November 24, 1965, while in the course of his employment, Herman Davis, a young man 28 years of age, sustained an accidental injury to his left hand when it was struck with a chopping axe. While under anesthetic during the medical repair of the wound to the hand, his heart stopped functioning for a period of some twenty-two minutes, resulting in severe and irreversible brain damage. As a result of the brain damage, Herman is mentally incompetent and physically helpless. He lives with his mother and father where he requires constant attention twenty-four hours each day.
The employer and compensation insurance carrier recognized and accepted the claim as compensable. They furnished the required medical, surgical, hospital and nursing service, including medicine, crutches, etc. during the period of six months after the injury and for some time thereafter. They recognize that Herman Davis is permanently and totally disabled as a result of his injury, and they are paying the weekly amounts due Herman for this disability. They recognize and are willing to accept their responsibility for extended medical benefits, including nursing service beyond six months, but they do not recognize their obligation to pay Herman’s parents for rendering this service in their home.
Bill R. Philpot is the legally appointed and acting guardian of the estate of Herman Davis, and Johnnie Davis, the father of Herman, is guardian of his person. The compensation carrier paid Johnnie Davis $100.00 per week for a period of three months for nursing Herman, but these payments were suspended and Mr. Phil-pot filed claim, apparently on behalf of Herman and his father, for reinstatement of payments for nursing expenses and claimed $500.00 per month as a reasonable amount to be paid to Herman’s father and personal guardian for the nursing care being rendered to Herman. Mr. Philpot is designated claimant and the employer and compensation insurance carrier are designated “respondents” in the record of proceedings before the Commission.
A hearing was had before the referee in Mena at which time the claimant was represented by counsel, and the respondent was not represented and did not participate. The referee awarded $500.00 per month for the care of Herman Davis and .ordered this amount, from the date of last payment, to be paid in one lump sum and such payments to continue on a monthly basis. The referee awarded the maximum attorney fee to claimant’s attorney.
On review by the full Commission, respondents did appear and offered evidence as to the availability of hospital and rest home facilities in the area of Mena, and respondents argued that a rest home for Herman would be some less expensive and much more efficient in caring for Mm. Following tlie hearing before the full Commission on review, the Commission made the following award:
“Beginning the day after the last day for which Johnnie Davis was paid by respondents for the care of Herman Warden Davis, respondents shall resume payments to Johnnie Davis at the rate of $500.00 per month with such payments to continue subject to the provisions and limitations of the Act, and the further directions of this Commission. All sums accrued to date shall be paid in one lump sum. Bespondents shall, of course, continue the payment of weekly compensation benefits at $34.91, to Mr. Bill B. Philpot, as guardian of the estate of Herman Warden Davis, with such payments to continue subject to the provisions and limitations of the Act.
“Bespondents shall, also, provide Herman Warden Davis with the necessary and reasonable medical attention required as the result of his admitted com-pensable injury on November 24, 1965.
“Bespondents shall, also, pay to claimant’s attorney, Mr. Bobert Shaw of Mena, an attorney’s fee in the sum of $600.00, which is in addition to the other benefits awarded in tMs case.”
This award of the Commission was affirmed on appeal to the circuit court and on appeal to this court, respondents rely on the following point for reversal:
“The Court erred in allowing the employee’s father the sum of $500.00 per month as compensation for his care of the employee.”
The claimant has cross appealed relying upon the following points:
“The Court properly allowed the employee’s father the sum of $500 per month as compensation for his services in caring for the injured employee.
“The Court erred in failing to award attorney fees based upon the total award.”
Herman Davis was first hospitalized at De Queen where his brain damage occurred. He was then transferred to a hospital in Texarkana where he was under intensive medical care by a neurosurgeon, and later by a physiotherapist. In preparation for releasing him to his home, Herman’s mother and father went to Texar-kana and observed and practiced the physical therapy treatment being administered under the supervision of the neurosurgeon and physiotherapist. At the suggestion of the compensation carrier and the neurosurgeon, Herman’s mother and father purchased a home in Mena and moved to it from their former home several miles out in the country from Mena, in order that Herman would be near doctor’s offices and where telephone service would be available. Herman was first transferred from the hospital in Texarkana to a hospital in Mena, and was later transferred to the home of his mother and father in Mena where he has remained since his release from the hospital.
When Herman was first released from the hospital, he could not bend his knees and could not speak. He has improved under the care of his parents, to the extent that he can now bend his knees and repeat simple single words, but he still does not recognize anyone and is still totally helpless insofar as mental processes and body functions are concerned. He requires constant nursing care twenty-four hours per day. He weighs 170 pounds and must be lifted and attended as would a very young baby. The service of two individuals is required in lifting Herman to avoid injury, and his father and mother have learned to interpret and respond to his symptoms of discomfort and physical needs.
After Herman’s release from the hospital, a practical nurse was first employed to stay with him in his home and the compensation carrier paid the nurse $30.00 per day, amounting to $900.00 per month. The work be came so strenuous for the nurse she quit. Although effort has been made, no other person has been found who is capable or willing to accept employment in nursing Herman.
Herman’s father was earning more than $500.00 per month as an employee of the U. S. Forestry service. He quit this employment in order to assist his wife full time in attending their injured son. Mr. Davis testified as to the full days routine recommended by the doctors and as carried out by him and his wife in caring for. Herman.
Dr. Calvin Austin, a practicing physician in Mena, testified that he had observed Herman in the home of his parents and the overall substance of his testimony is to the effect.that Herman, is receiving excellent care and better care than could reasonably be expected if he were in a rest home.
Dr. Retia L. Edmonson of Texarkana, who had attended Herman following his injury, rendered a supplementary report on March 21, 1967, of examination conducted on March 17, in which she stated:
“This patient has continued to show some progress in the last several months, but he continues to be totally helpless and it is- necessary for him to have continued constant supervision and care. T'he patient’s parents have taken excellent care of him, and he has been able to remain at home with them. I feel that these parents are well qualified to continue caring for their son. 'Since the patient has no control over his sphincters (urination and bowel movements) a' routine has been set by the parents, who both must assist the patient in his daily activities.
* * * The parents have done a lot for their son; they are interested in his health and welfare, and by this time they-are quite well trained in his care.”
There is no medical evidence, in the -record, even suggesting that Herman is not receiving the best possible nursing care and attention at the hands of his mother and father. There is no medical evidence, in the record, that Herman would be better, or as well, provided for in rest home on a hospital. All the medical evidence, in the record before us, is exactly to the contrary. There is no medical or other evidence that Herman does not require full-time nursing attention. All the •evidence on this point is to the effect that such attention is required.
The statute does not limit the medical, surgical, hospital and nursing service, for which the employer is liable, to any particular place or to be performed by any particular individuals. The statute does provide, however, “all persons who render service or provide things mentioned herein [Ark. Stat. Ann § 81-1311 (Repl. 60)] shall submit the reasonableness of the charges to the Commission for its approval, and when so approved, shall be enforceable by the Commission in the same manner as is provided for the enforcement of compensation payments.”
Under the facts and circumstances, as evidenced by the record in this particular case, we are of the opinion that there was substantial evidence to sustain the findings and award of the compensation Commission and that the judgment of the circuit court sustaining the award should be affirmed.
Ark. Stat. Ann. § 81-1332 (Repl. 1960) sets a maximum limitation on attorney fees that may be legally charged in a compensation case and provides that the attorney’s fee, to be valid, must be approved by the Commission. The last sentence of this section is as follows:
“In determining the amount of fees, the Commission shall take into consideration the nature, length and complexity of the services performed, and the benefits resulting therefrom to the compensation beneficiaries.”
Thus it is seen that a great deal of discretion is placed in the Commission in approving attorney fees within the percentage limitations of the statute, and we find no abuse of the Commission’s discretion in limiting the award of attorney’s fee to the maximum percentage of the accrued amount due under the award in this partially controverted case, rather than on the amount paid and to be paid under the award, as contended by ap-pellee on cross appeal. As pointed out in the case of Sparks Memorial Hospital v. Walton, 229 Ark. 1014, 320 S. W. 2d 102, this court does not award attorney fees for appeals in compensation cases, that authority rests in the sound discretion of the Workmen’s Compensation Commission.
Affirmed on appeal and cross appeal. | [
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J. Feed Jones, Justice.
This is a condemnation case arising out of the construction of Interstate 40 through Conway, in Faulkner County, Arkansas. By right of eminent domain, the state highway commission condemned a right-of-way across property belonging to appellees on the outskirts of Conway. Judgment was entered by the Faulkner County Circuit Court on a jury verdict of damages in favor of the appellees in the amount of $41,-500.00, and the commission has appealed.
Appellant has designated the following points relied upon for reversal:
“The trial court erred in refusing to disqualify himself, and in refusing to quash the jury panel.
The trial court erred in refusing to give plaintiff’s (Appellant’s) requested Instruction No. 10.
The trial court erred in refusing to give plaintiff’s (Appellant’s) requested Instruction No. 8.”
The record before us reveals the following facts: Prior to 1957, a study was made by the Arkansas Highway Department of a route for Interstate 40 Highway through Faulkner County. A proposed route east of Conway was surveyed and traced on county maps in 1956, and this route was recommended when the study was completed in 1957. In 1958, the proposed highway and the proposed route through Conway were discussed by officials of the highway department with the citizens of Conway at a public Chamber of Commerce meeting. Following this meeting, the Children’s Colony north of Conway requested a change in the proposed alignment of the highway in order to miss some of the improvements at the Colony, and this change was made. The final survey for the alignment of the highway was completed in 1959, and the county and city maps, showing the proposed designated route, were brought up to date. In 1963, strip maps of the proposed highway right-of-way were furnished to Mr. Ott, a title abstracter in Conway, and on the basis of these maps he furnished re quested title information to the highway department on land along the proposed route. About February 1, 1964, the highway department started gathering sales information and making actual appraisals of the property to he condemned. The center line stakes for Interstate 40 ivere finally set by the highway department in February 1965, and actual negotiations for the purchase of right-of-Avay from the owners along this route were commenced in May 1965.
When the highway department actually started negotiating with property owners for the purchase of rights-of-AYay, other negotiations had already been under way for some time for highway frontage along the same route staked out by the highway department. On January 21, 1965, Continental Oil Company had taken three separate options to purchase nine lots adjacent to the right-of-way for the total price of $85,000.00. In January or February 1965, appellees were negotiating for the purchase of 47 acres of the land involved in this case from C. T. Bay, and Mr. Ott was their chief competitor. Mr. Ott was successful in obtaining an option to purchase this land for $137,500.00. On March 11, 1965, Pure Oil Company took an option to purchase from Mr. Ott, 12.9 acres of this land extending 1185 ft. along the right-of-way line of Interstate Highway 40, for the purchase price of $110,000.00, and Mr. Ott warranted to the Oil company that the exact description of the land involved was to be as described and as shown on attached strip map prepared by the highway department. Then on March 31, 1965, Mr. Ott exercised his option to purchase from Bay, and on the same day sold this land to ap-pellees for $10,000.00 more than he paid Bay for it. The sale from Ott to the appellees was subject to the option held by the Pure Oil Company.
As to this purchase, appellee Henry testified:
“In either late January or early February, 1965, Mr. Dean and I began negotiating Avith Mr. Bay to buy his property. We were finally successful in buying it, but not from Mr. Ray. We had to buy it from Mr. Bob Ott, because Mr. Ray had sold it to Mr. Ott. In talking to Mr. Ott about it, Mr. Ray told him that we were interested in it too. He told us there was an option on this 13 acres on the west side to Pure Oil 'Company for $110,000.00, that he had signed it and he gave me a copy of it, * * *.
Q. Mr. Henry, do you know anything about the Ott purchase of the Ray property — what has been referred to as the Ray property?
A. Yes, sir.
Q. Did he purchase that under contract first and then get a Deed, or how was it, or do you know?
A. I believe he had an option at first.
Q. To buy it from Mr. Ray?
A. Yes.
# *
Q. Do you know that this option preceded Mr. Ott’s option to Pure Oil?
A. Yes, sir. It did.
Q., And then subsequent to optioning it to Pure Oil, the property was then deeded to him. Is that correct ?
A. Yes, sir.
Q. And on that very same day he deeded it to you and Mr. Dean?
A. Yes, sir.
* # #
Q. Did you know how much Mr. Ott had paid for the property when you purchased it?
A. Yes, sir, we sure did.”
The Bay property, which appellees purchased from Ott, lies on both sides of the right-of-way line for Interstate 40. The main body of this tract is square in shape and was landlocked except for a strip containing eight or nine acres, less than two city blocks in width and about two blocks in length, extending south from the southwest corner of the main body to Highway 64. All of this strip is west of Interstate 40 right-of-way. Immediately east of the main body of the Ray tract, Helen R. Collier owned a 39 acre tract of land. This land lies in an approximate square shape and joins the Ray tract along the west side of the Collier tract. The Collier tract lies north and east of the Interstate 40 right-of-way and north of Highway 64. It was landlocked by the Ray tract on the west and by other land on the other three sides and was without access to Highway 64. The interchange-right-of-way from U. S-. 64 to Interstate 40 cuts across the southwest corner of the Collier tract and the right-of-way continues from where it crosses (overpasses) Highway 64 in a northwesterly direction and diagonally through the Ray tract.
Prior to March 1965, the highway department started negotiating a contract for the purchase of this right-of-way from Helen L. Collier. The contract was first made for the purchase of this right-of-way on May 11, 1965, and although this contract was dated February 16, 1966, it was proofread on March 2, 1965. On April 5, 1965, following the purchase of the 48 acre tract from Mr. Ott by appellees, Mrs. Collier offered to sell to ap-pellees for $500.00 (later raised to $600.00) per acre that portion of her 39 acre tract which she had not already agreed to sell to the highway department. On this point Mr. Henry testified:
“A. ***TWe went out there and talked to her, and she told us what she would sell us and what she would sell it to us for.
Q. And what did she say?
A. She said, ‘I’ll sell yon the back part, everything that’s north of the highway stakes.’
Q.. Everything that’s north of the hig’hway stakes for Interstate 40?
A. Yes.”
Appellees purchased this Collier tract for $600.00 per acre and the deed was delivered on May 14, 1965. Negotiations for purchase of rights-of-way were suspended by the highway department on May 13, 1965, and the landowners weré advised of the suspension on May 14. The highway department later resumed negotiations for the purchase of right-of-way and finally closed the transaction with Mrs. Collier on March 2, 1966, by paying her $62,150.00 for .8.15 acres actually taken for right-of-way.
As to appellant’s first point, there was some evidence in the record to the effect that the trial judge owned an interest in property subject to condemnation for Interstate 40 right-of-way in' a separate action, and appellant contends that he should have disqualified in the trial of the case at bar. There also was some evidence that newspaper articles had been published pertaining to the trial judge’s interest in similar litigation in another case in which he did disqualify, and appellant contends that the jury panel should be quashed. There was no evidence, or anything else, on either of these points abstracted by the appellant, as required by Rule 9 (d) of this court, so we find no error in the trial judge refusing to disqualify in the present case and in refusing to quash the jury panel.
We dispose of appellant’s third point, as to its instruction No. 8, before considering its second point. Appellant’s requested instruction No. 8 is as follows:
“You are instructed that the defendant had a duty to minimize the damages that they might sustain by virtue of the taking hy the Highway Commission, and to that end yon are instructed that if you find that certain acts could have been done, or certain arrangements could have been made by the defendants that would have lessened the damages suffered by the defendants, then they are not entitled to claim those elements today, and you will disregard any element of damages claimed by these defendants for such items as they might have corrected or eliminated.”
In connection with their proof on severance damages, appellees offered evidence that the cost of extending a sewer line across the right-of-way from appellees’ property on the west and south side of Interstate 40 to their property north and east of Interstate 40, would be considerably more ($540.00 per acre) since the construction of Interstate 40 than it would have been before actual construction, and this evidence was submitted to the jury along with the other evidence of damage. This additional cost was in connection with driving or “jacking” a conduit under the highway without interfering with the use of the highway. There was also evidence offered by appellant that the Children’s Colony did, and the appellees could have, mitigated this cost by constructing the conduit for a sewer across the right-of-way after it was acquired and before actual construction was begun, thus greatly mitigating their damages on this item. We conclude that under the evidence on this point, appellant’s instruction No. 8 should have been given and that the trial court erred in refusing it.
The appellant’s second point has given us considerable difficulty and no little concern. Appellant’s requested instruction No. 10 was as follows:
“You are instructed that in your deliberation you are not to consider the property known as the Collier tract, either so far as damages are concerned, or as benefits are concerned, said tract being pur chased by the defendants with knowledge of the fact that the possible taldng by the Highway Commission would leave the Collier Tract without access and cut off.”
A great deal of the testimony was directed to the question of whether or not the appellees knew that the highway would be built across their land when they purchased it. They more or less admit that they knew that some of their land would be landlocked by the highway if it was built in the place it was built, but they deny that they Tmew where the highway would be built when they purchased their land.
On this point Mr. Henry testified:
“Q. And when did you say you got the Deed to the Bay property?
A. On March 31, 1965.
Q. Was your transaction with Miss Collier a one day affair, or had you previously agreed to purchase the property from her?
A. It took over a month to wind up the transaction.
Q. So that actually you had agreed to purchase it at some time prior to the actual date the Deed was delivered, is that right?
A. That’s right.
Q. Mr. Henry, in Opening Statement counsel for the Highway Commission stated this property was purchased with your knowledge that the highway would go through there. Will you tell us what knowledge you had at .the time you purchased this property of any location of this Interstate 40?
A. I had no knowledge whatever of any definite location. I knew that a number of surveys had been run, but from general knowledge.”
Common sense is not to be completely abandoned by a trial jury, a trial judge, or this court on appeal, in estimating the extent of knowledge derived from established facts and circumstances.
If Mr. Ott did not know where Interstate 40 would be built when he took his option from Mr. Ray, he obviously thought he knew when he warranted its location in the option he sold to the Pure Oil Company on March 11, 1965, and subsequently assigned to appellees.
Appellee, Ray, testified that he knew there had been other property purchased by the highway department for right-of-way for Interstate 40 both north and south of the property he purchased from Mr. Ott before he purchased the property from Ott. Appellees purchased the Ray tract from Ott subject to the Pure Oil Company option (with the strip map attached). They knew that Mrs. Collier was only selling “everything that’s north of the highway stakes for Interstate 40” when they purchased it. So it is obvious to us, from the record in this case, that if appellees did not know Interstate 40 would cross their land when they purchased it, they were certainly unreasonable if they assumed that it would not.
In the recent case of Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495, we adopted the general rule from Nichols on Eminent Domain, Third Edition, 1962, Volume 4, Section 12.3151, pages 201-204, stated as follows:
“The general rule is that any enhancement in value which is brought about in anticipation of and by reason of a proposed improvement is to be excluded in determining the market value of such land, although there is some authority which, contrariwise, unqualifiedly allows recovery for such enhanced value.”
In the Griffin case we then said:
“While, as pointed out, there is some authority to the contrary, we like the logic of the general rule, and align ourselves with those who have adopted that view.”
In arriving at the true value of land taken and the damages to the land not taken, both sides, the landowner and the condemnor, obtain the services of readily available professional appraisers, all of them well versed in the three appraisal methods, all of them using the same approach, most of them licensed realtors of long experience, and all of them experts in land values.
Appellees argue that by constructing Interstate 40 across the 47 acre tract they purchased from Ott, the appellant has damaged their remaining property outside of the right-of-way in that the part of the 47 acre tract north and east of Interstate 40, and all of the 39 acre tract purchased from Collier, have been severed from that portion of the 47 acre tract lying south and west of Interstate 40, and from access to sewer connection and to Highway 64 at the southwest corner of the 47 acre tract. These were principal elements the expert witnesses took into consideration in arriving at ther conclusions of $91,650.00 overall damage as testified by appellees’ expert, Mr. Barnes, and $44,600.00 enhancement in value as testified by appellant’s expert, Mr. Adams. This leaves a difference between the opinions of these two expert witnesses in the actual amount of $135,250.00 on these two pieces of property purchased for $170,900.00. Such variance in the opinion of experts on the value of real property simply does not make sense, and only points up the unreliable nature of expert opinion on real property appraisals.
Witness Barnes testified for appellees that he compared twenty-five comparable sales with appellees’ land and arrived at a value at the time of taking of $265,000.00 and $173,350.00 after the taking, or a difference of $91,-650.00 as just compensation. This figure was broken down to $26,357.00 as the value of the land actually taken and $65,293.00 for damages to the remainder. The residual damage as testified by Mr. Barnes consisted of $1,000.00 per acre severance damages to the residuals consisting of $260.00 for loss of access to Highway 64, $540.00 for additional cost of extending utilities and $200.00 for distortion of plottage.
According to Mr. Barnes’ testimony, the building of the highway left appellees’ property worth only $2,-450.00 more than they paid for it, but $91,650.00 less than it was actually worth. According to his testimony the 39 acres in the Collier tract, which was bounded by Interstate 40 right-of-way when appellees purchased it, had been damaged by the construction of the highway $400.00 more per acre than the appellees paid for it.
Appellee, Dean, valued the property at $265,000.00 before the taking and at $150,704.00 after the taking, leaving a difference of $114,196.00 as damage to the property. According to Mr. Dean’s testimony, the market value of this land when he purchased it was $94,-100.00 more than he paid for it and that its market value was more than half destroyed by building the highway. He estimates that by building the highway his land is now worth $20,196.00 less than he paid for it and $114,-296.00 less than it was actually worth.
Twenty-five comparable sales were used by the expert witnesses in arriving at the value they placed on the land. No one testified as to the dates or amounts of these sales and po questions were asked as to the dates or prices paid, so we accept the land values, including that placed on the Collier tract, as correct. The residual or severance damage to the tract, however, is another matter. It is obvious to us that appellees knew, or certainly believed, that Interstate 40 would be built exactly where it was built when they purchased all of the Collier tract east of the right-of-way, and added that tract to the tract they purchased from Ott.
When appellees purchased the Collier tract, they only purchased ‘ ‘ the back part. . . north of the highway stakes for Interstate 40.” They were bound to have known what portion of this tract Mrs. Collier had agreed to sell to the highway department, and they were bound to have known that the Collier tract was landlocked when they purchased it and would remain so when Interstate 40 was completed across the tract they purchased from Ott.
The Kentucky Court of Appeals had a very similar case before it in Commonwealth v. Raybourn, 359 S. W. 2d 611. In that case Raybourn owned a motel on a .38 acre tract of land abutting on old Highway No. 60. They learned that the highway was to be changed and they purchased a 1.72 acre tract contiguous to their first tract and through which the new highway was to pass. Right-of-way was taken across the second tract by eminent domain. Treating the two tracts as a unit, the trial court awarded damages in the amount of $5,000.00 for the right-of-way taken in fee and $32,500.00 resulting damages to the remainder. In reversing the judgment of the trial court, the court of appeals said:
“We therefore hold that when it has been proven that the owner of property, on which land is being taken by the power of eminent domain, has purchased such property with knowledge of that fact, he is not entitled, for the purpose of assessing damages, to have it considered a part of other property previously acquired by him.”
There is no substantial evidence in the record before us that the Collier tract of land purchased by the ap-pellees east and north of Interstate 40 was damaged at all by the construction of Interstate 40. We conclude that appellant’s instruction No. 10 should have been given under the evidence submitted at the trial of this case, but since this case must be remanded for a new trial for error in refusing to instruct the jury on mini mization of damages as requested in appellant’s instruction No. 8, we are unwilling to say that the Collier tract, as a matter of law, should he completely eliminated from consideration by the jury under proper instructions and under any and all circumstances that may arise at the re-trial of this case. For the errors indicated, this case is reversed and remanded to the Faulkner County Circuit Court for a new trial.
Reversed and remanded.
Bybd, J., not participating.
FoglemaN, J., concurs. | [
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Carleton Harris, Chief Justice.
The question at issue on this appeal is whether a part of the federal and state estate tax paid bv Alta Risor, Administratrix of the estate of Oddie M. Anderson, deceased, is to be apportioned against the inter vivos donee of stock, Gordon Brown, appellee, such stock being included in the gross taxable estate, or whether the tax is entirely payable from the residuary estate. Brown received an inter vivos gift of stock from Mrs. Anderson on March 4, 1964, in the amount of $22,000.00. At the time the gift was made, Oddie M. Anderson was 86 years of age, had been bed ridden for over 2 years, and was paralyzed on her entire left side as a result of strokes suffered in December, 1962, and September, 1963. She died testate 7% months after making the gift, leaving a specific bequest to ap-pellee in the amount of $350.00. Both the federal and state estate tax returns were filed in January, 1966, by the decedent’s personal representative, and all taxes due were paid from assets in the probate estate. Soon thereafter, the Internal Revenue Service examined the return, and determined that the $22,000.00 gift to Brown, made within 3 years of Mrs. Anderson’s death, was a transfer in contemplation of death within the provisions of Section 2035 of the Internal Revenue Code (26 U. S. C.), and was subject to the federal estate tax. Assessment was made in accordance with this determination, and $3,022.04 in taxes, plus $176.56 in interest, was paid to the United States and the state of Arkansas by the personal representative. Mrs. Risor instituted an action in the Pulaski County Probate Court, seeking an order decreeing that Brown was a distributee and beneficiary of the estate of Mrs. Anderson within the meaning of the Arkansas apportionment statute, Ark. Stat. Ann. § 63-150 (Supp. 1967); that he was liable for his proportionate share of the federal and state estate taxes paid by the personal representative, and it was prayed that ap-pellee be required to pay to Mrs. Risor, the adminis-tratrix, his proportionate share of the taxes, plus his proportionate share of all interest paid to the Internal Revenue Service on account of the gift made to him by the decedent. On trial, the court dismissed the action, holding that Brown was only liable for his pro rata part of the state and federal estate taxes due on the $350.00, which he received as a legatee under the will of Mrs. Anderson, thus in effect holding that Brown was neither a distributee nor beneficiary of the decedent’s estate within the meaning of Section 63-150. Prom the judgment so entered, the administratrix brings this appeal.
It is regrettable that we cannot decide this case on its merits, since the question involved has not been here tofore passed upon, and is of some importance. However, the Probate Court had no authority to determine the issue before us, i. e., it had no jurisdiction of the subject-matter. In Shane v. Dickson, 111 Ark. 353, 163 S. W. 1140, we said:
“This contention involves a misconception as to the nature of this action. It is not a matter ‘relative to the probate of wills, the estate of deceased persons, executors, administrators,’ etc., but is a suit by the executor to recover a debt due the estate. The probate court has no jurisdiction of contests between an executor or administrator and third parties over property rights or the collection of debts due the estate. Its jurisdiction is confined to the administration of assets which come under its control, and, incidentally, to compel discovery of assets. [Citing cases.] ”
This court has been very strict where the matter of the jurisdiction of the trial court is involved. "We have held that the question of jurisdiction of the subject matter cannot be waived, but is always open, and may be raised for the first time on appeal. See Magnet Cove Barium v. Watt, 215 Ark. 170, 219 S. W. 2d 761, and cases cited therein. As recently as April, 1967, in Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S. W. 2d 651, we held that it is immiaterial that the parties have not raised the issue of jurisdiction, and, though both sides ask this court to pass on the question at issue, we cannot do so where the trial court had no jurisdiction.
In the present litigation, the question of jurisdiction is raised, albeit the record is not in very good shape. The question was presented to the trial court, but an abbreviated record was sent to this court, which did not include that portion of the record wherein appellee raised the question of jurisdiction, nor is the order of the court, wherein it held that the Probate C'ourt had jurisdiction, included in the transcript. Appellee does argue that the Probate Court had no jurisdiction, and in her reply brief appellant includes a copy of the court’s order, wherein it overruled appellee’s motion relative to jurisdiction, and held the court had jurisdiction over the cause of action. At any rate, we held in Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706, that, even though the question of jurisdiction is not raised, “yet the question of jurisdiction of the subject-matter always presents itself, for it is well settled that consent cannot give jurisdiction of the subject-matter where none exists. [Citing cases]” In McCain, Commissioner of Labor v. Crossett Lumber Company, 206 Ark. 51, 174 S. W. 2d 114, this court stated that the question of jurisdiction “presents itself, and must be determined by the court. ’ ’
In the present case, the suit is not a .matter ‘ ‘ relative to the probate of wills, the estate of deceased persons, executors, administrators, etc.,” but is actually a suit by the administratrix seeking contribution from one she alleges to be a distributee and beneficiary (under the provisions of Section 63-150). As pointed out in Shane, the Probate Court’s jurisdiction was “confined to the administration of assets which come under its control,” i. e., assets which were a part of the estate devised or bequeathed by Mrs. Anderson in her will.
In accordance with what has been said, the judgment of the Pulaski County Probate Court is reversed, and, matters of contribution being cognizable in courts of equity, the cause is remanded with directions to transfer same to the Pulaski County Chancery Court.
It is so ordered.
According to 37 A.L.R. 2d 172, “The doctrine had its origin in courts of equity upon the principle that equality among those in aequali jure is deemed to be equity. 13 Am Jur 6, 7, Contribution §§ 3, 4.” | [
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Conley Byrd, Justice.
This is an appeal from a decree divesting appellant, Mrs. T. L. Masterson, of title to an automobile replevied by her from appellee, Mrs. Iris Tomlinson. Appellant’s husband, T. L. Masterson, executed a conditional sales contract for purchase of a 1960 Chevrolet from Horton Chevrolet Company, through GMAC. When the contract was paid out and certificate of title to the car was sent by GMAC to Mas-terson, he assigned the title to appellant. She then filed a replevin action and obtained possession of the car from appellee. Appellee’s answer and successful motion to transfer to chancery alleged that appellee had purchased the car, that she had traded in her old car for the down payment, that GMAC had refused to finance the car for her because she was a waitress and her income was below the level required by GMAC, that as an accommodation Mr. Masterson had agreed to take legal title and to sign the necessary papers to permit her to finance the car through GMAC, and that she had made each and every payment until the lien was fully paid. Asserting equitable ownership of the title, which can not be asserted iat law, she prayed for transfer of the cause to chancery and for damages for the wrongful taking.
The chancellor awarded the car to appellee, but denied her damages for the unlawful detention.
Appellant argues that the pleadings and evidence do not support the decree. Óf course, legal title to the car was in Masterson when he assigned the title to appellant without consideration. However, appellee’s allegation that Masterson signed the contract and took title in his name only as an accommodation was substantially corroborated by appellee’s witness Holland, the car salesman. He testified tliat 'appellee had ootme to the ear lot several times, that she had traded in a 1956 Chevrolet for the down, payment, that when he started to get her financial statement he had told her that “ GrMAC will not finance anyone who works in a beer joint” and suggested that the car be put in a friend’s name. "When Mas-terson came to the car lot, Holland explained that all the papers would be in Masterson’s name, except that the application for insurance would show appellee’s name, birth date and driver’s license number as the driver. Holland testified that he had seen appellee make a number of payments at the car lot, which in turn were forwarded to GrMAC, and. that he had never seen Mas-terson make any payments. Appellee introduced a number of cash receipts for $54.55 each from Horton Chevrolet Company, as well as a current pink slip, all of which were made out to T. L. Master-son. Mr. Masterson did not testify, although present in the court room.
All in all, we find that there is sufficient evidence to support the chancellor’s decree vesting legal as well as equitable title in appellee. As was pointed out in House v. Hodges, 227 Ark. 458, 299 S. W. 2d 201 (1957, and Robinson v. Martin, 231 Ark. 43, 328 S. W. 2d 260 (1959), “Certificate of title [to a motor vehicle] is not title itself but only evidence of title.”' Appellant, being an assignee of the certificate without consideration, stands in no better position than her assignor. The evidence is sufficient to show a resulting trust existed in favor of appellee. “The rule rests on the doctrine of equitable consideration and on the presumption or implication of law of the intention of the purchaser that he intends the purchase for his own benefit and the conveyance in the name of another as a matter of convenience or arrangement for collateral purposes.” 54 Am. Jur., Trust, § 207. Mortensen v. Ballard, 209 Ark. 1, 188 S. W. 2d 749 (1945).
On cross-appeal, appellee contends that the court erred in refusing to award her damages for detention of her car. In its decree, the court found that appellee should he awarded damages, hut failed to make proper proof to sustain an award. Review of the record sustains the chancellor’s findings.
Affirmed. | [
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Carleton Harris, Chief Justice.
This action was instituted by appellee in the Pulaski Chancery Court by complaint against appellant, R. T. Phillips, a resident of Jasper, Newton County, wherein appellee, Arkansas Real Estate Commission, asserted that appellant had been guilty of violating the statutes generally known as the Arkansas Real Estate Brokers Act. The complaint, in effect, alleges that Phillips acted as a real estate agent, without being licensed, in handlings a real estate transaction between Keith J. Smith of Houston, Texas, and Don and Darlene G-ronwaldt, residents of Newton County. More specifically, it was asserted that on October 24,1966, Phillips prepared and forwarded to Smith an option to purchase the property from Phillips for the sum of $34,000.00. Consideration for the option was $3,000.00, which Smith forwarded on November 4, when returning the executed instrument. On November 5, 1966, Phillips secured an option to purchase the Gron-waldt land, in his own name, the consideration being $2,000.00, and the price of the property being set at $24,000.00. Summons was issued and served on Phillips, and appellant filed a demurrer. The Chancellor overruled this pleading, and Phillips then filed an answer, in which he admitted that he held no license to act as a broker or agent; admitted that he was a party to the two executed contracts, but it was denied that appellant had acted as a real estate agent, and it was asserted that his acts were not in violation of any law. The deposition of Smith was taken in Texas, and the case was set for trial. Phillips moved for a continuance, alleging that he was unable to attend court because of illness; however, he did not present the motion to the court, nor appear with any evidence to support it. The court held that no adequate grounds for continuance had been shown, and overruled the motion. Some time subsequent thereto, the case proceeded to trial, Phillips not being present. Appellee offered the deposition of Keith Smith, and the testimony of Don Hadfield, secretary of the real estate board, and Don Gronwaldt, and copies of the option agreements between the Gronwaldts and Phillips, and Smith and Phillips were offered in evidence. The court found that Phillips had:
“* * * violated the Arkansas Real Estate Brokers Act, Ark. Stats. S. 71-1302, by entering an agreement with Mr. and Mrs. Gronwaldt to sell their land, known as Buffalo Basin Guest Ranch, to Mr. and Mrs. Keith Smith, for compensation, and in so doing acted as a real estate broker, without being licensed.”
Appellant was enjoined from acting as a real estate broker until he was issued a valid license by the Arkansas Real Estate Commission, the decree enjoining him from committing the acts set out in the first paragraph of Ark. Stat. Ann. § 71-1302 (Repl. 1957), and further:
(<**•* from taking options on real estate for the purpose of effectuating a sale by the owner to a third party, or arranging for options taken in another’s name in order to effectuate sale.”
He was also specifically enjoined from attempting to enforce any rights out of the transaction in which he participated concerning the sale of Buffalo Basin Guest Ranch.
This decree was entered on June 13, 1967, and on June 30, appellant moved the court to alter its decree, again asserting that he had not violated the Arkansas Real Estate Brokers Act, and contending that the provisions of the decree went beyond the scope of the relief sought by appellee in its complaint. This motion was denied. Thereupon appellant gave notice of appeal. On August 17, appellee moved the trial court to cite appellant to show cause why he should not be punished for contempt, it being alleged that Phillips was seeking to enforce contract rights under his option from the Gron-waldts to purchase their property. The matter of contempt is being held in abeyance until this court passes on the validity of the court’s original decree.
Phillips relies upon several points for reversal, which we proceed to discuss. It is first asserted that appellant was entitled to all constitutional guarantees of criminal proceedings, because tbe Arkansas Beal Estate Brokers Act is criminal in nature. This assertion is based on the fact that Ark. Stat. Ann. § 71-1301 (Bepl. 1957) provides that one who acts as a real estate broker or salesman in Arkansas without first having obtained a license is guilty of a misdemeanor, and subject to fine and imprisonment. Appellant argues that the present action is a criminal action, and he is entitled to a jury trial in the county in which the alleged crime was committed (Newton County), and that his rights have been violated. We do not agree, and this point has been decided contrary to appellant’s contention. In Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S. W. 2d 538, a similar argument was presented, and this court disagreed, saying:
“* * * the relief sought by those complaining was not to enjoin the commission of a crime, as such. The purpose, primarily, was to prevent illegal practice of optometry. Cessation of the practice — not punishment for past acts — was the end.
“The Board has nothing to do with prevention of crime; nor is it concerned with punishment. But under § 15 of Act 94 it is authorized to invoke injunctive aid as a means of protection.”
Here, also, the real estate commission is not concerned with punishment, but is rather invoking injunc-tive aid, which is authorized by Ark. Stat. Ann. § 71-1311, as follows:
“Upon petition of any member of the Commission [real estate], its secretary, or any holder of a license thereunder^ the chancery court shall enjoin a violation of this Act if and when it shall appear that such action is necessary to protect the interest of those who have complied with the terms of this Act and who are- operating legitimately.”
Appellant next makes an attack on the constitution ality of the act, asserting that, “The rights to contract and to hold property are more fundamental than the laws of the land.” We need not discuss this contention, since the act, now under attack, was held constitutional in the case of State v. Hurlock, 185 Ark. 807, 49 S. W. 2d 611.
The deposition of Keith Smith relates that Smith, while riding through Jasper, saw a sign in a store occupied by Phillips, “Land for Sale.” He met with Phillips and was shown 200 acres of. land, which was owned by appellant, and Smith purchased it from him. Later, they again met, and discussed the possibilities of building a home on that tract. According to the witness, Phillips then stated that he could show a piece of land to Smith that already had a home on it, and the two went to the lodge known as the Buffalo Basin Guest Ranch, owned by the Gronwaldts, and obtained their permission to look over the premises. Smith was interested in purchasing the property, and Phillips told him that it could be bought for $24,000.00, plus the 200 acres purchased, or $34,000.00 cash. After Smith returned to Texas, several telephone conversations were engaged in between Smith and Phillips. Smith said that Phillips was not quite sure that he would be able to trade in the 200 acres, “and he suggested then that he would send an option agreement, and by the time he sent the option agreement he said it could not longer be bought for a $2,000.00 payment on the option, that it had to be $3,-000.00.” Appellant requested that Smith send him the money to buy the option, and the witness mailed Phillips a check in the amount of $3,000.00. 'Smith’s evidence is the only evidence that appears of record, though Gron-waldt, owner of the property involved, also testified, along with Don Hadfield; the testimony of these two witnesses was not reported.
Appellant contends that the court’s original decree "went much farther than permitted by the pleadings, stating:
“In the instant case the only prayer for relief was that appellant ‘he enjoined from further [our emphasis] violation of the Arkansas Real Estate Brokers Act.’ Under the decree and permanent injunction appellant is not only prohibited from acting as real estate broker, hut he also is ‘enjoined from attempting to enforce any rights out of the transaction in which he participated concerning the sale of Buffalo Basin Guest Ranch.’ It is this final portion of the decree which appellant asserts is not within the scope of relief sought and should not have been granted in a judgment taken by default, at which appellant was not present.”
Appellant apparently takes the position that the court’s injunction was only properly applicable to all transactions which might commence subsequent to the date of such injunction, and he argues that, in prohibiting him from proceeding further with the Smith-Gronwaldt transaction, the court granted relief which was not sought in the complaint. We do not agree. The complaint very definitely is based on appellant’s dealings with Smith and Gronwaldt, and if that relationship was in violation of the Arkansas Real Estate Brokers Act, certainly the court had a right to enjoin Phillips from endeavoring to enforce any alleged rights concerning the sale of the Buffalo Basin Guest Ranch. The law does not permit a man to violate the law, even once, and an injunction from “further violation of the Arkansas Real Estate Brokers Act” applies just as much to further acts in connection with enforcing the agreement in question (if it is unlawful), as to future transactions, which have never yet commenced. Of course, appellant’s argument is based on the premise that no violation was committed, i. e., Phillips was only contracting to buy property for himself (from Gronwaldt) and then intend ed selling that same property to Smith. In other words, Smith was buying the property — not from Gronwaldt— but from Phillips.
The record does not bear out appellant’s contention. In the first place, he escorted Smith to see, and encouraged him to buy, a piece of property which did not belong to appellant, but belonged to the Gronwaldts. It is true that Phillips, in preparing his option with Smith, presented himself as the owner, but it is noticeable that he did not acquire the option from Gronwaldt until after he received Smith’s check (November 5, 1966) — and it might be added that there is no evidence in the record that he was borrowing money from Smith in order to buy the property. On October 24, 1966, the date of the option from Phillips to Smith, appellant had no interest in the Gronwaldt property at all. Other pertinent language appears in the Phillips to Smith option. After setting out (on a printed option form) that Phillips and his wife would convey the property to Smith, the following words are typed into the instrument, “or cause to be done.” This, of course, can only mean that Phillips will either deed the property himself or get the Gronwaldts to do it. In handling both ends of this transaction, Phillips stood to make $1,000.00 on the option (obtaining option from Gronwaldt for $2,000.00, and giving option to Smith for $3,000.00), and on the entire transaction, he stood to make a profit of $10,000.00 (agreeing to buy the property from Gronwaldt for $24,-000.00, and agreeing to sell it to Smith for $34,000.00). Of course, the amount of profit made would have no bearing on this litigation if a bona fide sale of appellant’s own property were involved. But we cannot agree that this was that sort of transaction.
We think the instruments offered into evidence, and Smith’s testimony, make it clear that the proposed “purchase” by Phillips was only a means used to evade the statute in question, and it must also be remembered that Mr. Gronwaldt testified. The testimony of Gron- waldt and Hadfield apparently was not taken for the record, and we have no idea what the former testified to, but certainly it dealt with his transaction with Phillips. We have said many times that where there is a failure to bring into the record the testimony presented to the trial court, it must be presumed that the testimony ivas sufficient to support the findings of the court. In Watson v. Jones, 233 Ark. 203, 343 S. W. 2d 415 (1961), this court stated:
“* * * We have held in many instances that where there is a failure to bring into the record the testimony presented to the trial court, it must be conclusively presumed [our emphasis] that the testimony supported the trial court’s findings. [Citing cases]”
In the case before us, this simply means that there is a conclusive presumption that the testimony- of Mr. Grronwaldt, and that of Don Hadfield, supported the finding of the trial court that appellant had violated the Arkansas Real Estate Brokers Act.
We agree with appellant that the prayer for relief in appellee’s complaint cannot be amended, or broadened, since appellant did not appear for trial. But we do not agree that that happened in this instance. The complaint alleges that Phillips had no license (which is admitted by appellant), and sets out the transactions between Phillips, G-ronwaldt, and Smith; it is asserted that these acts are violative of the Arkansas Brokers Act, and the prayer is that Phillips be enjoined from further violation. We think the evidence in the record, and also under our holdings, that which is not in the record, supports the findings of the Chancellor and justifies the relief which was sought.
Affirmed.
This action was brought under the provisions of Ark. Stat. Ann. § 27-603 (Repl. 1962).
The record reflects that Phillips has instituted a suit in the Newton County Chancery Court, wherein it is asserted that the G-ronwaldts are “currently in the process” of transferring- the ranch to .Smith (by-passing appellant), and he asks for specific performance of his own contract, or damages against the defendants.
This is not an instance where the record was abbreviated by agreement, or without objection, as provided in Section 12 of Act 555 of 1953. | [
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JohN A. Fogleman, Justice.
Jimmy Dale Wilson lias appealed from his conviction of the crime of robbery, alleged to have been committed in the Ozark District of Franklin County, Arkansas, on August 26, 1967. The evidence was sufficient to support the verdict of the jury finding appellant guilty of the accusation of having, along with on© Loyd Miller, robbed one Joe Bartlett. For reversal appellant contends that the trial judge permitted the prosecuting attorney to exhibit, read questions from, and comment on a purported written, but unsigned, in-custody confession made by appellant in the presence of the prosecuting attorney, deputy prosecuting attorney, the sheriff, a deputy sheriff, the jailer and the secretary to the deputy prosecuting attorney.
Appellant was arrested by the Criminal Investigation Division of the State Police Department at the recruiting station in Little Rock on Tuesday following the Saturday on which the robbery was committed. While in custody in Little Rock he was identified by Dorothy Bartlett, the wife of the victim.
Sheriff W. Dee Gober was called as a witness by the State. After testifying that appellant was taken into custody in Little Rock, he stated that appellant made a statement after he was returned to Ozark. When the prosecuting' attorney asked the sheriff to state the circumstances surrounding the making of the statement, the trial judge properly recessed the trial and conducted a hearing in chambers to determine the admissibility of any statement made "by appellant. During this hearing, it was shown that the Criminal Investigation Division officers, in the presence of Sheriff Gober, advised appellant of his right to remain silent, his right to counsel and his right to stop answering questions at any time, and of the fact that anything he said might be used against him in court. Appellant was not questioned while in Little Rock and did not make any statement there. On the day following his arrest, appellant was brought back to Ozark. According to the sheriff, appellant asked, on the morning of September 1st, if the prosecuting attorney could come down so appellant could make a statement. The sheriff stated that Deputy Prosecuting Attorney Cravens came to a living room in the jail at 1 p.m. and again advised appellant of his constitutional rights and that appellant signed a statement in the presence of W. Dee Gober and M. P. McClellan relating to the giving of this advice. Sheriff Gober testified that a statement was then voluntarily given by appellant and that during the questioning appellant was repeatedly advised that he should not make the statement if he did not want to do so.
On cross-examination the sheriff stated that Wilson never did sign this statement. Appellant’s counsel then objected to the introduction of the oral statement, but the trial judge ruled that it was voluntary. Appellant’s attorney’s objection to the introduction of the unsigned written confession was sustained by the trial judge who ruled that the officer might not read the statement from the witness stand. No exceptions were taken by appellant to either ruling of the trial judge. At the conclusion of the hearing, the deputy prosecuting attorney stated that the written statement would be put in the file.
The first action to which appellant directs our attention was an examination of the witness Gober about a statement signed by appellant with reference to his constitutional rights. Upon objection by appellant’s counsel, the trial judge advised the prosecuting attorney that this statement was for the record on the hearing to determine the admissibility of statements made by appellant, but not to be introduced in the trial. No exceptions were taken to the trial judge’s ruling. No request was made for any further action by the trial judge. The prosecuting attorney did not pursue the matter further. Thus, reversal could not be predicated on this action, even if it had been erroneous. Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653.
Sheriff Grober was examined and testified at length about oral statements made by appellant on the occasion he had described, without objection by appellant whose attorney cross-examined the witness about circumstances preceding and subsequent to the making of these statements. In the absence of any objection by appellant, the admissibility of these oral statements is not for our consideration on this appeal. Bivens v. State, supra. On the testimony presented to the trial judge, it seems that he was justified in finding that the statements were voluntary and that there was a conscious, intelligent waiver of constitutional'rights by appellant.
Appellant’s principal argument is directed toward an incident which occurred during the cross-examination of appellant by the prosecuting attorney about the statements. The entire record on this matter is as follows:
“THE COURT: I think it best that you put that paper back on the table, Mr. Rogers.
MR. YATES: If the Court please, we object to the use of the statement in the presence of the jury.
THE COURT: Both of you approach the bench.
MR. YATES: (Out of the hearing of the Jury) Comes the defendant and moves for a mistrial on the grounds that the Prosecuting Attorney is using an unsigned statement, not once but several times, and waving it before the Jury during cross-examination in strict violation of the instructions.
THE COURT: He has not been waving it before the Jury, and that motion is overruled.
MR. YATES: Save our exceptions.”
There is nothing in the record to indicate that the prosecuting attorney exhibited the unsigned statement, if indeed that is what the “paper” was, to the jury or that any of the jurors was able to see or identify the paper. The trial judge was in an excellent position to observe exactly what took place. Obviously he was alert, for he admonished the prosecuting attorney to put the paper on the table before any objection was made on behalf of appellant. Counsel suggests that the cross-examination of appellant was conducted by the prosecuting attorney by referring to the unsigned statement. Whether this is true or not, we cannot say that the denial of a motion for mistrial by the trial court was an abuse of its discretion in that regard.
Appellant relies on cases such as: Kasinger v. State, 234 Ark. 788, 354 S. W. 2d 718; Davis v. State, 243 Ark. 157, 419 S. W. 2d 125; Cabbiness v. State, 241 Ark. 898, 410 S. W. 2d 867; Anderson v. City of El Dorado, 243 Ark. 137, 418 S. W. 2d 801; Escobedo v. State of Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977; Binns v. State, 233 Ark. 259, 344 S. W. 2d 841; Turner v. Pennsylvania, 338 U. S. 62, 69 S. Ct. 1352, 93 L. Ed. 1810; Watts v. Indiana, 338 U. S. 49, 69 S. Ct. 1347, 93 L. Ed. 1801; Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694. None of them, except the Miranda case, is applicable here.
In the Kasinger case there was rather convincing evidence that a confession admitted into evidence was involuntary. No evidence was offered in the hearing on the admissibility of appellant’s statements to indicate that the confession was involuntary. In Davis v. State, supra, the State’s evidence clearly showed that the oral confession constituting the principal evidence against Davis was elicited by interrogation after he had stated that he did not want to tell what had happened. No such evidence was offered in this case. In Gabbiness, the record clearly showed that the prosecuting attorney pursued a line of inquiry with reference to a weapon which the court had clearly held inadmissible. The record here does not disclose any like conduct on the part of the prosecuting attorney. As a matter of fact, the court’s ruling on appellant’s objection states facts contrary to appellant’s contention. In the Anderson case, the trial court held that the State had failed to meet the burden of proving that the defendant’s statement was made after he had been advised of his right to counsel. In this case the only evidence shows that appellant was advised of his right to counsel prior to his making any statement. In Escobedo, the accused was denied a positive request for advice of counsel during interrogation. There is no evidence of any request for counsel by appellant. In Binns v. State, the reversal was based on undisputed evidence that the defendant there was subjected to almost continuous interrogation for 52 hours before he made a confession. In the Watts and Turner cases there were similar periods of interrogation. Here, the evidence indicates that there was no prolonged interrogation, but that appellant himself indicated, without any questioning, that he wanted to make a statement.
The only evidence which the trial court had to consider on the question of appellant’s statements shows full compliance with the requirements of the Miranda decision.
Finding no error, we affirm the judgment. | [
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Conley Byrd, Justice.
This petition for writ of prohibition questions the venue of Faulkner County for the maintenance of a suit by Bill Graddy against petitioner, Arkansas Valley Industries, Inc., containing four counts: (1) abuse of prosecution, (2) malicious prosecution, (3) vexatious suit, and (4) false imprisonment.
In addition, the complaint alleges that Bill Graddy suffered injury to his person in the nature of heartache, mental anguish, nervousness, sleeplessness, nightmare and shock.
Arkansas Valley Industries, Inc. has no officer residing in Faulkner County and no branch office or other place of business there.
Petitioner contends that the venue is governed by Ark. Stat. Ann. §§ 27-347 and 27-605 (Repl. 1962), which provide:
“27-347. Service on corporate agent at branch office. — Any and all foreign and domestic corporations who keep or maintain in any of the counties cf this State a branch office or other place of business shall be subject to suits in any of the courts in any of said counties where said corporation so keeps or maintains such office or place of business, and service of summons or other process of law from any of the said courts held in said counties upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporations and shall be sufficient to give jurisdiction to any of the courts of this State held in the counties where said service of summons or other process of. law is had upon said agent, servant or employee of said corporations. [Act Apr. 1, 1909, No. 98, § 1, p. 293; C. & M. Dig., § 1152; Pope’s Dig., § 1369.]”
“27-605. Actions against corporations. — An action, other than those in sections 84, 85 and 90 [§§ 27-601 — 27-603], against a corporation created by the laws of this State may be brought in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides ; but if such corporation is a bank or insurance company, the action may be brought in the county in which there is a branch of the bank or agency of the company, where it arises out of a transaction of such branch or agency. [Civil Code, § 92; C. & M. Dig., § 1171; Pope’s Dig., § 1393].”
The respondent contends that the action is governed by Ark. Stat. Ann. § 27-610 (Repl. 1962), which provides:
“27-610. Actions for personal injury or death.— All actions for damages for personal injury or death by wrongful act shall he 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. [Acts 1939, No. 314, § 1, p. 769.]”
In Robinson v. Missouri Pac. Transp. Co., 218 Ark. 390, 236 S. W. 2d 575 (1951), Robinson alleged that Missouri Pacific Transportation Company had unlawfully and maliciously conspired to bring about his discharge by manufacturing false testimony and lodging false charges of breach of trust in failing to account for fares collected by Robinson; that as a result of said conspiracy he was deprived of his employment and his present and future earning capacity; and that the good name and reputation which he formerly enjoyed were_thereby defamed, resulting in great shame, humiliation and mental anguish. The railroad company argued that the venue was controlled by Ark. Stat. Ann. § 27-610, supra, but in holding to the contrary we pointed out that in determining'the applicability of § 27-610 this court had distinguished between actions for physical injuries to the body and those involving injuries resulting from malicious prosecution, libel and other actions for defamation of character in general.
In Monk v. Ehret, 192 Cal. 186, 219 Pac. 452 (1923), there was under consideration a statute similar to ours, and after reviewing the history of the enactment of such statutes, it was concluded that the term “personal injuries” in the statute was limited to corporeal or physical injuries by reason of any violence. That court, in Plum v. Forgay Lumber Co., 118 Cal. App. 76, 4 P. 2d 804 (1931), followed the same construction of the term “personal injury” and held that an action for malicious prosecution and false arrest could not be maintained in the county in which the arrest occurred.
Other courts have held to the contrary. See Hatcher v. Southern Ry. Co., 191 Ala. 634, 68 So. 55 (1915).
However, we feel that under Robinson, supra, we are committed to the view expressed by California in Monk v. Ehret, supra, and consequently find that the Faulkner Circuit Court is without venue. Nor can we find anything in the allegation with reference to mental anguish which would change this result, since this was also a factor involved in the Robinson case.
Therefore the temporary writ heretofore issued in this case is made permanent. | [
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John A. Fogleman, Justice.
Appellants state in their motion for rehearing that notes #86019 and #87602 have been paid from funds handled by the First National Bank of Magnolia, through mistake and without any authority from appellants. The inference is that this was done without the knowledge of the appellants until sometime after the trial of the case.
A re-examination of the record in this case shows that these notes were never offered in evidence, although copies were exhibited with the complaint. While there is an admission on the part of Garland Anthony, Jr. that he executed these notes, appellants are correct that their validity as evidence of an indebtedness by'him was questioned throughout the proceedings and on this appeal. Judgment could not have been rendered in favor of appellants without the introduction of the original notes or an explanation for the failure to do so. Clark v. Shockley, 205 Ark. 507, 169 S. W. 2d 635. This reexamination also reveals that the statement in the original opinion that these notes were included in judgments for interest may not be justified. The record reflects that it was conceded through statements of counsel that these notes related to interest attributable to note #65935. The record is not clear as to the exact manner in which these notes were handled. It is not entirely clear whether the bank loaned money to Garland Anthony, Jr. which was then applied to payment of interest, or whether the notes merely represented accrued interest. Neither is it clear whether one of these notes might represent a part of the $4,500 which Anthony admits having paid on the principal obligation. In any event, liability on the notes was controverted and they were never introduced in evidence. For this reason the decree of the trial court should have denied recovery thereon.
In appellees’ brief it was stated that these notes were not in issue and that they had been previously paid by agreement of the parties during pendency of the action. In a reply brief, appellants appropriately called attention to the fact that this statement is unsupported by the record. The record does reflect that counsel for appellees, during the trial, stated that liability on these notes was still in issue.
Appellants now ask that this amount be credited against the judgment rendered against Garland Anthony, Jr. There is nothing in the record before us to justify this action. It is not clear to us whether the ap plication of funds complained of by Mm was made before or after the rendition of the decree in the lower court.
Rehearing is denied without prejudice to any right appellants might have to apply to the trial court for any relief to which the facts might show them to be entitled on account of newly discovered evidence and without prejudice to any recovery to which appellants might be entitled in a separate action because of matters arising or occurring after the rendition of the decree in the lower court.
Byrd, J., dissents. | [
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J. Fred Jones, Justice.
This is a workmen’s compensation case involving a back injury. The respondent accepted responsibility for a 27% permanent partial disability to the body as a whole based on medical evidence', but controverted any percentage in excess, of that amount. The referee, and the full Commission on review, awarded compensation for a 60% permanent partial disability and this award was affirmed by the circuit court on appeal. The respondent has appealed to this court and relies upon the following point for reversal:
‘ ‘ The court erred in affirming the order and award of the Arkansas Workmen’s Compensation Commission for the reason that there was not substantial competent evidence in the record upon which to base such order and award.”
Ark. Stat. Ann. § 81-1310 (a) (Repl. 1960) provides :
“* * * Compensation payable to an injured employee for disability shall not exceed sixty-five per centum (65%) of his average weekly wage at the time of the accident, and shall not be greater than thirty-five dollars ($35.00) per week, nor less than seven dollars ($7.00) per week, and shall be paid for a period not to exceed 450 weeks of disability, and in no case shall exceed twelve thousand five hundred dollars ($12,500.00), in addition to the benefits and allowances under section 11 [§ 81-1311] hereof. The minimum and maximum limitations of time and money expressed in the foregoing sentence shall apply in all cases pertaining to the payment of money compensation on account of disability.”
Ark. Stat. Ann. <§, 81-1302 (e) (Repl. 1960) defines disability as follows:
“ ‘Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.”
Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960) provides for scheduled injuries as follows:
“An employee who sustains a permanent injury scheduled in this subsection shall receive, in addition to compensation for the healing period, sixty-five per centum [65% ] of his average weekly wage for that period of time set out in the following schedule:
(1) Arm amputated at the elbow, or between the elbow and shoulder, two hundred [200] weeks; [This subsection then enumerates a total of 20 scheduled specific losses and sets out their value in weeks.]
# # #
(21) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for amputation of the member.
(22) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member.
(d) Other cases: A permanent partial disability not scheduled in subsection (c) hereof shall be apportioned to the body as a whole, which shall have a value, of 450 weeks, and there shall be paid compensation to. the injured employee for the proportionate loss of use of the body as a 'whole resulting from the injury.” (Emphasis supplied.)
Thus, it is seen that we actually have two types of disability, or two criteria, for measuring compensable disability, set out in our workmen’s compensation statute. Disability under the definition section, § 81-1302 (e), supra, is measured by “incapacity because of injury to earn” and loss of wages is a prime factor. The disability referred to under the scheduled injury section, % 81-1313 (c), supra, is measured in number of weeks of compensation and partial loss of the use of the body as a whole is the prime factor under § 81-1313 (d).
Thus, an injured employee who suffers a permanent partial loss of the use of his body is entitled to paymént of compensation for the number of weeks the percentage of such loss bears to 450 weeks. This loss of use-may consist of physical functional loss only, and its duration ¿nd extent may 'best be measured through physical examination by competent medical specialists. This permanent partial loss of use to the body may or may not also result in incapacity to earn the same wages received at the time of injury. An accidental injury under this subsection may result in a permanent partial disability consisting only of a partial loss of use of the body as a whole and with no change in earning capacity at all. An injured employee is entitled to the payment of compensation, however, for this loss of use whether his earning capacity is diminished by the injury or not. Dockery v. Thomas, 229 Ark. 984, 320 S. W. 2d 257. Where the permanent partial disability consists also of an incapacity, because of the injury to earn wages as defined and set out in § 81-1302 (e), supra, such disability includes, blends in with, and is usually greater than the disability occasioned by loss of functional use only.
The case of Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685, was a compensable heart case involving permanent partial disability including incapacity to earn wages. The maximum medical rating of disability, apparently based on functional loss of use to the body as a whole, amounted to 40%. The referee, in awarding compensation for a permanent partial disability of 40% to the body as a whole, failed to distinguish the two methods of measuring disability, as evidenced in his opinion, stated as follows:
“ 'In the case of Jesse A. DeBin v. Kaiser Engineers, reported Yol. 214, page 3 of the Opinions of the Full iCommission, the Commission held that evidence other than clinical findings cannot be considered to arrive at a rating for permanent partial disability. I must therefore only consider the medical rating of disability.’ ”
The award of the referee in the Glass case was sustained by the Commission and affirmed by the circuit court. The judgment of the trial court was reversed on appeal, and after quoting from Larson on Workmen’s Compensation Law, § 57.10, this court said:
“The maximum medical rating of disability in this case was 40%, which was allowed by the referee and affirmed by the Pull Commission. Apparently, they also considered only medical evidence and this we consider error. Under the rules as set out in Larson, consideration should have been given, along with the medical evidence, to the appellant’s age, education, experience, and other matters affecting wage loss.”
An excellent and pointed article analyzing Glass v. Edens, as distinguished from, and compared with, cases from other jurisdictions, is found in Arkansas Law Review, Yol. 18, p. 269. As recognized in this article, the rule laid down in the Glass decision is that the proper determination of the extent of permanent partial disability is reached through a balancing of wage loss disability (where wage loss is involved) with physical, functional disability.
The rule laid down in the Glass ease was affirmed and clarified to some extent in the case of Mann v. Potlatch Forests, 237 Ark. 8, 371 S. W. 2d 9, wherein the claimant liad been awarded compensation for a permanent partial disability of 25% to the body as a whole because of a back injury. He later, claimed a greater disability contending that the doctors had not considered his age, occupation, etc. as they should have done in arriving at their estimate of his permanent partial disabilty, and as was required that they should do by the decision in the Glass case. In affirming the Commission in the Mown case, this court reaffirmed the holding in the Glass case, that consideration should be given, along with medical evidence, to the appellant’s age, education, experience, and other matters affecting wage loss. The case was affirmed, however, on the ground that the Commission did take these elements into consideration. In the Mann case, this court further clarified the Glass opinion in these words:
“The Glass opinion places the duty on the Commission, and not the doctor, to consider the elements mentioned above. In the cited case we said: ‘Apparently, they also considered only medical evidence and this we consider error.’ The word “they” obviously refers to the Commissioners and not the doctors. In the next place, appellant is in no position to contend the Commission failed to take into consideration his age, occupation, etc. The record shows that the Commission was made aware of our holding in the Glass case, and we cannot say it did not follow that holding here in arriving at appellant’s disability.”
The workmen’s compensation Commission is charged with the duty and the full responsibility of deciding all claims for disability falling under its jurisdiction, and although its decisions are based on competent evidence, it is not limited, and never has been limited, to medical evidence only in arriving at its decision as to the amount or extent of permanent partial disability suffered by an injured employee as a result of injury. The Commission should consider all competent evidence, and where the claim is for permanent partial disability based on incapacity to earn, the Commission should consider all competent evidence relating to such incapacity, including the age, education, experience, and other matters affecting the claimant’s incapacity to earn the same Wages he was receiving at the time of his injury. The Commission should form its opinion and base its award on the preponderance of all the competent evidence, including medical, as well as layjfcestimony, and also including the testimony of the claimant himself. The Com mission weighs all of the evidence as a jury would do and we affirm the order or award of the Commission on appeal unless the Commission acted without, or in excess of its powers; unless the order or award was procured by fraud; unless the facts found by the Commission do' not support the order or award; or unless there was not sufficient' competent evidence in the record to warrant the making of the order or award. [Ark. Stat. Ann. § 81-1325 (b) (Repl. 1960).] We have many times held that the findings of fact made by the Commission are entitled to the same force and effect as a jury verdict, and will not be disturbed on appeal if supported by substantial evidence. (Hollifield v. Bird & Son, Inc., 227 Ark. 703, 301 S. W. 2d 27.)
Turning now to the case at bar, the appellee was 24 years of age when he was injured. He had an eighth grade education and quit school to help support his mother and brothers and sisters when he was sixteen years of age. He was married at the time of his injury, and has two children of his own. Appellee was more or less an itinerant worker. He changed jobs rather frequently, but seemed to lose little time between jobs. All the jobs appellee ever did, or knew how to do, consisted of heavy manual labor, ranging from cutting and carrying mining posts in Pennsylvania, to dipping chicken off-fall from a vat with a bucket in Fayetteville, where he was injured. The appellant agrees with our holding in Glass v. Edens, supra, but argues that the appellee in the case at bar has failed to prove that he has a permanent partial disability in the magnitude of 60%.
Appellee underwent an operation for the removal of a herniated intervertebral disc. He testified at the hearing that he was in constant pain and had been since his injury. Two of his former employers testified that they could not re-employ him because of incapacity to work as reflected by the medical reports in evidence.
Dr. Tom P. Cocker on May 10, 1966, reported as follows:
“I do not believe that there is likelihood of further improvement as far as the back is concerned although the patient should continue on exercises' in that hope.
“I do not think that he will be able to return to manual type work or anything that requires repeated bending, stooping, lifting or prolonged standing or walking. It is my opinion that the patient has a permanent partial disability to his body as a whole of 25%.”
On June 8, 1966, Dr. William G-. Lockhart, a neurosurgeon of the Holt-Krock Clinic in Fort Smith who performed the surgery on appellee, reported as follows:
“As stated in previous correspondence, I feel that we cannot, on any means, classify this boy with anything but a poor result from surgery.
“Once we get through the emotional and psychogenic overlay here, I think that we would be justified in suggesting a permanent partial disability of the body as a whole of 25% to 30%.
“I do not feel that this boy is going to be able to go back to an employment that he has enjoyed before such as manual exertions of lifting or bending over postures.
“I do believe that he is employable in such work as bench work, in which he might be re-trained in. If he was able to get back into an employable situation, regardless of its nature, I am sure that this would help reduce some of his anxiety and emotional overlay.”
On July 1, 1966, Dr. Stanley Applegate reported as follows:
“I have seen Mr. Christman this week and believe that he has 25% permanent disability due to his back trouble and have recommended that lie settle as soon as possible and get into Vocational Rehabilitation and learn a trade where he will not have to use his back so much as he was doing common labor at Wilson and Co.”
All that appellee had ever done, or knew how to do, required stooping, bending and lifting. There is evidence in the record that appellee suffered poor eyesight as an additional handicap to some types of employment. The importance of appellee’s educational background and experience in evaluating his disability in connection with his incapacity to earn because of his injury, is pointed up in Dr. Lockhart’s earlier report' of July 1, 1966, wherein he said:
"Several days ago, 6/20/66, he appeared in my office accompanied by his wife stating that he had total paralysis of the right lower extremity that had come on spontaneously.
" * * * It was obvious, when he was examined in the office, that we were dealing with either a hysterical paralysis or malingering.
"I feel that 1 have done as much as I can do with this man at the present time. They seemingly do not wish to accept the fact that this could be a hysterical problem and certainly his wife does not even like to consider the fact that there may be a question of malingering here also. It is obvious that we are not dealing with that degree of physical disease at the present time that would cause the magnitude of problems, or for that matter what physical disease is present is so far over-shadowed by these other factors that it is impossible to treat this man intelligently without thorough psychiatric evaluation and treatment.”
It goes without saying, and without the' necessity for citation of cases, that true malingering is not a form of disability of any sort. It is a form of ability rather than disability. It is a form of ability to feign injury or disability that does not exist. Had appellee in this case been malingering his disability, the Commission might well have determined that he had none. If appellee was suffering a true hysterical paralysis or reversionary reaction of a total degree and permanent nature as a result of the injury, the Commission might well have found that his permanent partial disability amounted to considerably more than the 60% awarded in this case.
In Larson’s Workmen’s Compensation Law, § 42.22, numerous cases from other jurisdictions are cited in support of the following statement:
. . [W]hen there has been a physical accident or trauma, and claimant’s disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, it is now uniformly held that the full disability including the effects of the neurosis is compensible. Dozens of cases, involving almost every conceivable kind of neurotic, phy-chotic, depressive, or hysterical symptom or personality disorder have accepted this rule.”
The opinions of attending physicians and medical experts are admissible as competent evidence when properly presented in a compensation case, but such opinions are not conclusive. They are only to be considered by the Commission along with all other competent evidence, medical and otherwise, in arriving at the degree of permanent partial disability in a compensation case.
Appellant argues that there is no evidence to sustain the Commission’s award of 60% permanent partial disability. It is true that no one testified that claimant had a 60% permanent partial disability. Neither did any witness, including the appellee’s own testimony, fix his partial disability at 50% or 70,% but there is substantial evidence in the record that appellee has suffered a disability both in the loss of use. of his body as a whole, and in loss of capacity to earn in the same or any other employment, the same wages' he was receiving at the time of the injury. There is substantial evidence that this disability is permanent in nature and we are of the opinion that there is substantial competent evidence in the record to justify the Commission’s order and award based on a 60% permanent partial disability to the body as a whole.
Judgment affirmed. | [
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Paul Ward, Justice.
This litigation arises out of an automobile collision.
Jimmy Cherry, appellant, filed a complaint against Danny Vinson, appellee, alleging, in material parts: The collision occurred on Hospital Road in Nashville; that appellee was negligent in failing to keep a proper lookout; in stopping his car in such manner as to create "a danger to motorists, and in refusing to abide by traffic laws. He alleged and asked for the following damages: $2,414 for damage to his car; $546 for medical and hospital expenses; and, $23,000 for loss of earnings. A few days later Motors Insurance Corporation also filed a complaint (in the same court) against appellee, alleging that it had issued its policy to appellant covering his damaged car, that it had already paid him $2,371.50 in full settlement, and that it was subrogated to the rights 'of appellant. Its prayer was for judgment in the said amount against appellee.
To the above complaints appellee alleged that the alleged injuries and damages were caused by the negligence of appellant.
A jury trial resulted in a verdict in favor of Cherry for $800 against appellee. The jury made no finding in favor of Motors Insurance. Both parties now prosecute this appeal, alleging two points for a reversal: One, the trial court erred in refusing to admit certain testimony. Two, the verdict of the jury was contrary to the court’s instruction.
One. It is our conclusion that the case must be reversed on this point. One of the specific acts of negligence with which appellee was charged was that he improperly parked oh the street in violation of traffic rules and regulations. After the collision a traffic officer made an investigation. Appellants offered to introduce testimony to show appellee pleaded guilty in the Nashville City Court to a charge of “improper parking”, and it was refused by the trial court. We think the jury had a right to consider this testimony for what it was worth on the issue of comparative negligence as be tween appellee and appellant, Cherry. In Harbor v. Campbell, 235 Ark. 492, 360 S. W. 2d 758, the applicable rule was announced as follows:
“A plea of guilty for traffic violation for the identical traffic mishap is certainly a declaration against interest; and such plea of guilty is as admissible as any other declaration against interest in any other case.”
Two. Since the case must be reversed on point One the cause of action must be retried as to all parties. In view of that situation we merely point out [as was pointed out by the trial court] that if the jury finds against appellee for any amount in favor of Cherry it must also find against appellee in some amount in favor of Motors Insurance Corporation under the admitted facts in the record before us.
Reversed and rémanded. | [
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Conley Byrd, Justice.
Appellant Robert C. Stroud, in his capacity as a taxpayer, appeals from a decree holding valid a contract between Holiday Manufacturing Company and the Pulaski County Special School District. Appellant instituted his action pursuant to Ark. Stat. Ann. § 80-136, -137 and -1909 (Repl. 1960) against the School District; E. F. Dunn, Superintendent; and Winston G-. Chandler individually and as a member of the School District, to enjoin only the pay ment of the transportation costs — the validity of the balance of the contract is not challenged. The complaint alleges that the School District entered into a contract with "Winston Gr. Chandler, a hoard member, through a corporation owned by Chandler and his family known as Chandler Trailer Convoy, Inc., to move certain relocatable school buildings from Holiday’s plant in Camden to the sites desired by the School District. Holiday Manufacturing Company, a division of Holiday Inns of America, Inc., and Chandler Trailer Convoy, Inc., intervened.
The School District had entered into their separate contracts for delivery, P. O. B. school’s address, of a total of 25 such buildings. The price per building in each contract is the same and the other charges are in proportion thereto. A portion of the July 28, 1966 contract showing the way Holiday arrived at its contracted amount is as follows:
“That the Seller, in consideration of the covenants, on the part of the Buyer, hereinafter contained, hereby agrees with the Buyer, that the Seller will deliver to the Buyer at the Buyer’s address,.above listed, the following described equipment, for the following sum of money:
1. Twenty (20) Portable, Relocatable Buildings, 26 ft. x 56 ft., f.o.b. factory, at $13,643.00 per building $272,860.00
2. Twenty (20) Partition Walls, full width and height, at $298.30 ea. 5,966.00
3. Twenty (20) Hollow Core doors, 1 3/8 in. x 2 ft. 8 in. x 6 ft. 8 in., complete with door jambs, stops, hinges, and hardware, installed and painted, at $30.45 ea. 609.00
4. Welsch California Ash Hardwood Paneling, installed, at $152.00 per building, Total of $2,736.0 Sub-Total No■ Charge $279,435.00
5.Sales Tax (Arkansas) at 3% 8,303.05
6.Transportation. — 40 units (20 buildings) including permits at $86.00 per unit 3,440.00
7.Service Charge — 40 undercarriages for 95 miles average, at $.10 per mile per unit 380.00
Total $291,638.05
of good merchantable quality and in accordance with specifications and the letter furnished to Pulaski County Public Schools, Pulaski County, Little Rock, Arkansas.”
It was shown that, of the $86 transportation charge per unit, Holiday calculated $8 as overhead consumed by it in connection with the transportation of the buildings*Another $8 was paid to the state: $5 for the special permit required to transport each unit and $3 for a transit tag. 'The remaining $70 was paid to the common carrier for transporting one unit of the building frota Camden to the school site. Each building consisted of two units.
The record further shows that Winston Gr. Chandler is president of Chandler Trailer Convoy, Inc., of which he owns 14 per cent of the stock; that his wife owns 50 per cent of the stock; and that the balance is owned by other family members. Chandler Trailer Convoy, Inc. is a common carrier of transport and holds a Certificate of Convenience and Necessity under the regulations of the State Commerce Commission. Only two other entities are authorized by the State Commerce Commission to engage in similar intrastate transportation of portable buildings. They are Arkansas Transit Homes and Morgan Driveaway, Inc. Arkansas Transit Homes is owned by Chandler’s brother. Chandler owns no interest in Arkansas Transit Homes, nor does the brother own an interest in Chandler Trailer Convoy, Inc. Morgan Driveaway, Inc., has its home offices in Elkhart, Indiana. Its closest terminal is St. Lonis.
The tariffs filed with the State Commerce Commission by Chandler Trailer Convoy and Arkansas' Transit Homes authorize the transportation of the Holiday units from Camden to the school site for $70 per unit. The filed tariff rate for Morgan Driveaway, Inc., is $104 for the same transportation. Our laws, Ark. Stat. Ann. § 73-1770 (Repl. 1957), provide that no greater or less or different compensation for transportation or for any service in connection therewith between the points enumerated in such tariff shall be charged, demanded or collected. The record shows that after Chandler Trailer Convoy hauled 34 of the units the rest were hauled by Arkansas Transit Homes. It is silent about any contract between Chandler Trailer Convoy and Holiday Manufacturing Company when the contracts were entered into between the School District and Holiday. So far as the record shows, the dealings between Chanter Trailer Convoy and Holiday were on an “as needed’’ basis.
Ark. Stat. Ann. § 80-136, -137 and -1909 make it unlawful for any school board member to be interested directly or indirectly in the sale of any commodities sold to and purchased by the member’s district. Thus, in determining whether the contract was void or voidable we look at the contract at the time it was executed. Unless Chandler was to receive a benefit either directly or in7 directly when the contract was executed between the School District and Holiday, then Holiday’s contract would be valid. The only proof on this issue is that the itemized transportation charge coincides with Chandler’s tariff. But here again, the transportation charge also coincides with the tariff filed by Arkansas Transit Homes. Since t'he law will not presume that the parties to a contract intended an illegal act, 17 Am. Jur. 2d, Contracts, § 238, we are unwilling to say that this meager evidence is sufficient to show that Chandler had an interest either directly or indirectly in the contract between Holiday and the School District at the time the contract was executed.
The record indicates that the contract between Holiday and the School District was upon competitive bid. Defendant’s Exhibit 7 is entitled “Bid 'Sheet” and has attached thereto specifications for portable buildings for the Pulaski County Special School District. In this instance bids were taken and apparently the bids were let to the lowest bidder meeting the specifications required by the School District. At any rate, Superintendent Dunn testified that the specifications for the bids were drawn so that they would not eliminate any bidder. Of course, if the contract was let on competitive bids, then appellant’s argument is without merit, because Ark. Stat. Ann. § 80-1909, supra, specifically recognizes that a board member may deal with the school district as to material upon competitive bids.
Affirmed.
George Rose Smith,¡ J., dissents. | [
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J. Fred Jones, Justice.
On January 2, 1962, the appellant, Carl Widmer, purchased from the appellees, Modern Ford Tractor Sales and its agent, W. A. “Jake” Davis, a Landmaster tiller under a conditional sales contract for a total purchase price of $1,195.14. When appellant defaulted in the final payment due on January 2, 1963, the tiller was repossessed by appellees.
On December 3, 1965, appellant filed suit in the Sebastian'County Circuit Court alleging damages in the amount of $3,250.00 because of breach of warranties in the sale of the tiller and alleging that the tiller with the attachments was worth $1,250.00 when appellees wrongfully trespassed and took the equipment from appellant. Appellant prayed judgment for compensatory and punitive damages in the total amount of $7,556.25.
The issues were joined by answer and counterclaim on a welding and repair bill allegedly owed to appellees by the appellant. After the answer and counterclaim was filed, appellant, on April 12, 1966, filed a request for admission of the truth of 27 separate statements covering all of the detailed allegations in the complaint. Each of the facts stated by appellant, which he requested appellees to admit, were all separately denied, or admitted, by the appellees on April 22, 1966, and copy was mailed to Widmer on April 23. Appellant then on July 5 filed “Interrogatories to Defendant” which in effect required that the answers to the original requests for admission be made more definite and certain. Example: “Please state the facts on which you base your denial of request for admission of fact No. 5.” On July 8, 1966, appellant filed additional requests for admissions. Example: “That the Landmaster Mark 650 Tiller literature from which the photo-copies of statement No. 1 were obtained, was obtained in the showroom of Modern Ford Tractor Sales located at 1320 Towson Ave. in Fort Smith, Arkansas.” On July 15 appellant propounded additional interrogatories to appellees.
On July 15 appellees filed a motion to quash the interrogatories filed on July 5 and the request for admission of facts filed on July 8. On July 22 appellees filed a motion to quash the additional interrogatories filed by appellant. On July 22 appellant filed a motion to stay proceedings on appellees’ motions pending appellant’s full opportunity to exercise his rights under discovery procedure. By agreement of the parties, On August 3, 1966, an order of the court was entered .requiring that all discovery procedures be completed by September 1, 1966, and setting the case for trial on September 27, 1966. On August 29, 1966, appellees’ motion to quash the interrogatories filed on July 4, was granted and the motion to quash the requests for admissions of fact filed on July 8 and the interrogatories filed on July 15, were granted in part and denied in part. Ap-pellees filed answers to the interrogatories and requests for admission on which their motion to quash was denied.
The case was not tried on September 27, 1966, as originally set, and on March 17, 1967, appellant filed additional requests for admission. Example:
“That the net fair market value of the crop losses suffered by plaintiff because of the delays in planting and subsequent reduction in yields of the crops, as set out in statement 6, after harvesting- costs, would be $900.00 for the 60 acres of Spring Barley; $1,275.00 for the 85 acres of Spring Oats; and $1,-075.00 for the 170 acres of Fall Soybeans; and that the total net fair market value after harvesting costs, of the crop losses suffered by plaintiff because of delays in planting and subsequent reduction in yields of crops resulting therefrom during •the 1962 crop year would be $3,250.00.”
On March 22 appellees filed mob on to quash the requests for admissions alleging in their motion as follows :
“That since the 3rd day of December, 1965, plaintiff has pursued this matter against the defendants and others in this court and in other courts of this county, and the plaintiff has from time to time since said date filed an untold number of interrogatories and requests for admission of facts which have been answered; that now the continued propounding of same is simply for the purpose of annoyance, expense, embarrassment and oppression, .all of which is contrary to the spirit and purposes of the discovery procedures of this state; that the same are irrelevant and argumentative and that the Request is otherwise improper in whole or in part, and for said reasons same should be quashed.
“It is further pointed out that all discovery procedures were closed in this matter as of September 1, 1966, by court order of August 3, 1966.”
This motion was granted on March 22, and on April 21, 1967, appellant filed motion for summary judgment.
A jury was waived and on May 29, 1967, this case proceeded to trial before the court sitting as a jury, at which time the court made the following comments of record:
“Upon examination of the file, I find that the request for the admissions of fact dated April 12, 1966, were all answered and denied by the defendant on April 22, 1966. So, contrary to the assertion here, they are not deemed admitted in their entirety for failure to respond.”
The court then continued, as revealed by the record, as follows:
“Now, Mr. Widmer, gentlemen, the requests for admissions of fact dated March 17th were ruled out by the Court. We said that defendant was not required to answer them, and that was done in the Court’s order of March 22, 1967. Now, that is what the defendant [sic] relies upon except that he says he has a verified complaint and that what admissions of fact he has, and I don’t know what he is referring to really — in the interrogatories I haven’t found anything of significance — -basically it seems he’s resting on his verified complaint. Here is the plaintiff representing himself and he, in effect, as I understand it, has submitted his verified complaint as an affidavit in support of his motion for summary judgment. Is that correct, Mr. Widmer?
MR. WIDMER: Yes, but, Your Honor, there are answers to two interrogatories — you know, where they set out the amount of funds they received for the sale of this tiller, that they did answer. Other words, the court order and the order to these where they state who they sold it to and the amount they received.
THE 'COURT: Right, and that would' go to the counterclaim. That’s- going as a defense to the counterclaim?
MR. WIDMER: Yes, that’s right.
THE COURT: But for the reasons I’ve said— and, Mr. Widmer, I’ve been, if anything, overly meticulous about this, to try to get you to understand why the Court feels that it cannot render your motion for summary judgment. I hope you understand the basis for my ruling.
MR. WIDMER: Yes, sir.
THE COURT: Now, we’re talking about the ifiotion for summary judgment on the complaint. Both counts I and II. So let me ask you now — do I understand you correctly that it’s your wish to simply stand on your motion?
MR. WIDMER: That is right, your Honor.
THE COURT: Without any proof in connection with it?
MR. WIDMER: Yes, sir.”
Appellant refused to go forward with any proof at all. Appellees did offer proof in contradiction to appellant’s complaint, but- before doing so the record reveals the following inquiry by the attorney for the appellees and response by the court and the appellant:
“MR. THOMPSON: Do I understand that the plaintiff is not going to go forward with his case?
THE COURT: He is resting. Your answer?
MR. WIDMER: Motion for summary judgment? You mean on this other counterclaim, this counterclaim?
THE COURT: No, on the complaint.
MR. WIDMER: Yes, we are resting op our motion for summary judgment.”
None of the evidence was abstracted by appellant in his brief, but on May 29, 1967, the trial court entered judgment for appellees as to appellant’s complaint, and the complaint was dismissed with prejudice.
A cursory check of our reported cases over the past two years reveal that this is the fourteenth appeal by Mr. Widmer to this court from adverse judgments and decisions of the Sebastian County Circuit Court wherein Mr. Widmer attempted to act as his own attorney. Widmer v. Wood, 243 Ark. 32 (9-18-67); Widmer v. J. I. Case Credit Corp., 243 Ark. 149, 419 S. W. 2d 617 (10-1-67); Widmer v. Wood, 243 Ark. 457, 420 S. W. 2d 828 (11-13-67); Widmer v. Kennedy, Albers & Phillips, 243 Ark. 527, 421 S. W. 2d 609 (11-20-67); Widmer v. Wood, 243 Ark. 617, 421 S. W. 2d 872 (12-4-67): Widmer v. State, 243 Ark. 952 (1-22-68); Widmer v. Tole, 243 Ark. 990 (1-19 & 31-68); Widmer v. Apco Oil Co., 243 Ark. 773, 421 S. W. 2d 888 (12-18-67); Widmer v. Gibble Oil Co., 243 Ark. 735, 421 S. W. 2d 886 (12-18-67); Widmer v. Wood, 244 Ark. 307 (3-11-68); Widmer v. Price Oil Co., 243 Ark. 756, 421 S. W. 2d 885 (12-18-67); Widmer v. J. I. Case Credit Corp., 239 Ark. 12, 386 S. W. 2d 702; Widmer v. Ft. Smith Vehicle & Machine Corp., (still pending in this court). All of these cases are of a similar nature in that Mr. Widmer relied on motions and requests . for admissions, and he offered no evidence, in support of his contentions, in any of them.
We take judicial notice of the expense involved in perfecting an appeal to this court, and in a number of Mr. Widmer’s cases the foreseeable cost of appeal amounted to more than the amount involved in the litigation. (Widmer v. Apco Oil Co.; Widmer v. Gibble Oil Co.; Widmer v. Price Oil Co., supra). Knowledge of how to prepare and file the various instruments permissible under our civil code is, of course, an elementary necessity in the practice of law, but a thorough knowledge of the office of the instrument, and when and why it should be used, is indispensable in the proper preparation and trial of a lawsuit. A knowledge of how to proceed in the trial of a lawsuit after a motion has been granted or denied, or after requests for admissions have been complied with, refused, or ignored, is more important in resolving differences by a fair and impartial trial in a court of law than is the knowledge of how to prepare and file such motions or requests. We recognize a litigant’s right to attempt his own representation in the courts of this state under our code of practice, but regardless of the amount in controversy or the merits of a litigant’s cause, we know of no way to protect a litigant against the incompetency of his attorney when he insists on representing himself in a court of law.
We have held that upon a motion for summary judgment the burden is on the movant to show that no justiciable issues exist. Widmer v. J. I. Case Credit Corp., supra. We have also bdld that a motion to quash requests for admissions may constitute written objection thereto and that a failure to answer the re quests in such case does not necessarily mean that the requests stand admitted. Widmer v. Wood, 243 Ark. 617, 421 S. W. 2d 872.
All of appellant’s requests for admissions filed on April 12, 1966, were admitted or denied by appellees in the case at bar. The trial court did not abuse its discretion in quashing appellant’s interrogatories of July 5, 1966, and in quashing appellant’s request for additional admission of facts filed on March 17, 1967.
Although appellant designated the entire record in this case and failed to abstract the evidence offered by the appellees, we have examined the transcript of the testimony of the witnesses produced by appellees and there is substantial evidence in the record to sustain the judgment of the trial court.
The judgment is affirmed. | [
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Paul Ward, Justice.
This is an appeal by Carl W. Widmer (appellant herein) from a chancery decree which denied appellant’s motion for summary judgment, and also directed a verdict in favor of Fort Smith Vehicle and Machinery Corporation (appellee herein).
A brief summary of the background facts and court proceedings is sufficient for an understanding of the issues here involved.
On November 29, 1965 appellant filed a complaint in circuit court alleging appellee had illegally entered upon his farm and carried away a grain drill which he purchased March 12, 1963 on a “conditional sales contract”. He asked for the value of the drill, and also for punitive damages. Appellee answered on December 9, 1965, denying all material allegations. From that date until September 20, 1966 appellant filed numerous pleadings —including interrogatories, Motions for Admission of Facts, and Motions for Summary Judgment. To all of these motions appellee replied by motion or answer.
On file last mentioned date appellee filed a Counterclaim, and a Motion to Transfer to a court of Equity, alleging a need to reform portions of the conditional sales contract in accord with the intention of both parties. Six days later the circuit judge entered an Order transferring the cause to the chancery docket. This was done without opposition on the part of appellant.
On August 7, 1967, approximately eleven months after the case had been transferred to the Chancery Court, appellant filed a “Motion for Summary Judgment” supported by his own affidavit, Appellee responded to the above Motion, stating “there are genuine issues as to material facts in this case ’ ’ — pointing out the issues in detail. On August 14, 1967 the Chancery Judge delivered to both parties a “Pre-Trial Memorandum and Order” in which he stated: the Motion for' Summary Judgment is denied; there are genuine material issues of facts to be decided; it was agreed at a pretrial conference that both sides would present testimony, and; the case is now ready for trial.
When the case was called for a hearing both sides announced ready. Upon being asked to proceed, appellant declined to put on any witness but stated that he was standing on his Motion for a Summary Judgment. Then on appellee’s Motion, the trial court found:
‘ ‘ That the plaintiff, having the burden of proof and the burden of going forward with the evidence as to these issues, has failed to go forward with the evidence, or otherwise establish a prima facie case against the defendant, and .judgment should be given, therefore, for the defendant as to plaintiff’s complaint. ’ ’
Accordingly, the court dismissed appellant’s complaint with prejudice — hence this appeal.
It is our conclusion that the decree of the trial court must be affirmed because, the Order of the trial court, denying appellant’s Motion for a Summary Judgment, is not on appealable order. See: Carl W. Widmer v. Fort Smith Vehicle & Machinery Corporation (No. 4568)—opinion delivered this date.
Affirmed.
Smith and Foglemah, JJ., dissent. | [
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Lyle Brown, Justice.
Theron McGhee and other taxpayers of Perry County brought this suit in 1966 to enjoin County Judge W. A. Glenn from using county labor and equipment on private property. They also sought a money judgment against Judge Glenn to reimburse the county. A permanent injunction was granted hut compensation was denied. From the disallowance of a money judgment the taxpayers appeal.
At the time of the trial in 1967, Judge Glenn was in his eleventh year as presiding judge of the county court. During his tenure numerous private property owners had been the recipients of work projects performed with county labor and equipment, including work on three farms owned by the judge himself. There was no direct payment to the county. Among other powers the county court has exclusive original jurisdiction over all matters relating to county roads and bridges; it has control and management of all county property, which of course includes varied types of road machinery. Ark. Stat. Ann. § 22-601 (Repl. 1962). It is the county court, not the county judge, in which these responsibilities and powers are vested. Needham v. Garner, 233 Ark. 1006, 350 S. W. 2d 194 (1961). It is not clear whether any or all the projects were performed (1) solely at the direction of the county judge, (2) under orders duly entered by the county court, or (3) possibly by virtue' of an order entered by the quorum court. More will be said about this deficiency, which we consider significant.
The taxpayers asserted that the county was entitled to be compensated for six projects. For the purpose of this opinion they fall into four categories:
Project One. This project concerned work performed on property owned by Joe Majors and Yirgil Pearson. In response to a motion by Judge Glenn to make more definite and certain the taxpayers listed thirteen projects which they considered illegal. The Majors-Pearson project was not listed. The trial judge, and properly so, restricted the taxpayers to those nroj-ects enumerated.
Projects Four and Five. These ventures involved work performed on lands belonging to Bossy Glenn ^uid on Judge Glenn’s farm east of Adona. If the claim to compensation were otherwise Valid, they would be barred by the statute of limitations. The best evidence is to the effect that the work was performed in, 1958, 1959, and 1960. The claim, would be govérned by our three-year statute of limitations. Ark. Stat. Ann. ,§ 37-206 (Repl. 1962).
Project Two. Work was performed on town lots owned by O. O. Oates and his son. There was substantial evidence to show that over the years Mr. Oates had given to the county several hundred, loads of gravel and shale from his farm. The material was used on the county roads. Judge Glenn considered the work performed for the Oateses to be small pay for the large quantities of raw materials Mr. Oates had furnished gratis to the county. The chancellor’s finding that Judge Glenn had acted in good faith cannot he said to he against the preponderance of the evidence. Of course this is not to say that the correct procedure was followed.
Projects Three cmd Six. Project Three involved improvements made on the county judge’s farm at Perry. Project Six consisted of work done on his farm west of Adona. Our discussion to follow will be in relation to those two projects. For the improvements there constructed, Judge Glenn may be liable, depending on certain elements of proof which should be developed on remand.
On one of the vital points in this case our law is very clear. A county judge, as distinguished from the county court, has no authority to use county machinery on private property for private use. Needham v. Garner, supra. Further, Ark. Stat. Ann. § 22-612.1 (Repl. 1962) makes it unlawful for any county judge to be interested, directly or indirectly, in any transaction made on behalf of the county, or to receive anything of value for his benefit on account of any transaction made for the county. It constitutes a violation of that statute >if a county judge is interested in an improvement where the county contributes to the improvement with its labor and machinery just as much as if the county had paid out cash. State v. Anderson, 200 Ark. 588, 139 S. W. 2d 682 (1940). It was unquestionably established that county machinery and labor were utilized on Projects Three and Six.
In face of the recited law and the established facts, a determinative element could possibly be the existence of a court order authorizing the projects. See Hutson v. State, 171 Ark. 1132, 287 S. W. 398 (1926). On this point the record is far from satisfactory. The taxpayers’ attorney was questioning Judge Glenn concerning work performed with county labor and equipment on his brother’s farm:
“Q. Do you know to your personal knowledge when this work up at Bossy Glenn’s place took place ?
“A. Yes, sir.
“Q. When was it?
“A. 1961.
“THE COURT:
Before you terminate this let me ask a question of Judge Glenn; I notice this suit is against the County Judge and you in your representative capacity; Judge Glenn, have each of these occasions where work has been done have you been acting in your capacity as County Judge and exercising your judgment to the best of your ability in a judicial capacity?
“A. Judge Williams, I sure have.
“MR. THOMAS:
Did the Quorum Court ever enter an order. authorizing you to do that?
“A. Yes, they did.”
We are unable to determine with certainty whether Judge Glenn purported to testify that the quorum court authorized all the projects to which the court’s question was directed, or whether he was asserting that the quorum court authorized the work on Bossy Glenn’s farm. The latter was the subject matter of Attorney Thomas’ questioning before the chancellor interjected his question. Additional confusion arises from the fact that the term “quorum court” is used rather than “county court.” The principal duties of the quorum court are tó levy county taxes and make appropriations for public purposes. It is difficult to believe the quorum court would authorize numerous specific work projects on private property. The matters for which it makes appropriations are specified under eight headings and none of those items even remotely touch on private projects. Ark. Stat. Ann. § 17-409 (Repl. 1956).
This court was faced with an analogous situation in Ward v. Farrell, 221 Ark. 363, 253 S. W. 2d 353 (1952). There the county judge was sued for the recovery of moneys drawn in his capacity as Road Commissioner. The record was incoherent on a vital point. Judge Farrell had expended his own money and subsequently drew funds to reimburse himself. The record was not clear whether Greene 'County received full benefit for the claimed expenses. In that situation this court remanded the case for further development of that point in order to give Judge Farrell an opportunity to show to what extent he actually incurred necessary expenses.
In the case at bar, it can be forcefully argued that the burden was on the taxpayers to establish the absence of judicial authority for these two projects on Judge Glenn’s farms. On the other hand, it can be logically reasoned (1) that there is no statutory authority to be found under any circumstances for the projects to have been performed; (2) the law is clear that a county judge, as distinguished from the county court, is strictly prohibited from authorizing the projects; and (3) it was not disputed that the work was in fact performed. In view of tlie law and undisputed facts it can be reasoned that a court order authorizing the work would be in the nature of an affirmative defense to be produced by Judge Glenn. However, we do not find it necessary to fix the responsibility for presenting the proof. We try the case de novo and we find the record so confused on this particular point that no court can do equity to either of the litigants. In that situation we feel justified in following the procedure in Ward v. Farrell, supra.
The taxpayers offered testimony relating to the cost of Projects Three and Six. They employed a registered professional engineer who inspected the projects for the purpose of testifying. That inspection was very brief, and long after completion; in his own words he was “at the mercy of my source of information which tells me that certain things took a certain amount of time”; whether all of the levees and flood gates as to Project Three are on private property is not clear; and the exact source of the materials there used — tile and flood gates — is not clear. On retrial, if the court reaches the question of compensation, the subject should be more satisfactorily developed. The measure of recovery would be the price the landowner would have had to pay for machinery, labor, and materials on the competitive market at the time of construction.
We do not disturb the order of the chancellor permanently enjoining the county judge from the illegal use of county equipment on private property for private benefit. In fact there is no appeal on that point. We remand for further proceedings with; respect only to those projects we have designated as numbers three and six.
Affirmed in part, reversed in part.
Judge Glenn also stated — only as a conclusion — that the work on his Perry farm reduced flooding of adjacent highways. Quantum, meruit has been held to be a valid defense in certain situations. See Dowell v. School District No. 1, Boone County, 220 Ark. 828, 250 S. W. 2d 127 (1952); and Ward v. Farrell, 221 Ark. 363, 253 S. W. 2d 353 (1952). | [
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George Rose Smith, Justice.
This is a guest statute case. On the night of May 26, 1966, the appellee Pam Myklebust, age 21, the appellant Jerry G. Palmer, and another yonng couple were riding in North Little Rock in a car being driven, by Jerry. Pam was admittedly a guest. She was injured when Jerry turned sharply into a filling station and struck a vending machine with such force that Pam was thrown against the windshield, shattering the glass and cutting her face. In this action brought by Pam the jury awarded her $2,500. For reversal the appellant contends that there was no proof of willful misconduct on his part and that Pam assumed the risk of his hazardous driving.
The- court properly submitted to the jury the issue of willful misconduct. Jerry admitted that he had been drinking and had had about nine beers. Even though neither Pam nor Jerry testified that he was intoxicated, the jury were entitled to take into the jury box their common sense and experience in the ordinary affairs of life. Rogers v. Stillman, 233 Ark. 779, 268 S. W. 2d 614 (1954). They might fairly have concluded that the consumption of so much beer had affected Jerry’s ability to drive. One who drives while intoxicated may be found to be chargeable with willful and wanton misconduct. Bridges v. Stephens, 238 Ark. 801, 384 S. W. 2d 490 (1964).
Furthermore, Pam testified that Jerry seemed not to be familiar with the car, which belonged to the other young man’s grandmother, and that his driving so frightened her that she asked to be taken home. That request angered Jerry, who at once tried to turn back and comply with Pam’s request. In his attempt to make a U-turn Jerry drove into the filling station at an excessive speed and hit the vending machine without even attempting to apply his brakes. He later pleaded guilty to reckless driving, which involves a wanton disregard for the safety of others. Ark. Stat. Ann. § 75-1003 (Repl. 1957); Miller v. Blanton, 213 Ark. 246, 210 S. W. 2d 293, 3. A. L. R. 2d 203 (1948). On the whole, there was ample testimony to support a finding of willful misconduct.
We are similarly of the opinion that the issue of assumed risk was for the jury. Even though Jerry had been drinking, Pam testified that he didn’t appear to be under the influence of alcohol. When, however, it became apparent that he was driving very badly, Pam protested — asking first that she be permitted to take the wheel and later that she be taken home. Upon substantially the same testimony we held, when contributory negligence was a complete defense, that the passenger was not guilty of contributory negligence as a matter of law. Scott v. Shairrick, 225 Ark. 59, 279 S. W. 2d 39 (1955). We likewise hold in the case at bar that Pam did not, as a matter of law, assume the risk of Jerry’s hazardous driving. The verdict sets the issue at rest.
Affirmed.
Byrd, J., concurs. | [
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Paul Ward, Justice.
This is an eminent domain proceeding, and only one point — a point of law — is involved on appeal. The pertinent background facts and procedure can be briefly stated.
Facts. The Arkansas State Highway Commission (appellant herein) filed a complaint in circuit court to acquire 37.49 acres out of a large tract of land, belonging to G. L. Morris and his wife (appellees), for construction purposes on U. S. Highway 64 in-Woodruff County. Appellant having deposited in court $14,500, as estimated compensation, the trial court granted immediate possession to appellant. Appellees refused to accept the above amount, and a jury trial followed. At the trial appellees ’ witnesses fixed the value at different amounts —averaging around $85,000, and appellant’s witnesses fixed the value at approximately the same amount as was deposited in court. The jury gave appellees a judg ment in the amount of $40,000, and from that judgment appellant prosecutes this appeal.
The only point urged by appellant for a reversal is that the trial court erred in giving appellees ’ requested Instruction No. 2, which reads:
“You are instructed that under the law defendants are entitled to recover the fair market value of the lands actually taken; also, an amount which will fairly compensate them for the damages, if any, to the remaining lands not taken for highway purposes, considering the facility as being completed and in place. “You will, therefore, ascertain the difference between the fair market value of the entire tract of the defendants before the taking for highway purposes and the fair market value of the lands remaining in the tract after such taking, and that difference is the amount the defendants are entitled to recover, and your verdict should be for the defendants in such amount.
“In other words, ladies and gentlemen, what I am saying is the way you arrive at just compensation is to determine the difference in fair market value of the property before the taking and immediately after the taking, and in arriving at that" difference you may take into consideration other elements.”
The essence of appellant’s contention is that the first paragraph is in conflict with the second paragraph, and that this constitutes reversible error. In support of the contention appellant relies on Young v. Ark. State Hwy. Comm., 242 Ark. 812, 415 S. W. 2d 575, and Myers v. Ark. State Hwy. Comm., 238 Ark. 734, 384 S. W. 2d 258. The Young case recognized two alternative formulas for measuring compensation for a partial taking— “(ii) Value of the part taken plus damages to the remainder rule; a/nd, (iii) The before and after value rule.” Following the above quotations we also said:
“Therefore, it would be inappropriate to instruct the jury as to both formulas ...” In the Myers case, supra, the trial court gave an incorrect instruction on the measure of damages and then gave a correct instruction. On appeal we said that the correct instruction did not cure the error in giving the erroneous instruction.
For reasons presently stated, we conclude that the above decisions do not justify a reversal of the ease here under consideration.
First, in this ease, the trial court did not give two separate instructions on the measure of damages — it gave only one instruction. Two, the third paragraph of the instruction explained and harmonized the first two paragraphs. Three, the first paragraph of the instruction is a correct statement of the measure of damages and therefore does not conflict with the second paragraph. In the Young case there appears this statement: “This does not mean that evidence of the value of the lands taken plus damages to the remainder is not admissible. In fact, it is appropriately considered by appraisers as two of the many guides for determining ‘before and after values’ In the Myers case, supra, we made this statement:
“In arguing the case to the jury, counsel for the appellee would have had every right to read to the jury Instruction No. 1 and emphasize that under this instruction the landowner could only recover the value of the land actually taken . . . Such an argument would be confusing to the jury, because the real issue was the difference in the value before and after the tailing.”
In the case here under consideration we do not have two conflicting instructions by which the jury could be confused.
Affirmed.
Smith, Browh and Jokes, JJ., concur. | [
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John A. Fogleman, Justice.
This appeal is from a judgment based upon a jury verdict denying appellant a recovery from appellee for the death of a Hereford bull owned by appellant. The parties are adjoining landowners whose pastures are separated by a partnership fence. Evidence on behalf of appellant tended to show that his bull suffered injuries on November 14th from an encounter with appellee’s Angus bull in appellant’s pasture. Appellee was notified of the occurrence by appellant’s wife. He caused his employee to remove his bull from appellant’s pasture and to return it to appellee?s premises where it was in a holding corral for less than half a day. Thereafter, the bull was returned to appel-lee’s pasture. Appellee took no action designed to prevent another trespass by his bull into appellant’s pasture, where appellant kept not only his bull but 20 to 25 cows. Appellee did cause an employee to walk and inspect the division fence, which was found to be intact. Appellee stated that he knew that a bull which escaped his enclosure once had a tendency to make other escape attempts; that when strange bulls meet they can be expected to fight, particularly in the presence of the female of the species; and that when bulls fight there is danger that injury will occur.
Appellee’s bull escaped into appellant’s pasture again on November 17th. Evidence indicates that another fight took place on that occasion. Appellant’s bull died on November 25th as a result of injuries which appellant contends were inflicted in the second fight.
The first point relied on for reversal is that there was error in the court’s instructions in that the basis of appellee’s liability was limited to negligence in permitting Ms bull to run at large. The point is properly preserved in appellant’s objection to the instruction given and by the rejection of his offer of instructions which would have submitted the case to the jury on the alternate bases of ,(;1) strict liability for damage done by a trespassing animal and (2) liability based on ap-pellee’s knowledge of the dangerous propensities of his bull.
Appellant first argues that our cases, such as L. R. & F. S. Ry. v. Finley, 37 Ark. 562, and St. Louis I. M. & 8. Ry. v. Newman, 94 Ark. 458, 127 S. W. 735, rejecting the rule of strict liability of an owner for the acts of his trespassing animals should have no application here. This argument, is based upon the contention that the properties of these parties were located in a stock law district created under the provisions of Act 156 of 1915. The trial court took judicial notice of the existence of this district. We agree that the rule stated in the above cases is confined to situations where the owner permits his animals to run at large on unenclosed lands of another, and that the rule may well be changed by laws requiring an owner to keep his animals within his own enclosure.
We do not agree with appellee’s contention that the 1915 stock law has no application to tMs case by reason of its repeal by Act 368 of 1947. We have already recognized that stock law districts created under Act 156 remain in existence in spite of the specific language of Act 368 which states that it repeals sections relating to the creation of such districts and to the legal effect of adoption of the district by the electorate. In Goggin v. Ratchford, 217 Ark. 180, 229 S. W. 2d 130, it was held that annexation of a single township to a stock law district to which Act 368 was applicable could only be made .to districts already in existence when this act was passed. This holding recognized, without stating, the rule that where both the prior and subsequent acts legislate upon the same subject and the subsequent act re-enacts substantial portions of the original act but either adds, eliminates or modifies provisions of the original act, the subsequent act shall be treated as amendatory only in spite of language expressly repealing the prior act. Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U. S. 1, 17 S. Ct. 7, 41 L. Ed. 327 (1896); Lamb v. Powder River Live Stock Co., 132 F. 434, 67 LRA 558 (8th Cir. 1904).
A very closely parallel application of the rule is found in Petition of Orange County Water District, 292 P. 2d 927 (CA Cal. 1956). There the contention was made that the district created by a 1933 act was superseded by a completely new district of the same name created by a 1953 act. The basis for this contention was the repeal of § 1 of the 1933 Act by the 1953 Act. It was held that this contention was unsound because the re-enacted portion of the repealed act continued in force without interruption even though the new act provided for different boundaries, different directors and different purposes. Here the re-enactment of substantial portions of the 1915 Act neutralized the repeal, and the 1947 Act should be considered as amendatory of the 1915 Act. The stock law remains in effect as amended by the later act. This appears to be the majority rule. Crawford, Statutory Construction, § 322, p. 657. See 77 ALR 2d 357. It is consistent with the holding of this court on the effect of the repeal of our first general comparative negligence statute. Chism v. Phelps, 228 Ark. 936, 311 S. W. 2d 297, 77 ALR 2d 329.
The doctrine of absolute liability was applied in Pool v. Clark, 207 Ark. 635, 182 S. W. 2d 217. That case is not authority requiring the application of the doctrine here, however, because the stock law involved there absolutely prohibited the running at large of certain animals. Absolute liability of the owner was there predicated upon the statute’s making the running at large of stock unlawful. See Act 103 of 1907, as amended by Act 273 of 1909. The statute applicable here does not contain such an absolute prohibition. It provides that it shall be unlawful for an owner to permit his animals to run at large outside the owner’s enclosure. See Act 156 of 1915 and Act 368 of 1947. We have held that the owner is subject to the consequences of such a statute only when he intentionally or negligently permits his animals to run at large. Favre v. Medlock, 212 Ark. 911, 208 S. W. 2d 439. Therefore, the doctrine of strict liability cannot be applied for the reason urged.
Appellant’s next argument is that the case should have been submitted to the jury only on the questions of proximate cause and measure of damages because ap-pellee was apprised of the occurrence of November 14, 1966. The evidence was sufficient to raise an issue of fact as to appellee’s liability for keeping and failing to restrain an animal known by him to he possessed of vicious and dangerous qualities. Holt v. Leslie, 116 Ark. 433, 173 S. W. 191; Field v. Viraldo, 141 Ark. 32, 216 S. W. 8; McIntyre v. Prater, 189 Ark. 596, 74 S. W. 2d 639. Appellant offered his requested instruction no. 1 that would have submitted these issues, hut the instruction was defective in that it would have permitted a verdict for appellant if appellant’s hull died as a result of either fight. There is no evidence upon which scienter could have been held to exist as a matter of law on the occasion of the first fight, in spite of appellee’s admissions. Testimony of a veterinarian called as a witness by appellant might be construed to mean that the death might have resulted from the first fight. This instruction would have also found appellee to have had sufficient knowledge of the bull’s propensities after the first encounter to invoke strict liability. The testimony here is not sufficiently clear to eliminate a question of fact on this point.
The trial court’s refusal to give an instruction which is not accurate, correct and free from criticism is not reversible error. Henry Wrape Company v. Barrentine, 138 Ark. 267, 211 S. W. 366; Bovay v. McGahhey, 143 Ark. 135, 219, S. W. 1026. It would have been error for the court to háve ¿iven the offered instruction since it would have allowed the jury to find a verdict for appellant without considering the issue of whether the second fight was the proximate cause of the loss of the hull. Miller v. Ballentine, 242 Ark. 34, 411 S. W. 2d 655.
Appellant offered his requested instructions, numbered two and three, relating to this issue. These were not subject to the proximate cause defect to the same extent as was the first request, although they should have made it clear that liability based on scienter required previous knowledge by the owner. There are other reasons, however, why the refusal of these instructions did not constitute reversible error. Instruction No. 2 would have- virtually amounted to the direction of a verdict for appellant. He was not entitled to this. As previously pointed out, there was a jury question as to scienter of appellee under all the surrounding circumstances. While appellant’s requested Instruction No. 3 was a correct statement of the law, AMI 1602 is applicable in this case and should have been given with appropriate modifications fitting it to a situation where the injury is to an animal rather than a person. The AMI form would have given the jury an objective statement of the law. The instruction requested is somewhat slanted toward appellant’s contentions. One of the primary purposes of adoption of Arkansas Model Jury Instructions was to make jury instructions objective, rather than partisan, statements. Introduction, Arkansas Model Jury Instructions, p. X.
The per curiam order of this court (entered April 19, 1965) clearly directs that when an AMI instruction is applicable in a case, it shall be used unless the trial judge finds it does not accurately state the law. In the event an applicable AMI is not used, the judge is required to state his reasons for refusal. It is implicit in this order that parties request instructions in the language of an applicable AMI, modified if necessary. If a judge is required to state reasons for not using an AMI, it is only logical to require a party offering an instruction when he thinks that an AMI does not adequately or accurately state the law to state his reasons into the record. For this reason, there was no reversible error in the refusal of appellant’s requested Instruction No. 3.
Appellant’s second point for reversal is the giving of the court’s Instruction No. 5 over his objection. This instruction told the jury that in determining whether or not appellee was negligent, it was not to consider the inadequacy of the division fence to restrain appellee’s bull, because the responsibility for its maintenance and upkeep was borne by each of the parties. Appellant objected to the giving of this instruction on the basis that there was no allegation or proof with respect to maintenance and upkeep of the fence and that the instruction prejudicially singled out the fact that the inadequacy of the fence to restrain appellee’s bull should not be considered when there was no question at issue about the adequacy of the fence. We find appellant’s position as to the lack of an issue on maintenance and upkeep to be well taken. The only statement in the pleadings remotely related to such an issue is the vague and general statement in appellee’s amendment to his answer alleging that appellant was guilty of contributory negligence by failing to use ordinary care to prevent appellee’s animals from entering his pasture. No evidence was ever offered by either party to show any deficiency in the maintenance or upkeep of the fence. On the contrary, an employee of appellee checked the fence after each expedition of the bull and found it to be in good order. It was a 39-inch woven wire fence above which there was one strand of wire making the fence 44 inches high. On appellee’s side of the fence there was a ditch about 30 feet wide and 6 feet, deep. The ditch was not more than 3 feet from the fence at any point and in places was immediately adjacent to the fence. After the second visit of appellee’s hull to appellant’s pasture, appellee’s employee found black hair caught on the fence. Consequently, insofar as the inadequacy of the fence from the standpoint of maintenance and upkeep is concerned, the instruction was abstract, even if it could be said to be academically correct. The court’s Instruction No. 4 had told the jury that a violation of the applicable stock law prohibiting an owner from permitting his cattle to run at large was evidence of negligence. When the two instructions are read together, the giving of this instruction is calculated to be misleading and confusing. Under these conditions the giving of such an instruction is prejudicial and reversible error when it cannot be determined that the jury did not base its verdict on the abstract instruction. Ayer & Lord Tie Co. v. Young, 90 Ark. 104, 117 S. W. 1080; District Grand Lodge No. 11 v. Pratt, 96 Ark. 614, 132 S. W. 998; Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226.
Since the appellant, in making his objection to the giving of court’s Instruction No. 5, stated that there was no question in the ease about the adequacy of the fence, we cannot consider the correctness of that instruction in that respect as a ground for reversal. We foresee that there is a possibility on a retrial that the adequacy of the division fence might be a circumstance to be considered by the jury in determining whether appellee was negligent in failing to take some additional step to prevent his bull’s second foray into the Vangilder pasture. We see no reason why the joint responsibility of the parties for the maintenance and upkeep of the fence or the fact that it was a partnership fence should prevent this circumstance from being considered with all the other facts and circumstances of the case on the question of negligence.
The judgment is reversed and the cause remanded for a new trial.
It is recognized that modifications of these instructions may be necessary. See Arkansas Model Jury Instructions, “How To Use This Book” pp. XXIV, XXV. | [
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George Rose Smith, Justice.
Tliis is an action brought by the appellant, Josephine Bergetz, against the appellees, Mr. and Mrs. John Repka, for personal injuries suffered by Mrs. Bergetz while she was a paying guest at the appellees’ motel on Lake Hamilton. The appellees filed a motion for summary judgment, supported by discovery depositions and answers to interrogatories. The trial court granted the motion, finding that the Repkas “used ordinary and reasonable care for plaintiff’s safety as a guest of defendants’ motel.” The correctness of that ruling is the issue here.
We observe at the outset that a motion for summary judgment is similar to a motion for a directed verdict, in that the testimony must be viewed in the light most favorable to the party resisting the motion. A summary judgment should be entered only if the proof, when so considered, presents no issue for the jury with respect to the defendant’s liability. Van Dalsen v. Inman, 238 Ark. 237, 379 S. W. 2d 261 (1964).
The parties testified with such candor that there are hardly any conflicts in the proof. At about noon on April 6, 1964, Mrs. Bergetz, aged 63, stopped at the motel, ac companied by her foster son and her spitz dog. Mrs. Bepka, in response to an inquiry, assured Mrs. Bergetz that pets were allowed at the motel if kept on leash at all times. Mrs. Bergetz also asked if the Bepkas’had a dog of their own, as she was afraid of strange dogs and would not stay at the motel if a large dog were allowed to run loose. In fact, earlier in the day Mrs. Bergetz had refused to cheek into another motel because a big boxer dog was kept there.
Mrs. Bepka explained that they owned a German shepherd dog, but she told Mrs. Bergetz that the animal was kept penned in an enclosure. She said that the dog was occasionally taken out for exercise, but in such instances her husband stayed with it all ’the time. Upon those assurances Mrs. Bergetz engaged a room and moved into the motel. Mrs. Bepka told her husband about her conversation with their new guest, but despite that fact Bepka released the large German shepherd within an hour or so and allowed it to run at large without supervision.
A little later Mrs. Bergetz, with her dog on its leash, walked down to see the lake. As she was coming back up a flight of stone steps she was suddenly confronted by the German Shepherd, which was standing above her and growling. Mrs. Bergetz testified: “I got deathly scared, I remember, and my dog started to growl. They growled at each other, and I got more scared. And the collar, my dog, he pulled it back, and I fell. That’s all I remember.” In falling down the steps Mrs. Bergetz sustained painful injuries.
We think the proof presented a question of fact for a jury. In negligence cases especially, where the standard of care is that of a reasonably careful person, the issues are often peculiarly appropriate for determination by a jury. Spink v. Mourton, 235 Ark. 919, 362 S. W. 2d 665 (1962). If fair-minded men might honestly differ aboKt the conclusion to be drawn from the testimony, the dispute should be submitted to a jury. Mississippi River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. 2d 255 (1931).
Repka’s decision to let the large German shepherd ont of its enclosure violated the assurances that his wife had given to Mrs. Bergetz. A jury might fairly conclude that an encounter between that dog and an apparently timid woman leading a smaller dog upon a leash might foreseeably involve an injury to Mrs. Bergetz. “It is not,” as we said in Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S. W. 1199, 32 L.R.A. (n.s.) 825 (1911), “necessary that the particular injury should have been foreseen. In Foster v. Chicago, R. I. & P. Ry. Co., 4 Am. & Eng. Ann. Cas. 150, 127 Iowa 84, the court said: ‘Doubtless, the particular situation might not have been foreseen, hut this was not essential to making out a charge of negligence. Accidents as they occur are seldom foreshadowed; otherwise many would he avoided. If the act or omission is of itself negligent and likely to result in injury to others, then the person guilty thereof is liable for the natural consequences which occurred, whether he might have foreseen it or not. In other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did happen. ’ ’ ’
Here the trial court put some stress upon the absence of evidence that the defendants’ dog was vicious or had ever attacked anyone. Such proof, however, was not essential to the plaintiff’s case. Finley v. Smith, 240 Ark. 323, 399 S. W. 2d 271 (1966). We should add, in remanding the case for further proceedings, that we agree with the trial judge’s conclusion that the defendants’ failure to equip the steps with a railing was not actionable negligence.
Reversed. | [
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George Rose Smith, Justice.
The appellants seek to obtain a review in the Court of Appeals of a chancery decree upholding the validity of a charitable trust. The Clerk of the courts refused to docket the appeal, finding that the record was tendered too late. This motion for a rule on the Clerk under Rule 5 comes to us for decision under Rule 29 (i). We agree that the record was not tendered until after the expiration of the last valid extension of time granted by the trial judge.
The decree was entered on May 8, 1980, and perhaps modified on June 19- After the notice of appeal was filed on May 30, the trial judge signed an order extending the time for filing the record on appeal to October 15. A further extension of time, however, was not signed by the trial judge until October 22, a week after the first extension had expired. The present motion for a rule on the Clerk attaches Judge Weisenberger’s verified statement that he remembers having verbally granted the extension before October 15 and that the failure to sign the extension until October 22 was an oversight.
The present uncertainty is typical of innumerable instances that arose under our former statute, which provided that the trial judge’s extension of time had to be “made” within the time originally allowed or within a previous extension. Act 555 of 1953, § 20. An order is “made” or rendered when it is announced by the judge, but the entry of the order is the clerk’s administrative act. Norfleet v. Norfleet, 223 Ark. 751, 268 S.W. 2d 387 (1954); McConnell v. Bourland, 175 Ark. 253, 299 S.W. 44 (1927).
When we adopted the Rules of Appellate Procedure, effective July 1, 1979, we sought to avoid the possibilities of uncertainty by stating explicitly in Rule 5 that the extension “must be entered” within the time allowed. Furthermore, the Reporter’s Notes to that rule, as revised by the court, point out unmistakably that “the order extending the time must actually be filed prior to the expiration of the time for filing the record, whereas under prior Arkansas law, the order of extension needed only to have been made within the time allowed and not necessarily filed.” The responsibility for the timely filing of appeals must rest upon the litigant and his attorney, not upon the trial judge or court reporter. We are unwilling to nullify the positive directive in Appellate Procedural Rule 5 and thereby resurrect the confusion laid to rest by that rule. An extension order must be filed within the specified time.
Rule denied.
Dudley, J., not participating. | [
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John I. Purtle, Justice.
At the close of the state’s evidence in the trial of appellant for murder in the first degree the court directed a verdict of acquittal on the charge of murder in the first degree but continued the trial on murder in the second degree and the lesser included offenses of man slaughter and negligent homicide. The jury found appellant guilty of murder in the second degree and assessed his punishment at ten years in the Department of Correction.
On appeal appellant argues he was placed in double jeopardy and that the court erred in giving AMCI 109 without modification as requested. A third point designated but not argued will not be considered. We do not agree with appellant on either argument.
Appellant advances the unusual argument that he was placed in jeopardy for a class A felony, murder in the first degree, with a penalty from five years to life. He alleges that any sentence above the five-year minimum allowable for the class A felony amounted to double jeopardy, since the trial court directed an acquittal on the class A felony. In this case the class B felony, murder in the second degree, carried a possible penalty from 3 to 20 years. Therefore, he alleges the overlapping possible sentences, anything over five years, amounted to double jeopardy. He does not argue the inadequacy of the evidence for conviction of second degree murder. The trial court directed the verdict of acquittal on murder in the first degree at the close of the state’s evidence and rejected the motion for a directed verdict on murder in the second degree at the close of all the evidence. The trial continued on the charge of murder in the second degree as well as manslaughter and negligent homicide. Instructions were given on these offenses without objection by the appellant.
Appellant cites the cases of Johnson v. State, 29 Ark. 31 (1874), and Ex Parte Lange, 85 U.S. 163, 18 Wall. 163, 21 L. Ed. 872 (1873), in support of his argument on double jeopardy. In Johnson the accused was tried for first degree murder and convicted of second degree murder. The case was reversed, and Johnson was tried and convicted of murder in the first degree and sentenced to death. We reversed and remanded in holding that the accused was placed in jeopardy twice for first degree murder and that he could only be tried the second time for second degree murder. In Lange the accused was convicted of a crime and sentenced to a fine and imprisonment. The accused immediately paid the fine. The statute authorized a fine or imprisonment. After paying the fine Lange successfully argued double jeopardy on the sentence of imprisonment. We do not find either case supports the appellant’s argument.
North Carolina v. Pearce, 395 U.S. 711 (1969), holds that the constitutional prohibition against double jeopardy consists of three guarantees: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after a conviction; and (3) it protects against multiple punishments for the same offense. We do not find that the conviction here violates any of the above guarantees. There was only one trial and one conviction. Therefore, the appellant has not been placed in jeopardy twice for the same offense nor sentenced to more than one punishment.
In Chaney v. State, 256 Ark. 198, 506 S.W. 2d 134 (1974), the defendant was charged with murder in the first degree and convicted of murder in the second degree. We affirmed the conviction and the sentence of 21 years. We held that murder in the second degree was a lesser included offense of murder in the first degree and it was proper to instruct the jury on murder in the second degree even if the defendant objected to such instructions. The present case presents the same problem, and we reach the same conclusion we reached in Chaney. See also Dixon v. State, 268 Ark. 471, 598 S.W. 2d 755 (1980). We held in Caton v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972), that a defendant may be convicted of a lesser included offense when the higher offense contains all of the necessary allegations of the lesser included offense.
The second point argued by appellant is that the court improperly gave the jury instruction AMCI 109. This instruction with the requested change underlined would read as follows:
You are also instructed that there is a presumption of the defendant’s innocence in a criminal prosecution. In this case, Jack Lampkin is presumed to be innocent. That presumption of innocence should continue and prevail in your minds unless and until you are convinced of his guilty beyond a reasonable doubt.
Appellant requested the words “unless and” be inserted following the word “minds” and before the word “until.” It is appellant’s contention that the standard version of this instruction implies to the jury that the state is definitely going to convince them, at some point in the trial, that appellant is guilty beyond a reasonable doubt. The instructions are not given until the close of all the evidence, and it would seem highly unlikely for a juror to interpret this statute to mean that at some time before they receive the case the state would definitely prove the accused’s guilt beyond a reasonable doubt. This instruction as given was taken verbatim from the Model Criminal Jury Instructions. This Court entered a per curiam on January 29, 1979, 264 Ark. 967 (1979), which requires the court give the AMCI instruction unless the trial judge finds that it does not accurately state the law. We think the instruction as given is a proper statement of the law and therefore was properly given. The appellant has presented no case which holds in favor of his argument. Even though the appellant’s requested instruction may have also been a proper statement of the law, we hold that the instruction as given was correct. Therefore, no reversible error was committed.
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Ernie E. Wright, Chief Judge.
This is an appeal from a decision of the Workers’ Compensation Commission finding appellee sustained a compensable injury in September, 1977, in the course of his work for his insured employer and awarding benefits.
Appellant contends that there is no substantial evidence to support the finding claimant suffered a distinct compensable injury in September, 1977, that it was error for the Commission to find total and permanent disability because the evidence showed claimant recently had rehabilitative surgery, and that if there was a separate injury in September, 1977, the Commission erred in failing to apply Ark. Stat. Ann. § 81-1313 (f) to diminish claimant’s recovery.
From 1971 to September 1977, the date of the injury in question, appellee worked for General Telephone Company of the Southwest. In November, 1975, he suffered a compensable lumbar back injury, described as a strain. Examination by a neurosurgeon did not reveal any herniated disc, but did indicate a mechanically weak back. Appellee was hospitalized for about two weeks and returned to work within a short time after being discharged from the hospital. Medical expenses and other benefits were paid by appellant carrier. In September, 1976, while working for the same employer claimant sustained a second low back injury. The injury was diagnosed as an acute lumbosacral strain. Fie was hospitalized, treated conservatively and soon thereafter returned to his work. A claim for benefits for that injury was filed with the Texas Industrial Accident Board, and the claim was compromised on September 9, 1977, the sum of $2,000 waa paid to the claimant, and it was agreed future medical expenses incident to the injury would be paid by appellant during the following four year period.
On September 28, 1977, while working for the same employer in Northeast Arkansas claimant experienced a sharp pain in his lower back and left leg while attempting to unload a reel of telephone wire from a vehicle. There was evidence claimant promptly by telephone notified his physician in Texarkana of this incident and also his superior. He returned to Texarkana and was immediately hospitalized under the care of Dr. Davis who had treated him for the prior injuries. He was treated conservatively and later examined by an orthopedic surgeon. The examination did not include a myelogram and did not disclose a ruptured disc. He never recovered to the point he could return to work for General Telephone, and was able to do so only some limited part time electronic work from December, 1977 until November, 1978. In his work for the telephone company he earned approximately $278 per week.
Appellee continued to have severe back pain and a myelogram in February, 1979 revealed a ruptured disc. In late March, 1979, he was operated on for the ruptured disc.
In addition to the opinion expressed by the treating physician that appellee is totally and permanently disabled, the evidence shows appellee was examined by the employer’s doctor to see if he could return to work and the result of that examination indicated he was not able to return to any kind of work for the employer. There was strong evidence on the part of appellee and his wife indicating appellee’s total disability and that the disability continued subsequent to the surgery.
Appellant argues appellee’s disability is a result of the 1975 injury, and that as there was a full settlement incident to both of the earlier injuries the present injury is not a separate compensable injury. However,the evidence shows appellee resumed work for his employer early after the 1976 injury and continued his work until the injury occurring on September 28, 1977. There was also medical testimony that the last injury could have aggravated appellee’s weak back condition.
Whether the 1977 injury is regarded as being independent of the prior injuries or an aggravation of a previous back injury the resulting disability is compensable, and there is substantial evidence to support the finding the September, 1977, injury resulted in a ruptured disc and permanent disability. On appeal we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Firemen’s Fund Insurance Co. v. Hill et al, 255 Ark. 73, 498 S.W. 2d 865 (1973). Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W. 2d 304 (1968). Desoto, Inc. v. Parsons, 267 Ark. 665, 590 S.W. 2d 51 (Ark. App. 1979).
Appellee received in settlement of his claim arising out of the 1976 injury $2,000; however, it was not established appellee had a permanent disability as a result of the 1975 or 1976 injury or that any part of the $2,000 settlement was for weekly benefits. There was evidence the $2,000 was for sick leave benefits. Therefore, we are unable to say Ark. Stat. Ann. § 81-1313 (f) is applicable to diminish the award and that the Commission erred in failing to make any allowance for that payment in the present award.
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Steele Hays, Judge.
This is an interlocutory appeal from an order striking the Elna M. Smith Foundation, Inc., as a party plaintiff in a derivative action under Rule 23.1 (ARCP). Appellant filed suit as an officer, director, and member, on behalf of the Foundation and its members, against other directors, alleging a multitude of acts of misfeasance and nonfeasance in violation of the By-Laws and Articles and against the interests of the Foundation, essentially intra vires in character.
The defendants denied the allegations, asserted that appellant was no longer a member, officer and director, and moved to strike the Foundation as a party plaintiff, and directors not having authorized the suit.
The motion to strike the Elna M. Smith Foundation, Inc., as a party plaintiff was granted, pursuant to a letter opinion from the Chancellor finding that the Foundation was not the real party in interest and that under the present pleadings the case was not certifiable as a class action under Rule 23, or as a derivative action by a member of a corporation under Rule 23.1.
Roland L. Morgan has appealed from the order, alleging that the court erred in finding that the Foundation was not the real party in interest, and in finding that the action was not properly brought as a derivative suit under Rule 23.1 (ARCP). We think the court was correct in striking the Foundation as a party plaintiff, but we disagree with the findings.
I
It is settled beyond dispute that in a derivative suit on behalf of a corporation either against third persons or against officers or directors of the corporation, the corporation is a necessary party. It is, in fact, inherent in the nature of the suit itself that it is the corporation whose rights are being redressed rather than those of the individual plaintiff. It follows that the corporation is regarded as the real party in interest. The authority for this conclusion is ample and without dissenting jurisdiction. Arkansas has dealt with the question sparingly, but in Red Bud Realty Company v. South, 153 Ark. 380, 241 S.W. 2d 21 (1922), the Supreme Court recognized the propriety of the corporation being named as a party defendant with the majority stockholders in a suit by a minority stockholder alleging misappropriation of the assets of the corporation and other acts perverting the purposes of the corporation, saying:
The corporation is a necessary party to such an action, and is named and brought in, that appropriate orders may be made not only to protect all the corporate rights, but also that through it the rights and equities of individual shareholders may be worked out and preserved.
The rule is stated in Volume 13, FLETCHER CYCLOPEDIA OF CORPORATIONS, § 5929:
In legal effect, a stockholders’ suit is one by the corporation conducted by the stockholders as its reprsentative. The stockholder is only a nominal plaintiff, the corporation being the real party in interest. (Citing numerous cases.)
In Breswick & Company, et al v. O. Henry Briggs, et al, 135 F. Supp. 397 (1955), it is said that in derivative suits the corporation is the real party in interest, although the real parties in litigation were the stockholders.
Appellants cite the oft-quoted case of Ross v. Bernhard, 396 U.S. 531 (1970) in which Mr. Justice White, speaking for the majority in a derivative suit, said:
The corporation is a necessary party to the action; without it the case cannot proceed. Although named as a defendant, it is the real party in interest, the stockholder being at best the nominal plaintiff.
In Brink v. DaLesio, 453 F. Supp. 272 (D.C., Md. 1978), the corporation was said to be an “indispensable” party. See also Porter v. Sabin, 149 U.S. 473 (1893); Brady v. Meenan, 198 N.Y.S. 177 (1923); Koster v. Lumberman’s Mutual, 330 U.S. 518, 19 L.Ed. 1067 (1947); Kohler v. McClellan, 77 F. Supp. 308 (1948). FLETCHER CYCLOPEDIA OF CORPORATIONS, § 5997, states:
The corporation is a necessary defendant. In other words, the corporation on behalf of which the plaintiffs sue must be made a party defendant so that a decree may appropriately give the corporation the fruit of any recovery.
This alignment of parties is admittedly anomalous, as it places the individual plaintiff, seeking to protect a corporation from threatened acts or to redress those already accomplished, in an adversary position to the corporation he is defending. This incongruity is worthy of concern and it has been the object of some criticism:
. . . generally speaking, the benefits of the (derivative) suit are taken by the corporation and only indirectly by the person who files the bill, although the corporation is not even a co-plaintiff, but is to be found among the defendants. Indeed, a standard text writer regrets this very circumstance, opining that the innocent shareholders are disheartened, and the guilty encouraged, because of the rule that “the results of even a successful suit belong to the corporation, and not to the stockholders who sue.” (Citing Beling v. America Tobacco Company, 12 N.J. Eq. 32, 65 Atl. 725.) YALE LAW JOURNAL, Volume 33, P. 580, “The Stockholders Suit.”
In Cannon v. Acoustics Corporation, 398 F. Supp. 209 (N.D., Ill, 19), the opinion attributes the alignment of the corporation as a defendant in a derivative suit to “historical reasons,” noting that in reality the corporation is the plaintiff, the stockholder being only a nominal plaintiff. See Miller v. American Telephone & Telegraph Company, 394 F. Supp. 58 (1975).
We conclude that the corporation's a necessary party to a derivative suit and, whether logical or not, the settled view is that the corporation is named as a defendant and entitled to service of process as any other defendant. Thus, we believe that the Court was correct in striking the Foundation as a plaintiff but was incorrect in finding that the Foundation was not the real party in interest. However, the correct result was reached and, therefore, we treat the issue as one of affirmance. Mobley v. Scott, 236 Ark. 163, 365 S.W. 2d 122 (1963); Greeson v. Cannon 141 Ark. 540, 217 S.W. 786 (1920).
II
It is also submitted that the Chancellor erred in finding that on the state of the pleadings the case was not certifiable as a derivative action under Rule 23.1. But the import of the finding is not clear, as the other appealed from does not dismiss the complaint. In fact, the memorandum opinion of the Court contemplates a trial on the merits and suggests specific dates for that purpose. Thus, the finding does not appear to affect the litigation at this stage; however, some comment is appropriate in interpreting Rule 23.1.
The appellees defend the finding on the argument that the complaint fails to meet the requirements of the rule in several respects; it fails to allege that Morgan was a member of the Foundation at the time of the acts complained of; it fails to identify the Foundation members; it fails to allege Morgan’s efforts to obtain the action he desires from the directors or to explain his reasons for not making the effort; and that Morgan does not fairly and adequately represent the interests of members similarly situated.
Which, if any, of these the Court relied on is not explained. But we think in two respects the Court would be correct in finding the “present state” of the pleadings to be deficient. The rule does require that a plaintiff in a derivative suit allege that he was a stockholder or a member at the time of the transactions complained of and surely the appellant can be expected to make this allegation or explain why not. Also, the Court noted the lack of any allegation regarding members of the Foundation and we think the requirement of the rule that a plaintiff fairly and adequately represent the interests of the members justifies requiring compliance with the rule to a greater degree than the complaint now provides. In its present form, the complaint fails to supply any information regarding members — who they are, where they are, how they became members, or even whether there are members. If this information is not known to appellant, but is available to the defendants, even that ought to be alleged and pursued by the discovery.
It should be recognized, however, that Morgan’s standing to bring this suit need not rest alone on his status as a member of the Foundation, as he professes to be an officer and a director of the Foundation and assuming that to be so, he has the necessary standing to complain against the sort of acts charged in the complaint. We believe an officer, director and a member of a non-profit corporation is not without standing to question the management and conduct of other officers and directors which are alleged to be in violation of the By-Laws and Articles and against the purposes of the corporation. If such an individual lacks standing, who would have it? We regard the public as having clear interest in nonprofit corporations from the standpoint of the faithful administration of the affairs of the corporation. The standing of one or more directors of non-profit corporations to act derivatively in behalf of the corporation does not seem open to question. Wickes v. Belgian American Educational Foundation, Inc., 266 F. Supp. 38 (D.C., N.Y. 1967); Holt v. College of Osteopathic Physicians and Surgeons, 294 P. 2d 932 (S.C., Cal. 1964).
With respect to the requirement that a plaintiff allege with particularity the efforts made to obtain the action he desires from the directors and the reasons for his failure to obtain the action or for not making the effort we reach a different conclusion.
The cases recognize that there are situations in which the demand requirement should be relaxed and if the demand is in all likelihood a futile gesture, it is not essential. See FLETCHER CYCLOPEDIA OF CORPORATIONS,§ 5964:
No demand on stockholders is necessary where it is apparent that it would be useless, the same rule being applicable as in case of necessity of demand upon the directors or other corporate officers. Conditions are generally such that no demand upon the stockholders as a body is necessary or where a demand on such board is excused.
Moreover, those considerations are made on a case by case basis. § 5965, FLETCHER CYCLOPEDIA OF CORPORATIONS:
Whether any case falls within this principle excusing a demand, or not, must be determined largely by its own particular circumstances, as there is no absolutely certain test.
The case of Red Bud Realty Company v. South, cited previously, dealt with the necessity of demand by a minority stockholder:
The law does not require a futile ceremony. Therefore, whre a majority of the directors are under the control of a majority of the stockholders, and an action is brought against them by an innocent shareholder in his own name, charging wrongdoing on their part in the manner above indicated, it is not necessary for him to allege and prove, as a condition precedent to the maintenance of the action, that, before instituting the same, he protested to the board of directors against their own mismanagement and appealed to them for redress. Such protest would fall upon deaf ears, because a majority of the directors could not be expected to authorize, or to institute, an action against themselves charging themselves with fraud. If they should do such an anomalous thing, in the language of the Supreme Court of Missouri, “the bad faith of their action would be so apparent that no court would entertain the suit.” Hingston v. Montgomery, 97 S.W. 202. We conclude, therefore, that the complaint should not be dismissed because it fails to allege that the plaintiff, before in stituting the action, applied to the board of directors for redress of the alleged injuries of which he complained.
Knepper, Liability of Corporate Officers and Directors, § 17.05 recites that the rule requiring demand upon the directors will be excused if it would be useless, as where the directors are participants in the alleged wrongdoing, “or were dominated by the alleged wrongdoers, or profited by the alleged wrongdoing.”
It seems evident that demand upon the directors in the premises of this case would be of no real purpose. Presumably they would deny a request for action by the plaintiff as emphatically as they denied the allegations of the complaint.
The cases invoked by appellees on this point are not persuasive. Kusner v. First Pennsylvania Corp., 395 F.Supp. 276 (E.D. Pa. 1975), Rev’d 531 F.2d 1234 (3d Cir. 1976), supports the principle but the case was reversed on grounds not involving the question of the derivative action, no appeal having been taken on that issue. In Clinton Hudson & Sons v. Lehigh Valley Cooperative Farms, 73 F.R.D. 420 (E.D. Pa. 1977), the defendant’s motion to dismiss the derivative action was based, at least in part, upon the fact that the corporation had already filed suit on its own behalf in state court on the same grounds. The District Court noted the pleadings in the two suits were substantially the same and said: “Thus maintenance of plaintiff s derivative action in this forum could only result in duplicative efforts and results.” Obviously, where the corporation acts in its own behalf, the need for a derivative action abates. Abrams v. Mayflower Investors, Inc., 62 F.R.D. 361 (Dist. Ill. 1974) is in point, however, each case must be judged on its own merits and there are dissimilarities between the two cases. For one thing, in Abrams the plaintiff is a stockholder charging the directors with improper conduct in general terms and the court noted the plaintiffs lack of any firsthand knowledge of the internal affairs of the directors. Such is not the case before us.
For the reasons stated, the order is affirmed and the case is remanded for further proceedings without prejudice to the right of the plaintiff to amend the complaint, naming the Foundation as a party defendant, alleging whatever plaintiff was a director, officer, or member of the Foundation during all or parts of the acts complained of, whether the Foundation has members and such information as plaintiff may reasonably supply.
Affirmed as modified herein and remanded for further proceedings not inconsistent with this opinion. | [
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Richard L. Mays, Justice.
On August 21, 1980 three Garland County Deputy Sheriffs went to the home of Lloyd Holcomb, without an arrest warrant, and arrested him for the rape of his neighbor, Mrs. Carolyn Magby. A jury subsequently found him guilty and sentenced him to 5 years imprisonment. On appeal, this court reversed his conviction, finding that certain polygraph evidence had been improperly admitted at trial. Holcomb v. State, 268 Ark. 138, 594 S.W. 2d 22 (1980).
On remand, Holcomb filed a pretrial motion to dismiss, claiming that he could not be prosecuted because his warrantless arrest violated his Fourth and Fourteenth Amendment rights. After a hearing, the court agreed with Holcomb and dismissed all charges against him. On appeal, the state argues that an illegal arrest of a defendant does not, per se, preclude his prosecution. We agree and have recently so held in State v. Block, 270 Ark. 671, 606 S.W. 2d 362 (1980).
In State v. Block, the trial court dismissed the criminal charges against Charles Block because a police officer entered his home without an arrest warrant and arrested him. In reversing the trial court, we stated:
It is unthinkable that a person who has committed murder, for example, should go scot free just because an officer enters his home without an invitation and arrests him without a warrant.
We perceive no justification for deviating from that holding today.
Reversed and remanded.
Purtle, J., not participating. | [
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Ernie E. Wright, Chief Judge.
Appellant was convicted by a jury of the offense of delivering a controlled substance with intent ot sell and a term of 8 years’ imprisonment was imposed. On appeal from the judgment he urges numerous points for reversal We are persuaded the case must be reversed on appellant’s contention the trial court erred in denying his pretrial motion to dismiss because he was not tried within three terms of court as required by Rule 28.1, and therefore we discuss only this point.
Appellant was arrested February 22, 1979, and was tried and convicted December 20, 1979, approximately ten months after his arrest. The lapse of time is well within the 18 months period presently prescribed by Revised Rule 28.1, which became effective July 1, 1980. However, the issue must be determined under the Rule as it existed in 1979, and at that time the Rule provided a defendant charged with an offense in the circuit court and held to bail or otherwise set at liberty, “shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized by Rule 28.3” Under Rule 28.2, the time began to run from the date of arrest. Rule 30 requires the absolute discharge of defendant not brought to trial within the prescribed time.
By statute the circuit court in Greene County is divided into three divisions. In State v. Messer, 269 Ark. 431, 601 S.W. 2d 857 (1980), the court noted the special problems presented by the requirement of a speedy trial under the Rule in circuits having multi-divisions, and stated that civil divisions of circuit courts share the responsibility of expediting the trial of criminal cases. The court reiterated the rule announced in Harkness v. Harrison, Judge, 266 Ark. 59, 585 S.W. 2d 10 (1979) and Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980), that the terms of all of the various divisions of circuit court in a county must be counted under the speedy trial rule. With these decisions in mind, we take note of the statutory terms of each of the three divisions of circuit court in Greene County, and it is apparent that subsequent to the term of court under which appellant was arrested on February 22, 1979, additional terms of court began and ended before trial as follows:
2d Division: March 5, 1979 — September 3, 1979-
1st Division: May 21, 1979 — December 10, 1979.
3rd Division: June 4, 1979 — November 19, 1979.
Another statutory term of the 2nd Division began on September 3, 1979. The pre-trial motion was denied December 10, 1979, and thus it is clear when the motion was dismissed three terms of the circuit court of Greene County had begun and ended after appellant’s arrest. Under Rule 30 appellant was entitled to be discharged pursuant to his motion unless the time within which trial was required was extended by periods excluded by Rule 28.3.
On two occasions appellant’s appointed counsel petitioned to be relieved as counsel on the sole ground of conflict of interest in that the attorney involved in each of the petitions had counseled with another defendant whose in terest conflicted with that of appellant. Appellee argues these motions were in effect continuances at the request of appellant. Neither of the petitions asked for a continuance of the case. Rule 28.3 authorizes the exclusion of delay resulting from a continuance granted at the request of the defendant or his counsel. We cannot say the petitions by court appointed counsel to be relieved can be considered as requests for continuances within the meaning of the rule. Garrison v. State, 270 Ark. 426, 605 S.W. 2d 467 (Ark. App. 1980).
Appellee further contends there was remodeling and reconstruction in the courtroom at sometime during the term of court beginning June 4, 1979, and ending November 19, 1979, and that those circumstances should exclude the term of court beginning in . September, 1979, and ending in march, 1980. This point was not raised until the hearing on the motion to dismiss held on December 10, 1979. No evidence was developed on the status of the courtroom and the record fails to disclose any continuance of the case as a result of docket congestion because of any exceptional circumstance as provided by Rule 28.3 (b). No motion for continuance was filed by the state from the date of appellant’s arrest to the date the motion to dismiss was denied. If a case is continued beyond the time provided by the rule, the record should timely show the reasons for such delay. Findings of the trial court entered after a motion to dismiss has been filed are not valid grounds for excluding a term of court in applying Rule 28.1. Harkness v. Harrison, Judge, supra.
We conclude the trial court erred in denying appellant’s motion for dismissal of he case.
The necessity for reversal and dismissal as provided by Rule 30.1 is unfortunate, and such result would not be necessary had the present revised Rule 28.1 (c) been in effect. The new rule permits a defendant to be brought to trial within eighteen months after arrest and eliminates the complications occasioned by the old rule which computed time by court terms. However, this case predates the revised rule which has no application.
Reversed and dismissed. | [
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George Rose Smith, Justice.
Appellant, aged 33, was charged with attempted capital murder in shooting at David Sanders, a law enforcement officer acting in line of duty. He pleaded not guilty and not guilty by reason of a mental disease or defect. The jury found him guilty and imposed a 25-year sentence. For reversal he contends that the evidence is not sufficient to support the verdict and that the court should not have permitted the introduction of a statement he made to police officers on the day of the offense.
The State adduced an abundance of substantial evidence to support the charge. On March 20, 1979, Officer Sanders, in his police uniform, went to a residential area in Little Rock to investigate suspicious conduct on the part of Harris. When the officer came up behind Harris in a yard and spoke to him, Harris turned quickly, and the officer saw he had a pistol in a shoulder holster. The officer drew his own pistol and cocked it. As Officer Sanders was backing up, he tripped and lost his balance. Harris grabbed the barrel of Sander’s weapon with both hands. During the struggle Sanders pulled the trigger, firing harmlessly. Sanders continued falling and hit the ground, dropping his gun. At that point Harris stood astride of the officer’s body, held his own pistol in both hands, and aimed at the officer, between the eyes. Sanders escaped injury by rolling over just before Harris fired. Harris fired again as Sanders was making his way to his car to call for assistance.
Other police officers arrived quickly. In a running gun battle both Harris and the officers fired several times before Harris reached his own house and took refuge there. After some two hours of attempted persuasion the officers used tear gas to make Harris come out and surrender. He was taken to a hospital for removal of the lingering tear gas in his eyes. He was then taken to police headquarters, where, after having been given Miranda warnings, he made and signed a brief but coherent statement of his encounter with the officers.
It is argued that the State failed to prove that Harris acted with the necessary mental culpability, knowledge that Sanders was an officer, premeditation, and deliberation. Of course, it was impossible for the State to offer explicit direct proof of all such issues of intent and mental state, but the proof of Harris’s actions was sufficient to establish every element of the offense and to support the jury’s verdict of guilty. No complaint is made of the court’s instructions submitting all the issues that are now argued.
As to the admissibility of the statement, the court held two in-chambers hearings just before the trial began. The first was upon a motion asserting that Harris was mentally unfit to stand trial. Psychiatrists testified that when Harris was first committed to the State Hospital, eight days after the offense, he was found to be confused, to be suffering from paranoid schizophrenia, and to be unfit to stand trial. After some four months of medication and treatment, which could be continued after his possible release, he was found to be in complete remission and able to communicate in a normal manner. At the conclusion of that hearing the judge found Harris mentally fit to stand trial.
The same proof was also considered at the Denno hearing. In addition, the three officers who participated in the interrogation testified that Harris gave preliminary information, such as the date and place of his birth, that he seemed to understand their questions, that he answered them calmly, and that the statement was made voluntarily. At the end of the Denno hearing the trial judge discussed the proof briefly and concluded with these words:
I would permit this [the signed statement] to be into evidence for whatever weight the jury might determine that it is entitled to, if any. And you may inquire about it, and you may argue this-to the jury, and you may inquire of the doctor in front of the jury as to his capacity for whatever weight they may give to it, if any at all.
The trouble with the foregoing ruling is that it may be taken to mean either that the judge finds the statement to be voluntary or that he is leaving that issue to the jury for its sole determination. Thus the ruling fails to meet the Supreme Court’s requirement that the trial court’s conclusion that a confession is voluntary “must appear from the record with unmistakable clarity.” Sims v. Georgia, 385 U.S. 538 (1967). Our statute also makes it the trial court’s duty to determine by a preponderance of the evidence that the confession was made voluntarily. Ark. Stat. Ann. § 43-2105 (Repl. 1977).
The deficiency in the ruling, however, does not in itself entitle the defendant to a new trial. The cause should be remanded to the trial court for an explicit determination of the issue of voluntariness. Swenson v. Stidham, 409 U.S. 224 (1972); Jackson v. Denno, 378 U.S. 368 (1964). We have followed that same procedure, by remanding the cause and affirming it upon a second appeal Johnson v. State, 248 Ark. 184, 450 S.W. 2d 564 (1910); Johnson v. State, 249 Ark. 268, 459 S.W. 2d 56 (1970). A new trial should be ordered only if the trial judge finds the confession to have been involuntary. Denno, supra.
No error being shown except with respect to the required finding of voluntariness, the cause is remanded for further proceedings upon that issue. Whether an evidentiary hearing is needed is for the trial judge to decide.
Purtle, J., not participating. | [
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George Rose Smith, Justice.
In 1978 Cason was convicted at a non-jury trial of delivery of heroin and was sentenced to ten years’ imprisonment. In 1979 we affirmed the conviction as a no-merit appeal. Some two months later we gave Cason permission to seek postconviction relief in the trial court under Rule 37, for ineffective assistance of counsel. This appeal is from the trial court’s denial of relief after an evidentiary hearing at which Cason and his former attorney, Louis W. Rosteck, testified.
In 1976 three informations were pending against Cason, two arising under the Controlled Substances Act and the third charging theft by receiving. Cason retained Rosteck as paid counsel to represent him in the first drug case. Cason then jumped bail and was away from Arkansas for more than a year. After Cason was again taken into custody the first case was tried. Rosteck succeeded in having it dismissed on the ground that the officers had obtained the drugs by an illegal search.
At the conclusion of that case the trial judge appointed Rosteck as counsel for Cason in the other two cases. After the conviction in the second case, which is the one now before us, Cason pleaded guilty to the charge of theft by receiving. Any effort to obtain postconviction relief in that case under Rule 26 has evidently been abandoned.
Cason, in his petition in this court for permission to seek relief under Rule 37, made various conclusory allegations of negligence, ineffectiveness, and incompetency on Rosteck’s part. The petition asserted that Rosteck failed to make adequate pretrial investigation. The only really specific allegation of fact was that Rosteck failed to locate, interview, and subpoena five witnesses who were available and would have testified that Cason was with them on' the night of the offense and could not have been at the scene of the crime.
The controlling principles of law are clear. We have explained that our “mockery of justice” standard for the determination of ineffectiveness of counsel is not to be taken literally, but it does embody the principle that the petitioner must shoulder a heavy burden in proving unfairness. McDonald v. State, 257 Ark. 879, 520 S.W. 2d 292 (1975). Hence Cason had the burden of showing clearly and convincingly that Rosteck’s representation, at least as it manifested itself in the courtroom, was so patently lacking in competence that it became the duty of the trial judge to be aware of it and to correct it.
Cason testified below. He wholly failed to substantiate his assertion that there were five known available witnesses who would have supported what was apparently his main defense, that of alibi. In his testimony, Cason did not even refer to those supposed witnesses, much less give their names, identify them in any way, or explain how they could have remembered more than two years later that Cason was at a party on a certain night at a certain place. The trial judge would have been justified in finding that the allegations in Cason’s petition with reference to those witnesses were simply false.
As to the pretrial investigation, Rosteck testified that he examined the prosecutor’s file and talked to Officer Littles, who confirmed the facts stated in the file. Rosteck explained why he did not call either of the two possible witnesses, Johnson and Walls, who were somewhat vaguely referred to in Cason’s testimony below. Rosteck said that Cason, against Rosteck’s advice, testified at the trial and “grandstanded” by claiming that the officers were framing him and that the prosecution was a farce. Rosteck, a lawyer with 25 years’ experience in criminal cases, ended his testimony by saying that if he had it all to do over again he knew of nothing that he would do differently.
Cason’s argument in this court falls decidedly short of showing that the trial judge’s denial of postconviction reliefs is clearly erroneous. Cason’s assertions are largely negative, such as a charge that Rosteck failed to learn the identity of the prosecution’s confidential informer. It is not shown, however, that the informer could have supplied relevant admissible testimoy. See Ark. Stat. Ann. § 28-1001, Uniform Evidence Rule 509 (Repl. 1979)- So with the other general allegations. It would be futile for the trial court or for this court to order a new trial without any showing whatever that facts favorable to the petitioner should have been developed by further investigation or could now be developed.
Affirmed.
Purtle, J., concurs. | [
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George Rose, Smith, Justice.
In this divorce suit the chancellor granted the divorce to the appellant, Rose E. Stevens, on the ground of adultery, awarded her the custody of the couple’s ten-year-old daughter, directed Stevens to pay child support of $300 a month, denied alimony, divided the personal property, and ordered the sale of the parties’ three principal pieces of property (two houses and an autombile body shop business), with the proceeds of the sale to be divided equally after the payment of encumbrances. For reversal the appellant argues primarily that she should have been given alimony and possession of the larger house and that she should have received her half interest in the body shop by appraisal rather than by sale. Our jurisdiction rests upon a companion appeal which was consolidated with this one and decided by a per curiam order.
The couple were married in 1967 and separated in September, 1977. Mrs. Stevens then lived in California with her daughter for about two years, during which the husband’s adultery, which was conceded, occurred. After Mrs. Stevens’s return to Arkansas this suit was filed by the husband in April, 1979. After the first of three hearings, in Sepember, the court ordered temporary monthly allowances of $300 alimony and $400 child support, to be paid from $7,-600 which Mrs. Stevens had remaining from $18,000 she had taken from the family business and used for living expenses. The final decree, with an amendment, was entered in January after two additional hearings.
We consider first the matter of alimony, which has a bearing upon the other issues. The decree was rendered long after the passage of Act 705 of 1979, which was designed to equalize the property rights of husbands and wives in divorce proceedings. The appellant’s right to alimony is therefore governed by much the same principles that prevailed before the decisions in Orr v. Orr, 99 S. Ct. 1102 (1979), and Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21 (1980).
During the later years of the marriage Stevens established and built up the body shop business, which, although a family partnership, was essentially Stevens’s operation. The shop was used for the repair of autombiles owned by customers and also for the rebuilding and sale of wrecked vehicles that Stevens bought from insurance companies. The business apparently prospered, grossing $151,000 in 1978, the last year for which figures are shown. It is evident that Stevens’s own income exceeded that indicated by his testimony and by the income tax returns that were introduced. He testified, for example, that he sent his wife from $800 to $1,200 a month during a substantial part of their separation, that he accumulated $18,000 in a safety deposit box over possibly 18 to 24 months, that he maintained his own apartment, and that he took a trip to Hawaii. Such expenditures could hardly have come from the income disclosed by the proof.
By contrast, Mrs. Stevens does not have a dependable source of income. What the net proceeds of the sale of the houses and the business will be is impossible to estimate. The estimates of value vary greatly, and the intangible worth attributable to Stevens’s knowledge and skill in the business cannot be measured. Mrs. Stevens, now 34, worked at various jobs before the birth of her daughter and for some two years later on in some capacity at the shop. It does not appear that she has any particular employable skill. She has a college degree in psychology and hopes to be able to obtain work in that field upon getting a master’s degree after two years or more of further study. In the circumstances we hold that a monthly alimony of $400 should have been awarded to her. In this respect the decree is reversed and the cause remanded to vest continuing jurisdiction in the chancery court.
We cannot say, especially in view of .the allowance of alimony, that the chancellor was clearly wrong in refusing to award Mrs. Stevens possession of the house. It is apparently a larger house than she and her daughter will need and costly to maintain.
The original decree, announced in December, provided that the shop would continue to be jointly owned, with Stevens in control of it and with the profits being equally divided after an allowance of up to $400 a week to Stevens for his services. That arrangement would probably not be satisfactory; so on Stevens’s motion the chancellor amended the decree to order a sale of the business. The appellant now asks that instead the business be independently appraised and the appellee be required to pay her half its value. That possibility was not developed by the proof in the trial court, and we are not willing to prolong the proceedings, which have already encompassed three protracted hearings before the chancellor, for the exploration of a suggestion made first on appeal.
Two minor points are argued, relating to the chancellor’s decision not to allow the introduction of certain testimony offered by Mrs. Stevens at the third hearing, at which she was representing herself without the assistance of a lawyer. We think it sufficient to say that no complete proffer of proof was made and that our decision on appeal would not be different had the chancellor allowed the introduction of the scant proof actually proffered.
Affirmed in part, reversed in part, and remanded. | [
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James R. Cooper, Judge.
This case involves a suit which was originally filed in Chancery Court of Faulkner County, Arkansas on March 8, 1977, seeking an order directing appellant to specifically perform a contract between appellant and appellee. The complaint alleged an oral agreement to purchase silage for the sum of $19.50 per ton for all of the silage produced on 500 acres which was to be leased, by appellee. The complaint alleged that these transactions took place in September of 1976. On or about January 10, 1977, it is alleged that appellant notified appellee that it would not purchase any silage produced by appellee in excess of 6,000 tons and that the price it would pay would be limited to $18.50 per ton. The prayer for relief asked for an order requiring appellant to specifically perform the contract, and in the alternative for damages in the amount of $47,000.00 representing the lease payment due on the 500 acres, interest due to the Central Arkansas Production Credit Association for the money borrowed to perform the contract, loss of profits, punitive damages, plus attorney’s fees and costs.
The appellant demurred and alleged that the complaint failed to state a cause of action in that the alleged agreement was oral, involved over $500.00, and there was no allegation of substantial performance. An amended complaint was filed alleging partial performance. On April 12, 1977, the Chancery Court sustained the demurrer and transferred the cause of action to the Circuit Court of Faulkner County. An amended complaint was filed April 30, 1978, which alleged that the appellee suffered damages because of his detrimental reliance on the oral agreement. He alleged that he had first entered into a lease for 500 acres and later obtained a loan from Central Arkansas Production Credit Association to fund the expenses of growing and harvesting the silage; that in an effort to mitigate damages he planted soybeans in the year 1977 and suffered a loss in excess of $40,000.00. He further alleged that he could have realized a profit of over $84,000.00 had the appellant not breached his contract. The jury returned a verdict in favor of appellee in the amount of $50,000.00. From that verdict and judgment comes this appeal.
The sole issue raised on appeal by appellant is that the trial court erred in not granting a directed verdict moved for by appellant at the close of appellee’s case.
The test as to whether a trial court may direct a verdict without abusing its discretion has been clearly stated by this Court. The evidence and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the verdict is directed, and if there is any conflict of evidence or the evidence is not in dispute but is in such a state that fair-minded men might draw a different conclusion therefrom, a jury question is presented. Williams v. Curtis, 256 Ark. 237, 506 S.W. 2d 563 (1974); Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W. 2d 943 (1980).
At the time the motion for a directed verdict was made there had been testimony by appellee that discussions were had between appellee and appellant regarding the silage contract in September of 1976; that appellant agreed that he would rent 500 acres from Mr. Brown; that he would plant and double cut silage on that acreage in 1977; and that he would be paid $19-50 per ton. He testified that he left the meeting with the understanding that he had a 500 acre contract for $19.50 per ton. He testified further that on October 7, 1976, he signed a lease with Mr. Brown requiring rental payments of $47,000.00 for 500 acres and that he made a down payment of $5,000.00. He testified that he advised the manager of appellant’s farm that he had leased the 500 acres within 2 or 3 days after he had signed the lease. He testified that on December 1, 1976, he applied to the Central Arkansas Production Credit Association for a loan for operating money in the amount of $108,000.00 which was approved December 13, 1976. He further testified that in the normal course of dealings with appellant over the previous 6 years he had borrowed money to operate his farming operations shortly after he had reached an oral agreement with the company and that this oral agreement was followed by a written contract at the convenience of the appellants, usually some months later. Mr. Ray Trafford testified that his written contract with appellant was drawn and signed after purchasing equipment for the production of silage. Mr. Bob Williams, a former partner of appellee, testified that the meeting relating to the growing of silage for 1977, between appellee and appellant’s manager did take place and that an agreement was reached as to the farming of the 500 acres to be leased from Mr. Brown.
Ark. Stat. Ann. § 85-2-201 (Add. 1961) states in pertinent part:
.... a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought. . . .
Ark. Stat. Ann. § 85-2-105 (Add. 1961) defines goods as including growing crops.
Thus the statute of frauds applies in this case unless an exception would prevent its application. Appellee urges that appellant is estopped from asserting the statute of frauds.
The doctrine of promissory estoppel is applicable to transactions covered by the Uniform Commercial Code. The Code states that the principles of law and equity, including estoppel, supplement the U.C.C. unless displaced by a particular provision (Ark. Stat. Ann. § 85-1-103 (Add. 1961)). Thus the doctrine of promissory estoppel may be asserted by one party to an oral contract for the sale of goods, to prevent the other party from asserting the defense of the statute of frauds.
A promise is binding if an injustice can be avoided only by enforcing the promise, if the promissor should reasonably expect to induce action or forbearance of a definite and substantial character by the promissee, and if that action is induced. Reynolds v. Texarkana Constr. Co., 237 Ark. 583, 374 S.W. 2d 818 (1964); Sanders v. Arkansas-Missouri Power Co., 267 Ark. 1009, 593 S.W. 2d 56 (Ark. App. 1980).
In this case, we hold that the trial court correctly denied the motion for directed verdict because appellant was es-topped to assert the statute of fraud. Appellee, in his case in chief showed reliance on the oral agreement reached between himself and Deavers, manager of appellant’s farm. The reliance was proved by his lease of the 500 acres from Mr. Brown, the payment of $5,000.00 down on rent, and his loan from Central Arkansas Production Credit. The substance of the agreement with Deavers was substantiated by Williams. Further, the past dealings between Williams, appellee, and appellant were consistent with the oral agreemet alleged hree, and appellee was entitled to rely on his past dealings with appellant.
Based on the evidence produced during appellee’s case in chief, viewing all the evidence and inferences in the light most favorable to appellee, and considering any conflicts in the evidence, we find that fair-minded men might draw different conclusions from the evidence produced at that point, and that therefore the case was properly submitted to the jury.
Affirmed.
Corbin, J., not participating. | [
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Ernie E. Wright, Chief Judge.
The issue presented by this appeal is whether a clause in a long term lease providing that the base monthly rent specified in the lease would be adjusted annually on July 15 in keeping with the Consumers Price Index (CPI) of the United States Bureau of Labor Statistics is applicable to the base rent set out in the option to renew the lease. The trial court so held, and we reverse:
Some of appellees are the original lessors and the remainder of appellees are successors of original lessors, and the appellant, First National Bank is the successor to the original lessee, the Peoples National Bank of Little Rock. The original lease on certain real estate in downtown Little Rock was for 25 years beginning August 1, 1952, and ending July 31, 1977, and provides for a base monthly rent of $900.00 for the first 10 years and $1,000.00 for the succeeding 15 years. The lease contained a clause for the annual adjustment of base rent in keeping with fluctuations of CPI.
A separate document described as, “Option to Renew Lease”, was executed simultaneously by lessors and lessee giving the lessee the right to renew or extend the original lease from August 1, 1977 to July 31, 2002, at a rental of $1250.00 per month for the first 10 years of the renewal and $1,500.00 per month for the last 15 years, “subject to adjustment from time to time in accordance with fluctuations in Consumers Price Index”, as provided in the original lease.
The renewal option further recited:
All of the provisions and covenants, other than the monthly rentals, of the original lease shall remain in full force and effect if the lessee exercises its option to renew said lease for the additional twenty-five year period expiring on the 31st day of July, 2002.
The appellant lessee gave written notice in September, 1969, of the exercise of its option to renew the lease and for the period from August 1, 1977 through December, 1977, appellant paid appellee monthly rents in the amount of $2,-282.16. From January 1, 1978 through July, 1978, appellant paid monthly rent to appellees in the amount of $1,250.00 per month. Appellees contend the correct rent for the period beginning August 1, 1977 was $2,852.70 per month and was $3,072.93 per month beginning August 1, 1978. Appellees’ contention is based on the argument the renewal option carried forward all CPI adjustments under the original 25 year lease.
Appellant contends the monthly rent under the renewal of the lease if controlled solely by the specific provisions with reference to monthly rental set out in the renewal option, and that the CPI adjustments under the original lease are not applicable to the renewal, but that the larger base rent stated in the renwal option is subject only to adjustment for changes in the CPI after the inception date of the renewal lease.
Appellant filed suit for declaratory judgment finding the monthly rent payable for the period beginning August 1, 1977, the beginning date for the lease renewal, is $1,250.00 per month and for the recovery of over payments alleged to have been made by oversight during the first 5 months of the lease renewal. In effect appellant asks the court to determine that the base rent adjustment provision as to the renewal lease was limited to changes in the CPI subsequent to the inception of the renewal lease. Appellant deposited in the registry of the court the difference in dispute in the rent.
Appellees filed suit for possession of the premises on grounds of alleged failure on the part of appellant to pay adjusted rent which would include the cumulative increases in the CPI from the inception of the original lease, and for judgment for additional rents appellees contend appellant owed. The two cases were consolidated and all parties thereafter moved for summary judgments.
The court entered judgment holding that the renewal of the lease under the option maintained in full all of the provisions of the original lease and that the adjustments to the base rent provided by the original lease term were includ able in determining the amount of rent payable under the renewal. The court rendered judgment for appellees for additional rents in keeping with appellees’ contentions.
The briefs indicate the parties can arrive at an appropriate adjustment in the rent when this court on appeal resolves the issue as to the rent adjustment clauses contained in the lease and the renewal option.
The original lease and the renewal option were executed at the same time, and in the course of the same transaction, and we read and construe them together. The renewal option states, “All of the provisions and convenants, other than the monthly rentals, of the original lease shall remain in force and effect”, if the lease is renewed. We hold the express exclusion of the monthly rental provisions of the original lease in the renewal option evidences an intent that the rental provisions spelled out in the renewal option are to control the amount of rent payable under the lease renewal. It is the court’s responsibility to determine the intent of the parties from the language of two documents, and the construction we here indicate appears to be the most likely intent of the parties. Gibson v. Pickett, 256 Ark. 1035, 512 S.W. 2d 532 (1974).
The CPI data in the record reflects the percent increase in the CPI for the first three years of the 25 year lease to be quite small. The accumulated increase at the end of the first three years of the lease was only about one-half of one per cent. In fact the increase in the CPI during the first 9 years of the original lease was so modest appellant paid and appellees accepted as rent the base amount of only $900.00 monthly without any adjustment for changes in the CPI. Thus, it is clear that when the original lease was executed in 1952, inflation was minimal, and those circumstances support the conclusion that it was the intention of the parties in the renewal option to set out specific base monthly figures, which were higher than the base figures in the original lease, and that same would be adjusted only with the fluctuations in the CPI subsequent to the beginning date of the lease renewal. If the intention of the parties had been otherwise, the renewal option could easily have stated that the rental figures set out in the renewal option would be subject to adjustment for flunctuations in the CPI during the term of the original lease as well as fluctuations occurring during the renewal lease. Instead of such a provision the renewal option excluded the rental payment provisions of the original lease.
The appellant and the appellees take conflicting positions as to the construction of the rental provisions in the instruments, and thus it is apparent there is some ambiguity in the renewal provisions, at least insofar as the parties are concerned. The general rule is that a lease is ordinarily to be construed more strongly against the lessor in favor of the lesesee in case of ambiguity. 49 Am. Jur. 2d, Landford and Tenant § 143. This is in accord with the rule announced in Lawless v. Caddo River Lumber Co., 145 Ark. 132, 223 S.W. 395 (1920) and Marshall v. Marshall, 227 Ark. 582, 300 S.W. 2d 933 (1957), that a deed should be most strongly construed against the grantor. A lease operates to convey a particular estate in lands for life or for a term of years, and is therefore in the nature of a limited deed. By analogy we hold that the above mentioned rule of construction applicable to deeds is also applicable to leases.
Appellees urge that appellant’s conduct with reference to the lease payments is evidence of its interpretation of the lease in keeping with the contention of appellees, and that this is a circumstance to be considered by the court in construing the instruments. Some conduct of each of the respective parties is inconsistent with the present contentions of the parties as to the amount of rent to be paid. Under the original lease for some nine years appellant paid only the base rent and appellees accepted same whereas, clearly the lease called for adjustments in keeping with fluctuations in the CPI. For the first five months under the renewal lease appellant paid monthly rent which appellant now contends was too high and was paid by oversight; and appellees claim the rent paid was too low.
The trial court found neither party was estopped or had waived any rights under the contract and this is not an issue on appeal. We have considered the past conduct of the parties with reference to the lease and renewal and find that the conduct of each has varied from present contentions of each, and the conduct of the parties does not supply any substantial evidence to aid in determining the intent of the parties at the time the documents were executed.
We conclude the trial court clearly erred in holding the option for renewal of the lease provides for monthly rental payments to be adjusted by the changes in the CPI since 1952, the inception date of the original lease. The court should have construed the renewal option as providing for the specifically stated monthly base rental subject only to adjustments in the CPI subsequent to August 1, 1977.
The judgment, including the money judgment, in favor of appellees is reversed and remanded for further proceedings consistent with this opinion.
Hays, J., not participating. | [
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James R. Cooper, Judge.
This action was filed by the beneficiaries of the last will and testament of Fletcher Long, Sr., against the executor of the estate of Mrs. Susan Fletcher Matkin, Mr. John D. Eldridge, and her heirs at law, to establish and enforce an oral contract to make a will between Fletcher Long, Sr. and Mrs. Matkin.
On July 10, 1963, Mrs. Matkin deeded approximately 3,200 acres of farmland to her nephews, Dr. Thomas Moore Fletcher, Jr., and Fletcher Long, Sr., subject to her retention of a life estate. This deed was filed for record July 11, 1963. Correspondence between Fletcher Long, Sr. and Dr. Thomas Moore Fletcher, Jr., indicated concern about Mrs. Matkin’s gift tax liability and as a result Fletcher Long, Sr., on August 14, 1963, wrote a letter to John D. Eldridge, attorney for Mrs. Matkin, enclosing a document reconveying his interest in the property to Mrs. Matkin. In that letter he stated that his inducement to reconvey the property was the disclosure to him by Mr. Eldridge of Mrs. Matkin’s intent to make a testamentary disposition of the land in question so that Mr. Long’s interest at her death would be the equivalent of that which he had under the July 10, 1963 deed. Thomas Moore Fletcher also reconveyed his interest in the lands to Mrs. Matkin. On August 22, 1963, Mrs. Matkin executed a formal will devising the lands in question “to (her) nephews, Fletcher Long and Dr. Thomas Moore Fletcher, Jr., and unto their heirs and assigns, in fee simple, share and share alike ...” Fletcher Long, Sr. died June 19, 1969 and Mrs. Matkin died August 1, 1978. In a separate Probate proceeding the Probate Court found that the devise to Mr. Long lapsed into the residuary estate. The Chancellor found that an oral contract had been proved by clear, cogent, and convincing evidence, and directed the executor to perform the contract by conveying an undivided one-half interest in the property in question to the appellees. This appeal results from that ruling.
Appellant urges as error the following points: (1) That the Court erred by finding that plaintiffs proved by clear, cogent, and convincing evidence that Mrs. Matkin contracted to devise an undivided one-half interest in the property to Fletcher Long which would pass to his heirs if he predeceased her; (2) That the Court was in error when it found that the reconveyance by Fletcher Long, Sr. was valid consideration for a contract to make the will because he was under a preexisting legal duty to reconvey the property to Mrs. Matkin; and (3) That the Court erred in finding that the contract to make a will was not fully performed and discharged by Mrs. Matkin’s execution of her will.
Both parties to this action recognize that in order to prove an oral contract to make a will, the evidence must be clear, cogent, and convincing. Apple v. Cooper, 263 Ark. 467, 565 S.W. 2d 436 (1978). The chancellor found that appellees proved that an oral contract was entered into by Fletcher Long, Sr. and Mrs. Matkin whereby she would execute a will devising an estate to him equal to that which he héld under the July 10, 1963 deed. Correspondence between Mr. John D. Eldridge, attorney for and friend of Mrs. Matkin, and Fletcher Long, Sr. was introduced. The letter from Mr. Long to Mr. Eldridge referred to a prior telephone conversation between the parties and Mr. Long confirmed the agreement by letter as follows:
In the telephone conversation between you and me yesterday, you disclosed to me that she had plans to make testamentary disposition of the lands in question in such a manner that my interest at her death would be at least equivalent of that which is now vested to me. It is contemplated that you, as her attorney, will give effect to these plans in a more formal manner by preparing a will at her direction and for her execution within the near future.
As I gave you to understand orally yesterday, the Grantee’s commitment to make the disposition above referred to is the real inducement to my execution of the enclosed instrument.
Another exhibit was a letter from Mr. Eldridge to Dr. Thomas Moore Fletcher, Jr. in which he stated:
. . . Sue (Mrs. Matkin) expressly agrees to execute a will leaving this property to you and Fletcher, share and share alike, in fee simple and I am in the process of preparing a will to accomplish that.
Sue certainly appreciates what you and Fletcher are doing and from your standpoint the outcome will have the same practical effect, but it will enable her to continue to finance the farm operation and will avoid the present impact of gift tax.
The issue in this case is not whether Mrs. Matkin agreed to devise anything to appellees if Fletcher Long, Sr. predeceased her, but what interest she contracted to devise to Fletcher Long, Sr., and, if her will did not perform that contractual obligation, whether the obligation to perform can be imposed on her executor. The estate which Fletcher Long, Sr. had under the July 10, 1963 deed was a fee simple estate (limited only by her life estate) not contingent on survivorship nor subject to lapse, and had Fletcher Long, Sr. not reconveyed his interest in the property to Mrs. Matkin, it is clear that his heirs or devisees would have become the owners of an undivided one-half interest in the subject lands. It seems apparent that the possibility of Fletcher Long, Sr. predeceasing Mrs. Matkin was not discussed or considered by the parties at the time the will was made. Mr; Long intended to receive, by devise, that which he had under the July 10, 1963 deed, and Mrs. Matkin, according to the letter from Mr. Eldridge to Dr. Fletcher, intended to devise the same estate to him that he expected to receive. In chancery cases we review the record de novo, but will not disturb findings of the Court unless clearly erroneous or against a preponderance of the evidence.
We hold that the finding of the trial court that the appellees had proved an oral contract by clear, cogent, ,and convincing evidence was not clearly erroneous or against a preponderance of the evidence.
The appellant also argues that there was no consideration for the contract to make a will. The parties agree that the validity of an oral contract to make a will has been recognized and for this type of contract to be enforced there must be consideration, as in other types of contracts. Appellant argues that the agreement by Mr. Long to reconvey the property was not valid consideration for her agreement to make the testamentary disposition of an undivided one-half interest in the land to him because he was under a preexisting legal obligation to reconvey the property to Mrs. Matkin. Appellant’s basis for that argument is that Fletcher Long, Sr. acted as her attorney in the matter by drafting the warranty deed and the conveyance of the undivided one-half interest to him represented a transaction between an attorney and client. This Court has held that in such cases the burden is on the attorney to show that no advance was taken and that he provided all the information and advice to allow the client to act understanding^. Norfleet v. Stewart, 180 Ark. 161, 20 S.W. 2d 868 (1929).
Appellant’s argument on this point presumes either that Mr. Long would have been totally unable to meet this burden, or that because of the circumstances the original transaction was void, and therefore his reconveyance could not constitute valid consideration. We cannot agree. Although the better practice would have been for another attorney to draft the original deed, Mir. Long gave up valuable rights by reconveying the property. He gave up ownership of an undivided one-half interest in 3,200 acres, and he did so voluntarily, on the strength of an oral agreement to devise the same interest back to him. His reconveyance was valid consideration for the oral contract.
For its third point for reversal, appellant argues that the Court erred by finding that the contract was not fully performed at the time Mrs. Matkin executed her will. Appellant concedes that in other jurisdictions the general rule is that the existence of a will which does not meet the terms of a contract to make a will does not discharge the obligations under the contract. In this case appellant argues that the will was specifically drafted for the purpose of satisfying the contract between Mrs. Matkin and Mr. Long, and that Mr. Long accepted the execution of this will as performance of the contract. Mrs. Matkin contracted to execute a will vesting in Fletcher Long, Sr. the interest he held under the earlier deed. That interest was absolute fee simple ownership of an undivided one-half interest subject to her life estate: The Probate Court has held that the will did not accomplish what Mrs. Matkin contracted to do. The will simply did not do what Mrs. Matkin wished it to do and it did not satisfy the contract between her and Mr. Long.
The chancellor found that the terms and conditions of the contract were proved by clear, cogent and convincing evidence and the contract was based upon an adequate consideration. We cannot say that the findings of the chancellor are clearly erroneous or against a preponderance of the evidence, and therefore we affirm.
Affirmed.
Corbin and Cracraft, JJ., not participating.
Fogleman, Special Judge, joins in this opinion.
Cloninger and Glaze, JJ., dissent. | [
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John I. Purtle, Justice.
Appellant was convicted by a jury in the Saline County Circuit Court of aggravated robbery and theft of property. He was sentenced to eighteen years for robbery and three years for theft of property. He appealed on the ground that the trial court erred in failing to suppress evidence at a Denno hearing. We find that the court did not commit reversible error.
Appellant and an accomplice were suspected of robbing the Union Bank in Benton, Arkansas, on March 14, 1980. The officers were in immediate pursuit and with the aid of bloodhounds cornered the two suspects in a house at Bryant, Arkansas. The two were finally discovered in the attic partially hidden under the insulation. The county sheriff and other officers were present at the time. Two officers from the state police rousted the appellant out of the attic and one of them accompanied him to his state police vehicle. The other state policeman continued to search the attic for a gun and money which they believed were in the attic. The county sheriff was assisting the officer in searching for the items in the attic. He subsequently got down and went out to the car where appellant was being held by the policeman and inquired of appellant where the money and gun were located. The appellant told the sheriff the spot where the gun and money were located. Immediately after the sheriff returned to the attic the items were found. Although there is a slight dispute in the evidence, it is fairly obvious the appellant had not been given a Miranda warning at the time he told the sheriff where the gun and money were located. Obviously, he was in custody at that time.
A Denno hearing was held and although the evidence was conflicting the court held the gun and money were not fruits of the poisonous tree and refused to suppress the evidence. A trial was held and the evidence was admitted. Appellant was convicted by the jury and received eighteen years for robbery and three years for theft of property.
Appellant bases his appeal on the argument that the court should have excluded the gun and money as illegal evidence. We agree with the appellant that the state did not overcome the burden of showing that the evidence was not received as a result of illegal interrogation. The evidence is very conflicting but the county sheriff unequivocally stated he obtained the information from him while the appellant was seated in a state police vehicle awaiting transfer to the county jail.
In spite of the fact that the money and the gun may have been discovered as a result of illegal questioning, we think it should be admitted under the inevitable Discovery Rule. This rule has been adopted in other states. State v. Byrne, 595 S.W. 2d 301, 304 (Mo. App. 1980), and People v. Fitzpatrick, 346 N.Y.S. 2d 793 (1973), cert. denied 414 U.S. 1050 (1973). The doctrine is designed to remove evidence which was discovered as a result of improper conduct on the part of the officer from the exclusionary rule in certain specific situations. If it is clearly evident that the officers would have discovered the evidence in any event, then the failure to give the Miranda warning will not prevent its introduction. We recognize that this rule must be strictly adhered to and in order for it to apply, the state must prove by clear and convincing evidence that it would have acquired the items through legal means regardless of its illegality. Also, the police officers involved must have acted in good faith in accelerating the discovery of the evidence. The chief reason for adopting this rule can be seen if you consider the case where a party observes the police obviously about to discover incriminating evidence. In such case the party could blurt out the location of the evidence and thereby prevent it being used in a trial. Therefore, we cautiously adopt the Inevitable Discovery Rule with the understanding that it is not intended to erode the exclusionary rule.
In view of the particular facts of this case, it is obvious to us that the items in question were surely about to be discovered. One officer remained in the attic and continued to search during the time the appellant and officers were at the scene. It seems to us that the evidence is very clear and convincing that the officers would have discovered these items regardless of whether the appellant made a statement. Therefore, the case must be affirmed.
Affirmed.
Hickman, J., concurs. | [
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James H. Pilkinton, Judge.
This is an appeal from a jury verdict, and judgment entered thereon, convicting the appellant of battery in the second degree in violation of Ark. Stat. Ann. § 41-1602 (Repl. 1977). At the trial appellant claimed self-defense and justification. Two points for reversal are argued.
I
At the close of the testimony, appellant requested that the court give AMCI 4105, as modified, by including subsection (a). The court refused to modify AMCI 4105 and gave it without modification. Appellant argues here that the trial court erred in not including subsection (a) which reads as follows:
(a) . . . (However, he is not required to retreat if he is in his dwelling and was not the original aggressor) . . .
We find no merit in this argument. In the first place, the record shows that appellant failed to object to the court’s refusal to include subsection (a) in AMCI 4105, which was given. We do not have a “plain error” rule in Arkansas. See Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980) (Arkansas Supreme Court opinion delivered October 20, 1980). It is well settled that an argument for reversal will not be considered on the appellate level in the absence of an appropriate objection in the trial court. Also we note that the appellant failed to abstract any of the jury instructions. The state has supplied a supplemental abstract of the instructions given; however, we do not have before us the exact wording of the instruction offered by the appellant which the court refused to give. See Ellis v. State, 267 Ark. 5, 590 S.W. 2d 309 (Ark. App. 1979) and Vial v. State, 267 Ark. 1078, 593 S.W. 2d 491 (Ark. App. 1980). We would also note that the trial judge stated he was refusing the offered instruction because the undisputed evidence showed that appellant was not in her dwelling, and the fight did not occur in her house as defined by statute.
II
Appellant’s point II is based on the trial court’s refusal to give the jury a verdict form on the offense of battery in the third degree. As in point I, appellant has failed to abstract the verdict form which was refused, and to abstract any discussion between the court and counsel concerning the form of the verdicts to be submitted.' Appellant did, however, include some of the discussion in her brief. The record is also silent concerning any objections made on the trial level to the court’s action in refusing to submit to the jury a verdict form on third degree battery. The Arkansas Supreme Court has covered the failure to object to verdict forms in two recent cases. See Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3 (1978) and Coulter v. State, 269 Ark. 537, 597 S.W. 2d 814 (1980).
In the Coulter case the court said:
Appellant, Henry C. Coulter, was sentenced to 32 years imprisonment as a habitual criminal, after a jury found him guilty of burglary and theft of property. Challenging only the theft of property conviction on appeal, appellant contends that the trial court erred in failing to submit the proper verdict forms to the jury. We affirm without reaching the merits of his argument since appellant failed to raise the issue in the trial court.
We have consistently held that objections as to verdict forms and jury instructions must be asserted in the trial court before they will be considered on appeal. See, e.g. Spears v. State, 264 Ark. 83, 568 S.W. 2d 492 (1978); Rowland v. State, 263 Ark. 77, 562 S.W. 2d 590 (1978) Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3 (1978); and Fauna v. State, 265 Ark. 934, 582 S.W. 2d 18 (1979). We disregard a failure to object in the trial court only when the error is so great that it could not have been cured by the trial judge and only then to prevent a clear miscarriage of justice. Smith v. State, 268 Ark. 282, 595 S.W. 2d 671 (March 24, 1980). We perceive nothing that we have said in the past to have relaxed the application of this principle.
The trial court is not obligated to charge the jury with respect to an included offense unless there is a rational basis for a possible verdict acquitting the defendant of the offense charged and for convicting of the included offense. Ark. Stat. Ann. § 41-105(3) (Repl. 1977). In the case before us the defendant-appellant was either guilty of the greater charge or nothing at all. Parker v. State, 258 Ark. 880, 529 S.W. 2d 860 (1975).
This record shows that when the court first instructed the jury the lesser charge of battery in the third degree was included; however, before the case was submitted to the jury, the trial court withdrew the instruction on third degree battery, and submitted to the jury only two verdict forms, one to be used if the jury found the defendant guilty of battery in the second degree, and another to be used in the event the jury found the defendant not guilty of battery in the second degree, or had a reasonable doubt of her guilt on that charge. As stated above, if appellant made any objection to the court’s action with reference to the instructions, or the verdict forms, it is not abstracted. No adequate reason for failing to object is disclosed by the record.
Affirmed. | [
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James R. Cooper, Judge.
This appeal is from a finding by the Arkansas Workers’ Compensation Commission that appellants were liable for the payment of attorney’s fees on the controverted portion of the lump sum award based on the present value computation of claimant’s compensation benefits, unlimited by the application of Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976).
The facts are not at issue in this case so we will summarize briefly. Appellee was employed by appellant, Hot Spring County Bicentennial Park, and sustained an injury to his back on June 4, 1976. After retaining counsel, appellee filed a claim for Workers’ Compensation Benefits against appellant, who admitted that claimant had sustained a total disability as a result of this injury and a pre-existing injury of 50% to his body as a whole. Benefits in excess of 50% were controverted by appellant, and appellee contended that he was permanently and totally disabled. On January 15, 1980, the full Commission affirmed an award of the Administrative Law Judge, finding that claimant was totally and permanently disabled as a result of the above-described injury. Appellants were ordered to pay maximum attorneys’ fees allowable on the controverted portion of the award. Following a petition by counsel for appellee to pay attorneys’ fees in a lump sum, appellants denied liability for any attorneys’ fees based upon amounts exceeding the first $50,000.00 payable to the claimant in weekly benefits. Appellee contends that appellant is liable for attorneys’ fees based on the entire amount of the award, including the portion which exceeds $50,000.00. The cause was then referred to the Administrative Law Judge who found appellants liable for payment of fees based on the entire award with the fee to be reduced to present value, and, following an appeal the full Commission by a vote of two to one affirmed the findings of the Administrative Law Judge.
The relevant portion of Ark. Stat. Ann. § 81-1310(c)(2) (Repl. 1976) provides:
“The first fifty thousand dollars ($50,000.00) of weekly benefits for death or permanent disability shall be paid by the employer or his insurance carrier in the manner provided in this Act. An employee or dependent of an employee who receives a total of fifty thousand dollars ($50,000.00) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this Act but all such benefits in excess of fifty thousand dollars ($50,000.00) shall be payable from the Death and Permanent Total Disability Bank Fund ...”
The relevant portion of Ark. Stat. Ann. § 81-1332 (Repl. 1976) provides:
“Fees for legal services rendered in respect of a claim shall not be valid unless approved by the Commission, and such fees shall not exceed thirty percent (30%) on the first one thousand dollars ($1,000.00) of compensation, or part thereof, twenty percent (20%) of all sums in excess of one thousand dollars ($1,000.00) but less than three thousand dollars ($3,000.00) of compensation, and ten percent (10%) on all sums in excess of three thousand dollars ($3,000.00) of compensation. Whenever the Commission finds that a claim has been controverted, in whole or in part, the Commission shall direct that fees for legal services be paid by the employer. or carrier in addition to compensation awarded, and such fees shall be allowed only on the amount of compensation controverted and awarded ...”
Appellant argues that the statute clearly limits the payment of attorneys’ fees by the carrier to the amount of compensation “awarded” for which the carrier is liable. We disagree. The language of the statute provides that “such fees shall be allowed on only the amount of compensation controverted and awarded.” There is no language in the above-referenced statute limiting the award of the attorneys’ fees to amounts which the employer and its carrier both controvert and owe. The test is that fees are calculated on the amount controverted and awarded.
Appellants further argue that claimant in this case has only been “awarded” a maximum of fifty thousand dollars ($50,000.00) against appellants, and therefore that is the maximum upon which attorneys’ fees can be calculated. This argument misses the point.
One of the purposes of Ark. Stat. Ann. § 81-1332 is to place the burden of litigation expense on the party which made it necessary by controverting the claim. Placing the responsibility for attorneys’ fees of the employee on the employer and his carrier serves to encourage prompt and honest settlements, and to compensate employees for delay and litigation expense. Aluminum Co. of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480 (1976).
Appellant has not argued that the award of the maximum allowable fees in this case was an abuse of discretion and, since the Workers’ Compensation Commission has much discretion in fixing and approving the amount of attorneys’ fees, we do not consider the issue of whether or not the maximum award in this case was excessive. Sisk v. Philpot, 244 Ark. 79, 423 S.W. 2d 871 (1968).
We hold that Ark. Stat. Ann. § 81-1332, which provides that attorneys’ fees shall be allowed only on the amount of compensation controverted and awarded, is not limited by the application of Ark. Stat. Ann. § 81-1310(c)(2) limiting the liability of the carrier and employer to the first fifty thousand dollars in weekly benefits. Accordingly, we affirm the decision of the Arkansas Workers’ Compensation Commission, awarding attorneys’ fees to appellee on the controverted portion of the award in lump sum based upon the present value computation of claimant’s compensation benefits, unlimited by Ark. Stat. Ann. § 81-1310(c)(2), but with appropriate credit for fees previously paid.
Affirmed.
Glaze, J., not participating. | [
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John I. Purtle, Justice.
This is an appeal from the Pulaski County Circuit Court upholding the validity of Rule 39(c) of the amended rules and regulations of the Arkansas Real Estate Commission. Among the seven grounds for reversal appellants argue that the Arkansas Real Estate Commission acted beyond its statutory authority in promulgating Rule 39(c). We agree with appellants on this point and therefore find it unnecessary to discuss the other points argued on appeal.
Rule 39(c) attempted to regulate advertising by franchise real estate dealers. The rule adopted required the Arkansas broker’s name to appear equally prominent with that of the franchisor. The only fact necessary to support this opinion is that the Commission attempted to regulate advertising by real estate agents and brokers in Arkansas.
The Arkansas Real Estate Commission is an instrumentality of the legislature and was created and is controlled by the General Assembly as expressed in Ark. Stat. Ann. §71-1301 et seq. (Repl. 1979). We have carefully examined the authority granted to the Commission and are unable to find any authority which would enable them to control advertising by its members. We are not unmindful of the grant to the Commission of authority to do all things necessary and convenient for carrying the act into effect. However, one of the things the Commission was to carry into effect was not regulation of advertising by its members. The facts in this case bear a close resemblance ot those in the case of Gelly v. West, 253 Ark. 373, 486 S.W. 2d 31 (1972). In Geliy we struck down a regulation by the Commission attempting to regulate a real estate examination training school on the grounds the rule was beyond the authority granted to the Commission.
Reversed and remanded for the entry of a declaratory judgment consistent with this opinion.
Hickman and Hays, JJ., concur. | [
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John A. Fogleman, Chief Justice.
Appellant Bennie Beed, Jr., was found guilty of rape, aggravated robbery and kidnapping (class C) in a jury trial on June 12, 1979, and sentenced to life for rape, 50 years for aggravated robbery and 10 years for kidnapping. Appellant lists 11 points for reversal. Some of them include multiple assertions of error. We find reversible error in the jury selection and in the failure of the trial court to suppress evidence obtained by a search. In addition to these points, in this opinion we will treat only those points that will likely arise on retrial.
Appellant, under the heading of a single point, challenged the trial judge’s excusal of Buck Walker and R. F. Stewart for cause, his failure to excuse Richard Bolton for cause and the misuse of peremptory challenges by the state to exclude Negroes from jury service. Appellant says that Stewart and Walker were persons of the Negro race, and that two others of that race were excused by the state-by peremptory challenge. The record, however, does not disclose the race of the prospective jurors. Assuming, however, that appellant states the race of the jurors correctly, we find no error except as to juror Bolton. As far as this record discloses, the state’s exercise of peremptory challenges has not been shown to be systematic. The mere fact that the state peremptorily challenged all the Negroes on a petit jury panel does not constitute a showing that appellant’s constitutional rights were violated. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79; Brown v. State, 248 Ark. 561, 453 S.W. 2d 50; Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876; Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). Appellant was not entitled to any particular juror and is in no position to raise any question as to the jurors excused for cause, because he interposed no objection. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622.
The excusal of Richard Bolton for cause is another matter. As the state points out in its brief, it must be considered in and of itself as a matter of law and not in juxtaposition with the excusal of other jurors. Appellant relies on Ark. Stat. Ann. § 43-1920 (Repl. 1977) which provides that a challenge for implied bias may be made where the juror is related to the person on whose complaint the prosécution was issued and Ark. Stat. Ann. § 39-105 (e) (Supp. 1979) which excludes from petit jury service any person who is prevented by any relationship from acting impartially. He points out that juror Bolton’s brother Bill was the police officer to whom the complaining witness made her original complaint, a portion of which, including the description of her assailant, was related to the jury by Officer Phillips, of the Miller County Sheriff s office, who also testified before the jury that Officer Bolton had taken the statement. The trial judge had also been informed, prior to voir dire examination of prospective jurors, by testimony at pretrial hearings, that Officer Bill Bolton had assisted in conducting a “picture lineup” by presenting a folder containing six photographs, one of which was of appellant, to the victim for identification, had participated in two searches of the dwelling house in which appellant resided for evidence to be used in the trial and had developed a part of the information contained in the affidavit for the warrant on which the searches were based. There is a clear implication in the testimony of Phillips during the trial that Bolton assisted him in the entire investigation of the crimes which resulted in charges against appellant. He also told the jury that Officer Bolton assisted with the “picture lineup.” The defense in the case was alibi and mistaken identification.
On voir dire, it was disclosed that Richard Bolton had been the victim of a crime and that he had worked for the sheriff s department for two years. This juror stated that should his brother be a witness, he would not be caused to lean more heavily toward the state than toward the defendant and that it would not be embarrassing for him to discuss the case with his friends if he were on the jury and it should return a verdict of not guilty. The trial judge asked Richard Bolton if he could, withott embarrassment, serve and let the verdict speak the truth. Appellant’s challenge to this prospective juror for cause was denied. Appellant points out that he had, at the time, exhausted his peremptory challenges. He was not required to object or to save exceptions to the denial of his challenge in order to obtain appellate review. He was only required to make the court aware of the action he desired.
It is true that the question of a juror’s qualification lies within the sound judicial discretion of the trial judge and that appellant had the burden of showing the prospective juror’s disqualification. See Satterfield v. State, 252 Ark. 747, 483 S.W. 2d 171; Swindler v. State, 264 Ark. 107, 569 S.W. 2d 120. This case, however, is unlike Gammel v. State, 259 Ark. 96, 531 S.W. 2d 474, cited by the state. There the challenge was for actual bias. Although Officer Bolton did not testify, the reliability of the identification of appellant by the prosecuting attorney and the propriety of the photographic lineup conducted by Bolton and Officer Phililps were major issues in the case. Phillips testified on cross-examination that, even though there were hundreds of black males, “we” did not show any of them, except for six, to the victim because “we had our suspect.” Bennie Beed testified that he really believed that the whole matter was something like a police conspiracy to get him tried for rape, robbery and kidnapping.
Although it was established by examination of Richard Bolton that he would not be embarrassed by his brother’s connection with the case, the potential embarrassment of other jurors in weighing the evidence seems to have never been considered. If the statute on implied bias is read literally and technically, it was not Bolton’s complaint that was the basis for the institution of the prosecution. But we have not construed this section of the statute in that way. We have construed it rather liberally toward insuring the constitutional right of a defendant to a trial by an impartial jury secured by Art. 2, § 10, Constitution of Arkansas. See Swindler v. State, supra; Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670. In Swindler, we found abuse of the trial court’s discretion in not sustaining a challenge for cause to a prospective juror who was an employee of the United States Marshall’s office only because the victim of the crime was a city police officer. We also held that there was an abuse of discretion in not sustaining a challenge for cause to a member of the jury panel who had worked for the same company that employed the victim’s father for 17 years and had expressed sympathy to the father.
Even in a civil case, we held that it was an abuse of discretion for the trial court to refuse to excuse the wife of a witness, for cause, in spite of the fact that she said she would not believe him above any other witness in the case. Arkansas State Highway Comm’n. v. Young, 241 Ark. 765, 410 S.W. 2d 120. There we recognized that the statute disqualifies jurors related to a party or his attorney, but made no reference to witnesses. We followed the polestar that “justice ought not only to be fair, but appear to be fair.” There we stated the rule that where a close relative is a witness to a controverted issue in a case and the matter is brought to the attention of the trial court before the jury is sworn, it is an abuse of discretion for a trial court to refuse to strike a relative for cause. The polestar should be brighter and more clearly visible in a criminal case than in a civil one, rather than less so (see Acklin v. State, 270 Ark. 879, 606 S.W. 2d 584 (1980), particularly in view of our constitutional guarantee to an accused of trial by an impartial jury in Art. 2, § 10.
It is true that Officer Bolton did not testify; however, when we consider the role of this officer with reference to the initiation of the investigation, the search and the identification procedure, we cannot eliminate him as one on whose complaint the prosecution was instituted. Neither can we say that Richard Bolton’s answers on voir dire were sufficient to eliminate him as one who was prevented by a relationship or by circumstances from acting impartially, any more than we could do so in Young. In Young, we said:
*** It does not stretch the imagination to say that the very presence of a witness’ close relative on the jury would tend to inhibit the frank discussion necessary in a jury room for arriving at an impartial verdict — for what prudent banker or merchant on the jury, who was inclined to believe the witnesses for the Highway Commission, would care to criticize Mrs. Ragge’s husband to her face?
How could a juror in this case freely criticize the identification procedures or even the search during jury deliberations?
Failure to sustain the challenge was prejudicial error. The juror was one whom appellant was not willing to accept after he had exhausted his peremptory challenges. When a defendant has used all his peremptory challenges, before a prospective juror is called, he may only challenge that juror for cause and not peremptorily, and it is reversible error to thereafter hold a biased juror competent. Snyder v. State, 151 Ark. 601, 237 S.W. 87.
Appellant attacked the legality of a search of the dwelling house in which Bennie Beed had been residing with his mother at the time the offenses were alleged to have occurred by a motion to suppress an emerald ring seized there as evidence. The ring was identified by the victim as hers. The burden was upon the state to justify the search. Where, as here, the search is pursuant to a warrant, the state must produce the warrant and show that it was issued in compliance with the law by producing the required written evidence relied upon by the magistrate as establishing probable cause for issuance of the warrant or by following proper procedures for establishing the contents of the warrant and its supporting evidence. Schneider v. State, 269 Ark. 245, 599 S.W. 2d 730 (1980). When this is done, the burden of showing the invalidity of the warrant and its supporting documents is upon the party moving to sup press evidence seized under authority of the warrant. Schneider v. State, supra.
Although there were two search warrants issued and two entries of the dwelling house, we will concern ourselves only with the second warrant and the search made in reliance on it because the ring was seized during that search. The search was made on April 27, 1979, the day the second warrant was issued by Municipal Judge Purifoy upon an affidavit by Chief Deputy Sheriff Don Branch of Miller County. Appellant alleges that the search was unlawful because it was based upon an unlawfully issued warrant. He asserts that the affidavit on which the warrant was issued failed to disclose how the unnamed informant was reliably informed that the things sought were in the place to be searched, along with other grounds not material here.
The affidavit was sufficient as to the reliability of the informant in that it contained a statement that he had previously provided information that led to the arrest and conviction of two individuals for burglary and theft in the past. State v. Lechner, 262 Ark. 401, 557 S.W. 2d 195. The affidavit was not sufficient, however, in that it failed to disclose how the reliable informant knew that the ring and the other property described in the warrant were in the house to be searched. It was merely recited that the informant had said Bennie Beed had resided at the described premises during the time he was being sought by the officers for these crimes and that the property described was hidden in the house. The statement of this conclusion without any statement of underlying circumstances from which the informant arrived at it was insufficient to meet the test for showing probable cause for the search. Lunsford v. State, 262 Ark. 1, 552 S.W. 2d 646; State v. Lechner, supra. Denial of the motion to suppress the evidence was error.
Appellant complains that his counsel was denied the right of effective cross-examination and that the court commented on the evidence. Appellant contends that the trial judge prevented his attorney from stopping Phillips from giving hearsay testimony on cross-examination which the attorney contended was non-responsive to his question. We do not agree that the answer was not responsive to the attorney’s question: “Based on her description how did you conclude Mr. Beed to be a suspect in this case?” After the officer stated that the officers had, based on the description given them by the victim, talked to several people and received information through his investigation, appellant’s attorney interrupted the answer which we take to have been responsive and, perhaps, even admissible as an explanation of the reason the officers did what they did. Van Cleave v. State, 268 Ark. 514, 598 S.W. 2d 65 (1980). A cross-examiner is not licensed to go on a fishing expedition without accepting the hazards of such a procedure which include answers which would not be admissible as direct testimony. Arkansas State Highway Comm’n v. Russell, 240 Ark. 21, 398 S.W. 2d 201; Arkansas State Highway Comm’n. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1.
Another instance of the alleged improper restriction of cross-examination occurred during appellant’s attorney’s attempt to impeach the credibility of the identification of appellant by the alleged victim. The witness had, on cross-examination, admitted there was a possibility of mistake in identification of a total stranger viewed for only a short time, that appellant was the only black man in the court, and that she could have been mistaken as to the description of her assailant she had given the officers, but stated emphatically that she was positive that Beed was her assailant, even if there were testimony that Beed was elsewhere when she was assaulted. The only way that the attorney’s next question could be interpreted as a question would have been from the inflection of his voice. The question the trial judge ruled argumentative and repetitive was: “As far as you are concerned. This man resembles your assailant close enough to be the right one?” We see no error. Ark. Stat. Ann. § 28-1001, Rule 611 (a) (Repl. 1979) gives the trial court reasonable control over the mode of interrogating witnesses so as to avoid needless consumption of time and to protect the witness from undue harassment. This does not really change the latitude of discretion heretofore vested in the trial judge in such matters.
Another instance is the attorney’s cross-examination of the prosecuting witness about evidence of appellant’s intent. The question to which the state objected as speculative and which the court found improper was: “Do you have any reason to believe that your assailant had any intention to rape you when he forced you into the car at Skaggs?” The court limited the cross-examiner to asking what was said or done, leaving the determination of intent to the jury. Because of the testimony elicited by further examination, including a statement that the prosecutrix had not known if he (the assailant) was going to rape her, we find no reversible error in the limitation of cross-examination. Error may not be predicated upon a ruling excluding evidence unless a substantial right of a party is affected. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979).
Appellant states that his attorney had to forego cross-examination of Officer Phillips on rebuttal “as to the time of alibi” to preclude evidence of other unrelated cases from being heard by the jury. Phillips testified that when appellant Beed surrendered, Beed had asked the officer, “About this rape deal — when did it happen?” and said that he had been taken to his girl friend’s house at about 7:30 that night by a fellow living near Mandeville and had remained there until 10:30 to 11:30. This was inconsistent with appellant’s testimony and that of the witnesses who testified on behalf of appellant. Appellant’s objection to the testimony was on the ground that the statement was not made in the presence of counsel. We do not understand how appellant’s counsel was precluded from cross-examination, except by his own tactical decision.
Appellant contends that there were several instances where the trial judge commented on the evidence to appellant’s prejudice. We do not see how the trial judge’s remarks that the question by appellant’s counsel as to the existence of any reason for her to believe that her assailant intended to rape her was speculative and that the question of intent was for determination by the jury, constituted a reprimand of counsel. The argument that permitting the prosecuting attorney to question a witness on voir dire in the presence of the jury about his presence in the courtroom after the witness had been sequestered, somehow amounted to a comment by the court indicative of a lack of credibility is not persuasive. The witness denied having heard the testimony and was permitted to testify. We do not see how appellant was prejudiced by the court’s questioning Williams about the kind of gambling he had been doing at the time about which he had testified, asking him if his statement that he and appellant had been shooting dice was made under oath and whether this had taken place in March, 1979. The witness had already testified that on Friday night, March 23, 1979, the date of the alleged commission of the crimes with which appellant had been charged, he had gone to Babe Martin’s place to gamble and that he gambled continuously at a table from the time of his arrival there, somewhere between 10:00 and 11:30 p.m. and the time of his departure at 3:30 or 4:00 a.m. Williams had also said that he went there to gamble often. He said about 30 or 40 minutes after his arrival, Beed came there and stood at the table, along with 15 to 20 others, gambling until Williams left. The trial judge’s inquiry pertained to the gambling at the place, not to Williams’ testimony about Beed’s presence. This line of inquiry should not be repeated on retrial.
There was neither an unwarranted limitation of cross-examination nor improper comment on the evidence when, after the prosecuting witness had testified on cross-examination that she and her husband, to whom she first reported the incident on which the charges were based, had separated before the alleged offense occurred and that a divorce suit was pending, the trial court sustained an objection by the state to that line of questioning and responded to a statement by appellant’s attorney that he had a right to go into the character of the prosecuting witness by saying that the fact that the witness and her husband were separated did not necessarily go to her character. The trial court’s remark simply stated the reason for sustaining the state’s objection. Appellant did not attempt to indicate how the line of inquiry reflected upon the credibility of the witness. We do not find that the collective effect of the trial judge’s remarks constituted an unmerited rebuke of appellant’s attorney as appellant now contends. The only remark that might be so construed was the trial judge’s statement permitting the objection of defense counsel to be “copiously noted of record.” The descriptive adverb should not have been used, but we take the statement to have been an expression of the trial judge’s irritation by defense counsel’s tactics rather than a reprimand and not reversible error. See Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79.
Appellant advances several arguments about the admission of evidence, which we will now consider, insofar as they may affect a new trial.
During a pretrial hearing, appellant objected to admission of the photographic lineup folder which had been presented to the prosecuting witness for identification purposes. The trial judge reserved a ruling at that time but permitted introduction of the folder during the trial. Appellant’s objections here are multiple. He contends that the identification was unfairly influenced because: (1) testimony as to the date it was conducted is “self-contradicting;” (2) the photographs all showed only head and shoulders, so they could not have been selected from the hundreds in police flies from the description given by the prosecuting witness and the only characteristic of the person portrayed that fit the description given was that all of those pictured were relatively young black males; and (3) the state deliberately limited the number of photographs to be viewed to six, rather than permit the prosecuting witness to view the numerous pictures of young black males contained in the sheriff s files.
Although the reliability of eyewitness identification is normally a question for the jury, the fundamental fairness of identification procedures addresses itself to the trial court. See Synoground v. State, 260 Ark. 756, 543 S.W. 2d 935; Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73, cert. den. 439 U.S. 882, 99 S. Ct. 220, 58 L. Ed. 2d 194. Although the question whether a pretrial photograph identification procedure is unduly prejudicial may be a mixed question of law and fact, {McClain v. State, 247 Ark. 33, 444 S.W. 2d 99, Synoground v. State, supra) we should not reverse the trial judge’s decision unless, viewing the totality of the circumstances, it is clearly erroneous. See Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800; Mayes v. State, 264 Ark. 283, 571 S.W. 2d 420. Identification testimony is properly admissible, if from the totality of the circumstances the confrontation did not give rise to a very substantial likelihood of irreparable misidentification. Lindsey v. State, 264 Ark. 430, 572 S.W. 2d 145. We cannot say that the trial court erred in admitting the evidence concerning the photograph identification.
The discrepancy in dates is based upon the testimony of Officer Phillips at the pretrial hearing that the lineup was conducted on March 23, 1979, and that the prosecuting witness only viewed the photographs on one occasion. He said that none of those shown in the photographs were in custody at that time. The prosecuting witness testified at the pretrial hearing that she saw them on a later date, after she had given a statement about the alleged offense. Phillips testified at the trial that the prosecuting witness had viewed the photographs on March 27. The witness also testified during the trial that she had viewed the photographs on March 27. The discrepancy in dates was inconsequential and not indicative of unfair influence.
Phillips testified that, in selecting the photographs, the officers attempted to choose those of persons of the same height and age and complexion that would match the suspect. He said that the photographs, although showing only the heads and shoulders of the persons pictured, were of persons of the same build, complexion and age. The prosecuting witness said that she had described her assailant as a black male, between 5'5" or 5'6" tall, slender, weighing about 145 pounds, well dressed, wearing a three-piece suit and snap-brim hat, in his early twenties, with smooth complexion and no facial hair, light skinned, soft spoken, not having an ordinary black accent and not using slang. She said that the only similarities in the photographs and her description were that the subjects were all black and all relatively young. Keeping in mind the fact that appellant was not then in custody, it is hardly likely that the photographs would show similar wearing apparel. If the photograph of appellant in possession of the police (it was obtained from the Arkansas City Police Department), showed only head and shoulders, it was logical that all others be of the same type. This fact, standing alone, was not evidence of unfair police influence.
The limitation to six photographs is a matter that gives us more concern when considered along with appellant’s other objections. As we read Officer Phillips’ testimony at the pretrial hearing, however, it discloses that he and Officer Bolton went through the files of photographs available until they had found five of approximately the same age as their suspect, Beed, with similar haircuts, features and builds; they did not consider it necessary to have the prosecuting witness go through numerous other photographs nor did they believe this limitation might unduly influence her in her identification.
The test we apply in such identifications is based on factors stated in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). McCraw v. State, 262 Ark. 707, 561 S.W. 2d 71. They are: the opportunity of the witness to view the criminal at the time of the crime, the degree of attention of the witness, the accuracy of the prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation. There may have been some discrepancies in the description given as to height and weight, and the matter of facial hair was subject to some dispute; however, the prosecuting witness was always positive and unwavering. We cannot say that the collective effect of those matters appellant takes to be suggestive is not outweighed by the pertinent factors to be considered in determining reliability of identification for admission of the evidence.
Appellant next contends that, since the folder of photographs was introduced through Officer Phillips rather than through the prosecuting witness, it was hearsay, because the witness testified that she identified appellant’s photograph. Any error in this respect was cured when the prosecuting witness testified and was cross-examined extensively about her identification of appellant and the description she had given the police. White v. State, 270 Ark. 482, 605 S.W. 2d 11 (1980). See also, French v. State, 231 Ark. 677, 331 S.W. 2d 863; Bishop v. State, 236 Ark. 12, 364 S.W. 2d 676.
Appellant next makes a two-pronged attack upon the admission of evidence of the photographic lineup, i.e., one, the state’s exhibits two and three were unnecessary because they were cumulative and two, their probative value was substantially outweighed by unfair prejudice. The mere fact that evidence is cumulative may be a ground for its exclusion, in the sound discretion of the trial judge, but it is hardly a basis for holding that its admission, otherwise proper, constitutes an abuse of discretion. McMillan v. State, 229 Ark. 249, 314 S.W. 2d 483; Sheppard v. State, 120 Ark. 160, 179 S.W. 168; 23 CJS 1175, Criminal Law, § 1041. See also, Hall v. State, 64 Ark. 121, 40 S.W. 578; Kindrix v. State, 138 Ark. 594, 212 S.W. 84. Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979) does not require a different approach, in either the trial or the appellate court, for it merely permits the exclusion of evidence as cumulative. The question of weighing the prejudicial effect of cumulative evidence against its probative value is a matter of balancing which is primarily the function of the trial judge in the exercise of his discretion. The exercise of discretion by the trial court in such a matter should not be interfered with on appeal in the absence of manifest abuse. McMillan v. State, supra; Sheppard v. State, supra. See also, Tompkins, The Trial Evidence Handbook 3, § 8 (2d. Ed. 1936). It should be noted that under Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979), relevant evidence should not be excluded unless its probative value is substantially outweighed by unfair prejudice. Of course, it is likely that evidence offered by the state will be prejudicial to an accused, or it probably would not be offered. The first consideration for a trial judge is whether evidence which makes the existence of a fact more probable creates a danger of unfair prejudice. The secondary consideration is whether the danger of the unfair prejudice substantially outweighs the probative value of the evidence. There was no abuse of discretion in the admission of this evidence, particularly in view of the alibi defense and the necessarily persistent attack on the identification of appellant by the prosecuting witness.
After appellant and his witnesses had testified in an effort to establish an alibi, the state called Ed Kreiger as a witness in rebuttal. Kreiger was a jailer employed by the Miller County Sheriffs office. He testified that on April 6, 1979, he had overheard Beed say to someone in a telephone conversation, “Get the gun. It’s either in the suitcase or by the dryer.” The abstract of the record merely discloses that appellant’s attorney made a general objection and any specific ground was stated in an off-the-record discussion at the bench. A general objection cannot be the basis for reversible error. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (Repl. 1979). Appellant now says that, in order to avoid disclosing that the conversation related to another offense with which appellant was charged, his attorney objected on the ground that, when the statement was made, appellant had not waived the right to counsel. The statement was not the result of any interrogation whatever. The mere fact that appellant was in custody when it was made did not make it inadmissible without a showing that appellant had waived his right to counsel, where there was no interrogation.
It was police misconduct that was intended to be inhibited by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1970) and its progeny and not the making of incriminating statements. Statements which do not result from in-custody interrogation are not barred Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600. Spontaneous, voluntary and unsolicited statements made when an accused, although in custody, is not being interrogated are admissible. Steel v. State, 246 Ark. 75, 436 S.W. 2d 800; Crawford v. State, 254 Ark. 253, 492 S.W. 2d 900; Reynolds v. State, 254 Ark. 1007, 497 S.W. 2d 275; Upton v. State, 257 Ark. 424, 516 S.W. 2d 904; Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752; Little v. State, 261 Ark. 859, 554 S.W. 2d 312. It might be advisable for the court on retrial to conduct a hearing in camera to determine whether the statement was voluntary.
The decision of appellant’s attorney not to base an objection on the relationship of the statement to another crime was clearly a tactical one, but the testimony would not have been rendered inadmissible had the attorney chosen a different tactical course.
Appellant moved the court to require the state to elect whether it intended to prosecute him for kidnapping or for rape. The basis of the motion was the contention that the same acts of force formed the basis for both the forcible compulsion which was an element of the charge of rape and the charge of kidnapping with the purpose of engaging in sexual intercourse. Appellant argues that the same restraint was used to prove both rape and kidnapping and this resulted in putting him in double jeopardy. He does not contend that the same acts cannot be used as proof of two separate and distinct felonies. He relies upon the definition of the two crimes and the commentary to the section of the statute in the Arkansas Criminal Code defining kidnapping and rape. He points out that kidnapping is a continuous offense requiring proof that the accused restrained another person, without that person’s consent, so as to interfere with the other person’s liberty with the purpose of engaging in certain acts, one of which is engaging in sexual intercourse, while rape is the act of engaging in sexual intercourse with another person by forcible compulsion, which is either physical force, or a threat, express or implied, of death or physical injury to or kidnapping of another person. See Ark. Stat. Ann. §§ 41-1702, -1803 and -1801 (2) (Repl. 1977). The commentary on which appellant places greatest reliance follows Ark. Stat. Ann. § 41-1702. That commentary, however, is a clear recognition that when, as here, the restraint exceeds that normally incident to the crime of rape or robbery, the robber should also be subject to prosecution for kidnapping.
The evidence here clearly forms the basis for the two separate crimes of kidnapping and rape. The prosecutrix testified that she was accosted by her assailant when, at about 10:00 p.m. on March 23, 1979, she returned to her automobile, which was in the parking lot at the Skaggs-Albertson grocery store in Texarkana, and that the assailant jerked the car door back, shoved a silver derringer in her face, said, “Move over or I’ll kill you,” got in the car, started it up and drove out Highway 67 to Mandeville, where he turned the car into a field, told her to get out of the car or he would shoot her head off, ordered her into the back seat of the car and to take her clothes off, and then raped her. She said that the accused first indicated his intention to have sexual intercourse with her while they were driving down Highway 67. She said that she had first resisted the act of sexual intercourse by fighting her assailant, but that he said that if she fought him, he would kill her. She testified that he held the gun in his hand throughout the act of intercourse. She said that she would not have submitted to the rape or given the man her rings had he not had a weapon, that he threatened her on several occasions and that she believed he would kill her. Clearly there was evidence of more than the minimal restraint which necessarily accompanies the crime of rape. We have recently rejected an argument similar to that of appellant in Conley v. State, 270 Ark. 886, 607 S.W. 2d 328 (1980). For this reason we find cases from other jurisdictions, upon which appellant relies, unpersuasive. We find no merit in appellant’s argument on this point.
Appellant contends that the trial court erred in denying his motion for dismissal of the charge of aggravated robbery at the close of the state’s case-in-chief and that there was insufficient evidence to support his conviction of that crime. Appellant contends that the evidence did not show either robbery or aggravated robbery, but would have supported, at best, theft of property by threat. It is appellant’s contention that there could be no aggravated robbery because there was no robbery and there was no evidence of a threat to immediately employ physical force at the time the prosecuting witness gave her rings to her assailant. He says that the prosecuting witness admitted that the theft of her property was not committed while her assailant employed or threatened to employ physical force upon her.
Appellant points out that the immediacy of the threatened physical force distinguishes robbery from theft by threat. See Ark. Stat. Ann. §§ 41-2102 (Supp. 1979), -2103 (Repl. 1977), -41 -2203 (Supp. 1979) and Commentary, §§ 41-2103, -2201 (Repl. 1977). Appellant relies to some extent upon apparent inconsistencies in the testimony of the prosecuting witness, and between her testimony and prior statements to police officers. These are of no consequence in our consideration of this piont. At most, they went to the credibility of the witness. Kitchen v. State, 271 Ark. 1, 607 S.W. 2d 345 (1980). Resolution of the conflicts and the question of credibility were for the jury. Riddick v. State, 271 Ark. 818, 607 S.W. 2d 671 (1980). In determining the sufficiency of the evidence to show aggravated robbery, we only look to see if, viewed in the light most favorable to the state, there was substantial evidence to support the charge. Ply v. State, 270 Ark. 554, 606 S.W. 2d 556 (1980).
The gist of appellant’s argument is that there must have been some active, actual threat at the time the rings were taken to constitute robbery, or that, if there was an implied threat, it no longer existed. We do not agree when we view the evidence as we must.
The victim testified:
When she was accosted in the parking lot, Beed shoved a gun in her face and said: “Move over or I’ll kill you.” During the time they were in the car, he had the gun, a silver derringer, at all times, and even held it in his hand while he was raping her. When she was having difficulty in keeping from crying, Beed told her that he had said he would let her go, but if she kept on crying he would have to kill her. When he ordered her out of the car in a grassy field near Mandeville, the alternative offered was having her head shot off. When she was reluctant to take her clothes off when Beed ordered her to do so, he again threatened to kill her. When she resisted sexual intercourse by fighting Beed, he said if she fought, he would kill her. He seemed to be trying to agitate her, so she would fight. When Beed decided to terminate the sexual act, he told her he had decided not to kill her because she had children and he would let her go if she would not tell anyone about what had happened. He noticed her rings as she was getting dressed, asked if they were valuable and told her to give them to him along with all the money she had. He still had the gun in his hand. He told her then that he did not intend to hurt her, but she did not believe him. When Beed first got into the car at the parking lot, he had told her that he was going to kill her and wanted her money. She had no doubt in her mind about Beed’s intention to kill her. She would not have given Beed the rings if he had not had a weapon. He had threatened her several times and she believed he would kill her.
This testimony constituted very substantial evidence that there was an immediate threat of death or serious physical injury to the prosecuting witness, at least until she had surrendered her rings and her money.
Appellant contends that the court erred by not instructing the jury on the lesser included offense of sexual abuse in the first degree. The prosecuting witness, testified that Beed had sexual intercourse with her, that the sexual act lasted 5 to 15 minutes and that she did not believe that Beed reached a sexual climax before he got up, told her that he had decided not to do this, but that she was positive there had been penetration. We do not agree with appellant’s statement that the witness was confused as to whether Beed decided to discontinue the sexual act before or during the alleged act. The fact that the doctor who examined her four or five hours after the incident was unable to determine when she had last had sexual intercourse and the semen he found in a pelvic examination contained non-motile sperm was immaterial. It is true that the physician said that sperm normally had a life expectancy of two or three days, but he also said that his findings were consistent with recent sexual intercourse and mentioned a minimal degree of swelling around the labia. He said that a number of things can cause non-motility of sperm. Among them was the production (by some females) of antibodies which rapidly kill sperm.
It is not error to refuse to instruct the jury on a lesser included offense where the evidence, as here, clearly shows that the defendant is either guilty of the greater offense or innocent. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. Under the present law, a court is not obligated to instruct a jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser degree. Ark. Stat. Ann. § 41-105 (3) (Repl. 1977). We find no rational basis for acquitting Beed of rape and finding him guilty of sexual abuse in the first degree.
Appellant complains of the court’s instruction on theft of property because of omissions he considers material and because the court did not submit the lesser included offense of theft as a class C felony and theft as a misdemeanor. We should first say that appellant is in error as to the minimum property value required for a class B felony by Act 360 of 1977. Ark. Stat. Ann. § 41-2203 (Repl. 1977). That amount was reduced from $10,000 to $2,500. The maximum value which could be found from the evidence here was $1,510.
The jury could find appellant guilty of theft as a class B felony if it found that the property was obtained by the threat of serious physical injury to the victim, regardless of the value of the property. It does appear that the lesser included offense of theft, class C felony, should be given.
Finally, appellant contends that the trial court erred in sentencing him without advising him of his right to appeal, the period of time prescribed for appeal, fixing bond for appeal or stating his right to bond, and without the benefit of any presentence investigation or report to determine any mitigating circumstances. We agree with appellant that it was error for the court to sentence him before according him the right of allocution. He has shown no prejudice because of the court’s failure to advise him of his rights with regard to appeal or to fix bond pending appeal. The resort to presentence investigation is discretionary with the trial court. Since the court made a life sentence, a 50 year sentence and a 10 year sentence run consecutively, it might have been the better practice to first have a presentence investigation, but we find no abuse of the trial court’s discretion in this case.
The judgment is reversed and the cause remanded for a new trial.
Stroud, J., concurs.
John F. Stroud, J., concurs. | [
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John A. Fogleman, Justice.
Rodney Lee Rowe was found guilty of aggravated robbery and attempted capital murder of Mrs. Katie Cage and sentenced to terms of ten years for aggravated robbery and 30 years for attempted capital murder, as fixed by the jury. After trial on December 11, 1979, the trial judge ordered that the sentences run consecutively. The offenses were committed on the night of January 23, 1979, as Mrs. Cage was preparing to enter her dwelling house at 22 Tallyho Lane.
Appellant contends that the trial court erred in accepting the jury verdicts with two convictions for one offense. He was charged in a two-count information with 'having committed the crime of aggravated robbery by holding a gun on Mrs. Katie Cage for the purpose of committing a theft and the crime of criminal attempt by purposely engaging in conduct constituting a substantial step towards the commission of capital murder of Mrs. Katie Cage during the course of, and in furtherance of, attempted robbery. Appellant admits that the evidence was sufficient to sustain the conviction on both charges, but argues that he could not legally be found guilty of both charges or sentenced on both. He contends that acceptance of the jury verdict violated the Arkansas statutes and the prohibition against double jeopardy contained in both the Fifth Amendment to the Constitution of the United States and Article II, § 8 of the Constitution of Arkansas.
Mrs. Katie Cage testified that she arrived at her home at about 11:30 p.m., got out of her car and walked to the back of the automobile in her driveway when she heard someone running toward her. Mrs. Cage said that she thought that this was one of the neighborhood joggers and kept walking toward her house, but when she realized that this person was coming toward her too fast and hard to be a jogger, she stopped at the edge of her driveway near the front steps of the house, looked around, heard someone say “help” and saw this person running frantically toward her with his hand extended. She thought that someone was chasing him, but when he came closer to her, she realized that no one was chasing him and that the cry had been “hey, hey, hey,” instead of “help.” The runner then came up to her with his hand "out.” She tried to defend herself with her hand, and said, “You are not going to do this.” When this person responded, “Oh, yes I am,” she demanded that he get his hand off her and “get out of here.” When she said this, she heard a gun go off and realized that she had been shot. She stepped back but did not fall. She felt that her assailant would shoot her again if she did not fall, so she fell to the ground and called out to her husband. As she was falling, her assailant grabbed her purse off her shoulder and ran. According to Mrs. Cage, she and her assailant had scuffled for about two minutes. She positively identified appellant as the assailant.
The information actually charged aggravated robbery under Ark. Stat. Ann. § 41-2102 (1) (a) (Supp. 1979). The specific language was that appellant did “threaten to employ physical force upon Mrs. Katie Cage by holding a gun to her with the purpose of committing a theft from her and did have in his possession the following deadly weapon, to-wit: a pistol, ***". This did not charge an offense under § 41-2102 (1) (b). The criminal attempt charged under Ark. Stat. Ann. § 41-701 (1) (b) (Repl. 1977) was that appellant “did unlawfully, feloniously attempt to commit an offense by purposely engaging in conduct constituting a substantial step in a course of conduct intended to culminate in the capital murder of Mrs. Katie Cage, in the course of and in furtherance of the attempted commission of robbery.” Appellant waived formal arraignment and entered pleas of not guilty. Several pretrial motions were made but no objections to the information or to being put to trial on both counts was ever made. The state was never asked to elect to proceed on one count or the other and there was no motion to sever the charges for trial. No pretrail objection of the nature of those now made was ever asserted.
The jury was given instructions defining both offenses contained in the information. No objection was made by appellant to any of these instructions. No mention was made by the judge in his instructions to the jury that the offenses should be considered alternatively or that appellant should be sentenced on only one of the charges if it found him guilty of both. No such instruction was requested by appellant. The verdict forms which the judge submitted to the jury were described in one of the instructions given. They did not provide for consideration of the offenses charged in the alternative or for the fixing of only one sentence. No objection was made and no alternate or substituted verdict form was requested by appellant. When the verdicts were returned, no objection was made. Thereafter, the judge asked if there was any legal reason why sentence should not be imposed at that time and appellant’s attorney responded that there was not. The sentences were then pronounced, and the court ordered that they run consecutively. No objection was made, either to the sentences or their being made to run consecutively.
All of the arguments now advanced on appeal could have been raised in the trial court, but none of them were. Even though an alleged error is of constitutional proportion, we do not consider it for the first time on appeal. Shepherd v. State, 270 Ark. 457, 605 S.W. 2d 414 (1980); Clark v. State, 264 Ark. 630, 575 S.W. 2d 622.
Appellant contends that he could not be convicted or sentenced for both offenses because of the provisions of Ark. State. Ann. § 41-105 (1) (e) (Repl. 1977). That subsection provides that a defendant may not be convicted of more than one offense if his conduct constitutes an offense defined as a continuing course of conduct and is uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses. Appellant argues as if the italicized language was not even a part of the subsection on which he relies. Neither offense charged is defined as a continuing course of conduct. We might as well dispose of this argument of appellent by pointing out that neither aggravated robbery nor attempted capital muder is defined as continuing a course of conduct, relying upon Britt v. State, 261 Ark. 488, 549 S.W. 2d 84. We made it clear in Britt that a continuing offense must be a continuous act or series of acts set on foot by a single impulse and operated by an unintermittent force. We emphasized the distinction made by Mr. Wharton in his treatise (Wharton’s Criminal Procedure) which was pointed out in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). According to that distinction, when the impulse is single but one charge lies, no matter how long the action may continue, if successive impulses are separately given, even though all unite in swelling a common stream of action, separate charges lie; and the test is whether the individual acts are prohibited or the course of action they constitute; if the former, each act is punished separately, if the latter, there can be but one penalty. We made it clear that § 41-105 (1) (2) did not change the common law rule.
Here two distinct impulses exist, according to the Britt-Blockburger test. When appellant approached Mrs. Cage outside of her home, carrying a deadly weapon, with hand outstretched, and she told him, “You are not going- to do this,” he responded, “Oh, yes I am.” When she resisted, saying, “Oh, no you’re not,” he shot her, took her purse and fled. Mrs. Cage testified the encounter lasted three minutes. The first impulse setting off a course of conduct, the aggravated robbery, occurred when appellant, armed with a deadly weapon, approached Mrs. Cage with hand outstretched. When Mrs. Cage refused to willingly turn over her purse, the second impulse, the impulse to use the weapon to overcome her resistance, was instituted. If Mrs. Cage had not resisted appellant, the second impulse may never have originated. Clearly two separate offenses were committed, each commencing at a distinct point in time as the result of a separate impulse. We cannot say that the aggravated robbery and the attempted murder were germinated by a single impulse, therefore the protection sought by appellant under § 41-105 (1) (2) must be denied him. Appellant’s attempt to distinguish Britt on the basis that more than one victim was involved there demonstrates a deficient reading of Britt. In that case, three offenses against two victims were charged. In two of the counts, it was alleged that one person was the victim of both a robbery and a battery.
Appellant contends that the trial court erred in failing to suppress Mrs. Cage’s identification of him as the person who robbed and shot her. His entire argument is based upon the contention that the lineup procedure was improper. He says the issue is whether his participation in the lineup was an infringement upon his constitutional rights. Specifically, he asserts that he was denied his request for counsel in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article II, § 8 of the Arkansas Constitution.
Appellant is in error in his identification of the real issue in this case. The issue is whether the in-court identification of him, by the victim of the crime, was tainted by the lineup procedures. If it was, then the trial court should have suppressed it. If it was not, the identification testimony of Mrs. Cage was admissible. The state had the burden of establishing by clear and convincing evidence that, in the absence of counsel, the courtroom identification was based upon independent observation rather than upon a constitutionally infirm lineup procedure. Sim v. State, 258 Ark. 940, 530 S.W. 2d 182. In considering this question, it is important that it be remembered that when Mrs. Cage testified during the trial, no mention was made of the lineup or her previous identification of Rowe on direct examination. Her “lineup identification” was brought to the attention of the jury on cross-examination. Appellant opened up the subject at his own risk. Parker v. State, 265 Ark. 315, 578 S.W. 2d 206. Perhaps this is the reason appellant made no objection to the in-court identification after his pretrial motion to suppress had been denied. It was not necessary for him to object in order to preserve his pretrial objection, but his failure to object or more to strike the testimony during the trial precludes him from relying upon anything then disclosed which had not been brought out in the pretrial hearing. Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133. We do note, however, that Mrs. Cage’s courtroom identification of Rowe was positive, certain and unequivocal, and that it was made with assurance. In considering the question presented, we must recognize that the trial judge had an opportunity to observe Mrs. Cage, both in her in-court and pretrial testimony. See Sims v. State, supra.
For the purposes of our treatment of this point, we will assume, but not hold, that Rowe did not waive his right to the presence of counsel at the lineup at which Mrs. Cage first identified him. We have recognized that the criteria for determining whether the in-court identification is based upon independent observation or upon a lineup procedure where the accused is denied counsel emanate from the seminal case of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Sims v. State, supra; Wright v. State, 258 Ark. 651, 528 S.W. 2d 905. The factors to be considered are (1) the prior opportunity of the witness to observe the alleged criminal act, (2) the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, (3) any identification by picture of the defendant prior to the lineup, (4) failure to identify the defendant on a previous occasion, and (5) the lapse of time between the alleged act and the lineup identification. Although not one of the criteria, facts disclosed concerning the conduct of the lineup are relevant.
The only testimony pertaining to the opportunity of Mrs. Cage to observe her assailant was her own. Since it is uncontradicted, we will it as factual. About five minutes elapsed between the time her attention was attracted to the person running toward her and the time this person grabbed her purse and fled. A call which she interpreted as “help” focused her attention on this person. The night was bright and a “fairly large” moon was shining. Her back was toward the porch of the house where two lights were burning. They were shining directly in her assailant’s face. During the three-minute encounter, her assailant was never more than three feet away from Mrs. Cage. She admitted that she had imbibed about two drinks of intoxicants prior to her arrival at her home. If her testimony is to be believed, Mrs. Cage had ample opportunity to observe the perpetrator of the crime at the time it was committed.
Appellant points out only one flaw in Mrs. Cage’s prelineup description of Rowe as her assailant. She had described the person who robbed and shot her as being between 20 to 25 years old. It is asserted that Rowe was only 15. Perhaps he was, as a police detective stated, but, before making his ruling on the motion to suppress, the trial judge remarked that Rowe appeared to him to be considerably older than 15 years. This discrepancy certainly did not warrant suppression of Mrs. Cage’s identification.
Mrs. Cage did, prior to the lineup in which Rowe appeared, say that another person looked like her assailant by selecting his picture from hundreds of pictures in two “mugbooks” shown her by a Little Rock police detective. There is no indication that she had ever seen a picture of Rowe prior to the lineup. The photograph Mrs. Cage selected was “a Polaroid” of Gerald Sims. He was picked up by the police, but as soon as Mrs. Cage looked at him, she said that he was not her assailant. This “misidentification” did not detract from the in-court identification.
There is no indication that Mrs. Cage had failed to identify Rowe on any previous occasion. Appellant finds great significance in the fact that Mrs. Cage testified that she did not inform the police of her decision that Rowe was her assailant until 20 or 25 minutes after she viewed the lineup. There were seven persons in the lineup. A photograph of the lineup was introduced. There is no suggestion that it was un fairly constituted. There was testimony that there was no great physical disparity among the participants. The lighting was good and Mrs. Cage said that she could see well. The officers and Mrs. Cage agree that no one suggested that Rowe was a suspect. One of the officers testified that three of the seven were suspects. After viewing the lineup, Mrs. Cage emphatically identified Rowe to the police officers present. The lineup was for identification purposes in connection with at least two independent crimes with different victims. The first observer was brought into the room at 2:35 p.m.; Mrs. Cage, the last, was brought into the room at 2:50 p.m. During her view of the lineup, each of the seven persons in it was required to put a rag in the form of a cap on his head, because Mrs. Cage had described her assailant as having worn a scarf tied around his head. Mrs. Cage siad that she immediately recognized Rowe as her assailant when she walked into the room and was stunned to see him, but she did look at the other persons. The officer who actually conducted the lineup said that Mrs. Cage was in the room only five to ten minutes. The delay on the part of Mrs. Cage was certainly not a sufficient basis for our saying that the evidence that the identification was untainted was not clear and convincing.
Finally, nine weeks elapsed between the date the crime was committed and the lineup. Mrs. Cage saw no photographs on the day of the lineup and it would be fair to conclude that she never saw a photograph of Rowe until he sent her one after she had identified him at the lineup. Mrs. Cage testified positively that her identification at the lineup was based upon her observations at the time of the crime and not upon anything that happened after the crime.
The central question is whether, viewing the totality of the circumstances, the courtroom identification was reliable, and we must receive questions of credibility as the trial court did; it is only when, after viewing the totality of the circumstances pertaining to the in-court identification, we can say that it was patently unreliable that we hold it inadmissible as a matter of law. Mayes v. State, 264 Ark. 283, 571 S.W. 2d 420. We cannot say that Mrs. Cage’s in-court identification was inadmissible as a matter of law or that the state fail ed to show by clear and convincing evidence that the identification was not tainted in any way.
Appellant only mentions the Fourteenth Amendment in his argument as a vehicle for application of the Fifth and Sixth Amendments to the United States Constitution. He never argues any Fifth Amendment right. His entire argument is based upon his alleged deprivation of the right to counsel.
Appellant also complains that the trial judge refused his request for an instruction taken from AMCI 202 relating to limitation of the jury’s consideration of prior inconsistent statements. The request was made after both parties had rested rather than at the time the statement was introduced. The state objected because the instruction was not given at the proper time. The note on use accompanying the model instruction says that it should be given if requested by counsel at the time the prior inconsistent statement is made. The trial judge stated that he would have given the instruction if it had been requested in a timely manner.
Appellant had not convinced us that he was prejudiced by the denial of his belated request. He has not pointed out any particular prior inconsistent statement to which the instruction should have been applicable. Furthermore, the jury was instructed that it had a right to consider all the evidence in the light of its own observation and experiences in the affairs of life, and that, in determining the credibility of any witness and the weight to be given his testimony, it might take into consideration the consistency or inconsistency of his testimony, and any other fact or circumstance tending to shed light upon the truth or falsity of his testimony. Under all the circumstances, we cannot say that the trial judge erred in refusing to give this instruction at the time it was requested.
Since we find no reversible error, the judgment is affirmed.
Mr. Justice Purtle dissents.
Appellant is represented by a different attorney on appeal. | [
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Marian F. Penix, Judge.
Appellant, James Lee Davis, was driving from his place of employment, Chickasha, Oklahoma, to his home in Siloam Springs, Arkansas on September 29, 1978. An officer of the Delaware County, Oklahoma police force stopped Davis in Benton County, Arkansas. He gave Davis a choice of returning to Jay, Oklahoma or of being arrested in Arkansas. The Oklahoma officer radioed the Siloam Springs Police Department and Officer Dennis Johnson was sent to investigate. Officer Johnson determined Davis had been drinking. He arrested Davis and they proceeded to the Siloam Springs Memorial Hospital where a blood test for alcohol was administered. Davis was charged with driving while intoxicated and possessing un taxed liquor. Davis was convicted on October 3, 1978, in the Siloam Springs Municipal Court. He appealed to the Benton County Circuit Court. After a trial de novo he was convicted on February 6, 1980. From this conviction, he appeals.
Davis contends the Court erred in refusing to grant his motion to dismiss which was made on the. grounds the City offered no proof or probable cause for Davis having been stopped by the Oklahoma officer. Officer Johnson testified when he arrived at the scene Davis was standing outside his car. He testified Davis admitted he had been drinking. The record reflects there was another passenger in Davis’ car. The State contends the probable or reasonable cause arose from Officer Johnson’s own observations of Davis and his smelling the alcohol on and about Davis’ person as they stood beside his car. The State also contends Johnson’s testimony as to what the Oklahoma officer told him is not hearsay because it was offered not to prove the truth of the matter asserted, but as an introduction to the main matter by way of an inducement of the witness to act — i.e., to explain why Officer Johnson started an investigation or went to the highway where Davis was stopped.
Davis contends the burden of proof lies with the State and that the State has not met its burden of proving probable cause for the arrest and charge of driving a vehicle while intoxicated.
Rule 4.1 of the Arkansas Rules of Criminal Procedure provides:
Authority to Arrest Without Warrant.
(a) A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed .-. .
(ii) A traffic offense involving: . . .
(C) driving a vehicle while under the influence of any intoxicating liquor or drug; . . . (Emphasis Ours).
The Appellant testified he was driving his car from work at Chickasha, Oklahoma to Siloam Springs, Arkansas. He further testified the Oklahoma Officer who stopped him told him he was holding up traffic driving forty miles an hour in a forty-five mile zone. He testified he was employed as a construction worker on highlines, and because of the highly dangerous work, he always drank a beer after work to help relax.
We find sufficient reasonable cause for placing Davis under arrest. The arresting officer had reasonable cause to go to the scene of the arrest because an Oklahoma officer had radioed him to come to the scene. Upon arriving at the scene he detected Davis was under the influence of alcohol. He detected this from his own observation and from a direct sensory impression. He observed a bottle of alcoholic beverage in Davis’ automobile under plain sight. Davis never once contended he had not been the one driving his car when he was pulled over by the Oklahoma officer. The statements of the Oklahoma officer are exceptions to the hearsay rule. They were offered into evidence to explain why Officer Dennis Johnson went to the scene in the first place. Poole & Poole v. State, 262 Ark. 4, 552 S.W. 2d 647 (1977); Powell v. State, 231 Ark. 737, 332 S.W. 2d 483 (1960); Trotter v. State, 215 Ark. 121, 219 S.W. 2d 636 (1949).
Affirmed. | [
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John I. Purtle, Justice.
Appellant was convicted in the Jefferson County Circuit Court on two counts of aggravated robbery and two counts of theft of property and of being an habitual offender. The jury trial was conducted on May 9, 1980. Appellant was sentenced to 15 years on each of the two theft of property convictions and was sentenced to 50 years and a $10,000 fine on one aggravated robbery conviction and life in prison and a $15,000 fine on the other aggravated robbery conviction, all sentences to be served consecutively.
The only point argued on appeal is that appellant’s motion to dismiss for lack of speedy trial was overruled. We disagree with the appellant on this contention.
Appellant was initially charged by information on October 18, 1978. The warrant was not served until November 20, 1979, nor was the appellant taken into custody by the Jefferson County authorities until May of 1980. Appellant left the State of Arkansas before the warrant was served and went to California. He testified at the trial in Jefferson County that he was served with the warrant on November 18, 1978, while he was in the county jail in California. No other evidence or information supporting this statement is contained in the record. It is known that appellant commenced serving a sentence at Soledad, California, on March 4, 1979-
The warrant and information from Arkansas were served November 20, 1979, while appellant was incarcerated at Soledad. On the same day he filed a request for disposition of his Arkansas charges and was tried on May 9, 1980. Appellant’s request for disposition is dated November 20, 1979- The warden at Soledad made an offer to deliver temporary custody of appellant to the prosecuting attorney in Jefferson County. This offer was also dated November 20, 1979- There are no other records in the transcript or briefs to indícate earlier action by either the appellant or the prosecuting attorney.
The appellant filed a motion for dismissal for lack of a speedy trial on April 17, 1980. The motion was denied during the trial of the case on May 9, 1980.
The demand for a speedy trial in this case was made pursuant to Interstate Agreement on Detainers codified as Ark. Stat. Ann. §§ 43-3201 - 3208 (Repl. 1977) and Arkansas Rules of Criminal Procedure, Rule 29-1. Rule 29.1 reads:
(a) If the prosecuting attorney , has information that a person charged with a crime is imprisoned in a penal institution in the State of Arkansas, he shall promptly seek to obtain the presence of the prisoner for trial.
(b) If the prosecuting attorney has information that a person charged with a crime is imprisoned in a penal institution of a jurisdiction other than the State of Arkansas, he shall promptly cause a detainer to be filed with the official having custody of the prisoner and request such officer to advise the prisoner of the filing of the detainer and of the prisoner s right to demand trial
(c) Upon receipt from a prisoner of a demand for trial upon a pending charge, the prosecuting attorney shall promptly seek to obtain the presence of the prisoner for trial. , .
Article III, § (a), of the Interstate Agreement on Detainers Act requires that a petitioner shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecutor written notice of the place of his confinement and a request for final disposition of his case. Rule 29.1(b) places the duty upon the prosecutor to promptly file a detainer upon learning that an accused is imprisoned elsewhere. The prisoner then has the; right to demand trial and such trial must be had within 180 days unless there is good cause for a delay.
Neither the abstract and brief for appellant nor the transcript of the case reveals anything indicating there was an arrest and detainer filed other than the one of November 20, 1979. A request for disposition of indictment or .information was also filed by appellant on the same date. Also, the warden of the California institution offered to make temporary delivery of appellant for disposition of the charges pending in Jefferson County, Arkansas.
Both parties agree that the appellant was tried within 180 days from the date of the request for disposition which was dated November 20, 1979. Therefore, the only other matter on the appeal is whether the appellant was entitled to figure the 180 days from November 18, 1978, the date which he alleges he was first arrested. Assuming that he was arrested on that date, although there is nothing in the file to support such fact, the petitioner failed to respond in accordance with the provisions of the Interstate Detainer Act and Rule 29.1(c). There is a positive duty upon a prisoner to seek a trial after he is notified that charges are pending. If appellant had received a notice on November 18, 1978, it was his own fault that he did not request a final disposition of the charge until November 20, 1979.
We have previously held that an accused in prison in another state, for a different crime, must affirmatively request trial in order to activate the speedy trial rule or statute. State v. Davidson, 254 Ark. 172, 492 S.W. 2d 246 (1973). Also see Faulk v. State, 261 Ark. 543, 551 S.W. 2d 194 (1977). Therefore, the appellant having been tried within 180 days after his request for disposition of his case, we find no error and affirm the trial court.
Affirmed. | [
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George Rose Smith, Justice.
Richard Delaney Banks, aged 15, was arrested and charged by information with having committed aggravated robbery on January 21, 1980. Appointed counsel filed a petition for a writ of habeas corpus in the same proceeding, bringing in the county sheriff as Richard’s custodian, and asked that Richard be released because the juvenile court has exclusive jurisdiction over a 15-year-old defendant. After a brief hearing the trial court sustained that contention and ordered that Richard be released.
The State appealed on the broad ground that under the Criminal Code of 1975 a prosecuting attorney has discretion to charge a juvenile of 15, 16, or 17 years of age in the circuit court, municipal court, or juvenile court. Ark. Stat. Ann. § 41-617 (2) (Repl. 1977). That general contention was sustained with respect to a 17-year-old defendant in a case decided before this one was reached for submission. Sargent v. Cole, 269 Ark. 128, 598 S.W. 2d 748 (1980). Despite that decision the appellee insists that the trial court’s decision was correct, for either of two reasons.
First, it is argued that the statutes construed in the Sargent case are not controlling as to a 15-year-old, because Act 815 of 1979, amending the Juvenile Code with respect to the prosecutor’s discretion to charge in the circuit court, does not apply to a juvenile “over the age of fifteen (15) or older.” Ark. Stat. Ann. § 45-418 (Supp. 1979). Counsel, reading the quoted phrase literally and restrictively, argue that the reference to “over the age of fifteen or older” must be taken to mean sixteen and older. Cf. Allen v. Baird, 208 Ark. 975, 188 S.W. 2d 505 (1945). In that view the trial court’s decision would be correct, because Richard was only 15 when he was arrested and charged.
We are not persuaded that the legislature meant to resort to such a roundabout way of saying the simple word “sixteen.” Instead, we are convinced that an inadvertent use of both “over” and “older” occurred, the legislative intent being to refer to juveniles o/the age of fifteen or older. It is our duty, when the context so indicates, to substitute one word for another to give effect to what was evidently the intention of the legislature. We have, for example, read “fifth” to mean fourth,” “Commission” to mean “Incorporation,” and, of course, “may” to mean “shall.” Haney v. State, 34 Ark. 263 (1879); Garland Power & Dev. Co. v. State Board etc., 94 Ark. 422, 127 S.W. 454 (1910); Ark. State Racing Commn. v. Southland Racing Corp., 226 Ark. 995, 295 S.W. 2d 617 (1956).
Here the context leaves no doubt about the legislative intention. The Criminal code, supra, had given prosecutors discretion to charge minors of 15, 16, or 17 in any one of three courts. The Juvenile Code, however, also adopted in 1975, provided that similar discretion was permissible with regard to juveniles “over the age of twelve.” Ark. Stat. Ann. § 45-418 (Repl. 1977). Thus there was some inconsistency between the Criminal Code and the Juvenile Code. Act 815 of 1979, now relied upon by the appellee, was designed in part to remedy that situation, the emergency clause declaring that the statutory authority of juvenile courts was in immediate need of clarification.
Conclusive proof of the legislative intent is to be found in Act 815 itself. Section 11 of that act, in making a slight change in the pertinent section of the Criminal Code, again declared explicitly that a person who was 15, 16, or 17 at the time of the offense may be charged in the circuit court, municipal court, or juvenile court. § 41-617 (2) (Supp. 1979). It is wholly unreasonable to suppose that the legislature also intended, in Section 2 of that same act, to insert a contradictory exemption of 15-year-olds by the reference to a person over the age of 15 or older. Inasmuch as the two sections can readily be harmonized, we must do so. We therefore adhere to our conclusion in the Sargent case. (It is, of course, unnecessary for us to discuss appellee’s argument that the reference to a person over the age of 15 or older makes the statute void for vagueness, for when properly interpreted it is not vague.)
Second, it is argued that the circuit court also had no jurisdiction because Richard was arrested on January 24 but not immediately taken before the juvenile court, as required by § 45-418 (Supp. 1979). That statute by its terms applies only when the juvenile is taken into custody “without a warrant.” Even if we construed it to be mandatory, a violation of such a statute does not require dismissal of the charges. Bolden v. State, 262 Ark. 718, 561 S.W. 2d 281 (1978). On January 28 the prosecutor filed the present information and obtained a bench warrant for Richard’s arrest, which was served on January 28. Consequently there is no want of jurisdiction in the circuit court.
Reversed and remanded.
Supplemental opinion on denial of rehearing delivered January 12, 1981 | [
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George Rose Smith, Justice.
The only question presented by this appeal, which was transferred to us by the Court of Appeals, is whether the appellants can maintain their complaint’s second asserted cause of action as a class suit. Procedurally, the chancellor’s refusal to entertain the suit as a class action is appealable. Ross v. Ark. Communities, 258 Ark. 925, 529 S.W. 2d 876 (1975). Substantively, we sustain the chancellor’s conclusion.
In 1978 appellants, a married couple, bought a home already subject to a $32,750 mortgage to the appellee, First Federal. As a condition to its approval of the Drews’ assumption of the mortgage, First Federal required them to pay an assumption fee of 1% of the $32,384.30 balance due on the mortgage. The Drews paid the fee of $323.84, but within a few months they brought this suit against First Federal. They first assert that the assumption fee made the loan usurious, a question not yet decided in the trial court. Alternatively, they seek to assert in a class suit that the exaction of the assumption fee was an extortion on First Federal’s part, made possible by its contractual privilege of refusing to approve the Drews’ assumption of the mortgage and instead declaring the entire debt to be immediately due, which would force the Drews to obtain refinancing at a cost in excess of the 1% assumption fee. Our decision in Tucker v. Rulaski Federal Savings & Loan Assn., 252 Ark. 849, 481 S.W. 2d 725 (1972), is relied upon to support the Drews’ theory of recovery. The prayer of this part of the complaint is that First Federal be required to account to the plaintiffs, as representatives of the class, for all assumption fees collected from other persons during the preceding five years and therafter. An attorney’s fee is also sought. First Federal stopped collecting the assumption fee after this suit was filed.
First Federal filed a motion for a determination of whether the class suit is maintainable. ARCP 23(b). David Armbruster, a vice president of First Federal, was called by it as the only witness at the hearing upon the motion. On direct examination he testified that each assumed loan is different. The various properties are not only in Sebastian county but in other Arkansas counties and in Oklahoma. The improvements vary. Details of each transaction must be worked out on an individual basis with each assuming purchaser. Those who assume loans have varying degrees of credit worthiness. Counseling with the parties is necessary. Some applicants pay cash; others use secondary financing. In the Drews’ own case a substantial file was built up, the applica tion having initially been refused because Drew’s income was insufficient. Eventually an arrangement was worked out by which he put up $2,000 as additional collateral. Armbruster estimated that about 1,800 assumption fees had been collected. Exact but incomplete information about the individual loans could be obtained by means of a computer at a cost of $2,500.
On cross examination Armbruster testified that about 10% of the assumptions were on FHA or VA loans, for which a flat fee of $35 was charged. He thought it cost more than that to process such an assumption. The other assumption fees averaged from $200 to $300 each, but his concern was with the total profitability of First Federal. No cost study had been made, though he was concerned about not charging more than what “we feel like is reasonable.” The same 1% fee was uniformly charged in each instance (except for FHA and VA loans). His estimates of the proportionate part of employees’ time and salaries devoted to processing the assumption applications indicate that, apart from the overhead cost of doing business, the fees resulted in a substantial profit to First Federal. Out-of-pocket expenses, such as fees for credit reports and the recording of instruments, were charged to the applicants. All alternative courses available to the borrowers would have been much more costly than the 1% fee.
The chancellor, in determining that a class action is not appropriate, found that there is not a sufficient commonality of interest among the members of the class, that any causes of action they may have are separate, and that a class action is not superior to other available remedies.
At the outset, it is possible that upon the facts of this case a class action might be maintainable in a federal court under Rule 23 of the Federal Rules of Civil Procedure. Indeed, in Arizona, where the federal rule has been adopted as a state rule, an intermediate court held upon facts practically identical with those before us that a class suit is proper. Home Federal S. & L. Assn. v. Pleasants, 23 Ariz. App. 467, 534 P. 2d 275(1975) overruled upon a different point in Hanania v. City of Tucson, 123 Ariz. 37, 597 P. 2d 190 (1979).
In the Pleasants case the court pointed out that the federal courts resolve doubts in favor of class actions. That, however, has not been the traditional view in Arkansas. Our original class action statute, Section 33 of the Civil Code, remained unchanged for more than a century. Ark. Stat. Ann. § 27-809 (Repl. 1962). It did not encourage the maintenance of class actions and was not so interpreted. In fact, we construed it quite restrictively in the case principally relied upon by the appellee, Ross v. Ark. Communities, 258 Ark. 925, 529 S.W. 2d 876 (1975), where we held that in a class action both the questions of law and the questions of fact must be common to all members of the class. Cf. Comment, Spears, The 1979 Civil Procedure Rule, 2 UALR Law Journal 89, 101 (1979).
It is significant that when we adopted our Rules of Civil Procedure in 1978 we did not copy Federal Rule 23, as we did many of the federal rules. Instead, we repeated our Civil Code section as subsection (a) of our Rule 23. We also omitted the greater part of subsection (b) of Federal Rule 23. On the other hand, we liberalized our restrictive holding in Ross by providing in subsection (b) that a class action may be maintained if the trial court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
In the case at bar it is sufficiently shown that the members of the class are numerous and that the principal question of law — whether First Federal’s exaction of the assumption fee could in some instances at least give rise to a cause of action in favor of the borrower — is common to the members of the class. It must still be shown, however, that the class action is superior to individual remedies for the fair and efficient adjudication of the controversy. Not merely efficient but also fair, which necessarily means fair to First Federal as well as to the class as a whole.
It is on this point that we cannot say the chancellor abused her “broad discretion” (Note 2 to our Rule 23) in finding that the class action is not superior to other remedies. In an individual action brought, say, by these appellants, First Federal would unquestionably be entitled to prove that the time and effort devoted to the Drews’ application made the 1% fee a reasonable one. If that is so, the Drews are not in an equitable position to profit by showing that First Federal overcharged other borrowers. Thus, even under Federal Rule 23(a)(2) it is questionable whether the Drews’ claim is “typical” of the claims of the class. Undoubtedly First Federal itself treated the borrowers as a class in exacting a uniform fee for everyone, but its conduct was not fraudulent or criminal. Consequently we cannot fairly hold that First Federal is somehow unable to present whatever defense or mitigation it may have in individual instances. Thus the class suit may become not one case but a conglomeration of hundreds of individual cases. The chancellor did not abuse her discretion in finding that such a class action would not be superior to individual remedies.
Affirmed.
Dudley, J., not participating. | [
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Frank Holt, Justice.
These parties were previously before this court in Barnes v. Pearson Termite and Pest Control, Inc., 266 Ark. 635, 587 S.W. 2d 823 (1979). The facts leading up to this appeal are set out fully in that case. Briefly, the parties had been in business together; when Barnes became ill, Pearson terminated the corporation and started his own business. Upon suit by Barnes for his share of the profits, the chancellor found the corporation was dissolved as of November 1, 1976, entering his order on June 1, 1977, that each receive 1/2" of the accounts of customers of the corporation. We affirmed.
During the pendency of that appeal, appellant filed a petition which forms the basis of the present appeal, alleging he had learned since June 1, 1977, that appellee had failed to properly divide some 83 business accounts. He requested the court to order an accounting and division of the funds received by appellee on these accounts since June 1, 1977. Appellee answered, denying the allegations, asserting, inter alia, that he had not failed to disclose the accounts and he had properly received them in the division of their assets. The chancellor appointed a master to examine the disputed accounts. Thereafter, following our decision, the chancellor ordered the accounting by the master to continue in order to determine if the accounts were acquired prior to or after November 1, 1976. The appellant then amended his petition to include a request for a bill of review of the decree, alleging the evidence as to the accounts was not known by him nor discoverable at the time of the first trial. The chancellor had a hearing on appellee’s motion to dismiss. No testimony was taken, both attorneys merely arguing the cause to the court. At that hearing the chancellor had before him some 83 accounts introduced by the appellee, who observes that the chancellor, after looking at them, apparently decided no further testimony was necessary. These exhibits are not abstracted. It appears the report of the master was not considered. The chancellor indicated the basis for his dismissal of appellant’s petition was our decision which recognized the chancellor’s determination that the corporation terminated on November 1 was final. However, the chancellor made no finding on the record presented that the accounts arose prior or subsequent to that date. He merely stated the court was ruling the assets or accounts receivable, which were in existence as of November 1, 1976, would be subject of an equitable division between the parties; any accounts arising thereafter would be the individual accounts of the parties.
Appellant contends the chancellor erred in failing to receive the report from the master; in rendering a decision, contrary to his apparent finding that the dates of the accounts were a matter to be determined; in dismissing the petition without any proof on the matter; and in holding this court’s decision precluded appellant from receiving the requested relief.
In the first appeal, we upheld, inter alia, the chancellor’s determination that the corporation was terminated on November 1, 1976. Therefore, unless the accounts contested here arose prior to that date and were not discoverable by appellant, his petition was properly dismissed. However, we cannot determine from the record if that was, indeed, the basis upon which the chancellor dismissed appellant’s petition. Appellant’s argument, as we understand it, is that he is entitled to a hearing for the purpose of enforcing the chancellor’s decree; i.e., to an equal division of the assets, not discoverable by him, which existed on November 1, 1976. Appellee’s argument is that all assets on that date were properly and equally divided.
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Reversed and remanded. | [
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John A. Fogleman, Chief Justice.
Petitioners Houston Contracting Company and Continental Insurance Company seek review of the decision of the Court of Appeals affirming the decision of the Workmen’s Compensation Commission upon the claim of respondent Jessie T. Young. Houston Contracting Co. v. Young, 270 Ark. 1009 S.W. 2d (1980). Petitioner asserts two grounds as a basis for review. They are: (1) the case involves an issue of significant public interest and major legal importance; and (2) the case is a subsequent appeal following an appeal that had been decided in this court. We find merit in neither ground and deny review.
This court did previously review a decision of the Court of Appeals in this case and held that the case should be remanded to the Workmen’s Compensation Commission for the taking of testimony on the question whether the statute of limitations on respondent’s claim had run and that the question was a question of fact. Houston Contracting Co. v. Young, 267 Ark. 332, 590 S.W. 2d 653. The commission had held that the claim was barred because it was filed more than one year from the date of the last payment of compensation and the Court of Appeals held that the statute had not run. The basis for our reversal of the Court of Appeals was our decision that the statute of limitations is tolled in cases where the recipient of workers’ compenstaion benefits is not aware that he is being paid pursuant to the law of another state (Texas, in this case). After remand, the commission found that the claim was not barred by the statute of limitations because Young did not file a claim for an award in Texas, and was’ unaware that payments voluntarily made by petitioners were made pursuant to the workmen’s compensation laws of Texas. The question was one of fact which was resolved against petitioners by the Arkansas Workers’ Compensation Commission and the Court of Appeals found substantial evidence to support that decision. There was nothing about the second appeal to the Court of Appeals that involved any issue of significant public interest or principle of major legal importance. Any such issue was resolved in our previous review of the first decision of the Court of Appeals.
Petitioners state that if review were granted the only question before this court would be whether the opinion of the Workmen’s Compensation Commission was supported by substantial evidence. We might well have denied this petition without opinion had it not been for the contention of petitioners that the decision of the Court of Appeals should be reviewed by this court because the appeal should have either been filed in this court, or transferred to this court by the Court of Appeals because of Rule 29 (1) (j) of the Rules of the Supreme Court and the Court of Appeals. This subsection of the rule excludes a second or subsequent appeal of a case previously decided in this court from the appellate jurisdiction of the Court of Appeals. That section cannot possibly deprive the Court of Appeals of jurisdiction of an appeal from the Workmen’s Compensation Commission. The jurisdiction of the Court of Appeals of appeals from the Workmen’s Compensation Commission is not a part of the appellate jurisdiction of that court assigned to it by this court pursuant to Amendment 58 to the Constitution of Arkansas. It is original jurisdiction conferred upon that court by Acts 252 and 253 of the General Assembly of 1979 [Ark. Stat. Ann. § 81-1323 (b) (Supp. 1979)]. As we pointed out in Houston Contracting Co. v. Young, 267 Ark. 44, 589 S.W. 2d 9, an appeal from the Workmen’s Compensation Commission cannot be transferred or certified to this court prior to a decision having been made by the Court of Appeals. This is due to the fact that the Constitution of Arkansas limits this court to the exercise of appellate jurisdiction (with exceptions not material here), which requires that a decision be first made by a court. Ward Manufacturing Co. v. Fowler, 261 Ark. 100, 547 S.W. 2d 394. The constitution places no such limitation upon the jurisdiction of the Court of Appeals. Consequently, this case, even though the first appeal taken from the Circuit Court of Union County, before the effective date of Acts 252 and 253 of 1979, could have been decided by this court in the first instance, was properly filed and docketed in the Court of Appeals. | [
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John F. Stroud, Justice.
Appellee is a corporation authorized to do business in this state and is engaged, among other things, in the servicing and maintenance of elevators. Appellant is responsible for the enforcement of our Gross Receipts Tax Law, Ark. Stat. Ann. §§ 84-1901 — 84-1904, 84-1906 — 84-1919 (Repl. 1980) and pursuant to that authority assessed a tax in the amount of $61,717.05, plus penalty of $6,171.72 and interest of $4,235.36, upon appellee’s gross receipts from the servicing and maintenance of elevators. Appellee contested the assessment and requested a hearing before the Commissioner of Revenues, who upheld the action of appellant. Appellee then paid the tax under protest and filed suit for refund in Pulaski County Chancery Court. The Chancellor ruled that appellant had failed to prove that the General Assembly expressly intended to impose the tax upon receipts from the maintenance and servicing of elevators. Appellant brings this appeal, contending that the Chancellor erred, and as we agree, the ruling is reversed.
For the purposes of this appeal the operative section of the Gross Receipts Tax Law is Ark. Stat. Ann. § 84-1903(c)(3), which provides, in pertinent part, that the tax is levied on gross receipts derived from:
Service of alteration, addition, cleaning, refinishing, replacement and repair of motor vehicles, aircraft, farm machinery and implements, motors of all kinds, tires and batteries, boats, electrical appliances and devices, furniture, rugs, upholstery, household appliances, television and radio, jewelry, watches and clocks, engineering instruments, medical and surgical instruments, machinery of all kinds, bicycles, office machines and equipment, shoes, tin and sheetmetal, mechanical tools and shop equipment. (Emphasis added.)
The parties have stipulated that the maintenance and repair services upon which the tax was assessed are the kind of services contemplated by § 84-1903(c)(3) and would be taxable if performed upon items included in that section. They have also stipulated that all of these services of appellee were performed on elevators in various buildings and structures on real property. The sole question, then, is whether the fact that the elevators are attached to structures on real property removes appellee’s service and maintenance proceeds from the ambit of the Gross Receipts Tax Lwa.
Both sides agree that, as a general rule, a tax cannot be imposed except by express words indicating that purpose, and any ambiguity or doubt must be resolved in favor of the taxpayer. Wiseman v. Arkansas Utilities Company, 191 Ark. 854 88 S.W. 2d 81 (1935). Appellee contends that it was the intent of the General Assembly in enacting the Gross Receipts Tax Law that it apply solely to the sale of, or service to, tangible personal property, as well as certain enumerated types of intangible property. The Chancellor agreed with this interpretation of the law and overturned the assessment, ruling that there was no showing that the tax was expressly imposed upon the proceeds from services to real property.
We must disagree. It is true that sales of tangible personal property are subjected to the tax in subsection (a) of § 84-1903, but the subsection applicable here also imposes the tax on the sale of the services therein enumerated. It is clear that § 84-1903(c)(3) expressly imposes the tax upon service to motors, electrical devices, and machinery of all kinds, all of which describe in various ways an elevator and its components. Appellee concedes that the proceeds from these services would be taxable were it not for the fact that elevators are affixed to structures upon real property. This argument must fail. We find it significant that the General Assembly in its enumeration of services to be taxed by this subsection included the addition, replacement or repair of tin and sheetmetal, which obviously are primarily utilized in the ■ construction of buildings and other structures upon real property. We think the intent of the General Assembly was made sufficiently clear by their reference to “machinery of all kinds” and that they intended the tax to apply to service to all machinery whether or not it was affixed to realty. Accordingly, we must reverse the finding of the Chancellor and remand this cause for proceedings not inconsistent with this opinion.
Reversed and remanded. | [
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Robert H. Dudley, Justice.
This is a illegal exaction suit. The taxpayers allege that a primary purpose of the tax has failed and that an injunction should be issued against its continued collection. The chancellor denied relief. We hold that the tax constitutes an illegal exaction and reverse and remand with instructions.
The constitutional provisions and statutes that are applicable to this case are as follows. Article 12, section 3 of the Constitution of Arkansas, in the material part, provides: “The General Assembly shall provide, by general laws, for the organization of cities . . . and restrict their power of taxation . . . so as to prevent the abuse of such power.” Article 12, section 4 begins: “No municipal corporation shall be authorized to pass any law contrary to the general laws of the state. . . .” A basic premise, to which we have long adhered, is that a municipal corporation has no inherent power to levy taxes, but can levy only such taxes as are authorized by law. Vance v. City of Little Rock, 30 Ark. 435 (1875). Article 16, section 11, in pertinent part, provides: “No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same. . . .”
Act 25 of 1981, extraordinary session, authorized cities to adopt a local sales and use tax upon approval by the voters. The act provides that the tax can be abolished either by vote of the city council or by vote of the qualified voters of the city acting in accordance with the initiative procedures of Amendment?. 1981 Ark. Acts 25 § 2(f). The emergency clause of the act provided that the tax was for city “services.” This tax was referred to as the cities’ “operating penny” tax since it could be “used by the city for any purpose for which the city’s general funds may be used.” Id. § 7. Section 2(d) of the act provided that the voters of the city must approve or reject the tax and that:
The ballot title to be used at such election shall be substantially in the following form:
“FOR adoption of one percent (1 %) local sales and use tax within (name of city).”
“AGAINST adoption of a one percent (1%) local sales and use tax within (name of city).”
Act 25 of 1981, summarized above, was amended by Act 726 of 1983 to authorize cities, after a public vote, to pledge tax collections from the “operating penny” to finance capital improvements. See Ark. Code Ann. §§ 26-75-201 — 26-75-223 (1987 & Supp. 1991). Thus, the “operating penny” is no longer limited to providing services, but can now be converted to pay for capital improvements, and, when the tax is imposed for capital improvements, the right to an immediate repeal by initiative is lost since the tax cannot be abolished until the bonds or leases are paid in full. Ark. Code Ann. § 26-75-210 (1987).
Amendment 62 to the Constitution of Arkansas was approved at the November 1984 general election. It is entitled “Local Capital Improvement Bonds” and repealed Amendments 13, 17, 25, and 49. Section 1(a) of Amendment 62 authorizes municipalities to issue bonds, upon approval by the voters, for capital improvements of a public nature and authorizes an ad valorem tax to repay the capital improvement bonds. The same section, 1(a), permits other taxes to be used to repay capital improvement bonds if authorized by the General Assembly.
As legislation implementing Amendment 62, the General Assembly enacted Act 871 of 1985. This act does not repeal Act 25 of 1981, the “operating penny” statute; rather, it recognizes the continuation of Act 25 of 1981 in sections 9(g), 9(h), 9(k), and 10(d). Codified at Ark. Code Ann. §§ 14-164-332(b), 333(2)(a), 336(c), 337(c)(1) (1987 «fe Supp. 1991). Section 9 of Act 871 of 1985, Ark. Code Ann. § 14-164-327 (1987), authorizes a municipality to adopt a new one cent “bond penny” local sales and use tax to retire capital improvement bonds. Section 10 of Act 871, entitled “Pledge of Existing Sales and Use Tax,” provides that a city, after approval by the voters, can pledge all or a portion of a pre-existing sales tax to retire capital improvement bonds. Ark. Code Ann. § 14-164-337(c)(1) (Supp. 1991). In 1988, by Act 25, the General Assembly amended Ark. Code Ann. § 14-164-338 to provide that a city, as an alternative to issuing capital improvement bonds, can construct pay-as-you-go capital improvements by levying a “bond penny” for up to twelve months when that penny, over a twelvemonth period, will be sufficient to construct the improvement.
In this case, the City of Fayetteville sought to assist the Fayetteville School District in a school construction project. In November of 1987, the City asked the Attorney General if it could contribute any part of a city “operating penny”' sales and use tax to the Fayetteville School District. The Attorney General responded that Arkansas statutes “prohibit the City from contributing local sales tax revenue to the schools.” The Attorney General said the City might construct school facilities and rent them back to the school district. In April of 1988, the Attorney General again informed the City that it could not contribute a part of a local sales tax revenue to the local school district.
In October 1988, in spite of the Attorney General’s opinion, the City of Fayetteville, by ordinance 3381, levied a one-cent sales and use tax, subject to approval by the City’s voters at the November 1988, general election. The ordinance, in the material parts, provides:
Section 2. A special election be, and the same is hereby called to be held in the City on the 8th day of November, 1988, at which election there will be submitted to the electors of the City the questions of (a) levying a local sales and use tax at the rate of one percent (1 %), and (b) issuing capital improvement revenue bonds secured by a pledge of a portion of the City’s 1 % local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of educational facilities for the Fayetteville School District.
Section 3. The questions shall be placed on the ballot for the election in substantially the following form:
FOR adoption of a 1 % local sales and use tax within the City to be levied and collected to a maximum of $25.00 on each single transaction for a period of 20 years.
AGAINST adoption of a 1 % local sales and use tax within the City to be levied and collected to a maximum of $25.00 on each single transaction for a period of 20 years.
Collection of the 1 % local sales and use tax will not commence until collection of the City’s existing 1 % local sales and use tax shall have ceased. It is proposed that proceeds from the tax be used to finance a capital improvement program and economic development program (capital facilities) for the City.
FOR the issuance of revenue bonds secured by a pledge of a portion of the City’s 1 % local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of $ 10,000,000.00 in educational facilities for the Fayetteville School District.
AGAINST the issuance of revenue bonds secured by a pledge of a portion of the City’s 1 % local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of $ 10,000,000.00 in educational facilities for the Fayetteville School District.
The proposals were submitted to the voters on ballot forms prepared in compliance with the ordinance. The proposals appeared next to each other on the ballots with a line between them. The $10,000,000.00 educational facilities construction program passed by 8,556 to 4,084 votes, or better than two to one, but the tax was approved by a vote of only 7,643 to 5,260.
After the election, the City was again advised, this time by three different bond counsel, that the City had no authority to construct or finance local school district projects with the sales tax funds. A fourth bond counsel advised that the City might implement the tax, construct the school facilities, and lease them to the school district. There was some discussion among city officials of a “friendly suit” to test the issue, but that was never pursued, and the City’s primary bond counsel wrote:
[W]e do not believe that it would be advisable for the City to seek a declaratory judgment as to the validity of bonds of the City secured by sales and use tax revenues for educational facilities for the Fayetteville School District. The law on a number of the points mentioned above is substantially against a favorable outcome, so that, although it is always possible that the validity of such bonds would be upheld, it seems probable that it would not.
Two years later the city desired to issue bonds to construct eleven other capital improvement projects. Section 14-164-337(b)(2)(A) of the Arkansas Code Annotated of 1987 provides that when the subsequent issuance of bonds is submitted to the voters, the ballot “[s]hall not resubmit the levy of the tax.” In accordance with that provision, the City, in 1990, by ordinance 3480, submitted to the voters only the question of the issuance of capital improvement bonds for eleven other separate projects. The ballot title also provided:
In addition, such proceeds may be pledged to secure the retirement of not to exceed $10,000,000 of educational facilities bonds of the City approved by the electors of the City at an election held on November 8, 1988.
On May 29, 1990, the city voters voted in favor of the issuance of capital improvement bonds for the eleven separate projects and the schools. On July 17,1990, after voter approval of the eleven capital projects and the schools, the City Board of Directors passed resolution 116-90, which acknowledged that its legal counsel had informed the City that it could not issue sales tax bonds to construct or finance school district projects, and that the only way it could assist the school district was to authorize “the City Manager to seek to escrow $1,000,000 a year plus interest from the General Fund, non-regular fee and tax revenues over a ten-year period to assist the school board in school construction projects.” In sum, in May 1990, the City publicly disclosed that no money from the sales tax would be applied to the Fayetteville School District and that the City Manager was authorized to “seek” to take money from the City’s non-regular general fund revenues for the schools.
On October 15, 1990, the City issued $33,019,000 in sales and use tax capital improvement bonds for the eleven capital improvement projects. Each month, after the sales and use tax funds are collected by the State, the funds are remitted to the bond trustee, intervenor Arvest Trust Company, N.A. The trustee then applies the amounts necessary for the retirement of the outstanding capital improvement bonds, retains a small amount as authorized in the trust indenture, and remits the rest to the city. The City then applies the money it receives to pay-as-you-go capital improvement projects.
On June 20, 1991, within a year after the City’s resolution formally acknowledged that the proposal to issue sales tax bonds to construct or finance buildings for the local school district was illegal, the taxpayers filed this action. The Fayetteville School District and Arvest Trust Company, N.A. were allowed to intervene. As an affirmative defense, Arvest pleaded that the trial court was without jurisdiction to hear the case because this is an election contest and, as such, is barred by the statute of limitations, and also that the suit is barred by the doctrine of estoppel.
The chancellor rejected intervenor Arvest’s affirmative defense of lack of jurisdiction because of limitations and held that it had jurisdiction. The chancellor reached the merits of the case and ruled that the voters, at the 1988 general election, approved the adoption of the sales and use tax for a period of twenty years, and that approval was given separately from the proposed issuance of $ 10,000,000 worth of bonds to construct facilities for the Fayetteville School District. The chancellor also ruled that the “operating penny” tax was validly enacted pursuant to authority found in Act 25 of 1981, and could be used “for any purpose for which the City’s general fund may be used,” the $33,019,000 in bonds issued in 1990 for the eleven separate capital improvement projects were validly issued under authority of Act 871 of 1985, Ark. Code Ann. § 14-164-337(a) (1987), and the current pay-as-you-go projects were validly financed pursuant to Act 25 of 1988, Ark. Code Ann. § 16-164-338 (Supp. 1991). The taxpayers filed a notice of appeal.
Arvest Trust Company, N.A., one of the appellees, argues that we must dismiss the appeal because the suit was an election contest, but it was not filed within 20 days of the election certification. See Ark. Code Ann. § 7-5-801 (d) (1987). As stated, the trial court ruled against Arvest on this argument, and Arvest did not file a notice of cross-appeal. A notice of cross-appeal is necessary when an appellee seeks something more than it received in the lower court. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979). Ordinarily, this failure to file a notice of cross-appeal would end the matter, but since Arvest does not seek any relief it did not receive in the lower court, we address the matter and hold that it is without merit.
An election contest may be generally described as an action to contest the certification of the vote on an issue. See McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1989); Ark. Code Ann. § 7-5-801 (1987). Here, the taxpayers do not contest the.vote or the certification of the vote. Rather, as a part of their case, they plead that the tax was passed and certified, and that subsequently the purpose for the tax failed. Such a suit fits within the definition of a suit to prevent an illegal exaction. Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989). Article 16, section 13 of the Constitution of Arkansas confers upon any citizen the right to institute a suit to protect against an illegal exaction. Accordingly, we decline to dismiss this as the appeal of an election contest, and we reach the merits of the taxpayer’s appeal.
Arvest additionally contends the suit is barred by the doctrine of estoppel. Clearly, in the proper case a taxpayer may be estopped from questioning the validity of a tax. In Lawrence County v. Townsend, 202 Ark. 887, 154 S.W.2d 4 (1941), we held that the taxpayer was estopped to contest the validity of a bond issue when proper notice of the levy of the tax was given, the taxes were levied and collected from the taxpayer for eleven years, those taxes were pledged and paid on bonds for the same eleven year period, and there was no failure of purpose of the bond issue. That is not the case before us. Here, the tax itself is at issue, and the suit was filed within one year after it was publicly known that the principal purpose of the tax had failed. Thus, the doctrine of estoppel is not applicable.
In their appeal on the merits, the taxpayers assign five rulings as error. Those five assignments involve a number of sub-points beginning with the argument that Act 25 of 1981 is either repealed or unconstitutional and running through the chancellor’s construction of Act 25 of 1988, Ark. Code Ann. § 14-164-338 (Supp. 1991). Three of the assignments of error are closely related and involve the trial court’s ruling that the tax is valid even through the voters approved the tax at the same time they approved issuing $10,000,000 in bonds for the Fayetteville School District. We treat those three closely related assignments together. It is not necessary for us to reach the other issues.
The vote to adopt the sales and use tax for twenty years, with its concomitant waiver of the right of initiative during that period, was inextricably linked to the vote to issue $10,000,000 in bonds to construct facilities for the Fayetteville School District. The chancellor found that the voters voted separately on these two issues since there was a line between them on the ballot form, but the fact that there was a line between them is only on the periphery of the issue. From the beginning, the city clearly tied the two issues together. Section 2 of the ordinance calling the election provides:
A special election be, and the same is hereby called to be held in the City on the 8th day of November 1988, at which election there will be submitted to the electors of the City the questions of (a) levying a local sales and use tax at the rate of the one percent (1 %), and (b) issuing capital improvement revenue bonds secured by a pledge of a portion of the City’s 1 % local sales and use tax, if approved, to finance the acquisition, construction, reconstruction and equipping of educational facilities for the Fayetteville School District.
The two proposals were then submitted next to each other on the same ballot form with a line drawn between them. A voter who wished to vote for the issuance of the $10,000,000 in bonds for the school district knew that he or she was required to also vote in favor of the tax because, without the tax, the bonds could not be issued. It is abundantly clear that the proposal for the issuance of the bonds for the construction of the school facilities was popular with the voters. In fact, that proposal received a two to one favorable vote, 8,556 to 4,084. Those voters who wanted the school construction had only one choice — to vote for both the issuance of the school bonds and the twenty-year sales and use tax. There was a natural relationship between them. The two proposals were part of the same plan. They were united. If it were not for the proposed bond issue, the tax would have been only an “operating penny” tax subject to public initiative throughout its levy, and not a “bond penny” levied for twenty years.
Arvest contends that the chancellor’s ruling that the two proposals were completely separate should be affirmed because the last sentence of the sales tax proposal on the 1988 ballot provided: “It is proposed that the proceeds from the tax be used to finance a capital improvement program and economic development program (capital facilities) for the City.” The argument is without merit because the proposed $10,000,000 school bond issue was to be a part of the capital improvement program, and, if anything, this sentence would lead a voter to think the two proposals were linked. It is obvious that the City also thought the school bond issue was a part of its “capital improvement program” because its ordinance placing the “issuance of capital improvement bonds” on the ballot in 1990 stated:
The retirement of the bonds shall be secured by a pledge of all of the proceeds of such tax or such portion of such proceeds as shall be determined by the City to be adequate to obtain satisfactory ratings or insurance on the bonds. In addition, such proceeds may be pledged to secure the retirement of not to exceed $10,000,000 of educational facilities bonds of the City approved by the electors of the City at an election held on November 8, 1988.
The vote on the tax and the vote on the school district bonds were inextricably linked, and the school district bonds were, at the least, a primary purpose of the tax. Three years after the favorable vote on the two proposals, the City admitted that the proceeds from the tax could not be used to issue the $10,000,000 in school bonds. An illegal exaction occurs when the purpose of a tax cannot be accomplished and- the government retains the tax funds. Hartwick v. Thorne, 300 Ark. 502, 780 S.W.2d 531 (1989). We hold that an illegal exaction occurred when a primary purpose of the tax could not be accomplished and the collection of the tax was continued.
Because we hold the tax constitutes an illegal exaction, we reverse the ruling of the trial court and remand for the chancellor to enjoin further collection of the tax. In addition, the chancellor is instructed to conduct a hearing to award an attorney’s fee, see Ark. Code Ann. § 26-35-902 (1987), and to determine whether the City or the trustee now has any funds that rightfully belong to the taxpayers. If it develops that there are such funds, the chancellor should determine their disposition. The general rule is that funds which have been acquired through an illegal exaction are to be returned pro rata to the various taxpayers who initially paid them, but this case involves funds collected through a sales tax, and it is probable that the proof will show that it is impossible to determine, with any degree of economic certainty, who paid the taxes. Thus, it is probable that the funds, if any, cannot be refunded to the initial payers, and the chancellor must hold a hearing to determine how the funds are to be disposed. See City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990).
Reversed and remanded with instructions.
Hays, Glaze, and Corbin, JJ., dissent. | [
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Robert H. Dudley, Justice.
This appeal requires us to construe the Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 — 108 (Repl. 1992). Two sixteen-year-old girls and one fifteen-year old girl were arrested in Mississippi County. One was arrested for stabbing a victim to death, another for carrying a deadly weapon, and the third for felony theft. After their arrests, the three were transported to the Craighead County Juvenile Detention Center, a regional facility. Under the governing statutes, the two sixteen-year-old girls could have been charged as adults, Ark. Code Ann. § 9-27-318 (Repl. 1991), and treated as adults, or they could have been charged as juveniles and would have remained in the juvenile detention facility until the juvenile division of the chancery court ordered otherwise. See Ark. Code Ann. §§ 9-27-326, 327 (Repl. 1991) & § 9-28-209 (Supp. 1991). If the fifteen-year-old were the one arrested for stabbing her victim to death she too might have been charged as an adult, see Ark. Code Ann. § 9-27-318(b)(1) (Repl. 1991), or she might have been charged as a delinquent juvenile offender. See Ark. Code Ann. § 9-27-303(11) (Repl. 1991). The salient fact is that none of the juveniles had been charged in the juvenile division of chancery court at the time the issue in this case arose, and, therefore, no juvenile proceedings had been commenced. Ark. Code Ann. § 9-27-310 (Repl. 1991). Subsequent testimony showed that both of the sixteen-year-old girls were later charged as adults in circuit court, one being charged with capital murder, and the other being charged in connection with another homicide. The fifteen-year-old was charged as a delinquent juvenile.
While in the regional juvenile facility, the three detainees attacked a matron, broke several of her ribs while overpowering her, took the keys to the facility and to her car, got out of the facility with one of the keys, and, with the use of the other key, escaped in her car. Newsroom employees of the Jonesboro Sun heard the police broadcasts of the escape through use of a radio scanner. Larry Fugate, the managing editor of the Sun, immediately went to the facility to ask what had happened. The Craighead County Juvenile Detention Facility is located in the same building as the Craighead County Jail, or adult jail, but the two facilities are separate. They have separate entrances, separate facilities, separate records, separate personnel, and separate standards. Upon arriving at the building Fugate asked Dickie Howell, Chief Deputy Sheriff of Craighead County, for the names of the escapees. The deputy sheriff responded that he understood the law to be that the names of juvenile offenders were not to be released and, accordingly, did not divulge the girls’ names. Later, he refused to allow Fugate to see the logs and booking sheets on the girls. The Sun filed suit in circuit court against Sheriff Larry Emison and Deputy Dickie Howell asking that the names and records be made public information. The trial court examined applicable statutes, considered the possibility that the General Assembly did not word one of statutes as it intended, and, in this case of first impression, concluded that the public policy in favor of keeping juveniles’ names confidential outweighed the public policy represented by the Freedom of Information Act. Accordingly, the trial court found no violation of the Freedom of Information Act. We reverse, primarily because the legislative branch rather than the judicial branch can create exceptions to the act, and the legislature has not created an exception specifically applicable to this set of facts.
The Arkansas Freedom of Information Act provides in pertinent part:
Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying by any citizen of the State of Arkansas during the regular business hours of the custodian of the records.
Ark. Code Ann. § 25-19-105(a) (Repl. 1992) (emphasis added). This language provides that only the General Assembly can create exceptions to the FOIA. We have followed this directive and have required that a statute specifically provide for nondisclosure before we will exempt a public record from the act. See Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987). Therefore, the issue is whether there is a statute that specifically provides for the exemption of the names of juveniles arrested for felonies, but not. charged as delinquent juveniles, and whether detention facility logs and booking sheets of juvenile detention facilities are exempt.
Deputy Sheriff Howell obviously thought that a part of the juvenile code, Ark. Code Ann. § 9-27-348 (Repl. 1991), provided for the exemption. However, the language of that exemption is as follows:
No information whereby the name or identity of a juvenile who is the subject of proceedings under this subchapter may be ascertained shall be published by the news media without written order of the juvenile court. [Emphasis supplied.]
Another statute, Ark. Code Ann. § 9-27-310(a) (Repl. 1991), provides that juvenile “[proceedings shall be commenced by filing a petition with the clerk of the chancery court or by transfer by another court.” Thus, these juveniles were not “the subject of proceedings,” and the exemption does not specifically apply. This construction of the statute is confirmed by the phrase “without written order of the juvenile court,” which clearly means that the exemption is to apply only to cases filed in the juvenile court.
One might argue that our construction of these statutes defeats, to some extent, the public policy of shielding juvenile offenders since our construction leaves a window of time, between the arrest and the charge, in which the name of a delinquent juvenile can be discovered. However, that result is in accordance with the language of the statute. If it is to be changed, it should be changed by the General Assembly and not by this court. If the General Assembly wants to declare the public policy to be that the names of all juvenile offenders are exempt public records, whether the juvenile is charged, or if charged, whether charged in juvenile court or in circuit court, it knows how to do so.
However, the General Assembly might not choose to create such a blanket exemption. One of these cases is a good example. There was testimony that the juvenile, who was charged as an adult with the crime of capital murder, stabbed her victim twenty-two times, then attacked the matron, escaped, and was loose in public. The General Assembly might well think that, for its safety, the public had a right to know the name or see a picture of such a dangerous escapee. But again, that is not for this court to decide. Our long standing position is clear. FOIA exemptions are to be narrowly construed, Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991), and when the legislature “is less than clear in its intendments, then privacy must yield to openness and secrecy to the public’s right to know.” Ragland v. Yeargan, 288 Ark. 81, 86, 702 S.W.2d 23, 25 (1986). Accordingly, we hold that this statute does not provide an exemption to FOIA.
Appellees also contend that two federal statutes provide for nondisclosure in these cases. The statutes, 42 U.S.C. §§ 5676 and 5731 (1988) are a part of the federal program for assisting states with their juvenile justice systems. Under the federal program the states submit plans to the Office of Juvenile Justice and Delinquency Prevention in order to receive grant money. 42 U.S.C. § 5633 (1988). If the states do not comply with the federal program they will not receive grant money. The first of the statutes, 42 U.S.C. § 5676, provides:
Except as authorized by law, program records containing the identity of individual juveniles gathered for purposes pursuant to this subchapter may not be disclosed without the consent of the service recipient or legally authorized representative, or as may be necessary to carry out this subchapter. Under no circumstances may program reports or findings available for public dissemination contain the actual names of individual service recipients.
The first sentence above protects “program records.” Here, the citizen asked the public official for the names of the girls before they were charged in any court. At that time their names were not part of the juvenile program records. In fact, two of the names never became part of the juvenile program records. Accordingly, we cannot say that this provision specifically provides for exemption. The same reasoning applies to the second sentence which prohibits printing the names of juveniles in “program reports or findings available for public dissemination.”
The second of the federal statutes advanced by the appellees as proving an exception is 42 U.S.C. § 5731. However, that statute is a part of the subchapter entitled “Runaway and Homeless Youth” and is simply not applicable to the case at bar.
The cited federal statutes are not laws “specifically enacted” to countermand the Arkansas FOIA’s general rule that public records must be available, and we hold that they do not provide an exemption. We are aware that this holding may make it more difficult for the State to receive federal funding for its juvenile justice program. One authority has written on the subject. See Watkins, The Freedom of Information Act: Time For A Change, 44 Ark. L. Rev. 535 (1991). But again, if a change in the state act is to be made, it must be made by the legislature. Until it is changed we hold that a federal law which does not prohibit disclosure, but only provides for the loss of funds if the information is disclosed, does not supersede the state FOIA. Accord, Student Bar Assoc. v. Byrd, 239 S.E.2d 415 (N.C. 1977).
Reversed and remanded for proceedings consistent with this opinion.
Corbin, J., dissents. | [
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Robert H. Dudley, Justice.
Appellant, a juvenile, was adjudged a delinquent and placed on probation. Subsequently, the trial court revoked appellant’s probation and imposed a fine as punishment. We reverse the revocation of probation and imposition of a fine for failure to comply with the juvenile code, and remand for further proceedings.
Appellant, a fifteen-year-old, was charged in April 1990 in the Juvenile Division of Chancery Court with burglary and reckless burning. An attorney was appointed and appellant was ordered to appear for an “adjudication (D)” on November 13, 1990. “Adjudication (D)” may mean an adjudication and disposition hearing. “ ‘Adjudication hearing’ means a hearing to determine whether the allegations in a petition are substantiated by proof.” Ark. Code Ann. § 9-27-303(5) (1991). “ ‘Disposition hearing’ means a hearing held following an adjudication hearing to determine what action will be taken in delinquency. . .cases.” Ark. Code Ann. § 9-27-303(15) (1991). At the “adjudication (D)” hearing the trial court found that appellant had committed the burglary, adjudicated him to be a delinquent, and placed him on probation for one year. The probation was subject to written conditions specified by the court. See Ark. Code Ann. § 9-27-330(3) (1991). The reckless burning charge was dismissed.
Five months later, on April 17, 1991, the Prosecuting Attorney filed a petition to revoke probation. See Ark. Code Ann. § 9-27-339(b) (1991). As a result of the petition, the appellant was directed by a form order to appear for another “adjudication (D)” on September 26, 1991. He failed to appear and a warrant was issued for his arrest. He was quickly arrested and, on September 30,1991, was released into the custody of his mother. The revocation hearing was rescheduled for December 12,1991.
The applicable statute provides that at a revocation hearing, if the trial court finds beyond a reasonable doubt that the juvenile has violated the terms of probation, the court may: (1) extend probation; (2) impose additional conditions of probation; or (3) make any disposition that could have been made at the time probation was originally imposed. Ark. Code Ann. § 9-27-339(e) (1991). At the revocation hearing on December 12, the special judge apparently found beyond a reasonable doubt that the juvenile had violated the terms of probation, but the judge did not revoke probation and fine appellant as could have been done. See Ark. Code Ann. §§ 9-27-337(7), 9-2-339(e) (1991). Instead, the special judge extended probation for an additional year, ordered appellant to stay with his mother, undergo psychological, drug, and alcohol assessment, and continue to attend the Watershed project. In addition to the foregoing adjudication, the last sentence of the form order provides: “This matter is set for Disposition/Review on the_day of-, 19— at — A.M./P.M.” The date of March 18,1992, and time of 9:15 were filled in by handwriting. There were no strike marks on the strike-the-wrong-word form order indicating whether the subsequent hearing on March 18 was to be for disposition or review, but that is of no real significance since the applicable statutes do not provide for a different disposition of the same petition at another hearing three months later. The special judge signed another form order styled “Order to Appear,” which had a check mark in a box to notify appellant that the appellant was to appear on March 18, 1992, for “Review of compliance with Orders of this Court.” “ ‘Order to appear’ means an order issued by the court directing a person who may be subject to the court’s jurisdiction to appear before the court at a date and time as set forth in the order.” Ark. Code Ann. § 9-27-303(25) (1991).
The Prosecuting Attorney did not file another petition to revoke probation. No document was served on appellant indicating that a different disposition was to be considered. On March 18, appellant appeared with counsel pursuant to the “Order to appear” but, rather than having just a review, the trial court revoked probation and fined appellant.
Appellant appeals and argues that on December 12, 1991, the trial court made a “disposition” of the petition to revoke under Ark. Code. Ann. § 9-27-339(e)(l) — {2), and the trial court could not make a different disposition of the same petition three months later. The argument is meritorious.
The statute governing revocation proceedings in juvenile court is both clear and specific. Ark. Code Ann. § 9-27-339 (1991) provides that after an adjudication of delinquency, the court may place a juvenile on probation, and, after a juvenile is placed on probation, the prosecuting attorney may file a petition to revoke probation. It does not provide for revocation in any other manner. The petition for revocation must be served on the juvenile, and a revocation hearing must be set within a reasonable time. At that hearing, “if the trial court finds beyond a reasonable doubt that the juvenile violated the terms and conditions of probation, the court may:
(1) Extend probation;
(2) Impose additional conditions of probation; or
(3) Make any disposition that could have been made at the time probation was imposed.” Ark. Code Ann. § 9-27-339(e) (1991).
The trial court was authorized by the above-quoted statute to deny the petition to revoke and extend probation under subsection (1) above, as it did in this case, but it was not authorized to take that action and then, three months later, change its mind and grant the petition to revoke under subsection (3) above. After the first disposition denying revocation, the statute requires the prosecutor to file another petition for revocation and give notice to the delinquent that revocation is again being considered before probation can be revoked. If we were to construe the statute to authorize the procedure used in this case, it might well run afoul of the prohibition against double jeopardy, for it was settled by the Supreme Court in Breed v. Jones, 421 U.S. 519 (1975), that jeopardy does attach within the meaning of the Fifth Amendment, as applicable to the states under the Fourteenth Amendment, in an adjudicatory delinquency proceeding in juvenile court. Accordingly, we reverse and remand to the juvenile division of chancery court for proceedings consistent with this opinion. | [
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Donald L. Corbin, Justice.
This appeal is from a libel action filed by appellee, Jerry L. Russell, against appellant, Ron Fuller. Appellee is a political consultant. In the 1990 Republican Primary, he was hired as a consultant to the campaign of Daryl Coker in Coker’s race against appellant for a seat in the Arkansas General Assembly. As part of his consultation to the Coker campaign, appellee prepared and distributed a postcard comparing the two candidates in areas such as the decision to run for various legislative positions, community leadership, business management, and views on taxes. In response to this comparison postcard, Fuller prepared and distributed to approximately 500 voters the following written message which states in pertinent part:
NEGATIVE CAMPAIGN ALERT
With less than one week remaining, my opponent, Daryl Coker has chosen to DISTORT my good record in a comparison mail piece. He and his hired Political Consultant “MR. NEGATIVE” Jerry Russell blatantly misrepresented the facts regarding my service to your community and my voting record. THE ONLY THING THEY GOT RIGHT WAS MY NAME!
HELP ME SEND NEGATIVE CAMPAIGNERS A MESSAGE!
I am not using a HIRED POLITICAL CONSULTANT, especially a NEGATIVE TACTICIAN such as Jerry Russell. Jerry is a Democratic Political Consultant and in this election cycle has (26 Democratic) candidates and (1 Republican), my opponent. Daryl has been mislead [sic] because DISTORTION and NEGATIVE campaigns are all Jerry Russell understands.
Let’s show Mr. Negative, Jerry Russell and my opponent that the people of Western Pulaski County will not be fooled by distortions and negative campaign tactics. VOTE FOR RON FULLER ON MAY 29TH.
Appellee later filed suit against appellant, alleging appellant had libeled him as a result of the Negative Campaign Alert. Appellee claimed $10,000.00 in compensatory damages and $ 100,000.00 in punitive damages. Appellee tried his libel suit to a jury and received a verdict of $5,000.00 compensatory damages and $1,000.00 punitive damages. Judgment was entered according to the verdict. Appellant’s motions for directed verdict and judgment notwithstanding the verdict were denied. This appeal followed.
For reversal of the judgment, appellant asserts three points of error. First, appellant claims his statements are ones of opinion rather than of provably false facts and are therefore protected speech. Second, appellant claims there is no substantial evidence from which the jury could have found actual malice. Third, appellant asserts there is no substantial evidence with reasonable certainty of damages to future income. We find merit to appellant’s second argument and therefore reverse and dismiss the judgment; we need not address appellant’s remaining two assignments of error.
The trial court found that appellee was a limited public figure. Neither party challenges that finding on appeal. Both parties agree that under Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), because the alleged defamatory statements are a matter of public concern, appellee had the burdens of proving the alleged defamatory statements false and, by clear and convincing evidence, that appellant made them with actual malice. Thus, the posture of the case presented to us is one involving a limited public figure plaintiff against a non-media defendant in a matter of public concern, a local political race.
Appellant maintains that his statements such as “Mr. Negative, Jerry Russell,” “negative tactician,” and “distortion and negative campaigns are all Jerry Russell understands” are expressions of opinion made within the context of a political campaign or matter of public concern and are not provable as false. In other words, appellant claims these statements are “opinions” of the kind protected in Milkovich, 497 U.S. 1. Appellant asserts there is only one statement in his “Negative Campaign Alert” that is not absolutely protected from the libel claim by the First Amendment:
He [Daryl Coker] and his hired Political Consultant “MR. NEGATIVE” Jerry Russell blatantly misrepresented the facts regarding my service to your community and my voting record.
Appellant claims appellee never met his burden of proving the falsity of the foregoing statement or that the statement was made with actual malice. Appellee counters this argument with the assertion that he offered substantial evidence of the falsity of all the statements in the “Negative Campaign Alert” and of appellant’s actual malice. We agree with appellant that appellee did not meet his burden of proving actual malice; therefore, we do not discuss the issue concerning protected speech as analyzed in Milkovich, 497 U.S. 1.
For purposes of addressing appellant’s second argument then, our analysis is whether appellee met his burden of proving by clear and convincing evidence that the statements were made with actual malice. Ordinarily, our standard of review would be whether the jury’s verdict could be supported by substantial evidence. However, the Supreme Court has stated that when the First Amendment is involved, the appellate court is obligated to make an independent examination of the whole record to make'sure the judgment does not constitute a forbidden intrusion on the field of free expression. Bose Corp. v. Consumer’s Union, 466 U.S. 485 (1984). Because appellant’s First Amendment right to free expression is at stake, we apply the higher standard of review.
In an attempt to define the actual malice standard, the Supreme Court has stated as follows:
[T]he plaintiff in such an action must prove that the defamatory publication “was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith.
St. Amant v. Thompson, 390 U.S. 727, 728, 731, 732 (1968).
The question of whether the evidence in the record is sufficient to support a finding of actual malice is a question of law. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989). Our review of the record reveals that appellant testified he believed his statements to be true. St. Amant instructs us that appellant’s testimony that he believed he published the truth is of little consequence in making the actual malice determination. However, appellee simply failed to present any evidence of appellant’s awareness of the probable falsity of the statements. Thus, we must conclude appellee failed to meet his burden of proving actual malice. The issue should never have reached the jury. We must reverse and dismiss for appellee’s failure to prove actual malice.
Appellee makes a claim for attorney’s fees and costs in his brief. He cites no authority authorizing such an award and the abstract does not indicate he presented his request for fees and costs to the trial court. Moreover, the abstract does not reveal that appellee cross-appealed from any judgment on the issue of fees and costs. Therefore, we do not address appellee’s claim for attorney’s fees and costs.
Reversed and dismissed.
Brown, J., not participating.
Although St. Amant applies to a public official, it nevertheless discusses actual malice, a standard which was extended to apply to public figures and matters of public concern by Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). | [
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Richard L. Mays, Justice.
This is an appeal from a judgment in a personal injury action in which the only assignment of error is that the evidence is not sufficient to support the verdict.
Appellant, Mrs. Lula Orsby, filed suit in Phillips County Circuit Court against appellee, Mrs. Thelma McGee, alleging that she sustained personal injury and property damage as a result of appellee’s negligent operation of her automobile. Appellee answered the complaint, denying any negligence, and counterclaimed against appellant for personal injury and property damage allegedly sustained as a proximate result of appellant’s negligence.
The case was tried before the circuit judge sitting as a jury. Appellant testified that on April 30, 1976, at approximately 4:30 p.m., she was driving her automobile in the lane nearest the center line in a westerly direction on Highway #49 in Helena, Arkansas, when she stopped to turn left and was struck in the rear by a vehicle driven by appellee.
Appellee’s testimony was in direct conflict with appellant’s. She testified that she was driving on the inside lane traveling west on Highway #49 when appellant passed her on the right, pulled directly in front of her and stopped, causing appellee to collide into the rear end of appellant’s vehicle. Appellee’s testimony was substantiated by the testimony of her teenage son who testified that appellant almost struck his mother’s car on the passenger side as appellant passed ahead of appellee, pulled in front of her and abruptly stopped, causing the collision.
Although there were no other witnesses to the accident, a police officer, in response to appellant’s counsel’s questions concerning any statement by appellee at the accident scene, testified:
I believe she stated that she had just left the hospital drive — if I’m not mistaken, and she was proceeding west on Oakland [Hwy. #49], and at the scene, I believe the only thing that she told me was she just looked and there she was because she had a child of hers in the car, and she was upset. . . .
Appellee denied giving any statement to the police officers and consistently adhered to her version of the accident. The trial court, apparently disbelieving the testimony of appellant, held in favor of the appellee on the complaint and counterclaim but reduced the amount of appellee’s judgment because of contributory negligence.
In reviewing the sufficienty of the evidence on appeal to support the decision of a trial judge sitting as a jury, we consider the evidence in the light most favorable to the appellee and affirm unless the trial court’s decision is clearly erroneous. Ark. R. Civ. P. 52, Taylor v. Richardson Const. Co., 266 ark. 447; 585 S.W. 2d 934 (1979).
Appellant essentially contends that the police officer’s testimony established her version of the facts and since he was the only disinterested witness concerning liability, his testimony could not be disregarded. Although we agree that the officer’s testimony was more favorable to appellant that appellee, we do not believe that it established appellant’s version of the accident. His testimony did not establish that appellant was not negligent, but merely that appellee might have been, a fact duly noted by the trial judge since he reduced appellee’s judgment because of it. Moreover, even if the officer’s testimony concerning appellee’s admission had been more conclusive on liability, the court could still have con ceivably disregarded it since the appellee denied making any statement to him. See Western Union Telegraph Co. v. Baltz, 175 Ark. 167, 299 S.W. 377 (1927). It must be remembered that the credibility of the witnesses is determined by the fact finder, not this Court. Box v. Dudeck, 265 Ark. 165, 578 S.W. 2d 567 (1979). It is the fact finder who listens to the testimony and observes the demeanor of the witnesses. The disinterest of a witness is simply one factor among many which may be taken into consideration in assessing credibility. Although, as fact finders, we might have made a different decision than the trial judge below, we cannot say that the decision which was made was clearly erroneous.
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David Newbern, Justice.
This case involves two competing claims to furniture, fixtures, and equipment (referred to hereafter collectively as “the equipment”) used by National Bank of Arkansas (NBA). Ernest L. Loewer, the appellant, claimed ownership resulting from an assignment from one J.R. Hodges. The jury found the appellee, NBA, owned the equipment by virtue of a purchase agreement executed between it and Interstate Leasing Incorporated (Interstate), Hodges’ corporation. Loewer argues (1) there was insufficient evidence to support the finding that NBA owned the equipment, (2) the Circuit Court erred by awarding NBA $50,000 in attorney’s fees, and (3) the Circuit Court abused its discretion by failing to impose sanctions against NBA for discovery violations.
We hold (1) the evidence was sufficient to support the jury’s verdict as to ownership, (2) there was statutory authority to award the attorney’s fees, and (3) there was no abuse of discretion in the decision to decline to impose discovery sanctions. The judgment is affirmed.
NBA made two loans to Loewer. On December 19, 1984, Loewer borrowed $31,741.14 from NBA at 13.5% interest. The same day Loewer borrowed $56,054.58 also at 13.5% interest. The loans were evidenced by two promissory notes from Loewer which were made payable to NBA on demand or on March 19, 1985. Loewer received four extensions but failed to make any payments on the principal. On March 10,1989, NBA filed suit in Pulaski County Circuit Court to collect the principal plus interest.
Loewer admitted failing to make payments under the terms of the notes but alleged he was the owner of the equipment which had been intentionally converted by NBA. Loewer claimed entitlement to set off his debt to NBA in the amount of damages suffered as a result of the conversion. NBA answered, asserting a prior ownership interest in the equipment.
To understand the conversion claim, it is necessary to examine the history of transactions involving the equipment. NBA did not want to own equipment used in banking operations because of the effect of ownership on NBA’s balance sheet. If NBA leased, as opposed to owning, federal regulations would allow more loans to be made to customers. The executive vice-president of NBA, Ted Blagg, approached NBA’s largest depositor, Hodges, about purchasing the equipment and leasing it back to NBA. Blagg testified he told Hodges that when the lease expired, NBA would purchase the equipment at an agreed upon price. Hodges agreed to purchase the equipment through Interstate.
The five-year lease dated December 1983 between Interstate and NBA provided for monthly rental payments of $9,394.88. Article II of the lease stated:
This is an agreement of lease only. Nothing herein shall be construed as conveying to Lessee any right, title or interest in or to the Equipment leased hereunder, except the express interest hereunder of Lessee as a lessee to maintain possession and use of the Equipment for the full term of this lease. No options or agreements for purchase of the Equipment by Lessee or extension of the term hereof exist, nor shall any be implied, except as specifically stated in the Schedule.
The agreement provided in Article IV that when the lease expired, NBA would return the equipment to Interstate at NBA’s expense. Article XX stated, “This lease contains the entire agreement between the parties with respect to the Equipment and may not be altered, modified, terminated or discharged except by a writing signed by the party against whom such alternation, modification, termination or discharge is sought.”
Blagg testified that, at the same time the lease was executed, three other documents were prepared, plaintiffs exhibits six, seven, and eight. Exhibit 6 was an undated letter from Hodges to Blagg which stated:
This letter will confirm the price at which you may purchase the residual value of the furniture, fixtures and equipment; which National Bank of Arkansas is leasing from Interstate Leasing, Inc. After due consideration, it is my opinion that the fair market value of the leased property as of December 20, 1988, is $39,845.47.
Exhibit 7 was a bill of sale indicating the grantor, Interstate, sold the equipment to the grantee, NBA, for $39,845.47. The bill of sale was executed on December 20,1985, and signed by Hodges. Exhibit 8 was a promissory note from NBA to Interstate in the amount of $39,845.47. The note was to be paid by NBA on December 20, 1985. Although the documents do not reflect this fact, Blagg testified they were all prepared at approximately the time the lease was executed.
There was testimony that Blagg told Ron Tullos, then chief executive officer of NBA, to take the bill of sale, valuation letter, and promissory note away from NBA and bring them out five years later at the expiration of the lease. Tullos placed the documents in his personal files at his home. Copies of the original documents were accidentally found by a loan officer in a safe deposit box at NBA only a few days before trial.
On March 6, 1984, Interstate and NBA executed an addendum to the lease providing that Interstate would remove the equipment at the termination of the lease at Interstate’s expense. Interstate and NBA executed the addendum despite the fact that NBA had allegedly previously agreed to purchase the equipment at the expiration of the lease. Blagg explained accountants told NBA the addendum was necessary to make the lease an operating, versus a capital lease.
Loewer testified that in July of 1986 Hodges gave him an assignment of the NBA lease and a bill of sale to the equipment. Hodges did so to cover part of a debt he owed to Loewer. Hodges stated he did not remember signing the valuation letter, executing the prior bill of sale to NBA, or seeing the promissory note from NBA to Interstate. Hodges admitted there were discussions between himself and NBA concerning a buy out at the expiration of the lease, but that the buy out would be at a fair market value. Both Hodges and Loewer testified about the existence of the 1986 assignment and bill of sale, but we find nothing in the record to indicate these documents were introduced at trial, and they have not been abstracted for purposes of appeal.
Another party to this action was Savers Federal Savings & Loan Association (Savers). Savers loaned the purchase money which enabled Interstate to buy the equipment for NBA. Savers, therefore, had a superior right to the equipment by virtue of its purchase money lender status. NBA recognized Saver’s claim to the equipment and filed a third party complaint against Savers. Savers, through its conservator FDIC, removed the entire case to United States District Court for the Eastern District of Arkansas. On June 7, 1990, the District Court granted a partial summary judgment for Savers, declaring they had a first lien on the equipment. The pending claims and counterclaims were then remanded to the Circuit Court.
As Savers threatened to foreclose, NBA purchased its judgment for $67,500. After notifying Interstate and Loewer, NBA sold the equipment to Diversified Financial Investments for $72,000.
NBA’s first amended complaint and third party complaint requested (1) a monetary judgment against Loewer on the two promissory notes, (2) a judgment declaring its ownership of the equipment under the agreement, and alternatively, (3) an order setting aside the bill of sale and assignment to Loewer as a fraudulent conveyance in the event Loewer was found to have any interest in the property.
After the evidence was presented, the Trial Court granted NBA’s motion for directed verdict on Loewer’s liability on the promissory notes. Loewer’s counterclaim was submitted to the jury by this interrogatory: “Do you find from a preponderance of the evidence that National Bank of Arkansas and Interstate Leasing Inc. entered into an agreement whereby National Bank of Arkansas purchased the furniture, fixtures and equipment?” The jury responded “yes.” The Court awarded judgment against Loewer in the amount of $130,851.21, plus $50,000 in attorney’s fees, and $4,493.68 in costs. The Court then declared NBA entered into a lawful contract to purchase the equipment on December 20, 1983, and was the owner of the property free and clear of any claims by Interstate or Loewer. Loewer’s conversion claim against NBA was dismissed with prejudice.
1. Substantial evidence
Loewer argues there was no substantial evidence supporting the jury finding that NBA purchased and owned the equipment as of December 1983. To support his argument, Loewer relies on the provision of the lease stating NBA had no option to purchase and the provision stating the lease constituted the entire agreement between the parties. He also contends the addendum to the lease executed in March 1984 conclusively established NBA did not own the property as of December 1983.
We will affirm a jury verdict if supported by substantial evidence. Handy Dan Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985). Substantial evidence is defined as that which is of sufficient force and character that it will compel a conclusion one way or another, forcing the mind to pass beyond suspicion or conjecture. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). In testing the sufficiency of the evidence on review, we need only consider that part which is most favorable to the appellee, here NBA. Love v. H.F. Construction Co., 261 Ark. 831, 552 S.W.2d 15 (1977).
The evidence supports the conclusion that Interstate and NBA entered into a purchase agreement in December 1983. It is true that NBA and Interstate executed a lease stating it was the entire agreement between the parties and no options to purchase existed. During the same approximate time period, however, Hodges sent Blagg a valuation letter confirming the price at which the equipment would be purchased by NBA at the expiration of the lease. A bill of sale showed Interstate transferred to NBA all its interest in the equipment, and the promissory note from NBA to Interstate evidenced NBA’s financial obligation for the purchase.
A case particularly instructive on the issue presented is Ark. Aviation Sales v. Carter Const., 250 Ark. 1007, 469 S.W.2d 118 (1971). There the lessor of an airplane, Arkansas Aviation, and the lessee, Carter Construction, entered a five-year lease which contained an option to purchase. Two weeks after the original lease was executed the parties mutually agreed to delete the purchase option for tax purposes. When the lease expired, Arkansas Aviation claimed it retained ownership of the aircraft and Carter Construction claimed it acquired ownership by virtue of the option to purchase language found in the original lease. The Chancellor found for Carter Construction and allowed parol testimony to show the parties intended for the lease to remain a lease-purchase agreement, and the option to purchase language was deleted only for tax purposes.
We affirmed, stating “parties to a written contract may, subsequent to its execution, modify it and substitute a valid oral agreement therefor.” Ferguson v. C.H. Triplett Co., 199 Ark. 546, 134 S.W.2d 538 (1939). The option continued:
In these circumstances, we are of the view that the deletion of the lease purchase paragraph from the written contract, for tax purposes, was a proper subject for a “side agreement;” that this deletion would not affect the original agreement between the parties and is consistent with their contract; and that it is an oral or collateral agreement which “might naturally be made as a separate agreement by parties situated as were the parties to the written contract.” Therefore, the trial court did not err in admitting parol testimony by the original parties to establish their “side agreement” made subsequent to the parties’ written contract, and to show the scope and effect of this oral agreement.
We recognize that in the present case, the lease failed to include an option to purchase the equipment. There was evidence presented that the lease was not structured as a lease-purchase agreement for tax and regulatory purposes. Subsequent to the execution of the lease, testimony existed that Interstate and NBA entered into a “side agreement,” whereby an option to purchase the equipment was extended to NBA. This is shown by the valuation letter sent from Hodges to Blagg. The jury was presented with evidence in the form of the bill of sale and the promissory note that NBA exercised its option at the beginning of the lease. The jury thus had before it substantial evidence that the lease agreement was intended to operate as a lease-purchase agreement, and that NBA exercised its option and became the owner.
2. Attorney’s fee
Loewer raises several objections to the $50,000 in attorney’s fees. He first argues the amount of fees awarded should be a question for the jury to resolve, not the Trial Court. It is undisputed that the award was determined by the Court based on affidavits of NBA’s counsel. We find no indication in the record that Loewer requested a hearing on the amount of fees assessed, and thus he has waived this issue on appeal. Arkansas Code Ann. § 16-22-308 (Supp. 1991) provides that in actions to recover on promissory notes, a reasonable attorney fee may be assessed by the court and collected as costs. Loewer also contends he was not given any notice or opportunity to be heard on the amount of fees assessed. As stated previously, we find nothing in the record which indicates Loewer ever requested a hearing on this issue.
Loewer also argues recoveries of attorney’s fees on promissory notes are limited to 10 % of the principal and interest, relying on Ark. Code Ann. § 4-56-101 (Repl. 1991). This section simply recognizes that a provision in a promissory note for the payment of a reasonable attorney’s fee, not to exceed 10% of the amount of principal plus interest, may be enforceable as a contract of indemnity. We cannot interpret the Statute to limit the amount of attorney’s fees which can be awarded in an action to recover on a promissory note. Arkansas Code Ann. § 16-22-308 (Supp. 1991) clearly authorizes attorney’s fees to be awarded in an action such as this one.
The last objection regarding the award of attorney’s fees is that the Trial Court lacked subject matter jurisdiction. To support this argument, Loewer relies on Ark. Code Ann. § 16-60-111 (1987) and argues venue was improper in Pulaski County Circuit Court because he resided in St. Francis County.
It is important to note that venue and jurisdiction are distinct concepts. Glad-o-Lac Co. v. Creekmore, Judge, 230 Ark. 919, 327 S.W.2d 558 (1959). While jurisdiction may not be waived or created by consent of the parties, venue may be waived when a party enters an appearance. Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987).
Although Loewer objected to venue in Pulaski County, in his answer, he asserted a permissive counterclaim under Ark. R. Civ. P. 13(b) (1992) and waived his venue objection. In Arkansas Game & Fish Comm’n v. Lindsey, 292 Ark. 314, 730 S.W.2d 474 (1987), we stated, “By interposing a permissive counterclaim, a party voluntarily asks the court for affirmative relief and thus should not be allowed objections based on personal inconvenience.”
3. Discovery sanctions
Loewer’s last point is that the Trial Court erred by refusing to impose sanctions against NBA based on the failure to produce the valuation letter, bill of sale, and promissory note until September 16, 1991, only eight days before trial.
On May 20,1991, the Trial Court granted Loewer’s motion to compel NBA to produce all documentation regarding the equipment leased from Interstate in December 1983. NBA informed the Court that all such documentation had been produced. Shortly before trial, plaintiffs exhibits six, seven, and eight were found in a safe deposit box at NBA. A loan services officer at NBA, Brenda Burks, testified she was checking the safe deposit box for collateral on an unrelated loan and found the documents. She further stated the documents were not on the inventory list for the safe deposit box.
We will not reverse a Trial Court’s decision on imposing sanctions for discovery violations unless there has been an abuse of discretion. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). There was testimony before the Trial Court that NBA had repeatedly searched for the documents without success. Tullos stated he made diligent efforts to find the documents but did not find them. There was also testimony that the documents were located accidentally in a place where they would not normally be found. In light of the evidence that NBA officials searched for the documents prior to trial and could not find them, we cannot say the Trial Court’s refusal to impose sanctions was an abuse of discretion.
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Per Curiam.
Robert Earl Tucker has filed a motion for rule on the Clerk contending it was error for the Clerk to refuse to docket his appeal from a burglary conviction. The Clerk properly declined the appeal because Tucker’s notice of appeal was untimely. If we were simply to deny the motion, Tucker’s counsel could then seek a belated appeal. Rather than require that additional procedure, we choose to treat the motion now before us as one for belated appeal and to grant it.
Tucker was convicted of burglary and sentenced as an habitual offender on July 21, 1992. He filed his notice of appeal July 23,1992. Judgment was not entered, however, until July 24, 1992. Tucker filed a second notice of appeal on September 8, 1992. The Clerk correctly refused to lodge the transcript with this Court. The first notice was ineffective because it was premature. Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992). The second notice was more than 30 days after entry of the judgment and thus too late. Ark. R. App. P. 4(a).
Our decision in the Kelly case overruled the holding in State v. Joshua, 307 Ark. 79, 818 S.W.2d 249 (1992), which was to the effect that a notice of appeal filed prior to entry of judgment is to be treated as being filed when judgment is entered.
If this were a case in which the attorney had, by inadvertence, failed to file a timely notice of appeal, we would grant the rule and forward the attorney’s name to the Committee on Professional Conduct under the authority of Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). This is not such a case.
In Harkness v. State, supra, we pointed out that if we did not grant a belated appeal in a case where a lawyer had inadvertently missed the 90-day deadline for docketing the record in a criminal case with this Court, the defendant would be able to obtain a new trial or belated appeal on the basis of ineffective assistance of counsel. In civil cases we routinely deny such motions, as there is no Sixth Amendment consideration.
In a per curiam order subsequent to the Harkness decision we outlined the procedure to govern in criminal cases when the appeal was untimely'without good reason. We said we would take the practical measure of allowing the appeal to be filed and would forward the name of the inadvertent counsel to the Committee on Professional Conduct. Here is the last paragraph of that per curiam order:
The controlling rule provides: “The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit." (Italics supplied.) Rules of Criminal Procedure, Rule 36.9. The purpose of the exception, to take care of hardship cases, is being disregarded, in that counsel tender out-of-time transcripts without a good reason for the delay. In order to put the responsibility where it belongs, on the shoulders of the lawyer who is at fault, hereafter when no good cause for the error is shown, the court will publish a per curiam order allowing the appeal, giving the name of the lawyer, and stating why no good reason has been shown for the omission. A copy of the order will be sent to the court’s Committee on Professional Conduct, to be kept in its files for the Committee’s information if any complaint of any kind should later be filed against that lawyer.
In this case there is, as Ark. R. Crim. P. 36.9 requires, a “good reason” for the failure to file the appeal. There has been some justifiable confusion about whether our decision in the Kelly case, which was civil in nature, applies to criminal appeals as well. This is not a case of inadvertence to which the Harkness decision and our explanatory per curiam order apply. Treating the motion as one for belated appeal pursuant to Rule 36.9, we find good reason to grant the motion.
Motion for belated appeal granted.
Holt, C.J., and Brown, J., dissent. | [
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John A. Fogleman, Chief Justice.
Appellant, Ray Rid-dick, was charged with arson and burglary arising from the allegation that he and one Leroy Dirlam burglarized and then set fire to the Circle Inn Restaurant in Manila, Arkansas on December 24, 1978. Dirlam died in the fire. The jury trial resulted in appellant’s acquittal for burglary and his conviction for arson. In accord with the jury verdict, appellant was sentenced to five years imprisonment. Riddick’s sole point on appeal is that his conviction should be set aside and he should be discharged because one who burns a structure at the request of the owner cannot be guilty of arson. Our arson statute provides:
(1) A person commits arson if he starts a fire or causes an explosion with the purpose of destroying or otherwise damaging:
(a) an occupiable structure that is the property of another person;
Ark. Star. Ann. § 41-1902 (Repl. 1977)
Appellant insists that since one of the elements of an arson conviction is that the property be that of another, an owner cannot be found guilty of arson in the burning of his own building; therefore, anyone who commits the offense at the owner’s request, as his agent, cannot be guilty of arson. To support his conviction appellant relies on a single Kansas case, State v. Cristendon, 205 Kan. 28, 468 P. 2d 153 (1970). In that case the owner of the burned structure had admitted hiring Christendon for the purpose of committing arson. The owner, himself, had been convicted of third degree arson and insurance arson. Christendon’s prosecution for first degree arson was dismissed by the trial judge on the grounds that as the. owner’s agent, Christendon could not be convicted of a higher crime than his principal. On the basis of the uncontroverted fact that Christendon was the owner’s agent in burning the structure, the Kansas Supreme Court affirmed. The facts in Christendon are easily distinguished from those involved here. There the owner had already been convicted and had admitted that Christendon was his agent, there was no question that Christendon was the owner’s agent; here, Frank Hamilton, the owner of the Circle Inn Restaurant, took the stand on rebuttal and emphatically denied soliciting either Riddick or Leroy Dirlam to burn his restaurant. Since it cannot be said that the owner’s participation is an uncontroverted fact, we cannot say that Christendon is controlling.
There was testimony presented by witnesses for the state, police officers who had investigated the scene, that not only was the Circle Inn fire of incendiary origin but that there was evidence that a burglery had taken place: Leroy Dirlam was found face down on the floor of the charred building, still clutching burnt checks; a cash register drawer lay nearby and money was scattered everywhere. The only evidence that Riddick had burned the restaurant at the owner’s instigation was the testimony of Everette Ercelle Duncan, appellant’s nephew. Duncan stated that appellant had come to him the night of the fire, badly burned on his hands and face and had asked Duncan to take him to Chicago. Duncan eventually took appellant to Bald Knob where appellant’s sister lived. During the drive, Duncan observed appellant throw some keys out the window of the moving car. Later appellant told Duncan the keys were given to him and Dirlam to get into the Circle Inn. After appellant had been admitted to the burn center at Baptist Hospital, Duncan visited him there. It was then appellant related that he had been hired, through his son-in-law Benny Murray, to burn the Circle Inn in Manila, Arkansas. Appellant never took the stand. There was no testimony from which a jury could find that Murray was authorized to act for Hamilton without speculation and conjecture.
The jury sitting as trier of fact, is often faced with conflicting accounts, either within the testimony of one witness or within the various statements of several witnesses. It is the jury’s role to weigh their credibility, assess the consistencies and inconsistencies, observe the witnesses as they testify and believe those parts of the testimony they believed to be true and disregard those they believed to be false. Rose v. State, 122 Ark. 509, 184 S.W. 60; Powell v. State, 149 Ark. 311, 232 S.W. 429; Houpt v. State, 249 Ark. 485, 459 S.W. 2d 565; Mumphrey v. State, 251 Ark. 25, 470 S.W. 2d 589; Henderson v. State, 255 Ark. 870, 503 S.W. 2d 889. We cannot say that it was error for the jury, on the evidence presented, to find that Riddick did intentionally burn the Circle Inn Restaurant, in concert with Leroy Dirlam and without the owner’s consent. It is interesting to note here that appellant, at trial, refused instructions on the lesser offenses of reckless burning and criminal mischief, limiting the jury to consideration of arson alone with reference to appellant’s participation in the fire. It was not unreasonable for the jury to find appellant guilty of arson.
In oral argument and in his motion for directed verdict, appellant advanced a theory that is ancillary to his contention that the jury necessarily found him guilty of burning the building as the agent of the owner. That theory was based upon the verdict acquitting him of the crime of burglary. The information on which appellant was tried contained two counts. In the first, Riddick was charged with burglary by entering the occupiable structure of Hamilton with the purpose of committing theft of property; in the second, he was charged with arson by starting a fire and/or causing an explosion with the purpose of destroying and damaging an occupiable structure. We are unable to follow this argument. The verdicts do not seem necessarily inconsistent to us, but, even if they are, appellant, having been acquitted of burglary, is in no position to complain, if the evidence supports the verdict on the arson count. Rooks v. State, 199 Ark. 1188, 136 S.W. 2d 481. In this case, the evidence was sufficient to warrant a conviction of both offenses, so appellant cannot complain of the jury’s extending him greater leniency than he was entitled to. Cook v. State, 80 Ark. 495, 97 S.W. 683. The two counts are, in effect, two independent charges and a verdict in one would not be res judicata as to the other, even though based upon the same evidence, so consistency in the verdicts is unnecessary. Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356, 80 ALR 161 (1932). As pointed out in Dunn, the verdict may have resulted from compromise or mistake on the part of the jury, but verdicts cannot be upset by speculation or inquiry into such matters.
The judgment is affirmed. | [
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David Newbern, Justice.
This case involves the Trial Court’s decision to grant the appellees, Wayne and Jane Ayres, a new trial on the ground of juror misconduct. The appellant, Arkansas State Highway Commission (the Commission), argues the Trial Court lost jurisdiction by failing to rule on the motion for new trial within 30 days after it was filed, as required by Ark. R. App. P. 4(c) (1991). The Commission is correct, thus we must reverse and dismiss.
The Commission filed a complaint against the Ayreses seeking to condemn a portion of their property to build a highway. On June 27,1991, a trial was held on the amount of compensation to be awarded for the taking. The jury returned a unanimous verdict finding the Ayreses were entitled to no compensation because the benefits of the highway exceeded any damages they might have suffered. Judgment was entered on the verdict on July 9, 1991.
The Ayreses filed a new trial motion on July 12, 1991. The Trial Court, by written order dated July 29,1991, took the motion under advisement. A hearing on the motion was held August 19, 1991, an order granting a new trial was entered September 5, 1991, well over 30 days from the date the motion was filed.
Rule 4(c)
Rule 4(c), as amended by our Per Curiam order effective March 14, 1988, provides in part that if a trial court neither grants nor denies a new trial motion within 30 days of its filing, the motion will be deemed denied as of the 30th day. We have interpreted this provision to mean a trial court loses jurisdiction if a motion for new trial is not decided within 30 days from its filing. Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992).
The amendment deleted the language in the older version of Rule 4(c) which concerned taking a motion under advisement or setting a hearing date within 30 days, thus requiring that a motion for new trial be deemed denied if neither granted nor denied within 30 days from its filling. When counsel for the Ayreses filed his motion for new trial on July 12, 1991, Rule 4(c) did not mention taking a motion under advisement or setting a hearing date within 30 days.
The Ayreses argue that, despite the change in the Rule, when their new trial motion was filed, the law was unclear whether setting a hearing date or taking the motion under advisement within 30 days from filing would satisfy the requirements of Rule 4(c). They contend their confusion was caused by two of our opinions. The first is Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991), which pre-dated the July 12th filing by approximately two months. In that case, there was no order deciding the new trial motion, taking it under advisement, or setting a hearing date within 30 days. Holding the Trial Court lacked jurisdiction, we wrote:
Though Rule 4(c) was somewhat different prior to the effective date of our Per Curiam of March 14,1988, which simplified its terms, it consistently has required the trial court to act in some form or fashion on new trial motions within thirty days of filing, and we have previously held that failure to act within that time frame results in loss of jurisdiction to grant the relief requested under the motion. We have further held that a decision by the trial court within the thirty days which is not entered of record fails to meet the dictates of Rule 4(c). (citations omitted).
The issue of whether taking a new trial motion under advisement or setting a hearing date within 30 days would satisfy the requirements of Rule 4(c) was not before us in the Phillips case. The clear implication, however, was that only a decision entered of record within 30 days will satisfy the requirements of Rule 4(c). An order taking a motion under advisement or setting a hearing date is not the equivalent of a “decision” of record.
The second opinion cited by the Ayreses is that of Deason v. Farmers & Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989). The Ayreses argue that in the Deason case we continued to discuss taking a new trial motion under advisement or setting a hearing date within 30 days even though our current Rule 4(c) had been adopted at the time of the decision. The Ayreses are in part correct in their assertions. The Deason case did contain references to the older version of the Rule despite the fact that the newer version was adopted over a year before the opinion was delivered. However, in 1985, when the original complaint in the Deason case was filed, the older version of Rule 4(c) was still in effect. The current version of Rule 4(c) was adopted approximately two and a half months before the final judgment was entered and the new trial motion was filed. On appeal, neither party raised the issue regarding the change in the Rule which had occurred after the filing of the complaint but before the entry of judgment and the filing of the motion for new trial.
We agree with the Ayreses counsel that the opinion in the Deason case could have been misleading and that we may have been remiss in failing to mention the Rule change despite the fact that it was not argued and might or might not have affected the outcome there. In view, however, of the clarity of the change in the Rule 4(c) and its undoubted applicability to this case, we have no choice but to reverse the Trial Court’s order granting a new trial.
Reversed and dismissed.
Glaze, J., concurs.
Hays and Corbin, JJ., dissent. | [
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Tom Glaze, Justice.
Appellant has been tried three times for the capital murder of Willa Dean O’Neal. Appellant’s first trial ended in a mistrial. In the second trial, he was convicted of capital murder and received the death penalty. We affirmed his conviction and death penalty sentence in Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983). Appellant then sought and received a writ of habeas corpus from the federal court. Henderson v. Sargent, 926 F.2d 706 (8th Cir. 1991). The state retried the appellant, and he was again convicted of capital murder and received the death penalty. Appellant appeals to this court from his second conviction raising seven points of error. We affirm.
At approximately 2:00 p.m. on November 24, 1981, Willa O’Neal was found murdered in the furniture store she owned with her husband. The store’s cash register was found opened and money was missing. The police had the following evidence against the appellant. Appellant fled to Houston when he found out he was a murder suspect. While he was incarcerated in Houston, he gave a statement saying that, while he was in the store at the time of the shooting, Ollie Brown was the triggerman. At the crime scene, the police found a piece of paper which showed a floor plan of a rental property and the phone number for the real estate agent. Appellant had been seen with this piece of paper a few days prior to the murder and had contacted the real estate agent and set up an appointment to see the property. Further, a few days before the murder, appellant had removed a .22 caliber pistol from a pawn shop and repawned that same pistol a few days after the murder. A .22 caliber pistol was the murder weapon, but ballistic experts could not eliminate nor positively identify appellant’s pistol as the murder weapon.
In his first issue, the appellant argues that the trial court erred in denying his motion to suppress his in-custody statement. We first note that the state argues that we should dismiss this argument under the doctrine of law of the case because the appellant raised this issue in the first appeal. The doctrine of law of the case prevents an issue raised in the first appeal from being raised in the second appeal, unless the evidence materially varies between the two appeals. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). The law of the case doctrine is not applicable here, because the appellant argues for the first time that his statement should be suppressed because of mental illness.
Appellant introduced testimony from two psychiatrists that the appellant had a prior history of mental illness and was diagnosed in 1962 as being schizophrenic. The State Hospital examined the appellant in 1981, the year he gave his statement to the police, and found no indication of psychosis.
In considering a motion to suppress an in-custody statement, this court makes an independent determination of the voluntariness of a confession, but does not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. See Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990). In determining whether a statement is voluntary, this court considers the following factors: age of the accused, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Id.
Applying these factors to the facts of the present case, the appellant was thirty-eight at the time of the statement. He was incarcerated for two days in the Houston jail before the Fort Smith police officers arrived to question him. Captain Larry Hammond testified that the appellant signed the rights waiver, appeared to understand his rights and told the officers he would talk without a lawyer present. Further, appellant’s own witness, Dr. Showalter, testified that the appellant was not retarded and had a basic level of intelligence. Based on these factors, we cannot say that the appellant’s statement was not voluntary. While the appellant’s witnesses established that he had a prior history of mental illness in 1962, the State Hospital examined the appellant around the time of the murder and the giving of his statement in 1981 and found no evidence of psychosis. Appellant’s own witness admitted that, while the appellant was diagnosed as being schizophrenic in 1962, those symptoms could have “burned itself out” by the time the appellant was examined in 1981. Lastly, we note that the appellant argues that Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), is controlling on this case. In Mauppin, the appellant had a self-inflicted gunshot wound to his head and had undergone brain surgery. The State Hospital found that Mauppin was unaware of the charges and proceedings against him. Clearly, the facts in the present case are distinguishable from Mauppin.
In the second issue, the appellant argues that the trial court erred in allowing the state to introduce into evidence a prior consistent statement of a rebuttal witness. Appellant’s trial strategy was to point the finger at the victim’s husband, Bob O’Neal. Evidence was presented to the jury showing that Bob was the last person to see the victim alive when he returned to the store to eat lunch. The state called Clarence Wilson as a rebuttal witness. Mr. Wilson testified that he saw the victim after 1:00 p.m., and at that time the victim told him that her husband had just been there for lunch but had returned to the job site. On cross-examination, the appellant established that Mr. Wilson did not testify to this fact in the federal habeas corpus proceeding. On redirect, the trial court allowed the state to use a prior consistent statement that Mr. Wilson had told the police that when he last saw the victim she told him that her husband had just left.
Ordinarily, evidence of prior consistent statements is not admissible to bolster credibility because it is hearsay. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984). However, A.R.E. Rule 801(d)(l)(ii) provides for the following exemption:
A statement is not hearsay if:
(1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive,
This court has stated that when there is an express or implied charge that a witness has fabricated a statement that he is now making under oath, it is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). Such is the situation in the present case.
In the third issue, the appellant argues that the trial court erred in denying his motion for a continuance between the guilty and penalty phase of the trial. The jury returned with its verdict after 5:00 p.m., and the appellant’s attorney requested a continuance of the penalty phase of the trial until the next morning. Appellant’s attorney argued that his client was not in the frame of mind to get ready for the penalty phase of the trial. The prosecution strongly opposed the continuance noting that the alternate jurors had already been dismissed and the problem of possible juror contamination.
Appellant argues in his brief that he was prejudiced by the trial court’s denial of his motion for a continuance, because the appellant did not take the witness stand. Appellant’s attorney argues here that he was prejudiced because it was imperative for the jury to get an opportunity to meet him as a human being, and that if he had been given an overnight continuance he could have convinced the appellant to testify. Further, the appellant argues that when appellant’s mother took the stand, she criticized the jurors for their verdict because she was upset.
Whether to grant a continuance is addressed to the sound discretion of the trial court, and this court will not reverse unless the trial court’s discretion has been abused. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). The burden is on the appellant to show that there has been an abuse of the trial court’s discretion in denying the continuance. Id.
Under the facts of this case, we cannot say that the trial court abused its discretion. The appellant’s attorney had represented the appellant for two years. As the state argues, this is ample time to prepare for one’s strategy. Further, since the appellant had already once been convicted for this murder, we fail to see how he could be so shocked and surprised at the verdict that he could not cooperate with his attorney in his defense at the penalty phase. On the other hand, appellant’s choice not to testify and use that as the reason to request a continuance places him in the position to manipulate the court. This is especially true here since appellant’s attorney failed to proffer any testimony from the appellant, nor can we be sure that he would have taken the stand if he had been given a continuance.
Appellant attacks the constitutionality of the death penalty statute, Ark. Code Ann. § 5-4-603 (Supp. 1991), by arguing in his fourth point, that the statute requires a mandatory death sentence, is arbitrary and capricious and provides for no mandatory appeal. We summarily dismiss this argument by noting that this court has previously addressed and rejected these constitutional challenges to the death penalty statute. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991).
We can also summarily dismiss the appellant’s fifth and sixth points. In appellant’s fifth point, he argues that he must be charged by a grand jury instead of an information. This court has repeatedly rejected this argument. See, e.g., Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989). Next, the appellant argues that the trial court erred in not granting his motion to argue first and last in the penalty phase. We have held that the prosecutor has the right to close argument in the penalty phase because the state has the burden of proof. Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987).
In his final argument, the appellant argues that this court should set aside his death sentence upon comparative review. In conducting a comparative review of death penalty cases, this court considers the following things: 1) whether the sentence was the result of passion, prejudice, or any arbitrary factor; 2) whether the evidence supports the jury’s finding of any statutory aggravating circumstances; 3) whether the evidence supports the jury’s findings on the question of whether the mitigating circumstances outweigh aggravating ones; and 4) whether the sentence is excessive.
The jury found two aggravating circumstances in the present case: appellant previously committed another felony of which an element is a threat of violence to another person, created a substantial risk of death or serious physical injury to another person; and the capital murder was committed for pecuniary gain. The jury, unanimously, did not find any mitigating factors.
In applying the factors set out above, we do not find that the'jury’s verdict was the result of passion, prejudice or any other arbitrary factor. We find such a holding consistent with other death penalty cases, where the death penalty was given for murders committed during robberies. See Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986).
For the reasons stated above, we affirm. The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error. | [
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Donald L. Corbin, Justice.
Oscar Jones and Jerry Post were appointed counsel for William Thomas Reager, an indigent charged with capital murder. As a result of their representation, Mr. Reager was found not guilty and the charges were dismissed. This appeal concerns the allocation of responsibility for Mr. Jones’ fees and expenses between the state and Independence County. Mr. Post’s fees and expenses are not before us because the county failed to appeal in a timely manner. In response to Mr. Jones’ Motion for Certification of Attorney’s Fees and Expenses, Special Judge Watson Villines certified an award to Mr. Jones of $22,986.00 in attorney’s fees as just compensation and $602.85 for reimbursable expenses. The propriety of the award has not been challenged. Judge Villines also determined that the county was liable for payment of $450.00 of Mr. Jones’ award and the state was liable for the remainder under Ark. Code Ann. § 16-92-108 (1987) and § 14-20-102 (Supp. 1991). On appeal, the state argues that under Ark. Code Ann. § 14-20-102, the county is responsible for payment of all indigent defense fees. Alternatively, the state argues that the state should, at most, be required to pay six hundred and fifty dollars ($650.00) under Ark. Code Ann. § 16-92-108. According to the state, our decision in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), made the meaning and application of section 16-92-108(c) ambiguous and we should therefore interpret section 16-92-108 in accordance with the intent of the legislature. The state contends that it has been the longstanding practice of the legislature to require the counties to bear the burden of financing the administration of criminal justice in the state. According to the state, by enacting section 16-92-108 the legislative intent was for the state to assist the counties, leaving primary financial responsibility with the counties, in cases where the indigent was charged with capital murder or murder in the first degree, but even then the intent was not for the state to ever pay more than six hundred and fifty dollars ($650.00) in any one case.
This case requires us to interpret section 16-92-108, and section 14-20-102. Our jurisdiction is therefore proper pursuant to Ark. Sup. Ct. R. 29(1)(c).
Section 16-92-108 provides:
(a) Whenever legal counsel is appointed by any court of this state to represent indigent persons accused of crimes, whether misdemeanors or felonies, the court shall determine the amount of the fee to be paid to the attorney and an amount for a reasonable and adequate investigation of the charges made against the indigent and shall issue an order for the payment thereof.
(b) (1) The amount allowed for investigation expenses shall not exceed one hundred dollars ($100), and the amount of the attorney’s fee shall be not less than twenty-five dollars ($25.00) nor more than three hundred fifty dollars ($350.00).
(2) The amount of attorney’s fees for attorneys who defend indigents accused of capital murder or murder in the first degree shall be not more than one thousand dollars ($1,000).
(3) The attorney’s fees provided for by this section shall be based upon the experience of the attorney and the time and effort devoted by him in the preparation and trial of the indigent, commensurate with fees paid other attorneys in the community for similar services.
(c) (1) Upon being furnished an order of the court fixing the fees, the quorum court of the county in which the indigent was charged shall appropriate from the county general fund adequate funds to pay the fees, not to exceed the amount of three hundred fifty dollars ($350) for the attorney’s fees nor one hundred dollars ($100) for investí gation expenses, and the county treasurer shall disburse the fees to the appointed attorney.
(2) The balance not paid by the counties shall be paid by the state from the Trial Expense Assistance Fund created by § 16-92-109.
(d) An attorney shall not be so appointed by a court if the attorney certifies to the court, in writing, that he or she has not attended or taken a prescribed course in criminal law in an accredited school of law within twenty-five (25) years prior to the date of appointment, that the attorney does not hold himself or herself out to the public as a criminal lawyer, and that he or she does not regularly engage in the practice of criminal law.
Section 14-20-102 provides:
(a)(1) The quorum court of any county included within the judicial districts of the State of Arkansas, by appropriate county legislation, may provide for the creation of a fund to be used for the purpose of paying reasonable and necessary costs incurred in the defense of indigent persons accused of criminal offenses and in the defense of indigent persons against whom involuntary commitment procedures for insanity or alcoholism have been brought, and for representation in civil and criminal matters of persons deemed incompetent by the court due to minority or mental incapacity, which have been brought in any circuit courts, chancery courts, juvenile courts, probate courts, city or county division of municipal courts including, but not limited to, investigative expenses, expert witness fees, and legal fees.
(2) Any municipal body in a county where the quorum court has not created such a fund applicable to the city division of the municipal court may provide for the creation of a fund to be used in the city division of the municipal court.
(3) Where there are adequate unappropriated moneys in this fund, the quorum court may also provide for the use of the funds for the purpose of defraying the cost of the juvenile division of chancery court.
(4) Where there are adequate unappropriated moneys in this fund, the quorum court may also provide for the use of the funds for the purpose of defraying the cost of the medical and dental costs incurred by the county for indigent defendants incarcerated in the county jail.
(b) (1) [As amended by Acts 1991, No. 1003, § 1.] Any quorum court desiring to establish such a fund shall have the authority to provide for the payment of a fee, not to exceed the sum of five dollars ($5.00), to be taxed as costs in each matter, civil or criminal, filed in any circuit, chancery, probate, city or county division municipal court within the county. However, no such fees shall be taxed as costs in any action filed in any small claims court.
(2) The quorum court is authorized to supplement the fund by additional appropriations from the county general fund, and expenditures from such fund shall be made in the manner and amounts prescribed by the quorum court desiring to enact such legislation.
(c) The provisions of § 16-92-108 and other laws relating to the amount of attorney fees and costs that may be paid in the defense of indigents charged with criminal offenses and in the defense of persons against whom involuntary commitment proceedings are sought for insanity or alcoholism shall not be applicable in any county in which the quorum court establishes a fund under this section and levies additional costs or fees to finance such fund.
(d) In any county where a public defender commission has been established under §§ 16-87-101 — 16-87-111, the amount to be paid for attorney fees, investigative costs, and other costs under subdivision (a)(1) of this section shall be determined in a manner prescribed by the quorum court acting with the advisory resolution of the public defender commission.
(e) The provisions of this section and § 16-92-108 relating to the amount or payment of attorney fees and costs that may be paid in the defense of persons against whom involuntary commitment proceedings are sought for insanity or alcoholism shall not be applicable in any instance in which the State of Arkansas, acting through its administrative agencies, departments, or divisions, provides for payment of attorney fees or costs which would otherwise be paid by the county.
We find that we must first address the effect of our decision in Arnold v. Kemp on section 16-92-108 before we can decide whether Independence County is liable for payment of the attorney fees since it has established an Indigent Defense Fund pursuant to section 14-20-102.
In Kemp, we declared the fee caps contained in section 16-92-108 unconstitutional. Prior to Kemp, section 16-92-108(b) provided that investigation expenses could “not exceed one hundred dollars ($100)” and attorney’s fees were limited to “not less than twenty-five dollars ($25.00) nor more than three hundred fifty dollars ($350)”, except in cases where the defendant was accused of capital murder or murder in the first degree, where the attorney’s fees was limited to “not more than one thousand dollars ($1,000).” We did not address the provisions of section 16-92-108 concerning responsibility for payment of the fees in Kemp. Under section 16-92-108(c)(l), the county is required to pay up to three hundred and fifty dollars ($350.00) for attorneys fees and one hundred dollars ($100.00) for investigation expenses out of its county general fund. The balance is paid by the state from the Trial Expense Assistance Fund. Ark. Code Ann. § 16-92-108(c)(2). “[I]t is well settled that where a statute or code provision is unconstitutional in part, the valid portion of the act will be sustained if complete in itself and capable of execution in accordance with apparent legislative intent.” Hutton v. Savage, 298 Ark. 256, 266, 769 S.W.2d 394, 399 (1989). In Kemp, we indicated that only the fee cap sections of section 16-92-108 were unconstitutional. The other sections were not affected by our decision. After further consideration, we find that our decision in Kemp that the fee caps contained in section 16-92-108 are unconstitutional requires us to invalidate the entire statute because the sections of the statute are not severable. It was clearly the intent of the legislature to enact the statute as a whole. The sections of the statute are interwoven and the entire statute revolved around the fee caps. Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). Our decision in Kemp eliminat ing the fee caps contained in the statute requires us to invalidate the entire statute because the fee caps were an integral part of the system set out by the legislature in the statute to allocate responsibility between the county and the state for payment of defense attorney fees.
Since we find that section 16-92-108 must be invalidated, we next turn to section 14-20-102 to see whether it provides any guidance. Independence County has established a fund pursuant to section 14-20-102 to help pay for the costs incurred in the defense of indigent persons. Because Independence County has established a fund, the state contends it is not responsible for payment of any of the attorney’s fees or investigation costs at issue in this case. Section 14-20-102(a) authorizes a county to establish an Indigents’ Defense Fund. Section 14-20- 102(b) governs how an Indigents’ Defense Fund is to be funded and how expenditures are to be made once such a fund is established. Section 14-20-102(b) provides:
(b)(1) Any quorum court desiring to establish such a fund shall have the authority to provide for the payment of a fee, not to exceed the sum of five dollars ($5.00), to be taxed as costs in each matter, civil or criminal, filed in any circuit, chancery, probate, city or county division municipal court within the county. However, no such fees shall be taxed as costs in any action filed in any small claims court.
(2) The quorum court is authorized to supplement the fund by additional appropriations from the county general fund, and expenditures from such fund shall be made in the manner and amounts prescribed by the quorum court desiring to enact such legislation.
Therefore, according to section 14-20-102(b)(2), we look to see what procedure the Quorum Court of Independence County has established for making expenditures from its funds to determine if Independence County must pay the fees and expenses at issue. The Quorum Court of Independence County enacted Ordinance No. 419-86, which established Independence County’s Indigents’ Defense Costs Fund. This Ordinance contains the funding and expenditure procedures for the Indigents’ Defense Fund. This Ordinance provides:
SECTION 1. Under the provisions of Act 695 of the 1983 Arkansas Legislative Session, there is hereby authorized an Indi gent s’ Defense Costs Fund which will be used to defray the allowable costs incurred in the defense and trial of indigents in this county and for indigents in this County against whom involuntary commitments for insanity or alcoholism are sought.
SECTION 2. A. Effective on passage and approval of this Ordinance, the Chancery, Circuit and Probate Clerks are hereby authorized and directed to add the sum of Five Dollars ($5.00) to the filing fees and costs for all cases, civil or criminal, filed in these Courts.
B. Fees so collected are to be paid to the Independence County Treasurer by the twenty-fifth day of the following month and the Treasurer will create and maintain an account with these fees which will be entitled the Indigents’ Defense Costs Fund.
C. All payments out of the Indigents’ Defense Costs Fund will be for the payment of indigent expenses to include, but not limited to, attorney’s fees, expert witnesses fees, investigation and other reasonably necessary costs incurred in the defense and trial of indigent persons in any Court in which the fees listed above are collectable.
SECTION 3. A. Attorneys appointed to represent indigents are required to keep an accurate, detailed accounting of the amount of time and nature of their services and their expenses for each case with expenses being defined as meaning any expenditure other than witness fees and investigator fees.
B. Prior to obtaining the services of any investigator or expert witness, the attorney will secure the written approval of their services and fees from the Court in which the matter is pending.
C. At the conclusion of the case involving the indigent, or at such other times as shall be appropriate, the attorney will submit his time and expense schedule along with the expenses incurred by any expert witness or investigator to the Court hearing the matter.
SECTION 4. A. The amount allowed for investigation expenses and for expert witness fees together shall not exceed One Hundred Dollars ($100.00) and the amount of the attorney’s fees and expenses shall not be less than Twenty-Five Dollars ($25.00) nor more than Three Hundred and Fifty Dollars ($350.00), based upon the experience of the attorney and the time and effort devoted and the expenses incurred by him in the preparation and trial of the indigent.
B. In any event, no more than Four Hundred and Fifty Dollars ($450.00) for all fees and expenses and costs shall be paid from the Indigents’ Defense Costs Fund, for any single indigent on any one (1) case pending against such indigent person.
C. No costs incurred prior to the passage of this ordinance shall be paid from the Indigents’ Defense Costs Fund.
SECTION 5. Upon being presented with such schedule as set out in Section 3(C) above, the Court shall determine the amount of fee and expenses to be paid to the attorney and an amount for a reasonable and adequate investigation of charges made against the indigent and a reasonable amount for expert witness fee, and issue' an order for the payment thereof.
SECTION 6. Upon being furnished with copy of the Court’s order for payment of the aforementioned fees and expenses, the County Judge shall review the order and, subject to his approval, the County Treasurer shall disburse such fees to the appropriate parties.
The provisions of the fund limit the amounts that may be paid for any single indigent on any one (1) case to four hundred and fifty dollars ($450.00). This limitation is invalid under our decision in Kemp. The provisions of Independence County Ordinance No. 419-86 concerning the payment of attorney’s fees and costs for indigent defendants are substantially similar to the provisions providing for payment of indigent defense fees and costs contained in section 16-92-108. The fee caps contained in Independence County Ordinance No. 419-86 are an integral part of the Ordinance just as the fees caps contained in Ark. Code Ann. § 16-92-108 were an integral part of that statute. Having previously determined that the invalidation of the fee caps in section 16-92-108 by Kemp required that we invalidate the entire statute since the fee caps were an integral part of the statute and were not severable, we must similarly determine that our invalidation of the fee caps contained in Independence County Ordinance No. 419-86 requires us to invalidate the entire ordinance.
This leaves us with no provisions requiring the county to pay defense attorney fees of counsel appointed to defend indigent defendants. In the absence of statutory requirements we must look to the Constitution of the United States and the State of Arkansas to determine who is responsible for payment of indigent defense fees in Arkansas. The United States Constitution mandates that states appoint counsel for indigent defendants. Gideon v. Wainwright, 372 U.S. 335 (1963). The Constitution of the State of Arkansas requires the court to appoint counsel for indigent defendants. Therman v. State, 205 Ark. 376, 168 S.W.2d 833 (1943); Ark. Const, art. II, § 10. While attorneys in Arkansas have been appointed to defend indigent defendants since our current constitution was adopted in 1874, they were not compensated for their services to indigent defendants until 1953. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978). At that time, the legislature delegated the responsibility of payment of indigent defense fees to the counties by statute. See Ark. Stat. Ann. § 43-2415, -2416 (Repl. 1964). Since that time, several statutes have been enacted by the legislature requiring the counties to pay indigent defense fees. It was not until 1985 that the legislature placed partial responsibility for payment of indigent defense fees on the state. Ark. Code Ann. § 16-92-108. But, now that we have determined that our decision in Kemp requires us to invalidate section 16-92-108 and Independence County’s Indigents’ Defense Costs Fund, there remains no statutory authority for placing the payment of Mr. Jones’ fees on the county. However, we have recently held that appointment of counsel in criminal cases results in a taking of the appointed counsel’s property for which he must be justly compensated, so even though there exists no statutory authority for awarding attorneys fees and expenses to counsel who represent indigent defendants, it is constitutionally required. Kemp, 306 Ark. 294, 813 S.W.2d 770. As we have recognized before, the “statute imposes a burden upon the count [y] to pay fees to attorneys representing indigents which the count [y] would not be responsible for otherwise.” State v. Conley, 270 Ark. 139, 141, 603 S.W.2d 415, 416 (1980). Payment of fees to attorneys representing indigents is a responsibility of the state which the legislature had delegated to the counties by statute. Since there no longer is a statute delegating this duty to Independence County, the state is responsible for payment of Mr. Jones’ fees and expenses.
The portion of the trial court’s order assessing responsibility for the payment of $450.00 of Mr. Jones’ award to the county and the remainder to the state is modified to place full responsibility for payment of the award to Mr. Jones on the state.
Affirmed as modified and remanded for further proceedings consistent with this opinion.
Holt, C.J. and Brown, J., concur.
Dudley, Hays, and Newbern, JJ., dissent. | [
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Robert H. Dudley, Justice.
Cathryn Chadwick Yates, appellant, and Floyd and Vanessa Sturgis, appellees, own adjoin ing tracts of land inside the City of Arkadelphia. Appellant Yates alleges that part of her tract is landlocked, or, in other words, blocked from the nearest city street by the appellees’ tract. She filed a petition in the County Court of Clark County, pursuant to Ark. Code Ann. § 27-66-401 (1987), to establish a private road across appellees’ tract. The county court held that it was without jurisdiction to open a private road within the city limits and dismissed the petition. Appellant appealed to the circuit court. The circuit court affirmed the ruling of the county court and held that the City Council and the City Planning Commission were the sole authorities authorized to open streets within a city. We have taken jurisdiction of this case of first impression and reverse and remand.
Article 7, section 28 of the present Constitution of Arkansas, in the material part, provides: “The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries,. . . .” (Emphasis added.) Our earlier state constitutions also placed jurisdiction of county roads under the county court. See, e.g,, Ark. Const, of 1836, art. VI, § 9; Roberts v. Williams, 15 Ark. 43 (1854). In Sanderson v. Texarkana, 103 Ark. 529, 146 S.W. 105 (1912), we said that the above-quoted provision in the current constitution gives the county court jurisdiction over all public roads in the county and that means the county court also has jurisdiction over streets within a city. We wrote: “The streets of a municipality are public roads of the county, of which the municipality is a component part. While streets do not include roads, yet roads do include streets.” Id. at 533, 146 S.W. at 107.
As implementing legislation to a prior constitution, the General Assembly, in 1871, provided that the county court may exercise the power of eminent domain to allow access to a landlocked tract. The statute, Ark. Code Ann. § 27-66-401 (1987), in the material part, provides:
When the lands ... of any owner [are] so situated as to render it necessary to have a private road from such lands . . . over the lands of any other person and the other person refuses to allow that owner the private road, then it shall be the duty of the county court ... [to determine whether such a private road is necessary and, if it is necessary, to exercise the power of eminent domain at the expense of the person seeking the road].
Throughout the years we have construed our present state constitution and the above-quoted statute to give the county court the power of eminent domain to allow access to landlocked tracts. See, e.g., Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983); Bowden v. Oates, 248 Ark. 577, 452 S.W.2d 831 (1970); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906). Before 1871, the precursor statute, Chapter 140, section 62 of The Digest of the Statutes of Arkansas of 1846, provided, “Any person desirous of having a wagon road laid out, for his convenience, from the dwelling house... of such person, to any public road . . . shall present a petition to the county court. . . .” Correspondingly, we held that this precursor statute, in implementation of the earlier constitutions, also authorized the county court to exercise the power of eminent domain to open roads to landlocked areas. Roberts v. Williams, 15 Ark. 43 (1854).
Article 2, section 23 of the state constitution provides, “The State’s ancient right of eminent domain ... is herein fully and expressly conceded,” and we have held that the procedure for exercising the power is a matter of legislative regulation. Cannon v. Felsenthal, 180 Ark. 1075, 24 S.W.2d 856 (1930). In sum, the General Assembly was within its province in authorizing the county court to exercise the power of eminent domain to give access to landlocked tracts, and it clearly did so in Ark. Code Ann. § 27-66-401 (1987).
At the same time, Article 12, section 3 empowers the General Assembly to provide for the organization of cities and towns, and the General Assembly may confer on cities and towns the power and supervision of streets within their boundaries. Sanderson v. Texarkana, 103 Ark. 529, 146 S.W. 105 (1912). The first legislature that assembled after the adoption of the present constitution enacted the statute codified as Ark. Code Ann. § 14-301-101 (1987), which provides that the city council shall: “(1) Have the care, supervision, and control of all the public highways, bridges, streets, alleys, public squares, and commons within the city; and (2) Cause those public highways, bridges, streets, alleys, public squares, and commons to be kept open and in repair, and free from nuisance.”
In this case both the county court and the circuit court held that Ark. Code Ann. § 14-301-101 (1987), quoted above, divested the county court of jurisdiction to open roadways to landlocked tracts located within city limits.
One of the chief objectives of incorporating a municipality is to give the executive and legislative branches of the municipality control and supervision over the streets within the municipal limits and to charge those branches of municipal government with the duty to plan and keep and maintain the streets in suitable and safe condition. Neither the constitution nor the applicable statutes contemplate both the county court and the municipality having the executive and legislative control and supervision over the streets within the city. Sanderson v. Texarkana. Clearly, the control and supervision of streets within the municipality is given to the executive and legislative branches of the municipality. No street within the city may be dedicated to the city until accepted and confirmed by a municipal ordinance specially passed for that purpose. Ark. Code Ann. § 14-301-102 (1987).
However, the statute giving the executive and legislative branches of the municipality supervision and control of the streets has not taken jurisdiction from the county court for three distinct reasons. First, the constitution gives jurisdiction to the county court. An act of the legislature could not change that jurisdiction. Second, no other court is given jurisdiction by the constitution to exercise the power of eminent domain in cases such as the one at bar. Under the trial court’s ruling a person inside the city would not have any judicial relief, while a person outside the city would. Neither the constitution nor the statutes contemplate such a denial of equal protection. Article 7, section 28 provides, “The county courts shall have exclusive original jurisdiction in all matters relating to county . . . roads. ...” (Emphasis added.) The applicable statute, Ark. Code Ann. § 27-66-401 (1987), gives the county court the power of eminent domain to crea te a road, “[w] hen the lands. . .of any owner is so situated.” (Emphasis added.) Neither the constitution nor the statute limit applicability of the proceeding to the unincorporated geographic area of the county. Third, there is no real conflict between the county court’s jurisdiction to exercise the power of eminent domain to give the owner of a landlocked tract a private roadway out of his land and a statute giving municipalities the control and supervision of city streets. Section 27-66-401 of the Arkansas Code Annotated of 1987 authorizes the county to establish a “private” road out of the landlocked tract, and, while it may be a public road in the sense that anyone who has occasion to use the road may do so, Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), it is still a private road, and the individual who petitions county court for the establishment of a private road out of a landlocked tract is responsible for the maintenance of that private road. Carter v. Bates, 142 Ark. 417, 218 S.W. 838 (1920). Quite differently, a city does not have to accept the control and supervision and concurrent cost of maintenance of a city street unless it chooses to do so. See Ark. Code Ann. § 14-301-102 (1987).
The circuit court also held that it would amount to a violation of the separation of powers doctrine to allow the county court to exercise jurisdiction within the city. We summarily dispose of the contention by reciting that the constitution gives the county “exclusive original jurisdiction” of county roads. In Road Improvement District No. 1 v. Glover, 89 Ark. 513, 117 S.W. 544 (1909), we clearly affirmed the plain language in the constitution relative to the exclusive jurisdiction of the county court over roads. There simply is no violation of the separation of powers doctrine.
The circuit court also held that the petition in this case amounted to an unconstitutional use of the power of eminent domain. While we have held to the contrary, Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), we do not address the issue. The county court held that it did not have jurisdiction to hear the case, and the circuit court affirmed that holding. Therefore, the trial court never determined the merits of the use of the power of eminent domain, and we will not do so in an advisory capacity.
Reversed and remanded for proceedings consistent with opinion.
Glaze, Corbin, & Brown, JJ., dissent.
Robert L. Brown, Justice. The majority opinion holds that county judges can open roads within the city limits of an incorporated municipality without city permission or even city involvement. I disagree that that is the law.
There is no doubt that the 1874 Arkansas Constitution gave county courts exclusive original jurisdiction over county roads. Ark. Const, art. 7, § 28. In addition, four years prior to the adoption of the 1874 Constitution, the General Assembly enacted Act 26 of 1871, now codified as Ark. Code Ann. § 27-66-401 (1987), which provided that county courts could authorize private roads for landlocked persons to run over the lands of others in order to access public roads. Subsequent case law by this court, however, made it clear that Act 26, though referencing private roads, in actuality empowered county courts to establish public roads because anyone who had occasion to use the roads might do so. Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983); Bowden v. Oates, 248 Ark. 577, 452 S.W.2d 831 (1970); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Pippin v. May, 78 Ark. 18, 93 S.W.2d 64 (1906).
One year after the adoption of the 1874 Constitution, the General Assembly enacted Act 1, which endowed the cities with authority to open streets within their boundaries. Act 1 of 1875, §§ 18 and 30, now codified as Ark. Code Ann. §§ 14-54-601 (1), 14-301-104 (1987). The exclusive power of the cities to open their streets has remained inviolate for over a century. Indeed, this Court long ago recognized the superior power of the cities to operate within their boundaries. See Sanderson v. Texarkana, 103 Ark. 529, 146 S.W.2d 105 (1912). The majority cites Sanderson for the proposition that city streets are public roads of the county. Carried to its logical conclusion, this means that county courts could assert exclusive jurisdiction over city streets at any time under Article 7, § 28. Such a conclusion would render horrendous results.
In Sanderson, we clarified the role of the city and the county with respect to public roads:
It is hardly to be supposed that it was the intention of any enactment, either of the Constitution or of the Legislature, to authorize two agencies with co-ordinate power to have control and supervision over the streets of a city when the effect might be to enable each to thwart the other and to play at cross purposes. And so the first Legislature that assembled after the adoption of the Constitution granted to municipal councils the power to lay out, open, establish, improve and keep in repair the streets within their corporate limits. Kirby’s Digest, § 5456. By virtue of the constitutional provision authorizing the organization of municipal corporations by the Legislature, and the immediate legislation had thereafter, the supervision over public highways or streets within cities and towns was confided to the authorities of the municipalities, and by the constitutional provisions of section 28, article 7, and legislative enactments thereunder, the jurisdiction over highways or the roads in the county outside of municipalities was confided to the county court. Both the streets in municipalities and the highways outside of them are public roads. . . .
103 Ark. at 534, 146 S.W.2d at 107. We thus stated that the Arkansas Constitution (and specifically Article 12, § 3) gave the General Assembly the authority to open public roads inside the city, and the county retained that authority in unincorporated areas. The jurisdictional lines appeared clear until this decision.
Now this Court has taken the position that county judges may open public roads within city limits under the authority of Act 26 of 1871 and Article 7, section 28, of the Arkansas Constitution. The majority concludes in this fashion in the face of the municipal street legislation enacted as part of Act 1 of 1875 under the authority of Article 12, § 3 of the Arkansas Constitution, and despite the fact that there has been no case in this court over the past one-hundred eighteen years where the county courts attempted to exercise such an extraordinary power.
The cases, and they are legion, have all concerned the opening of roads for landlocked persons in rural areas and unincorporated parts of the county. See Bean v. Nelson, 307 Ark. 24, 817 S.W.2d 415 (1991) [adjacent 40-acre tracts of land]; Attaway v. Davis, 288 Ark. 478, 707 S.W.2d 302 (1986) [12-acre tract]; Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983) [Mayflower School District]; Dowling v. Erickson, supra, [appellant’s land completely surrounded by appellee’s land]; Ahrins v. Harris, 250 Ark. 938, 468 S.W.2d 236 (1971) [7-acre and 172-acre tracts near Palarm Creek in Faulkner County]; Bowden v. Oates, supra, [land near county road in Pope County]; Riggs v. Bert, 245 Ark. 515, 432 S.W.2d 852 (1968) [best use of land for grazing cattle]; Armstrong v. Cook, 243 Ark. 230, 419 S.W.2d 308 (1967) [adjoining farm lands]; McVay v. Stupenti, supra, [lands along a drainage canal west of Marion]; White v. Grimmett, 223 Ark. 237, 265 S.W.2d 1 (1954) [outlying lands in Pulaski County]; St. Louis-San Francisco Ry. Co. v. Logue, 216 Ark. 64, 224 S.W. 2d 42 (1949) [property “near Fayetteville”]; Parrott v. Fullerton, 209 Ark. 1018, 193 S.W.2d 654 (1946) [two adjacent 40-acre tracts of land]; Roth v. Dale, 206 Ark. 735, 177 S.W.2d 179 (1944) [40-acre tracts]; Mohr v. Mayberry, 192 Ark. 324, 90 S.W.2d 963 (1936) [private road sought across 9-acre farm to connect 30-acre farm with Highway 27 near Mt. Ida]; Houston v. Hanby, 149 Ark. 486, 218 S.W. 838 (1921) [small farm in Madison County]; Carter v. Bates, 142 Ark. 417, 218 S.W. 838 (1920) [proposed road ran through field that was valuable for cultivation]; Pippin v. May, supra, [80 acres in St. Francis County]; see also Powell v. Miller, 30 Ark. App. 157, 785 S.W.2d 37 (1990) [25-acre tract ofland in Washington County]. Two additional cases give no indication of the character of the locale, but there is no suggestion in either decision that the road was authorized within city limits. Castleman v. Dumas, 279 Ark. 463, 652 S.W.2d 629 (1983); Ricci v. Poole, 253 Ark. 324, 485 S.W.2d 728 (1972).
The decision today has the potential for wreaking havoc on city planning. It most certainly opens the door to myriad requests to county courts for improved access within city limits. Ms. Yates’s remedy should lie with her city council — not the county judge.
I would affirm the circuit court and hold that the county courts are without jurisdiction to open public roads inside a municipality.
Glaze and Corbin, JJ., join. | [
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Tom Glaze, Justice.
This is an appeal from the appellant’s conviction of possession of a controlled substance and intent to deliver and conspiracy to deliver a controlled substance. The state alleged that the appellant, who resided in Dallas, Texas, was operating a drug ring in El Dorado selling crack cocaine. Appellant was sentenced as a habitual offender on the possession conviction and received a life imprisonment sentence. For the conspiracy to deliver conviction, he received a sentence of fifty years imprisonment. As his sole issue on appeal, the appellant argues that the trial court erred in admitting into evidence wire transfer record and telephone records showing transactions occuring between Dallas and El Dorado under the business record exception (A.R.E. Rule 803(6)) to the hearsay rule. We affirm.
First, we summarily dismiss the appellant’s argument that the trial court erred in admitting the telephone records because the appellant failed to make a specific objection to preserve his argument on appeal. Below, the appellant objected to the admission of the telephone records on the grounds that they were not authenticated. Now, on appeal, the appellant argues that the telephone records are hearsay and do not fit under the business record hearsay exception. This court has repeatedly held that in order to preserve an issue for appellate review, the objection below must be specific enough to apprise the trial court of the particular error about which appellant complains. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992). Furthermore, a party cannot change the ground of objection from the one made at trial to a different one on appeal. Harrison v. State, 303 Ark. 247, 796 S.W.2d 329 (1990).
Appellant did properly object to the admittance of the wire transfer records by arguing that they were hearsay, which the prosecution rebutted by contending that they fit under the business record exception, Rule 803(6). The business record exception to the hearsay rule has been interpreted as having seven requirements, which includes the requirement that the information be shown by the testimony of the custodian or other qualified witness. A.R.E. Rule 803(6); Terry, 309 Ark. 64, 826 S.W.2d 817. Here, the prosecution admitted twelve Western Union wire transfer documents through the testimony of the individuals who received or sent the wire transfers of money. Appellant argues that these individuals were not proper to lay the foundation for the business record exception.
While we may agree with the appellant’s argument, the appellant has failed to show prejudice. Officer Eddie Davis testified that he had been involved as an investigator of the Byron Hooper organization. Alice Stitt, appellant’s girlfriend, was arrested by the police and gave a statement about how the drug ring operated and the people involved. Officer Davis testified that Stitt told them that there was a hookup through her to get the drugs and money from El Dorado to Dallas. Communication was made to appellant through a three-way call set up by Stitt. Officer Davis testified that Stitt gave the police information about wire transfers made out of Western Union. Specifically, he stated, again with no objection, that the police department recovered two wire transfers from Katrina Daniels to Alice Stitt for $1600 and $650. Katrina Davis was connected to appellant’s organization through Stitt. Again, there was no objection to Officer Davis’s testimony which illustrated how the whole drug ring operated.
This court has held that where similar evidence was previously admitted without objection, the admission of later testimony on the same subject was not prejudicial. HCA Health Services v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 120 (1988). Similarly, we have refused to find prejudicial error where the evidence erroneously admitted was merely cumulative. See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988); Snell v. State, 290 Ark.503, 721 S.W.2d 628 (1986). The appellant has failed to meet his burden to demonstrate prejudicial error. Snell, 290 Ark. 503, 721 S.W.2d 628. As this court has repeatedly held, we do not reverse for trial error in the absence of prejudice. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).
Pursuant to Ark. Sup. Ct. R. 11(f), the record has been examined, and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error. For the reasons stated above, we affirm. | [
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Robert H. Dudley, Justice.
This case presents the interesting, but difficult, appellate procedural question of whether an order vacating a judgment is a final order, and, consequently, whether it is an appealable order.
The material facts are as follows. Plaintiffs, Lewis S. Lamb, William D. Lynn, and William H. Rowe, filed suit for specific performance, an injunction, and damages against JFM, Inc. The defendant filed an answer and an amended answer, but inadvertently did not appear on the date set for trial. In their absence, the plaintiffs took a judgment for $53,137.96. The judgment was entered on January 27, 1992. Four days later, on January 31, 1992, the defendant filed a motion to vacate judgment, and, on February 10,1992, the chancellor entered an order vacating the judgment and setting the case for trial. The two most important facts are that the order vacating the judgment was entered within ninety days of the entry of the judgment, and that the case was never fully contested. The plaintiffs seek to appeal the order vacating the judgment rendered in their favor.
We have frequently held that we will not decide the merits of an appeal when the order appealed is not a final order. Schueck Steel, Inc. v. McCarthy Bros. Co., 289 Ark. 436, 711 S.W.2d 820(1986) and supplemental opinion on rehearing 289 Ark. 437, 717 S.W.2d 816 (1986). For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Roberts Enters., Inc. v. Arkansas State Highway Comm’n, 277 Ark. 25, 638 S.W.2d 75 (1982); Ark. R. App. P. 2. Even if neither party raises the issue of the finality of the judgment, the appellate court should raise it on its own. Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988) and supplemental opinion on rehearing 294 Ark. 506-A, 746 S.W.2d 558 (1988). The order vacating the judgment in this case does not dismiss or discharge the parties from the court, nor does it conclude their rights to the subject matter in controversy. Rather, the order vacating the judgment places both of the parties back in the position they were in before the judgment was entered, see Hawkeye Tire & Rubber Co., v. McFarlin, 146 Ark. 491, 225 S.W. 632 (1920), and it is clear that neither party had a right to appeal before the judgment was entered.
The purpose of Rule 2 of the Arkansas Rules of Appellate Procedure is to avoid piecemeal litigation. Should we consider the plaintiffs’ appeal and then affirm the chancellor’s order vacating the judgment, the case would then be tried. The chancellor’s rulings at that trial would be subject to appeal, and the case could be appealed a second time. The result would be two appeals where one will suffice.
However, the foregoing is applicable only when the order vacating the judgment is entered within ninety days of the entry of the original judgment. Rule 60 of the Arkansas Rules of Civil Procedure provides for vacating judgments, and Rule 60(b) provides that a trial court has ninety days to modify or set aside a judgment to “correct any error or mistake or to prevent the miscarriage of justice.” The order vacating the judgment in this case was entered within ninety days. To the contrary, after ninety days, the trial court loses its general power to vacate final judgments to “prevent the miscarriage of justice” and has only the power to vacate final judgments for the reasons set out in Rule 60(c). For example, after ninety days, a court may vacate a judgment for fraud practiced by the party who obtained the judgment. See Diebold v. Myers Gen. Agency, 292 Ark. 456, 731 S.W.2d 183 (1987).
If the final judgment is vacated after ninety days, the order vacating the judgment is an appealable order because it determines the outcome in the equivalent of an independent action to set aside a judgment. In such an independent action the judgment creditor could lose his established creditor’s rights. See Cigna Ins. Co. v. Brisson, 294 Ark. 504, 506-A, 746 S.W.2d 558 (1988) (supplemental opinion granting rehearing); Schueck Steel, Inc. v. McCarthy Bros. Co., 289 Ark. 436, 436-A, 717 S.W.2d 816 (1986) (supplemental opinion granting rehearing); Blum v. Pulaski County, 92 Ark. 101, 122 S.W. 109 (1909); Ayers v. Anderson-Tully Co., 89 Ark. 160, 116 S.W. 199 (1909). In summary, an order vacating a judgment within ninety days is not an appealable order because it is not a final order dismissing the parties from the action, but an order vacating a judgment after ninety days is an appealable order because it is the equivalent of an order in an independent action setting aside the judgment.
We recognize that we did not follow this distinction in Arkansas State Highway Commission v. Johns, 302 Ark. 291, 789 S.W.2d 450 (1990). There, the trial court granted a motion to vacate a judgment within ninety days of entry and, in the same order, granted a new trial. We stated that it was not necessary for us to decide whether the order vacating the judgment was a final and appealable order, since the trial court also granted a new trial, and an order granting a new trial is an appealable order. The deciding, although unmentioned, factor in that case was that there had been a complete trial with both parties present to fully contest both the merits and the damages, and the granting of the new trial was the gist of the ruling. Thus, the rule is that, if after a complete adversarial proceeding, a trial court grants a new trial under Rule 59 of the Arkansas Rules of Civil Procedure, the order granting the new trial is appealable. Ark. R. App. P. 2(a)(3). However, the rules of appellate procedure do not give such a right of appeal when a judgment is obtained after less than a complete adversarial proceeding and is vacated within ninety days under Rule 60 even though, at the least, a partial new trial will be the result.
We have long recognized the distinction between an order granting a new trial and an order vacating a judgment within ninety days of the judgment. The original civil code provided that an appeal could be taken “when the order grants or refuses a new trial,” Ark. Code Ann. § 16-67-303(a)(2) (1987), and that language has been preserved in the Rules of Appellate Procedure, Rule 2(a)(3). In addition, although we have sometimes mistakenly heard such cases, we have never allowed appeals from orders vacating judgments entered within ninety days of the judgment when the case had not been fully contested on both liability and damages, even though the order vacating the judgment would necessarily require a retrial of some part of the issues. Henry v. Powell, 262 Ark. 763, 561 S.W.2d 296 (1978); Dodd v. Bonds, 220 Ark. 951, 251 S.W.2d 587 (1952).
Since the order vacating the judgment in this case was entered within ninety days of the entry of the judgment and since the case has never been fully contested by both parties, it is not a final and appealable order. Accordingly, we dismiss the appeal.
Brown, J., not participating. | [
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Steele Hays, Justice.
Appellee, Meadows Construction Company, began work on an apartment complex on a tract of land joined on three sides by single family homes. Appellants, twenty-two of those adjoining homeowners, sought an injunction claiming the notice requirements of the zoning ordinance were not complied with. The Chancellor denied injunctive relief and appellants bring this appeal. We affirm.
Appellants’ principal contention is they were not given the required notice of a planning commission hearing on zoning changes which adversely affected their property. They cite Ark. Stat. Ann. § 19-2830 (Repl. 1980) and a Ft. Smith ordinance detailing the notice requirements of such a hearing. In addition to notice by newspaper publication provided for in § 19-2830, the city ordinance requires a mailing to all “adjacent” property owners.
In 1974 the city of Ft. Smith undertook a comprehensive revision of its zoning ordinance, which included additional residential classifications. Appellants concede the Planning Commission gave public notice by newspaper publication and held hearings on the rezoning plan. At these hearings the zoning ordinance at issue was discussed. The proposed ordinance increased the number of previous classifications and altered some of the existing classifications. The residential areas were divided as follows: R-2 into R-2-SFDP and R-2-MF, R-3 into R-3-SFDP and R-3-MF, and R-4 into R-4-SFDP and R-4-MF.
Prior to these changes appellants’ properties were zoned R-3. In the course of the hearings the Planning Commission decided to designate all property previously zoned R-2, as R-2-SFDP, all property previously zoned R-3, as R-3-MF and all property previously zoned R-4, as R-4-MF. At a later date areas were to be designated with the remaining new classifications. No property in the city was designated R-3SFDP.
Appellants argue that the mailing requirement for these hearings was not complied with and that no notice was given of the reclassification of their properties from R-3 to R-3-MF. We disagree that the ordinance entitled appellants to individual notice by mail of the hearing on zoning reclassification. A reasonable interpretation of the ordinance does not require a city-wide mailing when a comprehensive rezoning plan is contemplated. We think the language of the ordinance requiring the mailing of notice is intended to apply when a particular tract is being considered for rezoning. The ordinance states that in addition to notice in a newspaper of general circulation:
The proponent shall, at the time the petition is presented to the Planning Commission, deliver a copy of same to the Building Inspector listing therein, the following information: the legal description of the property proposed to be rezoned; the street address of the entire petitioned area; the present zone and the proposed zone, utilizing the words “industrial,” “commercial,” and the like, followed by the numeral, in lieu of the mere “1-3” and the like, and the names and addresses of all persons listed as the last record owners of property adjacent to the petitioned property, including property across the street and intersection and all owners within the petitioned area, and finally, the date that this petition will be heard by the Planning Commission. This information will be utilized by the Building Inspector by mailing post cards to all persons listed therein, notifying them of the public hearing on such change, and listing the street address of the property and the proposed change. (Our emphasis).
It would require a strained reading of this language to find a comprehensive zoning change necessitated notice by mail throughout the city and would result in a burdensome procedure. We are unwilling to reach that construction of the ordinance. Although zoning laws must be strictly construed in favor of the property owner, Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975), that does not compel a contrived result when common sense points elsewhere. Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979). We will avoid resorting to a subtle or forced construction for the purpose of limiting or extending the meaning of a statute. Young v. Energy Transportation Systems, Inc. of Arkansas, 278 Ark. 146, 644 S.W.2d 266 (1983); Hicks v. Arkansas State Medical Board, 260 Ark. 31, 537 S.W.2d 794 (1976); City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977).
Turning to the argument that appellants were not notified of the change from R-3 to R-3-MF, we note first that for all practical purposes there was no change in appellants’ zoning. In effect, the ‘’rezoning” merely changed the name of the classification and not the substance of it. The appellee could have constructed the apartments under the R-3 classification as well as under the R-3-MF classification. R-3 permitted under general uses: single and two family homes, multi-family apartments, churches, community centers, public libraries, nursery schools, public and parochial schools and several other concerns. Under R-3-MF the general uses permitted are limited to single and two-family homes and multi-family homes. The other uses listed above under R-3 as general uses are conditional uses under R-3MF. Thus, there was so substantive change to the detriment of appellants, if anything, the property was upgraded by the reclassification and the appellee is doing no more than could have been accomplished under the former classification. Second, we believe there was sufficient notice of any changes that were made. Public notice was given for the hearings on the rezoning plans and so far as we can determine, these hearings were held and the contemplated zoning changes were discussed. Appellants make no showing to the contrary. The fact that during the course of the hearings the Planning Commission decided in essence not to make any change in any of the existing residential zoning areas in the city is not something that required additional notice. Not only were these hearings conducted to discuss precisely the reclassification that occurred, but no injury resulted from those changes which did occur. In fact, as we have said, the classifications may have been upgraded. Appellants do not argue the notice of the content of the hearings was misleading or insufficient, or that by the Planning Commission’s actions they would be precluded from seeking an upgraded zoning when such designations were made later. Nor have appellants cited any clear authority to support their argument.
Appellants further submit that appellee’s plat was not filed in accordance with the provisions of an applicable ordinance. The city platting procedure requires approval of the tentative plat before filing, which is subject to lapse if a final plat is not submitted within one year. In June 1980, the appellee received approval by the city but no final plat was filed until 1983. The record, however, does not bear out non-compliance and indicates substantial compliance. Before filing the plant in 1983, appellee sought re-approval from the city. There is nothing in the record to show whether approval was considered by the commission, but the record does show approval was granted, subject to certain conditions being met, by the director of the commission. It seems to have been determined that because nothing had changed since the original application, the approval was still valid subject to the appellee performing certain prerequisites, From a reading of the platting requirements, there is nothing that indicates they were not substantially complied with and appellants fail to point out how they were not. Nor do appellants show how this handling of the plat was injurious to them.
Appellants contend they were entitled to notice of the plat filing and building permit issuance. We know of no requirement that such notice be given and appellants have cited none and offer no persuasive argument as to why notice should be required for these steps when adequate notice of zoning changes has already been given.
Appellants concede the foregoing arguments, standing alone, could not prevail, but, when taken together, they urge this case reflects a series of governmental processes which conspired to effectuate a substantial injury to the single largest investment likely to be made by appellants, i.e. their homes. The cumulative effect, they believe, constitutes a denial of due process under the Fourteenth Amendment. The argument overlooks the fact that the zoning classification of R-3-MF, permitting multi-family development, was already in existence when at least nineteen of the twenty-two appellants purchased or built their homes, and those few who bought prior to the rezoning were notified by publication of the proposed change, a change which, as we have said, turned out to be essentially in name only. But here, appellee’s apartment complex would have been permissible under the R-3 classification, and inasmuch as appellants had already been put on notice that a proposed zoning change consistent with R-3 would be considered by the Planning Commission, the reclassification to R-3-MF involved no deprivation and required no due process beyond that which was given. Even if appellee’s tract had been zoned only for single family use when appellants’ chose their home sites, which is not the case, zoning changes are a permissible exercise of the police power of the states, and there are no guarantees against zoning variances or outright changes in zoning classifications. We have said due process requires at a minimum that a person be given reasonable notice and a reasonable opportunity to be heard before he can be deprived of his property by state action. Ingraham v. Wrights, 430 U.S. 651 (1977); Davis v. Schimmel, Trustee, 252 Ark. 1201, 482 S.W.2d 785 (1975); Dohany v. Rogers, 280 U.S. 362 (1930). The Chancellor found those opportunities were afforded in this case and we cannot say his findings were clearly against the preponderance of the evidence.
Affirmed.
Hickman, Purtle and Hollingsworth, JJ., concur. | [
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Per Curiam.
In this civil case, the appellant’s tender of the transcript was denied by our clerk because the order of extension beyond 90 days from the filing of the notice of appeal was not entered within the 90 day period. Ark. R. App. P. 5 (b).
The trial judge signed the order within the 90 day period, on the 89th day. However, it was not entered and filed with the circuit clerk’s office until the 91st day.
We explained in Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983), that the critical factor in such cases is when the order is entered, not signed. A question has been raised about our decision in Finley; specifically whether ARCP Rule 5 (d) controls in this situation. ARCP Rule 5 (d) provides:
Filing with the Judge. The judge may permit papers or pleadings to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.
Rule 5 (d) obviously does not mean an order can be deemed “entered” simply because it is signed by a judge. Rule 5 (b) of the Rules of Appellate Procedure provides:
Extension of Time. In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the trial court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order. In no event shall the time be extended more than seven (7) months from the date of the entry of the judgment, decree or order. Counsel seeking an extension shall give to opposing counsel notice of the application for an extension of time (Italics supplied.)
Motion denied.
Hubbell, C.J., dissents. | [
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Robert H. Dudley, Justice.
Appellant, Brenda Thompson, was found guilty of robbery and sentenced to twenty years in prison. Jurisdiction is in this Court, pursuant to Rule 29(1) (c), because appellant questions the construction of an act of the General Assembly. We reverse and remand.
Appellant was in the linen department of the J.C. Penney store on University Avenue in Little Rock. According to the State’s evidence, a security employee of the store, Debra English, was hidden in an observation booth and saw the appellant place four towels inside a large zippered purse. By phone, Miss English told another security emplbyee, Larry Newkirk, of her observation, left the booth, walked up to the appellant, identified herself, and asked appellant to go with her to a downstairs security office. At that time, the appellant unzipped the purse, started throwing out the towels, and began yelling, cursing, and hitting Miss English. Larry Newkirk arrived, and he and Miss English began escorting appellant to the security office where she again attacked Miss English. The police subsequently arrested appellant and gave her a Miranda warning. She did not make a statement.
At trial, the appellant denied that she had concealed any towels in her purse, and stated that Miss English grabbed her from behind, beat her, and did not identify herself. After giving her exculpatory version of the event, the prosecutor asked appellant if earlier she had given the police her version.
Q: Did you tell the police officer? Did you tell anyone else about being beaten?
MR. CARPENTER: Objection, Your Honor. She was taken into custody and is not required to make any statement after that.
THE COURT: The objection is overruled, sir.
Q: Did you tell the police officers that you had been beaten and kicked and stomped by Ms. English?
A: I don’t believe I did.
Q: So this is the first time you’ve told anybody outside your counsel who is here today. Is that correct?
A: I didn’t know I had to tell the policeman that.
Q: No, I just asked you if you did.
A: I said I didn’t.
During the closing argument the prosecutor highlighted the questions, over the. objection of appellant, by arguing that the discrepancy between the exculpatory story at trial and the silence at the time of arrest gives rise to an inference that the story was recently fabricated. "Is that reasonable? Is that true? And also remember, now, she didn’t bother to tell anybody this until today. She made it up when she came here to make herself look good.” Appellant assigns the rulings as error.
In an analogous case, the Supreme Court of the United States held that it is fundamentally unfair and a violation of the Due Process Clause of the Fourteenth Amendment to allow an arrested person’s silence at the time of arrest and after Miranda warnings to be used to impeach an explanation subsequently offered at trial. Doyle v. Ohio, 426 U.S. 610 (1976). Accordingly, we reverse.
Appellant argues that the case should be dismissed, rather than remanded, because there was insufficient evidence to support a charge of robbery. The argument is without merit. Robbery has been re-defined in the criminal code so that the focus of the event is shifted from the taking of property to the threat of physical harm to the victim. A person commits robbery if he employs physical force in attempting to commit a theft or if he employes physical force in resisting apprehension immediately after committing a theft. Ark. Stat. Ann. § 41-2103 (Repl. 1977). On review, we do not weigh evidence or judge the credibility of witnesses, instead, we consider the evidence most favorably to the appellee. McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979). Viewing thé evidence in that light, there was substantial evidence from which a jury could find that appellant committed a theft and resisted apprehension immediately thereafter. One commits theft if he knowlingly exercises unauthorized control over the property of another person with the purpose of depriving the owner thereof. Ai=k. Stat. Ann. § 41-2203 (Repl. 1977). In addition, the State’s evidence was sufficient to invoke a statutory presumption of theft. Ark. Stat. Ann. § 41-2202(2) (Repl. 1977), in pertinent part, provides:
(2) Shoplifting Presumption. The knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to a presumption that the actor took goods with the purpose of depriving the owner, or another person having an interest therein.
The state’s evidence that appellant resisted apprehension immediately after the theft need not be restated. There was sufficient evidence to support a charge of robbery. Thus, we do not dismiss.
Since there will be another trial, we answer the points which are likely to again arise.
The appellant contends that she was entitled to an instruction that theft is a lesser offense included within the crime of robbery. The argument confuses the distinction between element included offenses and lesser included offenses. Element included offenses are defined in Ark. Stat. Ann. § 41-105(l)(a) (Repl. 1977). They arise when one criminal offense, by statutory definition, cannot be committed without the commission of another underlying offense, and, by the language of the statute, although a defendant can be prosecuted for both offenses, a conviction cannot be had for both. Wilson v. State, 277 Ark. 219, 640 S.W.2d 440 (1982). The statute, § 41-105, in the pertinent part, provides:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(a) one offense is included in the other, as defined in subsection (2); . . .
(2) . . . An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged.
However, an offense is not a lesser included offense solely because a greater offense includes all of the elements of an underlying offense. The lesser included offense doctrine additionally requires that the two crimes be of the same generic class and that the differences between the offenses be based upon the degree of risk or risk of injury to person or property or else upon grades of intent or degrees of culpability. An example of grading the offense based upon the degree or risk or risk of inj ury to person or property is battery in the first degree and battery in the second degree. An example of grades of intent or degrees of culpability is murder in the first degree and manslaughter.
Theft is the wrongful appropriation of the victim’s property while robbery is the threat of physical harm to the victim. The offenses are of a different nature. They are not of the same generic class and, consequently, theft is not a lesser offense included within robbery. Higgins v. State, 270 Ark. 19, 603 S.W.2d 401 (1980); Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982). Appellant was not entitled to an instruction that theft is a lesser offense included within robbery.
The appellant contends that she was entitled to a standard instruction on justification, or self-defense. See AMCI4104. It is true that common law permitted reasonable resistance to an unlawful arrest. Patterson v. State, 141 Ark. 422, 217 S.W. 480 (1920). However, under Ark. Stat. Ann. § 41-512 (Repl. 1977) the defense of justification will fail if interposed in a case involving resistance to a lawful or unlawful arrest, whether or not under warrant, so long as the person resisting knew or should have known the arrest was by a law enforcement officer or a person acting under his direction. We have no decisional law determining whether a person may resist an unlawful arrest by one who is not a law enforcement officer which, appellant contends, is the situation in this case. However, we do not decide the issue because the instruction offered does not address the subjects of arrest, robbery, or theft. The Offered instruction was not applicable.
The appellant’s final argument is that the trial court erred in submitting the case for sentencing under the habitual offender statute. The argument is without merit since the appellant testified that she had been convicted of at least two prior felonies.
Reversed and remanded.
Holt, C.J., and Purtle, J., concur. | [
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David Newbern, Justice.
This case presents questions of the propriety of granting summary judgment. The case was certified to this court because defamation is involved. Our jurisdiction arises from Supreme Court and Court of Appeals Rule 29(1 )(o).
The Merchants National Bank of Fort Smith sued Joey Brown Interest, Inc., and John F. Brown, individually and as president of the corporation, for failure to pay a promissory note which the bank had taken from the corporation and which was guaranteed by John F. Brown. Brown drafted an answer and counterclaim without the assistance of counsel. The bank prevailed with respect to the note and was awarded a judgment on its claim. No aspect of that claim or judgment is at issue here.
The bank was also awarded a summary judgment with respect to the counterclaim. It is from this summary judgment that this appeal is taken.
In their counterclaim, Brown and the corporation made four allegations. First, they alleged the bank had improperly sent a certificate of deposit it had issued to Brown’s mother to the Yell County Chancery Court in response to a writ of garnishment against Brown. Secondly, they alleged the bank had improperly frozen Brown’s Keogh retirement account in response to the same writ of garnishment. Thirdly, they alleged the bank had failed to honor Brown’s request that the bank, in credit reports issued by the bank on Brown, make note of the effect of the garnishment writ on his financial situation. The fourth allegation was simply that the bank had “defamed and damaged” Brown and the corporation.
In support of its motion for summary judgment on these claims the bank submitted affidavits of bank officers who recited the facts surrounding the bank’s receipt of the writ of garnishment from the Yell County Chancery Court. One affidavit made it clear that when the writ was received by the bank Brown’s name appeared, with that of his mother, as a joint owner with right of survivorship on a certificate of deposit held by the bank. The writ of garnishment, which appears in the record as an exhibit to each of the bank officers’ affidavits, required the bank to report any “goods, chattels, moneys, credits and effects” belonging to John F. Brown.
In response to the bank’s motion for summary judg ment Brown submitted his own affidavit. The facts recited with respect to the first allegation were that Brown’s name was on the certificate of deposit as ”a matter of convenience,” and that upon being told of the writ by an officer at one bank branch Brown went to a different branch where he cashed the certificate of deposit and used the cash to purchase another certificate solely in his mother’s name. This later certificate was the one sent to Yell County.
With respect to the second allegation, the facts recited were that Brown’s Keogh account was withheld from him when he asked that it be transferred from the bank to another depository. Brown’s affidavit recites he was not informed that the Keogh account was to be held pursuant to the writ at the same time he was informed the certificate of deposit was to be held. His affidavit recites further that no subsequent writ of garnishment was issued.
As to the third allegation, the affidavit of Brown states the bank did not furnish him with copies of notice given to the credit bureau advising the credit bureau of the “disputed status of my Keogh account and my mother’s C.D.” It is not clear whether Brown is complaining that the bank did not honor his request to issue reports to unnamed persons or that the bank did not include the information on reports it made. He also stated the bank had refused to turn over his mother’s certificate and the Keogh account “upon being notified that [he] had posted a supersedeas bond to insure collection” of the judgment which was the basis of the garnishment writ.
Brown does not state by whom the notice was given to the bank. It should be noted here that the record shows that when the Yell County Chancery Court ultimately released the bank from the writ of garnishment the bank promptly paid off the certificate of deposit and transferred the Keogh account.
Finally, presumably in support of the defamation allegation, Brown’s affidavit made in support of the response to the summary judgment motion states:
Numerous employees of Merchants National Bank have told others of my financial status, the Writs of Garnishment, etc. and subjected me to ridicule in the community by others. These actions have caused me to be unable to carry on my business in a normal manner which requires a good credit standing in the community and as a result thereof I have been damaged.
In awarding summary judgment to the bank, the judge pointed out that Brown had no standing to complain about the bank holding a certificate which Brown alleged belonged to another. Nor had he presented any facts or, for that matter, law showing the bank should have or could have ignored the writ of garnishment with respect to the Keogh account. As to the credit reports, nothing presented by Brown showed the bank had made any such reports or had a duty to make any. The judge was entirely correct in stating there was no genuine issue of material fact in dispute as to these allegations. As to these allegations there was a proper motion for summary judgment which was supported by factual affidavits in accordance with Ark. R. Civ. P. 56(b) and (c), and we find it was properly granted.
The defamation claim gives us a little more pause. Nothing was said in the affidavits, submitted with the bank’s summary judgment motion, about the defamation claim. It is clear that the counterclaim stated no facts showing Brown and the corporation were entitled to relief for defamation. Ark. R. Civ. P. 8(a). The claim thus could have been dismissed for failure to state facts upon which relief could be granted. Ark. R. Civ. P. 12(b)(6). Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). See, H. Brill, Faculty Note, 34 Ark. L. Rev. 722 (1981). A motion to dismiss for failure to state facts upon which relief could be granted was made as to the entire counterclaim. The motion was, in effect, granted by the court in a default judgment which dismissed the counterclaim with prejudice. However, that judgment was set aside, and the motion to dismiss was not thereafter pursued by the bank which pursued instead its summary judgment motion. Some, perhaps all, of the allegations of the counterclaim, in addition to the defamation claim, could have been dismissed for failure to state facts upon which relief could be granted, but they were not, and, as stated, we have no difficulty with the summary judgment as to them.
The question as to the defamation allegation becomes whether we should affirm the summary judgment in spite of the failure of the moving party to address it in the supporting affidavits. This, in turn, raises questions as to the relationship between the motion to dismiss for failure to state facts upon which relief may be granted and the summary judgment motion, questions which have not been addressed by this court.
We begin by looking to the language of Ark. R. Civ. P. 12(b) which provides that if, on a Rule 12(b)(6) motion,
.... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary j udgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Thus, under some circumstances the summary judgment motion is an extension of the motion to dismiss for failure to state a claim. While the motion to dismiss alleges the failure to state a claim, the motion for summary judgment in these circumstances, alleges the failure to have a claim.
Was it proper to grant a summary judgment as to the defamation allegation which stated no facts sufficient for relief, given the failure of the bank to support its motion by affidavit or otherwise? May a motion for summary j udgment be made on the basis of the pleadings? The federal courts, interpreting FRCP 56 upon which our rule was modeled, say it may. See, e.g., Schwartz v. Compagnie General Transatlantique, 405 F.2d 270 (2d Cir. 1968); Chambers v. U.S., 357 F.2d 224 (8th Cir. 1966). See also J. Moore, Federal Practice, § 56.02[3], pp. 56-28 and 56-29 (Supp. 1976); C. Wright, A. Miller and M. Kane, Federal Practice and Procedure, § 2713, at p. 594 (1983).
In U.S. v. Zibilich, 542 F.2d 259, n.3 at pp. 260-261 (5th Cir. 1976), the court noted that where it was not clear whether the trial court’s decision was in response to a motion to dismiss under FRCP 12(b)(6) or FRCP 56, the distinction was immaterial because in that case the question was the same, i.e., whether the moving party was entitled to relief in view of the failure of federal law to recognize the claim asserted.
In Chambers v. U.S., supra, Judge Mehaffy dealt with a similar case and resolved the problem as follows:
The purpose of our summary judgment rule is to expeditiously determine cases without necessity for formal trial where there is no substantial issue of fact and is in the nature of an inquiry to determine whether genuine issues of fact exist. If no factual dispute exists and the complaint does not state a cause of action, it should be disposed of by summary judgment rather than exposing the litigants to unnecessary delay, work and expense in going to trial when the trial judge would be bound to direct a verdict in movant’s favor after all evidence is adduced. [357 F.2d at 227]
A summary judgment motion may be made on the pleadings alone. That is particularly so in a case like this where the allegation is defective. The response to the motion, by affidavit or otherwise, must set forth specific facts, Ark. R. Civ. P. 56(e), and may not consist of conclusions. Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982).
In Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984), this court held that where it was apparent the trial court was granting a motion to dismiss for failure to state facts upon which relief could be granted rather than granting a summary judgment the losing party should be given a chance to plead over, and the judgment was modified to permit the plaintiff to plead over. Here, however, we hold it was appropriate for the court to grant a summary judgment in view of the failure of Brown to show there was any factual issue remaining on his defamation claim. In other words, our decision is based not on the counterclaim’s inadequacy but on the inadequacy of the response to the summary judgment motion.
Brown and the company did not amend their countercláim even after the motion to dismiss was made and the default judgment, which was later set aside, dismissed it with prejudice because of its lack of merit. They were fortunate to get beyond the pleading stage. When given an opportunity to recite specific details of the defamation allegation in response to the summary judgment motion, Brown only said numerous unnamed bank employees had told unnamed others about the writ of garnishment and his financial status. There are no facts to indicate these alleged communications were untrue or that they were made in the course of employment with the bank. The motion was therefore not opposed by specific factual statements required by Rule 56(e).
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John I. Purtle, Justice.
After a hearing the Probate Court of Perry County granted appellee’s petition for appointment as guardian with the right to consent to adoption. No attorney or guardian ad litem was appointed for the children. The mother appeals on the grounds that the court erred in terminating her parental rights in violation of the requirements of Ark. Stat. Ann. § 56-128 (Supp. 1983) and in holding that the evidence revealed clear and convincing reasons to terminate the relationship. We agree that the findings of fact by the court in this case do not support the allegations of the complaint and the demands of Ark. Stat. Ann. § 56-128.
The two minor children in this matter are the natural children of the appellant Shirley Irene Bush, who is presently an inmate in the Arkansas Department of Corrections. She has been imprisoned since 1975 and is presently eligible for parole consideration. The children are ages 11 and 13 and have been in custody of the Social Services for almost nine years. They have been placed in several different foster homes. The oldest is a boy and is a resident student at the Arkansas School for the Deaf but, along with his younger sister, is now in custody of foster parents. They were removed from one foster home because of alleged sexual abuse of the girl by a foster father.
During her imprisonment the appellant has learned sign language in order to communicate with her son. His disability is the result of spinal menigitis when he was a baby. The children have visited the mother infrequently while she has been in prison. Social Services was responsible for arranging visitation. The appellant requested semimonthly visits but such visits were not arranged. She also requested that her children be placed in a foster home in Jefferson County in order to make visitation more easily arranged. This request was not complied with.
The appellant has served more than nine years on a 30 year sentence for first degree murder. She had no prior convictions. She is a class I inmate and according to some testimony a model prisoner even though she had trouble adjusting to prison life at first. Her defense to the murder charge was that the victim was trying to rape her. She has a G.E.D. and has made arrangements for her own care and that of her children when she is released on parole.
Admittedly she has not contributed to the support of the dependent children during the time she has been in prison. The fathers were not located. They have not appealed. Their whereabouts has been unknown for years.
On June 7, 1982, Social Services entered into, a six month agreement with appellant concerning custody and visitation of the children. Among other things the contract stated: “I, Shirley Bush, realizing if my children are returned to me after parole, I will at this time begin to make plans for their appropriate care.” This agreement was made seven years after the Department took custody of the children and only four months before the petition to terminate the parental relationship was filed by the Department. The petition for termination of the parental relationship alleged two grounds of unfitness: first, that placing the children in appellant’s care would raise a substantial risk of physical and psychological abuse of the children; and second, that the parents had without reasonable or lawful cause failed to provide for the basic, essential and necessary physical, mental or emotional needs of the children for a period of one year immediately preceding the filing of the petition. The court also found that it would be in the best interest of the children to terminate the relationship.
The court made specific findings of fact and con elusions of law. However, there were no specific findings of fact to support all the allegations of unfitness of the mother as stated in the petition. Such findings are required by the provisions of Ark. Stat. Ann. § 56-128. Such proof must be shown by clear and convincing evidence. A.B. v. Arkansas Social Services, 273 Ark. 261, 620 S.W.2d 271 (1981). The specific allegations of unfitness were not discussed by the trial court. The specific allegation that the mother had “without reasonable and lawful cause to provide or to adjust her circumstances, conduct, or condition, so as to provide for the basic, essential and necessary physical, mental or emotional needs of the children for a period of one (1) year immediately preceding the filing of the petition,” was taken directly from Ark. Stat. Ann. § 56-128 (H). There is no question but that the fathers’ parental rights were properly terminated and that question is not before us. The finding that the mother failed to meet the responsibilities placed upon her by law rests almost entirely upon the fact that she was in prison and had no income of her own. For the same reason she failed to visit and communicate with her children. A representative of Social Services stated the mother had kept the promises made in the contract dated June 7, 1982. A part of that contract clearly indicated both parties anticipated that the appellant would be paroled and the children would be returned to her. Uncontradicted testimony by the mother was that the petitioner agreed with her in 1975 that if she pled guilty and went to prison she would have visits with her children. There is no real explanation why the Social Services waited several years to seek termination of the parental relationship. Certainly the cause would have been stronger before the mother adjusted to prison life and commenced preparations for being reunited with her children. Imprisonment of a parent imposes an unusual impediment to a normal parental relationship but is not conclusive on the issue. Zgleszewski v. Zgleszewski & Horne, 260 Ark. 629, 542 S.W.2d 765 (1976). We considered abandonment pursuant to Ark. Stat. Ann. § 56-128 in the case of A.B. v. Arkansas Social Services, supra, where we stated: “Mere incarceration is not conclusive on the issue of abandonment.” Without the facts relating to imprisonment, about the only other facts relating to unfitness of the mother were incidents in her teenage life in Alabama. At that time neither child had been born. Appellant was the victim of divorce. Her father was an alcoholic and her stepfather abused her. At age IB she left home and thereafter she made her own way until she was imprisoned at the age of 20. These matters are too remote and sketchy to be of any real value in determining whether her rights as a natural mother should be terminated.
Any party seeking to terminate the parental relationship bears the heavy burden to prove by clear and convincing evidence that the parent has significantly and without just cause failed to communicate with or support the child as required by law or decree. Harper v. Caskin, 265 Ark. 559, 580 S.W.2d 176 (1979). Adoption proceedings are in derogation of the natural rights of parents, and statutes permitting such are to be construed in a light favoring continuation of the rights of natural parents. Harper, supra.
The best interest of the child is a matter of primary concern in adoption proceedings. Termination of the maternal relationship is much more far reaching than a change of custody. Adoption changes the natural relationship between parent and child; it changes the course of lives, the manner of inheritance, the people with whom the child associates, and cuts the ties and relationship between the child and the family of the parent whose rights are terminated. To make a decision based solely upon the best interest of the child could be a dangerous thing. A literal interpretation of what is in the best interest of the child could conceivably lead to a decision to award the child to the parties who were able to furnish the most material things for the comfort and pleasures of life. The wealthy, even though strangers, could take the children of the poor because the children would obviously be better off in a home of plenty. The phrase “best interest of the child” means more than station in life and material things. “Best interest of the child” includes moral, spiritual, material and cultural values, matters of convenience and friends and family relationships. We have recognized as a cardinal principle of law and nature that parents who are able to support their child in their own style of life, however poor and humble they might be, should not be deprived of parental privileges, except when urgently necessary to afford the child reasonable protection. Davis v. Smith, 266 Ark. 112, 588 S.W.2d 37 (1979).
Under the circumstances of this case we are of the opinion that the court’s findings of fact and conclusions of law do not meet the criteria set forth in the petition for termination of parental rights as they related to the appellant at the time of the hearing on the petition. Parental rights are protected by the due process clause of the Fourteenth Amendment to the United State Constitution and Article 2, Section 8 of the Constitution of Arkansas. Davis v. Smith, supra.
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P.A. Hollingsworth, Justice.
The issues presented by this appeal all involve a will contest. The appellants are the step-great-grandchildren of the decedent, Austin Napoleon Davis. On August 31, 1981, at the age of 90, the decedent wrote his first will which named the appellants as beneficiaries. Ten days later, on September 10,1981, the decedent wrote a second will which named the appellee, his next door neighbor, as the sole beneficiary. The decedent died on October 10, 1982, and the second will was admitted to probate. The appellants filed a petition to contest the probate of the second will and also filed a companion case in Chancery Court to remove the appellee’s name from two certificates of deposit that were owned by the decedent. The cases were consolidated for trial and the trial judge found that the second will was valid and that the certificates of deposit were not void. It is from that decision that this appeal is brought. This appeal is before us under Sup. Ct. R. 29 (1) (p).
The appellants raise numerous issues on this appeal, all of which basically involve the decedent’s alleged lack of testamentary capacity and the exercise of undue influence by the appellee in procuring the testator’s will.
Davis, the testator, married Florence Edwards in 1960. He had two children by a previous marriage with whom he had no contact for the last thirty years of his life and for whom he made no provision in either will. Mrs. Davis had two children by a prior marriage also. The appellents are her great-grandchildren through her son.
Considerable testimony was given about the close family relationship between the Edwards family and Davis. All the families lived in the vicinity of each other and spent many holidays and vacations together. The great-grandchildren were brought to spend time with Davis and his wife frequently. Mrs. Davis died in August 1981.
The appellee and her husband were next door neighbors of Florence and Austin Davis for about ten years. Testimony showed that they spent many evenings with the elderly couple, visiting and playing games. Shortly before Mrs. Davis died, the appellee began looking in on the decedent and mowing his lawn for him. In June 1981, a social worker made an official arrangement with the appellee whereby she would provide meals and general care for the decedent in exchange for $35 a week. This arrangement continued until Davis’ death.
The circumstances surrounding the making of the first will were as follows: Robert Lloyd Edwards, the father of the appellant, Christopher Scott Edwards, testified that the decedent asked him to recommend a lawyer. At Davis’ request, Edwards took him to see Jimmy Featherston, a lawyer in Murfreesboro. On the way there, Edwards testified that Davis told him he intended to leave his estate to Christopher and to Edwards’ sister’s children because “he said that he wanted to favor” his step grand-children without directly giving them anything as he said they did not need it. Edwards, accompanied by his father, Robert C. Edwards, helped Davis into the lawyer’s office and the three sat around Featherston’s desk while Davis made out a will. Edwards testified that he acted as an interpreter for Davis, who was hard of hearing, by repeating Featherston’s comments to Davis. After the will was prepared, Davis signed it and paid Featherston. The will, written August 31, 1981, stated: “I give my entire estate to Christopher Scott Edwards, Randy Moore, and Cindy Moore, per stirpes.” Edwards testified that Davis kept a copy of the will and he kept the original. The only time Edwards said that Davis mentioned the will after that was at the next Christmas when Davis said, “Won’t the children be surprised when they learn what I’ve done for them.” The Edwards family discovered the existence of the second will shortly before the testator died.
The second will was drawn up ten days after the first will. Kenneth Vaught, the appellee’s husband, testified that toward the end of the first week of September 1981, Davis spoke to him about making a new will. He testified that Mr. Davis said, ‘ ‘I don’t have much but I have a little. But, I want to leave it to somebody that helps me.” Vaught testified that he told the testator he and his wife did not want anything in return for caring for him, but Davis insisted and asked Vaught how he “wanted it to go.” Vaught stated that he told him to put it in his wife’s name since she would be caring for the testator more thari he would. Vaught also stated that he told the testator to wait until the next day and make sure that that was still what he wanted and, if it was, Mrs. Vaught would take him to a lawyer. The only reason Davis gave, according to Vaught, for his actions was that the Edwards family did not care anything about him and he did not want them to have his money.
The day after the testator’s statements to Vaught, Mrs. Vaught took Davis to Featherston, the same lawyer, to write a second will. She did not stay in the room when the will was written but rather left the testator alone with Featherston.
The second will reads as follows:
I, Austin Napoleon Davis, . . . being mindful of my children and descendants and being of sound and disposing mind and memory do hereby make and publish this my last will and testament revoking all prior wills made by me and especially revoking that will I made a few days ago. ... 2.1 give my entire estate to my neighbor who has looked after me and fed me ever since I have lived at Murfreesboro, Mrs. Janie Vaught ...”
For this appeal, the appellants claim generally that the trial court’s decision was against a preponderance of the evidence and was clearly erroneous. Specifically they argue that undue influence was presumptively established by the evidence since a confidential relationship existed between the decedent and the appellee; the appellee procured the making of the second will; the decedent suffered from mental and physical infirmities; and the second will made an unnatural disposition excluding the natural objects of the decedent’s bounty. The appellants also claim that the. appellee failed to rebut the presumption of undue influence after the burden of proof shifted to her and that the decedent suffered from an insane delusion when the second will was procured.
We review probate and chancery cases on appeal de novo and affirm the probate judge or chancellor unless the order is clearly erroneous. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). The burden of proving undue influence or lack of mental capacity is on the party challenging the validity of the will, the appellants here. Rose, supra. We said in Rose that when a will is procured by the primary beneficiary, “a rebuttable presumption of undue influence arises which places on the beneficiary the burden of proving beyond a reasonable doubt that the testator enjoyed both required mental capacity and freedom of will.”
Here, there was no direct evidence that the appellee procured the will. She did not participate in the writing of the will and merely transported the decedent to the lawyer’s office. The trial judge therefore correctly placed on the appellants the burden of proving the testator’s mental incompetency and any undue influence exercised by the appellee.
We defined undue influence in Greenwood, Guardian v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979), as:
[N]ot the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause deprives the testator of his free agency in the disposition of his property. And the influence must be specifically directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relation with them at the time of its execution.
See Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965); Sullivant v. Sullivant, 236 Ark. 95, 364 S.W.2d 665 (1963).
Furthermore, we pointed out in Rogers v. Crisp, Ex’x, 241 Ark. 68, 406 S.W.2d 329 (1966), that:
[I]t is well settled that influence, consisting of appeals, requests, entreaties, arguments, flattery, cajolery, persuasion, solicitations, or even importunity is legitimate and becomes “undue,” so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator.
There is no evidence of that here. The chancellor was in a superior position to judge the witnesses’ credibility. We cannot say that his finding that the appellants failed to prove undue influence by a preponderance of the evidence is clearly erroneous.
As to the decedent’s testamentary capacity, the fact that the wills were executed in such a short time span is an important factor. In Union Nat’l Bank v. Leigh, 256 Ark. 531, 509 S.W.2d 539 (1974), two wills and a codicil were executed one year apart. We stated, “[i]f there had been any such abrupt cessation of testamentary capacity, we should expect it to be reflected in the testamony of the two doctors . . . There is, however, no such testimony.”
Similarly, here the decedent’s physician testified that his mental condition varied in that sometimes he was a little confused and sometimes he was “pretty clear.”
In Rogers, supra, we stated that:
It is not unusual for some member of a family to feel that he has been mistreated by other members of the family, and, whether right or wrong, it is apparent that Lewis had “fallen out” with his sister. Nor can it be said to be abnormal or unnatural for a testator, without wife and children, to leave property to a good friend rather that to a collateral relative.
In Sullivant v. Sullivant, supra, we stated:
Capacity to understand the effect of making one’s will, and not actual understanding is the test of mental capacity required of the testator . . . Testators are not required by law to mete out equal and exact justice to all expectant relations in the disposition of their estates by will, and the motives of partiality, affection, or resentment, by which they naturally may be influenced, are not subject to examination and review by the courts.
Here, the fact that Davis had the capacity to understand the effect of his second will is demonstrated by the language, “revoking all prior wills and especially that one I made a few days ago.” And as stated above, the fact that the appellants expected part of the estate and the testator disappointed them is not subject to judicial examination and review. The chancellor found that the testator had the requisite capacity and that finding is not clearly erroneous.
This same principle was stated in Abel v. Dickinson, 250 Ark. 648, 467 S.W.2d 154 (1971), where we said:
The expression “unjust and unnatural will” is usually applied when a testator leaves his estate, or a large portion of it, to strangers, to the exclusion of natural objects of his bounty without any apparent reason. A will cannot be said to be unnatural because a testator preferred one for whom she had developed a close and affectionate relationship ... or when the natural objects of the testator’s bounty are in no need of funds, aid or assistance.
As to the insane delusions that appellants claim the decedent experienced, we stated in Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981), that an insane delusion is:
Where one conceives something extravagent, and believes it as a fact, when in reality it has no existence, but is purely a product of the imagination, and where such belief is so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a person is possessed by an insane delusion . . .
Such a delusion must not only exist but the will must be a product of the delusion . . .If there is any basis in fact for the delusion, or if it is not proved that the will was a product of the delusion, such a delusion will not warrant setting aside a legal document.
We also stated in Huffman that there was conflicting evidence about the presence of an insane delusion, it was the role of the probate court to resolve the conflict. The appellants contend that the testator’s statement that the Edwardses did not care about him was an insane delusion; the probate court was in the better position to resolve such a contention.
The appellant’s remaining points on appeal are that the appellee should not be allowed to profit by her wrongful acts in causing the death of the decedent and that the certificates of deposit were void because of the fraud and undue influence exercised by the appellee. The first argument is without merit. We also uphold the chancellor’s finding that there was no fraud or undue influence by the appellee as regards the certificates of deposit and that they are therefore valid.
Affirmed.
Hubbell, C.J.„ not participating. | [
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George Rose Smith, Justice.
The appellant, Curtis W. Rogers, brought this suit to recover for personal injuries suffered in downtown El Dorado while he was attempting to cross Main Street on foot in the middle of the block. Rogers was struck on the side of his face by the lefthand side-mirror on the defendant’s pickup truck, which had approached from the plaintiff’s right. The jury returned a general verdict for the defendant.
For reversal it is argued that the court should not have given an instruction on assumption of risk and should have given an instruction defining the defendant’s duty if he should have seen danger ahead. We agree with the appellant on the first point and remand the case for a new trial.
Just before the accident the plaintiff’s wife was driving him to the post office on Main Street, to mail a letter. They stopped as about the fourth car in a line of traffic waiting for a red light ahead of them at Main and Jackson. Since they were opposite the post office, Rogers got out of the car, walked around in front of it, and started to cross the other lane to the post office. He testified that at about the center line he stopped, looked to his right and saw the red light, and looked to his left, seeing nobody coming. As he was “beginning to look back to the right” he saw the mirror about to hit him. He put his hands on the truck to push himself back, but the mirror struck his face. A photograph taken from the rear of the truck shows that the mirror extended apparently less than a foot from the body of the truck.
The defendant Kelly testified that he had been waiting on Jackson Street for the light to change to green for him. When it did he started forward and turned to his right, toward the post office. He said he was looking straight ahead but did not see Rogers until Rogers’ hands were in contact with the hood of the truck. When Kelly brought his truck to a stop it was eight to ten feet past where Rogers had fallen to the pavement. There is no indication that Kelly was not driving quite slowly when the accident took place.
The case was submitted to the jury on the basic comparative negligence instruction. AMCI Civil 2d, 2102 (1974). The court did not give AMI 2115, on comparative fault. It did, however, give the revised AMI instruction on assumption of risk, AMI 612, as set out in the 1982 pocket part. That instruction told the jury that the defendant had the burden of proving the “defense” of assumption of risk, elements of which were that the plaintiff knew that a dangerous situation existed and voluntarily exposed himself to it.
The instruction should not have been given. It is argued by the appellee that the instruction was proper, because Rogers admitted he knew it was dangerous to cross Main Street in the middle of the block. Such a knowledge of general danger is not sufficient; one assumes the risk only of known specific perils. Prosser & Keaton on Torts gives a comparable situation as an illustration:
It is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic traveling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use due care to watch for him and avoid running him down. On the contrary, he is insisting that they shall.
Prosser & Keaton, Torts, p. 485 (5th ed., 1984). Our own law is to the same effect. McDonald v. Hickman, 252 Ark. 300, 478 S. W.2d 753 (1972). There the plaintiff admitted knowing that it is dangerous to enter a house while it is under construction, but he was not aware of an open stair well into which he fell. We upheld the trial court’s refusal to instruct on assumed risk, because the plaintiff did not know of the danger presented by the stair well.
We caution the bench and bar that AMI 612 should be used only in exceptional circumstances, if indeed it is ever proper now that assumption of risk is not a complete defense. The instruction refers to assumption of risk as “that defense” without explaining that it is not in fact a defense. We fear that in most situations AMI 612 would suggest to the jury, as does an unavoidable accident instruction, that assumption of risk is an issue to be considered separately, in addition to the plaintiff’s negligence. See Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872 (1965). Prosser & Keaton, supra, examines the matter at length in Section 68, noting at page 498 that most courts considering the matter have held that when a comparative fault statute is controlling, an instruction on assumption of risk should not be given. See, for example, Meese v. Brigham Young Univ., 639 P.2d 720 (Utah 1981); Polsky v. Levine, 73 Wis.2d 547, 243 N.W.2d 503 (1976).
The appellant’s second argument is that the court, in giving AMI 901, should have included the bracketed matter in subparagraph (B), telling the jury that if danger ahead would have been reasonably apparent to Kelly if he had been keeping a proper lookout, it was his duty to have his vehicle under such control as to be able to check its speed or stop if necessary to avoid injury to others. The court did give subsections (a) and (d) of Ark. Stat. Ann. § 75-628 (Repl. 1979), in the format of AMI 903, telling the jury that it is the duty of a pedestrian crossing at a point other than a crosswalk to yield the right-of-way to vehicles but that it is nevertheless a driver’s duty to exercise reasonable care to avoid colliding with a pedestrian.
There was no error. Both parties were doubtless guilty of some negligence, in that neither saw the other until about the moment of impact. According to the testimony most favorable to Rogers, if Kelly had been keeping a lookout he would have seen a pedestrian standing stock-still inside a line of cars and looking in both directions before deciding to continue across Main Street. The court had told the jury by AMI 901 (A) that it was Kelly’s duty to keep a lookout for persons on the street and by the statute that it was also his duty to exercise due care with respect to pedestrians. We do not think the court was required to go still farther by imposing an affirmative duty on Kelly to be in a position to stop merely because he saw a pedestrian standing in a position of apparent safety near the center of the street.
Reversed and remanded.
Hubbell, C.J., and Hickman and Purtle, JJ., dissent. | [
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Steele Hays, Justice.
Christian Ikani, a counselor at the Department of Correction, filed this defamation suit against two other Department of Correction employees, Maggie Bennett and Mike Russell. In November, 1978, Ikani had been detained by the FBI for questioning in connection with an illegal sale of guns to Nigeria. He alleges that in 1983 Maggie Bennett slandered him by making a false statement to Mike Russell that he had been arrested for smuggling guns to Nigeria and Russell libeled him by recording the remárk in a file.
At the close of Ikani’s case Bennett and Russell moved for a directed verdict which the trial court granted. The case is appealed here oh the single issue that it was error to grant a directed verdict on the proof presented. We affirm the trial court.
Reviewing a motion for a directed verdict requires that the evidence be examined most favorably to the party against whom the verdict is directed, including all reasonable inferences that could be drawn from the evidence. If any substantial evidence exists tending to establish an issue of fact in favor of that party, it is error for the court to take the case from the jury. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984); Farm Bureau Mutual Insurance Co. v. Parks, 266 Ark. 454, 585 S.W.2d 936 (1979).
We do not consider whether the fault requirement accorded media defendants in Gertz v. Robert Welch, 418 U.S. 323 (1974) and KARK-TV v. Simon and Smith, 280 Ark. 228, 656 S.W.2d 702 (1983), should be applied to nonmedia defendants, as our holding is not dependent on that point. It is still unsettled whether the fault principle announced in Gertz should be extended beyond the media (see Gertz and the Common Law of Defamation: Of Fault, Nonmedia Defendants, and Conditional Privileges, Vol. XV, Tex. Tech L. Rev., No. 4, p. 823), and the United States Supreme Court has expressly left that question open. See Hutchinson v. Proxmire, 443 U.S. 111 (1979). That issue need not be answered because the appellees pleaded and established the common law defense of privilege, which we believe is controlling here.
In Dillard Department Stores Inc. v. Felton, 276 Ark. 304, 634 S.W.2d 135 (1982), we recognized the interests of employers are subject to a qualified privilege, citing Restatement of Torts (Second), § 595 (1981) and Prosser, the Law of Torts, (3rd Edition), § 110. The privilege is defined in Merkel v. Carter Carburetor Corp., 175 F.2 323 (8th Cir. 1949), as:
A privileged communication is an exception to the rule that every defamatory publication implies malice. A qualified privilege is extended to a communication made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, either legal, moral, or social, if made to a person having a corresponding interest or duty and the burden of proving the existence of malice is cast upon the person claiming to have been defamed.
There is no substantial evidence in this case the appellees acted from improper motives, or that the privilege was abused or exceeded reasonable bounds. The basis for the privilege is plain, both Bennett and Russell had supervisory responsibilities over appellant. That Maggie Bennett was Ikani’s superior is not questioned, but as to Mike Russell, Ikani’s testimony is inconclusive — at one point he wasn’t sure whether Russell had supervisory status, at another point he seemed to make that concession. If any doubt remains, the testimony of Dr. R. F. Musolino, head of the unit to which these parties were assigned, a witness for Ikani, settles the matter. Russell, he said, was in charge of Ikani.
Thus, we have an exchange of information between two supervisory employees concerning an employee under their charge and for whose performance they are responsible. The information, touching as it did on possible illegal activity, was not merely relevant to job performance, but in the charged atmosphere of this particular employment, to the security of the prison itself. There was uncontradicted proof that information of this kind was systematically used by inmates to extort favors or bribes from personnel about whom damaging information was known. We think it would not be in the public interest to impede the free exchange of relevant information between individuals having the responsibilities of these appellees by removing the privilege given their utterances, so long as those communications do not exceed the limits of the privilege and are not primarily inspired by ill will or spite.
We find no substantial evidence that Russell divulged the notation in his file to others. Ikani mentioned Lt. Jimmy Taggart as one possibility, but Taggart, who was Ikani’s witness, said he had never seen Russell’s file, that Ikani himself told him about the incident. Besides, Taggart was Chief of Security of the Unit, and we are not prepared to say the privilege would not apply to him in the absence of any argument from the appellant to that effect.
We noted in Dillard v. Felton, supra, that the privilege is not absolute, but is subject to the condition that the communication must be exercised in a reasonable manner and for a proper purpose. The immunity does not protect a defendant from publication to persons other than those whose hearing is reasonably believed to be necessary and useful for the furtherance of that interest. Here, appellant’s brief does not discuss the pivotal issue of privilege, it simply argues that the statements were false, were injurious to Ikani’s reputation, and hence a prima facie case of defamation was established. But when the defense of privilege is pleaded and established in the first instance, as in this case, the burden shifts to the plaintiff to prove the privilege has been abused by excessive publication, by use of the occasion for an improper purpose, or by lack of belief or grounds for belief in the truth of what is said. Prosser and Keeton on Torts, (5th Edition), § 115, p. 835. McClain v. Anderson, 246 Ark. 638, 439 S.W.2d 296 (1969).
Affirmed. | [
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Jack Holt, Jr., Chief Justice.
This is another in a series of DWI appeals testing provisions of Act 549 of 1983.
The appellant was convicted in municipal court of his third offense of driving while intoxicated. He appealed the conviction to circuit court where a jury found him guilty of DWI, third offense. The appellant was sentenced to five months in the county jail; ordered to pay a $1,000.00 fine; and his driver’s license was suspended indefinitely. This appeal from that order is before us under Sup. Ct. R. 29( 1 )(c).
The appellant raises two points on appeal. His first contention is that Act 549 is void for vagueness and therefore unconstitutional. The appellant maintains that the act does not furnish a sufficiently ascertainable standard of guilt and is therefore violative of due process, and that a constitutionally forbidden irrebuttable presumption is created.
These same constitutional questions have been raised in other cases challenging Act 549 and we have upheld the constitutionality of the act. See Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984); Spicer v. City of Fayetteville, 284 Ark. 315, 681 S.W.2d 369 (1984); Long v. State, 284 Ark. 21, 680 S. W.2d 686 (1984); and Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984) (supplemental opinion on denial of rehearing, December 21, 1984).
For his second assignment of error, the appellant states the judgment entered by the circuit court was erroneous in two respects.
First, he contends it was contrary to Ark. Stat. Ann. § 75-2506 (Supp. 1983) which provides:
Upon finding of guilt or a plea of guilty or nolo contendere for violating Section 3 [§ 75-2503] of the Act, the Court shall immediately request and the Highway Safety Program or its designee shall provide a presentence screening and assessment report of the defendant. The presentence report shall be provided within thirty (30) days of the request, and the court shall not pronounce sentence until receipt of the presentence report. The report shall include but not be limited to the offender’s driving record, alcohol related criminal record, an alcohol problem assessment, and a victim impact statement where applicable.
The jury was instructed to ascertain punishment at the same time they determined guilt and there is no indication in the record that a presentence report was furnished to the court prior to pronouncement of sentence. Although the statute is cast in mandatory terms, the record reflects that no objection was made at the time of sentencing to the lack of a presentence report. We do not consider questions raised for the first time on appeal. State v. Brown, 283 Ark. 304, 675 S.W.2d 822(1984).
Second, the appellant contends the judgment was erroneous as to the court’s indefinite suspension of his driver’s license.
Arkansas Stat. Ann. § 75-2511 (Supp. 1983) provides that upon conviction of DWI, the court shall transmit the operator’s license to the Office of Driver Services and instruct them to suspend the license:
for at least two [2] years for the third offense within three [3] years of the first offense; and revocation for the fourth or subsequent offense occurring within a three [3] year period of the first offense. Revocation shall continue until and unless a three [3] year period has transpired during which the person has not been cited for any moving traffic offense or violation.
The appellant maintains that the statute does not provide for an “indefinite suspension” as ordered by the judge. We agree, and since the statute orders a two year suspension for a third offense of DWI we modify the trial court’s judgment to a two year suspension rather than an indefinite suspension of appellant’s driver’s license. See Ark. Stat. Ann. § 27-2144 (Repl. 1979); Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980).
The argument is also made by the appellant that § 75-2511 is vague in that it does not provide for a maximum penalty. We do not consider this issue on appeal however, because of the appellant’s failure to make convincing argument or cite any authority for the proposition. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
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John I. Purtle, Justice.
The trial court denied appellant’s request for Rule 37 relief on a claim of ineffective assistance of trial counsel. Four specific and one catchall grounds are argued on appeal. None of them amount to prejudicial grounds requiring reversal of the decision of trial court.
The first argument is that the trial counsel was ineffective by failing to object to certain hearsay evidence thereby preventing argument on appeal' that the evidence was erroneously received. The evidence was a statement made by an accomplice who did not testify at appellant’s trial. Defense trial counsel asked an officer to read a part of the accomplice’s statement which read: “I did shoot Britt Coleman with a .16 gauge shotgun.” The state, on cross-examination, had the officer read additional parts of the statement which revealed the shotgun was owned by appellant. Defense counsel then objected but did not get a ruling from the trial court. The state’s witness continued to read from the statement without objection. There was no redirect examination by defense counsel. Appellant points to the opinion of the Court of Appeals which held that the evidence was invited or objection was waived. Coston v. State, 10 Ark. App. 242, 663 S.W.2d 187 (1984).
The trial court, at the request of appellant’s present counsel, made detailed findings of fact and conclusions of law. The trial court concluded at the Rule 37 hearing that defense counsel’s strategy was to show conclusively by the hearsay evidence that it was not appellant who shot Britt Coleman. The court found that counsel’s failure to vigorously oppose the reading of additional parts of the hearsay statement was a calculated risk as part of his strategy. The court was aware of trial counsel’s experience both as defense counsel and as the elected prosecuting attorney for that district. A claim of ineffective assistance of counsel cannot be based upon improvident strategy. Mitchell v. State, 271 Ark. 512, 609 S.W. 2d 333 (1980). We cannot say that the finding by the trial court was clearly against the preponderance of the evidence. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980).
The second argument is that the trial counsel erred in introducing and allowing the state to explore a past misdemeanor conviction for possession of marijuana. No doubt defense counsel was at all times aware that the state had a full and complete confessional statement voluntarily made by appellant before counsel was employed. One part of that statement reads: “Told him I had — I had been through this, this kind of stuff before.” Counsel testified the statement had already been read to the jury and he wanted to let his client explain it. This type of strategy is used often by able and experienced defense attorneys. The trial defense counsel had 34 years trial experience. It is true the prior conviction could not have been introduced for the purpose of showing other crimes or wrongs. Unif. R. Evid. 404. Neither was it admissible under Unif. R. Evid. 609. However, the appellant had told his attorney he had a prior marijuana conviction thereby leading counsel to believe it was a felony. He could have been questioned about a prior felony conviction when he took the stand, as he did. Striking first in the case when it is known that damaging evidence is forthcoming is a frequent trial strategy by able and experienced attorneys. The trial court made lengthy findings on this issue and concluded that trial counsel acted within acceptable standards and we cannot say that the decision of the trial court was clearly erroneous.
The third argument is that trial counsel erroneously failed to request AMCIs 201 and 403. The first instruction explains to the jury the proof and requirements relating to co-conspirators and the second relates to accomplice status when the issue is in dispute. In view of the appellant’s written confession it is understandable how strategy might differ in the defense as compared to a defense where the accused had not confessed. Hindsight might actually calase defense counsel to think he should have gone about the defense in a different manner. However, the same may be said about any trial strategy. The trial attorney testified that he did not request AMCI 403 because he felt the state could use it as fuel to advance the impact of its closing argument. The attorney stated that the appellant’s statement contained sufficient evidence to corroborate the accomplice testimony. The trial court found that defense counsel had the discretion as a matter of trial tactics not to ask that these two instructions be given. The decision to ask for specific instructions must be made after completion of the trial and the circumstances may not be the same in any two cases. Defense counsel no doubt made his decision based upon the entire proceedings including his observation of the witnesses and the expected impact upon the jury. From the record and the findings of fact and conclusions of law made by the trial court we conclude that it was not prejudicial error not to request these two instructions.
The fourth and final argument for reversal is that other errors not previously argued, when combined with those argued, prove not only that the trial counsel’s efforts were insufficient but also that appellant did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981); Strickland v. Washington, _U.S. _ 104 S. Ct. 2052 (1984). One of the errors argued concerns the failure of trial counsel to request severance of the battery charge and the marijuana charge. Counsel explained that he knew he would be entitled to severance of the two different unrelated charges but felt trying them together might cause the jury to impose a lesser penalty than if they were tried separately. Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979). Also, he wanted to try the battery case before the accomplice was tried in order to take advantage of the accomplice’s expected invocation of his fifth amendment right to refuse to testify. The accomplice in the battery case did not testify. At least it is known that one part of the strategy worked. We would have to speculate to state that the other part did not.
An inflammatory article appeared in the Arkansas Democrat, a newsnaper with statewide circulation, the day before the trial commenced. The story gave a vivid account of how the victim of the battery survived after being shot several times with a shotgun and left to die in the countryside. Appellant argues a change of venue or continuance should have been sought. Defense counsel again considered the necessity of beating the accomplice to trial. He also considered the likelihood of a more severe penalty after a trial in an adjacent county. Having been a prosecutor in the district, he was well acquainted with the general feeling, in both counties, of how to deal with a marijuana peddler. He chose Clark County. Like the trial court we are not able to state that his decision was even improvident, let alone ineffective.
We have considered arguments relating to voir dire of the jury, peremptory challenges, waiver of the right to remain silent, challenges for cause, improper questions about a police scanner, a stipulation that a substance was marijuana, conflict of interest of the prosecutor, absence of appellant during selection of jury instructions, and absence of appellant when the jury returned to the courtroom. The trial court found that the jury did not return to the courtroom during deliberations. The jury , as seated all agreed to hold the state to the “beyond reasonable doubt” burden and to forget anything they may have read or heard about the case and to try the case strictly in accordance with the instructions of the court. The court made specific and detailed findings on each and every one of these arguments and we are unable to hold that the opinion of the trial court was clearly against the preponderance of the evidence. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981).
It would unduly lengthein this opinion to respond in detail to every single argument presented in appellant’s excellent brief. We have considered all of them and carefully scrutinized the trial court’s findings of facts and conclusions of law. The appellant himself supplied most of the compelling evidence against himself when he voluntarily gave a confession. The trial counsel was at a distinct disadvantage because of that confession. Trial counsel made decisions which may have been different had the confession not existed. Considering all of the circumstances we find any error by defense counsel was not prejudicial and did not result in denying appellant a fair trial. Blackmon v. State, supra; Strickland v. Washington, supra.
Affirmed. | [
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John I. Purtle, Justice.
Appellant, the County Judge of Sevier County, appeals from a chancery court order enjoining him from leasing county property to private interests and from contracting to use county property and employees to perform services for and supply materials to private interests. Appellant contends that the chancellor erred in finding his activities in violation of the Arkansas Constitution and in failing to find that his activities were authorized by Act 183 of 1983. We agree with the chancellor’s findings and affirm.
The undisputed evidence at the trial showed that appellant made it a practice both to lease county equipment to private persons and to contract with private persons to provide county equipment, supplies and personnel to perform services in the private sector. The evidence also showed, and the chancellor found, that appellant had charged and received adequate compensation for the use of county property and for the labor of county personnel. The injunction was based on the chancellor’s conclusions that appellant’s activities were in violation of Ark. Const, art. 16, § 13 and art. 12, § 5.
Arkansas Const, art. 16, § 13 reads as follows:
Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.
We considered this question in Needham v. Garner, County Judge, 233 Ark. 1006, 350 S.W.2d (1961). On essentially identical facts, we held that the actions of the county judge were “unlawful official acts which could logically result in illegal exactions.” We reasoned that illegal exactions were likely to occur because such use of county property “could result in the need for more tax money to repair and replace the road machinery.” This was true even though the county judge’s activities were producing a profit. Arkansas Const, art. 16, § 13 protects the public interest against such potential illegal exactions to the same degree as against actual and ongoing illegal exactions. We held that the county judge did not have the power to perform private jobs because the Constitution gave the county courts, and not the county judges, exclusive jurisdiction in all matters relating to internal improvements and local concerns of the counties. We specificaly declined to decide whether this grant of jurisdiction to the county courts gave them the power to do the sort of acts in issue in that case and this one.
We reached similar results in Maroney v. Universal Leasing Corp., 263 Ark. 8, 562 S.W.2d 77 (1978) and Cunningham v. Stockton, County Judge, 235 Ark. 345, 359 S.W.2d 808 (1962).
Appellant concedes that Needham, supra, controls this case and requires affirmance if the law on the subj ect has not been changed. Appellant contends that the adoption of Ark. Const, amend. 55, § 3, after the decision in Needham and the other cases cited, changed the relevant law.
Amendment 55, § 3 gives the county judge, among other powers and duties, custody of county property. Before the adoption of Amendment 55, the county court had custody of county property. Ark. Const, art. 7, § 28; former Ark. Stat. Ann. § 22-601 (Repl. 1962); Needham. Appellant argues that “custody” of the county property includes the power to lease it and contract for its use on private projects.
Amendment 55 did not change the law on this subject. We recognize that the county court, prior to the adoption of Amendment 55, had the power to lease real county property to private interests. Chamber of Commerce v. Pulaski County, 113 Ark. 439, 168 S.W. 848(1914); State v. Baxter, 50 Ark. 447, 8 S.W. 188 (1887). However, the letting of the county’s personal property is a qualitatively different matter. Personal property is much more likely to be depleted or destroyed than real property, and thus an illegal exaction is much more likely to occur.
Appellant also argues that Act 183 of 1983 authorizes his actions. We cannot agree. Act 183 was enacted in implementation of Amendment 55. The Act, section one of which is codified at Ark. Stat. Ann. § 17-3901 (Supp. 1983), states that the county judge has “the right to assign or not assign use of [county] property . . .’’The chancellor held the Act does not purport to amend the Constitution or remove its prohibition against appellant’s actions. This ruling was correct. Statutes are presumed to be constitutional. A clear incompatibility between a statute and the Constitution must be shown before the statute will be held unconstitutional. Gay v. Rabón, 280 Ark. 5, 652 S.W.2d 836 (1983). The chancellor was correct in finding that the Act does not purport to legitimize the actions in question here.
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Per Curiam.
Petitioner was charged with first degree murder and tried by a jury. He was found guilty of second degree murder on April 28, 1983, and sentenced to 20 years imprisonment. No appeal was taken. He sought a belated appeal which we denied on February 27, 1984. At that time, we found that petitioner had specifically informed counsel that he did not wish to pursue an appeal.
The motion is denied. A petitioner is not entitled to a subsequent motion once relief has been denied by this Court.
Motion denied. | [
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Per Curiam.
Petitioner Thomas Jeffrey Tackett was found guil ty by a jury of manslaughter and leaving the scene of a personal injury accident. He was sentenced to a term of eight years imprisonment in the Arkansas Department of Correction. He appealed the manslaughter conviction. The Court of Appeals affirmed. Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground of ineffective assistance of counsel.
Petitioner first alleges that counsel did not adequately investigate the circumstances of the automobile accident which led to his conviction for manslaughter. The record indicates that counsel called the petitioner and four other witnesses in an attempt to establish that petitioner was not at faul t in the accident. Counsel also cross-examined the State’s witnesses at length on the State’s version of how the accident occurred. Although petitioner contends that counsel should have investigated the crime scene, he does not explain what helpful information such an investigation would have revealed. Counsel has “a duty to make reasonable investi gations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, -U.S--, 104 S. Ct. 2052, (1984). Even if counsel did not visit the scene of the accident, his decision not to do so must be assessed for reasonableness based on all the circumstances, applying a heavy measure a deference to counsel’s judgments. Strickland v. Washington. Since petitioner has not demonstrated that counsel failed to develop any specific element of the defense, we find no basis for a finding of incompetence.
Petitioner next contends that several witnesses could have been called to testify that the victims whose car went off the road had been to a beer party and were using drugs before on the day of the accident. He also contends that there were two witnesses who could have testified that one of the victims caused the accident by j umping from the back seat to the front seat of the car.
It is well settled that the decision to call certain witnesses and reject other potential witnesses is largely a matter of trial strategy. Counsel must use his own best judgment to determine which witnesses will be beneficial to his client. See Hayes v. State, 280 Ark. 509, 660 S.W. 2d 648 (1983). It is possible that another attorney might have attempted, and perhaps succeeded, in having the testimony of the witnesses admitted into evidence, but petitioner has not established that counsel’s decision prejudiced him or amounted to more than a tactical decision.
Petitioner’s final allegation concerns a statement made by venireman Owens during voir dire. The following exchange occurred between counsel and Mr. Owens:
State: Mr. Owens, have you heard the questions I have asked these other jurors?
Juror: Yeah.
State: Would your answer be similar to theirs?
Juror: No.
State: Okay. Thank you, sir. Pass.
Counsel for Petitioner: Pass him back.
State: One moment, Your Honor. Good, Your Honor.
Counsel for Petitioner: He’s good.
The Court: Take a seat in the jury box.
Petitioner argues that the juror’s answers indicated that he was not willing to abide by the Court’s instructions, but the record is silent as to what Mr. Owens was referring when he said, “No.” A reading of the complete voir dire reveals that the routine questions of the prosecutor were sometimes framed, “would your answers be the same” and at other times, “would your answers be different.” After listening to a number of other people answer, it is not unlikely that Mr. Owens simply misunderstood the question. In any event, petitioner has failed to show that he suffered any actual prejudice from Owens’ presence on the jury. To prevail on an allegation of ineffective assistance of counsel with regard to jury selection a petitioner first has the heavy burden of overcoming the presumption that jurors are unbiased. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982) . To accomplish this, a petition must demonstrate actual bias. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983) . Moreover, the actual bias must have been sufficient to prejudice the petitioner to the degree that he was denied a fair trial. Although the record would be clearer with regard to Mr. Owens’ position if counsel had questioned him further, counsel was in a position to assess the juror’s demeanor and weigh his suitability as a juror. As petitioner has not shown that he was actually prejudiced by counsel’s conduct to the point that he was denied a fair adjudication of his guilt, we cannot say that counsel was ineffective. See Strickland v. Washington, - U.S--- 104 S. Ct. 2052 (1984) .
Petition denied. | [
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Webb Hubbell, Chief Justice.
This personal injury case involves two automobile accidents. On October 2, 1979, appellant, Connie Wilson, struck the rear of the vehicle of Thomas J. Evans, appellee. Over five months later, appellee ran into the back of a third party’s vehicle. Appellee contends that the second accident was a result of a black out spell caused by his first accident. This is the second appeal in this case which was reversed and remanded on different issues. Evans v. Wilson, 279 Ark. 224, 650 S.W.2d 569 (1983). After reversal, a verdict and judgment of $35,000.00 was awarded Mr. Evans. On appeal, appellant argues that the second accident was not proximately caused by appellant’s acts and that proof of damages sustained in the second accident should not have been presented. We agree and reverse and remand for a new trial.
Proximate cause is defined in terms of direct causa don. Kubik v. Iglehart, 280 Ark. 310, 657 S.W.2d 545 (1983). Proximate cause is that cause which “in a natural and continuous sequence, produces damage.” AMI 501; Bull v. Manning, 245 Ark. 552, 433 S.W.2d 145 (1968); Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S.W.2d 451 (1961).
In this case, over five months had elapsed between the first accident and Mr. Evans’ second accident. Less than a month before the second accident, Mr. Evans had consulted a physician for vertigo and blacking out, yet he continued to drive his automobile knowing he was subject to spells of dizziness and blacking out.
There was no issue for the jury presented since appellant’s acts did not lead in natural sequence without an intervening cause to appellee’s injuries suffered in the second accident. Although proximate causation is usually a question for the jury, where reasonable minds cannot differ a question of law is presented for determination by the court. Cragar v. Jones, 280 Ark. 549, 660 S.W.2d 168; Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d2 (1983).
Reversed and remanded.
Smith, J., concurs. | [
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Hart, J.
On the 8th day of March. 1907, R. L. Williams brought suit against J. E. Meddock before a justice of the peace for $71.50 for work done in clearing, fencing and cleaning up some land of Meddock.
Meddock claimed that Williams was to cultivate all lands which he cleared; otherwise that nothing was due him for the clearing and fencing. He further pleaded payment, and also as a setoff an account for supplies alleged to have been furnished Williams by him during the previous year.
The trial in the justice’s court resulted in a verdict and judgment in favor of Williams for $34.25. On a trial de novo in the circuit court, Williams interposed a plea of the statute of limitations to the setoff claimed by Meddock.
There was a jury trial and a verdict in favor of Williams for $25. From the judgment entered thereon Meddock has appealed to this court.
His counsel assigns as error the action of the court in allowing Williams to plead the statute of limitations for the first time in the circuit court. We hold, that this was not error.
Sec. 1314 of Kirby’s Digest provides that appeals from all inferior courts to the circuit court shall be tried de novo.
Sec. 4682 provides that “the same cause of action, and no other, that was tried before the justice shall be tried in the circuit court on appeal, and no setoff shall be pleaded that was not pleaded before the justice, if the summons was served on the person of the defendant.”
In construing these two sections in the case of Texas & St. Louis Railway v. Hall, 44 Ark. 375, Chief Justice Cockriee, speaking for the court, said: “If there had been no answer at all in the justice’s court, the defendant could not be precluded from making defense to the action in the circuit court on appeal. The circuit court may permit amendments and allow new issues to be made, keeping clear of new causes of action and setoffs not presented in.the justice’s court.”
This is conclusive of the question. Manifestly, the plea of the statute of limitations is neither a new cause of action nor a setoff.
In the re-direct examination of the plaintiff by Mr. Block, one of his attorneys, appears the following:
Q. “This man Reed, I will ask you if that is the same man that Jim (referring to the defendant) had called as a witness in your case?” A. “Yes, sir.” Mr. Huddleston: “We object.” Mr. Block: “I am going to show that this man Reed is one of Jim’s paid witnesses in any lawsuit that he has had.”
Counsel for defendant assigns as error the action of the court in permitting Mr. Block to make the remarks above quoted in the presence of the jury, but counsel is in no attitude to complain of this because he did not make any objection thereto. It will be seen from an examination of the record on this point that counsel did not object to the remarks of opposing counsel of which he now complains; but that his objection was to the question that preceded the remarks.
Counsel for the defendant also assigns as error'the action of the court in permitting certain questions to be asked witnesses. In each instance objections were made to the questions, and the objections were sustained. The objections to the questions having been sustained, we do not think any prejudice resulted to the' defendant from the form in which they were asked.
Counsel for defendant also insists that the court erred in its instructions to the jury. After a careful examination of them, we are of the opinion that the instructions fully presented the respective theories of the parties, and fairly submitted the issues made by the pleadings and evidence.
Finding no prejudicial error in the record, the judgment is affirmed. | [
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Battee, J.
During the year 1904 A. F. Hampton and his wife, Nancy, -owned the east half of the northeast quarter and southwest quarter of the northeast quarter of section five, in township eighteen north, and in range seventeen west, in Marion County, in this State, as an estate in entirety, and on the 15th day of April, 1904, R. X. DeGraw and W. P. Smith procured from them a deed conveying to the railway company a right of way over these lands, and executed to them an instrument of writing as follows:
“April 15th, 1904.
“It is hereby agreed by the St. Louis, Iron Mountain & Southern Railway Company that it will construct a good sufficient levee at the crossing of Crooked Creek in the S. W. % N. E. Ya of sec. 5-18-17 to fully protect the field owned by A. F. Hampton; said levee to be constructed within 30 days from date hereof.
“R. X. DeGraw, Asst. R. of Way Agt.
“W. P. Smith. D. E.”
The sole consideration expressed in the deed for right of way was one dollar. Crooked Creek flowed along by the lands of Hampton and his wife, and the levee mentioned in the contract was to protect the lands against overflow. The railway company constructed its roadbed on the right of way conveyed to it by Hampton and his wife, and at the same time built a small levee at the place stipulated in the contract, but it proved insufficient, and in the year 1906 Crooked Creek overflowed the field of the Hamptons and washed away the soil, growing crops and fences thereon. Hampton then notified A. W. Jones, assistant engineer of the railway company, of the condition and deficiency of the levee, and he (Jones) promised to build a new, or repair the old, levee, but before the work was completed Hampton died in December, 1906, intestate, leaving Nancy, his widow, and his daughter, Harriet, his only heir. The last work undertaken after it was completed also proved insufficient. In 1908 Crooked Creek again overflowed the lands and washed away the soil, crops and fences. No other levee was constructed or rebuilt. The widow of Hampton married Robert Sanders, and his daughter, Harriet, married Dee Estes. Nancy Sanders conveyed one undivided half of these lands to her daughter, Harriet, and they brought an action against the railway company to recover damages caused by the failure to construct a levee according to its contract, including the damages from overflows.
The defendant answered, and admitted that, on or before the 15th day of April, 1904, the plaintiff, Nancy Hampton Sanders, then Nancy Hampton, and A. F. Hampton, her then husband, owned the land mentioned in the plaintiff’s complaint as joint tenants with the right of survivorship, having an estate therein by entireties, and that on said day they conveyed to the defendant by a proper deed therefor a right of way on which to build its railroad across the lands; and that A. F. Hampton departed this life on the 19th day of December, 1906. It denied that it executed the foregoing instrument of writing, or authorized any one to execute it; that it had notice of its existence at the time the railway company accepted the deed for right of way over the lands mentioned; and, if it was made with A. F. Hampton, denied that he was acting for himself and plaintiff, Nancy.
It alleged that, if the foregoing instrument of writing was a valid contract, “it was personal to A. F. Hampton, and binding the defendant only to protect his field, and did not require it to build a levee to protect the property of the plaintiffs, and, the said A. F. Hampton having since departed this life, and his estate in said field having ceased, and plaintiffs not holding title to said lands under him, denied that it is liable to plaintiffs in any sum whatever for any breach of said contract, if the same has been broken.”
The defendant moved to strike out the instrument in writing sued on, and said that it is void as evidence of a contract, because: “1. Said contract is void for uncertainty in the description of the persons between whom and for whose benefit it was made, for uncertainity as to the subject-matter, and does not show the plaintiffs had any interest therein. (2.) Said pretended written contract does not show with whom the defendant contracted. (3) Said complaint shows on its face that the plaintiffs do not hold under A. F. Hampton, the only name used therein, because, they say, said complaint alleges that said A. F. Hampton had an estate in entirety in said lands with the plaintiff, Nancy Hampton Sanders, as his joint tenant. (4) Said pretended contract purports only to be for the interest of the field owned by A. F. Hampton, whose title and interest in said field ■ceased with his death, and did not descend to the plaintiffs. (5.) That said pretended contract is void as to the description of the field of said A. F. Hampton. That for these reasons said Exhibit A is void as evidence of a contract inuring to the benefit of the plaintiffs, and is void as evidence of any contract whatever.”
The motion was overruled.
Evidence was adduced in the trial by the parties, and instructions were given by the court. The jury returned a verdict in favor of the plaintiffs for $1,040 for breach of contract, for $70 for damages by overflow of 1906, and for $40 for damages by overflow of 1908, amounting in the aggregate to $1,150, for which the court rendered judgment; and the defendant appealed.
So. much of the evidence and instructions as is necessary to state will be set out in the opinion.
Appellant insists that the writing sued on is insufficient to constitute a valid contract. It contends that it is uncertain as to the parties and subject-matter, and does not show that either of the plaintiffs has any interest therein or right to maintain an action for a breach of the same.
The deed for right of way executed by A. F. Hampton and his wife and the contract sued upon were executed on the same day and form a part of the same contract, each writing containing the undertaking of only one party, and both being necessary to constitute a complete contract. The contract was made in the name of appellant; the language of the contract being, “It is hereby agreed by the St. Louis, Iron Mountain and Southern Railway Company,” etc. They refer to the same land. Crooked Creek, mentioned in the contract, flows along the lands mentioned in deed for right of way and the contract. The railroad was constructed on the right of way over these lands and across the creek. The levee was required by the contract to be constructed at this crossing to protect the field of A. F. Hampton against floods. The field to be protected was evidently that exposed to these floods, which was the field on the lands owned by A. F. Hampton and his wife as an estate in entirety, and it is thus shpwn that the contract was made for their benefit. When the railroad was constructed on the lands of the Hamptons, a levee was built at this crossing which proved insufficient to protect their lands against overflows, and another was built at the same place, and this also failed in the same manner. The consideration expressed in the deed for the right of way was only one dollar. The instrument of writing, construed in connection with the deed as a part of the same contract, furnishes the true consideration of the latter, and each furnishes the consideration of the other. The language of the instrument of writing and of the deed, read in the light of these facts, shows that the appellant, in consideration of that right of way, contracted with the Hamptons to build a levee at the crossing of Crooked Creek by its railroad sufficient to protect the field on their lands. Thus interpreted, it is a valid contract. The facts do not add to or vary the contract, or change it, but show the crossing and field meant by the contract, and the parties thereto are necessarily implied by the deed and contract.
There was evidence tending to prove that R. X. DeGraw, assistant right-of-way agent, and W. P. Smith, division engineer, had authority to make the contract entered into by them on behalf of the appellant, or, if they did not have, it was ratified by their principal by attempting to perform it.
Letters of A. W. Jones, assistant engineer of appellant, directed to A. F. Hampton, in his lifetime, in which he promised in behalf of appellant to repair or rebuild the levee at the crossing of railroad on Crooked Creek, admitted as evidence over objections of appellant, were admissible to show authority for or ratification of the contracts of DeGraw and Smith.
Lee Estes, the husband of one of the plaintiffs, was allowed to testify against the objection of appellant as to the contract with appellant. But that related to his being in possession of such contract, and was not prejudicial, as the existence of such a contract was shown by undisputed evidence. He did not pretend to say that it was entered into by authority of appellant. He was allowed to testify as to letters of A. W. Jones, assistant engineer of appellant, being in possession of the plaintiffs. We hardly think that this was prejudicial. Fie never saw Jones write, and did not know his writing. He knew only that the letters were in possession of Hampton, and after his death in the hands of plaintiffs. That is not a disputed fact.
Mrs. Sanders, being a party to the contract sued on, is entitled to sue and recover damages. She conveyed one undivided half of the land to Mrs. Estes, and this establishes a privity of the estate between them, and the latter by virtue thereof is entitled to recover. St. Louis, Iron Mountain & Southern Railway Company v. O’Baugh, 49 Ark. 418. And the measure of the damages they are entitled to recover is what it will reasonabty cost to build the levee that appellant undertook to construct.- Varner v. Rice, 39 Ark. 344; Plunkett v. Meredith, 72 Ark. 3.
Appellant contends that a different rule of damages was established -by St. Louis & North Arkansas Railroad Company v. Crandell, 75 Ark. 89, and St. Louis, Iron Mountain & Southern Railway Company v. Berry, 86 Ark. 309. But that proves nothing. The measure of damages is not the same in all cases, but it is intended to be compensatory for losses sustained, and varies according to the facts and circumstances of each case. For a breach of contract the damages recoverable should “be such as may fairly and reasonably considered as arising naturally therefrom, that is, according to the usual course of business, or such as may reasonably be supposed to have been in the contemplation of both parties at the time that the contract was made, and as a probable result of the breach.” In the first case cited Crandell, in consideration that the railroad company would locate and build a depot on a certain tract of land, purchased a part of the tract for the railroad, and gave it to the company, arid also gave the right-of-way over his own land. The grantee constructed its road on the right-of-way given and built a depot on the tract purchased, and, after it had been established and maintained for a short time over a year, erected a passenger station 500 yards distant, and abandoned it as a passenger depot Before the abandonment Crandell erected various improvements upon his property suitable to its then location close to the station. He recovered the amount paid for the tract, the value of the right of way through his land, and the loss in value of the property built by him near the depot. Such was the loss sustained by him by the breach of his contract. He could not recover the value of the depot, for it was not built or intended for him, but for the public. In the second case cited a right of way across certain land was conveyed to a railroad company in consideration of its placing a depot on the land, and the company .failed to do so. It was held that the grantor was entitled to recover the value of the land so taken and appropriated, as damages. That was the loss he sustained by reason of the breach of his contract. He was not entitled to the value of a depot for the reason given in the first case. In the case at bar the appellee was entitled to a certain levee under his contract, and the reasonable cost of constructing it was what he lost by the breach of his contract.
The court instructed the jury over the objections of the appellant, as follows:
“3. If you find for the plaintiff on the second paragraph of their complaint, and further find that a part of the crop of the year 1906 was injured or destroyed, the measure of damages would be the actual value of the interest of plaintiff, Nancy Hampton Sanders, in the crop at the time of said injury, if any, with six per cent, interest from the date thereof.”
“4. If you find for the plaintiff on the third paragraph of their complaint, and further find that a part of the crop of 1908 was injured or destroyed as alleged, the measure of damages would be the actual value of the interest of plaintiff in the crop, if any, at the time of the injury, with six per cent, interest from the date thereof.”
“6. Even if you should find for the plaintiff, yet the measure of damages to crops would be only the rental value of the land upon which crops were growing and were destroyed, plus the reasonable value of the labor in planting and cultivating such part of such crops as were damaged, provided such crops at time of the damage were so immature that they did not have a market value at the time.”
The court erred in giving these instructions. The reasonable ■costs of constructing the levee is a full compensation for the failure to construct the same. If the appellees wished to avoid other damages from the same source, they could have done so by constructing the levee and putting themselves in the condition in which a performance o'f the contract would have placed them. Varner v. Rice, 39 Ark. 344.
Appellant insists that the damages assessed by the jury were excessive. It failed to construct a levee according to its contract, and one witness testified that cost of such a levee would be $2,000. The jury returned a verdict for $1,040.00 for that damage. The judgment of the trial court for that amount is affirmed, and is reversed as to damages awarded for overflows. | [
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McCutaoch, C. J.
About forty years ago the plaintiff, Howell Winters, discovered, or thought he discovered, a valuable lead of zinc ore on a tract of land in Sharp County, Arkansas, containing 320 acres, then owned by a man named Street. He promised Street to say nothing about it and, keeping 'the secret, he afterwards removed from that locality. Street sold the land, and afterwards died, and the land finally became by purchase the property of the defendant Sullivan.
Sometime in the year 1903, while the plaintiff was living in Polk County, Arkansas, he called to mind his former discovery, and decided to take the matter up and see if he could not make something out of it, and some correspondence took place by letter between him and the defendant. The letters have been lost, and there is some conflict as to their contents, but that is immaterial, as the rights of the parties depend upon an oral contract subse quently made between .them. It does not appear whether or not at that time the plaintiff knew that the lands were owned by Sullivan, but he afterwards ascertained that fact.
In September, 1903, the plaintiff returned to Sharp County, and went to see the defendant at his home for the purpose of renewing negotiations. He then informed the defendant that it was upon the latter’s land that the discovery of zinc, had been made. They thereupon entered into an oral contract whereby it was agreed that the plaintiff should proceed with his investigation and develop to a certainty whether or not there was zinc ore in paying quantities on the land, and that when the land should be sold the plaintiff should share in the proceeds of the sale. There is a serious conflict between their several contentions as to what proportion of the proceeds of sale the plaintiff should have. He contends that he was to have one-'half of the proceeds, but the defendant contends that according to the agreement the plaintiff was only to share equally in the proceeds of sale after deducting the market value of the land for agricultural purposes.
The plaintiff, and another person associated with him in the work, proceeded with the development of the mineral prospect, and did considerable work in the way of opening up shafts and cuts and taking out mineral. According to the testimony, considerable zinc was found on the land. In 1907 the defendant sold 160 acres of the land to Vaughan & Estell for $6,000, and the plaintiff instituted this action against the defendant to recover one-half of that sum, alleged to be due him under the contract. The defendant, in his answer filed in the case, denied that he had entered into any contract with the plaintiff agreeing to pay him any portion of the proceeds of sale of the land; but in his testimony it is admitted that such a contract was made, and they differ as to the terms thereof, as already stated.
On motion of the defendant, and without any objection on the part of the plaintiff, the cause was transferred to equity, where it proceeded to final decree upon the pleadings and proof. The court sustained the contention of the defendant as to the terms of the contract, and found that a fair market value of the lands ■for farming purposes, not considering the mineral thereon, was $20 per acre, or $3,200 for the tract sold, leaving a profit of $2,800 on the sale, one-dialf of which was decreed to plaintiff. The de fendant appealed to this court, and afterwards the plaintiff cross-appealed. Both .parties contend here that the chancellor erred in his finding of facts, the plaintiff contending that the findings were erroneous as to the terms of the contract and also as to the value of the land for agricultural purposes. The defendant also contends that the land was of greater value for agricultural purposes than the amount found by the chancellor.
We are of the opinion that the findings of the chancellor were correct throughout, or, at least, after a consideration of all the testimony, which is voluminous, we cannot say that the findings are against the preponderance thereof. The direct testimony as to the contract between the parties is nearly even balanced; but, considering the statements of a number of witnesses who testified as to the admissions made by the plaintiff, we think that on this issue the scales turned in favor of the defendant’s contentions, that the value of the land for farming purposes was to be deducted.
The finding as to the value of the land for this purpose was not strictly in accord with the testimony of either of the parties, but the court fixed the value between the two extremes. Most of the defendant’s witnesses testified that it was worth $25 per acre, whilst those introduced by the plaintiff put the value at far less than that amount per acre. The court fixed it at $20 per acre, and we are not prepared to say that this assessment of the value was against the preponderance of the evidence.
The defendant also pleaded the statute of frauds in bar of the plaintiff’s right of recovery. Two sections of the statute are pleaded: The one relating to contracts “for the sale of lands, tenements or hereditaments, or any interest in or concerning them;” and the clause relating to contracts not to be performed within a year from the making thereof. The oral contract in question, which was one for the division of the proceeds of a sale of land to be thereafter made, is not within the statute of frauds. McClintock v. Thweatt, 71 Ark. 323; Trowbridge v. Weatherbee, 11 Allen 361; Linscott v. McIntire, 15 Me. 201; Hess v. Fox, 10 Wend. 436; Bunnel v. Taintor, 4 Conn. 568; Bruce v. Hastings, 41 Vt. 380; Benjamin v. Zell, 100 Pa. St. 36.
If that part of the contract relating to the sale of the land be held to be within the statute of frauds, it has been fully per formed, and the only unperformed portion is that relating to the division of the proceeds. McClintock v. Thweatt, supra.
The evidence does not show that the contract was not to be performed within a year. No definite time was agreed upon within which the contract should be performed, and it may have been performed within a year. In order to bring a contract within the operation of the statute of frauds, it must have been one that, by its terms, was not to be performed within a year. Browne on the Statute of Frauds, § § 273, 274; Linscott v. McIntire, supra; Trowbridge v. Weatherbee, supra; Peters v. Westborough, 19 Pick. 364; Lyon v. King, 11 Metcalf 412.
We find no error in the record, and the decree is affirmed.
See also Railway Company v. Whitley, 54 Ark. 199; Sweet v. Desha Lumber Co., 56 Ark. 629. (Rep.) | [
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Frauenthae, J.
On December 3, 1906, the plaintiffs, J. W. McArmick and C. E. McArmick, instituted this suit against the defendant, Joe Compagionette, in the chancery court of Clay County, and in their complaint they alleged that on the 22d day of September, 1906, the defendant sold to the plaintiff, J. W. Mc-Armick, two mules, at public sale, for $249.50, and also some harness for $2.50; and that the plaintiffs executed their joint note therefor, which had not then matured; that at the time of the sale the mules were infected with the disease known as “glanders,” and that the defendant knew that the mules were so afflicted, and with the intent to defraud defendant caused the mules to be sold at the public sale at which the plaintiff bought. That the defendant was insolvent, and was preparing to sell the notes. They asked that the defendant be enjoined from disposing of the notes and finally from collecting same. .With the complaint the plaintiffs tendered the price of the harness. The defendant filed an answer to the complaint in which he denied that the mules were afflicted with the glanders, and denied that he knew that the mules were so diseased, and denied any intention to defraud in making said sale. The plaintiff J. W. McArmick died during the pendency of the suit, and as to him the cause was revived in the name of his administrator. Upon .the trial of the cause the chancellor found “that the sale of said mules was void as to plaintiffs by reason of fraud practiced in the sale,” and decreed that the price of the harness, tendered by the plaintiffs, be paid to the defendant, and that the defendant be perpetuall})' enjoined from disposing of and collecting said note.
It is urged by the defendant that the evidence is not sufficient to sustain the chancellor in his finding of facts. We do not think it necessary to set out in any detail the testimony establishing the issues of this cause. We have carefully examined the same, and from this it appears that at the time of the sale one of the mules had what was then said to be the distemper. Immediately after the sale the plaintiff began doctoring the mule, and this mule died about November 20, following the sale; and the other mule died about December 1, following that date. Witnesses testified as to the various, symptoms which these mules exhibited, which indicated that they had the glanders. An experienced veterinary surgeon, engaged in the government service as veterinary inspector for the Bureau of Animal Industry, testified that, from the symptoms described, the mules undoubtedly had the glanders at the time of the sale and died from that disease. So that we think that the testimony amply sustains the finding of the chancellor that these mules were infected with glanders at the time of the sale. The more difficult question to determine is whether the defendant knew this. It would serve no useful purpose to here set out the various circumstances adduced in evidence by which it is attempted to prove that the defendant knew that the mules were so afflicted.
The chancellor by the decree made a finding to this effect. Upon an examination of the testimony we cannot say the finding of the chancellor is against the preponderance of the evidence. By the repeated decisions of this court the finding of the chancellor as to the issues of fact under these circumstances becomes conclusive. Whitehead v. Henderson, 67 Ark. 200; Hinkle v. Broadwater, 73 Ark. 489; Bank of Pine Bluff v. Levi, 90 Ark. 166.
It is urged by counsel for appellant that there is no testimony showing that the defendant warranted the soundness of the mules; and that the evidence is not sufficient to prove that the defendant intended to or did perpetrate a fraud in making the sale; but that the defendant at the time of the sale announced that one of the mules had the distemper. But the true question that is involved in this case, and which fixes its determination, is not whether the defendant warranted the quality of the animals. The facts as settled by the finding of the chancellor, and which we hold are sufficiently sustained by the evidence, are that these mules were at the time of the sale infected with the disease of glanders, and that defendant was aware of this. Such a sale is prohibited by the statutes of this State, and any contract founded thereon is therefore, invalid.
Section 1636 of Kirby’s Digest provides: “Any person who shall sell or offer for sale or use or expose or who shall cause or procure to be sold or offered for sale, or used, or to be exposed, any horse or other animal having the disease known as the glanders or farcy or any other contagious, or infectious disease known to such person to be dangerous to human life, or which shall be diseased past recovery, shall be guilty of a misdemeanor.”
And section 1637 of Kirby’s Digest provides that: “Every animal having glanders or farcy shall at once be deprived of life by the owner or person having charge thereof upon discovery or knowledge of its condition; and any such owner or person omitting or refusing to comply with the provisions of this section shall be guilty-of a misdemeanor.”
A sale is illegal where the statute expressly declares it to be so, or where it prohibits its execution; and a sale is equally invalid where the statute only imposes a penalty upon the party for making it. It is not necessary that the statute should expressly declare the contract of sale to be void; but the infliction of a penalty upon what is declared as an offense implies a prohibition of such act, and thereby renders void any contract founded on such act. In this State it is the well-settled doctrine that: “Every contract made for or about any matter or thing which is prohibited and made unlawful by statute is a void contract.” Tucker v. West, 29 Ark. 386; Lindsey v. Rottaken, 32 Ark. 619; Martin v. Hodge, 47 Ark. 378; Goldman v. Goodrum, 77 Ark. 580; Tiedeman on Sales, § 306; 2 Mechem on Sales, 1044; 1 Page on Contracts, § 327. See also George v. Johnson, 6 Humph. (Tenn.) 36, 44 Am. Dec. 288.
The note involved in this case was executed in pursuance of a sale of mules having the disease known as glanders. For making such sale a penalty is imposed by the statute of our State. This renders the note void.
We therefore find no error in the decree; and it is affirmed. | [
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Smith, J.
Prom 1923 through 1937, with the exception of 1926, the Pulaski county quorum court, at the direction of tlie Little Rock city council, annually levied, in addition to the 5 mills for the city general fund, a tax of %ths of a mill for the use and benefit of the firemen’s pension and relief fund of that city.
The general taxes on the lots in the city of Little Rock here in litigation were not paid for the year 1932, and the lots were sold to the state for the nonpayment of the taxes. The lots were not redeemed, and after the expiration of the time for redemption the sale was duly certified to the State Land Commissioner, and under authority of Act 119 of the Acts of 1935, p. 318, a decree was rendered confirming this sale on April 28, 1938.
On January 1, 1940, the delinquent taxes on the lots, including those for which the lots were sold and those which would have subsequently accrued, totaled $204:18. On January 4, 1940, appellant applied to the State Land Commissioner to purchase the lots under the'provisions of Act 282 of the Acts of 1939. An appraisal of the value of the lots was made, as provided by this act, and the lots were conveyed, on January 4, 1940, to appellant by the State Land Commissioner for $33.22, the appraised value.
Appellant took immediate possession of the lots and made improvements thereon of the value of $62.
'Walthour & Flake acquired the record title of the original owner of the lots, and on June 25,1941, filed this suit, praying the cancellation of the deed from the state to appellant, and from a decree awarding that relief is this appeal.
The decree required Walthour & Flake to pay appellant, Schuman, the amount Schuman had paid the state for his deed and the value of the improvements. A tender of these amounts was made when the suit was filed.
It was held in the case of Adamson v. City of Little Rock, 199 Ark. 435, 134 S. W. 2d 558, that no authority existed for the levy of the pension tax in addition to the 5 mills for city purposes, and in the case of Sherrill v. Faulkner, 200 Ark. 1006, 142 S. W. 2d 229, it was held that a sale for taxes, including an excessive tax, was void, because the property was sold for taxes not due and which could not be imposed. The. case last cited quotes from the case of Fuller v. Wilkinson, 198 Ark. 102, 128 S. W. 2d 251, as follows : “In Fuller v. Wilkinson, . . ., it was held, to quote a syllabus: ‘Where the three-mill road tax had not been voted by the electors at the preceding general election, there was no authority for extending the tax against the lands, and a sale of the land for taxes including such road tax is, for lack of power to sell, void and is not cured by a decree of confirmation.’ See, also, Adamson v. City of Little Rock, 199 Ark. 435, 134 S. W. 2d 558.” That holding was reaffirmed in the case of Smart v. Alexander, 201 Ark. 211, 144 S. W. 2d 25.
Those cases apply and govern here, and authorize the original owner to attack the confirmation decree where there was lacking power to sell.
It is argued, however, that this right to attack a decree which had confirmed a tax sale where the power to sell did not exist is barred by Act 423 of the Acts of 1941, p. 1227. This is an act entitled, “An Act to Amend § 8719 of Pope’s Digest of the Statutes of Arkansas, as Amended by § 2 of Act 318 of the Acts of 1939; and for Other Purposes.”
Section 8719, Pope’s Digest, is taken from § 9 of Act 119 of the Acts of 1935. This § 9 of Act 119 of 1935 was quoted in full in the case of Fuller v. Wilkinson, supra, where it was contended that this section should be construed as enacting a statute of limitations requiring confirmation decrees rendered under Act 119 to be attacked within one year after the date of their rendition, and not later. In overruling that contention it Avas there said: “Does this act allow any period of time, reasonable or otherwise, within A\rhich-all affected landowners may show cause why the decree should not become final and impervious to attack? The áct provides that ‘the title to said property shall be considered as confirmed and complete in the state forever,’ that is, at the time of and upon the date of the rendition of the confirmation decree. It appears to he the purpose and effect of the act to give finality and conclusive effect to the decree of confirma tion, not one year after the date of its rendition, but upon its rendition. It is true that certain owners, who can make the showing that they had no knowledge of the pendency of this suit and who have a meritorious defense to the complaint upon which the decree was rendered, are allowed one year for that purpose, but only such persons are allowed that time. All others are concluded from the date of the rendition of the decree, and as to them the decree is as final upon the date of its rendition as it ever becomes.”
'But Act 423 of the Acts of 1941 is a statute of limitations. It provides that “The owners of any real property embraced in said decree (rendered under the authority of Act 119) may, however, by appropriate pleading filed within one year from and after its rendition, attack the said decree in so far as it relates to their property, either in the same cause in the said chancery court or in a separate cause in the same or any other court of competent jurisdiction, upon any ground which would have constituted a meritorious defense to the complaint upon which the said decree was rendered; and any such attack, made within the said one-year period as aforesaid, shall be taken to be direct attack as of the same term when the said decree was rendered. All attacks upon the said decree made after the said one-year period shall be taken to be collateral attacks and shall be wholly ineffectual. Provided nothing in this act shall prevent any person attacking such decree at any time on the grounds that taxes have actually been paid.”
Now, unlike § 9 of Act 119 of the Acts of 1935, Act 423 of the Acts of 1941 is a statute of limitations, but to what decrees does it apply? Appellant insists that it applies to all decrees rendered under the authority of Act 119, whether those decrees were rendered prior to the passage of Act 423 or subséquent to that date.
If Act 423 is so construed, the effect of that construction will be that the owner’s right to redeem from a confirmation decree was barred when the act became effective. The act was approved March 31, 1941, without an emergency clause, and, therefore, became effective ninety days after the adjournment of the session of the General Assembly at which it was passed.
Appellant insists, therefore, that a reasonable time was afforded the landowner in which to prevent the bar of the statute of limitations from falling. To sustain that contention the case of Steele v. Gann, 197 Ark. 480, 123 S. W. 2d 520, 120 A. L. R. 754, is cited. That opinion construed Act 135 of the Acts of 1935, p. 383, which was a statute of limitations on actions for malpractice against physicians and surgeons and certain others. The act provided that such action must be commenced within three years after the cause of action accrued, and that the time of the accrual of the cause of action shall be the date of the wrongful act complained of. There the cause of action sued on accrued more than three years before the passage of the act; but it was held that the act applied to the causes of action mentioned, as the act did not become effective until ninety days after the passage of the act, and that a reasonable time was, therefore, afforded within which the plaintiff could have prevented the falling of the bar of the statute of limitations against her cause of action.
Not so here, as Act 423 requires that any attack upon a confirmation decree shall be “filed within one year from and after its rendition,” so that, if Act 423 is to be given a retroactive effect and made applicable to decrees rendered prior to its passage it would bar an attack upon any decree rendered a year or more prior to its passage, because, if the act applies to such decrees, the period of limitation which it prescribes began to run from the date of the rendition of the decree.
It is said at § 21 of the chapter “Limitation of Actions,” 34 Amer. Jut., p. 29, that’“An existing right of action cannot be taken away by legislation shortening the period of limitation to a time which had already run; it is not within the power of the legislature to cut off an existing remedy entirely, since this would amount to a denial of justice. Consequently, it is firmly established that when a new limitation is made to apply to existing rights or causes of action, a reasonable time must be allowed before it takes, effect in wbicli such rights may be asserted or in which suit may be brought on such causes of action, and that a limitation statute is void if the period allowed is unreasonably short. On the other hand, statutes of limitation affecting existing rights are not unconstitutional if a reasonable time is given for the enforcement of the right before the bar takes effect. The limitation fixed for actions by statute may depend upon the happening of a subsequent event, provided that event cannot possibly happen until after the expiration of a reasonable time in which to bring actions on existing causes of action that would otherwise be barred.” Cases were cited in the Steele case, supra, in harmony with this statement of the law.
It was contended by the plaintiff in the Steele case, supra, that the plaintiff had three years after the passage of the act there construed in which to bring her suit, and that the act was not retroactive and did not apply to causes of action which had originated before its passage. It was said, however, that the act was retroactive, and it was upheld as a statute of limitations, inasmuch as it afforded the plaintiff a reasonable time within which to act and prevent the bar of the statute of limitations from falling.
Here, Act 423 was not, in our opinion, intended to be retroactive. It was provided in § 9 of Act 119 of the Acts of 1935, now appearing as § 8719, Pope’s Digest, that certain owners might, within one year, have the confirmation decree vacated by showing a meritorious defense against the confirmation, which language was construed as meaning that it was a meritorious defense to show that the tax sale was invalid for any reason. But, inasmuch as § 9 did not apply to all owners, but only to the special class of owners there designated, it was held in the case of Fuller v. Wilkinson, supra, that the one year allowed for this attack was not a statute of limitations, and if the tax sale were void through the lack of power to make it the confirmation decree might be attacked at any time. The tax sale confirmed in Fuller v. Wilkinson, supra, was held void because the land had been sold for a road tax which had not been voted as required by the constitution. Here, the tax.sale is void because it involved a tax for the firemen’s pension which had been levied in violation of the constitutional provision limiting the total tax which might be levied for municipal purposes. In both cases the tax sale was void because there was lacking power to sell for taxes which were not due and were included in the total tax for which the land was sold.
One purpose, if not the primary purpose, of Act 423 was to change the rule announced in Fuller v. Wilkinson, so as to limit the time within which confirmation decrees might be attacked for any purpose, save only upon the ground that the taxes for which the land had been sold had been paid. Act 423 does not profess to be retroactive, and there is, of course, a strong presumption against that legislative intent.
We hold, therefore, that Act 423 was hot intended to and does not apply to confirmation decrees rendered prior to its passage, but only to those subsequently rendered.
The presumption against a legislative intent to make Act 423 retroactive is strengthened by the following language appearing in that act: “The owners of any real property embraced in the said decree may, however, by appropriate pleading filed within one year from and after its rendition, attack the said decree in so far as it relates to their property, . . . ” It was contemplated in the passage of Act 423 that there would continue to be confirmations of future tax forfeiture, and the act imposed a limitation against attacks upon decrees subsequently rendered which did not exist before its passage. Act 423 provides that any attack upon a confirmation decree not made within one year after its rendition “shall be taken to be collateral attacks and shall be wholly ineffectual,” but it does give a year within which to make a meritorious defense against the confirmation. Here, a year had expired after the rendition of the confirmation decree before Act 423 was passed, and a consideration of this fact adds strength to the view that it was intended that Act 423 should only apply to decrees of confirmation rendered subsequent to its passage.
It is insisted that appellees, as grantees of the original owner, are barred by laches from maintaining this suit. It appears, however, that appellees purchased from the original owner before appellant’s deed was placed of record, and that they filed this suit promptly after being advised that appellant had purchased from the state. The decree from which is this appeal granting the right of redemption requires appellees to repay appellant the purchase price paid the state for the land and the value of the improvements which appellant made. When this has been done — and tender thereof has been made — appellant sustains no loss except that he does not acquire the property for the small amount paid the state, and the plea of laches cannot be sustained. Sanders v. Flenniken, 180 Ark. 303, 21 S. W. 2d 847.
It is also insisted that appellees are being allowed to redeem from a confirmation decree without paying the sum required for that purpose by § 6 of Act 119 of 1935, now appearing as § 8716, Pope’s Digest. This section requires the owner who attacks a confirmation decree 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.” It is conceded that this amount is $204.18, and appellees are required to pay only $33.22. But appellant is in no position to complain. He did not pay the state $204.18; he paid only $33.22, and the decree requires this last-named amount to be paid him. Appellant, instead of paying $204.18, availed himself of the provisions of Act 282 of the Acts of 1939, by causing the land to be appraised and by purchasing it at its appraised value. However erroneous and inadequate this appraisement may have been, the state elected to sell, and did sell, the land for that amount. The state now asserts no title to or interest in the land by virtue of the sale for the delinquent taxes and the confirmation of that sale. Appellant is not entitled to the difference between the amount required to redeem under § 6 of Act 119 of 1935 and the purchase price paid to the state, because he has not paid the difference. He is only entitled to be reimbursed what he paid for the land and his improvements, and the decree appealed from requires that sum to be paid to him to effect a redemption.
It is finally insisted that appellees are barred by appellant’s plea of res adjudicaba. The basis of this contention is that the decree of confirmation is conclusive of the validity of the tax sale, inasmuch as any objection to its validity could and should have been made before the rendition of the decree confirming the sale. In support of that contention appellant cites Meyer v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958, and other similar cases holding that the judgment or. decree of a court of competent jurisdiction upon the merits concludes the parties and their privies, and constitutes a bar to a new action involving the same cause of action before the same or any other tribunal.
The case of Fuller v. Wilkinson, supra, and the later case following that decision are against that contention. Those cases are to the effect that confirmations of tax sales under Act 119 of 1935 are ineffective where the power to sell did not exist, and such decrees may be vacated upon the showing that the power to sell was lacking. Angels v. Redman, 198 Ark. 980, 132 S. W. 2d 170; Berry v. Davidson, 199 Ark. 276, 133 S. W. 2d 442; Dansby v. Weeks, 199 Ark. 497, 135 S. W. 2d 62; Commercial National Bank v. Cole Bldg. Co., 200 Ark. 212, 138 S. W. 2d 794; Sherrill v. Faulkner, supra; Moseley v. Moon, 201 Ark. 164, 144 S. W. 2d 1089; Redfern v. Dalton, 201 Ark. 359, 144 S. W. 2d 713; Beloate v. Taylor, 202 Ark. 229, 150 S. W. 2d 730; Faulkner v. Binns, 202 Ark. 457, 151 S. W. 2d 101; Ingram v. Blackmon, 202 Ark. 769, 152 S. W. 2d 315.
The decree from which is this appeal, awarding the right of redemption upon the conditions herein stated, accords with this view, and it is, therefore, affirmed. | [
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Mehaeey, J.
The appellants, Everett Teel and Gladys Teel Latham, brought suit in the Randolph chancery court ag’ainst the appellee, Adeline Hamden, on January 29, 1941, alleging that on and prior to February 3, 1920, appellant, Everett Teel, was the owner of 160 acres of land in Randolph county, Arkansas, describing said lands in the complaint; that on February 3, 1920, appellant, Everett Teel, conveyed by warranty deed said lands to his wife, Anna Teel; Anna Teel died on May 1, 1920, leaving surviving her her husband, Everett Teel, and Gladys Teel, now Gladys Latham; that said Gladys Latham had and was entitled to a homestead right in and to her mother’s real estate until she attained her majority, which would have been on March 4, 1937; on November 2, 1920, the appellant, Everett Teel, mortgaged said lands to Dr. S. G. Harnden; Everett Teel remarried on November 15, 1929; he, joined by his then wife, mortgaged the same land at a time when the deed record showed that Anna Teel died seized of said lands; said second mortgage was given to secure a certain promissory note of even date and due and payable five years later; that the mortgage purported to give the mortgagee a power of sale set out therein; that said power of sale was not followed in an attempt to foreclose said mortgage and was not substantially followed as contemplated by statute; said sale was not made by the mortgagee nor an assignee and was therefore invalid; that the attempted foreclosure was before said note and mortgage were due and payable; said attempted sale was invalid for the further reason that proper notice, as required by law and set out in the mortgage, were not given and said foreclosure was and is invalid for the reason that no notice was ever served on Everett Teel, the appellant, as required by law; that all of the above proceedings are invalid for the following reasons:
“1. Said mortgage attempted to convey an estate not then owned nor subsequently acquired by the mortgagor.
“2. All of the above related proceedings were had and done or attempted to be had and done before Gladys Teel Latham had attained her majority and at a time when the homestead right in and to said lands was vested in her and at a time when the said Everett Teel possessed only an estate by curtesy, if any, and that said estate by curtesy, if any, was inferior and subject to her homestead right until she attained her majority.
“3. Said foreclosure and sale or attempted foreclosure and sale was invalid because same was not had as provided by law in that said notices were neither published nor posted as specifically stated in said mortgage and as are required by law.
“4. Said purported sale by foreclosure was not made nor attempted to be made 'by the mortgagee and that the power to sell was not properly delegated in writing to a properly appointed agent.
“5. Said attempted foreclosure and áhle was invalid because it was premature and at a time long before t-he said note was due and payable.
“6. Said sale was not under an execution on any judgment from any court for any debt of the said Everett Teel, and did not attempt to sell and/or convey the interest, if any, owned by the said Everett Teel.”
Appellants further alleged that the appellee has been in possession of said premises since 1934 and has had the use and benefit of same and has used and col lected all rents from same; that she has also out, used, hauled away and disposed of timber of the fair value of $250; that she permitted a dwelling house on the property of the value of $250 to be destroyed by fire without same being insured and that appellants have been damaged in said aggregate sums; that appellants are entitled to immediate possession.
The appellee filed a demurrer which is not shown to have been acted upon by the court. Appellee filed, answer denying each and every material allegation contained in the complaint and specifically admits that on February 3,1920, appellant, Everett Teel, was the owner and in possession of the lands in controversy; she denied that Everett Teel at any time conveyed the lands to his wife, Anna Teel, or that any deed was acknowledged or delivered or that the deed was valid or effective, such that would pass title; denied that the deed was filed for record by Anna Teel or that she had any knowledge thereof; that the attempted delivery of the deed was conditional and not intended as a valid deed; that after the execution of the deed Everett Teel remained in custody and retained control and exercised full ownership the remainder of the life of Anna Teel, and executed a mortgage on the property to S. G. Harnden on November 15, 1929; admits that Anna Teel died about May 1, 1920, and left surviving' her Everett Teel and her daughter, Gladys Teel Latham, a minor, but denies that Anna Teel, at the time of her death, was seized of title to the land in controversy; denies that Gladys Teel Latham was entitled to any interest; she alleges that on November 2, 1920, Everett Teel executed a note to George S. Harnden in the sum of $174 payable one year after date with interest; that Everett Teel on the same date executed a mortgage on the lands in controversy to secure the payment of said note; that said mortgage was recorded January 3, 1921; that at this time Everett Teel was the record owner of the said lands and that Harnden had no notice of any alleged deed; that no part of the principal of said indebtedness had been paid; that on May 15, 1929, there was due and owing to Harnden by Teel the sum of $188 and on said day, in renewal, Teel made and executed a note in the sum of $188 due and payable two years after date with interest at 10 per cent, per annum, and the same date, in renewal, Teel and his then wife, Myrtle Teel, executed and delivered to said Harnden a mortgage on the lands in controversy; said mortgage was duly executed and recorded; that both the aforesaid mortgages were executed to Harnden to secure the same debt aud that both mortgages were taken without knowledge of the claim by Gladys Teel Latham; that the last mortgage was not intended to satisfy or release the first one; she denied that the mortgage was given to secure a debt due in five years, but alleged that it was due in two years after date; that the sale under the mortgage was had as required in the mortgage, and that the appellee, Adeline Harnden, became the purchaser at such sale and the mortgagee executed a deed to her for $260'; denied that the sale was invalid and further alleged that should there be any defect or irregularity in the last mortgage the original mortgage be in force and effect; that through the sale Adeline Harnden be subrogated to the rights of the said G. S. Harnden and that the plaintiffs are barred and estopped from maintaining this suit; she denies that she has received any rents or profits from the lands; denies that she has cut, removed, or sold timber from said land of the value of $150 or in any other sum; denies that the residence in the value of the sum of $250 was caused to be burned by her negligence or otherwise; denied that either of the plaintiffs is entitled to the immediate possession of the land; further alleged that this suit should have been brought against the heirs of S. G. Harnden; pleads estoppel and the statute of limitations.
The appellants filed a reply which was a general denial of the allegations contained in the answer.
The court entered the following decree: “On this May 29, 1941, the same being an adjourned day of the Randolph chancery court, the above cause having been reached on the regular call of the calendar, come the plaintiffs in person and by attorneys, George H. Steimel and A. A. Robinson, and comes the defendant, Adeline Harnden, in person and by her attorney, W. J. Schoonover, and all parties announce ready for trial.
“Whereupon, the cause is submitted to the court upon the complaint of the plaintiffs, and exhibits thereto, the answer of the defendant and exhibits thereto, the reply of the plaintiffs to the answer of the defendant, oraL proof adduced in open court as well as documentary records and proof in evidence, and all other pleadings, matters, things and proof in the cause, and the court thereupon takes the case under advisement and asks for the submission of written briefs of counsel.
“On this July 18, 1941, this cause having been taken under advisement and submitted on briefs as aforesaid, the court doth find: that the court has jurisdiction of the parties and the subject of this action.
“That this is an action of the plaintiffs to establish their title, recover possession and an accounting of rents of and to the following described land, real estate and premises, in Randolph county, Arkansas, to-wit: the southeast quarter of the southeast quarter of section twenty-eight; the northeast quarter of the northeast quarter, the northwest quarter and the southwest quarter of the northeast quarter of section thirty-three, all in township twenty north, range one (1) west, containing 160 acres, more or less.
“That the said defendant, Adeline Harnden, is in possession of the said land and premises, under a claim of ownership and title thereto, and that there is a common source of title in the plaintiffs and the defendant, the title thereto having been originally in the plaintiff, Everett Teel, and both parties claiming through said source.
“That the plaintiffs’ claim of title to said lands, for the recovery of the possession thereof, for damages and for an accounting of rents is not sustained by the proof herein, and that all issues are found in favor of the defendant, and plaintiffs’ complaint should be dismissed for want of equity.
“It is therefore by the court now considered, ordered, adjudged and decreed that the plaintiffs, Everett Teel and Gladys Teel Latliam, take nothing by reason of their cause of action herein, and that their complaint and-cause of action be dismissed for want of equity.
“It is further ordered and decreed that the plaintiffs, Everett Teel and Gladys Teel Latham, pay all costs of this cause laid out and expended, and that the defendant, Adeline Harnden, have and recover judgment against them for such costs for which execution may issue.
‘ ‘ To the findings, judgment and decree of the court, the plaintiffs, Everett Teel and Gladys Teel Latham, object and except, and pray an appeal to the Supreme Court of Arkansas which is hereby granted.”
The case is here on appeal.
There was introduced in evidence a deed from Everett Teel to Anna Teel, dated February 3, 1920; mortgage with power of sale, Everett Teel to George S. Harnden, November 2, 1920; mortgage with power of sale, Everett Teel and wife, Myrtle Teel, to S. G. Harnden, November 15, 1929; mortgagee’s deed under power of sale, S. G. Harnden to Adeline Harnden, March 8, 1934; note dated November -2, 1920, Everett Teel to George S. Harnden for $174 payable one year after date; mortgage with power of sale, Everett Teel, widower, to George S. Harnden, November 2, 1920; note dated November 15, 1929, payable two years after date, Everett Teel to S. G. Harnden; mortgage with power of sale, Everett Teel and wife, Myrtle Teel, to S. G. Harnden, due and payable two years after date; mortgagee’s deed, S. G. Harnden to Adeline Harnden, March 8, 1934.
Everett Teel testified in substance that he deeded the land in controversy to his wife, Anna Teel, on February 3, 1920; delivered the deed; nothing was paid for it; gave it to his wife because he wanted to; handed the deed to her in the house, but does not know what she did with it; never saw the deed again; gave a mortgage to Dr. Harnden on November 2,1920.
Anna Teel died in May, 1920, but the deed that Everett Teel testifies he gave to her was not recorded until after he had executed a mortgage to Dr. Harnden. Dr. Harnden had no notice that any deed was ever made, and there is really no evidence of what was done with the deed between the time it was made and the date of Anna Teel’s death.
Gladys Latham was born March 4, 1916; testifies that she cannot remember when she first came into possession of the deed, but it was at her grandfather’s house and was after the death of her mother; her grandfather gave her the deed after she was married in 1935.
Tom Hulvey, a brother of Anna Teel, testified that he was present in Pocahontas on January 30, 1934, at the sale of the land under the power in the mortgage; that Mrs. Harnden did not bid. on the land; does not remember who sold the land; Mr. Baker had some'papers and gave them to Dr. Harnden; that his brother lived on the place last year under a contract with Mrs. Harnden.
Bufe Baker, the circuit clerk, testified that he prepared the notices of sale when the sale was made under the power in the mortgage; does not know who conducted the sale, but says Dr. Harnden bought the land; does not know who sold it.
It is not denied that before Anna Teel’s deed was recorded Everett Teel executed and delivered a note and mortgage to Dr. Harnden for $174. The evidence shows that no part of the principal was ever paid. It is not.denied that the debt was due Dr. Harnden from Everett Teel. The note and mortgage executed in 1929 were between the same parties and for the same debt that was originally made in 1920. In fact, the appellants say in their brief that the second note and mortgage perhaps represented the same indebtedness, but different mortgagees. We think the evidence shows conclusively that the mortgagee was the same in each of the mortgages, the one dated 1920 and the one dated 1929.
It is contended by the appellants that Everett Teel had no. title or interest in the land in controversy when he mortgaged it in 1920. However, the undisputed proof shows that this was before the deed to Anna Teel was recorded.
There is some evidence to the effect that the debt secured by the mortgage executed in 1929 was due five years after date, but there is other evidence which shows that it was due in two years. The original note was introduced in evidence, but is not in the transcript. There was evidence tending to show that it was difficult to tell whether the mortgage was due in five or two years, and the clerk, in transcribing and copying the mortgage, fixed it at five. We think, however, the preponderance of the evidence shows that it was two instead of five years.
Not only did Dr. Harnden have no notice of the deed from Teel to his wife, but Teel occupied the land, exercised ownership and control, just as he did before he claims to have deeded the land to his wife.
The contention, however, is principally about the second note and mortgage. It is claimed that the sale was not conducted as required by the mortgage and by law. In our view of this case, it really makes no difference, because the second mortgage was given to secure the same debt, and Dr. Harnden kept possession of the original note and mortgage. No release or satisfaction was ever made of the first indebtedness or mortgage.
“A mortgage does not lose its priority by taking a renewal mortgage when the debt is the same and the property is not released from the lien. . . .
“ Likewise the giving of a new note secured by a deed of trust for the same debt, does not deprive the holder of the new security of the right to foreclose the original mortgage.” 2 Jones on Mortgages, 664.
In Arkansas Mortgages by Hughes, it is stated on page 246: “A mortgagee who takes a new mortgage to secure the old debt and releases the first mortgage may have the lien of the first mortgage restored if the new mortgage prove to be invalid, if he has acted in good faith and without culpable negligence. This is a rule close akin to the doctrine of subrogation, applied when a defective security has been taken.
“In an early case the mortgagee took a new mortgage in ignorance that a second mortgage had been placed upon the property. He was restored to his rights under the original mortgage as against the second mortgagee who had full knowledge that the new mortgage was but a renewal.
“In a later case the same rule was applied in favor of a mortgagee who. had satisfied his original mortgage and taken a new one for the same debt, the new mortgage being void for noncompliance with the homestead statute.” 'See, also, Shurn v. Wilkinson, 131 Ark. 167, 198 S. W. 279; Davies v. Pugh, 81 Ark. 253, 99 S. W. 78; Roark v. Matthews, 125 Ark. 378, 188 S. W. 841; Jordan v. Wilkerson & Carroll Cotton Co., 152 Ark. 533, 238 S. W. 780.
The deed given by Dr. Harnden to the appellee, Adeline Harnden, recites that the sale was made in conformity to the law, and there is no satisfactory evidence to the contrary. After this sale was made Teel turned the land over to the appellee without any objection. He did not even suggest that there was any defect until nearly seven years after the sale. .
This court recently said in the case of Clark v. Womack, 192 Ark. 895, 95 S. W. 2d 891: “The deed recites that the sale was made by the trustees named in the mortgage. They executed and acknowledged the deed. One witness, Jim Davis, testified that the sale was made at the court house, and that he thought it was made by A. Gr. Sanderson, but was not positive. This is not the character of evidence required to overcome the recitals in the deed, which the law recognizes as prima facie true. ”
It will be remembered that both Dr. Harnden and Mrs. Anna Teel were dead at the time of this trial. There is no claim that the original debt was not due from Teel to Harnden, and the only claim with reference to the original note and mortgage is that Everett Teel had already deeded this property to his wife. The evidence conclusively shows that this deed was not put on record; that it was secret, and that Dr. Harnden knew nothing about it.
Section 1847 of Pope’s Digest reads as follows: “No deed, bond, or instrument of writing, for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, hereafter made or executed, shall be good or valid against a.subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof; or against any creditor of the person executing such deed, bond, or instrument, obtaining a judgment or decree, which by law may be a lien upon such real estate, unless such deed, bond, or instrument, duly executed and acknowledged, or approved, as is or may be required by law, .shall be filed for record in the office of the clerk and ex-officio recorder of the county where such real estate may be situated.”
The evidence conclusively shows that Dr. Harnden did not satisfy the original debt and did not release the note and mortgage, but kept possession of both; and since there was no satisfaction of the original debt, no release of the note and mortgage, it becomes unnecessary to discuss or decide the other questions raised by the parties.
The decree of the chancellor is correct and is, therefore, affirmed. | [
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